Free Motion for Summary Judgment - District Court of Federal Claims - federal

Case 1:98-cv-00868-FMA
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Document 87-19

Filed 01/14/2005

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Page280 postal service employee, is that correct? MR. PROSEN: Objection, asked and answered. 2 BYTHE WITNESS: 3 A. The quantity oolumn would generally be 4 filled in by either myself or the postal service at 5 the time of the visit. 6 BY MS. KIRCHNER: 7 Q. So for all the ones that we've gone 8 through, you filled in the quantity column, correct? 9 A. For these particular ones, yes, with one. 10 exception, and that would be East Lynn. 11 Q. We've already gone over East Lynn. 12 A. You said generally speaking. In 13 general, every one but East Lynn. 14 Q. Explain to me why you're pointing out 15 East Lynnat this time. I6 A. Because in general terms, f did all of 17 them but, I think, East Lynn. I think that was by 18 someone else. 19 MR.PROSEN: testified to that already. He 20 BY TIIE WITNESS: 21 A. I think that's -22 MR. PROSEN: It's your Exhibit 53. 23 BY MS. ICIRCHNER: 24 Page 281 Q. Can you put Exhibit 53 in front of you? A. Uh-huh. Q. You have Exhibit 53. Ifyou look at the first page and you see the quantity coIumnthere, whofilled out that quantity columnon the first page? A. That's Paul Steiner. Q. And on the second page, who filled out the quantity column? MR.. PROSEN: Objection, asked and answered. B'~ THE WITNESS: A. Paul Steiner. BY MS. KIRCHNER: Q. And on the third, fourth and fitch pages, whofilled out the quantity column? A. Paul Steiner. Q. With regard to Exhibit 53, whose handwriting is in the extend price column? MR. PROSEN: Objection, asked and answered. BY THE WITNESS: A. That's Paul Steiner. BY MS. KIRCHNER: Q. So is there any haodwritlng on Exhibit 53 that's yours?

Page282 MR. PROSEN: Objection, asked and answered. BY THE WITNESS: A. Yes. BY MS. KIRCHNER: Q. Just tell me where -- okay. All tight. $o the quantity and extend column, extended price column, thafs all Paul Steiner on Exhibit 53? A. Correct. Q. At tbe time of dais site visit at East Lynn, did you go all over all those quantities with Paul Steiner? MR. PROSEN: Objection, asked and answered. BY THE WITNESS: A. Yes. BY MS. KIRCHNER: Q. Did you and he agree float those numbers in the quantity column were the numbers that should be in that quantity column? A. Onthis one, yes. MR. PROSEN: Objection, asked and answered. BY MS. KIRCHNER: Q. After you made the site visit at Brook~eld -- are you with me, Mr. Battaglin? Page283

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A. Yes. Q. Youmade the site visit at Brookfield and Jesse McNabb there with you. was After that site visit, did you ever go back to that post office? A. No, Q. Youtold me about that conversation where Jesse McNabb you discussed a schedule for and work for Brookfield. A. Yes. Q. After that conversation, did you have other conversations with Mr. McNabb with regard to the work you had scoped out at Brookfield? A. Yes. Q. Whendid those conversations occur? A. Somethne -MR. PROSEN: Go ahead. BYTHE WITNESS: A. -- after I submitted the work just to find out the status of the workorder. BY MS. K1RCHNER: Q. Do you remember whether this is ooe conversation or two conversations? What do you remember? ~6 (Pages~SO to_8~

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Case 1:98-cv-00868-FMA

Document 87-19

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RICHARD ANTHONY BATTAGLIN, JUNE 11,2004 Page 28,1 I PRESENT: A. One conversation. 2 BELL. BOYD LLOYD & PLLC. Q. Did you call him or did be call you? 3 (1615L Street. N.W.. A. 1 called him. Suite 1200. Washington. D.C. 20036-5610, in Q. Whatdid you say to Mr. McNabb this conversation? 5 202-955-6830). by: 6 MR. LAWRENCE PROSEN. M. A. Wediscussed a couple of other projects, 7 appeared behalfof the Plaintiff: on and then I asked him specifically about the Brookfield project. 8 UNITED STATESDEPARTMENT IUSTICE. OF 9 CIVIL DIVISION-COMMERCIAL LITIGATIONBRANCH. Q. Andwhat did he tell you? A. He told me that he had forv~,arded it to 10 (1100L Street, N.W..8Ih Floor, Mr. Rigsby and Mr. Rigsby would be makinga decision 11 Washington.D.C. 20530, on this workorder. 12 202-307-0290),by: Q. Did he tell you what Mr. Rigsby's 13 MS. DOMENIQUE KIRCHNER, 14 appeared behalf of the Defendant on decision was? A. No. 15 and the Deponent. Q. Do you remember what else you discussed 16 with Mr. McNabb the sametelephone call that you in 17 ALSO PP,.ESENT: told meabout? 18 MR. STEPHEN LOBAUGH, In-House Counsel, A. No. It was general about other things. 19 UnitedStates Postal Service. Q. So nothing in particular that would help 20 us to date the telephonecalI? 2I A. No. 22 i 23 REPORTED JANET ROBBINS, BY: L. CSR, RPR, MS. KIRCHNER: Let's take a break. 24 CERTIFICATE 84-2207 NO. (WHERE~ON, deposition was the Page 285 1 IN THE UNITED STATES COURT FEDERAL OF CLAIMS 2 3 I~.P. CONSULTING INC., ) GROUP. 4 Plaintiff.. ) 5 vs. ) CaseNo, 6 TIqE UNITED STATES POSTAL 98-868 ) 7 SERVICE, ) (Judge Allegra) 8 Defendant. ) 9 10 11 JuneII, 2004 I2 1:39p.m. 13 14 15 I5 16 The deposition of R1CBARD ANTHONY 16 17 BAq-fAGLIN resumed pursuantto recess at Suite 3300, 17 18 Three First National Plaza,Chicago, Illinois. 18 19 19 20 20 21 21 22 22 23 23 2,1 24 1 2 3 4 5 6 7 8 9 10 li 12 13 Page 287 (WHEREUPON, certain document was a marked Battaglin Exhibit No. 77 for identification, as of 6/11/04.) I~CHARD ANTHONY BATTAGLIN, called as a witness herein, having been previously duly sworn, was examined and testified as follows: EXAM2NATION (Resumed) BY MS. IC, SRCHNER: Q. Please take a look at what we've marked as Exhibit 77 to your deposition. Do you recognize Exhibit 777 A. Yes. Q. What is Exhibit 77? A. It's a fax I sent to Jesse McNabb. Q. Is this with relationship to the Brookfield job? A. Yes. Q. Did you send tbis fax on or about August 22nd, 1996? A. Yes. Q. Whatdoes this relate to, sir? A. He said, and I'm not-- wbafs the word I'm looking for? I'm going to paraphrase. He basically said, "Whatwould your price be for these 37 (Pages 284 to 287 ESQUIRE DEPOSITION SERVICES - CHICAGO 312.782.8087 800.708.8087 FAX: 312.704.4950

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Case 1:98-cv-00868-FMA
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RICHAF(D ANTHONY BATTAGLIN. JUNE I1.2004

