Free Stipulation - District Court of Federal Claims - federal

Case 1:06-cv-00113-MBH

Document 18-9

Filed 09/22/2006

Page 1 of 14

300/30

NAVAL FACILiTiESENGINEERING COI~il~L~ND
o/

t. CONTRACTOR'S iNVOICE From OAK invoice Date ~NY!RO~NMEN.T_AL CONSULTSNTS,~!NC. 600 N. ROUTE SUITE 73, 12, MARLTON, 08060 NJ Invoice Number POC/Telephone/email this invoice: BruceNewman/856-988-9553/[email protected] for To: ContractSpecialist: KAREN SAMPSON E~elow a Statement Performance is of under Contract N62472-02-C-0095 Task Order # ~'or ANCHORAGE HOUSING REPAIRS NAVALSTATION, NE3NPORT, AT Theenclosure providesbreakdown this statement performance. of of A. Total valueof contract/taskorderthrough change Percentage performance of complete B. C. Valueof completed performance D. Lasstotal of pdorpayments ¯ F. Amount this invoice of Signature and Title: Date: 2/24/2004 2. FIRST ENDORSEMENT From: ROICC, NAVFAC CONTRACTS, NEWPORT, RI ~:~ ~.....~ $ 46.4034% [

. .2.4-~.eb-04 6_

NIA

2,453,163.00 $1,138,350.75 $1,119,851.21 J

Signature~'~Auth~rlzecl

Operations Director Re~ Receiptand Acceptance Certification

on TO# N62472

Signature: Name ~tle (~p~): and Phone address: and 3. PROiVlPTPAYMENT CERTIFICATION

Date:

I certify that the accounting data providedIs accurate, funds havebeen obligated In appropriateaccounting systemandchanges have beenapplied to the appropriateaccountingclassificatlap referencenumber (ACRN), available funds havebeendecremented the for amount approved disbursement will not be .de .-obligated andthe above for and invoice Is correct andproperfor payment.

Signature: Name T'rtle and Phone address: and

-~o.-,-.._.. '~tatw ~,gnature mAutnonzeo I~presen (typed): -

e

Date:

~/~r'-/~-('

Line(s) of accounting be used this Invoice(include appropriate to for Line Item# (CLIN,SLIN,or ACRN,

Case 1:06-cv-00113-MBH

Document 18-9

Filed 09/22/2006

Page 2 of 14

~,~horage Housing Renovations N62472-02-C-0095
WorkIn place as of ?J24/04 Amount Bond DemoBalh Demo Bath Tub Tub Shower Wall Shower Wall M~ Va~es T~ & W~st~ Tdp& Wa~e Shee~ S~et~ Toilet T~let V~l~ Vanl~ Me~clne ~lnet ~clne ~bl~t Su~floar ~mo S~-floor demo Su~r i~tall ~mmlc R~r ~mmic R~r ~ I~ghVSmok~ ~mo lighVS~k~ Smo~ Smo~ Hall Ug~ Hall Ught ~nlng ~ht Di~ng ~ht ~mo Pe~o ~m ~mo Patio Doom I~all Pa~ ~m I~tall PaSo ~m Retake ~ller Re~e ~3er Re~ve WH Retake WH Rem~e s~ ve s~c~ I~all ~ile~ & ~ntmls I~11 ~llem & controls I~11WH Ins~l WH Pl~ m~lfl~ons Piping mod~gons 100% ~5.8% 45,8% 44.2% 44.2% 44.2% 44.2% 45.8% 45.8% 44.2% 44.2% 45.4% 45.4% 44.2% 44.2% 44.2% 44.2% 44.2% 44.2% 45.8% 46.8% 45.8% 45.8% 45.0% 45.0% 44.2% 44.2% 13"063.20 44.2% 27,415.20 44.2% 13,063.20 44.2% 2g,244.00 44.2% 13"063.20 44.2% 44.2% 29,244.08 8,959.74 39.0% 2,073.26 39.0% 16,024.40 39.0% 79,305.44 39.0% 25,847.64 67.04% 87.04% 18,092.70 87.04% 87.04% 86.8% 15,518.52 86.5% 47,042.10 87.04% 217,136.70 87.04% 31,017.06 87.04% 87,881.22 87.04% 93,050.64 87.04% 87.04% 28,431.54 87.04% 7,753.32 87.04% 27,915.30 86.5% 86.6% 8,808.00 0% 270,60 0% 3,340.2O 0% 26,008.20 0% 8,6O8.6O 0% 0% 13,419.60 2,4O2.40 76.7% 3,605.40 76.7% 7,125.00 76.7% 8,412.00 76.7% 126,766.08 0% 345,669.2O O% 49,063.00 54,165.60 1,840,80 27,084.00 45,086A0 36,112.80 89,610A0 42,295.20 62,793.6O 14,100.00 11,690.00 27,084.00 16,440.00 28,197.60 113,258.40 23"908.00 133,351.20 14,611.2O 71,284.80 9,028.80 1,096.80 27,081.60 29,227.2O 72,213.60 43,744.80 17,414A0 49,083.6O 24,825.90 843.70 11,g62.10 20,178.16 15,949.82 39,833.76 19,385.30 28,76OA0 6,227.50 5,163.08 12,300.6O 7,466.51 12,453.94 50,022.48 12,767.70 58,6O6.78 6,453.28 31,484.12 4,138.2O 502.70 12,412.40 13,395".80 32,496.12 19,685.16 7,691.36 for invoice Complet~ Contract 1 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 240 118 118 118 118 54 54 54 54 52 52 54 54 54 54 54 54 54 54 52 52 54 54 54 54 54 54 60 60 60 60 54 54 % 1.6O0 0.458 0.458 0.442 0.442 0.442 0.442 0.458 0.458 0.442 0,442 0.~54 0.454 0.442 0.442 0.442 0.442 0.442 0.442 0.458 0.458 0.458 0.458 0.450 0.450 0.442 0.442 0;442 0.442 0.442 0.442 0.442 0.442 0.390 0.390 0.390 0.390 0.870 0.870 0.870 0.870 0.655 0.865 0.870 0.870 0.870 0.870 0.870 0.870 0.870 0.B70 0.865 0.865 0.000 6.000 0.6O0 0.000 0.000 0.000 0.767 0.767 0.767 0.767 0.000 0.008

