Free Status Conference Order - District Court of Federal Claims - federal

Case 1:04-cv-00473-MBH

Document 67

Filed 06/13/2005

Page 1 of 2

In the United States Court of Federal Claims
* * * * * * * * * * * * * * * * * M.G. CONSTRUCTION, INC., Plaintiff, v. UNITED STATES, Defendant. * * * * * * * * * * * * * * * * * * * * * * * * * * * *

No. 04-473C Filed: June 13, 2005

ORDER Pursuant to a discussion between the parties and chambers staff, the court SCHEDULES a status conference for Monday, June 20, 2005 at 10:30 a.m. EDT, at the National Courts Building, 717 Madison Place, N.W., Washington, D.C. 20005. Both parties may appear by telephone. Unless otherwise notified, the court will contact plaintiff's counsel at (503) 635-5367 and defendant's counsel at (202) 305-7576. If either party desires any additional individuals to participate in the status conference, the names and telephone numbers of the individuals must be provided to chambers staff at (202) 357-6580, on or before Friday, June 17, 2005, at 12:00 p.m. EDT. The parties shall be prepared to discuss whether or not material facts in dispute preclude resolution of count one (removal of aggregate surfacing) of the plaintiff's fourth amended complaint by summary judgment. The court is concerned, given the competing interpretations of the contract, with whether extrinsic evidence, taken in an evidentiary hearing, is necessary to resolve ambiguities and confusion in the contract. What was the intent of the parties at the time they signed the contract, with respect to CLINs 0001AA, 0001AC, and 0001AH? How were payments to the contractor to be computed? What was the role of estimated quantities on the bid sheet? If CLIN 0001AC (removal of BURS and insulation) included CLIN 0001AA work (removal of aggregate surfacing), why was there a separate CLIN for 0001AA? Was CLIN 0001AA a mistake? Did the government contemplate that it might order only CLIN 0001AA? What went into the government's estimate that 200 square feet of aggregate surfacing needed to be removed, that is, what was the formula, and why was it so far off? What other CLINs were not activated, and why were they on the bid sheet? How was the contractor paid, that is, was the computation 23,333 square feet times $ .80 for CLIN 001AC? If the contractor had removed 46,666 square feet under CLIN 0001AC, what would the reimbursement have been, and why? Why have the parties treated CLIN 0001AH (underlayment/vapor barrier) differently from CLIN 0001AA? Was CLIN 0001AH activated? Was there underlayment/vapor barrier removal? How much was removed compared to the 22 square foot estimate for CLIN 0001AH? What was the contractor paid for removal of underlayment/vapor barrier? If there were other reimbursements under the contract, under other CLINs, what were the computations?

Case 1:04-cv-00473-MBH

Document 67

Filed 06/13/2005

Page 2 of 2

Even following review of the submissions by the parties on count one, these questions remain unanswered and the court remains concerned that, at a minimum, a brief evidentiary hearing would assist in the resolution of count one regarding the intention of the parties. IT IS SO ORDERED. s/Marian Blank Horn MARIAN BLANK HORN Judge

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