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

Case 1:98-cv-00868-FMA

Document 87-17

Filed 01/14/2005

Page 1 of 32

~kttorncys~J-~" at
200 WEST MAD{SON STREET, SUITE 2500

KORI M. BAZANOS (312) 855-3895

E-MAIL ADDRESS

August 11, 1998

[email protected]

VIA CERTIFIED MAIL RET~ RECEIPT REQI~STED RECEIPTNO. Z 070 603 889 Mr. Robert Rigsby Manager,Administrative Services United States Postal Service Central Illinois District 6801 West73rd Street Bedford Park, Illinois 60499=9991 L.P. Consulting, Inc.'s claims against the UnitedStarts Postal Service ("USpS")of March 1998 and April 13, 1998 3, Dear Mr. Pdgsby: Werepresent L.P. Consulting GroupInc. ("L.P. Consulting"). Wepreviously submitted claims against the United States Postal Service ("USPS")on behalf of our client. Claims were submitted by letter dated March 3, 1998 in connection with Berwick Modular Post Office, Hoopeston Ramp Project, Downers Grove Dock Enclosure and Brook.field Ramp& Dock Enclosure, and resubmitted on April 13, 1998with a certification. Additional claims in connection with Aroma Park Interior Lobbies and Building Renovation, Beaverville Lobby and Building Renovation, Bradley Concrete Ramp,Lobbies and Building Renovation, East Lynn Building Renovation, MomenceConcrete Rampand Lobby Renovation, Papineau Interior Renovation and Concrete Ramp,St. Anne Concrete and Asphalt and Interior Renovations, and Union Hill Interior and Exterior Ramp were submitted by letter dated April 13, 1998. L.P. Consulfing:s position is that the ciaims do not require certification. Notwithstandingour position, the aforementionedclaims were submitted with certifications. In July, 1998, Mr. Cary Katznelson, staff attorney with the USPS, advised the undersignedduring a telephone conversation, that the USPS taken a position that the has certifications attached to L.P. Consutting'sclaims were defective.

-513-

Case 1:98-cv-00868-FMA

Document 87-17

Filed 01/14/2005

Page 2 of 32

Page Two August 11, 1998 In response to that conversation, without waivingour position that the claims do not require certification, we are submitting the enclosed amended certification to the claims previously submitted to the USPS letter dated March3, 1998 and April 13, 1998. by Sincerely,

~
L.P. Consulting Group, Inc. James T. Rohlfmg, Esq.

'~ .~A ~'?

Kori M. Bazanos

-514-

Case 1:98-cv-00868-FMA

Document 87-17

Filed 01/14/2005

Page 3 of 32

CERTIFICATION I,'Richard A. Battagtin, certify that the previously submitted claim listed below, a copy of which is attached hereto, and incorporated herein by reference, is madein good fMth; that the supporting data are accurate and complete to the best of my "knowledge and belief; that the amountrequested accurately reflects the contract adjustment for which the contractor believes the Government liable; and that.I am duty authorized to certify the claim on behalf of the is contractor. Claim submitted by letter dated March3, 1998, to Contracting Officer Robert Rigsby, and received by Mr. Pdgsby on March 11, 1998, a copy of which is attached hereto and incorporated herein by reference: Berwick Modular Post Office Hoopeston RampProject Downers Grove Dock Enclosure Brook-field Ramp& Dock Enclosure Claim submitted by letter dated April 13, 1998, to Contracting Officer Robert PdgSby, and received by Mr. Pdgsby on April 15, 1998, a copy of which is attached hereto and incorporated herein by reference: AromaPark Imerior Lobbies and Building Renovation Beaverville Lobby and Building Renovation Bradley Concrete Ramp,Lobbies and Building Renovation East Lynn Building Renovation MomenceConcrete Rampand Lobby Renovation t~apineau Interior Renovation and Concrete Ramp St. AnneConcrete and Asphalt and Interior Renovations Union Hill Interior and Exterior Ramp

-515

Case 1:98-cv-00868-FMA

Document 87-17

Filed 01/14/2005

Page 4 of 32

(312J FAX (3121

855-5399 388-5821

JAMES T. (312)

ROHLFING 855-5383

April 13, 1998

E-MAIL ADDRESS [email protected]

VIA CERT]~'~D MAIL RETURN RECEIPT REQUESTED RECEIPT NO. P 851 275 733 Mr. Robert Rigsby Manager,Administrative Services United States Postal Service Central Illinois District 6801 West 73rd Street Bedford Park, Illinois 60499-9991 Re: Claims by L.P. Consulting Group, Inc. against United States Postal Service

DearMr. Rigsby: On behalf of our client, L.P. Consulting Group, Inc. ("L.P. Consulting") we hereby submit to you, as contracting officer for the United States Postal Service ("USPS'), the following claims against the USPSin connection with damages sustained by LP. Co~ting resulting from the USPS'sbreach of implied contracts and failure to follow postal procurementprocedures: Proiect Name AromaPark Interior Lobbies and Building Renovation Beaverville Lobby and Building Renovation Bradley Concrete Ramp, Lobbies and Building Renovation East Lynn Building Renovation MomenceConcrete Rampand Lobby Renovation Papineau Interior Renovation and Concrete Ramp St. AnneConcrete and Asphalt and Interior Renovations Union Hill Interior and Exterior Ramp Total Work Order Amount $62,000.00 $24,758.00 $187,352.00 $32,775.00 $46,388.00 $43,442.00 $41,691.00 $36.110.00 $474,516.00 Lost Profit $12,466.00 $4,736;00 $31,449.00 $5,280.00 $7,800.00 $6,311.00 $7,360.00 $5.608.00 $81,010.00

With respect to each of the above claims, L.P. Consulting was requested to provide a workorder pursuant to its indefinite quantity contract, and it provided a workorder after the applicable research and communication with your office. In each case, the work order was provided with the express or implied understanding that the work ~vould be given to

CAR~LPCONS~'POST~L04 RIGSB" DOCkiM/13198\9:07 A

-516-

Case 1:98-cv-00868-FMA

Document 87-17

Filed 01/14/2005

Page 5 of 32

Mr. Robert Pdgsby April 13,,1998 Page 2

L.P. Consulting. On information and belief, in at least some of the above cases, the work was awarded to another contractor. As a result of your office's failure to follow postal procurement procedures and breach of its implied contracts, L.P. Consulting has been damaged in the amount of $81,010. Pursuant to the above, L.P. Consulting Group, Inc. hereby makes a claim or claims under the Contract Disputes Act of 1978, in the total amountof $81,010 to recover the losses sustained as described above. Wehereby request a decision within sixty _calendar days of your receipt of this claim. Also, pursuant to the Freedomof Information Act, we request a copy of the written notice of award on eachof the above eight projects. Incidentally, as we have pointed out before, L.P. Consulting is also entitled to receive the Notice of Award pursuant to section 4.4.3.a.15(b) of the USPSPurchasing Manual. Therefore, we request that the requested information be provided both under the Freedomof Information Act and postal procurement procedures. Wewould appreciate your prompt response and invite you to call with any questions that you mayhave. Truly yours,

James T. RoNfing JTR:kc cc: L.P. Consulting Group, Inc.

C:\R~LPCONSV?OSq~LO4RIGSB.DOC\f14113198\9:07 AM

--517--

Case 1:98-cv-00868-FMA

Document 87-17

Filed 01/14/2005

Page 6 of 32

VERIFICATION

Richard A. Battaglin, a duly authorized officer of L.P. Consulting Group, Inc., behag first duly sworn upon his oath, deposes and states that the above and foregoing claim of

~ __ L.P. Consulting Group, Inc., dated this q~dayof April, 1998, is tree and correct in substance and in fact.

SUBSCRIBED AND SWORNto before methis __._TZr.~day of~ ,1998.