~

~a~ s~em Re~lr.~f ~o~ Re~ir roof ~netm~o~ ~mo d~r~mme Damo d~rfimme ~r ~ow D~r w/~ndow D~r Fr~e ~or Frame Smoke/CO entrance Smok#~ - en~n~ Hall U~t ~or Hall Ught Saner Pomh ~lumn ~k

1 110 110 108 106 106 108 11O" 110 106 106 109 109 108 106 106 106 106 106 110 110 110 110 108 108 106 106 106 5,769.58 12,108.38 106 8,769.58 106 12,916.10 106 5,769.58 106 12,916.10 106 3"494.30 48 808.57 45 6,249.52 46 30,929.12 46 22,497.01 47 47 15,747.34 47 47 13,423.52 45 45 40,944.03 47 188,989.27 47 26,998.32 47 76,459.18 " "47 80,988.49 47 24,745.96 47 6,748.26 47 47 24,146.73 45 45 0 0 0 0 0 0 1,841.85 46 ~764.15 46 46 5,462.52 6,449,23 46 0 0

$ 2,453,152.88

Case 1:06-cv-00113-MBH

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Filed 09/22/2006

Page 3 of 14

Per your request, here is an explanation concerninginvoice payments after suspension.To summarize, payments #4 and #5 (after suspension) consistedof approximately $37,571 completionof the stack safety corrections (the work for had not beenpreviously completed,nor paid) and app.roximately$6,030for minor adjustments from previous invoices for percents complete. Belowfor reference is the Payment Log: << File: 020095paymentIog.PDF>> Workwas suspendedon 5/2/03. Invoice #4 dated4/30/03 wasthe last majorpayment workprior to the suspension included stored materials as for and well as workin place. Oak's invoice showed value of completed the workto be $1,159,310.48, while the Government's endorsement valued the amount work complete to be $1,095,444. The difference of approximately of $63,866 is documented a ROICC in prepared "Deductions from OakInvoice #4 for Anchorage"worksheet There weretwo categories of deductions: Items not completed (remove roof stacks and repair roof penetrations) and Stored Materials value adjustment. Below a copyof the invoice and worksheet. is << File: 020095 invoice 4.PDF>> By letter of 10/22/03,ROICC advisedthat "When boilers wereinstalled in the units last winter, weather not the did permit roof workand repairs of penetrations. The6" exhauststack wastemporarily connected two existing 4" to exhaust stacks. This is considered safety deficiency by the NavalStation boiler inspector and mustbe corrected a immediately." << File: 020095ROICC letter 10-22-03.PDF >> By letter dated12/4/03, Oakadvisedthat they wanted rectify discrepancies to between their invoices andreceivables from the Navyas stated in their email of August 20th. Andthat after their review"... that there werea number of omissionsin the EarnedValue Reportswhich had beenpreviously forwardedto you. Enclosedplease find our correctedReportfor your review." Below a copyof the letter. is << File: 020095 letter 12-4-03.PDF oak >> Invoice #5 dated 12/31/03waspaid in the amount $24,407.21.It consistedof approximately of $18,377 partial for completionof the stack safety correction and approximately $6,030for small adjustments 24 other items based to on a re-reviewof actual percentscomplete.Below a copyof the invoice. is << File: 020095 invoice 5.PDF >> Invoice #6 dated2/24/04 waspaid in the amount $19,193.41. consistedtotally of the balancefor the remainder of It of the stack safety correction. Below a copyof the invoice. is << File: 020095 invoice 6.PDF >> Anyfurther questions, pleaseask. Carl

