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

Case 1:05-cv-00373-MCW

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

No. 05-373C (Judge Mary Ellen Coster Williams)

JOINT PRELIMINARY STATUS REPORT Pursuant to Rule 16 and Appendix A, paragraph III, 4, of the Rules of this Court ("RCFC"), the parties file the following joint preliminary status report: (a) Jurisdiction Plaintiff's action arises pursuant to an express contract between Manhattan Construction Company ("Manhattan") and the United States, through the Department of Agriculture. The action is brought on an appeal from a denial by the contracting officer of a claim. Plaintiff states that this Court has jurisdiction to entertain this action pursuant to 28 U.S.C. § 1491(b). Defendant is currently not aware of any reason why this Court would not possess jurisdiction to entertain the merits of plaintiff's complaint pursuant to 28 U.S.C. § 1491 and 41 U.S.C. § 609. (b) Consolidation The Government has filed a motion seeking consolidation of this case with Manhattan Construction Company v. United States, 05-376C. Manhattan opposes the Government's motion to consolidate and has filed a motion in opposition together with a motion for enlargement of time out of time. (c) Bifurcation The parties are not aware of any reason why liability and damages should be tried

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separately. (d) Deferral The parties do not believe that further proceedings in this action should be delayed pending consideration of another case by this Court. (e) Remand/Suspension The parties do not intend to request remand or suspension. (f) Joinder The parties do not believe that additional parties should be joined. (g) Dispositive Motions The parties are not yet in a position to know whether summary judgment motions will be appropriate. The parties request that on or before 30 days after the conclusion of discovery, they be allowed to file a status report regarding the appropriateness of filing dispositive motions. (h) Relevant Issues Plaintiff's Statement Regarding The Relevant Factual Issues The insulation of domestic cold water piping is not required under the contract documents. The contracting officer acknowledged that this work is not expressly required under the contract documents, but contends that the contract is ambiguous and the absence of an express requirement for the work in question constitutes a patent omission. Thus the relevant legal issues are: 1.) 2.) Whether the Government can prove that the contract documents are ambiguous. Whether any ambiguity in the contract documents, is a "patent ambiguity" of

which Plaintiff should have been aware, or a "latent ambiguity" construed against the

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Government as the drafter of the contract documents. Plaintiff's Statement Regarding The Relevant Factual Issues As noted above, while acknowledging that the disputed work is not expressly required under the contract documents, the Contracting Officer contends that the contract is ambiguous and the absence of an express requirement for the work in question constitutes a patent omission. Hence, the primary relevant factual issue in dispute is whether, under the facts and circumstances of the subject contract specification, there is a "patent ambiguity." Defendant's Statement Regarding The Relevant Legal Issues 1.) Whether this Court possess jurisdiction to entertain the merits of plaintiff's

complaint pursuant to 28 U.S.C. § 1491 and 41 U.S.C. 609 where plaintiff's purported claim failed to request a sum certain. 2.) Whether the contract language, read as a whole, requires the insulation of

domestic cold water piping. 3.) Whether Manhattan had a duty prior to submitting its bid to inquire about the

patent ambiguity. 4.) Whether Manhattan can prove by the preponderance of the evidence that the

contracting officer's directive requiring the installation of domestic cold water piping constituted a change to the contract and, if so, whether Manhattan was damaged thereby. Defendant's Statement Regarding The Relevant Factual Issues 1.) piping. 2.) Whether there is a patent ambiguity in the contract documents pertaining to the Whether the contract documents required the insulation of domestic cold water

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insulation of domestic cold water piping. (i) Settlement The parties are not currently in a position to pursue fruitful settlement discussions. The parties will, however, continue to consider the possibility of settlement, and the use of ADR, throughout the proceedings. (j) Trial At this time, the parties anticipate that they will proceed to trial and that the trial will last two days. The parties agree that an expedited trial pursuant to paragraph 6(b) of Appendix G is not warranted. (k) Electronic Filing The parties are not aware of any special issues regarding electronic case management needs. (l) Additional Information The parties request that the trial in this case take place in Washington, D.C. The parties are unaware of any other matters which should be brought to the Court's attention at this time. Discovery Schedule 1. 2. 3. Exchange of documents by August 1, 2005 Completion of fact witness discovery by October 31, 2005 Designation of expert witnesses, if any, by September 15, 2005, and exchange of

expert witness reports within 30 days of fact witness discovery being completed 4. Completion of expert witness discovery by December 15, 2006

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Completion of all discovery by December 15, 2006 Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director

s/ Henry D. Danforth, Esq. HENRY D. DANFORTH, ESQ Watt, Tieder, Hoffer & Fitzgerald, LLP 8405 Greensboro Drive, Suite 100 McLean, VA 22102 703-749-1000

s/ Leslie Cayer Ohta LESLIE CAYER OHTA Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street NW Attn: Classification Unit, 8th Floor Washington, D.C. 20530 202-307-0252 202-307-0972 Attorneys for Defendant June 21, 2005

Attorney for Plaintiff June 21, 2005

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