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Case 1:98-cv-00168-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) NORTH STAR ALASKA HOUSING ) CORPORATION, ) ) Plaintiff, ) ) v. ) No. 98-168C ) Judge Francis M. Allegra THE UNITED STATES, ) ) Defendant. ) ____________________________________) PLAINTIFF'S NOTICE OF FILING OF ADDITIONAL DOCUMENTATION IN SUPPORT OF OPPOSITION TO DEFENDANT'S MOTION IN LIMINE Pursuant to the Court's Order of July 29, 2005, Plaintiff hereby submits additional documentation and case citations supporting subject matter jurisdiction of the United States Court of Federal Claims over North Star's claims in litigation. As detailed below, the Contracting Officer ("CO") and Contracting Officer's Representative ("COR") had ample access to documentation that permits calculation of North Star's claims. The CO is based in Anchorage, while the COR is based in Fairbanks and shares open office space of approximately 400 square feet with the Government's 801 Project Manager for Birchwood and other Government Housing office employees. Moreover, internal Government documents show that Housing staff were invited to submit information to the Contracting Officer during the drafting stage of Contracting Officer Decisions ("COD") and to comment on draft CODs prior to finalization. See Exhibit 1. I. Refuse Collection (Count II of the 1998 Complaint) The cost of refuse collection was easily calculable by the Contracting Officer through documents in his possession and/or easily available to him. Accordingly, subject matter jurisdiction over the dispute on refuse collection is proper.

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Refuse collection was an area of dispute between the parties early in the Lease term. On January 7, 1988, then-Contracting Officer Wilber T. Gregory, Jr. issued a Contracting Officer's Decision ("COD") that North Star was responsible for refuse collection. See Exhibit 2. The Contracting Officer identified the amount in dispute as $720,000, or the approximate cost of monthly refuse collection multiplied by the number of months in the Lease term. At issue in the present litigation is whether the parties agreed, when executing the 1995 Settlement Agreement, that refuse collection would be accomplished by North Star in the same manner previously undertaken by the Government -- once weekly. The COD on the frequency of refuse collection, dated January 23, 1998, lists a number of pertinent documents, including the February 8, 1988 Contracting Officer's Decision that identifies the cost of refuse collection. See Exhibit 3. It also lists numerous other pieces of correspondence, not provided by North Star and clearly accessible to the CO. See id. Moreover, then-chief of the Department of Public Works, Colonel Albert Kraus, wrote to North Star on January 10, 1996 that North Star's position that only once weekly refuse collection is required "resulted in an ongoing cost to the government which will exceed $5,000 per month, including administrative costs." See Exhibit 4. II. Depreciation (Count IV of the 1998 Complaint) The Government unilaterally implemented a 10-year depreciation schedule on replacement items. The Court granted summary judgment in North Star's favor on October 4, 2004 on the issue of depreciation, and ordered the parties to attempt to stipulate to damages. Items that the Government depreciated, i.e. carpet and vinyl, are billed in accordance with the List of Repair Costs. See Exhibit 5.1 Under Section C.1(t) of the Lease, the cost for

Because of their voluminous nature, copies of the List of Repair Costs from 1997 through 2004 are not electronically filed, but have been hand delivered to the Court and Government counsel. The List of Repair Cost books submitted to the Court contain the cost to repair a particular item and a billing template for the repair. In the

