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

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A.M. Fernandez & Associates
Engineers 826 Lincoln Lane, LaC_rrange I-fighlands, IL 60525 (708) 579-5191 September 20,1996 Mr. Samuel W. Southern Project Manager UnitedStates Post Office AdministrativeServices Division 680i W. 73rd Street BedfordPark, lllinois 60499-9991 Re: USPS-Hoopeston, IL. Handicapped Rzmp, Constnaction Cost Estimate

Dear Mr. Southern, Pleaze find belowa s~mmaz-y estimated costs associated with the constnJcfion of a of handicappedrampat the above mentionedfacility. Should you have any questions regarding this estimate, please fe~l free to contact meat your earliest convenience. Our projected costs are as follows: Activity General Conditions Demolition Excavation Concrete M~sonry and or Limestone Handrails Aluminum, Glass & Glazing Plumbing Landscaping and $: $ A

Overhead Profit $96,600.1~

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Offer andAward Simplifled-P~onstruction
~ INSTALLATION

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OF

KANDIC~

~p

161550-96-B-Sq&6 CENTPJ%L ILLINOIS 6801 W 73RD ST BEDFORD PARK IL 60499-9991

161550-97-A-0074

~ J48297

SAMUEL

SOUTHERN

(708) 563 - 7214 in. c~ ~: RICK ¢. T~-~ N~c 847-882-7770 d. "r~: 36-3580368

.

2500 W HIGGINS RD SUITE #315 HOFFMAN ESTATES, IL 60195-2043

See Section C

PJ~:

HOOPESTON, IL MJ~IN OFFICE

ULBRICH ASSOCIATES, INC GENERAL CONTRACTOR~ WILL FURNISH THE NECESSARy LABOR, HJ~TERIA~S, AND EQUIPMENT TO PROVIDE THE GENERAL CONSTRUCTION WORK FOR THE HANDICAP RA~p TO BE LOCATED AT THE U.S.P.S FACILITY IN HOOFESTON, IL IN ACCORDANCE WITH: THE RAMP pLAN DATED 8/15/96, AS PKEPA/LED BY A.M. FERNANDEZ & ~.SSOCIATES INCLUDING ZNSPECTIQN OF THE FACILITY FOR THE SUM OF $85,000.00. THE SCOPE OF WORK INCLUDES DEMOLITION, CONCRETE, EXCAVATION, BACKFILL, MASONRY, HANDRAILS AND LANDSCAPING.

TOTAL:

$ 85,000.00 Days 160

in w0~s EIGHTY FIVE THOUSAND DOLLAR~ A]CD NO CENTS.

Pedormance Time in Calendar

Section G: FB-243 Section G: FB-259 Section K: OA-12 OB-21 Section H: 10-6 Section H: 7-4

Section K: OA-5

Section E:

BETTY L CHF-ARS CENTRAE, ILL. DISTRICT 6801 W 73KD ST BEDFORD

ROBERT

A RIGSBY

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G.3 G.4

G.7

G.10 G,11 Gd2

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Faclltt/esDepartmer~

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UNITED ST/~TES ~.~POSTALSERVlCE.