Document 87-19

Filed 01/14/2005

Page 3 of 20

A. if you note the plan. those are my words, which were written in pencil or pen~ whatever the medium, those are my words. Wewent over the job and corrected what was discussed probably, 1 can't say for sure, with the postal -- postmaster or someone related to the facility whois typically on-site whenwe're doing these things. 1 don't recall if this one, ifit was maintenanceorthe postmaster, but there was always someonewith us. Q. You're referring to the first page of Exhibit 80. Whichis your handwriting, if you could point that outto me, sir? A. Sure. If you look starting in your right-hand corner, the upper rigbt-hand corner, the word"insulated," where it says "furnish and install a 10 by 10 panel, flush panel overhead door." We determinedit's better to have an insulated door if you're enclosing a dock. Then right below it, we added the 10 by 10 wire glass to a particular door, and that door was also to be, instead of hollow metal, itwas to be insulated. If you sweep downclockwise underneath, 22 I have a little arrow going to a "3 b) 7 insulated 23 24 door with a vision wire kit," a typical postal Page301

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Page302 For this dock enclosure, yes, we did. (WHE~UPON, certain document was a marked Battaglin Exhibit No. 81 for identification, as of 6/11/04.) BY MS. KIRCHNER: Q. Please take a look at what we've marked as Exhibit 81 to your deposition, and if you could tell me what Exhibit 81 is. A. It's a scope of work for the Downers Grove dock. Q. Did you prepare this scope of work? A. Yes, I did. Q. if we focus nowon the second site visit at DownersGrove that you performed, at the time of this site visit, had youalready filled out the item number and the description and the unit measure and the unit price on the scope of work form that we have here on Exhibit 81 ? A. Not on this one. This is the second workorder, not the first. Q. Do you have the first? A. No. I gave everything to the post office. The first was related to this document called document80. This is referring to the second A.

Page303 1 set of drawingsthat i'm filing as myclaim. 1 special. Andthen right below it, ] also put 2 If I can elaborate, this first document 2 "insulated for the flush panei overhead door." 3 was calling for a woodpartition. Andif you look 3 And then sweeping back up, again, the 4 word "insulated for flush panel overhead door." And 4 at the top of this, the very first line, this is for 5 a steel tube. This is whenwe went to a steel 5 just immediately above that, "insulated door with a 6 framed construction. 6 10 by 10 wire glass." Those aremy words. 7 So this document is unrelated to 81 7 Q. Were those your observations at the site 8 document and I can't tell you where the post 80, 8 or is that as a result of a discussion with 9 office put that copy of that work order. This work 9 Mr. McNabb the site as to what work should be at 10 order that you're referring to nowas document81 is l0 done? 11 relatedto another set of drawings, lt hasn't been 11 A. That was with the discussion. 12 Q. If you just look throuNa the remaining 12 produced yet. Q. So L.P. Consulting doesn't have that set 13 three pages of Erdaibit 80, did you makeany marks at 13 14 of drawings? 14 all on those pages? A. No, they were postal drawings that I 15 A. Yes. 15 Q. Which page are you on where you have 16 don't have. 16 I7 Q. Youdon't have a copy of that? 17 your handwriting? A. I don't have any handwriting, but the 18 A. No. 18 19 Q. Just to makesure I'm following you, at 19 mark I made was 1 put mystamp on all three. 20 the time of the second site visit at Downers Grove, 20 Q. Okay. and 21 you're there with Jesse McNabb you scope out the 21 A. That's all that's on there. 22 work. 22 All right. At the time of the second Q. A. Correct. 23 site visi~ at DownersGrove, did you scope out work 23 24 Q. It's for a woodframe dock enclosure, is 24 and fill out a scope of wm'k form? 41 (Pages 300 to 303 ESQUIRE DEPOSITION SERVICES-CHICAGO 312.782.8087 800.708.8087 FAX:312.704.4950

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Case 1:98-cv-00868-FMA

RICHARDANTHONY BATTAGLIN. JUNE 1 I,
Page3118

Document 87-19

Filed 01/14/2005
2004

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remodeling at DownersGrove, right? A. (Nodding.) Q. In about Aagusl of 1QO6,are you still doing lock box remodeling at the DownersGrove Post Office? A. Maybe, yes. Q. Howdid you learn that you would be scoping out a steel dock enclosure for Downers Grove as opposedto the earlier woodone? MR. PROSEN: Objection, asked and answered. BY THE WITNESS: A. Mr. McNabbcontacted me and said the old print that he produced was null and void and we need to look at these other drawings, and I'm pret~, sure they were A.M. Fernandez's drawings. BY MS. KIRCHNER: Q. Did you arrive for that site visit, the secondsite visit, with the scope of workform all filled outin terms ofthe line -- tbe item number column, the description column, the unh measure column, the unit price column? A. This one 1 don't think was that way. 1 think this one I drewit up in the field completely with mybook because it was a total - that drawlng
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Q. And at the time you gave it to 2 Mr. McNabb, had yoa filled in the extend price 3 column on the scope of work form? 4 A. I don't recall. 5 Q. Had you put a total price on the scope 6 of work form before you gave it to Mr. McNabb? 7 A. l don't recall. 8 Q. After you gave the scope of work form to 9 Mr. McNabb,what happened next with regard to the 10 steel tube dock enclosure for DownersGrove? 11 MR. PROSEN: Objection, calls for speculation 12 on the witness' part. 13 BY MS. KIRCHNER: Q. Let me rephrase. Did you have 14 I5 conversations with Mr. McNabb about your scope of 16 work for the steel constructed dock enclosure at 17 Downers Grove after that site visit? 18 A. The ouly conversation I had with him, 19 that was simply -- it was a status update, "Hi, 20 how's it going? What's going on with the Downers 21 Grove dock?" At that point he told me that 22 A.M. Fernandez was going to handle the job and 1 23 should talk to Bob Rigsby. 24 Q. What did you say in response to that
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1 statement from Mr. McNabb? I 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 that 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 the 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 Q. Whatdid you do, sir? 8 8 A. The normal post-- whatever you want to 9 A. I think I -- I didn't talk to Fernandez, finn size. It might be -- 1 9 call it, typical AE 10 but I did talk to Mr. Rigsby at somepoint in thare, don't lmowsizes. I'm sorry. I can't gave you the 10 11 just asking what the status of this particular I 1 dimension, lfs 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? A. Sure. 14 A. l think it was just one that related to 15 I5 MS. I~RCHNER: offthe record for one Go 16 file dock. Andhe basically said that he'd let me 16 second. 17 "know,get back to me, and that he just agreed, yes, (WHEREUPON, there was a pause 17 18 ifs with the architect. Andthat was all we talked 18 in the proceedings.) 19 about. 19 BY MS. KIRCHNER: 20 Q. So you drew up the scope of work for the Q. With the architect -20 A. Wetalked about other thingff, but, you 21 steel tube dock enclosure at DownersGrove, correct? 21 22 know,specifically this project. 22 A. Yes. Q. So the two of you understood that the 23 Q. What did you do with your scope of work? 23 24 matter was with tile architect at that point in time? 24 A. I gave it to Mr. McNabb. 43 (Pages 308 to 31 I" ESQUIRE DEPOSITION SERVICES-CHICAGO 312.782.8087 800.708.8087 FAX. M2.70d.4930