Notary Public

518 -

Case 1:98-cv-00868-FMA

Document 87-17

Filed 01/14/2005

Page 7 of 32

Frie&.~nSin~r &Rohllir~
,~[Lorneys a'L

(312)

8~5-5399

JAMES T. |312)

ROHLFING 855-5383

E-MAIL

ADDRESS

March 3, 1998

[email protected]

VIA CERTIFIED MAIL RETIYRN RECEIPT REQUESTED RECEIPT NO. Z 041 263 249 M_r. Robert Rigsby Manager, Administrative Services United States Postal Service Central Illinois District : 6801 West 73rd Street Bedford Park, Illinois 60499-9~91 Re: L.P. Consulting Group, Inc., Claims Concerning Berwick Modular Post Office, Hoopeston RampProject, Downers Grove Dock Enclosure and Brook field Rampand Dock Enclosure

Dear Mr. Rigsby: Werepresent L.P. Consulting Group, Inc. ("L.P. Consulting") concerning its claims against the United States postal Service ("USPS') in connection with damages sustained LP. Consulting resulting from the USPS'sfailure to follow postal procuremen~procedures with respect to each claim as follows: Berurick Modular Post Office. On September 17, 1996, L.P. Consulting "provided a site visit to produce a workorder pursuant to its Indefinite Quantity Contract No. 162640-96-B43094 with the USPS("IQC'), pursuant to your insmactions and under the direction of Bruce Rothermel of your office. L.P. Consulting fotlo~ed the provisions of its IQCto producea rough sketch of the site work requested,: and a work order in the amount of $30,660.83 for the Berwick project. Pursuant to its IQC and the Contract Disputes Act of 1978 (41 USC §§ 601-613), L.~). Consulting claims damagesagainst the USPS which it sustained as a result of your failure to foilow postal procurement procedures with respect to the awarding of the contract, which was ultimately awkrded to another offeror based on a fixed price contract. LP. Consulting's claim is in the amotmtof its lost profits on this project, which wouldhave been $7,665.00. Hoopeston Ramp Project. On November 1, 1995 and Au~mast 1, 1996, L.P. Consulting provided a site visit to produce a work order pursuant to its Indefinite Quantity Contract No. 162640-96-B-0098 with the USPS("IQC"),
C:\R\LPCONS\POS-I~LO2RIGSI].DOC\O3103198\4:49

-519-

Case 1:98-cv-00868-FMA

Document 87-17

Filed 01/14/2005

Page 8 of 32

Mr. Robert Rigsby March 3,, 1998 Page 2

pursuant to your instructions and under the direction of Paul Steiner and Lois Gunlogsonof yQurOffice. L.P. Consulting followed the provisions of its IQCto produce a work order in the amount of $62,752.00 for the Hoopeston project. ¯ Ptu-suam to its IQCand the Contract Disputes Act of 1978 (41 USC 601-613), §§ L.P. Consulting claims damagesagainst the USPS which it sustained as a result of your failure to follow postal procurementprocedures with respect to the awarding of the contract, which was ultimately awardedto another offeror based on a fixed price contract. L.P. Consulting's claim is in the amountof its lost profits on th~ project, which wouldhave been $14,433.00. Downers Grove Dock Enclosure. On August 1, 1996, L.P. Consulting was ¯ provided architectural drawingsto producea workorder.pursuant to its Indefinite Quantity Contract No. 162640-96-B-0098 with the USPS("IQC'), pursuant your instructions and under the direction of Jesse McNabb your office. L.P. of Consulting followed the provisions of its IQCto produce a work order in the amountof $36,564.99 for the DownersGrove project. Pursuant to its IQCand the Contract Disputes Act of 1978 (41 USC§§ 601-613), L.P. Consulting claims damagesagainst the USPS which it sustained as a result of your failure to follow postal procurementprocedures with respect to the awardingof the contract, which was ultimately awarded to another offeror based on a fixed price contract. L.P. Consulting's claim is in the amountof i~s lost profits on this project, which would have been $10,000.00. Broolffield Ramp& Dock Enclosure. On August 1, 1996, L.P. Consulting was provided architectural drawings to produce a workorder pursuant to its Indefinite Quantity Conwact No. 162640-96-B-0094 with the USPS("IQC'), pursuant your inswactions and under the direction of Jesse McNabb your office. L.P. of Consulting fotlowed the provisions of its IQC to produce a work order in the amount of $89,168.28 for the Brook:field project. Pursuant to its IQC and the Contract Disputes Act of 1978 (41 USC§§ 601-613), L.P. Consulting claims damagesagainst the USPS which it sustained as a result of your failure to follow postal procurementprocedures with respect to the awardingof the contract, which was ultimately awarded to another offeror based on a fixed" price contract. L.P. Consulting's claim is in the amountof its lost profits on this project, which would have been $22,229.00. Pursuant to the above, L.P. Consulting Group, Inc. hereby makes a claim under the Contract Disputes Act of 1978 in the total amountof $54,327.00for losses sustained as set forth above.

- 520-

Case 1:98-cv-00868-FMA

Document 87-17

Filed 01/14/2005

Page 9 of 32

Mr. Robert Rigsby March 3, 1998 Page 3

Werequest a decision within sixty (60) calendar days of receipt of this claim. Also, pursuant to the Freedomof Information Act, we request a copy of the written notice of award on each of the above four projects, stating the award amount, the date of award, the numberof offerors, and to whom the award was made. Incidentally, L.P. Consulting is also entitled to receive that information pursuant to section 4.4.3.a. 15(b) of the USPS Purchasing Manual. Welook forward to your prompt response. Truly yours,

JTR:kc cc: L.P. Consulting Group, Inc.

- 521

Case 1:98-cv-00868-FMA

Document 87-17

Filed 01/14/2005

Page 10 of 32

VERI~CATION

Richard A. Battaglin, a duly authorized of-ricer of L.P. Consulting Group, Inc., being first duly sworn upon Iris oath, deposes and states that the above and foregoiBg claim of

L.P. Consulting Group, Inc., dated tl~_ ~}~ day of April, 1998, is true and correct in substance and in fact.

SUBSCRIBEDANDSWOP, N to before me tiffs ~ day of tm.C¢~,4~'~ ,1998.

Notary Public

- 522 CflRXLPCO NSXPOSTXL(~ RIGSB .DOC\04/03198\4:26 PM

R1CHAKDANTHONY BATTAGLIN.

JUNE 10. 200-1

Case 1:98-cv-00868-FMA
2 3 I,.P.

Document 87-17

TT

Filed 01/14/2005
(WHEREUPON. the

Page 11 of 32
wimess was duly

IN THE UNITEDSTATES COURTOF FEDERAl. CLAhMS CONSUl ,TINGGROLJP. INC.. Plaintiff. )

RICHARD ANTHONY BATTAGLIN, 4 called as a witness herein, baying been first duly 5 sworn, was examined and testified as follows: 6 EXAMIN ATION 7 BY MS. KIRCHNER: 8 Q. Please state your full name and address 9 for the record. 10 A. Richard Anthony Battaglin, 10401 Soutb 75th Avenue, Palos Hills. Illinois, 60465-2015. 12 Q. Ivlr. Bartaglin, my name is Domenique 13 Kirchner. I'm going to ask you some ques~ons 1'4 today. IfI ask you a question you do not 15 understand, please let me know. Please remember 16 that we both can't talk at the same time. Please remember, also, that you have to 17 18 put oral -- you have to give us an oral response. 19 If you shake ),our head, nod your head, that's not 20 sufficient. We need an oral response on the record 21 for the court reporter. 22 Have you ever been deposed before? 23 24
Page 2

vs. 5 ) Case No. 6 THE LWITEDSTATESPOSTAL~ 98-868 C 7 SERVICE. ) (JudgeAllegra) 8 9 I0 Defendant.

The deposition of RICHARD ANTHONY called for examination, taken pursuant to I1 BATTAGLIN, 12 the Federal Rules of CiviI Procedureof the United 13 States District Courtspertaininglo the taking of 14 depositions for the purposeof discoveD',taken No. I5 before Janet L. Robbins. CSR 84-2207, a Notary 16 Public within and for the CounD' Cook.State of of 17 Illinois. and a Certified Shorthand Reporterof said 18 state, at Suite 3300,ThreeFirst NationalPlaza. 19 Chicago,Illinois, on tbe 10th day of June, A.D. 20 2004. at 1:36 p.m. 21 22 23 24

A. Never. Q. Now, you're

here pursuant

to our request Page4

1 PRESENT: 2 BELL, BOYD& LLOYDPLLC, 3 (1615L Street, N.W.,Suite 1200. Washingmn,D.C. 20036-5610. 4 5 202-955-6830), by: 6 MR. LA\~q'~NCE M. PROSEN, 7 appearedon behalf of the Plaintiff; 8 9 10 II 12 13 14 UNITED STATESDEPARTivlENT OF JUSTICE, CIVIL DIVISION-COivLMERCIAL LITIGATION BR.ANCH. (1100L Street, N.W..8th Floor. Washington, D.C. 20530, 202-307-0290), by: MS. DOMENIQUE KIRCI~FNER. appearedon behalf of the Defendant

1 for a deposition of you in this lawsuit, correct? 2 A. Correct. 3 Q. This is a lawsuit brought by 4 L.P. Consfflting Group, Incorporated, correct? 5 A. Correct. Q. What is your role with regard to 6 7 L.P. Consulting Group, Incorporated? 8 A. The corporate record would show I'm fire 9 secretary/treasurer of the company in the State of 10 Illinois, and my function is project superintendent for the company. Q. Do you have any' other titles for the 12 13 company? 14 15 16 17 18 19 20 A. No. Q. Who else is involved in the company? A. Linda M. Battaglin, that's my wife. She's the president. Anybody else? Q. A. Q. No. During the lime frame 19~5 througb 1999,

