Free Response to Motion - District Court of Federal Claims - federal

Case 1:98-cv-00168-FMA

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APPENDIX

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INDEX

TO APPENDIX

Letter

to Donald January 12, of of

Kinner 1996 G. Mae

from

John

Spencer

Stewart

.......

1

Affidavit Affidavit Letter for August

Rodney willie

Everett Harrell from Suzanne Harrison .....

Housing Department 17, 1995 of of of Connie Thomas Karen W. J.

Affidavit Affidavit Affidavit Deposition July Letter

Kiser

................ ................ ................. ............. .

15 18 25 27

Petersen Goodrich Fischer

of Richard 21, 1999

to Roy December

S. Carlson, 16, 1995 Repair and FW-0019003 or

Jr.

from

Fred

Frink

........

32

Maintenance, ProPOsal Plans for

Operational

Services

........

33

Repair

Replacement

of

Major

Components

.....

34

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STEWART SOKOL & GRAY

Januaz~

12, 1996

By Fax (202) 514-7965 Orioinal by Mail Donald E. Kinner, Attorney U.S. Department of Justice civil Division Commercial Litigation Branch A~tn: Classification Unit 2nd Floor, Todd Building 550 l~.th Street, N.W. Washington, D.C. 20530 Re: North Star Alaska Housing Corp. v. The United States - UoS. Court of Federal Claims No. 93-88C Our File No. 4222-9161

Dear Don: While the Federal Government has been "paralyzed," Dick Fischer and I have resolved the refuse collection issue raised by your client. Mr. Fischer has advised the Government that North Star Alaska Housing Corporation will handle the refuse collection consistent ~ith the demands (unreasonable we believe) of the Government. I am disappointed however that, notwithstanding Mr. Fischer's efforts ~o be a "good partner," the Government has decided ~o penalize North Star with respect to the amount of incentive ewaz~d fee to which North Star is entitled for the calendar year 1995. Don, I was very pleased that you and I were ~ble to work through a long series uf long outstanding claims and settle those claims in 1995. We were both disappointed that the refuse collection matter was somewhat more challenging to resolve than anticipated. That challenge has been effectively dealt with. It would seem to me that in the interest of equity and fairness the Government should reconsider the issue of incentive awards, given the extraordinary efforts of Mr. Fischer over the past many years with respect to this project.

I

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Donald E. Ki~er, Fage 2 January 12, 1996

A~norney

I would

appreciate

your

personal

inUervention yours, & GRAY,

~o that

end.

Very truly STEWART

SOKOL

L.L.C.

:HN SPEN;:2.; STE~...RT
John JSS : kag bc: Mr~ Richard Spencer Stewart W. Fischer (By Fax and Mail)

STEWARTSOKOL & [;RAY

2

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NORTH STAR ALASKA HOUSING CORPORATION Plaintiff,
Vo

No. 98-168C (Judge Allegra)

THE UNITED STATES Defendant

DECLARATION OF RODNEY G. EVE~TT 1. I, Rodney Everett, amthe Contracting Officer's Representative for the Corpsof G. Engineers-managed housing for Ft. WainwrightAlaska and makethis Affidavit in 801 support of Defendant's opposition to the Plaintiff's Motionfor Summary Judgment.I

have served in this position from February 1999 through the present. I amone of the custodians of the recm'dsfor the Department the Army records relating to of for Birchwood Estates, flae property that is the subject of the above-styledlitigation, located on Ft. Wainwright,Alaska.

2. I bave reviewedthe 2"a Amended Complaintin the above-styled action. In Count III, Turnaround Timefor Units as a Result of Change Occupancy, Plaintiff asserts that of the the pro'ties engagedin years of conductof using a consecutivecalculation for determining allowable downtime units turned over to the Plaintiff for changeof occupancy for maintenance.

