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

Case 1:98-cv-00868-FMA

RICHARDANTHONY BATTAGLIN. JUNE 1 I,
P~ge

Document 98-15

Filed 04/06/2005
2004

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1 I remodeling at DownersGrove, right? 2 2 A. (Nodding.) 3 Q. In about Auguslof 10o6, are yoa still 3 4 doing lock box remodeling at the DownersGrove Post 4 5 5 Office? 6 6 A. Maybe, yes. 7 Q. Howdid you learn that you would be 7 8 scoping out a steel dock enclosure for Downers Grove 8 9 9 as opposedto the earlier woodone? l0 10 MR. PROSEN: Objection, asked and answered. 11 11 BY THE WITNESS: 12 12 A. Mr. McNabb contacted me and said the old 13 print that he produced was null and void and we need 13 14 14 to look at these other drawings, and I'm pretty sure 15 15 they were A.M. Femandez's drawing. 16 16 BY MS. KIRCHNER: 17 Q. Did you arrive for that site visit, the 17 18 18 secondsite visit, with the scope of workform all 19 i 19 filled out in terms of the line -- the item number 20 column, the description column, the unit measure 20 21 21 column, the unit price column? 22 A. This one I don't think was that way. I 22 23 23 think this one I drewit up in the field completely 24 24 with mybookbecause it was a total -- that drawing
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Q. And at the time you gave it to Mr. McNabb, yoa filled in the extend price had column on the scope of worl: form? A. 1 don't recall. Q. Had yon put a total price on the scope of work form before you gave it to Mr. McNabb? A. I don't recall. Q. After you gave the scope of work form to Mr. McNahb,what happened next with regard to the steel tube dock enclosure for DownersGrove? MR.PROSEN: Objection, calls for speculation on the witness' part. BY MS. KIRCHNER: Q. Let me replwase. Did you have conversations with Mr. McNabb about your scope of work for the steel constructed dock enclosure at Downers Groveafter that site visit? A. The only conversation I had with him, that was simply -- it was a status update, "Hi, how's it going? What's going on with the Downers Grove dock?" At that point he told me that A.M. Fernandez was going to handle the job and I should talk to Bob Rigsby. Q. Wq~m you say in response to that did
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1 statement from Mr. McNabb? 1 was different than this drawing, so myold one was 2 A. "I will look into it. Thank you very 2 obsolete, if you will. 3 much," something like ~hat probably. And we talked 3 Q. The new drawing for the dock enclosure 4 about other things we were working on. That was it. 4 at Downers Grovethat reflects steel in tbe 5 Q. Did you look into it after that 5 construction, was that a blueprint? 6 conversation with Mr. McNabb? 6 A. Yes, it wouldhave been a blueprint. 7 A. Yes. Q, Approximately what size? 7 8 Q. What did you do, sir? 8 A. The normal post -- whatever you want to 9 A. I think I -- I didn't talk to Fernandez, 9 call it, typical AEfinn size. It migbtbe -- I 10 but I did talk to Mr. Rigsby at somepoint in there, don't know sizes. I'm sorry. I can't gave you the 10 11 just asking what the status of this particular 11 dimension. It's pretty big. I used to know.24 by 12 project was. 12 36 maybe. 13 Q. Wasit one conversation or more than one 13 Q. Just give me one second. 14 conversation with Mr. Rigsby? 14 A. Sure. 15 A. I think it was just one that related to 15 MS. KIRCHNER: offthe record for one Go 16 the dock. Andhe basically said that he'd let me 16 second. i 17 17 "know,get back to me, and that he just agreed, yes, (WHEREUPON, there was a pause 18 ifs with the architect. Andthat was all we talked 18 in the proceedings.) 19 about. 19 BY MS. KIRCHNER: 20 Q. With the architect-Q. So you drew up the scope of work for the 20 A. Wetalked about other thingS, but, you Grove, correct? 21 21 steeI tube dock enclosore at Downers 22 know,specifically this project. 22 A. Yes. Q. So the two of you understood that the Q. What did you do with your scope of work? 23 23 24 inat~er was with the architect at that point in time? 24 A. I gave it to Mr. McNabb. 43 (Pages 308 to 31 I) ESQUIRt 312.782.