I5 and the Deponent. 16 17 ALSO PI.~ES ENT: 18 MR. STEPHEN LOBAUGH, In-House Counsel. 19 UnitedStates Postal Sen'ice. 20 21 22 23 RI~PL)I.ITEDBY: JANET ROI3BINS, L. CSR. t~I}R. CEP, TIFICATE NO. 84-2207

~t,~ ~n,, ~,,m~,an) - did L.P. 22 employees besides yourself and yonr wife? 23 A. No. 2-1 Q. Other than 3'ourselfand .','our wit:e, does I fPages I m 4)

I:SQI ,tRI: Did { )SI I ION SI£1ZVICES- CHICAGO _ I,-.~8=.8C87 8{}{}.7{}8.8(}87 FAX:312.7{}4.d95{}

"" ' '

523

Case 1:98-cv-00868-FMA
1 2 3 4. 5 6 7 8 9 I0 1 I2 13 14 15 16 17 18 19 20 21 22 23 24

Document 87-17
Page 61

Filed 01/14/2005

Page 12 of 32

Q. Do you recognize Exhibit 52? A. Yes. Q. Whatis Exhibit 52? A. Ifs a claim to Mr. Rigsby for several post offices. Q. Is this the second claim that's the subject of the litigation? A. Yes, it is. Q. Is that your signature on tbe third page of the claim? A. Yes, it is. Q. Did you certify that the claim was true and correct in substance and in fact? M~R. PROSEN: Objection. The document speaks for itself as best evidence. BY T~ WITNESS: A. Yes. BY MS. KJ_RCHNER: Q. Wasyour certification attached to the claim at the time it was submitted to Mr. Rigsby? A. Yes. Q. Mr. Battaglin, what is L.P. Consulting's claim with regard to the East Lynn building renovation?
Page 62

I 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 I9 20 21 22 23 24

Exhibit 52, where it says "East LynnBuilding Renovation,'* do you remembergoing out and makinga site visit at East Lynn? A. Yes. Q. Whatdid you do after you -- what did youdo on that site visit? A. I met with Sam Southern. Weused our typical IQCdocumentation and generated a work order based on the visit, whichcould have included a lot of things. I mean,offthe top of myhead -- this says "building renovation," so I'm assuming- you "know,it's typical postal work. Q. When you makethis site visit that did you're referring to? A. December17th, 1995. Q. Is there somereason that sticks in your mind? A. Because I was with Mr. McNabb,and we visited three sites that day, and we werein East Lynnthe day that O.J.'s.verdict camein that he was found not guilty. That's whythat stands out. Q. So you're saying that it was on December 17th, 1995 that you were at East Lynnfor the site visit?
Page 64

1 A. Myclaim regarding the East Lyrm 2 building renovation is that this particular 3 contract, this particular contract, specifically 4 this work order, was -- I visited the site and 5 produced the scope of work as directed and the work 6 was never issued to me for any reason th~,t I know 7 of. Q. Do you contend that another contractor 8 9 did this work? 10 A. Yes. 11 MR. PROSEN: Objection, assumes facts not in 12 evidence. 13 Give me an opportunity before you 14 answer. ] 15 BY MS. KIRCHNER: 16 Q. Can you describe for me the work that 17 you had proposed to do in the work order? 18 MR. PROSEN: Objection. 19 What work order? 20 BY MS. I(JRCHNER: Q. For EastLynn. A. Offthe top of myhead, without seeing 23 it, I can't. 24 Q: As yoo look at the docnn~ent, Battaglin

1 2 3 4 5 15 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A. Correct. Q. Andyou said three sites. What are the other two that you're referring to? A. Goodwine and Claytonville. Q. Are you making any allegations or any claims in the litigation regarding Gnndwine? A. No. Q. Are you making any claims in the litigation regarding Clayton? A. Claytonville. Q. Claytonville, I'm sorry. A. No. Q. Now,you indicated that you were at -clarify fur me, when you were at Goodwine,were you with Mr. McNabb? A. Yes. Q. And when you were at Claytonville, were you with Mr. McNabb? A. Yes. Q. And when you went to East Lynn, were you also with Mr. McNabb? A. Yes. Q. Now, how did it come that you were at East Lynn and Mr. McNabb at East Lynn? Howdid is 16 (Pages 61 to 64

312.782.8087 800.708.8087 FAX:312.704.4950

-

-

Case 1:98-cv-00868-FMA

Document 87-17

Filed 01/14/2005

Page 13 of 32
Page 67

RICHARD ANTHONY BATTAGL1N. JUNEI0, 2004 I 2 3 4 5 6 7 8 9 10 11 12 13 14 ]5 16 17 ]8 19 20 21 22 23 24 BY MS, KIRCHNER: Q, Just to go downto these three facilities and take a look? A. Yes. Q. Do you have any notes or any documants that relate to your site visit on December 17th, 1995 with Mr. McNabb? A. I'm sorry, did 1 say December 17tb or October 17th? MR. LOBAUGH: have December. I BY THE WITNESS: A. I'm sorry, it's October. BY MS. KIRCHNER: Q. Webotb have December. A. It's October. Q. October 17th, 1995. Wehavethat corrected now. Do you have any documents or any notes that relate to your site visit on October17th, 1995 with Mr. McNabb? A. Other than the East Lynn work order, no. Q. Did you take any photographs of East Lynn when you were out there with Mr. McNabb? -A. No.
Page 68

1 that comeabout? 2 A. I received a phone call from Mr. McNabb 3 sayingthat wehavethree facilities left to visit 4 in this particular geographic area, and it wasthose 5 three that you just mentioned.Andwegot together 6 on a date andtime andmet at the -- ] can't 7 remember whichone wasthe first site, but wemet at 8 oneof those sites first. 9 Q. And-10 A. Hedrove either a postal vehicle or his 11 ownvehicle and I camein mine. 12 Q. So you met him there? A. Yes. 13 14 Q. Andthe three of you then wentto all idantified, right? 15 three of those sites that you've 16 A. Yes. 17 Q. Now,howdoes Mr. Southern fit into 18 this? Pmnot followingtbat. 19 A. Mr. Southern was the one that madethe 20 phonecall to say yougot to get together wit~ to 21 Mr. McNabb cometo tbe site. 22 Q. So you're not saying that Mr. Southern 23 wasat East Lynnwith you? 24 A. No, no.
Page 66

Q. Did you make any sketches or drawings 1 1 Q. As I'm understanding what you're saying, 2 when you were at East Lyrm with Mr. McNabb? 2 Mr. Southern, he called you before you madethese 3 MR. PROSEN:Objection. 3 site visits with Mr. McNabb? 4 BY THE WITNESS: 4 A. Correct. 5 A. Yes. 5 Q. Andhe told you to get together with 6 MR. PROSEN:Asked and answered. 6 Mr. McNabb? 7 BY THE WITNESS: 7 A. Correct. 8 A. Yes. 8 Q. Did he tell you anythingfurther in this 9 BY MS, KIRCHNER: 9 telephonecall? l0 Q. You made some drawings? 10 A. Notthat I recall. A. Yes. Q. Did he tell you - did Mr. Southerntell 11 11 Q. Whatelse happenedduring this site 12 12 you wbyyou were to get together with Mr. McNabb? ] 3 visit at East Lynn with Mr. McNabb? 13 A. Other than visit the sites and see what 14 A. Wedid what we usually would do in this 14 work-- or producea scope of workfor each 15 situation, which was develop a scope of work. 15 facility. Q. What was the scope of work that was 16 16 Q. In this telephonecall With developed? did 17 17 Mr.Southern, he identify the ti~ree sites? 18 A. Well, specifically, I don't know sitting 18 A. Yes, he did. 19 here right now,but it was somesort of interior Q. Did he tell you what you were to do or 19 20 renovation. Wewere in the inside, I remember. 20 whatyouwereto look at at those three sites? 21 Morethan likely lock boxes, but I'm guessing. 21 A. No. Q. Do you remember whether or not it 22 MR.PROSEN: Objection, asked and answered. 22 23 involved countertops or counters? 23 BY TIlE WITNESS: 24 A. Yes. "¯ 24 A. No. 17 (Pa~es65 to 68 ESQUIRE DEPOSITION SERVICES CHICAGO 312.782.8087 800.708.8087 FAX:312.704.4950