Case 1:06-cv-00113-MBH

Document 18-9

Filed 09/22/2006

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DEPARTi~ENT THE NAVY OF
ENG|NEERING AC11VITY, FIELD NORTHEAS1" NAVAL FACILITIESENGINEERING COMMAND '10 INDUSTRIAL HIGHWAY MAIL STOP, ¢,82 LESTER, 19113-2090 PA

IN REPLY REFER TO

4370 Code NE ACQ December 12, 2003

Mr. Edward J. Eichen OAK ENVIRONMENTAL CONSULTANTS, 600 n. route 73 Marlton, NJ 08060 Dear Mr. Eichen: SUBJECT: TERMINATION

INC.

FOR CONVENIENCE

#04-001T

Reference is made to contract N62472-02-C-0095, Anchorage Housing Project at Naval Station, Newport, RI. Enclosed please find Modification P00003 Terminating For Convenience of the Government the subject contract. You are hereby notified and directed as follows: (a) Effective date of termiaation. You are notified that all remaining work under Contract No. N62472-02-C-0095 (Herein referred to as "'the Contract") is terminated in whole for the Government's convenience under the FAR Clause 52.249-2 Alternate I entitled Termination For Convenience of the Government, (Fixed Price), (Sep 1996). The termination is effective December 2003. (b) Cessation of work and notification to subcontractors. You shall take the following steps: immediate

(I) Stop all work, make no further shipments, and place n~ further orders relating to the contract, except for(i) Work-in-process or other materials that you may wish to retain for your own account; or (ii) Work-in-process that the Contracting Officer authorizes you to continue (A) for safety precautions, (B) clear or avoid damage to equipment, (C) to avoid immediate complete spoilage of work-in-process having a definite commercial value (see paragraph (j) below), or (D) to prevent any undue loss to the Government. (If you believe this authorization is necessary or advisable immediately notify the Contracting Officer by telephone or personal conference and obtain instructions). (2) Keep adequate records (1) above showing theof your compliance with

subparagraph

O001i~

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4370 Code NE ACQ December 12, 2003 (i) Date you received the Notice of Termination; (ii) Effective date of termination; and (iii) Extent of completion of performance on the effective date.

(3) Furnish Notice of Termination to each immediate subcontractor and supplier that will be affected by this termination. In the notice(i) Specify your government contract number; (ii) State whether the contract has been terminated completely; (iii) Provide instructions to stop all work, make no further shipments, place no further orders, and terminate all subcontracts under the contract, subject to the exceptions in subparagraph (i) above; (iv) Provide instructions to submit any settlement proposal promptly; and (v) Request that similar notices and instructions be given to its immediate subcontractors. (4) Notify the Contracting Officer of all pending legal proceedings that are based on subcontracts or purchase orders under the contract, or in which a lien has been or may be placed against termination inventory to be reported to the Government. Also, promptly notify the Contracting Officer of any such proceedings that are filed after receipt of this Notice. (5) Take any other action required by the Contracting or under the Termination clause in the contract. ( c ) Termination inventory. (i) Use your best efforts to sell all termination inventory wherever located, ah best price available, within thirty (30) days of date of this letter. (2) To settle your proposal, it will be necessary establish that all prime and subcontractor termination inventory has been properly accounted for. For detailed information, see Part 45 of the FAR. (d) Settlements with subcontractors.

Officer

You remain liable to your subcontractors and suppliers for proposals arising because of the termination of their subcontracts or orders. You are requested to settle these settlement proposals as promptly as possible. For purposes of reimbursement by the Government, settlements will be governed by

Case 1:06-cv-00113-MBH

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4370 Code NE ACQ December 12, 2003 (h) Administrative. Termination Settlement Proposals are to be submitted within thirty (30) days from receipt of this letter to the Contracting Officer, Naval Station, Building i, Simonpietri Drive, Newport, RI 02841-1711 who is the administration office named to process the Termination Settlement for this contract. Questions pertaining to the above may be directed to Denise Abraham at NAVFAC Contracts, Newport, RI. (401) 841-1191. Sincerely - _ //

Contracting Officer By direction of the Commanding Officer Copy to: Lincoln General Insurance ROICC Newport SBA District Office Co.