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Page314 Page312 1 Yeah. It had to do with-A. A. I understood that the-- I guess the way 2 Q. Let mejust ask the qoestions. 2 you're wording it is probably accurate. The matter sorry. 3 A. I~m 3 was betweenthe post office and the architect and he 4 Q. I just wantto havea clear transcript. 4 would get back to me on it. 5 A. I appreciate it. 5 Q. Approximately when was it that you had 6 Q. Who's this postmasterthat you're 6 this conversation with Mr. Rigsby that you're 7 remembering? telling meabout. 8 A. It was a woman,l don't khowher name. 8 A. It would probably be still in August, 9 Q. Whatdid you learn from this postmaster 9 because I didn't let these linger. OnceI found 10 for DownersGrove? I0 out--or oncethey tasked me, they said, "Hey, A. Something the effect that we -- we, to I1 11 let's go do a scope," I followed up pretty quickly. 12 mycompany, would moveproduct from the dock through 12 Because without getting the information to produce it 13 the facility, drywall, whatever,2 by 4s. And 13 the scope of work, I wouldnever get a work order. I4 was at such point whenI madea comment about, you 14 So you have to be diligent in getting the quantities 15 know,"Oneuf these days," something like, "this is 15 in and discussing time so that they could go back 16 and do their computer work and give me a work order. 16 going to get enclosed." Andshe said, "Yeah, I 17 heard they're ready to give out a eontract," or 17 Q. So was this conversation with Mr. Rigsby I 18 something that effect. Andthat's when first to I 18 in approximately August of 19967 I9 heard that someworkw~sgoing to take place. 19 A. it would have to be, the first phone 20 Q. Did the postmaster tell you that the 20 call, sure, to find out what's going on with the 21 post office had already awarded contract for a 21 work order. 22 enclosure of the dock? 22 Q. After that conversation with Mr. Rigsby, A. No. 23 did you have later conversations with Mr. Pdgsby on 23 Q. Can you tell me again -24 24 the same topic? Page 313 1 1 A. I don't know when, but probably, yes. I 2 2 can't recall tbe time or date, but yes. 3 3 Q. Do you recall the substance of the 4 4 telephone conversation? 5 5 A. It was probably-- I'd be speculating. 6 6 Q. I'm not asking you to speculate, sir. 7 I'm just asking you about your recollections. 7 8 8 A. I'd be speculating. I know we talked. 9 9 I just can't-10 10 Q. You can't remember the substance of it? 11 11 A. No. 12 Q. During the time that you were working at 12 13 13 the Downers Grove Post Office, you're doing 14 I4 constroction work there because you gotthat 15 I5 interior work-16 A. Yes. 16 17 17 Q. -- was any other contractor working on 18 I8 the dock enclosure? I9 A. No. Well, lefs back up. 1 became 19 aware that someone else was going to get the dock 20 20 21 enclosure through -- I think it was the postmaster~ 21 22 22 in fact. 23 Q. Ynn're remembering an oral conversation 23 24 24 with the postmaster? Page 315 A. Well, she obviously, my opinion -Q. What I want to do is understand your best recollection of what she said to you. A. Mybest recollection was that she had heard or was told that the dock enclosure was either going to be let or was let, I don't remember the exact words, and that this wouldbe -- this work would be starting soon. And that's what took me by surprise because I had thought I was going to be the guy, and I don't knowwhat happened to the project. [ just trusted that the powers'that be are doing their usual paperwork to get me the work, so I was surprised. Q. After you learned this from the postmaster, did you check up on your scope of work for the dock enclosure at Downers Grove? A. Yes. MR. PROSEN:Objection, asked and answered. BY THE WITNESS: A. Yes, I contacted Mr. Rigsby. BY MS. KIRCHNER: Q. To clarify, is this the conversation where Mr. Rigsby tells yon that the matter is with the architect? 44 (Pages 312 to 315 ESQUIR 312.782 1 078 CH1CAGO 2.704.4950