- 525-

Case 1:98-cv-00868-FMA

Document 87-17
Page 73

Filed 01/14/2005
JUNE 10,2004

Page 14 of 32

RICHARDANTHONY BATTAGL1N,

1 I wouldnot have a copy, and the 3, wouldtake it back 2 to produce the work order. 3 Q. Did you produce, when you were at East 4 Lynn with Mr. McNabb and you were producing this 5 document-- how did you refer to these documents? 6 A. Scopes of work. 7 Q. So I'm goingto call it the scope of 8 work. 9 A. All right. 10 Q. Whenyou're at East Lynn with Mr. McNabb 11 and ynn're producing the scope of work, did you 12 produce only une copy of that scope of work or did 13 you produce two copies of the scope of work so that 14 you could have one and he can have one, meaning two 15 handwritten copies so you have one and he has one? A. At the site, he received the original 16 17 and later 1 received a copy from him in the mail. : 18 Q. Is that what happenedat East Lynn 19 A. Yes. 20 Q. - that you got a copylater on -i 21 A. Yes. 22 Q. -- fromthe postal service or 23 Mr. McNabb? 24 A. Postal service, yes.
Page 74

1 2 3 d 5 6 7 8 9 10 11 12 13 i 14 15 16 17 I8 19 20 21 22 23 24

Page75 WorkOrder Amount, $46.388.00" Do you see that? MR.PROSEN: You're looking at the wrong -MS. KIRCHNER: looking at it wrong. Give l'm mea second. Thank you. BY MS. KIRCHNER: Q. Lefs start again. Directing your attention to Battaglin Exhibit 52, you see there "East Lynn Building Renovation, WorkOrder Amount, $32,775.00"do you see that, sir? A. Yes. Q. Now,seeing that, does that help you in rememberingwhat the scope of work was that you and Mr. McNabb scoped out on or about October 17th, 19957 MR. PROSEN: Objection, ambiguous. BY THE WITNESS: A. No, it doesn't. MR. PROSEN:Confusing. BY MS. KIRCHNER: Q. Do you.know what the $32,775 work order for East Lynnbuilding renovation refers to? MR. PROSEN: Objection, ambiguous, vague. BY MS. KIRCHNER:
Page 76

Q. Wasthat work order for East Lynn -2 you're referring to them as scopes of work, right? 3 MR. PROSEN:Asked and answered, objection. 4 BY THE WITNESS: 5 A. I'm referring to them as scopes of work 6 when we're in the field, yes. 7 BY MS. KIRCHNER: 8 Q. Okay. All right. To be accurate, the 9 scope of work when you're in the field, was that 10 scope of work -11 A. It bedomes a work order. 12 Q. The scope of work for East Lynn that you 13 and Mr. McNabb produced in the field, did it have a 14 price? 15 MR. PROSEN: Objection, asked and answered. 16 BY THE WITNESS: 17 A. I'm not sure if we calculated it, took 18 the postal numbertimes the quantity and put a price 19 next to it. I don't knowif we did it there or we 20 did it later or ifI got it back with the columns 21 not filled and I did it. I don't remember that. 22 BY MS. KIRCHNER: 23 Q. Can you look at Battaglin Exhibit 52, 24 and you see there, "East Lynn Building Renovation.

Q. Directing your attention to Battaglin 2 Exhibit 52, you see there "East LynnBuilding 3 Renovation, WorkOrder Amount, $32,775.00" do you see that, sir? 5 A. Yes. what that refers to? 6 Q. Doyou "know 7 A. No, other than an amountthat we in 8 developed the field. Q. Do you remember developing a scope of 9 I0 workwith a price of $32,775in the field with 11 Mr. McNabb? I2 A. No. 13 Q. Do you knowwhat work is referred to by 14 the entry "East LynnBuilding Renovation, $32,775" 15 in B attaglin Exhibit 527 16 MR.PROSEN: Objection, asked and answered. 17 BY THE WITNESS: 18 A. I remember meeting with him. I know we measured. I knowwe put the items on the work 19 or 20 m'der. If Mr. McNabb Mr. Southern or Mr. Rigsby 21 chose to add to this, whichthey could, 1 dnn't 22 know.All I knowis what I got back in the mail was 23 an East Lynnwith that amount. So if they increased 24 myquantities at their discretion, that's within 19 (Pages 73 to 76)

ESQUIREDEPOS1TION SERVICES-CHICAGO 312.782.8087 800.708.8087 FAX..~ 12.704A930

526

Case 1:98-cv-00868-FMA

Document 87-17
Page 77

Filed 01/14/2005

Page 15 of 32
Page 79

1 1 their prerogative. 2 2 BY MS. KYRCHNER: 3 Q. Yougot a documentfrom the postal 3 4 service that was for East Lynnbuilding renovation 4 5 5 that had on it the amount $32,775,is that correct? 6 A. No, I had two documents. One was for an 6 7 inside; one was for an outside, meaning 7 8 8 interior/exterior. 9 Q. Andare you telling me that each of 9 ] 10 those documentsthat you received from the post 10 11 office for East Lynnbuilding renovation had on it a 11 I2 12 price for the workin the work order? 13 13 A. Yes. I4 I4 Q. Andare you telling me that the sum of I5 those two prices was $32,775? 15 16 16 A. Yes. 17 17 Q. Whereis that document,sir, or those 18 18 two documents? 19 A. I cannot find one. I do have the other. 19 20 MS. g3RCHNER: Counsel, ifs not in the 20 21 21 package you gave me. 22 MR. PROSEN:East Lynn? 22 23 23 MS. K.1~CI-INER: No. MR.PROSEN: going. I'll look for it. Keep 24 24
P~ge 78

Q. Andwhenthey were returned to you or whancopies weresent to you by the postal service, did they haveprices on themwith regard to the East Lynn-A. Yes. Q. -- project? A. Yes. on Q. Anddid they have final total amounts them? A. Just this number that's listed on my52. Q. As I understand what you're telling me is there were two of them, and whenyou added them together, they together gave the $32,775number, is that correct? A. Thafs correct. Q. Are you telling me that those two drafts scopes of workwere, in fact, addedtogether and the $32,775was actually on the document? A. No, because I think there were two PAs involved. I think one workorder wasan expenseand one wasa capital, so it wouldn't require themto send me one whole document.It would have to be two, Q. Youadded them together and got the
Page 80

I 2 3 4 5 6 7 8 9 10 i1 12 13 14 15 16 I7 18 i9 20 21 22 23 24

MS. K1RCHNER: We're offthe record. (WHEREUPON, a discussion was had offthe record.) BY MS. IQ-RCHNER: Q. Mr. Battaglin, is it your testimonythat you received from the government workorders for two East Lynnbuilding renovation which, whenwe add together, the prices on those amount $32,775? to MR.PROSEN: Objection, misconstrues testimony. BY THE WITNESS: A. I did not receive a workorder fromthe postal service with that amount. receiveda copy I of mydraft workorder in the mail fromthemfor this amount. did not get an actual work I order. BY MS. KIRCHNER: Q. I thought you weretelling methere were two of themthat they sent you. A. Yes. Q. Andwhenyou add the two of them together, yougot the $32,775, tha~ correct? is A. Yes. There were two of myrough scopes of workthat I submitted.And ~vhen took it, he he returned it.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

$32,775? A. Yes. Q. Whenyou say "PA," could you tell me what that is for the record? A. Postal service PA means pay authorization. Ifs either a C or an E, capital or expense. Q. Yousaid one was a pay authorization and one was a capital? MR. PROSEN: Objection, misconstrues testimony. BY THE WITNESS: A. No. One is an expense PA and one is a CPA,capital. BY MS. KIRCHNER: Q. Let me back up. For East Lynn, the postal sen, ice sent you two documents, I as understandit, isthat correct? A. Yes. Q. Andthese nowhad prices on them? A. Yes. Q. Andwere you telling me that one of those was a PAand one was a capital? MR.PROSEN: Objection, misconstrues the 20 (.Pages77to 80

