Free Joint Preliminary Status Report - District Court of Federal Claims - federal

Case 1:05-cv-00978-LJB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SILVER STATE CONSTRUCTION COMPANY, INC. ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. )

No. 05-978C Judge Bush

JOINT PRELIMINARY STATUS REPORT Pursuant to the Rules of the United States Court of Federal Claims, Appendix A, the parties submit this Joint Preliminary Status Report. a. Jurisdiction

Plaintiff contend that the Court possesses jurisdiction to consider this action pursuant to 28 U.S.C. § 1491 and 41 U.S.C. § 601. At this time, the United States knows of no reason to

question the Court's jurisdiction. b. Consolidation

This case should not be consolidated with any other case. c. Bifurcation

The issues of liability and damages should be tried together. d. Deferral

Proceedings in this case should not be deferred pending consideration of any other case. e. Remand Or Suspension

Neither party will seek to remand or suspend this case.

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f.

Joinder Of Additional Parties

At this time, neither party intends to join additional parties. g. Motions Pursuant To RCFC 12(b), 12(c) Or 56

At this time, the parties do not believe that dispositive motions are feasible prior to the completion of discovery. h. Relevant Factual And Legal Issues

In 2001, the Department of Interior, Bureau of Indian Affairs, awarded a contract to plaintiff to construct highway improvements. Plaintiff submitted several claims to the In

contracting officer, which are now the subject of this suit. summary, the relevant issues are as follows: 1.

Whether the Government made a compensable change to the

contract by requiring that the "borrow" needed for performance of the contract meet certain standards of ph and corrosiveness. 2. Whether the contract specifications for the borrow

required under the contract were defective. 3. 4. Whether major flooding occurred at the work site. If major flooding occurred at the work site, whether

the Government's failure to assume responsibility for losses and damages caused by the major flooding constituted a change to or a breach of the contract. 5. Whether winter conditions existed and, if so, whether

the Government improperly stopped work at the site due to winter conditions.

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6.

If the Government did improperly stop work at the site

due to winter conditions, whether such conduct constituted a change to or a breach of the contract. 7. Whether Silver State is entitled to field management,

field office, and overhead costs associated with changes for which contract modifications were issued, or whether such costs are barred by the doctrine of accord and satisfaction. 8. Whether plaintiff is entitled to recover its excess

cost for seed, when the amount actually used was less than the estimated amount set forth in the contract. 9. Whether plaintiff suffered any damages as a result of

the fact that plaintiff was required to excavate less material than the estimated amount in the contract. 10. Whether the Government has wrongfully withheld the

final payment on the contract. 11. i. Whether the plaintiff is entitled to any damages. Settlement

At this time, the parties believe it is too early in the litigation to provide an opinion as to the likelihood of settlement. This case is in the Court's ADR pilot program, and

the parties have been in regular contact with Judge Horn, the assigned ADR judge. j. Trial

If this matter cannot be resolved through settlement or by dispositive motion, the parties anticipate that the case will

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proceed to trial.

Neither party requests an expedited trial

schedule as it is anticipated that discovery will take more than 90 days and the trial will required more than three days. The

parties anticipate that the trial, if any, would take place in either Colorado or New Mexico. k. Electronic Case Management

There are no special issues regarding electronic case management. l. Additional Issues The parties are not aware of any other information that the Court should be aware of at this time. m. Proposed Discovery Plan

Pursuant to RCFC Appendix A, ¶ 5, the parties propose that they be allowed ten months for discovery, through December 31, 2006. The parties propose to make their disclosures of expert

testimony, if any, by September 15, 2006, and would complete their depositions or other discovery of experts by December 31, 2006. The parties stipulate that each may serve upon the other

written interrogatories not to exceed 50 in number, not including all discrete subparts. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

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s/ Franklin E. White Jr. by/ Donald E. Kinner FRANKLIN E. WHITE, JR. Assistant Director s/ Daniel E. Evans DANIEL E. EVANS Godin & Baity, LLC 1050 17th Street, Suite 1610 Denver, CO 80625 Tel: (303) 572-3100 Fax: (303) 572-3400 s/ Doris S. Finnerman DORIS S. FINNERMAN Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Department of Justice Tel: (202) 307-0300 Fax: (202) 305-7643 February 10, 2006 Attorneys for Defendant