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

Case 1:07-cv-00738-LAS

Document 17

Filed 07/15/2008

Page 1 of 4

IN THE UNITED STATES COURT OF FEDERAL CLAIMS WHITE BUFFALO CONSTRUCTION, INC., Plaintiff, v. ) ) ) ) ) ) ) ) ) ) )

No. 99-961C (Consolidated with Nos. 00-415C and 07-738C) (Senior Judge Smith)

THE UNITED STATES, Defendant.

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT Defendant, the United States, respectfully consents to the motion for leave to file the proposed amended complaint that plaintiff, White Buffalo Construction, Inc. ("White Buffalo"), attaches to its motion. However, we note that, in its memorandum

in support of its motion, White Buffalo characterizes the approximately $240,000 amount that the contracting officer found White Buffalo was due as an "undisputed amount." Plaintiff's

Memorandum In Support Of Motion For Leave To File Amended Complaint at 1. We do not agree with that characterization.

This Contract Disputes Act action is a de novo proceeding. See 41 U.S.C. § 609(a)(3). The findings of fact in a contracting

officer's final decision are not binding upon the parties and are not entitled to any deference. 1397, 1401 (Fed. Cir. 1994). Wilner v. United States, 24 F.3d Rather, the contractor has the

burden of proving the fundamental facts of liability and damages de novo. Id. Indeed, the Court may award to a contractor an

amount that is less than a contracting officer found the

Case 1:07-cv-00738-LAS

Document 17

Filed 07/15/2008

Page 2 of 4

contractor was due, or no amount at all.

Cf. Renda Marine, Inc.

v. United States, 66 Fed. Cl. 639, 721 (2005) (holding that contractor did not prevail upon claims to monies that were the subject of equitable adjustments received during contract performance). Consequently, even the approximately $240,000

amount that the contracting officer found White Buffalo was due is subject to dispute in this action. In the event the Court files the proposed amended complaint, the Government will answer the amended complaint pursuant to Rule 15(a) of the Rules of the United States Court of Federal Claims. Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director s/Todd M. Hughes TODD M. HUGHES Deputy Director

2

Case 1:07-cv-00738-LAS

Document 17

Filed 07/15/2008

Page 3 of 4

s/Timothy P. McIlmail TIMOTHY P. MCILMAIL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 616-0342 Facsimile: (202) 514-7965 OF COUNSEL: Rayann L. Speakman Attorney-Advisor Western Federal Lands Highway Division 610 E. Fifth Street Vancouver, WA 98661 July 11, 2008 Attorneys for Defendant

3

Case 1:07-cv-00738-LAS

Document 17

Filed 07/15/2008

Page 4 of 4

Certificate of Filing I hereby certify that on July 15, 2008, a copy of the foregoing Defendant's Response To Plaintiff's Motion For Leave To File Amended Complaint 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. access this filing through the Court's system. Parties may

s/Timothy P. McIlmail