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Case 1:98-cv-00868-FMA Document 87-19JUNE 1 I, 01/14/2005 Filed 2004 RICHARD ANTHONY BATTAGLIN,
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A. I understood that the-- I guess the way 2 you're wording it is probably accurate. The matter 3 was between the post office and the architect and he 4 would get back to me on it. 5 Q. Approximately when was it that you had 6 this conversation with Mr. Rigsby that you're 7 telling meabout. 8 A. It would probably be still in August, 9 because I didn't let these linger. OnceI found 10 out -- or once they tasked me, they said, "Hey, 11 let's go do a scope," I followed up pretty quickly. 12 Because without getting the information to produce I3 the scope of work, I wouldnever get a work order. 14 So you have to be diligent in getting the quantities 15 in and discussing time so that they could go back 16 and do their computer work and give me a work order. 17 Q. So was this conversation with Mr. Rigsby I8 in approximately August of 19967 19 A. It would have to be, the first phone 20 call, sure, to find out what's going on with the 21 work order. 22 Q. After that conversation with Mr. Rigsby, 23 did you have later conversations with Mr. Pdgsby on 24 the same topic?
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A. Yeah. It had to do with -Q. Let mejust ask the questions. A. I'm sorry. Q. I just wantto havea clear transcript. A. I appreciate it. Q. ~qm'sthispostmaster that you're remembering7 A. It was a woman.I don't k.how her name. Q. Whatdid you learn from this postmaster forDowners Grove7 A. Something the effect that we -- we, to mycompany, would moveproduct from the dock through the facility, drywall, whatever,2 by 4s. And it was at such point whenI madea comment about, you know,"Oneof these days," something like, "this is going to get enclosed." Andshe said, "Yeah, I heard they're readyto give out a contract," or something that effect. And to that's whenI first heard that somework was going to take place. Q. Did the postmaster tell you tbat the post office had already awardeda contract for enclosure of the dock? A. No. Q. Can you tell me again -Page 315

1 A. I don't know when, but probably, yes. I 2 can't recall the time or date, but yes. 3 Q. Do you recall the substance of the 4 telephone conversation? 5 A. It was probably -- I'd be speculating. 6 Q. I'm not asking you to speculate, sir. 7 I'm just asking you about your recollections. 8 A. I'd be speculating. I know we talked. 9 I just can't-10 Q. You can't remember the substance of it? 11 A. No. 12 Q. During the time that you were working at 13 the Downers Grove Post Office, you're doing 14 construction work there because you got tbat 15 interioP work-16 A. Yes. Q. -- was any other contractor working on 17 18 the dock enclosure? A. No. Well, let's hack up. I became 19 20 aware that someone else was going to get the dock 21 enclosure through -- [ thiuk it was the postmaster, 22 in fact. 23 Q. You're rementhering an oral conversation 24 with the postmaster?

1 A. Wei1, she obviously, my opinion-2 Q. Wqaat I want to do is understand your best recollection of what she said to you. 3 4 A. Mybest recollection was that she had 5 heard or was told that the dock enclosure was either the 6 going to be let or was let, I don't remember 7 exact words, and that this wouldbe -- this world 8 would be starting soon. And that's what took me by 9 surprise because I had thought I was going to be the 10 guy, and I don't knowwhat happened to the project. 11 I just trusted that the powers'that be are doing 12 their usual paperworkto get me the world, so I was 13 surprised. i 14 Q. After you learned this from tbe 15 postmaster, did you check up on your scop'e of work 16 for the dock enclosure at Downers Grove? 17 A. Yes. 18 MR. PROSEN:Objection, asked and answered. 19 BY THE WITNESS: 20 A. Yes, 1 contacted Mr. Rigsby. 21 BY MS. KlRCHNER: Q. To clarify, is this the couversation 22 _.~ where Mr. Rigsbv tells yon that the matter is with 24 the architect? 44 (Pages 312to 315

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RICHARDANTHONY BATTAGLIN, JUNE I I, 2004 Case 1:98-cv-00868-FMA Document 87-19 Filed 01/14/2005
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A. No, this is now another conversation. Q, Oh, another conversation. A. After i talked to tile postmaster. QI After you talked to tile postmaster, you talked to Mr~ Rigsby again? A. Yes. Q. ls this a conversation over the telephone-A: Yes. Q. -- or face to face? A. No, it was on the phone. Q. What did you say to Mr. Rigsby in this conversation? A. I basically said -- I'm paraphrasing the conversation; I don't rememberit verbatim. Basically it was I heard from the 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 teamed that Fernandez had bid the project. Andsubsequently in time after that, I found out all the facts of the ma~er, and that's what had happened.
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so l have no right to know information, ill the bid anythingor I respond to an offer of solicitation, they're required to notify mebecause 1 was part of the process, but 1 was locked out of the process. I had no involvementin the process. Q. Did you say anything further to Mr. Rigsbyinthistelephonec~llabouttheDowners Grovescope of work for a dock enclosure? A. I received no notice of any type or any communication from anyonein the postal service regarding myscope of work fur DownersGrove and no communication whatsoever from any ofthe project managers the architect on the solicitation and or awardsof the project, ] did not know of that any was going on, so I had no opportunity to protest. Q. I'm just asking you about the conversation with Mr. Rigsby. Did you say anything else to himin that conversationthat had to do with Downers Grove's scope of work for a dock enclosure? A. I said to him ill wouldhave "known,I wouldhave protested. Andhe said something to the effect that -- he kind of dismissedit, you"know, just in normalparlance as if, "Well, there will be other work," just, you tmow,just politely hrushed
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Q. In this conversation with Mr. Rigsby that you're telling me about, did Mr. Rigsby tell you that the postal service had already awarded a -well, let me back up. In the conversation with Mr. Rigsby that you're telling me about, did Mr. Rigsby tell you that the dock enclosure had been bid for Downers Grove? A. No, he never said it was bid. Q. Did he tell you whether or not the postal service had already awarded a contract for the dock enclosure at Downers Grove? A. He implied it. Q. He led you to conclude that? A. Yes. Q. Do you remember what he said that led you to conclude that? A. He said that we have selected a contractor and he'd be doing the work. He never mentioned the nameof the contractor, but just that the3' had picked a contractor to do the work. Q. Did you ask who the contractor was at that time? A. I don't recall because11 didn't bid it,

I it off. At thefime I was disappointed and at the 2 time he didn't really care that I was disappointed. 3 Q. Did he tell you that he didn't care? 4 A. Just by his demeanor,just like, "Well, 5 you -know,I'm sorry." 6 Q. Tbis is a telephone conversation, right? 7 A. Yes, just a phone conversation. 8 Q. Did he tell you anything else in this 9 phone conversation? 10 A. That's it. 11 Q. Whenyou told Mr. Rigsby that if you had 12 "known,you wouldhave protested it, what did you 13 mean by that? 14 A. Well, I would have formally protested 15 the award, but I would have been untimely, because 16 by the time I foundout, it wastoo late. 17 Q. After you learned of this from 18 Mr. Rigsby in this telephone call, did you take any I9 other actions or have any other further 20 conversations with him with regard to DownersGrove 21 and the dock enclosure? 22 A. Not this particular project, no. 23 Q. Referring back to that conversation with 24 MI'. Rigsby about the dock enclosure io Downers 45 (Pages 316 to 319