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Facilities Department
Contracting Officer upon removal the itemsor, if the itemsare of stored,within45 days after submission the list. of After termination,the Contractor mustsubmitto the Contracting Officer a termination claimin the formand with the certification prescribed the Contracting by Officer. Theclaim mustbe submitted promptly, in no eventmore but than oneyearafter the effective date of termination,unlessanextension wdting granted the in is by Contracting Officer. However, the Contracting if Officer determines that the facts justify such action, anytermination claimmay be receivedandacteduponat any time after the one-year pedod. Upon failure of the Contractor submit termination to a claimwithin the timeallowed,the Contracting Officer may determine, the on basisof the information available,the amount, any, duethe if Contractor reason the termination will pay that amount. by of and e. If the Contractor the Contracting and Officer fail to agree the on amount bepaid to the Contractor reason the termination, to by of the Contracting Officer will determine amount, any, duethe the if Contractor pay the Contractor contractprice for comp]etad and the andaccepted suppliesor servicesnot previouslypaidfor (adjusted for anysaving freight and of other charges) with respect all and, to other contractworkperformed beforethe effective date of termination, total of." the 1, The cost of such work; 2. Thecost of settling andpaying claimsarising out of the terminafionof workunder subcontracts;and determ[ned the Contracting by Officer 3. A profit on (e.1) above, to befair andreasonable; if it appears the Contractor but that wouldhavesustained loss on the entire contract hadit been a completad, profit will beincluded,andan appropriate no adjustment will be made reducingthe amount the settlement of to reflect the indicated of loss. rate f. Thetotal sum be paid to the Contractormay exceed total to not the contract pdceas reduced the payments by made as further and reduced the contractprice of worknot terminated. by Except for normal spoilage,andexceptto the extent that the PostalService expressly assumed risk of loss, there will beexcluded the fromthe amounts payable the Contractorunderparagraph above,the to (e) fair value,as determined the Contracting by Officer, of property destroyed, lost, stolen, or damaged as to become so undeliverable to the PostalService,or to a buyer. g. Anydetermination costs will be governed the cost principles of by set forth in chapter5 of the USPS Procurement Manual effect on in the effective dateof termination. h. The Contractorhas the dght of reviewunderthe Claimsand Disputes clauseof any determination made the Contracting by Officer under paragraph or (e) above, (d) except that, if Contractor failed to submit termination has its claimwithin the time provided paragraph above has tailed to request in (d) and extension time, there may no dght of review. of be In arriving at the amount the Contractor.there mustbe due deducted 1. All unliquidatedadvance other payments the Contractor or to applicable the terminated to portion of this contract; 2. 3. Anyclaim that the Postal Servicemay haveagainstthe Contractor underthis contract; and Theagreed price for or the proceeds sale of materials, of supplies,or other thingskeptby the Contractor sold andnot or recovered or creditedto the PostalService. by

H.5 a.

Termination For Convenience (ClauseB-11) (October1987) Performance underthis contract may terminatedby the Postal be Service whole in part whenever Contracting in or the Officer determines termination in the interest of the PostalService.A that is termination be effectadby delivery to the Contractor a notice may of of terminationspecifying extent of work the terminated, the and effective dateof the termination.

b. Upon receipt of a notice of termination, unlessotherwise directed by the Contracting Officer, the Contractor must take the following actions: 1. Stopworkto the extent specified in the notice, 2. Placeno further ordersor subcontracts materials,services, for or facilities except may necessary completion the as be for of unterminated work. 3. Terminate ordersandsubcontracts the extent that they all to relate to the workterminated. 4. Assign the PostalService,as directedby the Contracting to Officer, all dght,rifle, and interest of the Contractor under the orders andsubcontracts terminated.ThePostal Servicehas the dght,in its discretion,to settle or payclaims adsing of out theseterminations. 5. Settle all outstanding liabilities and claimsadsing of the out terminationof ordersandsubcontracts, with the approval or ratification of the Contracting Officer. TheContracting Officer's decision final for the purposes this clause. is of 6. Transfer title to the PostalService deliver as directedby and the Contracting Officer (a) Work process,completed in work, andother matafial produced a part of or acquired the workterminated; as for and (b) Thecompletad partially completed or plans, drawings, information, other property and that, if the contracthad beencompleted, wouldhavebeenfurnishedto the Postal Service, Use bestefforts to sell as directedby the Contracting its Officer anypropertyof the typesreferred to in subparagraph (b.6) above, providedthat the Contractor acquireproperty may underthe conditions prescribedandat pdcesapproved the by Contracting Officer, andthe proceeds any such of transfer will be applied in reductionof any payments be made the to by PostalService the Contractor,or be creditedto the pdce to or cost of the workcovered this contract, or be paidin any by manner directed by the Contracting Officer.

7.