~$QUIREDEPONITION SERVICES- CHICAGO 312.782.8087 800.708.8087 FAX:312.704.4950

5 2 7

Case 1:98-cv-00868-FMA

Document 87-17

Filed 01/14/2005

Page 16 of 32
Page 83

RICHARD ANTHONY BATTAGL1N, JUNE 10, 200'4 A. I went there with Mr. Steiner, too. I 1 testimony.' 2 visited the site with Mr. Steiner. but this is not 2 BYTHE WI~SS: 3 what I'm alleging. This is different than this 3 A. No. WhatI'm saying is - you asked me, 4 (indicating). This is a different contract. 4 if I remember question correctly, was1 received the Q. Okay. So Exhibit 53 has nothing to do 5 5 a document that had this total on it. And 6 with this lawsuit, is that correct? 6 saying no, there were two. Andit was probably- I 7 A. I can't answer that, 7 don't recall, because wasn'tan official it 8 Q. Well, tell me, is your handwriting on 8 document; was myrough form. It's probable that it 9 Exhibit 537 9 they split it becauseone is an expenseandone is a 10 A. Yes. I0 capital. And1 can't get into their logic. But 11 Q. Okay. 1 there are twodistinct things here. 12 A. But this was provided by the government 12 BY MS. KIRCHNER: 13 not by me. It says "Exhibit 6." Okay. I think 1 follow you now. 13 Q. 14 Q. So this is not something that you would 14 A. Yeah. 15 look to to support your claims in the lawsuit, is 15 Q. Haveyou your owncopies of these two documents East Lyrm for that weresent to you by the 16 that correct? 16 A. This would probably be identical to what 17 postal service in your files as opposed receiving 17 to 18 I did with Mr. Southern -- orMr. McNabb. 18 themfrom the goveranaent? Q. Doyou know whether it is or isn't? 19 MR.PROSEN: Objection, asked and answered. 19 20 A. Sitting here lookingat this, no. 20 BY THE WITNESS: 21 Q. Tell me moreabout what this is, 21 A. I cannot find those. I just have the 22 Exhibit 53. Who prepared Exhibit 53? 22 one I have now. 23 A. Well, looking at the handwriting, I did 23 BY MS. KIRCHNER: 24 everything except the quantity and the extended 24 Q. Doyou have any other -- and that's the Page 84 Page 82 1 price. That's in somebody else's writing. 1 one you got from the government response to the in 2 Andthen to add to it, somebody 2 FOIArequest. 3 scribbled out -- madethose scribbte marksall over 3 A. The one I submitted to you, if that's 4 it. 4 the sameone, then that's the sameone, yeah. 5 Q. The cross-outs? 5 Q. Do you have anything else regarding your A. Yes. 6 6 site visit to East Lyrm other than the document that 7 Q. So that whole quantity column, you did 7 you got from the government,, the one document? 8 not fill that in, is that correct? 8 A. No, A. Correct. 9 9 Q. Nonotes, no field notes Q. Andyou didn't fill in the extended 10 10 A. No. 11 Q, -- no calendars? i 11 price column? 112 A. Correct. 12 A. No. Q. What'sthat last columncalled on this 13 13 MS. KIRCHN~R: Could you mark this, please. 14 (~,q-IERE~ON, certain document was 14 form?I can't quite read it. That's whyI'm tasking a 15 you. markedBattaglin Exhibit No. 53 for 15 A. Well, it says "ExtendedPrice." 16 16 identification, as of 6/10/04.) 17 Q. Okay. 17 BY MS. KIRCHNER: 18 A. That's the cover document. 18 Q. Please a look at what we've markedas did Q. V~qmre this form comefrom before it 19 19 Battaglin Exhibit 53. Tell mewhether you recognize 20 was filled out? 20 this document. 21 A. From myself. 21 A. Yes, this document a document is that I Q. So you generate forms of this nature, 22 22 went out with Mr. Paul Steiner, 11/14/95, on myold the formitself2. 23 23 94-B-0083 contract. A. Yes. : 2~1 Q. So you didn't go there with Mr. McNabb? 24 21 (Pa~e~ 1o 84) gl ESQUIREDEPOSITIONSERVICES- CHICAGO 312.782.8087 800.708.8087 FAX:312.704.4950 -

528

-

RICHARD BATTAGLIN, Case 1:98-cv-00868-FMA ANTHONY Document 87-17 JUNE I0, 01/14/2005 Filed 2004

Page 17 of 32

I 2 3 4 5 6 7 8 9 10 11 I2 13 14 15 16 17 18 19 20 21 22 23 24

Page , 85 Page87 Q. Onyour computer? A. Yes. Everything-- item number across A. No, this is handwritten. 2 here, this is all mywriting. Q. No, no. I'm tryingto understand. The 3 Q. So even when we fill out the items formitself, is the formitself in your computer? 4 themselves, that's your writing? A. This is postal supplied. This form is 5 A. Those are mywritings. postal supplied. 6 Q. How about this stamp? Wasthis a stamp.'? Q. And you have copies of the blank 7 A. Yeah. It's like what you put on your forms tbat you could Xeroxand then use? 8 envelopereturn address. That's what tha* is. Q. Can you explain to me, when you would go A. That's correct. 9 10 out'to the sites, wouldyou go out there with these Q. Yousaid that this referred to the '~zl contract. You'rereferring to your '94 Indefinite 11 forms that already had the L.P. Consulting stamp on Quantity Contract? 12 it? A. Yeah. This probably is one of those 13 A. Yes, and they already had these line carryover projects that I mentioned from '94 to '96. 14 items laid out. " And Mr. McNabb picked up the baton after Mr. Steiner 115 Q. With regard to Exhibit 53, as you sit went backinto retirement, now thatrm Iookingat makinga site visit in I6 here today, do you remember it and recollecting. Andwe had to go back for a 17 about November 1995 with Paul Steiner at East Lynn? secondvisit for whateverreason. 18 A. Yes. Q. Did L.P. Consulting Groupin the '94 to 19 Q. Do you rememberhowthat site visit came 20 about? '98 time ftame ever do work at the East LynnPost ONce? 2I A. Typically, most visits were a call from 22 either SamSouthern or Bob Rigsby to makea date A. No, I did not. Q. Andas you sit here and you look at 23 with whoeverthey told me to makethe date with. Exhibit 53, can you tell mewhat type of workthis 24 Andin this case it was Mr. Steiner. Andwe talked,

1 is addressing based on the document RselD 2 A. Wail, looking at the document, now that 3 I see the document,it reiterates what I said 4 before. Up at the top says "Expense PA," so that 5 tells me the other one was capital. Andlooking at this, this looks like 6 7 this was a lock Boxlobby renovation, let's see, 8 puffing a new postal furnished LRT. So this was 9 who* we would call a lock box lobby renovation with I0 miscellaneous,it looks like, tile, just as the 11 documentreads, painting, electric. 12 Q. In whose handwriting is the upper 13 portion of the document where you have the contraot 14 number, project description, location, project 15 authorization number and the date? 16 A. The date, the project description and 17 the project authorization number are not mywriting, 18 and I do not "knowwhose that is. 19 Q. But youql take the East Lynn? 20 A. East Lynnis not mine. 2] Q. Oh. 22 A. Pmgoingto goess it's Paul, but... 23 Q. Okay. But earlier you said that 24 portions of this did have your handwriting on it.

1 "What's your schedule like?" Andwe would visit 2 morethan one job at a time, so this was probably in 3 conjunction with another site visit. It's a long 4 wayto go to see just onelittlejob like this. 5 Q. Now, do you have any draft work orders 6 that relate to the $32,775workorder amountfor the 7 East Lynnbuilding renovationthat's in your claim, 8 Exhibit 52? A. No. Only the postal service can provide 9 10 a draft workorder. 11 Q. Remember told me you went out with you 12 Mr. McNabb you scoped out the work? Doyou has, e and 13 any scopes ofwork, any documents, draft scopes of 14 workthat relate to the $32,775East Lynnbuilding 15 renovationthat's part ofyour claim, Battaglin 16 Exhibit 527 17 A. At the time of the claim, April 13th, 18 1998, we had these documents. 19 Q. Canyou tell mewherethe}, are now,sir? 20 A. I don't know wherethey are. 21 Q. Did you get all of your documentation 22 that you could obtain from the former law firm? 23 A. Yes. Andall I had was Paul Steiner's, 24 wbicbI thiak I gaveyou, but Pmoot sure. I think 22 (Pages 85 to 88

ESQUIREDEPOSITIONSERVICES- CHICAGO 312.782.8087 800.708.8087 FAX:312.70,4.4950

529

Case 1:98-cv-00868-FMA

RICHAIKD ANTHONY BATTAGLIN, JUNE 10, 2004

Document 87-17

Filed 01/14/2005

Page 18 of 32
Page 91

1 2 3 4 5 6 7 8 9 I0 11 12 13 114 15 16 17 18 19 20 21 22 23 24

1 so. But l'm not even sure of that. So whatever 2 they sent back to me was what I used. 3 Q. And you don't have that today? 4 A. No,l don't. 5 Q. The site visit you rememberhaving with Mr. McNabb East Lynn that you told me about, did 6 at 7 you prepare any drawings atthe site -- at the time 8 ofthe site visit? 9 MR. PROSEN: Objection, asked and answered. 10 BY THE WITNESS: 11 A. Yes. 12 BY MS. IGRCHNER: 13 Q. What type of drawings did you prepare? 14 A. Roughsketches, layouts, diagrams. 15 Q. Do you have any of those rough sketches? 16 All myori~nal work went to the postal A. 17 service to be converted into a draft work order that 18 I wouldsign and return to them for signature and a 19 notice to proceed to do the work. 20 Q. So as I understand it, you're telling us 21 fire process is this: Therewas a site visit, a 22 scope of work is prepared, that goes back with the 23 postal service, then something comes to you in the 24 mail, a copy of it from the postal service?
Page 90

