Free Proposed Findings of Uncontroverted Fact - 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. 01-642C (Judge Margaret M. Sweeney) Filed Electronically

PLAINTIFF'S PROPOSED FINDINGS OF UNCONTROVERTED FACT IN OPPOSITION TO DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT

ERIC G. SOLLER Pietragallo, Bosick & Gordon LLP 38th Floor One Oxford Centre Pittsburgh, PA 15219 [email protected] (412) 263-2000 (412) 261-5295 fax Attorney for Plaintiff, GASA, Inc.

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PLAINTIFF'S PROPOSED FINDINGS OF UNCONTROVERTED FACT Pursuant to R.C.F.C. 56, Plaintiff, GASA, Inc. ("GASA"), submits the following Proposed Findings of Uncontroverted Fact in opposition to Defendant's Renewed Motion for Summary Judgment.1 115. When a contract is sent out by the U.S. Army Corps of Engineers (Corps") for

bid, it is required that the Corps district in which the project is to be performed have accounted for that contract in its budget. Plaintiff's Supplemental Appendix at 0490 (Deposition of Henry Edwardo, p 9.). 116. If a contract is awarded it is the Corps' policy to have the funds in place for that

particular project. Plaintiff's Supplemental Appendix at 0517 (Deposition of Michelle Hutfles at p. 12 and Edwardo, p 13.). 117. According to the Contract Specialist on the Contract, Michelle Hutfles, if a

contract is awarded, the funds are to be in place. Plaintiff's Supplemental Appendix at 05170518 (Hutfles at pp. 12-13 and 16.). 118. According to Michael DeStefano, on of the Corps Contracting Officers, on prior

occasions, if the Corps discovered a funding issue while the bidding process was in progress, a contract would be cancelled. Plaintiff's Supplemental Appendix at 0455 (Deposition of Michael DeStefano, p. 34). 119. Once a contract is awarded, any decision to terminate must be made quickly, Plaintiff's Supplemental

"before the [the contractor] expends more costs and so forth." Appendix at 0457 (DeStefano, p. 42).

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Capitalized term not defined herein were defined in Plaintiff's Proposed Findings of Fact submitted in opposition to Defendant's original Motion for Summary Judgment and are incorporated herein by reference.

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120.

The Corps determined GASA's bid to be fair, reasonable and balanced, and the Plaintiff's Supplemental Appendix at 0519

pre-award survey of GASA was satisfactory. (Hutfles, pp. 18-19). 121.

On June 6, 2000, the Corps awarded the Contract to GASA.

Plaintiff's

Supplemental Appendix at 0490 (Edwardo, p 12.). 122. It is typical in all Corps contracts that the Notice to Proceed is issued upon receipt

of performance and payment bonds. Plaintiff's Supplemental Appendix at 0520, 0521 (Hutfles, pp. 22 and 25.). 123. The Contracting Officer conceded that GASA had supplied the performance and

payment bonds on June 15, 2000, and the Corps approved the bonds on June 21, 2000. Plaintiff's Original Appendix at 0048; Plaintiff's Supplemental Appendix 0505-0506 (Dunnington, pp. 20-21.). 124. The Contracting Officer could not provide a reason as to why the Notice to

Proceed was not issued until August 14, 2000. Plaintiff's Supplemental Appendix 0505-0506 (Dunnington, pp. 20-21.). 125. Joseph Thomas, Corps Resident Engineer, advised GASA to mobilize for the

work immediately in anticipation of the issuance of the Notice to Proceed (hereinafter "NTP"), and on June 23, 2000 advised GASA that the NTP would be issued during the week of June 26, 2000. See Plaintiff's Appendix in Opposition to Defendant's Motion for Summary Judgment (hereinafter "Plaintiff's Original Appendix") at 0434-0442 (Deposition of Benito Moscatiello, pp. 69, 75 and 97-98).

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126.

The Corps was aware between June 6 and June 28, 2000 that GASA was in the

process of mobilizing. Plaintiff's Supplemental Appendix 0506, 0539 (Dunnington deposition, pp. 22-24; Thomas deposition vol. I, pp. 49-50). 127. The Corps was aware of GASA's continuing mobilization efforts prior to issuance

of the Notice to Proceed (hereinafter "NTP") on August 14, 2000. Plaintiff's Supplemental Appendix 0509, 0511 (Dunnington, pp. 35-36, 43-44). 128. The Corps was aware of GASA's continuing mobilization efforts prior to issuance Plaintiff's

of the NTP and that GASA had committed to leasing cranes and equipment. Supplemental Appendix 0509, 0511 (Dunnington deposition, pp. 35-36, 43-44). 129.