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Case 1:98-cv-00868-FMA

RICHARDANTHONY BATTAGLIN, JUNE I 1, 2004
PaRe 3~0

Document 87-19

Filed 01/14/2005

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Grove: in the course of that conversation, did you ever tell Mr. Rigsby what your price wouId have been for DownersGrove had you had the opportunity to bid it? A. It wouldhave-- it didn't matter at the time. IfI did, and I don't think I did -- he knew myprice, so to speak, because he had myunit prices of what I wouldhave done it for, but I never really formally bid the project. This line item, unit price book, is a postal generated document.So the unit prices that I used to generate this are governmentfurnished versus a bid or a solicitation is a compilationof various things that I wasnot part of that process. I wasleft out of the process. So all that he ever had was what I producedwith the site visit with Mr. McNabb. Q. So if you had bid Downers Grove dock enclosure, it could have been anything~ not necessarily what you have in Exhibit 81 ? A. That's very true for a lot of reasons. (WHEREUPON, certain document was a markedBattaglin Exhibit No. 82 for identification, as of 6/I 1/04.)
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governmentas required by fl~e contract law. He needed to knowwhat had transpired with my scope of work and my work order because they're covering me for my work at Downers Grove inside the facility that I was already given a work order for, and they're covering mycontract. So whereverI go in the nameof this contract, he provides me all my insurance coverage, and he 9 pmvidasthe coverage of the post office and the 10 subcontractors to protect them from this type of 1 activity. That's whyhe "knew, He's the aVtorney 12 for the bonding company. So, yes, that's exactly what I said to 13 14 him, "and we understand this may have recently been 15 awarded." And, of course, I sent it certified and, 16 of course, I got no response. 17 Q. The telephone conversation with Mr. Rigsby that you told me about, was that before 19 or after yonr letter dated December 3rd, i996, which 20 we have as Exhibit 82? 21i8 A. Oh, that was long before this. 22 Q. Now, with regard to the proposed dock 23 enclosure for DownersGrove in your scope of worlc~ 24 did the postal service ever direct you to go forward
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BY MS. K1RCHNER: Q~ Please take a look at what we've marked as Exhibit 82 to your deposition and tell meif you recognize 82. A. It's sent to Mr. Rigsby from me that -and I sent a copy to mybondingagent -- that I'm trying to get the bid results in whichour firm was aparticipantandwritingatyourearliest convenience, and we understand that this project may have recently been awarded. Andwhat I'm referring to is myscopeof work. I participated not in the solicitation, but I wasa participant of the dock enclosure. Q. So whenyou said you were a participant, you meant you had drafted a scope ofwork which we havehere, at least one version of it as Exhibit 81, is that correct? A. Correct. And the reason why i copied my bondingagent is becausethis is a legitimate postal contract that's bonded by an insurance company.And because this is bonded by ao insurance company, they needed to knowwhat the governmentwas up to becaus~ the genera] liabili .ty Warkmen's Compensation automobilecoverage, l provide protection for the

1 and perform that work at DownersGrove? A. Which work order? 2 3 Q, With regard to the scope of work that 4 you drew up for DownersGrove and the steel dock 5 enclosure, did the postal service ever direct you to 6 go forward and perform that work at DownersGrove? 7 MR.PROSEN: you referring to Exhibit 81 ? Are 8 BY~ WITNESS: 9 A. I don't understand your question. I0 BY MS. KIRCHNER: 11 Q, Let me try to rephyase it. 12 You told me that you drew up a scope of 1.3 work for a steel tube dock enclosure at Downers I4 Grove, is that correct? 15 A. No. 16 Q. I'm probably just saying it wrong. You and 17 had a site visit with Mr. McNabb you drew up a scope of work documentfor a dock enclosure at 18 19 DownersGrove, right? 20 A. Yes. 21 Q. Andthat reflected steel in the 22 construction, right? 23 A. Sleel was in that work ordar. 24 Q. And after you did that and you gave that 46 tPages 320 to 323)

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Case 1:98-cv-00868-FMA
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Document 87-19
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A. Yes, at the time, yeah, by then I did. Q. And this is when you were working out of that samefacility, also, that youlearned this? A. I'm not sure of the sequence of events, but I ultimately saw someof the enclosure going up and I found out whoultimately was doing it. Q, Who did you learn was doing the steel dock enclosure work? A. I forget his name, but I'm sure I can fred it. He had his Irucks out there. I just don't recall the nameof the guy right now. Q. Now,was it in 1996 that you learned that somebody else was doing this work and that he began doing the work on tbe dock enclosure in Downers Grove? A. I don't believe this project was awarded.I mean,I'm guessing, so I can't really answer. Q. I'm not asking you to guess. A. Yeah. MS. KIRCHNER: don't we take a five-minute Why break. (WHERE~ON, recess was had.) a (W-H£R£UPON, certain document was a
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BY THE WITNESS: A. I'm not going to answer that as you presented it. Askit again. BY MS. [C!RCHNER: Q. Did you understand myquestion, sir? A. No, notreally. Sorry. Q. Did you present Exbibit 84 to Mr. Rigsby on or about December 17th, 19967 A. It was sent, yes, certified mail. I didn't present it to him. Q. Your attorney at your request presented it to him,is tbat correct,, sir? A. Yes, fl~at's correct. Q. And this is a claim with regard to the same matter that is in Exhibit 81, correct? A. That's correct. Q. So it's the very same matter that we now have before us in court, is that correct? A. That's correct. (WHER£UPON, certain document was a marked Battaglin Exhibit No. 85 for identification, as of 6/11/04.) BY MS. KIRCtffNER: Q. Please take a look at we've marked as
Page 331

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markedBattaglin Exhibit No. 84 for 1 Exhibit 85 to your deposition and let me "knowwhen 2 you're ready. identification, as of 6/l 1/04.) A. Yes. 3 BY MS. KIRCHNER: 4 Q. Do you recognize E,~ibit 85? Q. Please take a look at what we've marked 5 A. Yes. as Exhibit 8'4 to your depositior~. Let me know when Q. What's Exhibit 85? 6 you're ready. 7 A. Ifs a claim concerning the Paxton, A. Yes, go ahead. 8 Illinois Post Office. Do you recognize Exhibit 84? Q. Q. This is a post office where 9 A. Yes, Ido. 10 L.P. Consulting was performing work under its Q. Wbat's Exhibit 84? 11 Indefinite Quantity Contract, is that correct, sir? A. It's a letter throughmyattorney to 12 A. That's correct. Mr. Rigsbyfiling a claim or -- I don't know the Q. Did you present that claim to proper terns, but it's concerninga claim against the 13 DownersGrove Post Office dock enclosure. 14 Mr. Rigsby? 15 A. Through my attorney. Q. Does this relate to the same scope of (WHEREUPON, certain document was a workfor the steel dock enclosure at the Downers ; 16 marked'Battaglin Exhibit No. 86 for GrovePost Office that we've been talking about? I 17 identification, as of6/11/04.) 18 A. The documentin 84, Exhibit 84 is the 19 BY MS. KIRCI-INER: identical as in Exhibit 81. 20 Q. Please take a look at what we've marknd Q. So did you submit a claim, then, on or about December 17th, 1996 with regard to the Dowaers 21 as Exhibit 86 to your deposition, and let meknow 22 when you're ready. Grove dock enclosure to Mr. Rigsby? 23 A. Yes, go ahead. MR.PROSEN: Objection, calls for a legal 24 Q. Do you recognize Exhibit 86? conclusion. 48 (Pages 328 to 331' ESQUIRE DEPOSITION SERVICES - CHICAGO 312.782.8087 800.708.8087 PAX:312.704.4950

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RICHARDANTHONY BATTAGLIN.JUNE 1 I.