Q. Andthat alone? A. Andthat's all 1 got from them. Q. So you never got a computerized generated work order? A, No. That's why 1 filed the claim. Q. Now, when you and Mr. McNabbcompleted the site visit at East Lynn, what did you think was going to happen next7 A. Typically, I get a draft work order in the mail from the postal service for meto review. IfI agee with the final form that it's in, 1 sign myportion on the workorder and return it to the contracting officer for signature and then the noticetu proceed. Q. Is that what you expected in the case of EastLynn itself?. A. Yes. (WHEREUPON, certain document was a markedBattaglin Exhibit No. 54 for identificgtion, as of 6/10/04.) BY MS. KIRCHNER: Q. Can you please take a look at what we've markedas Exhibit 54 to your deposition, Mr. Bat't@in. This is a declaration of Sam
Page 92

1 2 3 4 5 6 7 8 9 10 11 12 I3. 14 15 16 17 18 19 20 21 22 23 24

.1 A, A draft work order. 2 Q. Howis that different from what is taken back out of the field from by the postal service? 3 4 A. It's a computerized documentthat the 5 postal service generates and makesa financial 6 commitmentand award to. 7 Q. Younever got anything like that for 8 East Lynn? 9 A. No, just mycopy of this back. 10 Q. So are you saying that when you scoped 11 out workin the field with the postal service and 12 they took the scope of work with them, that they wouldthen send you a copy of it so that you had it 13 14 for your files? 15 A. In East Lynn's case, yes. 16 Q. V~q~en told me that you -- tell me you more about East Lynn. You and Mr. McNabbscope it 17 18 out, he takes it, then they send you back something. 19 rm not clear on whether they're sending you back 20 the computerized documeator they're just sending you back a Xerox copy of what you and Mr. McNabb 21 generated in the field. Whatwas it? 22 23 A. On East Lyua was my copy of the work 24 that we performed at East Lynn.

Southern. Do you see that, sir? A. Uh-huh. Q. And do you see in Paragraph 4, Mr. Southern is stating, "I have reviewed postal service files and records for information pertinent to the following construction projects," and he mentions the East Lynn building renovation. Do you see that? A. Yes. Q. And do you see below that he says that the postal service has not awardedcontracts for the construction projects listed in Paragraph 4? A. Yes, I do. Q. So you see that? A. Yes. Q. Seeing that the postal service has not awardeda contract for the.East Lym]building renovation, are you still pursuing the claim that the governmentviolated someduty to you by failing to give you a contract for the East Lynnbuilding renovation? A. Yes. Q. And why, si!'? MR.PROSEN: Objection, calls for a legal 23 (Pages 89 to 92'

ESQUIRE DEPOSITION SERVICES - CHICAGO 312.782.8087 800.708.8087 FAX:312.704.4950

- 530-

Case 1:98-cv-00868-FMA

Document 87-17
Page93

Filed 01/14/2005

Page 19 of 32
Page95

1 1 conclusion? 2 2 BY THE WITNESS: A. BecauseI believe mycontract-- 1 have 3 3 4 an impliedcontract, that the postal service does 4 5 5 not need myservices unless they intend to do 6 6 construction work. 7 7 BY MS. KIRCHNER: 8 Q. So you're not contending that somebody 8 9 9 else got the workthat you had scoped out with 10 Mr. McNabb your site visit at East Lynn,are you? 10 on 1 11 A. I'm contending that someoneelse may 12 12 havegotten these. I don't haveaccess to the 13 13 computer "know got what,, and I definitely to who 14 14 can't bother East Lynn see if some to other 15 15 contractor showedup. But based on myprevious 16 16 claim, all those jobs wenttoother contractors. I 17 I7 presumed, accurately, I believe, that the system 18 18 reflected that someone after mewasin line to else 19 get the work until I filed myclaim, andthen I 19 20 20 think it didn't get awarded. 21 21 Q. Haveyou been back to the East LynnPost 22 22 Office since the time you scopedout with 23 23 Mr. McNabb? 24 24 A. No.
Page94

Q. Okay. Canyou tell me what workis the subject of your claim regardingthe East Lynn building renovation?What'sthe workthat makesup the $32,775that you were proposingto perform? A. My understanding of the work that you're referring to would the final documents by be sent the postal service as to the work that they wanted to havedonebasedon the site visit in the formof a draft workorder. Q. .As I understand you never got such a it, document the postal service, correct? from A. Correct. Q. So can you tell mewhat the $32,775 refers to in termsof the work? A. It reflects, in myopinion, that there were two, probablytwo, workorders, expenseand capital, that totaled this amount wasnot that issued to mycontract basedon the workthat I performedto produce the work. So whateverthey ultimately decided wouldhave cometo mein the form of a legitimate workorder, but whatthey sent me totaled this amount wasnot ih the formof my but impliedcontract. Theydid not send methe result of mywork,whichis, as weread before, to do this
Page 96

1 2 3 4 5 6 7 8 9 10 1l 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. Why.not? A. I believe because if the moneywas committed me, it could still be in the postal to service's files. They could issue itto meat any time, at least up until the -- obviouslythe date of the award expiration date. Q. So you no longer have an Indefinite Quantity Contract with the postal service? A. This particular contract has expired. Q. Just so the record is clear, which one are you referring to now,sir? A. I'm referring to -Q. There's two Indefinite Quantity Contracts. A. This would have been 96-B-98. Q. That's Battaglin Exhibit 48 that we have portions of in front of you, correct? A. Correct. Q. Andthat expired sometime in 1998? A. i don't know.I mean, I really don't know. Maybe. Q. Youdon't recall? A. No. If it was a two-year contract, then it wouldhave expired sometimein '98.

1 work. Q. In fact, all they seht you was Xerox 2 3 copies of the scope of work you and Mr. McNabb 4 developedin the field, correct? 5 A. Yes. Andthat was almost the next day, 6 so it wasjust a courtesy, but I wasstill waiting 7 for the issuance of a workorder. 8 Q. Andwhenit came to you, did it cometo 9 you with any cover letter? 10 A. No. 11 Q. Did it indicate -- did it comein an 12 envelope? 13 A. Oh, yes. 14 Q. Did it indicate whether it camefrom 15 Mr. McNabb personally or just whether it's coming 16 from the postal service7 17 A. It just came-- the particular envelopes 18 that they camein with were the 8 1/2 by 11 size 19 with the typical franked postal, and the return 20 address was South SuburbanDistrict. It's always 21 the basic envelope. Q. Youdon't have copies of those two 22 23 documents that the postal service sent you back in 24 19957 24 (P,qges93 to96)

312.782.d087

800.708.8087

FAX: 312.704,4950

Case 1:98-cv-00868-FMA

RICHARD ANTHONY BATTAGLIN,JUNE I0,2004
Page 97

Document 87-17

Filed 01/14/2005

Page 20 of 32
Page 99

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. At the time, his first namewas Bob, and A. No, 1 don't. MR.PROSEN: Objection, asked and answered. 2 I don't have his nameoff the top of mybead. I'd 3 haveto think about it. BY THE WITNESS: 4 Q. At the time of this site visit with Sam A. I do not. 5 Southern, wasthe postmaster there with you at that BY MS. KIRCHNER: 6 site visit? Q. Did you destroy them? 7 A. Yes. 1 don't recall wherethey went. A. Q. Wouldyou do the same thing as you 8 Q. Wherehave you looked for them? that you 9 described to meearlier with Mr. McNabb, A. I've lookedin ever3, conceivableplace 10 and Sampulled the tape measure and madethe in myoffice during this time frameto look for I 1 measurementstogether? those two documents. 12 A. Yes. Q. Whatis L.P. Consulting claiming with Q. With regard to St. Anne, what were the 13 regard to the St. Anne Post Office in this 14 important things you were measuring? litigation? A. I believe we were doing a lock box lobby 15 A. That I met in the field with the project 16 on the inside and what wewouldcall the typical managerfrom the postal service and I developed 17 package inside. Andon the outside we were sketches and/or a scope of work accomplished in for 18 measuring concrete workfor an accessibility exchange the workitself. for 19 facility in the front andrear. Q. So you went to the St. AnnePost Office? 20 Q. Youmeanhandicap accessible? A. Yes. 21 A. Yes. did Q. When you do this? 22 Q. And do you recall making measurements A. Sitting here, I don'trecall. 23 with regard to a handicap ramp with Sam? Q. Do you have any notes? 24 A. Yes. A. Yes.
Page 98 Page 100