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A. No, this is now another conversation. Q. Oil. another conversation. A. After i talked to tbe postmaster. Q. After you talked to the postmaster, you talked to Mr. Rigsby again? A. Yes. Q. is this a conversation over the telephone-A: Yes. Q. -- or face to face? A. No, it was on the phone. Q. What did you s Wto Mr. Rigsby in this conversation? A. I basically said -- I'm parapl~asing the conversation; I don't rememberit verbatim. BasicalIy it was I heard from tile postmaster that that was going to be happening soon. And I just asked him, was that coming -- was my work order coming, and he said he wasn't going to issue me a work order; he had another contractor do the work. That's when I learned that Fernandez had bid the project. Andsubsequently in time after that, I found out all the facts of the matter, and that's what had happened.
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so i have no right to knowthe information, lfI 2 bid anything or 1 respond to an offer of 3 solicitation, they're required to notif3' mebecause 4 1 was part of the process, but ] was locked out of 5 the process. 1 had no involvementin the process. 6 Q. Did you say anything further to 7 Mr. Rigsby in this telephone call about the Downers 8 Grove scope of work for a dock enclosure? 9 5, A. ] received no notice of any type or an 10 communication from anyone in the postal service 11 regarding my scope ofwark for DownersGrove and no 12 communicationwhatsoever from an5' oftheproject 13 managers the architect on the solicitation and ar 14 awards of the project. I did not knowany of that 15 was going on, so I had no opportunity to protest. 16 Q. I'm just asking you about the 17 conversation with Mr. Rigsby. Did you say anything 18 else to him in that conversation that bad to do with 19 DownersGrove's scope of work for a dock enclosure? 20 A. 1 said to him if I would have known,I 21 would have protested. And he said something to the 22 effect that -- he kind of dismissed it, you know, 23 just in normalparlance as if, "Well, there will be 24 other work," just, you tmow,just politely brushed
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1 it off. At the time I was disappointed and at the Q. In this conversation with Mr. Rigsby 2 time he didn't really care that I was disappointed. 2 that you're telling me about, did Mr. Rigsby tell Q. Did he tell you that he didn't care? 3 3 you that the postal service had already awarded a-A. Just by his demeanor,just like, "Well, 4 4 well, let me back up. ' 5 you know, Pm sorry." 5 In the conversation with Mr. Rigsby that 6 Q. This is a telephone conversation, right? 6 you're telling me about, did Mr. Rigsby tell you 7 A. Yes, just a phone conversation. 7 that the dock enclosure had been bid for Downers 8 Q. Didbe tell you anything else in this 8 Grove? 9 phone conversation? 9 A. No, he never said it was bid. 10 A. That's it. 10 Q. Did he tell you whether or not the 11 Q. Wbenyou told Mr. Pdgsby that if you had 11 postal service had already awarded a contract for I2 known,you would have protested it, wbat did you the dock enclosure at Downers Grove? 12 13 mean by that? 13 A. Heimplied it. 14 A. Well, I would have formally protested 14 Q. He led you to conclude that? 15 the award, but I would have been untimely, because 15 A. Yes. 16 by the time I fouudout, it wastoo late. 16 Q. Do you remember what he said that led I 17 you to conclude tbat? 17 Q. After you learned of this frmn 18 Mr. Rigsby in this telephone call, did you take any 18 A. He said that we have selected a 19 other actions or have any other further 19 contractor and he'd be doing the work. He never 20 mentioned the name of the contractor, but just that 20 conversations witb him with regard to DownersGrove 21 and the dock enclosure? 21 they had picked a contractor to do the work. 22 A. Not this particular project, no. Q. Did you ask wbo the contractor was at 22 ~a Q. Referring back to that convarsation with 23 that time? 24 Mr. Rigsby about the dock enclosure in Downers 24 A. I don't recall because I didn't bid it, 45 (Pages 316 to 319

