Free Proposed Additional Facts - District Court of Federal Claims - federal

Case 1:06-cv-00113-MBH

Document 37

Filed 06/01/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

) OAK ENVIRONMENTAL CONSULTANTS, INC.,) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ) ____________________________________)

Civil Action No. 06-113C

SUPPLEMENTAL JOINT STIPULATION OF FACTS The parties to the above action hereby submit the following supplement to the joint stipulation of facts, pursuant to the Court's Order dated June 1, 2007:

47. The Commander, Atlantic Fleet, advised the Naval Station, Newport, Rhode Island, on April 23, 2003, that the Commander, Atlantic Fleet, wanted all work to stop and that the contract should be terminated for convenience. (Admin Record AR 0130). 48. On April 23, 2003, the Naval Facilities Engineering Command advised the staff at the Naval Station, Newport, Rhode Island, to stand by to receive a formal request for terminating the Oak contract for convenience. (AR 0130). 49. On April 24, 2003, the Resident Officer in Charge of Construction ("ROICC") at the Naval Station, Newport, Rhode Island, advised his staff that he had received notice that the Commander, Atlantic Fleet wanted the Navy to stop Oak from doing any more work and was "looking to have all of Anchorage Housing demolished." AR 0131). 50. Oak's work on the housing units was verbally stopped on April 24, 2003. The Navy's goal was to reduce the inconvenience of the stoppage to Oak as soon as possible. (AR 0132).

Case 1:06-cv-00113-MBH

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Filed 06/01/2007

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51. As part of its contract evaluation, the Navy was considering whether to have Oak complete units that were partially renovated. (AR 0132). 52. On April 29, 2003, Naval Station, Newport, Rhode Island staff received an email stating as follows: "Please hold off on issuing the suspension until I get back with you. Capt Raines has reservations about issuing it prior to final direction from Fleet and a solid determination that the demo won't be subject to McKinney Act review. We will be meeting Thursday (ROICC is in on that phonecon as well) and should have a better idea afterwards." (AR 0135). 53. On June 2, 2003, the ROICC received a formal request to terminate Oak's contract. (AR 0136). 54. The Naval Facilities Engineering Command, on June 2, 2003, requested that elements of the staffs in Newport, RI and Lester, PA develop a plan to "properly terminate [Oak's] contract and also to rapidly develop a POAM for demolition..." (AR 0137). 55. On June 2, 2003, the Resident Officer in Charge of Construction at the Naval Station, Newport, Rhode Island, determined that the Navy should "attempt to do a bilateral deductive modification that would be coded as a termination for convenience and signed by a government contracting officer with termination authority." (AR 0137). 56. On October 14, 2003, the Contracting Officer, Marilyn Colot, directed that a termination for convenience of Oak's contract be prepared. (AR 0146). 57. On December 1, 2003, the Navy's recommendation for termination of Oak's contract for convenience was forwarded in an email to Marilyn Colot. (AR-0147 to 0150). 58. On January 6, 2004, the Contracting Officer (Denise Abraham) stated that the contract modification that terminated the contract for convenience (Modification P00003, dated December 12, 2003) considered potential costs to include "Eichleay proposal." (AR 0151). Ms. Abraham went on to state, in the January 6, 2004 email, that "[t]his email does not indicate entitlement to any costs associated with the termination." Id.

Case 1:06-cv-00113-MBH

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Filed 06/01/2007

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59. During his deposition taken on May 10, 2007, the Resident Officer in Charge of Construction, who issued the Suspension of Work Order dated May 2, 2003, could not recall why the time for the suspension was established to be one year, from May 2, 2003 to May 1, 2004. (See Zanoli Deposition Transcript, pp. 32-34). Respectfully submitted,

s/ Michael H. Payne Payne Hackenbracht & Sullivan 220 Commerce Drive, Suite 100 Ft. Washington, PA 19034 (215) 542-2777 (Fax-215-542-2779) Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director

s/Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director

s/Richard P. Schroeder RICHARD P. SCHROEDER Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit Eighth Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: 202-305-7788 Fax: 202-353-7988 email: [email protected] Attorneys for Defendant Dated: June 1, 2007