Free Answer - District Court of Federal Claims - federal

Case 1:06-cv-00101-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS JAY CASHMAN, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 06-101C (Judge Allegra)

DEFENDANT'S ANSWER For its answer to the complaint of plaintiff Jay Cashman, Inc. ("Cashman"), defendant, the United States, admits, denies, and alleges as follows: 1. Denies the allegations contained in paragraph 1 for

lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted. 2. Admits the allegation contained in paragraph 2 that

defendant is the United States and that U.S. Army Corps of Engineers, New York District, is an agency of the United States; otherwise denies the allegations contained in paragraph 2. 3. The allegations contained in paragraph 3 constitute

conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 4. Admits the allegation contained in paragraph 4 to the

extent supported by the solicitation cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 4.

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5.

Admits the allegation contained in paragraph 5 to the

extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 5. 6. Admits the allegation contained in the first sentence

of paragraph 6 that dredging involves, among other things, removal of material from the ground submerged under a body of water. Admits the allegations contained in the second sentence

of paragraph 6 to the extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in the second sentence of paragraph 6. Admits the allegation contained in the third sentence of paragraph 6 that the six acceptance areas totaled approximately 820,000 square yards to the extent supported by the contract cited, which is the best evidence of its contents; otherwise denies this allegation in the third sentence of paragraph 6; the remaining allegations contained in paragraph 6 are plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 7. Admits the allegation contained in paragraph 7 to the

extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 7.

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8.

Admits the allegations contained in paragraph 8; avers

that surveys are used during contract performance both for acceptance of work and for payment. Average depth is used for

volume calculations and minimum depth is used for acceptance. 9. 10. Admits. Admits the allegations contained in the first sentence

of paragraph 10 that operation of the multibeam sonar equipment generates hundreds of thousands of data points; denies the remaining allegations contained in the first sentence of paragraph 10; avers that computer programs are used to represent the data. Denies the allegations contained in the second

sentence of paragraph 10; avers that data from the multibeam sonar equipment is represented in small, incremental areas, typically one square yard in area, which is referred to as "bins" or "cells." 11. Denies the allegations contained in paragraph 11; avers

that there are three separate data sets used to represent the bathymetry at the time of the survey: the minimum depth, which is used for acceptance; the average depth, which is used for volume calculations; and the map data set, which represents general condition of the bottom at the time of the survey. 12. Admits the allegation contained in the first sentence

of paragraph 12; avers that minimum depth is utilized for acceptance. Admits the allegation contained in the second

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sentence of paragraph 12; avers that average depth is utilized for volume calculations. 13. 14. Denies. Admits the allegations contained in paragraph 14 to the

extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 14. 15. 16. Denies. The allegations contained in paragraph 16 constitute

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 17. The allegations contained in paragraph 17 constitute

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 18. The allegations contained in paragraph 18 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 19. Admits the allegation contained paragraph 19 that,

"[a]s work progressed," the Government "repeatedly notified Plaintiff that its acceptance surveys indicated that material remained above the contract excavation limits and directed

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Plaintiff to redredge those areas"; denies the remaining allegations contained in paragraph 19. 20. The allegations contained in the first sentence of

paragraph 20 constitute plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. Admits the allegation

contained in the second sentence of paragraph 20. 21. Admits the allegations contained in paragraph 21 to the

extent supported by the October 1, 2004 letter cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 21. 22. The allegations contained in paragraph 22 constitute

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 23. Admits the allegation contained in the first sentence Admits the allegation contained in the second

of paragraph 23.

sentence of paragraph 23 that "agency policy in effect at the time of the Contract award" is set forth "in EM 1110-2-1003, HYDROGRAPHIC SURVEYS (1 Jan 02)"; denies the remaining allegations contained in the second sentence of paragraph 23; avers that EM 1110-2-1003 is not the only "agency policy in effect at the time of Contract award." Denies the allegation

contained in the third sentence of paragraph 23.

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24.

The allegations contained in paragraph 24 constitute

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 25. 26. Admits. Admits the allegations contained in paragraph 26 to the

extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 26. 27. Defendant incorporates by reference its responses to

paragraph 1 through 26 of the complaint. 28. 29. Denies. Admits the allegations contained in paragraph 29 to the

extent supported by the FAR provision cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 29. 30. The allegations contained in paragraph 30 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 31. Defendant incorporates by reference its responses to

paragraph 1 through 30 of the complaint. 32. The allegations contained in paragraph 32 constitute

conclusions of law and plaintiff's characterization of its case,

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to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 33. The allegations contained in paragraph 33 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 34. Defendant incorporates by reference its responses to

paragraph 1 through 33 of the complaint. 35. Admits the allegations contained in paragraph 35 to the

extent supported by the contracts cited, which are the best evidence of their contents; otherwise denies the allegations contained in paragraph 35. 36. The allegations contained in paragraph 36 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 37. The allegations contained in paragraph 37 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 38. The allegations contained in paragraph 38 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied.

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39.

Denies that plaintiff is entitled to the relief set

forth in the prayer for relief or to any relief whatsoever. 40. Denies each and every allegation not previously

admitted or otherwise qualified. AFFIRMATIVE DEFENSES 41. Plaintiff's claims are barred by the doctrine of

payment insofar as plaintiff has received payment and has been fully compensated according to the terms and conditions of the contract. 42. Plaintiff's claims are barred by the doctrine of accord

and satisfaction. 43. Plaintiff's claims are barred by the doctrine of

assumption of the risk. WHEREFORE, defendant requests that the Court enter judgment in favor of defendant, order that the complaint be dismissed, and that the Court grant defendant such other and further relief as the Court may deem just and proper. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Donald E. Kinner DONALD E. KINNER Assistant Director

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OF COUNSEL: DONALD M. HARRIS Engineer Trial Attorney U.S. Army Engineer District New York s/ David B. Stinson DAVID B. STINSON Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor, 1100 L St. Washington, D.C. 20530 Tele: (202) 307-0163 Fax: (202) 514-8624 Attorneys for Defendant

JUNE 9, 2006

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CERTIFICATE OF FILING I hereby certify that on June 9, 2006, a copy of the foregoing "DEFENDANT'S ANSWER" was filed electronically. I

understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. may access this filing through the Court's system. s/ David B. Stinson DAVID B. STINSON Parties