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Page362 1 is -- I have a different contract now.That's what quantity, wouldhave been -- it looks like it's my 2 this is telling menow.Now that I look at it and typical -- the description and line item, there's 3 nowthat I recall, this one, ill put in here only one provided in the book, so I just took that 4 94-B-0083, I mayhave submitted this and it was and put it in this form again and put the unit 5 expired and they requested me to supply them with a price. And we measured in the field and I got new 6 newone, and that's what that date relates to. quantities. 7 So I what I did was send a second work Q. Did you make another site visit to 8 order, only because at this time this transpired Hoopeston after the site visit on November 14th, 9 under one contract and this was under the new 19957 I I0 contract. That's exactly what it is. Now can A. This date could be the date I sent it to rememberthat. That's whyI have the same document Il Ms. Gunlogson. This date could be a lot of things. out 12 because this one is for the expiring or maxed I know it's there. I do notice, though, it's 13 contract and this is for the other one. Yeah, different than the first one because I wrote on here 14 that's whythere's two of them. "capital." So someone informed me that this was Q. I just want to makethis a little bit going to be a capital expenditure. That would make 15 16 clear on the record. a difference, which could be whywe did this again. A. I understand. ' 17 Q. What I'm asking you is: You remember Q. Referring to Erdaibit 90, do you have doing a site visit on or about November 14th, 1995, 18 19 Exhibit 90 in front of you? is that correct? 20 A. Yes, I do. A. Yes. Q. That's the one where you filled out the 21 Q. And that's at Hoopeston, correct? 22 scope of work using the unit prices from the A. That's correct. 23 oontract 94-B-0083,is that correct, sir? Do you remember making another site Q. 24 A. That's correct. visit at Hoopeston?
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A. All I recall is I was with Paul or Lois, and if there are two different times, I don't recall. But I do knowthat this is mydocument and I producedit. Q. But you're not sure whether you made another site visit? A. No, I don't recall. Q. Well, did you produce Exhibit 91 on or about August 1st, 19967 A. That date could be the date we visited or it could be the date I put down whenI sent it to her. That I dofft recall. It's possible. Q. Okay. A. I don't recall. Q. Let's look further at Exhibit 91. How did you arrive at the information you put in the unit price column on Exhibit 917 A. Say that one more time. Q. There's a unit price column on Exhibit 9l, right? A. Uh-huh. Q. Howdid you determine what amounts to put io the uoit price column on Exhibit 917 A. I know exactly what this is uow. This

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I Q. That was the Indefinite Quantity of 2 Contract that you had in November 1995, isthat 3 correct? 4 A. That's correct. Q. Now,in August of 1996, you filled out 5 6 Exhibit 91, is that correct? 7 A. That's not correct. I could have filled 8 that out any time other than August1st, '96. Q. But at the time you filled out 9 10 Exhibit 91, you were operating under the Indefinite 11 Quantity Contract that you had in 1996, is that 12 correct? 13 A. I'm not sure of the dates, but it was a 14 different contract. 15 Q. A different indefinite Quantity 16 Contract? 17 A. Than Exhibit 90. 18 Q. Just to get the chronology straight, is 19 it correct that back in 1994, you had an Indefinite 20 Quantity Contract; and then in June of 1996. you 21 were awarded two new Indefinite Quantity Contracts, 22 is that correct? 23 24 A. That's correct. Q. And they had unit prices which were 56 (Pages 360 lo 363

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different fi'omthe '94 contract, is that correct? A. That's not correct. It was the same unit price, same line items. The only thing different was mymultiplier, because l'm competing. for a contract to get the contract. Mymultiplier assures meof a contrack which is whywe're here today because I competedfor this geographic area under a specific contract with a special multiplier relating to the line items. The line items stay the same, but mymultiplier against them change with wagerates and dumpingfees and things that take for cost of business. So what ends up happening is this documentcould end up being different than this document nat-are of the fact that I havea by different multiplier. Q. So you're saying -A. A contract is a contract, so... Q. Just so I'm really clear, on Exhibit 91, the unit prices in that column,the unit price columnon Exhibit 91 -A. Uh-huh. Q..-- d0 the), reflect the unit prices for the 1996 Indefinite Quantity Contracts?
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doingthis. All you need is mycontract number, go to the PACS system, pull up these items times the quantit), and you'll get your extendedprice and you'll get the governmestprice. Youdon't need to knowI wrote different numbers down in mye×teaded columnor they seem to be different. This exercise, frankly~ is starting to be fruitless becausethese quantities; these unit prices are based against the quantity. This is a government generated thing. I can't generate this part. I can only put in the quantities. To get the extended version, you just do tbe math and you'll get the exact number. Andthat can be done by anybodyin the current postal system. And getting a little frustrated in the sense I'm that Pmeducating on howa work order is put together and I don't see the purposeof it. Q. Can you explain to me, sir, whyit is in these two documentsthat you prepared there are different numbersin the unit price columnon the first page? A. Very simply. Maybethis page -Q. Whenyou're talking, you have to refer
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A. To the best of my knowledge, they do. Q. And are you telling us then that the reason whythe unit price columnis different in E,~aibit 90 versus Exhibit 91 is because there were different multipliers for the two Indefinite Quantity contracts? A. That could be, yes, that's exactly what it could be, or they could be the same. 1 don't have a calculator to crunch the number. Q. I guess I'm not following you when you say "they could be the same." Let me just ask some more questions. First off, I wouldlike to ask you to compare the second page of Exhibit 90 and Exhibit 91. Those second pages, they look identical to me. Do they look identical to you? A. Pre~, much. Q. Earlier you said that you knew exactly what Exhibit 91 is. What do you think Exhibit 91 is? A. It's a replication fgr mycontract for '96. See, I'm just going to say this for time sake, becausel believeI'm edncating everyone on something that it took meten years to -- when I was

