Free Answer - District Court of Federal Claims - federal

Case 1:01-cv-00642-MMS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS GASA, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) )

No. 01-642 (Judge Sweeney)

DEFENDANT'S ANSWER For its answer to the Third Amended Complaint of plaintiff GASA, Inc., ("GASA"), defendant, the United States, admits, denies and alleges as follows: 1. Denies the allegations contained in paragraph 1 for

lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted. 2. Admits the allegations contained in paragraph 2 that

defendant is the United States and that the U.S. Army Corps of Engineers, Pittsburgh District, is located at the William S. Moorhead Federal building, 1000 Liberty Avenue, Pittsburgh, Allegheny County, PA 15222-4186. 3. The allegations contained in paragraph 3 constitute

conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 4. The allegation contained in paragraph 4 that GASA's

claim was timely is a conclusion of law to which no response is required; to the extent it may be deemed an allegation of fact, it is denied; admits the remainder of the allegations contained in paragraph 4 to the extent supported by the documents cited,

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which are the best evidence of their contents; otherwise denies the remainder of the allegations contained in paragraph 4. 5. 6. 7. 8. Admits. Admits. Admits. Admits the allegations contained in paragraph 8 to the

extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 8. 9. Admits the allegations contained in paragraph 9 to the

extent supported by the contract, which is the best evidence of the Project requirements; otherwise denies the allegations contained in the paragraph 9. 10. Admits the allegations contained in paragraph 10 to the

extent supported by the contract, which is the best evidence of the Project requirements; otherwise denies the allegations contained in the paragraph 10. 11. Denies the allegation contained in paragraph 11 that

the chart correctly reflects the information contained in Exhibit G of the Third Amended Complaint. Avers that the bid quantities

for Item Nos. 0004 and 0008 are incorrect, as is the Bid Amount for Item No. 0007. 12. Admits the allegations contained in paragraph 12 to the

extent supported by the sealed bid cited, which is the best

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evidence of its contents; otherwise denies the allegations contained in the paragraph 12. 13. Admits the allegations contained in paragraph 13 to the

extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in the paragraph 13. 14. 15. 16. 17. Denies. Denies. Admits. Denies. Avers that the Corps has paid GASA

$5,462,148.17. 18. 19. Admits. Admits the allegations contained in paragraph 19 to the

extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in the paragraph 19. 20. Admits the allegations contained in paragraph 20 to the

extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in the paragraph 20. 21. Denies the allegations contained in paragraph 21 as to

what plaintiff was "relying" upon for lack of knowledge or information sufficient to form a belief as to their truth; the remainder of the allegations contained in paragraph 21 constitute conclusions of law and plaintiff's characterization of its case, 3

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to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 22. 23. 24. 25. Admits. Admits. Admits. The allegations contained in paragraph 25 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 26. 27. 28. 29. 30. Admits. Admits. Admits. Admits. Admits the allegations contained in paragraph 30 to the

extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in the paragraph 30. 31. Admits the allegations contained in paragraph 31 to the extent supported by the inquiry cited, which is the best evidence of its contents; otherwise denies the allegations contained in the paragraph 31. 32. Admits the allegations contained in paragraph 32 to the

extent supported by the letter cited, which is the best evidence

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of its contents; otherwise denies the allegations contained in the paragraph 32. 33. 34. Admits. Admits the allegations contained in paragraph 34 to the

extent supported by the writing cited, which is the best evidence of its contents; otherwise denies the allegations contained in the paragraph 34. 35. The allegations contained in paragraph 35 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 36. 37. Admits. The allegations contained in paragraph 37 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 38. The allegations contained in paragraph 38 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 39. The allegations contained in paragraph 39 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied.

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40.

The allegations contained in paragraph 40 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 41. The allegations contained in paragraph 41 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 42. The allegations contained in the narrative portion of

paragraph 42 constitute conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. Admits the remaining allegations contained in paragraph 42 to the extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in the paragraph 42. 43. The allegations contained in paragraph 43 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 44. The allegations contained in paragraph 44 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied.

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45. The allegations contained in paragraph 45 constitute conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 46. The allegations contained in paragraph 46 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 47. Admits the allegations contained in paragraph 47 that

GASA commenced dredging work on September 21, 2000; the remainder of the allegations contained in paragraph 47 constitute conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 48. The allegations contained in paragraph 48 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 49. The allegations contained in paragraph 49 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 50. The allegations contained in paragraph 50 constitute

conclusions of law and plaintiff's characterization of its case,

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to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 51. Admits the allegations contained in paragraph 51 to the

extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in the paragraph 51. 52. Admits the allegations contained in paragraph 52 to the

extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in the paragraph 52. 53. Admits the allegations contained in paragraph 53 to the

extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in the paragraph 53. 54. Admits the allegations contained in paragraph 54 to the

extent supported by the record of discussions cited, which is the best evidence of its contents; otherwise denies the allegations contained in the paragraph 54. 55. The allegations contained in paragraph 55 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 56. The allegations contained in paragraph 56 constitute

conclusions of law and plaintiff's characterization of its case,

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to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 57. The allegations contained in paragraph 57 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 58. 59. 60. Denies. Denies. The allegations contained in paragraph 60 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 61. The allegations contained in paragraph 61 constitute conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 62. The allegations contained in paragraph 62 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 63. The allegations contained in paragraph 63 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied.

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64.

Defendant incorporates the answers contained in

Paragraphs 1 through 63 by reference. 65. 66. Admits. The allegations contained in paragraph 66 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 67. The allegations contained in paragraph 67 constitute conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. Defendant denies that plaintiff is entitled to the relief set forth in the prayer for relief immediately following paragraph 67, or to any relief whatsoever. Defendant further denies each and every allegation not previously admitted or otherwise qualified. AFFIRMATIVE DEFENSES Plaintiff's claims are barred by the doctrine of payment insofar as plaintiff has received payment upon its claims and has been fully compensated according to the terms and conditions of the contract. Plaintiff's claims are barred by the doctrine of accord and satisfaction.

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WHEREFORE, defendant requests that the Court enter judgment in its favor, order that the complaint be dismissed, and grant defendant such other and further relief as the Court may deem just and proper.

Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director /s Donald E. Kinner DONALD E. KINNER Assistant Director /s L. Misha Preheim L. MISHA PREHEIM Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor, 1100 L Street Washington, D.C. 20530 Tele: (202) 307-0290 Attorneys for Defendant

OF COUNSEL: WILLIAM A. LUBICK U.S. Army Corps of Engineers Pittsburgh District

January 14, 2008

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CERTIFICATE OF FILING I hereby certify that on the 14th day of January, 2008, a copy of the foregoing "Answer" 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. may access this filing through the Court's system. Parties

/s L. Misha Preheim