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A. Yes. Q. Whatis Exhibit 86? A. It's a claim-- let's see here. it's a letter sent from myattorney regarding the Downers Grovedock enclosure. Q. Did you withdraw your claim with regard to the DownersGrovedock enclosure? A. Yes. Q. Isn't this the same DownersGrove dock enclosure that we'vebeen talking about today, correct? A. This document isn't specific, so 1 can't -- lookingat this compared this to (indicating), it doesn't lookto be specific. Q. Okay. But wouldyou agree, sir, that in 1996, you presented the claim to Mr. Rigsby with regard to the dock enclosure at Downers Grove and then in 1998you presented the very sameclaim again to Mr. Pdgsby? MR.PROSEN: Objection, compoundquestion and confusing. BY THE WITNESS: A. I'm not sure. BY MS. K1RGHNER:
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A. l'm not following you at all. Q. Let mestart again, then. Let mestarl the question again. A. All right. Q. I want you to put in front of you Exhibit 85. Youneed Exhibit 85 -A. Uh-huh. Q. - and Exhibit 84. Okay, you have them both in frontofyou. In Exhibit 85, I'm going to direct you back to the letter dated - wait a second. I've got the wrong document. That's myfault. WhatI need is Exhibit 83 and Exhibit 84. A. Okay. I have that. Q. Do you see in Exhibit 83 we have a copy of your claim dated March3rd, I986? ¯ A. Yes. Q. And do you -A. '98. Q. Yes, March 3rd, 1998. Thartk you. Do you see in your claim dated March3rd, 1998, you have information with regard to Downers Grove?
Page 335

Q. Let's go through it again. Put in front 2 of you Exhibit 81. 3 Do you remember you told me that 4 Exhibit 81 is the scope of work which is the subject 5 of the present lawsuit? 6 A. Yes. 7 Q. You have in front of you Exhibit 84. 8 Could you put in front of you Exhibit 847 9 Do you see that in Exhibit-- what I'd I0 like you to look at together is Exhibit 81 and 84, 11 sir. Can you look at 81 and 84 togeflaer? Youneed I2 8I and 84 in front of you. 13 A. Uh-huh. 14 Q. Now,Exhibit 81 is the subject of the 15 present lawsuit, correct? 16 A. Yes. 17 Q. And if you look at Exbibit 84, which is 18 your earlier documentto Mr. Rigsby dated 19 December 17th, 1996, does that deal with the very 20 same matter at DownersGrove which is the subject of 21 the present lawsuit? 22 A. I can only explain it in myterms. 23 Q. I'm asking you to look at Exhibits 8 I 24 and 84.

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A. Yes. Q. And do you see that the claim amount for the DownersGrove dock enclosure is $36,564.99? Do you see that? A. Yes. Q. Andthat tbe profit, the lost profit sought is $10,0007 A. Correct. Q. Now,can you look at Exhibit 84, which is a December I7th, 1996letter. A. Yes. Q. And do you see that there, you're complaining about the very same matter at Downers Grove,the lost profits of $10,000,the site visit on or about August1st, 1996, and the draft wm'k order? A. Yes. Q. Sois it correct that you pursued this matter with Mr. Rigsby through Exhibit 84? A. Initially,.yes. Q. Initially. Andthen pursued it again in Marchof 1998, the very same matter? A. Yes. Q. Aad directingyour attentioo to 49 (Pa~es ~_ to 335

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A. I believe for two reasons; that, one, postal service employeesthat were there at the time 2 you have the document from the government, so they of the site visit? 3 kept it for some reason, versus the othar documents A. Yes, I did. 4 which you can't produce for something very similar I Q. What did you do with your sketuhes that 5 did on everything I'm claiming. And he probably you madeat the time of the site visit? A. This sketch would have gone back with my 6 used this to do a quick compilation for his own 7 records of what shape and size and save himself a work order with Lois or Paul. 8 site visit initially to get an idea, a roughidea of Q. Now, earlier you said that you believed 9 what this wouldcost before he actually produced the that you had made -- that sketches were made that i0 drawings himself. were given to Mr. Fernandez. Do I understand your 11 This information is enough here for him testimony correctly? 12 to provide enou~ information to have contractors A. Related to which project? 13 give him a rough estimate before he produces an Q. Hoopeston. 14 actual drawingfor solicitation. A. Yes. 15 So ifI visited the site on a certain Q. And what sketches do you believe were i6 date and he produced drawings after that, I would given to Mr. Fernandez? 17 say it related to this. So that's mybelief, A. If they were going to be sketches of Hoopeston from me, it would be these sketches here 18 anyway, of what transpired there with Hoopeston and 19 these other ones related to him. (indicating). 20 Q. Let's look at what's been marked as Q. So we're talking about the sketches that 21 Exhibit 87 to your deposition -- excuse me-- yes, are in Exhibit 88, is that correct? 22 87 to your deposition. Tell me whether you A. To the best of my knowledge, yes. 23 recognize Exhibit 87. Q. Well, did you make any other sketches 24 A. Yes, I do. for Hoopeston?
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A. That's possible. Q. As you sit here today, do you have any other document.that is sketches you made for H0opeston? A. No, [ do not. I don't have copies of this material. The post office had all the originals. Q. Did Hoopeston have a Xerox machine at the time you were makingthis site visit? A. I believe it did. Q. Did you use the Xerox machine to make copies of what you were giving to the postal service employeesat the time of the site visit? A. I was never in charge of that type of thing, so l never woulddo that. That's at tile discretion of the governmentemployees or the people I met. Q. You don't know whether or not they gave you copies at the time of the site visit? A. No. Q. Now, do you believe that Exhibit 88 was given to Mr. Fernandez? A. Yes. Q. Wily do you believe that, sir?

Q. V~laat's Exhibit 87? 2 A. It's a five-page scope of work for the 3 HoopestonPost Office. 4 Q. Whoprepared Exhibit 87? 5 A. With the exception of the quantities, I 6 did. 7 Q. So I take it all the handwritingon 8 Exhibit 87 is your handwriting except for the 9 quantity column7 10 A. No. The question was who produced it. 11 I didn't produce the quantity by myself. I produced 12 it in conjunction with the governmentemployees, but 13 this otller part I produced. 14 Q. So whenyou arrived for the site visit 15 at Hoopeston,had you already filled out the item 16 nnmbercolumn, the item description itself, unit I7 measurement and unit price columns? 18 A. Only a few of these. Someof these were 19 added because this was a different type of project. 20 Q. How was it different, sir? 21 A. It looks like there was more dora" wm'k 22 than 1 did on any of the other ones. 23 0. Aod bow was the-- was the quantity 24 column filled in at the time of the site visit? 52 (Pages 344 to 347

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RICHARD ANTHONY BATTAGLIN. JUNE I 1, 2004 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A, We filled it in togetherat the site, yes, during site visit. the Q. Whose handwritingis it in the quantity column? A. I wrote it. Q. Andhowdid you go about getting that informationto put in the quantity column? A. 1 measured site with the postal the people and wedeterminedthe quantity and put the quantity down.Well, not all of them, but someof these on the backtwo pages say "to be determined," so that wassomething they were goingto get back to meon. It lookslike it's relatedto electric. Yeah,most of these "to be determined,"they were going to get back to meon whetherwe were going to do the electric work. Q. Whatpage are you on? A. I'm on Page 4 and Page 5. Q. Couldyou just showme, point to methe "to be determined." afraid I'mnot seeing it. l'm A. "Tobe determined,""to be determined." Okay, I'm with you now. Q. Oh, the DBO. TBD, actually. Pardonmyprinting. A.
Page 349