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. So is it fair to say that there weretwo Q. Whatnotes do you have, sir? 2 parts to the site visit, the handicap ramp A. They'rein the -- this document. 3 measurements workassociated with that, and then and Let me go on and ask you some more Q. 4 also lookingat the lock boxfor the lobby? questions before welook at somenotes. 5 A. Yes. When were at the St. AnnePost you Q. Now,other than these measurements that Office, do you recall whether anyonewas with you? 6 7 you took with Sam,whatelse did you do at the time A. Yes. 8 ofthesite visit? Q. Whowas with you? 9 A. Just discussed the project, what wewere A. Sam Southern. i 10 going to do and the scope of workthat wouldbecome Q. Approximately whenwas this? 11 mywork order. A. I have date, but it's not -- it's in the Q. Did you have with you at St. Anneat the 12 this binder. 13 time of this site visit yqurwork formwith your Q. So you don't remember right now? I4 L.P. Consultingstampon it? Did you have a blank A. OFF top of myhead, no. the Q. Now,whydid you go to the St. AnnePost 15 formlikethat? 16 A. Yes. Office? Q. Did Samalso comewith a blank form to 17 A. To receive work. I8 this site visit of this nature -Q. When you were at the St. AnnePost 19 A. No. Office, what did you do there? Q. -- meaning Battaglin Exhibit 53? 20 A. Samand I measuredthe facility inside A. No. and out based on the scope of work developed with 21 do 22 Q. Whatdid you and Sam with regard to the postmaster. 23 the blank formthat youbroughtwith youto the site Q. Which postmaster-- who are you 24 visit at St. Anne? referring to for St. Anne? 25 (Pages97 to 100) ESQUIRE DEPOSITIONSERVICES-CHICAGO 312.782.8087 800.708.8087 FAX:M_.704.4950 532

Case 1:98-cv-00868-FMA

RICHARDANTHONY BATTAGLIN, Page105

Document 87-17

JUNE 10, 2004

Filed 01/14/2005

Page 21 of 32

] 2 3 4 5 6

7
8 9 10 11 12 13 14 15 16 I7 18 19 20 21 22 23 24

Page 1 Exhibit 55 to your deposition, and.let me know when A. I don't recall. 2 you're ready. Q. What happened to that document? 3 A. Okay. MR.PROSEN: Objection, calls for conjecture. 4 Q. Do you ~:ecognize Exhibit 55? BY MS. KIRCHNER: 5 A. Yes. Q. Let me be more specific, sir. You were 6 Q. Now,I would like you to foous on the there with Sam the site visit, correct? at 7 first four pages, okay? A. Yes. 8 A. Uh-huh. Q. And there was a scope of work that was 9 Q. Excuse me, the first five pages. You being prepared, is that correct? see they're numbered through 5 at the top -I 10 A. Correct. 11 A. Yes. Q. What did you do with it at the time of 12 Q. -- with the little circles? the site visit? Focus first on the numberingin the 13 A. Oncethe quantities were filled out, 14 little circles. Is that your numbering, sir? everything was given to Mr. Southern to take back to A. Yes. 15 produce a draft work order for mysignature. Q. So did you number these pages here, 1, 16 Q. And I take it there was only one copy of 17 2, 3, 4, 5 that are at the beginningof this this scope of work; there were not like two copies, 18 exhibit? one for you and one for him, that you together 19 A. Yes. prepared in the field? 20 Q. And wben did you do that? A. As I said before, if the facility had A. I do.n't remember. 21 copyingcapabilities, whichthis one didn't either, 22 Q. Well, did you do it at the time of the to myrecollection, we would makea copy in the 23 site visit? field and I wouldhave it on the spot. Otherwise, iVLR. PROSEN: Objection, asked:and answered. they would take it back and make a copy because they 24 Page106 Page108 1 2 3 4 5 6 7 8 9 10 11 I2 13 14 15 I6 17 18 19 20 21 22 23 24 BY THE WITNESS: A. I don't know. BY MS. KIRCHNER: Q. Youdon't know whether you did it at a later time? A. No, I don't know. Q. Let's just look at the first five pages, okay, and then we'll look at the other pages. Now,if we look at the first five pages, can you tell mewhat portions of the first five pages are your handwriting? A. All of it. Q. So Sam's handwriting is not on this document? A. No. Q. No date? A. No. Q. What work is being described here on the first five pages? A. It looks like a lock box lobby renovation with counter work, IRT work stations, no vending machine, and the basic -- what we wouldcall the basic intorior package, floor tile, newdoors, painting, electric. 27 (Pages 105 to I08) 312.782.8087 800.708.8087 FAX:312.704.4950

1 wanted the originals so that there would be no 2 additions on mypart,, going back to myoffice and 3 slipping in something. It left right from the field 4 in their governmenthands to be produced into a work 5 order. Then they would send it back to me in 6 whatever form it came back. And maybe in a short amount of time 7 8 later, I wouldget a work order, draft work order 9 for myreview so that I would agree with the 10 quantities and time only. And then I would sign it 11 ifI agreed with it, or whatever needed to be done, I2 and I'd send it back. 13 Q. Do you remember for St. Anne whether, in 14 fact, there was the Xeroxcapacity in the field and 15 you got your copy right then? 16 MR. PROSEN:Objection, asked and answered, 17 conjecture. 18 BY THE WITNESS: 19 A. I really don't recall. (WHEREUPON, certain document was a 20 markedBattaglin E,,d~ibit No. 55 for 21 22 identification, as of 6/10/04.) 23 BY MS. KIRCHNER: 24 Q. Please take a look what we marked as

RICHARD Document 87-17 JUNE 10, 01/14/2005 BATTAGLIN, Filed 2004 Case 1:98-cv-00868-FMA ANTHONY
Page 109

Page 22 of 32

Q. Now that you've looked at the first five 2 pages of this, does this refresh your recollection 3 with regard to the site visit to St. Anne that 4 you've told us about? 5 MR.PROSEN: Refresh his recollection is a 6 vague question. 7 BY THE WITNESS: 8 A. All I can say is what we were proposing 9 to do. Wewere proposing to do some lock boxes, 10 workstations. This is, for lack of a better 11 expression, this is a typical boilerplate for doing 12 the work that we were doing. 13 BYMS. KIRCHNER: 14 Q. Okay. Now,you prepared the first five 15 pages, correct? 16 A. Yes. 17 Q. Andyou prepared all of the information 18 on the first five pages, right? 19 A. Yes. 20 Q. Now,at what point did you fill inthe 21 line item numbersand the line items, just this 22 portion and this portion (indicating)? 23 A. This portion here (indicating)? 24 Q. Yes, which is line item number and the
Page 110

MR.PROSEN: Objection, asked and answered. 2 BY THE WITNESS: 3 A. At the time I had these contracts, I 4 would have had this. 5 BY MS. KIRCHNER: 6 Q. How about "Unit Measure," do you see 7 that column? 8 A. Uh-huh. 9 Q. What'sthe purpose of that column? 10 A. Units measurements. 1 Q. For St. Anne, before you went out to 12 St. Anne this site visit, hadyoualready filled for 13 in that columnalso whereit says "Unit Measure"? 14 A. Yes, you would have to. Q. Andbefore you went out for St. Annefor 15 16 the site visit, hadyoualreadyfilled in the unit 17 price column? 18 A. Yes, you would have to. 19 Q. AndI take it the quantity columnwas 20 blank and then extend price was blank before you 21 went the site visit, is that right? to 22 A. Yes. Q. Wqaat you do at the site visit with did 23 24 regard to St. Anneand the quantity column?
Page 112

1 A. I would hold the front end of the tape I substanceof the line. 2 and Mr. Southernwouldtake the final number of end 2 A. When that filled out? was 3 Q. Yes. 3 the tape and tell me'60 linear feet andI would A. Right after I got the contract, I made 4 write it on the workorder. Or in some cases, it 4 5 wouldbe reversed, he wouldhave the workorder and 5 these -- oncewedeterminedwewere going to do the and 6 609 zip code, once Mr. Rigsbysaid we're going to do 6 he wouldwrite the number I'd be on the other 7 end holdingthe front endof the tape. all these facilities in 609, I came with a up 7 Q. I gather that youfilled out this whole 8 standardizedformat so wecan go in the field, come 8 9 one for St. Anne? 9 up with quantities and negotiate the construction 10 A. Onthis particular one, it looks like I 10 time schedule with the postmaster. Andextended 11 did. i 11 price wasn'tan issue becausethe computer the at 12 Q. If wejust take as an example first the 12 post office produces that. 13line, "variousfasteners,selP' -- is that tap? Q. Is this in your standard format? 13 and 14 A. Yes. 14 Referringto the Iine item numbers then the Q. Youhave quantify, I0. How was that 15 15 substanceof the next area whereit says "rough 16 carpentry and finish carpentry" and the items under 16 arrived at? 17 A. Onthis project, I couldn'tsay. 17 that, that's yourstandardformat? 18 Q. Is that a measurement? 18 A. Yes, that's what I wouldhave I9 A. Thafsaquantity, 10each. IfI'm 19 typically -- this is b, pical. On200jobs, did it I 20 readingmywritingcorrectly, there's I0 self tap 20 this way. Q. I take it you had in your office copies 21 fasteners, yeah. 21 Q. If we go downthat wholequantity 22 22 of this formwith the first item number filled in 23 column, all of those entries quantities? are 23 andthen the sabstancefilled in? 24 A. Yes. A. At the thne -24 28 (Pages 109 to [I2) ESQUIREDEPOSITION SERVICES- CHICAGO 312.782.8087 800.708.8087 FAX:312.704.4950