Case 1:06-cv-00113-MBH

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ACKNOWLEDGMENT

OF NOTICE

The undersigned acknowledges receipt of a signed copy of this notice on , 2003. Two signed copies of this notice are returned to Naval Facilities Engineering Command, Engineering Field Activity, i0 Industrial Highway Mail Stop #82, Lester, PAl 19113-2090 ATTN: Code NE IPT/TW (Name of Contractor) By (Name)

(Title)

Case 1:06-cv-00113-MBH

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March 11, 2004

Naval Facilities Engineering Command EFA Northeast 10 Industrial Highway Mail Stop, #82 Lester, PA 19113-2090 Att: Ms. Marilyn Colot REF: Termination for Convenience #04-001T Dear Ms. Colot, Enclosed please fred our acknowledgement the aboVecontract termination. to Please contact meif you require further information.

Sincerely,

Bruce Newman Director of Operations

Case 1:06-cv-00113-MBH

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ACKNOWLEDGMENT

OF NOTICE

The undersig~gd.acknowledges receipt of a signed copy of this notice on ~ ~~ , 2003. Two signed copies of this notice are returned to Naval Facilities Engineering Command, Engineering Field Activity, I0 Industr'ial Highway Mail Stop #82, Lester, PA. 19113-2090 ATTN: Code NE IPT/TW

~

(Nam~of

Contractor)

Title)

Case 1:06-cv-00113-MBH

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Filed 09/22/2006

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June 22, 2005 Jeff Longenecker, VP CommerceBond Services Group 200 Lancaster Ave. Devon, PA 19333 RE: Anchorage Housing Renovations, Naval Station Newport, RI Mr. Longeneeker, I was the Assistant Regional Officer in Charge of Construction (AROICC) the above for referenced project. I have since been honorably released from active military duty, and remained in contact with OAK Environmental. This project was suspended on May2, 2003 while I was managing project for the Navy. This was as the result of the Navy's the plans to privafize the base housing at Newportand in no wayreflects on OAK Environmental'sperformance; whichwas satisfactory in all regards. Althoughthe suspension letter states that the suspensionwas for a period of one year, OAK Environmental's bond was not released as it was thought that the pfivatization would not go through and the project could be restarted at anytime. OAK asked to was remain on standby and prepared to continue the work during this period in the event the project could be restarted. OAK .the ROICC and office remainedin regular contact during this time with regards to either restarting, thework,or releasing the-bon&-Thebondwas finally released on May17, 2004 terminating the contract for convenienceof the government. tf there are any further questions, I can be reached at 401-467-6300. Sincerely,

Nolan Redding

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Ootober18, 2005 Ed Eiehon Oak gnvironmental 61)0 North Route73 - Suite 12 Marlton, NJ 08053 RE: At~cboragoHousingRenovations, Naval Station Newport, Mr. Ellen, As youkalow, youa'firm eoi:ttacted mein June 2005seekinghelp regardingyour stated difticulty in obtain~g bonddue to issues related to the subject project. It wasindicated a to me that your newbonding company needed somegener~ baokga'ouod information regarding the suspensionand subsequenttermination for convenience.The type of information the bondingcompany neededwas provided and I was asked to send them a letter. It wasneverindicated or discussedthat this letter would sent to the government be or used for any other audiencethan your bondingcompmly.
4

It has come myattention that the letter I providedto youdated Juno22, 2005has now to beea submittedto the government ,support of an Eicbelayclaim for the ~bject project, in -i did .not-intend.for .this letter to be usedfor-any-such purpose other-thanto provide general.information your- bonding to company. :tether ~t/outtt-not:bo.tl~fl- in any ~ther ~ context or for any other reason, If there are any further questions, I can be reachedat 401-467-6300.

Copyto: ROICCNewport 1 S~rnonpietriDrive Newport, RI SENT VIA: FAX FIRST CLASS MAIL

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RECEIVED
envirom.ment~l oonsultants, ino.

