Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:05-cv-01029-MCW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CALIFORNIA HUMAN DEVELOPMENT, COPRORATION, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 05-1029C (Judge Williams)

DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT Pursuant to Rule 56(h)(1) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant respectfully submits the following proposed findings of uncontroverted fact in connection with defendant's concurrently filed motion for summary judgment. 1. CHDC and the defendant entered into a contract to construct a Head Start/Early Head

Start facility at 626 Lincoln Street in Woodland, California. Complaint, ¶ 3. 2. During the construction of the facility, CHDC spent funds in excess of the amount of the

original grant. A31:9-15. 3. CHDC attempted to obtain reimbursement from the Government for these excess costs,

but the requests were denied. Complaint, ¶ 6. For example, the Government previously denied requests for funds to pay for: (1) development fees for off-site electrical power; (2) installation of a fire sprinkler system; (3) installation of a concrete pad for a playground for the children; (4) installation of a chain link fence; (5) a report of unfinished construction items necessary to obtain an occupancy permit; and (6) funds used for hiring a construction supervisor. None of these items were included in the original construction grant and all were denied when requested because CHDC paid for these items without first obtaining the required prior approval from ACF. A22-24.

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4.

CHDC also sought payment to investigate and provide plans to correct electrical supply

deficiencies as well as heating, ventilation and air conditioning ("HVAC") deficiencies. A24-25. CHDC also sought funds to pay a settlement that it reached with a subcontractor that placed a lien on the facility for lack of payment. A26. 5. In addition, all of the items claimed by CHDC were incurred prior to the relinquishment

discussions between the parties and prior to the close out period. A3; A40:24-41:12 6. In July of 2003, CHDC decided to relinquish the Head Start/Early Head Start program.

In return for CHDC's agreement to relinquish the program, the Government agreed not to issue approximately $1 million in disallowances, but instead issued a close out grant covering "reasonable and necessary" close out costs. CHDC's relinquishment of the Head Start/Early Head Start program is discussed in a series of letters between the plaintiff and defendant. A9-10. 7. In a letter dated July 24, 2003 and signed by Jerry Gomez and Martin Tom, the

Government stated that: if CHDC formally relinquishes its grants, ACF will not issue or in any other manner pursue the disallowances . . . nor will a termination proceeding be required . . . All matters relating to the transfer of the grants will then be addressed in a close out period. All reasonable and necessary close out costs will be fairly negotiated and charged to a close out grant, and all issues relating to the transfer of facility title, licenses, leases, lien claims, and other transfer issues, will also be negotiated and resolved in the ordinary course of the close out. A9. 8. In a letter dated July 25, 2003, signed by Jose Bernardo, CHDC accepted the

Government's offer as stated in its letter of July 24, 2003. A10. 9. CHDC then submitted a request for ordinary closing costs of $196,939 and $484,585 in

extraordinary closing costs for a total request of $681,525. A17. Of these claims, there is no -2-

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dispute that the Government paid CHDC a total close out amount of $137,532 which includes $104,108 in ordinary close out costs and $33,424 in extraordinary close out costs. A7; A36:1-2; A37:3-15.

Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Bryant G. Snee BRYANT G. SNEE Deputy Director s/ Robert C. Bigler ROBERT C. BIGLER Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L St., NW Washington, D.C. 20530 Tele: (202) 307-0315 Fax: (202) 514-8624 December 3, 2007 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on this 3rd day of December, 2007, a copy of the foregoing "DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT" 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. The parties may access this filing through the Court's system.

s/ Robert C. Bigler

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