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Case 1:98-cv-00168-FMA Declaration Rodney Everett of G. No. 98-168C

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3. In myover five yem'sof experience dealing with the Plaintiff and as a custodian of records, I have never encountereda single instance of the Govermnent calculating allowable downtime a group of traits turned over simultaneouslyby rumling the time for consecutivelyand allowing all units to be returned at the end of the consecutiveperiod. We have alwayscalculated the stmqt time in accordancewith the contract, that is, by begi~ming time whenthe unit is madeavailable to the Plaintiff and ending whenthe the Govermnent, writing, accepts the sameunit. in

I declare under penalty of perjury that the foregoingis true and correct. Executed this ~_ day of May 2004.

RODNE¥ G. EVERETT Contracting Of~cer's Representative U.S. Army,Corps of Engineers Alaska Dis~ict

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IN ~ UNITED STATES COURT OF FEDERAL CLAIMS NORT]~ STAR ALASKA HOUSING CORPORATION Plaintiff,
Vo

No. 98-168C (Judge Allegra)

TI~ UNITED STATES Defendant

DECLARATION OF WILLIE MAE ItARRELL 1. I, Willie MaeHarrell, amthe Division HousingChief for Ft. Wainwright Alaska. I have served in that position from 1999to the present. Prior to serving as the Division HousingChiefI served as the Chief of Housing. I have workedfor the housing departmentsince 1977and have participated in the administration of the Birchwood Property since the property wasfirst occupiedin 1987. I makethis Affidavit in support of Defendant's Opposition to the Plaintiff's Motion for Summary Judgment. I amone

of the custodians of the records for the Department the Army records relating to of for Birchwood Estates, the property that is the subject of the above-styledlitigation, located on Ft. Wainwright,Alaska.

2. I have reviewed the affidavit of Richard Fischer dated March16, 2003. Paragraph11 of Mr. Fischer's affidavit states, "The Government awardeda $56,943.50incentive fee to North Star for its performance in 1995. This amountis $10,675.15 below the maximum award[potential] for that year. Attached as Exhibit 12 is a memo from Colonel Kraus to

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Case 1:98-cv-00168-FMA Declaration WillieMae of Harrell No. 98-168C

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North Star dated January 10, 1996 stating that the 1995 incentive fee awardwas reduced due to the refuse collection and downtime issues." (emphasisadded).

3. I havereviewedthis January10, 1996letter. Theletter cites NorthStar's unilateral notification to the residents that it wouldbe changingthe refuse collection policy to require residents to deliver their refuse to a central collection point. I amfamiliar with the unilateral notification cited in the January10, 1996letter. I founda copyof this notification attached to Mr. Fischer's affidavit as Exhibit 8. I recall that NorthStar did not coordinate with the Government before notifying the resident of its plan to changeto a centrally located refuse collection scheme. We wouldhave objected to this schemehad North Star consulted with us in advancebecause the plan contradicted the lease. We first learned of the plan from complainingresidents. North Star's action, proposing a centrally located refuse collection point, upset our residents and damaged relationship our with our residents. Our office was in regular contact with Mr. Thomas Petersen. I was awarethat Mr. Petersen sat on the Incentive Awards Boardand that North Star received its incentive awardsbased on its performance.It is myposition that NorthStar should not have received the maximum award for the 1995 year because of this unilateral notification. 4. In paragraph12, Mr. Fischer stated, °'For the first nine years that the lease wasin effect, change of occupancymaintenanceon housing units was performed and evaluated based on the exampleset forth in Section D.5.(a) of the Lease Agreement'smaintenance Annex. When multiple units were released simultaneously, turnaround time was calculated by totaling the number released units and multiplyingthat total by three of