No one at the Corps ever told GASA to cease mobilization at any time between

June 6 and August 3, 2000. Plaintiff's Supplemental Appendix 0506, 0495, 0458 (Dunnington deposition, p. 24; Henry Edwardo deposition, p. 32; DeStefano deposition, p. 47). 130. The Corps expected GASA would continue to mobilization during the time the Plaintiff's

Corps considered termination of the contract prior to issuance of the NTP. Supplemental Appendix 0507 (Dunnington deposition, p. 27). 131.

Although the Corps claimed throughout June, July and August 2000 that there

were insufficient funds in the Corps budget for the Project, funding was available. Plaintiff's Supplemental Appendix 0505 (Dunnington deposition, p. 18). 132. The NTP was eventually issued without the Corps receiving any additional

funding because the Corps diverted existing funds away from, and later, back to the Project. Plaintiff's Supplemental Appendix 0509, 0491, 0495, 0462 (Dunnington deposition, p. 33; Edwardo deposition, pp. 14, 29; DeStefano deposition, pp. 61-62).

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133.

According to the Contracting Officer who awarded the contract: "I know the

issue [of funding] did come up later, but as I understood it back then, the funds were going to be provided and I thought that came out of our headquarters, not the Pittsburgh District, but, I guess, we were called the Ohio River Division at the time. ... But there was some discussion that went on with the headquarters and the funding that was going to be provided. That was no problem. In other words, there was really no issue, as I remember it, any way." Plaintiff's Supplemental Appendix 0505 (Dunnington, p. 18.). 134. The Corps did not claim any alleged deficiencies in GASA's technical submittals

until after the NTP was issued. Plaintiff's Supplemental Appendix 0481(DeStefano deposition, p. 138). 135. According to Project Manager and both of the Contracting Officers, the sole

reason for the termination of the Contract was the lack of sufficient funding, not any act or omission of GASA. Plaintiff's Supplemental Appendix at 0493, 0458, 0460, 0512 (Edwardo, p. 22, DeStefano, pp. 48 and 55, and Dunnington, pp. 45-46.). 136. The Corps was concerned that if the NTP were issued earlier in 2000, GASA

would start earning money in FY 2000, which ended on September 30, 2000, rather than FY 2001, which started on October 1, 2000. Plaintiff's Supplemental Appendix 0495, 0540

(Edwardo deposition, p. 30; Thomas deposition, vol. I, pp. 53-54). 137. The only reason for the Corps' delay in issuing the NTP was the matter of

funding. Plaintiff's Supplemental Appendix 0458, 0460, 0462-0463, 0464, 0475, 0512, 0495, 0540, 0570 (DeStefano deposition, pp. 47-48, 54-55, 63-65, 70-71, 115-116; Dunnington, deposition, pp. 45-46; Edwardo deposition, p. 32; Thomas deposition vol. I 55-56, vol. II, p. 107).

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138.

The delay in the issuance of the NTP was not caused by GASA.

Plaintiff's

Supplemental Appendix 0449 (DeStefano deposition, p. 10). 139. Submission only, rather than approval of the Propelling Unit Agreement was

necessary, before issuance of the NTP. Plaintiff's Supplemental Appendix 0479, 0480, 0564 (DeStefano deposition, pp. 131, 135; Thomas deposition, vol. I, pp.83-84). 140. River work during the winter months is more difficult due to shorter days, ice, and

deeper and faster current. Plaintiff's Supplemental Appendix 0461, 0537-0538 (De Stefano deposition, p. 59; Thomas deposition, vol. I, pp. 44-45). 141. Reduction of the quantity of materials dredged by GASA would reduce the Plaintiff's Supplemental Appendix 0548, 0550, 0554 (Thomas

amount paid to GASA.

deposition, vol. II, pp. 20, 27, 43). Respectfully submitted, /s/ Eric G. Soller Eric G. Soller PIETRAGALLO, BOSICK & GORDON 38th Floor One Oxford Centre Pittsburgh, PA 15219 (412) 263-2000 (412) 261-5295 fax Attorneys for Plaintiff

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CERTIFICATE OF SERVICE I certify under penalty of perjury that on this 2nd day of March, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing to the following:

BRIAN S. SMITH Attorney Department of Justice Room 4054 1100 L St., NW Washington, D.C. 20530 WILLIAM A. LUBICK Army Corps of Engineers Federal Building, Suite 1813 1000 Liberty Avenue Pittsburgh, PA 15222

/s/ Eric G. Soller Eric G. Soller

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