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to the exhibit numberof the document. A. Exhibit 90 I took the time to run my multiplier against that number, which was $80. If, in fact, $68.72is 15 percent less than 80, that will makethe difference, lfs possible that tbe new contract I changed the way I did the format, but the numbersdon't change in regard to the end result, because the government's computer automatically takas mymultiplier off against the unit price and the individual item number. If~ didn't write ~he description down in here or the unit measure,all I neededto put down,for example,is tbe first line on the item numberand a quantity, and the postal service's work order would have produced everything else. All this other information is completely moot, because all you need is an item numberand a quantity and you can build a work order. Do you understand that? Q. I have another question for yoa, sir. Do you see that on Exhibit 90 you have a total of $45,951.88, and on Exhibit 91 you bare a total $45,472? Do you see that? A, Yes. 57 (Pages 364 to 367)

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Q. Did you compute both of those totals? A. I may have made a mistake, yes. I observe that now. But as I've reiterated, and I'I1 reiterate it again, you can take this item number times this quantits, and you'll get the end result for myContract for this particular work order. Q. Do either-A. And I would live with that final number. Q. Do either Exhibit 90 or Exhibit 91 relate to your claim, which is the subject of the lawsuit? A. I've got to find it first. Document 83, Exhibit 83, No. 2 says, on October 1 st and August 1st, on or about, L.P. provided a site visit and they produced these work orders, and the total amount is $62,752. Q. So A. That would be for both work orders. Which two work orders? Q. A. The interior and exterior. Q. Which two documents of the scopes of work for Hoopeston are you referring to? A. I believe it to be 87 and -- well, either 90 or 91.
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than Exhibit 90. Therefore, the concern that the governmentbas is the written extended price, and that's the difference. Q. That's not myquestion,sir. I want to know whicb documents are the documents on wbich you're basing your claim. Whichparticular documentrelates to the scope of work in the amount of $62,7527 A. I'm going to say Exhibit 91. Q. And that has on it an amountof $45,4727 A. Yes. Q. Can you explain to me - we have also this scope of work in Exhibit 87. Does tbat relate to your claim for Hoopeston, which has a scope of work amount of $62,7527 A. Yes, it would. Q. So you're saying that the $62,752, that scope of work was for interior plus the handicap ramp? A. I believe it was. Q. Do you have any documer~t that totals out the amountfor the interior part of the scope of work for Hoopeston? A. None that totals out on the document.
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Q. Can you tell us which one it is for the handicap ramp? A. No, I cannot. Q. So it's either 90 or 91 and you don't Imow which? A. Nowthat you've pointed out the total in this extended price, I'd have to do somemath. Or~e of these tw9 wouldequal what this one would equal in myclaim. MS. IOqRCHNER: Does anybody have a calculator to find out whichone it is? (WHEREUPON, recess was had.) a BY MS. KIRCHNER: Q. With regard to the Hoopeston Post Office, does your claim relate to a scope of work which amounted to $62,752? A. Yes. Q. Have you looked at the documents and can you tell us whichscopes of work are relevant to your claim? A. Not really. I believe that this is a different multiplier-Q. Again, when you-A. Exhibit 91 is a differant multiplier