6

Case 1:98-cv-00168-FMA Declaration Wi~e Harrell of Mac No. 98-168C

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workingdays in order to arrive at the total workingdays to performthe work." Mr. Fischer seemsto be arguing that whenmultiple units are turned over at the sametime, the turnarounddate for the groupof apartmentsis calculated as a single date for the entire group of apartments by adding the allowable time for each consecutively. For example, under Mr. Fischer's formulaif five units were turned over on the first of the month,North ~ Star wouldhaveuntil the 15 to return all five units. This has never been the practice of the parties. In myexperiencewith the administration of the lease and review of the records I knowof no instance in which North Star was permitted to run allowable downtime days consecutively. Additionally, this interpretation wouldviolate Section [pg. 39 of the lease, section D] Completion Work,whichstates "(1) All change of occupancy of workmust be completedwithin three workingdays after the unit becomesavailable whichshall be determinedfrom the date the unit is turned over to the Developerby the Government for change of occupancy work. (2) The downtimeperiod will be determined as follows: If the unit becomes available prior to 12:00 noon, the period will begin at I:00 p.m. that day. If the unit becomes available at 12:00 noonor later, the maintenance period will begin at the start of the following workday."Thereis no separate provision providinga different start date for a unit that is turned over simultaneously with other units. We followedthe lease definition for the start date in calculating allowable down time throughoutthe administration of the contract. 7. As noted above, wefi-equently chose to forbear enforcementof this provision and allow North Star additional time on a case-by case basis but never because we adopted Mr. Fischer's interpretation of the contract.

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Case 1:98-cv-00168-FMA Declaration WillieMae of Harrell No. 98-168C

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8. In Paragraph13 of Mr.Fischer's affidavit, he states, "Onor aroundlate 1996or early 1997, I was informed by Army personnel that the Army using a newinterpretation of was changeof occupancy time that wascontrary to the interpretation that I had always understoodto be correct." I do not agree that the Army's calculation of allowable downtime constituted a "newinterpretation." TheArmy's calculation is in strict accordancewith the lease. I do not agree that the Army first disputed NorthStar's interpretation of the allowabledowntime under the contract in "late 1996or early 1997." 9. I have found in myfiles a memorandum the record recounting a meeting with Ms. for SuzanneHarrison, the then chief of housing division, Mr. Edward Miller, the 801 project managerfor Ft. Wainwright,Ms. Billie Menefee,and Mr. Dennis Wertz, North Star's representative. (Attachment 1). Accordingto the memorandum, meeting was held a July 28 and August7 1995. The purpose of the meeting was to "discuss and identify the procedureNorth Star uses to compute projections, the actual dates quarters were being returned to the government from maintenance,and to identify the impact these dates have on the newquarters offering process that Family Housingimplemented with the new HousingPolicy." North Star apparently advocated the consecutive computationat the meeting because the memorandum states "Housingand North Star did not agree with a common interpretation of the contract methodfor computingthe numberof days North Star is allowedfor returning or projecting the quarters from maintenance.NorthStar feels that LAW contract they are allowedthree days, in a consecutivemanner,for each the set of quarters requiring maintenance." (emphasis in original). The memorandum clearly records the government disputing NorthStar's interpretation.

Case 1:98-cv-00168-FMA Declaration WillieMae of Harrell No. 98-168C

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9. Prior to 1995, I do not recall North Star having ever advocateda consecutive computation of the downtime. 10. In paragraph 13 of his Affidavit, Mr. Fischer cites the April 16, 1997 Colonel Brown Letter to North Star "attributing the reducedamount[of the incentive award] to between occupancyvacancy rates." I can confirm based on mypersonal knowledgethat in 1996 the betweenoccupancy vacancyrates represented a very serious issue for the Government. recall having significant problemswith North Star getting units back to I the governmentin atimely manner, especially duringthe summer 1996. The of Government offset its paymentsto the Plaintiff by avoiding paying occupants temporary lodging allowanceand/or the BAH is paid in lieu of offering quarters. Additionally, that the Army policy is to maintain its family housing at a 98%occupancyrate. Ouroffice was in regular contact with Mr. Thomas Petersen regarding the betweenoccupancy downtimeand we madehim aware of the problems we were having with North Star on this issue in 1996. It is myposition that NorthStar should not havequalified for the maximum incentive award for the 1996period in light of their problemswith the between occupancydowntime.I understand that the Plaintiff disputes the Defendant'scalculation Of allowable between occupancydowntime for assessment of liquidated damages, however, the Government still has an interest in encouraging reduced occupancydown time regardless of whetherit maycollect liquidated damages excessive down for time. 11. Mr.Fischer states in paragraph13 that he has attached a letter he wrote to Dennis Klein, Chief of the Real Estate division, dated May 1997, "that for many 6, years there wasno dispute about calculating down time, and that the Army's interpretation is contrary to its prior interpretation." Although Fischer asserts in this letter that the Mr.