534

Case 1:98-cv-00868-FMA

Document 87-17
Pa~e 113

Filed 01/14/2005

Page 23 of 32
Page 115

RICHARD ANTHONY BATTAGL1N, JUNE 10,2004 1 Q. So they're not measurements,right, 2 2 they're quantities? 3 3 A. They're -4 4 MR. PROSEN: Objection, misconstrues the 5 5 exhibit. 6 6 BY THE WITNESS: 7 7 A. They're measurements, results of 8 8 measurements. Linear feet is a measurement. 9 9 BY MS. IC!RCHNER: 10 0 Q. Wheredo you see one for linear feet in 11 1 this quantity column? 12 12 MR. PROSEN:Objection. 13 13 BY THE WITNESS: A. Well, the third item down, 2 by 4 wood 14 14 15 15 stud, 370linear feet, stud. 16 16 BY MS. KIRCHNER: 17 17 Q. I see that, that's 370 linear feet, 18 18 because the LF is in the unit measure? 19 19 A. Correct. 20 Q. Okay. And what does the EAstand for? 20 21 21 A. Each. SF is square foot. 22 22 Q. So where you have the unit measure and 23 23 you havean EA,each, is it fair to say that that 24 24 quantity is the numberof the various items?
Page 114

A. Yeah. sir? Q. Doyou havethat document, A. Well,it would havebeenthis oneend 1 filled in the number. Q. So you didn't keep a copy of the document got fromthe postal service in the you conditionthat yougot it? A. They madea photocopyand 1 kept the photocopy,whichbecame this original, whichis what you'relookingat. Q. WhatI understandwhat you're telling me, they sent you a copyof the St. Anne scopeof work that did not haveprices in the extendprice column,correct? A. Yeah, it wasn't needed. Q. Youdidn't keep a copyof that without you then putting in the numbers7 didn'(keep You copyof it as it wassent to youby the postal service? A. I had no reason to. Q. So the answeris that you did not keep a copyas it wassent? A. No, I didn't becausethe copy- I did not make copyof whatthey sent me.I used it in a
Page 116

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 I9 20 21 22 23 24

A. Yeah. Q. Now,at the time of the site visit at St. Anne, did you fill in this exteMprice column at the site visit? A. Yes. Q. Howdo you do that? A. I'm sorry, no, I did not fill in the extendedprice. I filled in the quantity. I filled in the extendedprice later. Q. When did you fill in the extended price? A. When had to file my claim so I can get I to an amountso I can makea claim. Q. So you received back from the postal service a copy of the St. Annescope of work that did not have prices in the price column,and then you at this point sometime later put in those prices? A. Correct. Q. Youdid that so you could file your claim, is that correct? A. Correct. Q. So the document that came to you from the postal service for St. Annewas blank in the extend price column, correct?

1 its original format and producedthese numbers. Q. I gather that you did that,, for 2 3 St. Anne, you filled in the numbers-- whendid you 4 fill in those numbers? 5 A. On or about-MR.PROSEN: Asked and answered, objection. 6 7 BY THE WITNESS: 8 A. Onor about the time I filed the claim. 9 It wasrequested by myattorney. 10 BY MS. KIRCHNER: 11 Q. So in 19987 12 A. Yes. 13 Q. So your attorney requestedthat you fill 14 in the extend price column? 15 MR.PROSEN: Objection, privilege. 16 BY THEv~rITNESS: 17 A. Yes. 18 BY MS. KIRCHNER: Q. Now,for St. Anne, nowthat you look at 19 20 this, the first five pagesof Exhibit 55 to your 21 deposition, does that refresh your recollection 22 concerningwhether you and the postmaster talked 23 about the schedule and arrived on any agreed opon 24 schedule for St. Anne? 29 (Pages113 to 116)

ESQUL1KE DEPOSITION SERVICES CHICAGO 312.782.8087800.708.8087FAX:312.704.4950

-

5 3 5 -

Case 1:98-cv-00868-FMA

Document 87-17

Filed 01/14/2005

Page 24 of 32

PageII7 1 A. As I said before, based on our 2 conversations with the postmaster, be went ahead and 3 ordered his equipmentthat was to be postal 4 furnished so that it wouldbe received in a timely 5 fashion in conjunction to whenwe were going to 6 start the work. 7 Q. But did you and the postmaster agree 8 upon any date whenL.P. Consulting would start the 9 work at St. Anne? A. That was not my call. That was between 10 ! 11 Mr. Southern and the postmaster. I bad no 12 conversation onthat. Ila Q. Let's look at the second t~,o pages -[ 14 I~m sorry, the last two pages of Exhibit 55 to your 15 deposition. 16 A. Uh-huh. 17 Q. Do you recognize these pages? 18 A. Yeah. 19 Q. Can you tell us what these two pages 20 are? 21 A. The last two? 22 Q. Right, the last two, the last two pages 23 of the exhibit itself. 24 A. I'm sorry. Page 1g I 1 Q. You're with me now? 2 A. Yes. " 3 Q. You see it has conlract number 94-B-0083 4 and it's crossed out. 5 A. Yes. 6 Q. Do you see that? 7 A. Yes. 8 Q. So we're all together now, can you tell 9 me what those last two pages are? 110 A. Yes. This was apparently intended to be 11 on my94-B-83 contract and it was going to carry 12 over to 96. Andthis is for exterior work, exterior 13 concrete work. 14 Q. Is all the handwriting on these two 15 pages your handwriting? 16 A. Yes. 17 Q. And you say "exterior concrete work." 18 Can you be more specific, sir? A. No. Ifs for concrete. Sidewalk, ramp 19 20 work, that's concrete work. 21 Q. Do you recall how it came about tbat you 22 prepared this document-23 MR. PROSEN: Objection. 2d BY MS. KIRCI-YNER:

Q. -- the two-page document? 2 MR. PROSEN:Ambiguous, objection, vague. 3 BYTHE WITNESS: 4 A. At the same meeting with Mr. Soutbern, 5 we developed this particular scope of work. 6 BY MS. KIRCHNER: 7 Q. And when was that? 8 A. The same visit as the first, when we did 9 the first five pages. 10 Q. Do you recall what year? 11 A. As I said before, it's in this document, 12 the binder. I can give you a date. I3 Q. Okay. So is all of the work set forth 14 in the last two pages of Exhibit 55 work on the 15 exterior of the post office? 16 MR. PROSEN:Objection, asked and answered. 17 BY THE WITNESS: 18 A. Yes. 19 BY MS. KIRCHNER: 20 Q. Do you "know what this handwriting refers 21 to, the handwriting above the "Term Construction 22 Contract Work Order," this handwriting7 23 A. Ifs just some form of a calculation. 24 Q. What sort of calculation? Page 120 1 2 3 4 5 6 7 8 9 I0 11 12 ' 13 14 15 I6 17 18 19 20 121 22 23 24 A. Well, it looks like square footages, 8 by 50, 15 feet ofcarb. So it's somesort of linear foot of calculation or square foot of calculation. Q. That you made? A. Yeah, yeah, that's mywriting. Q. Did youarrive at the site visit with the form for this scope of work, with the two-page scope of work, with the item numbercolumnfilled in, with the description column filled in, the unit measure filled in and the unit price column filled in before youbegin the site visit? A. Yes. Q. How you go about filling in the did quantity column? A. Mr. Southern held one end of the tape and I bold the other, and when calculated it, I we wouldenter it on the quantity colunm. Q. Are all the entries in the quantity column,is ever3, one of those entries a result of a measurement? A. Probably, yes. Q. Doyou see any tbat's not the result of actually makinga measurement with the tape measure? 30 (Pages 117 to 120)

312.782,8087 800.708.8087 FAX: aI_,704.49~0

Case 1:98-cv-00868-FMA
z

Document 87-17
Page121

Filed 01/14/2005
2004

Page 25 of 32

RICHARD ANTHONY BATTAGLIN, JUNE 10,

I 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24

I A. Yes. 2 Q. Whichone. sir? 3 A. The one that says "mininlumcharge for 4 curb removal." It's a lump sumjob and there's another one that says "lump sum," meaning, you know, 5 6 lumpsum. There's two there, it looks like, on that 7 page. 8 Q. Where has file extend price, did you it 9 fill that in at the timeof this site visit? I0 A. No. 11 Q. Did you fill that in later at the time 12 you were preparing your claim with regards to the 13 St. AnnePost Office? 14 A. Yes. 15 Q. So this was in I998 at the request of 16 your attorney? 17 A. Yes. 18 Q