Free Answer - District Court of Federal Claims - federal

Case 1:04-cv-00830-LJB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CARPENTER CONTRACTING, INC. Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 04-830C (Judge Lynn J. Bush)

DEFENDANT'S ANSWER For its answer to the complaint, defendant admits, denies, and alleges as follows1: Parties and Jurisdiction 1. 2. Admits. The allegations contained in paragraph 5 constitute a

conclusion of law for which no answer is required; to the extent that they may be deemed an allegation of fact, they are denied. 3. Admits that the allegation that Carpenter "submitted

certified claims for additional compensation and additional Contract time to the Contracting Officer, on or about October 11, 1999" to the extent supported by the document cited, which is the best evidence of its contents. The allegation contained in the

first sentence of paragraph 3 that this submission was "timely" constitutes a conclusion of law for which no answer is required; to the extent that it may be deemed an allegation of fact, it is denied. Admits the allegation in the second sentence of

paragraph 3 to the extent support by the document cited, which is

Carpenter Contracting, Inc. did not number the paragraphs of its complaint. Nevertheless, for the Court's convenience, the United States responds as if the substantive paragraphs were numbered sequentially.

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the best evidence of its contents. 4. 5. Admits. The allegation contained in paragraph 5 constitutes a

conclusion of law for which no answer is required; to the extent that it may be deemed an allegation of fact, it is denied. Count I. 6. Sub-surface Buried Debris

Defendant's responses to paragraphs 1 through 5 of the

complaint are incorporated by reference. 7. 8. Denies. The allegations contained in paragraph 8 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 9. The allegation that "Under the terms of the Contract,

Carpenter was entitled to an equitable adjustment of the Contract price and time for the buried sub-surface debris" constitutes plaintiff's characterization of its case and a conclusion of law to which no response is required; to the extent it may be deemed allegations of fact, it is denied. Admits the allegation that

Carpenter "submitted a certified claim for an equitable adjustment for the buried subsurface debris" to the to the extent support by the document cited, which is the best evidence of its contents. The allegation that this submission was "timely"

constitutes a conclusion of law for which no answer is required; to the extent that it may be deemed an allegation of fact, it is denied. 10. The allegations contained in paragraph 10 constitute 2

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conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 11. The allegations contained in paragraph 11 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. Count II. Destruction of Safety Fence and Grade Stakes and Flags 12. Defendant's responses to paragraphs 1 through 5 of the

complaint are incorporated by reference. 13. Denies the allegation contained in paragraph 13 for

lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted. 14. Denies the allegation for lack of knowledge or

information sufficient to form a belief as to the truth of the matters asserted. 15. The allegations contained in paragraph 15 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 16. The allegations contained in paragraph 16 constitute

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

conclusions of law and plaintiff's characterization of its case

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to which no response is required; to the extent they may be deemed allegations of fact, they are denied. Count III. 18. Embankment Quantities

Defendant's responses to paragraphs 1 through 5 of the

complaint are incorporated by reference. 19. The allegations contained in paragraph 19 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 20. The allegations contained in paragraph 20 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 21. The allegations contained in paragraph 21 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 22. The allegations contained in paragraph 22 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. Count IV 23. Grade Changes in Excavation Area

Defendant's responses to paragraphs 1 through 5 of the

complaint are incorporated by reference. 24. 25. 26. Denies. Denies. The allegations contained in paragraph 26 constitute 4

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conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 27. The allegations contained in paragraph 27 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 28. The allegations contained in paragraph 28 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. Count V. 29. Off-site Borrow

Defendant's responses to paragraphs 1 through 5 of the

complaint are incorporated by reference. 30. The allegations contained in paragraph 30 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 31. Admits the allegation that Carpenter brought off-site

borrow material by truck to complete the levee; otherwise denies the allegations in paragraph 31. 32. The allegations contained in paragraph 32 constitute

conclusions of law and plaintiff's characterization of its case to which no response 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 5

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to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 34. The allegations contained in paragraph 34 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. Count VI. 35. Additional Aggregate Base

The allegations contained in paragraph 35 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 36. The allegations contained in paragraph 36 constitute

conclusions of law and plaintiff's characterization of its case to which no response 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 response 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 response is required; to the extent they may be deemed allegations of fact, they are denied. Count VII. 39. Repairs to Haul Roads

Admits the allegation to the extent support by the

document cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 39. 6

Case 1:04-cv-00830-LJB 40.

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Denies the allegation for lack of knowledge or

information sufficient to form a belief as to the truth of the matters asserted. 41. The allegations contained in paragraph 41 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 42. The allegations contained in paragraph 42 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 43. The allegations contained in paragraph 43 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. Count VIII. 44. Remission of Liquidated Damages.

Admits the allegation that the Government assessed

"liquidated damages for delayed completion against Carpenter at the rate of $365.00/day." Denies that the Government assessed 92

days of liquidated damages; avers that the Government assessed 99 days of liquidated damages. 45. The allegations contained in paragraph 45 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 46. The allegations contained in paragraph 46 constitute

conclusions of law and plaintiff's characterization of its case 7

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to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 47. The allegations contained in paragraph 45 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. Count IX. 48. Extended Overhead Eichleay Calculation

The allegations contained in paragraph 48 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 49. The allegations contained in paragraph 49 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 50. The allegations contained in paragraph 50 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 51. Denies that plaintiff is entitled to the relief set

forth in the prayer for relief beginning on page 7 of the Complaint and continuing through page 8 of the Complaint. 52. Denies each and every allegation not previously

admitted or otherwise qualified. WHEREFORE, defendant respectfully requests that the Court enter judgment in its favor, order the complaint be dismissed, and grant defendant such other and further relief as the Court 8

Case 1:04-cv-00830-LJB may deem just and proper.

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ James M. Kinsella by DAB JAMES M. KINSELLA Deputy Director OF COUNSEL: CHARLES A. BRIGGS Trial Attorney Department of the Army Memphis District Corps of Engineers 167 North Main St. B-202 Memphis, TN 38103-1894 s/ Christian J. Moran CHRISTIAN J. MORAN Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-6299 Fax: (202) 514-7969 Attorneys for Defendant August 9, 2004

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