Case 1:98-cv-00168-FMA Declaration WillieMac of Harrell No. 98-168C

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Army adopted a "newinterpretation," as noted above, Mr.Fischer is mistaken in his belief. To myknowledge, there is not a single instance in whichthe parties agreed to a consecutive computation. To my knowledge,every instance in which this becamea contested issue, the government calculated the down time on a per-unit basis beginning on the date the unit wasturned over to the Plaintiff. 12. Paragraph 16 of Mr. Fischer's affidavit cites a January 29, 1998 memorandum explaining an incentive award $38,699.35 below the maximum "due to as replacement/depreciationissues." The letter actually states, "As we pass the mid-point in our lease, the execution of management replacementplans will continue to take on and a greater significance to the government,particularly whenmanagement indicators presented by your staff showa significant deviation from your original proposed replacementcycle. The achievementof excellence in this area of your performancewilt continue to take on a moresignificant role than in the past." AlthoughMr. Fischer characterizes this remarkas an extension of the depreciation dispute, in actuality, the two are separate issues. North Star's commitment its proposal regarding replacement in cycles included majorappliances such as refrigerators and ovens, exterior painting, countertops, windows,and carpet. The"depreciation issue" relates only to whetherthe Government discount its reimbursement North Star for carpet that was destroyed may to by an occupant on a ten-year depreciation schedule. Regardless of the outcomeof that issue, NorthStar retains its replacement-cycle duties undertakenin its proposal. It is my position that the Government an important interest in encouragingNorth Star to had adhere, even exceed, its proposedreplacementcycle schedules. At the time this letter

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Case 1:98-cv-00168-FMA Declaration WillieMae of Harrell No. 98-168C

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waswritten, the units had aged to ten years and the replacementcycle concerns had becomevery important to the Army.

13. In paragraph19 of Mr. Fischer's affidavit, he cites Exhibit 22, a letter from the Army,dated May12, 1999, granting an incentive fee award for 1998 of"only $3,730, due to supposedexcessive downtime." letter actually cites several reasons for the The $3,720 award. I have reviewedthis letter. This letter is consistent with myobservations and concerns. It is myposition that North Star should not have received the maximum awardfor the 1998period becauseof the concernscited in the letter. 14. I amaware that Mr. Fischer believes that the Incentive AwardsBoard gave lower awardsto punish NorthStar for filing claims and/or raising disputes about the lease. Havingbeen in a position where I have personal knowledge the facts on which the of Incentive Award Boardrelied, I believe Mr. Fischer is mistakenin his belief. The Board's reasons were always consistent with myobservations and concerns. I declare under penalty of perjury that the foregoingis true and correct. Executed this __ day of May 2004.

Chief of HousingDivision Ft. Wainwright, Alaska

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APVR-WPW-H (APVR-V~W-H/16 August 1995) (210-50) 1st SUBJECT: Housing Lease No. DACA85-1-86-71 801 with North Star Alaska Housing Corporation Chief, Housing Division, Fort Wainwright, Alaska 99703 17 August 1995

THRU Director,

Public Works, Fort Wainwright, Alaska~qg~"3~ ~qt~'*a4"