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Q. Have you ever sat downand totaled out the numbers on Exhibit 87? A. Oh, yes. Q. Do you have that someplace? A. No. I would bave thrown that away. It was just a mathematical. It's irrelevantto me. Q. But was it important to you at the time you filed your claim? A. Yes, but it's a governmentmath number, not my number. Anybodycan do the math. Q. The number $62,752, that was in your claim, correct? A. That's correct. Q. Did you satisf3' yourself at the time you filed the claim that that was a correct nuraber? A. Yes, itwas. Q. How you satisfy yourself that it was did correct? A. I ran the computation as if my calculator was the governmentcomputer, and I determined on a tab what the amount would be. AndI didn't feel' the need to write that number IW on scope of work. Q. So tire $62,752 is the sum of Ihe items 58 (Pages 368 to 371

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listed in 87 and the items listed in 917 A, It's the amount that l have determined based on mycalculations tbat I filed in myclaim. Q. Andit's for tbe items of work listed in Exhibit 87 and Exbibit 9i, is that correct? A. lt's -- the items that I believe are important to myclaim is in those two exhibits, yes. (WHEREUPON, certain document was a marked Battaglin Exhibit No. 92 for identification, as of 611]/04.) BY MS. KIRCHNER: Q. Please take a look at what we've marked as Exhibit 92 to your deposition and tell me whetber you recognize Exhibit 92. A. Yes, Ido. Q. What's Exhibit 92? A. Exhibit 92 is another contract with anothar price, and it's for $62,000. Q. Did you prepare Exhibit 927 A. With the exception of the quantities, yes, and -- yeah. Q. Whosehandwriting is on Exhibit 92? A. Myhandwriting. Q. Is all the handwriting your handwriting?
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Q. Well, as you sit here today, can you tell us what quantities you are claiming for Hoopestonwith regard to the concrete haadicap ramp? A. Pmgoing to say that I'm claiming the quantities against the item numberon document Exhibit 92. Q. Aadyou'll note, sir that those quantities are different than the quantities in Exhibits 90 and 91, is that con'ect? A. The), might be, yes. Q. Well, could you just satisfy yourself, sir? A. Yes, they are different. Q. Howdid you go about determining the quantities that you put in the quantity columnof Exhibit 927 A. The same way I did the others. I would get with tbe postal people and we .would determine that this is the amountrequired. It's very possible that this document-Q. Whichone are you referring to? A. Let mefinish. Q. Sorry. A. I'd appreciate it.
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A. Yes,it is. Q. Whendid you prepare Exhibit 92? A. This wouldhave been at the time I received that other contract that's shownup at the top. Q. As ] understand it, you received tbe Indefinite Quantity Contract 96-B-0098in June of 1996, is that correct? A. I believe so, on or about, yeah. Q. Are you telling us that it was at or around that time that you prepared Exhibit 92? A. I'm saying that I took the item number against the quantiD, that was derived, whether it be on Exhibits 92, 91, 90 or any of the exhibits shown, or 87, and I filed a claim for the amountof $62,000 and whatever myclaim is for. Whetherit be Exhibit 92, 91 or 90 or 87, I'm claiming the item number against the quantity that's listed on the document. I'm not claiming the extended price or the govermnent'sunit price or mymultiplier. Q. Are you claiming the quantity? A. I'm claiming the item number and I'm claiming tbe quantities, and whatever that crones out to be is myclaim.

Exhibit 92 is probably a take-offof 2 Mr. Fernandez's drawings that I protested and was 3 given by Mr. Rigsby, and I came up with a number of 4 $62,000. Andthat's probably what document 92 is, 5 which is the issue of the claim. 6 Q. Did you obtain Mr. t~ernandez's drawings 7 for the Hoopeston ramp? 8 A. Yes. 9 Q. And did you then do a take-off for those 10 drawings of Mr. Fernandez? 11 A. Yes. 12 Q. And is that take-off of yours 13 Exhibit 92? 14 A. Yes. 15 Q. Andby "take-off," please tel1 us what 16 you mean, for the record? A. The government's item number, 17 18 description, unit measureand unit price times the 19 quantity as it related to the document provided by 20 the government. And that's how 1 came up with my 21 number against my multiplier of mycontract 22 Q. In the document that you had from the 23 governmeot was Mr. Fernandez's drawings for the 24 Hoopestonramp, is that correct? 59 (Pages 372 to 375

