Free Response - District Court of Federal Claims - federal

Case 1:04-cv-00473-MBH

Document 75

Filed 07/19/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS M.G. CONSTRUCTION, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 04-00473 (Judge Horn)

DEFENDANT'S RESPONSE TO PLAINTIFF'S COMMENT UPON USAF'S UNILATERAL STIPULATIONS Defendant, the United States, requests leave of this Court to submit the following response to plaintiff's Comment Upon USAF's Unilateral Stipulations to clarify a misrepresentation contained in plaintiff's filing regarding our position in the above-titled matter. Plaintiff alleges that we are "arguing that a patent ambiguity exists in the contract because of the estimated amounts of certain [Contract Line Item Numbers "CLINs"]." The Government's position, as expressed in prior conferences with this Court is that the contract is clear that work was to be ordered and payments calculated using the delivery order method. Given that the only relevant delivery orders requested BURS removal as a unified CLIN, we maintain that compensation for that ordered CLIN satisfies our obligations regarding the removal of a BURS with all of its components. Our argument does not rely upon any asserted contract ambiguity. We have argued that, given that all of the CLINS for spot removal of BURS components such as aggregate surfacing and vapor barrier were estimated ex ante in quantities constituting less than one percent of the prior estimate of the total BURS removal, the different sizes of the prior estimates would have obligated M.G. Construction to confirm its understanding that activation of the BURS removal CLIN would activate the CLINS for removal of various BURS

Case 1:04-cv-00473-MBH

Document 75

Filed 07/19/2005

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components. Therefore, we argue that there would only be an obvious contractual ambiguity if M.G. Construction's claimed understanding of the contract is accepted.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ James M. Kinsella JAMES M. KINSELLA Deputy Director s/ James D. Colt JAMES D. COLT Trial Attorney Department of Justice Civil Division Commercial Litigation Branch Attn: Classification Unit 8th Floor 1100 L Street, NW Washington, D.C. 20530 Tel: (202) 514-7300 Fax: (202) 307-0972 July 19, 2005 Attorneys for Defendant

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Case 1:04-cv-00473-MBH

Document 75

Filed 07/19/2005

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that on this 19th day of July, 2005, a copy of the foregoing DEFENDANT'S RESPONSE TO PLAINTIFF'S COMMENT UPON USAF'S UNILATERAL STIPULATIONS was filed electronically. I understand that notice of this filing will be sent to all parties of record by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ James D. Colt