FORHousing Department, Public Works, ATTN:APVR-RPW-H, ArmyAlaska, Fort U.S. Richardson, Alaska 99505 SUBJECT: Housing Lease No. DACA85-1-86-71 801 with North Star Alaska Housing Corporation

h Concurwith Mr. Miller's request for legal interpretation of the maintenance ordering process Exhibit C, Section D, paragraph5 (a). 2. This item, whichaddresses quarters returning from maintenance allowable days in and accordancewith the contract, wasto be discussed at the past incentive award/contractor performance meetingheld on 12 July 1995, but instead it wasdelayed to a later date when all personnel could attend. 3. The Fort WainwrightHousingDivision (Ms. SuzanneHarrison and Mr. EdwardMiller) met with North Star Alaska HousingCorporation's representatives (Ms. Billie Menefee and Mr. DennisWevtz)on 28 July and 7 August1995. Reasonfor this meeting was to discuss and identify the procedureNorthStar uses to compute projections, the actual dates quarters were being returned to the government from maintenance,and to identify the impact these dates have on the newquarters offering process that Family Housingimplemented with the newHousing Policy. 4~ As always; NoKh Star was ve~ cooperative in assisting Housingih gaining maximum utilization of these 400 units. Althoughan agreementwasnot madeto the exact interpretation of the above mentioned paragraph, North Star agreed to an alternate methodof executing the number days they will take for maintenance an interim solution to our situation. of as 5. Thefollowingitems affect the executionof the contract and require official legal interpretation: a. Housingand North Star did not agree with a common interpretation of the contract method for computing number days North Star is allowed for returning or projecting the quarters the of from maintenance.

ATTACHMENT 1

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APVR-WPW-H (APVR-WPW-H/16 August 1995) (210-50) 1st SUBJECT:801 Housing Lease No. DACA85-1-86-71 with North Star Alaska Housing Corporation

(I) North Star feels that IAWthe contract they are allowed three days, in a consecutive manner~for each set of quarters requiting maintenance. For example, if two sets of quarters were terminated and turned over to North Star for maintenance on the same day, they would have to return the first unit three days later, and the second six days later. Monday DAY1 QTRS1 Terminates QTRS2 Terminates Tuesday DAY2 Wednesday DAY3 Thursday DAY4 Due Back date from NorthStar Due Back date from NorthStar Friday DAY5 Monday DAY6 Tuesday DAY7

(2) Housing feels that IAWthe contract, North Star is allowed three days, in a concurrent manner, for each set of quarters requiting maintenance. For example, if two sets of quarters were terminated and turned over to North Star for maintenance on the same day, they would have to return the first and second unit three days later. Monday DAY1 QTRS1 Terminates QTRS2 Terminates Tuesday DAY2 Wednesday DAY 3 Thursday DAY 4 DueBack date from Nor/hStar Due Back datefrown NorthStar

b, North Star made a proposal to reduce the number of days they will take to perform maintenance on quarters, which is different from their interpretation of their contractual allowance of three days. This agreement was to allow two days for the first five in maintenance and one day for the remaining quarters over five. (An example for six sets of quarters terminating on the same day, is enclosed.) In the absence of an o~cial agreement to the interpretation of the contract, Housing accepted their proposal with the understanding that Housing's position on the interpretation of the above mentioned paragraph has not changed, and that Housing will request an official legal interpretation. 6. POCfor additional information is Mr. EdwardMiller at 353-9454.

Enclosure as

SUZ,@n',~E M. HARRISON , ChieffHousing Division, FWA 13

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NEW MAINTENANCE SCtt'EDULE AGREEM]gNT BE]~WEEN FORT WAINWRIGHT HOUSING AND NORTH STAR ALASKA HOUSING CORP.

(WORKING DAYS, MONDAYTHRU FRIZIAY AND DOES NOT INCLUDE WEEKENDS OR HOLIDAYS)

DAY1

DAY2 --

DAY3 Due

DAY4

DAY5

DAY6

DAY7

DAYg

DAY9

DAYI0

DAYll

DAYI2

DAY 13

QTRS 1-T QTRS QTRS 3-T QTRS 4-T QTRS 5-T QTRS 6-T

Back

¯ Due Back Due Back Due Back Due Back Due Back

14