] some the other entities havedifferent line -of 2 have different books. They're not all the same. 3 So at this time I had a couple of other 4 1QCsnot related to Mr. Rigsbybut to otber 5 contracting officers, and ] put this down l so 6 wouldn'tconfuse line items or locations. 7 Q. So-8 A. That's whythat's there. 9 Q. Theunit prices listed in the 10 Exhibit 87, those are the unit prices fromthe price 11 bookfor Indefinite Quantity Contract 94-B-0083,is 12 that correct? 13 A. That wouldbe correct. 14 (WHEREUPON,certain document was a 15 markedBattaglin Exhibit No. 89 for 16 identification, as of 6/11/04.) 17 BY MS. KJRCH-NER: Q. Showing you what we've marked as I8 19 Exhibit 89. Doesthis look familiar to you? 20 A. I have no idea what this is. 21 Q. Does it appear to be a Xerox of some 22 portion of a blueprint? 23 A. Yes, but it's meaninglessto me. 24 Q. Okay. Let's go on.
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1 Thoseare all to be determined, TBD. 2 MR.PROSEN: the record, the witness is For 3 pointing to the quantity column Pages 4 and 5. on 4 BY MS. KIRCIqNER: 5 Q. Now, after you finished filling in all 6 the informationon Exhibit 87, the scope of workfor 7 Hoopeston,what did you do with the scope of work? 8 A. I took the scope of work and the 9 sketchesandgavetbemto -- I don't recall if it 10 wasPaul or Lois, but they took it with themto go 11 back to discuss this with Mr. Rigsby. And1 was 12 waiting for their response, whetherthis wasgoing 13 to -- or whenthis was going to happenor whatever 14 plans they hadfor it. 15 Q. Isthedate, ll/14/95, is that the date 16 of the site visit? 17 A. Yes. 18 filled that in also? Q. You 19 A. Yes,I did. Q. V~q~y you put the contract number did 20 21 94-B-0097on Exhibit 87? 22 A. Ifs just for myreference so that ifI 23 was-- just so you know,the postal service has 24 multiple lQCcontracts in various departments. And

Canyou turn backto 87? Is this 2 interior workand also the concrete handicaprampin 3 the scope of work? 4 A. No,this is strictly the interior. 5 Q. At the time of the site visit on 6 November 14th, 1995, did you also scope out a 7 handicapramp at thattime? 8 A. Yes. As Exhibit 88 would indicate, yes, 9 welaid out or measured a ramp. for 10 Q. Is there ansChing that indicates when l 1 you prepared Exhibit 88? 12 A. Not to myknowledge,no. 13 (WHEREUPON, a certain document was 14 markedBattaglin Exhibit No. 90 for 15 identification, as of6/11/04.) 16 BY MS. KIRCHNER: 17 Q. Please take a look at what we've marked 18 as E,'daibit 90 to yourdeposition. 19 A. Yes. 20 Q. Doyou recognize Ealaibit 90? 21 A. Yes,I do. 22 Q. What'sExhibit 90? 23 A. It's a scopeof workfor the concrete 24 workat the Hoopeston Post Office.

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Q. Is this the handicap ramp? 1 the quantities and time. That's all that mattered A. Yes, it would be. 2 to me. Q. Whose handwriting is on¯ r:.... 90 ~ ~xh~b~ ,~ 3 BY MS. KIRCHNER: A. That's myhandwriting. 4 Q. And hours? 5 A. Time would be when the job would take Q. Is all the handwriting your handwriting? All the handwriting is myhandwriting. 6 place, how long it would take place. A. This is dated November 14th, 1995, 7 Q. So you were not referring to the hours, Q. correct? 8 the quantity, that part of the quantity column? A. Correct. 9 A. Not as part of the top part. Yes, in Q. That's the same date as we have on 10 the quantity part, but time in the sense of start Exhibit 87, correct? 11 date, performance time and negotiating with the 12 postal facility, when's the best time to comein and A. Correct. Q. Now, does this relate to the very same 13 rip up his place. site visit at Hoopestont~aat you've told me about? 14 Q. At the time of the site visit, November14th, 1995, at Hoopeston, I take ityou A. Yes, it is. Q. So is this the scope of work -- is 156 filled in two scopes of work, one for the interior, Exhibit 90 the scope of work that you prepared for 17 one for the concrete ramp, and they were both in the the handicap ramp at Hoopeston as a result of the 18 format of Exhibit 87 -site visit? 19 MR. PROSEN: Objection. A. Yes, it is. ~ BY MS.-- KIRCHNER: Q. At the time of the site visit, Q. is that correct? November 14th, 1995, at that time did you fill in 22 MR. PROSEN:Objection, the document speaks the extend price column on the scope of work? 23 for itself. A. I don't recoil when it would have 24 MS. KIRCHNER: ~'m not asking about a
Page 353 Page 355

1 happened, but I did. That's mywriting. 2 Q. It's possible you filled in the extend 3 price columnat a later point in time after the site 4 visit? 5 MR. PROSEN:Objection, asked and answered. 6 BY THE WITNESS: 7 A. WhenI give them this document, the 8 extended price is blank. Ifs possible I tilled in 9 this later for whatever reason, but the extended 10 price is irrelevant to mefor mybusiness. 11 All is important is the qnantity, 12 because yon don't need to fill in each item. You 13 canjust do iton a tape with acalctdator. If you 14 needed to "know-ifI had an3, reason to knowthis 15 final numberat that time, it wouldhave been moot, 16 because the postal service per mycontract could 17 jnst take everything else out and issue a work order 18 for those little bits right there and tell mego do 19 that work by mycontract. So this is just the scope 20 of work that can be produced without me being there 21 at any time. 22 So the extanded price is -- to me, it's 23 there, and hmvit got there, I never paid aoy 24 atlention to it. All I always concentrated on were

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document. I'm asking about his conduct. Wouldyou please stop interrupting with your useless objections. Let's do this again. MR.PROSEN: have the right to object and I I will continue to do so. MS. KIRCHNER: That was a useless, misdirected objection-MR. PROSEN:Thank you, your Honor. MS. KIRCHNER: and it's really been holding me up. MR. PROSEN: Stop wasting time. Move on. MS. IedRCHNER: That's right. I wish you would. BY MS. KIRCHNER: Q. At the time of the site visit of November 14th, 1995 at the HoopestonPost Office, is it correct that you filled in two scopes of work documentsand gave them to the postal service? A. Yes, it is. Q. One ~vas for the concrete ramp and one wasfor the interior, correct? A. Yes, itwas. Q. APedthe fm'mof these documents was in the format of Exhibit 87, meaningthat they did not 54 (Pages 352 to 355)