8. Complete performance the worknot terminated. of 9. Take action that may necessary, that the Contracting any be or Officer may direct, for protectingandpreserving property any relatedto this contractthat is in the possession the of Contractorandin whichthe Postal Servicehasor may acquire aninterest. c. At anytime, the Contractor submitto the Contracting may Officer a list, certified as to quantity quality, of termination and inventory, net previously disposed andmay of requestthe Postal Serviceta remove inventor~"items or enter into a storageagreement covedng them.Notlater than 15daysafter receivingthis request,the Postal Service will accept title to the itemsandremove or enter into a them storage agreement. list will besubjectto verification by the The

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~

POST/~LSERVICE.
If the termination partial, the Contractor file with the is must Contracting Officer a requestin wdting anequitableadjustment for of the pdce specified[n the contract relating to the continued portion of the contract. ThePostalServicemay,underthe termsandconditionsit prescribes, make partial payments payments accountin and on connection with the terminated portion of this contractwhenever aggregate thesepayments within the amount whichthe of is to Contractor entitled. is

UNITED ST/JTES

Facilities Department
terminated podion this contract. Upon of direction of the Contracting Officer, the Contractor mustalso protect endpreserve property its in possession whichthe PostalServicehasan interest. in ThePostalService will paythe contractprice for completed items delivered andaccepted. Contractor Contracting The and Officer may agreeon the amount payment items delivered and of for accepted underparagraph above the protection and (e) for preservation the properly.Failureto agree of will bea disputeunder the ClaimsandDisputesclause, ThePostal Servicemay withhold fromtheseamounts sum Contracting any the Officer determines to benecessary protect the Postal Serviceagainstloss because to of outstanding claims. g. If, after termination, is determined the Contractor not in it that was default, or that the delaywas excusabts, dghtsandobligations the of the partieswill bethe same if the termination been as had issued for convenience. of this clauseare h, Thedghtsandremedies the Postal Serviceunder in addition to anyother rights andremedies provided law or by under this contract. Change-OrderAccounting (ClauseB-21) (Octobert987) TheContractingOfficer mayrequire change-order accounting whenever the estimated cost of a change sedes related changes or of exceeds $100,000. Contractor,for eachchange sedes related changes, The or of mustmaintain separate accounts, job order or other suitable by accounting procedure, all incurredsegregabta, of direct costs(less allocable credits) of work,both changed not changed, and allocable to the change. Contractor The witi maintain suchaccounts until the parties agreeto an equitableadjustment the changes for ordered the by Contracting Officer or the matteris finally disposed in accordance of with the ClaimsandDisputes clause. H.8 Advertising Of Contract Awards (ClauseB-25) (June 1988) Except the Contracting with Officer's prior approval, Contractor the agrees to refer in its commercial not advertising the fact that itwas to awarded Postal Service a contract or to imply in anymanner the that PostalService endorses products. its Below A~olicableIf ContractExceeds $25,000 H.9 Additional BondSecurity (Clause7-2) (October1987)