~0~]~ -9 ~H10~ SEP 53 O1C/RO~., NAVFAO CONTRACTS

26 August, 2005

Mr: AndreW Sullivan LCDR,CEC US. Navy Resident Officer in Chargeof Construction Naval-Facilities Engineering Command Naval Activates Narragansett Bay Area OneSimonpietri Drive Newport, R102841-1712 Re: Your Letter of 24 August, 2005 4330 ROICC/L4116 Subject: Contract. N62472-02-C-0095 Via: FedEx Mr.Sullivan, --tn reference to the above,please acceptthis letter as our ¯Claimas directedbyFAR 52.233.1 Disputes.]?lease note the certification statementbelow. We in accord with your contention that our Claimis governedby the Eichleay formulaand are further that the legal tests for use are that the contractorbe held on standbyand be unableto take on replacement work. The.facts however not support your contentionthat wewerenot held on indefinite stand-byor do that ~vewere able to obtain replacement work.Thefacts clearly showthat the Navy directed us to remainon standby and to remainready to return to workimmediately,whichin fact the Navy orderedus to do. Whileyour letter of 2 May 2003suspended work"'effective immediately our through 1 May 2004", the Navy not release our bonduntil 17 May did 2004, effectively preventing us fi-om obtaining "replacement work". Wehad numerous conversations via telephone and email (examplesattached) with then Contracting Officer Denise Abraham and then Asst. ROICC NolanRedding Lt. attempting to obtain release of our bondso that wecould pursue replacementwork. We were toldrepeatedly that our bondwouldnot be released because the ROICC hopedthat the privatization of base housing wouldnot go through and we wouldbe ¯ called uponto resumeworkimmediately.TheROICC not want the project delayed by our did. havingto re-obtain bonding.This not only tied up the lion's share of our bonding capacity, but .also created a lack of confidence our bondingfirm whicheffeciively precludedour ability to in 1 greentree mews 0 IBO0 north route 73. suite 12 Q marlton, nj 0E~053

w~. oakg pour. net

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environme'ntel consultants,

extend our bondingline. Theywereconcerned that at least someof the reason the project was suspended(and moreimportantly to them, the bondwithheld) mayhave occurredas the result somefault in our work. Even after release of our b.ond, the Navy's over twoyear. delay in dealing with the termination has continuedto foster a lack of confidenceby our bondingcompany, further exacerbating-our ability to obtain the bondsnecessaryto continueour business. In order to mitigate the bonding .firm"s fears; We to obtain a letter fromthe Navy had (attached) whichlists the reasonsfor the terminationand the Navy's delay in closing out the matter. Thatletter (attached) written formerLt. NolanReddingof your ROICC office clearly states that we wereheld on indefinite standby, that wecould be recalled at any time. Asfurther evidenceof the fact that wereordered to remain on standby and prepared .to immediatelyresumework, wewere ordered to resumeon site workDecember 2003 and continued workinguntil February 0f2004. of Asis clearly evident our Claimmeetswith exactitude the twolegal tests for use of the Eichleay formula referencedin your letter: as 1) Wereorderedto be on standby and were in fact recalled to Work post termination. The attachedinvoice for that work Mr..Redding's and letter clearly indicate thisl " " ..... 2~ We"W6f~ 'inalSl6 i0obtain repliidenient w0rkb~d~iJ~ewe tad to r~main ready tO .... -immediately resumeworkand becauseour bondwas released: Theeffect on ot~r firm" s not financial position is clearly evidenced the DCAA by audit(s). We haveprovidedampleproof herein to substantiate our Claim. In the absenceof anything to the contrary werespectfully demand that you honorour Claimilnmediately. Ourclaim is for $344,395.92.This is based on DCAA's finding of $394,883.94 the fixed " as allowableoverheadfor the contract divided by the period of performance (438 days); yielding daily O/Hrate of $901.56.Multiplyingthe daily O/I-I rate ($901.56)by the number suspension of days (382), yields a total amount owed us of $344,395.92. to I certify that the claimis made goodfaith; that the supportingdata are accurate andcomplete in to the best of myknowledge belief; that the amount and requestedaccurately reflects the contact adjustmentfor whichthe Contractorbelieves the Government liable; and that I amduly is authorizedto certify the claimon behalf of the Contractor.

2 greentree mews o E~O0 north route 73. suite 12 o merttOn, nj 08053 [85S3 888-9553 ~ [f~ [85S] 7~7-8303 ~ web address ~. oakgrou p. net

000~.28

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environmental consultants,

In light of our long term (10+ year) relationship, I sinc.erely hope wecan cometo a just and amicable resolution. Unfortunately in the event that we cannot reach a just and amicable resolution, the harm (as evidenced by DCAA audit) that this situation has Causedthe firm will force us to pursue legal recourse. Sincerely, OAK. Environmental Consultants, Inc. By:

Encl. cc: Michael Onufrak, Esq.

3 greentree mews ~ IBO0 north route 73..suite 12 o marlton, nj 018053 [856] 988-9553 ° [fax] [858] 7~7-~803 ~ web address wvvvv, oakg roup. net