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1 haveextendedprices, is that correct? 2 A. I do not recall. 3 Q. Well, directing your attention to 4 Exhibit 87, that's the document you, in fact, gave 5 the postal service with regardto the interior is 6 that correct? 7 A. That's correct. 8 Q. Andyou do not have the documentthat 9 you gavethe postal service with regard to the 10 concrete ramp, correct? 11 A. No, Idonot. 12 Q. But you believe it to have had in it the 13 information in the item numbercolumn,the 14 description column,the unit measurecolumn,the 15 unit price column the quantity column,is that and 16 correct? 17 A. That's correct. 18 Q. After you did that at Hoopeston,did you follow up with the postal service with regard to the 19 20 proposed work? 21 A. Yes,I did. 22 Andhowdid you do that, sir? Q. 23 A. I telephoned, don't recall if it was I Lois or Paul, and just asked themwhatthe status of 24
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A, Well. I can't tell you then. I don't know.1 can't recall. Q. Did you then makean3' further site visits to the Hoopeston Post Office? A. Notthat I recall. Q. So you only madeone site visit on November14th, 19957 A. Well, yeah. Youcan only make one visit on one day. 1 didn't go back the same day. Q. I'm not being clear then. Youmade a site visit on November 14th, 1995, correct? A. Yes. Q. After that date, did you makeanother site visit to the Hoopeston Post Office? A. Not to produce the scope of work, no. I mayhave gone there again to mail a letter ill was in the area, butI didn't go to producea scope of work. Q. Is the HoopestonPost Office the post office for your area? A. Yes,it is, 609. Q. It's the closest to your business? A. No, this is furthest from mybusiness, one of the farther ones.
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1 (WHEREUPON, a certain document was 1 the scope of workwasand they told meto talk to markedBattaglin Exhibit No. 91 for 2 2 Mr. Pdgsby. identification, as of 6/11/04.) 3 3 Andthen I subsequently- I don't know 4 BY MS. KIRCHNER: 4 if it wasthe same minuteor hour, but I did call 5 Mr. Rigsbyand he advised methat Mr. Fernandezwas 5 Q. Please take a look at what we've marked 6 as Exhibit 91 to your deposition. 6 goingto produceconstruction documents. That's all 7 A. Yes. 7 he told me,andto stay toned, so (o speak, he will 8 Q. Doyou recognize Exhibit 917 8 keepmeapprised or something that effect. So I to 9 A. Yes. 9 just assumed I wasgoingto get better that 110 Q. Whatis Exhibit 917 10 documents -- or they weregoing to producethe to A. It's a scope of workfor the Hoopeston 11 11 work order based on his documents. 12 Post Office. 12 Q. In this telephone call, what documents 13 Q. Who prepared Exhibit 917 13 did Mr. Rigsbytell you Mr. Fernandezwasgoing to 14 A. I did. 14 produce? did you go about preparing 15 Q. How 15 A. Construction documents. did 16 Exhibit 91 -- first of all, tell mewhen you Q. Washe any more specific in the 16 prepare Exhibit 917 17 17 telephonecall? 18 A. It looks like August1st, '96. 18 A. No. 19 Q. Are you just reading that from the Q. Approximatelywhendid the telephone 19 20 document,sir? 20 call to Mr. Rigsbyoccur that you just told me 21 A. Yes. 21 about? 22 Q. Howdid you go about prepariog 22 A. It wouldbe around December, think, I Exhibit 917 23 23 somewhere aroundthe holidays, ill had to guess. 24 A. Exhibit 91, with the exception of the 24 Q. I'm not asking you to guess, sir. 55 (Pages356~o 35~ 312.782.8087800.708.8087FAX:a 1~.704.49a0 -

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quantity, wouldhave been -- it looks like it's my 1 is -- 1 have a different contract now.That's what typical -- the description and line item, there's 2 this is telling me now.Now that I look at it and 3 nowNat I recall, this one, if/put in here only one provided in the book, so I just took that and put it in this form again and put the unit 4 94-B-0083, I may have submitted this and it was price. And we measured in the field and I got new 5 expired and they requested me to supply them with a quantities. 6 newone, and that's what that date relates to. Q. Did you make another site visit to 7 So I what I did was send a second work Hoopeston after the site visit on November 14th, 8 order, only because at this time this transpired 19957 9 under one contract and this was under the new 10 contract. That's exactly what it is. Now can I A. This date could be the date I sent it to Ms. Gunlogson. This date could be a lot of things. 11 remember that. That's why I have the same document I know it's there. I do notice, though, it's 12 because this one is for the expiring or maxed out different than the first one because I wrote on here 13 contract and this is for the other one. Yeah, 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 a difference, which could be whywe did this again. 16 clear on the record. Q. What I'm asking you is: You remember 17 A. I understand. Q. Referring to Exhibit 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, Ido. A. Yes. Andthat's at Hoopeston, correct? " 21 Q. That's the one where you filled out the Q. A. That's correct. 22 scope of work using the unit prices from.the 23 contract 94-B-0083,is that correct, sir? Q. Do you remember making another site visit at Hoopeston? 24 A. That's correct.
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Q. That was the Indefinite Quantity 1 A. All I recall is I was with Paul or Lois, 2 Contract that you had in November 1995, is ~hat of 2 and if there are two different times, [ don't 3 recall. But I do knowthat this is my document and 3 correct? 4 I produced it. 4 A. That's correct. Q. But you're not sure whether you made 5 Q. Now, in August of 1996, you filled out 5 6 Exhibit 91; is that correct? 6 another site visit? 7 7 A. That's not correct. I could have filled A. No, I don't recall. that out any time other than August1st, '96. Q. Well, did you produce Exhibit 91 on or 8 8 Q. But at the time you filled out 9 9 about August 1st, 19967 10 Exhibit g l , you were operating under the Indefinite 10 A. That date could be the date we visited l 1 Quantity Contract thatyou bad in I996, is Nat 11 or it could be tile date I put downwhen! sent it to 12 correct? 12 her. ThatI don't recall. It's possible. 13 Q. Okay. 13 A. I'm not sure of the dates, but it was a A. I don't recall. 14 different contract. 14 15 Q. A different Indefinite Quantity I5 Q. Let's look further at Exhibit 91. How 16 did you arrive at tile information you put in the 16 Contract? 17 A. Than Exhibit 90. 17 unit price column on Exhibit 917 18 Q. Just to get the chronologystraight, is 18 A. Say that one more time. 19 Q. There's a unit price column on 19 it correct that back in 1994, you had an Indefinite 20 Quantity Contract; and then in June of 1996, you 20 Exhibit 91, right? 21 were awarded two new Indefinite Qnantity Contracts, 21 A. Uh-huh. 22 is that correct? 22 Q. How did you determine wbat amounts to 23 put in the unit price column oll Exhibit 917 23 A. That's correct. A. I know exactly what this is now. This 24 Q. And they had unit prices which were 24 56 (Pages 360 Io 363) ESQUIRE DEPOSITION SERVICES-CHICAGO 312.782.8087 800.708.8087 FAX: 312.704.4950

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1 different from the '94 contract, is that correct? 2 A. That's not correct. It was the same 3 unit price, sameline items. The only thing 4 different was mymultiplier, because I'm competing¯ 5 for a contract to get the contract.. 6 Mymultiplier assures me of a contract, 7 which is whywe're here today because I competedfor 8 this geographic area under a specific contract with 9 a special multiplier relating to the line items. 10 The line items stay the same, but mymultiplier 11 against them change with wage rates and dumpingfees 12 and things that take for cost of business. 13 So what ends up happening is this 14 documentcould end up being different than this by 15 document nature of the fact that I have a 16 different multiplier. 17 Q. So you're saying -18 A. Acontract is a contract, so... ' 19 Q. Just so I'm really clear, on Exhibit 91, ! 20 the unit prices in that column,the unit price Z1 columnon Exhibit 91 -22 A. Uh-huh. 23 Q..-- do they reflect the unit prices for 24 the 1996Indefinite Quantity Contracts?

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doing this. All you need is mYcontract number, go to the PACS system, pull up these items times the quantity and you'll get your extended price and you'll get the governmerg price. Yo'~don't need tO know I wrote different numbers downin myextended columnor they seemto be different. This exercise, franklyi is starting to be fruitless because these quantities; these unit prices are based against the quantity. This is a governmentgenerated thing. I can't generate this part. 1 can only put in the quantities. To get the extended version, you just do the math and you'II get the exact number. Andthat can be done by anybodyin the current postal system. AndI'm getting a little frustrated in the sense that I'm educating 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 coJurrmon 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. 2 Q. And are you telling us then that the 3 reason why the unit price columnis different in 4 Exhibit 90 versus Exhibit 91 is because there were 5 different multipliers for the two Indefinite 6 Quantity contracts? 7 A. That could be, yes, that's exactly what 8 it could be, or they could be the same. I don't 9 have a calculator to crunch the number. 10 Q. I guess I'm not following you when you 11 say "they could be the same." Let me just ask some 12 more questions. 13 First off, I would like to ask you to 14 compare the second page of Exhibit 90 and 15 Exhibit 91. Those second pages, they look identical 16 to me. Do they look identical to you? 17 A. Pretty much. 18 Q. Earlier you said that you knew exactly 19 what Exhibit 91 is. What do you think Exhibit 91 20 is? 21 A. It's a replication f9 r mycontract for 22 '96. See, I'm just going to say this for time sake, 23 because I believe I'm educating everyone on 24 sonaething that it took me ten years to -- when I was