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A. That's correct. Q. Fromthose drawings, in your experience, you canoe up with the quantity column Exhibit 92, on is that correct? A. That's correct. Q. Andthose amounts listed are different fromthe amounts quantities listed in Exhibits90 -and91, is that correct? A. That's correct. Q. Andyou prepared Exhibit 92 sometimein 1996,is that correct? A. That's correct. Q. Whatdid you do with Exhibit 92 after you prepared it in 1996based on Mr. Fernandez's drawings? A. I gave it to Mr. Pdgsby. Q. Andyou'll see that your total on Exhibit92 is $62,000, that correct? is A. That's correct. Q. Yet your claim amount-- the amountof your scopeof workfor purposesof the claim is $62,752, that correct? is A. If that's whafswritten, sure. Q. Yes. How you account for the do
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1 A. "Here's theHoopeston exterior ramp." Q. Did he say anything to you at the time 2 3 you gave him the document? 4 A. Yes,he said it's too late. 5 Q. Did you respondto that? 6 A. Yeah,I formally protested to senior counsel in Washington. 7 Q. Andwhat was the result of your formal 8 9 protest? 10 A. It was dismissed because it was 11 untimely. (WHEREUPON,certain document was a 12 markedBattaglin Exhibit No. 93 for 13 14 identification, as of 6/11/04.) 15 BY MS. KIRCHNER: 16 Q. Please take a look at what we've marked 17 as Exhibit 93 to your deposition, and let meknow 18 whenyou're ready. A. I'm ready. i 19 i 20 Q. Do you recognize Exhibit 93? 21 A. Uh-huh. 22 Q. What'sExhibit 93? 23 A. A letter to Mr. Sakrider in Chicagofrom 24 myattorney at the time regarding Hoopestonand
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1 difference, sir? 2 A. Matherror, maybe multiplier, I used the 3 the wrong multiplier, that's possible. Because it's 4 just unit prices against quantitywith a multiplier, 5 so ifs possible it's a calculator mistake.I don't 6 have the government, know,system, so it's a you 7 very arduoustask. 8 Q. [ didn't hear you. 9 A. I don't have the governmentsystem to 10 producethis in 30 seconds, so I haveto produceit i 11 long hand. 12 Q. When you did Exhibit 92, whenyou 13 prepared Exhibit 92 in 1996,did you do it long 14 hand? 15 A. I wouldthink, yeah. Youcould see it 16 on the document. Q. Now,after you gave your amountfor the 17 18 Hoopastonrampto Mr. Rigsby, howdid you do that? 19 Did you do that orally? Did you give hima piece of 20 paper? A. I handedhim the document that you're 21 22 referring to as No. 92. 23 Q. Did you say anythiog whenyou handed it 24 to him?

1 other matters. 2 Q. ts this your formal protest regarding 3 the Hoopeston matter? 4 A. No. Myformal protest went to William 5 Jones in Washington. This maybe a copy of 6 something.This is not the official protest. 7 MS. KIRCHNER: offthe record. Go 8 (Wtq~tLEUPON, discussion was had a 9 off the record.) 10 BY MS. KIRCHNER: 11 Q. So you got the drawings from 12 Mr. Fernandezand did your take-off? 13 A. No, I got the drawings from Mr. Rigsby 14 and did mytake-off. Q. Okay. You got Mr. Fernandez's drawings, 15 16 you did your take-off, and the take-offis 17 Exhibit -- is that Exhibit 92? 18 A. That's correct. 19 Q. Youhave no explanation for the 20 difference betweenthe $62,000and the $62,752in 21 your claim amount? 22 A. Myexplanation is a possible difference 23 in the multiplier that I failed to calculate right 24 as a math error. Andl'm willing-- going on record 60 (Pages376 to 379)

ESC)UtRE 312.782.801 1084

ICASO 14.4950