Unless otherwise provided this contract, or by statute, the in Contractor, a pedod three yearsafter final settlement, for of must preserve make and available to the PostalServiceat all reasonable timesat the Contractor's office, all books,records,documents, and other evidence bearingon the costs andexpenses the Contractor of under this contractandrelating to the workterminated. the If ContractingOfficer approves, photographs, microphotographs, or other authenticreproductions be maintained may insteadof the originals. H.6 TerminationFor Default (Clause B-13) (October1987) ThePostalServicemay,subject to paragraphs and(d) (c) below,by wdttennoticeof default to the Contractor, terminate this contract whole in pad:if the Contractor to: in or fails (a) Complete requirements this contractwithin the time the of specifiedin the contractor anyextension; (b) Make progress, so as not to endanger performance this of contract(but seeparagraph below); (d) (c) Perform of the other provisionsof this contract(but any see subparagraph following). (a.2) ThePostalService'sright to terminate this contractunder 2. a.l(b) and(c) above be exercisedif the Contractor may not curethe tailura withinten days more authorized (or if in wdting the Contracting by Officer) after receipt of the notice fromthe Contracting Officer specifying failure. the If the Postal Service terminates contract whota in part, [t this in or may acquiresimilar suppliesor servicesor complete work, and the the Contractor witi beliable to the PostalService anyexcess for costs. However, Contractormustcontinuethe worknot the terminated. Except detaultsof subcontractors anytier, the Contractor for at is not liable for anyexcess costsif the failure to perform contract the arises fromcauses beyond control andwithoutthe fault or the negligence the Contractor. of ~f the failure to perform caused the default of a subcontractor is by at anytier, andif the cause the defaultis beyond controlof of the both the Contractor subcontractor, withoutthe fault or and and negligence either, the Contractor not liable for anyexcess of ts costsfor failure to perform, unlessthe subcontracted supplies or serviceswere obtainable fromother sources sufficient Itme for the in Contractor meet requireddelivery schedule. to the If this contractis terminated default, the PostalService for may requirethe Contractor transfertitle anddeliverto the Postal to Service,as directedby the Contracting Officer, any completed supplies,partially completed supplies,and materials,parts, tools, dies, jigs, fixtures, plans,drawings, information, contractdghts and that the Contractor specifically produced acquired the has or for 1.

if anysuretyfurnishinga bond connection this contractbecomes in with unacceptable the PostalService fails to furnishreportsonits to or financial condition requested the Contracting as by Officer, or if the contractprice increases the point where secudb/furnished to the becomes inadequate the Contracting in Officer's opinion, the Contractor must promptly furnish additionalsecurityas required protect the to interests of the PostalService of persons and supplying labor or matedats performance this contract. in of H.10 Insurance (Clause7-4) (June 1988) a. Duringthe termof this contractandanyextension, Contractor the mustmaintain its own at expense insurance the requiredby this clause. Insurance companies be acceptable the Postal must ts Ser,;ice. Policiesmust includeall termsandprovisions r~quired by the PostalService,

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~

UNITED POST,'~LSERVICE

August 7, 1997

ULBRICH & ASSOCIATESINC 2500 West Higgins Suite 315 Hoffman Estates IL 60195-5220 REF: HOOPESTON HANDICAP RAMP CONTRACT #161550-96-B-5146 Dear Mr. Ulbdch: This is a follow-up to our telephone conversation on August 7, 1997 notifying you that a formal protest has beenfiled by L. P. Consultin9 GroupInc. on the awardof the referenced contract. As discussed, this further confirms your agreementto stop all progress of work, such as mobilization of work forces, mater~al or equipment orders, contracts, planning and subcontracting on this project at ne cost/compensationto you from the Postal Service for delays incurred. You will be notified promptly, once a decision has been rendered, pending the reviewof pe~nerrtfacts in this matter. Sincerely,

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August12,1997

ULBRICH & ASSOCIATESINC 2500 West Higgins Suite 315 Hof~man Estates IL 60195-2500 REF: HOOPESTON HANDICAP RAMP CO NTRACT 161550-96-B-5146 #

DearMr. Ulbrich: This is to inform you that the U.S. Postal Service LawDepartment,in Chicago, Illinois has reviewed the contents of the protest on the referenced facility and has agreed with the CO'sf) request to allow Ulbdc.h & Associates Inc. to proceedwith the construction of the handicap ramp. It is understoodthat there will be no additional cost to the Postal Service for whatever delays tha(~have occurred. The present terms and conditions of the contract issued on July 25, 199-7"are still in effect. Please set you work schedule accordingly to avoid any further delays. Sincerely,

Law Department Car)' L. Katznetson,Senior Attorney

6~01 V~ST 73m STREET ~F.DFORD PARK 70~-563-7200 FAX708~5~3-72o4

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August 22, 1997 CERTIFIEDZ 256 997 003 RETURN RECEIPT

