Free Response to Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:98-cv-00168-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NORTH STAR ALASKA HOUSING CORP., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 98-168C (Judge Allegra)

DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT 1. In a 1999 deposition attended by John Spencer Stewart

as counsel for North Star Alaska Housing Corporation, North Star's president, Richard Fischer, when asked to identify the Government representatives who North Star alleged in its complaint had indicated that once-weekly refuse collection was satisfactory, identified only a Colonel Brown. Appendix ("Def. App.") 28, Tr. 71-73.1 Defendant's

Mr. Fischer failed to

identify any other Government representatives who allegedly had indicated that once-weekly refuse collection was satisfactory. Def. App. 28, Tr. 71-73. Although Mr. Fischer, in Mr. Stewart's

presence, stated that he could not recall who else had made such statements and promised to "furnish in addition that other information to you through counsel," he did not supplement his answer with any contention that Government counsel Donald E. Kinner had made such a representation to Mr. Stewart during the 1999 settlement negotiations - nor did Mr. Stewart, at the time,

Appended to Defendant's Response To Plaintiff's Motion For Summary Judgment.

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offer such a contention, even though he interjected responses on behalf of the witness frequently during the deposition, as evidenced in that exchange with his offering the name "Brown." Def. App. 28, Tr. 72. 2. Mr. Stewart failed to raise, in a January 1996 letter

to Mr. Kinner, any contention that Mr. Kinner ever indicated that once-weekly refuse collection was satisfactory, even though that letter referenced the 1995 settlement negotiations. Def. App. 1.

Rather, without contending that the Army had taken any position contrary to the 1995 settlement, Mr. Stewart assured Mr. Kinner that "Mr. Fischer has advised the Government that North Star Alaska Housing Corporation will handle the refuse collection consistent with the demands (unreasonable we believe) of the Government." 3. Def. App. 1.

The statement in a November 1995 memorandum of Karen

Goodrich that "[a]n out-of-court settlement was reached to allow the contractor to decrease pick-up from twice a week to once a week" was based upon the representation of a North Star plant manager. Def. App. 26 ¶¶ 3-4. Ms. Goodrich did not participate

in the 1995 settlement discussions, and executed the November 1999 memorandum without having first reviewed the 1995 settlement agreement. Def. App. 26 ¶ 4.

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4.

The controversy between North Star and the Army

regarding "downtime arose before the 1995 settlement of Case No. Case 93-88C (Fed. Cl.). 5. Def. App. 12.

Although the Army's downtime calculations occasionally

diverged from the calculation provided in the lease with respect to individual units as a matter of administrative discretion rather than a reflection of contract interpretation, the Army never calculated downtime "consecutively" or "collectively." Def. App. 4 ¶ 3; 6-7 ¶ 4; 15-16 ¶¶ 2-3; 20-21 ¶ 6. 6. The Government may direct replacement of carpet when it The lease's

determines that it has lost a pleasing appearance.

standard for maintenance of structures, which applies also to carpeting, requires that "[t]he level of maintenance shall assure all structures are free of missing components or defects which would affect the safety, pleasing appearance or habitability of the units . . . ." (b)(6). 7. Page 27 of the Maintenance Narrative in North Star's Pl. App. 39 ¶ E (emphasis added), 41 ¶

Best and Final Offer proposed "Plans for Repair or Replacement of Major Components" for an expected life of 7 years for carpet to be "Replaced as needed but at least twice during the initial lease term." 8. Def. App. 34.

In his deposition, Mr. Richard Fischer testified: Q. Do you recognize this? -3-

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A. Q.

Yes. What is this?

A. I think it's from Exhibit C. No, I'm sorry, it's not. I believe it's from our proposal. Q. Indeed. Yes. And it's entitled plans for repair or replacement of major components. Is that a title that you employed in the proposal, or did that come from the solicitation, do you recall? A. I don't recall.

Q. If you will look down through the list, specifically under appliances, actually, a little past halfway down that list, it identifies carpet. Do you see that? A. Yes.

Q. Okay. And next to that, it states that the expected life is seven years. And with the following sentence, replaced as needed, but at least twice during initial lease term. What was the initial lease term? A. 19 and a half years.

Q. Do you think the government had a right to rely upon the information provided in this portion of the proposal? A. I think they had a right to rely upon the proposal in general. Q. A. All right. In total.

Def. App. 29, Tr. 126-27.

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9.

Mr. Fischer testified in his deposition, that the word

"indefinite," as Mr. Migliore used the word in connection with carpet useful life, does not mean forever and that carpet may need to be repaired or replaced: Q. But by that standard, then, a carpet will never, ever be subjected to fair wear and tear that would require any maintenance at all. A. Oh, I don't think that's true. MR. STEWART: maintenance. THE WITNESS: I don't think you meant No. Is

BY MR. KINNER: Q. Well, what would it need, cleaning? that the maintenance?

A. Oh, it may need cleaning, it may need repairs, eventually it may need to be replaced. Q. Well, why would it ever need to be replaced? A. Because the life is indefinite. It doesn't mean it's long, doesn't mean it's short. It's just indefinite. Def. App. 30-31, Tr. 139-40. 10. The Army's incentive fees decisions were linked to

North Star's performance; including performance unrelated to refuse collection and "downtime" issues. 11. Def. App. 22-24 ¶¶ 10,

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11.

North Star was informed of an incentive award for 1998 Exhibit 22 to Mar. 6, 2004 Affidavit of Richard W.

in May 1999. Fischer.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General S/DAVID M. COHEN DAVID M. COHEN Director

OF COUNSEL WILLIAM. M. EDWARDS Assistant District Counsel United States Army Corps of Engineers Alaska District

S/DONALD E. KINNER DONALD E. KINNER Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 305-7561 Facsimile: (202) 305-7644 Attorneys for Defendant

June 18, 2004

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Certificate of Filing I hereby certify that on June 18, 2004, a copy of the foregoing Defendant's Proposed Findings Of Uncontroverted Fact was filed electronically. I understand that notice of this

filing will be sent to all parties by operation of the Court's electronic filing system. the Court's system. Parties may access this filing through

S/DONALD E. KINNER