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repairing unit components in the List of Repair Costs is based on the latest published edition of the Engineered Performance Standards Manuals, which is used to estimate manhour requirements. See Exhibit 6. The manhour requirements are multiplied by the Department of Labor Service Contract Act Wage Determination rate, plus materials at wholesale cost, plus reasonable overhead and profit (which the parties have agreed is 10% and 10% for repairs and replacements accomplished under the Lease). See id. Thus, these lists are updated annually to reflect increases in labor and materials. The Contracting Officer and his representative in Fairbanks have access to each year's List of Repair Costs, and were fully aware of the ten-year depreciation schedule the Government implemented. The depreciation damages are calculated simply by computing the difference between what North Star billed the Government, in accordance with the List of Repair Costs, and the depreciated amount the Government agreed to pay on the work authorizations issued to North Star. Examples are attached hereto as Exhibit 7.2 III. Incentive Fee (Count VII of the 1998 Complaint and the 2002 Complaint) Prior to 1995, the Government awarded maximum (or near-maximum) incentive fee awards. Problems began after the 1995 Settlement Agreement took effect, and the Government deducted $10,000 from the maximum incentive fee award amount for the 1995 calendar year. North Star wrote to the Government to protest this less-than-maximum award, and then-Director
front of each book is a spreadsheet that provides the cost for each repair organized by category (i.e., appliances, building exterior, carpet and vinyl, etc.). Behind the spreadsheet are the individual billing templates organized and tabbed by the same categories. The List of Repair costs is organized in such as way so as to highlight the specific portions the Contracting Officer would refer to in determining amounts claimed. Exhibit 7 is divided into parts (a) through (e). Each part contains a work order North Star submitted to the Government for occupant damage, and the corresponding work authorization issued by the Government where depreciation was applied. Pertinent entries on the work orders are noted with an asterisk, and pertinent entries on the work authorizations are circled. North Star's overall depreciation calculation, based on the difference between what North Star billed and what the Government paid, is attached as Exhibit 4 to North Star's May 5, 2005 Opposition to Defendant's Motion in Limine.
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of Public Works ("DPW"), Colonel Albert Kraus described North Star's letter as "expressing concern that the North Star Alaska Housing Corporation was not awarded the maximum allowable incentive fee for 1995." See Exhibit 8 (emphasis added). In 1999, then-DPW Housing Chief Tom Petersen wrote to then-Contracting Officer Dennis Klein that "NSAHC seems to be attempting to establish a clam that they consider an award of a specific amount each year to be a contractual requirement." See Exhibit 9. The "specific amount" referred to is without a doubt the maximum amount of five percent of the annual maintenance rent provided for under Article VIII of the Lease. See Exhibit 10. In other years when the Government made less-than-maximum or zero incentive fee awards, North Star consistently wrote to the Government in protest. See Exhibit 11. Moreover, North Star's 2002 claim seeks compensation for the diminished value to North Star's property as a result of Government actions that breach the Lease, which includes the failure to even consider incentive fee awards. North Star provided the Contracting Officer with a sum certain for its 2002 claim, thus meeting the jurisdictional requirements. IV. 2003 Complaint Counts The damages associated with Counts I (carpet replacement in Unit 884), II (painting in Unit 704), III (carpet and vinyl replacement in Unit 833), V (corrections to vinyl in Units 1090 and 1111), VI (vinyl replacement in Unit 633), IX (replacement of gutter downspout in Unit 638), X (repainting of Unit 961), XI (replacement of counter and carpet in Unit 961), and XII (cleaning of Birchwood units) are easily calculable based on the billings submitted by North Star to the Government. See Exhibit 12. This documentation is easily accessible by the CO and COR. Notably, the CODs issued for these counts list pertinent correspondence considered by the

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Contracting Officer, which includes documentation respecting each of these units that was not provided by North Star. See Exhibit 13.3 V. Case Citations Requested by the Court The following cases support the proposition that in determining a claim's adequacy in terms of the "sum certain" requirement for claims made to the contracting officer, the Court may take into consideration information that was in the contracting officer's possession (or available to him or her) at the time of the claim, but not attached to or included in the claim itself: Contract Cleaning Maintenance, Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987) GPA-I, LP v. United States, 46 Fed. Cl. 762, 767 (2000) Al Munford, Inc. v. United States, 30 Fed. Cl. 185, 189-90 (1993) Neal & Co. v. United States, 945 F.2d 385, 388-89 (Fed. Cir. 1991) AAI Corp. v. United States, 22 Cl.Ct. 541, 545 (Cl. Ct. 1991)

Dated: August 1, 2005

Respectfully submitted, s/ Paul W. Killian PAUL W. KILLIAN Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Avenue, N.W. Washington, D.C. 20036 (202) 887-4000 (phone) (202) 887-4288 (fax)

The Contracting Officer declined to issue a decision for Count IX (replacement of gutter downspout in Unit 638) and Count XI (replacement of counter and carpet in Unit 961) because they "directly and unavoidably involve allegations pending before the Court of Federal Claims." See Exhibit 14. In its Pretrial Memorandum, Defendant seeks to limit North Star's damages presentation to units for which specific CODs were requested. This position contradicts the position consistently adopted by the Contracting Officer that subsequent claims filed by North Star also "directly and unavoidably involve allegations pending before the Court of Federal Claims." See Exhibit 15.

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CERTIFICATE OF FILING I hereby certify that a true and correct copy of the foregoing Plaintiff's Notice of Filing of Additional Documentation in Support of Opposition to Defendant's Motion in Limine was filed electronically on this 1st day of August 2005.

s/ Paul W. Killian PAUL W. KILLIAN