JamesT. Rohlfing Attorney at Law Patzik Frank & SamotnyLtd 150 South WackerDrive Suite 900 Chicago IL 60606-4102 Dear Mr. Rohlfing: I have received your request for the contract documents under the FOIAas stated in your letter dated July 25, 1997. You are required to makean advance payment of $4,235.47 to the United States Postal Service for all fees and services. The fees are basedon expenditures that will actually be incurred by the USPS searching, reviewing and duplicating documents.In addition, you for will be chargedthe basic rate of pay for the employee(s) whowill be performing the work, plus benefits and the cost of operating duplicating machinery. You will be required to make an advance payment in the full amount estimated before the USPScommences work on any request. Youa(e offered an opportunity to confer with meto reformulate your request, basedon your needs,at a lower cost. ~'e~'~-~'f~-{ Certified Mail N o ip~j rar¢~C4:~verager ovid ed. 08/22 P Sincerely, ~ ~ ~ {~ ~nte~ ~ (See ~me)
~~mes ~~~ Rohlfin~ Frank & Arty Samotn',

~ Contractln_

0 ,!er~

co: Cary L. Kat:z:nelson, Senior Attorney

~
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29 May 1997 Mr. Bob Ri~zby, Manager U.$.P.S. Adm~n.Su~vices 0801 W. 73rd St.

subject : I.O.C. ScopingVisits ¯ Mr. Rigsby ; As we discussed per telecon the f~lk~wi~y ~re f~'~ilities we scopea wt~ USP$ petsonet and a draft work order w / sketch lurnisl'~d f~r uonlrec~ issuance, ~/Hoopeston;)nterior remodeling anti exterior concrete an~J landsc.apin~. Momer~¢~; ~terior ~em~e~ngand e~erlor c~crete and landscaping. $k ~ne ; ~nterior rem~el[ng ~n~ exterior ~ncrete East L~n ; intedor rem~eling =nd e~erlor ~crete and lands~ping. Go.wine ; ~terior remode~nga~ e~er~r ~ncrete and lanascaping. ( no toilet) Cla~ony~le ; interior remodling and e~er~r concrete. ( no yeron~ ; interior rem~ling ~d e~erior concrete. C~her sites visited by ~our rec~ue~t: 009 sites yi~itud ; Aroma Pk., GibsonClty~ Papineau,Seaverville, UnionHill, Bracliey. Varlo~Js ;.Wilmington, GrandRiQge, Blackston~, Leono;¢, I~=s~opHill, Lee, OePue, Peru. ¯ As we continue to monitor the ~bove re,lilies, as well ~s others w.e have su~e~ to you work orders, we awe, it notk;e of our piece in ~hls process. Thank you in advancefor your cooperation. Feel free to contact us al 708-599-9407.

V' P resl.de~t

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June 4,1997 L P CONSULTING 10401 S 75TH AVE PALOS HILLS IL 60465-2015 Mr. RichardBattaglin: This is in responseto your memo dated May29, 1£97, regarding I. Q. C. Scoping Visits. Pleasebe advisedthat you will be given consideration for these offices, as well as others, whenthe USPS determines your services are needed. The USPS is not obligated to awardwork orders/contracts basedon a contractors previous visit or scopeof work. As you are aware, design drawingsare being producedfor all facilities to insure compliancewith USPS renovation requirements. This includes the 21 facilities you listed in your memo whichare listed below: 1. Hoopeston* 2. Momence 3. St. Anne 4. East Lynn 5. Goodwine 6. Claytonville 7. Verona
*]'-Ioopesto~'l

8. AromaPark 9. GibsonCity 10.Papineau 11. Beaverville 12.UnionHill 13. Bradley 14.Wilmington

15.Grand Ridge 16.Blackstone 17.Leonore 18.BishopHill 19.Lee 20.DePue 21 .Peru

handicapped

ramp has been awarded.

Nosite visits will be permitted underan_0_y_circumstances unlessdirected by the Contracting Officer through the USPS project manager.This includes sending subcontractors to sites to do pro m.inary surveys without an issued work order/contract. Again, this means unauthorizedvisits will be made postal facilities no to contractors. Your full cooperationin this matter is appreciated by

S. Southern L Gunlogson J. McNabb
DELIVERING EXCELLF-NCE-.EVERY STEP OF THE WA Y7

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October 1, 1997 P.S. Protest No. 97-25

L.P.

