Free Memorandum - District Court of Federal Claims - federal

Case 1:04-cv-00473-MBH

Document 74

Filed 07/14/2005

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

No. 04-cv-00473-MBH (Judge Horn)

COMMENT UPON USAF'S UNILATERAL STIPULATIONS The Government is arguing that a patent ambiguity exists in the contract because of the estimated amounts in certain CLINs. This argument fails when one considers the effect of estimated quantities in a requirements contract. The contract at issue was a requirements contract. See Joint Stipulation 1 ("Roof Requirements Contract"). In such a contract, the quantity estimates become of little importance. The contractor must perform the actual requirements needed by the Government, whether they be much less or much more than the estimated amount. See Appeal of A.G. Bartlett Co., 69-1 BCA 7547 (1969) ("The circumstance that the buyer's requirements turn out to be less, even far less, than contemplated when the contract was entered into affords the seller no relief in the absence of bad faith on the buyer's part"). It is the unit price that is important to the bidder because that is what he or she will be paid for each unit sold or performed, no matter how many or how few are ordered. It would be unjust to allow such estimates to be, in effect, binding upon the bidder but imposing neither a warranty or guarantee of a certain amount upon the Government. Justice and the legal effect of the estimates run contrary to the Government's contention.

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Case 1:04-cv-00473-MBH

Document 74

Filed 07/14/2005

Page 2 of 3

DATED this 14th day of July, 2005.

"s/Joseph A. Yazbeck, Jr." Joseph A. Yazbeck, Jr. YAZBECK, CLORAN & HANSON, LLC 1300 SW 5th Av. Suite 2750 Portland, Oregon 97201 (503) 227-1428 Attorney of Record for Plaintiff

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Case 1:04-cv-00473-MBH

Document 74

Filed 07/14/2005

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that on this 14th day of July, 2005, a copy of the foregoing COMMENT UPON USAF'S UNILATERAL STIPULATIONS was field 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. s/ Joseph A. Yazbeck, Jr.

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