Free Response to Motion - District Court of Federal Claims - federal

Case 1:04-cv-00632-LJB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

INFORMATION SYSTEMS & NETWORKS CORPORATION,) Plaintiff,)

)

) No. 04-632C ) (Judge Bush) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant.)
PLAINTIFF'S PROPOSED FINDINGS OF UNCONTROVERTED FACT REGARDING OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT CONCERNING AMENDED COMPLAINT

1.

Contract No. F49642-88-D-0054, ("the Prime

Contract") was a contract between the Small Business Administration ("SBA") and the Air Force District of Washington ("defendant"). 2. Plaintiff Information Systems & Networks

Corporation ("ISN") entered into Subcontract no. 3-88-12885 ("the Subcontract") with the SBA. 3. In September 1988, ISN, SBA, and defendant

entered into a Tripartite Agreement covering the Subcontract and the Prime Contract. Included within the

Tripartite Agreement are the various Prime Contract provisions including standard FAR provisions. Provision

23, entitled "Subcontract Provisions," sets forth the rights and obligations of ISN and defendant under the Subcontract including ISN's obligation to perform the

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Subcontract in accordance with the terms of the Prime Contract in exchange for the defendant paying ISN under the Subcontract in accordance with the terms of the Prime Contract. The Tripartite Agreement also contained FAR

52.216-18 which states that supplies or services furnished under the Subcontract were to be delivered through Delivery Orders ("DO"s). 4. The Air Force issued Delivery Order 6009 on

September 14, 1989.

5.

On June 12, 1990, the Air Force issued a partial

termination for convenience related to DO 6009. 6.
On or about October 23, 1991, ISN submitted a

certified CDA Claim for $1,383,111, which represented payment of claimed amounts plus CDA interest in connection with the termination of DO 6009. 7. The cognizant contracting officer did not issue ISN filed a notice of

a final decision on ISN's CDA claim.

appeal with the Armed Services Board of Contract Appeals ("ASBCA") based upon the deemed-denial of its claim on May 21, 1993. 8. The case was assigned ASBCA No. 46119. On July 10, 2002, the ASBCA issued its Opinion.

The ASBCA Opinion concluded that ISN was entitled to recover damages for various losses and costs incurred on the 4 sites under the Delivery Order. It also stated that

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the Subcontract and Prime Contract were distinct from one another. 9. The ASBCA Opinion remanded to the parties the

resolution of the quantum of the issues decided in ISN's favor on entitlement. 10. On April 14, 2003, ISN executed a settlement

agreement with the government and was paid the full amount of the invoice. The payment was made pursuant to a

bilateral modification which stated "Agreement for settlement of Information Systems and Networks Corporation to provide funds of $1,664,879 for ASBCA Case No. 46119." The settlement only related to the four claims set forth in the Opinion as well as claims under the Prime Contract, but it did not relate to the Subcontract, which is a separate agreement.

10.

While the settlement resolved issues arising

under the Delivery Order, it had no bearing on separate entitlements arising under the Subcontract between ISN and the defendant. Neither party contemplated the inclusion of

the Subcontract within the scope of the settlement agreement. Specifically, ISN's entitlement to indirect

costs and profit are not within the scope of the April 14, 2003 settlement agreement.

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11.

Under the terms set forth in Table B1 of the

Subcontract, ISN is entitled to reimbursement of indirect costs and profit. See A58 and DA4.

Dated:

June 22, 2005

Respectfully Submitted, SINGER & ASSOCIATES, PC

By:

_s/ Norman H. Singer_________ NORMAN H. SINGER, Esquire 10411 Motor City Drive Suite 725 Bethesda, Maryland 20817 Tel. (301) 469-0400 Fax (301) 469-0403
Counsel for Plaintiff

CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing PLAINTIFF'S PROPOSED FINDINGS OF UNCONTROVERTED FACT REGARDING OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT CONCERNING AMENDED COMPLAINT was filed electronically this 22nd day of June, 2005, and served via email on counsel for defendant by virtue of electronic filing.

s/ Norman H. Singer_______ NORMAN H. SINGER, Esquire

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