CONSULTING GROUP, LTD.

Solicitation No. 16t550:97-A-0074

DIGEST

Protestagainstaward conic-actfor construc~on a handicap is disof of ramp missed; protest was untimelyreceivedmore than three months after contracting officer advised that protester's late proposal the workwould be for not considered.

DECISION: L.P. Consulting Group, Ltd. (Consulting)protests a~ard a contractfor the construcof tion ot= a ramp thehandicapped Postal for at the Seri/icet=aci]i~7in Hoopeston, Illinois. OnAugust 1996,in response an oral request!from contracting 12, to the officer, the Architect/Engineer firm of A. M. Fernandez Associates,whichheld a BasicA/EInand definite QuantityContract with the PostalService,i wrotethe contractingofficer confirming that it would determir~e best locationfor an accessibility ramp, the prepare design drawings, obtain at least three estimates and fromprospective contractors ento able the contractingofficer to award contractfor. the construction a ramp the a of at Hoopeston postal facilit~ by September Fourtimely offers werereceivedby the 4. PostalService,andon Septemberand6, an a~tingcontracttechniciansolicited best 5 and final offers which ranged between $85,000.and $97,854. Consulting wasnot among firms solicitedfor the project. the For reasonswhichthe record doesnot explain, no immediate action was. taken on these offers, in late April 1997, Battaglinof Consulting Mr. visited the contracting officer andsawa drawing the Hoopeston w. hi'ch the contractingofficer permitted of ramp

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him to take, admonishing however, him, that it wastoo late to proposeon the project. Notwithstanding that admonition, on May19, Consulting submitted a proposal in the amount $62,752to the contracting officer. Consultingwasagain told that its offer of wastoo late. By letter dated May28, 1997, the low offeror, UIbrich andAssociates, wasadvised of ~ for the Postal Service's intention to awardto it COntractNo. 161550-96-B-5146 the 23 Hoopeston handicapramp. Thecontract was signed on July 25. In a letter to the "Chief Field General Counselor [sic]," Chicago, datedJ,',ly 25, and IL, received in this office on August19, Consulting, through counsel, protested the contracting officer's refusal to consider Consulting's proposalto performthe work at the Hoopeston facility, contending that Consultinghad not beentreated fairly and that the Postal Service wasnot obtaining the best value. Theprotest letter also raised collateral issues concerning the contracting officer andthe administration of an indefinite quantity contract held by Consulting,anda Freedom information request, all of which of are outside the scopeof bid protest procedure. DISCUSSION Althoughthe issue of timeliness has not beenraised by any party to this proceeding, wemaydo so sua spontebecause failure to file a timely protest in accordance the with our regLilafions constitutes a jurisdictional defect whichrequires that the protest be dismissed. SeeHolmes Construction Co., Inc., P.S. Protest No. 92-02, February25, ~1992, and decisions cited therein. PurchasingManual(PM) 3.6.4.d requires that protest be receivednot later than ten daysafter the basis of protest is known should or havebeenknown.Thecontracting officer advised Consultingboth in April and on May 19 that its proposalwouldnot be accepted.That adviceestablished the basis for Consulting's protest and beganthe time period within whicha protest could be lodged. Ibid. Consulting'sprotest, receivedthree months after it knew the basis for its proof test, is clearly untimely.

~Thiscontractnumber been had manually assigned fiscal lgg&When contractdocument in the was generated fiscal 1997. system generated assigned 1997 In the also and the solicitation number which appears thecaption. in =Suchletter transmits proposed a the contract theprospective to contractor recftesthePostal and Service's intention award contract therecatpt to the upon wltNna specified of a signed of thecontime copy tract andthe required payment performance and bonds, Procurement 11.5.1,a Manual ~The delay between 28and 25is alsonote~plained this record. May July on

Page 2

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