1 to the exhibit numberof the document. 2 A. Exhibit 90, I took the time to run my 3 multiplier against that number, which was $80. If, 4 in fact, $68.72 is 15 percent less than 80, that 5 will makethe difference, lfs possible that the 6 new contract I changed the way I did the format, but 7 the numbers don't change in regard to the end 8 result, because the government's computer 9 automatically takes mymultiplier off against the 10 unit price and the individual item number. 11 Ifl didn't write the description down 12 in here or the unit measure, all I needed to put 13 down,for example, is the first line on the item 14 numberand a quantity, and the postal sea, ice's work 15 order would have produced everything else. 16 All this other information is completely 17 moot, because all you need is an item number and a 18 quantity and you can build a work order. Do you 19 understand that? 20 Q. I have another question for you, sir. 21 Do you see that on Exhibit 90 you have a total of 22 $'15,951.88, and on Exhibit 91 you have a total 23 $45,472? Do you see that? 24 A. Yes. 57 (Pages ~6'1 to ~67

ESQUIRE DEPOSITION SERVICES- CH1CAGO 312.782.8087 800.708.8087 FAX: 312.704.4950

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Case 1:98-cv-00868-FMA Document 87-19 RICHARDANTHONY BATTAGLIN, JUNEFiled 01/14/2005 I 1, 2004
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Q. Did you compute both &those totals? A. I may have made a mistake, yes. I observe that now. But as I've reiterated, and I'll reiterate it again, you cantake this item number times this quantity 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 1st 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. Q. Which two work orders? The interior and exterior. A. 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 or91.
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than Exhibit 90. Therefore, the concern that the governmenthas is the written extended price, and that's the difference. Q. That's not myquestion, sir. I want to know which documents are the docaments on which you're basing your claim. WhichparticuIar documentrelates to the scope of work in the amount of $62,7527 A. I'm going to say Exhibit 91. Q. Andthat has on it an amount of $45,472? A. Yes. Q. Can you explain to me -- we have also this scope of workin E,,d~ibit 87. Doesthat 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 document that totals out the amountfor the interior part of the scope of work for Hoopeston? A. None tbat 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 ifs either 90 or 91 and you don't know which? A. Now that you've pointed out the total in this extended price, I'd have to do somemath. erie of these tw9 would equal what this one would equal in myclaim. MS. KIRCHNER: Does anybody have a calculator to find out whichone it is? (WHEREUPON,recess was had.) a BY MS. IQRCHNER: 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 youtell us which scopesofworkarerelevantto your claim? A. Not really. I believe that this is a different nmltiplier-Q. Again, when you-A. Exhibit 91 is a different multiplier

Q. Have you ever sat downand totaled out 1 2 the numbers on Exhibit 87? 3 A. Oh, yes. 4 Q. Do you have that someplace? 5 A. No. I would have thrown that away. It 6 was just a mathematical.It's irrelevant to me. Q. But was it important to you at the time 7 8 you filed your claim? 9 A. Yes, but it's a government math number, 10 not my number. Anybodycan do the math. Q. The number $62,752, that was in your 11 12 claim, correct? 13 A. Thafs correct. 14 Q. Did you satisfy, yourself at the time you filed the claim that that was a correct number? 15 16 A. Yes, it was. Q. How you satisfy yourself that it was did 17 correct? I8 19 A. [ ran the computation as if my 20 calculator was the governmentcomputer, and I 21 determined oe a tab what the amount would be. And [ 22 didn't feel the need to write that numberon my 23 scope of work. 24 Q. So the $62.752 is the sum of the items 58 (Pages 368 to 371

~12.'~82.8087 800.708.8087 312.704.4950 FAX:

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Case 1:98-cv-00868-FMA

Document 87-19
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Filed 01/14/2005
2004

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RICHARDANTHONY BATTAGLIN, JUNE I t,

Q. Well, as you sit here today, can you I listed in 87 and the items listed in 91? 2 tell us what quantities you are claiming for 2 A. It's the amoant that 1 have determined 3 Hoopeston with regard to the concrete handicap ramp? 3 based on mycalculations that I filed in myclaim. 4 A. l'm going to say that l'm claiming the 4 Q. And it's for the items of work listed in 5 quantities against the item numberon document 5 Exhibit 87 and Exhibit 91, is that correct? 6 Exhibit 92. A. lt's -- the items that I believe are 6 7 Q. Andyou'll note, sir, that those 7 important to myclaim is in those two exhibits, yes. 8 quantities are different than the quantities in 8 (WHEREUPON, certain document was a 9 Exhibits 90 and 91, is that correct? 9 marked Battaglin Exhibit No. 92 for 10 A. They might be, yes. 10 identification, as of 6/11/04.) Q. Well, could you just satisfy yourself, 11 I BY MS. KIRCHNER: 12 sir? 12 Q. Please take a look at what we've marked ~ 13 A. Yes, they are different. 13 as Exhibit 92 to your deposition and tell me whether 14 Q. Howdid you go about determining the 14 you recognize Exhibit 92. 15 quantities that you put in the quantity columnof 15 A. Yes, Ida. 16 Exhibit 92? 16 Q. What's Exhibit 927 17 A. The same way l did the others. Iwould 17 A. Exhibit 92 is another contract with 18 get with the postal people and we .would determine 18 another price, and it's for $62,000. 19 that this is the amountrequired. It's very 19 Q. Did you prepare Exhibit 927 20 possible that this document-20 A. With the exception of the quantities, 21 Q. Whichone are you referring to? 21 yes, and--yeah. 22 A. Let mefinish. Q. Wlmsehandwriting is on Exhibit 927 22 23 Q. Sorry. 23 A. Myhandwriting. 24 A. I'd appreciateit. 24 Q. Is all the handwriting your handwriting?
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Exhibit 92 is probably a take-off of A. Yes,it is. 2 Mr. Fernandez's drawings that I protested and was Q. Whendid you prepare Exhibit 92? 3 given by Mr. Rigsby, and I came up with a number of A. This would have been at the time I 4 $62,000. And that's probably what document 92 is, received that other contract that's shownup at the 5 which is the issue of the claim. top. 6 Q. Did you obtain Mr. Fernandez's drawings Q. As I understand it, you received the 7 for the Hoopeston ramp? Indefinite Quantity Contract 96-B-0098 in June of 8 A. Yes. 1996, is that correct? 9 Q. And did you then do a take-off for those A. I believe so, on or about, yeah. 10 drawings of Mr. Fernandez? Q. Are you telling us that it was at or 11 A. Yes. around that time that you prepared Exhibit 92? Q. Andisthattake-offofyours A. I'm saying that I took the item number i 12 13 Exhibit 92? against the quantity that was derived, whether it be A. Yes. on Exhibits 92, 91, 90 or any of the exhibits shown, 14 Q. Andby "take-off," please tell us what or 87, and I filed a claim for the amountof $62,000 15 I6 you mean, for the record? and whatever myclaim is for. ~qmther it be 17 A. The government's item number, Exhibit 92, 91 or 90 or 87, I'm claiming the item 18 description, unit measureand unit price thnes the numberagainst the quantity that's listed on the 19 quantity as it related to the document provided by document. Pmnot claiming the extended price or 20 the government. And that's how 1 came up with my t