Free Joint Preliminary Status Report - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS MANHATTAN CONSTRUCTION COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-376C (Judge Robert H. Hodges)

JOINT PRELIMINARY STATUS REPORT Pursuant to Rule 16 and Appendix A, paragraph III, 4, of the Rules of this Court ("RCFC"), the parties file the following joint preliminary status report: (a) Jurisdiction Plaintiff's action arises pursuant to an express contract between Manhattan Construction Company ("Manhattan") and the United States, through the Department of Agriculture. The action is brought on an appeal from a denial by the contracting officer of a claim. Plaintiff states that this Court has jurisdiction to entertain this action pursuant to 28 U.S.C. § 1491(b). Defendant is currently not aware of any reason why this Court would not possess jurisdiction to entertain the merits of plaintiff's complaint pursuant to 28 U.S.C. § 1491 and 41 U.S.C. § 609. (b) Consolidation The Government has filed a motion seeking consolidation of this case with Manhattan Construction Company v. United States, 05-373C. On April 26, 2005, plaintiff's counsel indicated to Government counsel that plaintiff had no objection to the granting of the motion to consolidate. Plaintiff has not filed an objection to that motion. (c) Bifurcation The parties are not aware of any reason why liability and damages should be tried

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separately. (d) Deferral The parties do not believe that further proceedings in this action should be delayed pending consideration of another case by this Court. (e) Remand/Suspension The parties do not intend to request remand or suspension. (f) Joinder The parties do not believe that additional parties should be joined. (g) Dispositive Motions While the parties agree that it is unlikely that dispositive motions will be filed, the parties request that on or before 30 days after the conclusion of discovery, they be allowed to file a status report regarding the appropriateness of filing dispositive motions. (h) Relevant Issues Plaintiff's Statement Of The Relevant Legal and Factual Issues 1.) The contracting officer directed Plaintiff to install heat tracing cable on the

domestic hot water pipes. 2.) The contracting officer's directive to install heat tracing cable on the domestic hot

water pipes constituted a change to the contract. 3.) As a result of the contracting officer's directive to install heat tracing cable on the

domestic hot water pipes, Plaintiff suffered damages. 4.) Defendant is required to compensate Plaintiff for the damages it suffered as a

result of Defendant's change pursuant to F.A.R. § 52.243-4.

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5.) coil piping. 6.)

The contracting officer directed Plaintiff to install air handling units using stacked

The contracting officer's directive to install air handling units using stacked coil

piping constituted a change to the contract. 7.) As a result of the contracting officer's directive to install air handling units using

stacked coil piping, Plaintiff suffered damages. 8.) Defendant is required to compensate Plaintiff for the damages it suffered as a

result of Defendant's change pursuant to F.A.R. § 52.243-4. 9.) The contracting officer directed Plaintiff to install low pressure steam traps at the

base of the low pressure steam risers. 10.) The contracting officer's directive to install low pressure steam traps at the base

of the low pressure steam risers constituted a change to the contract. 11.) As a result of the contracting officer's directive to install low pressure steam traps

at the base of the low pressure steam risers, Plaintiff suffered damages. 12.) Defendant is required to compensate Plaintiff for the damages it suffered as a

result of Defendant's change pursuant to F.A.R. § 52.243-4. 13.) The contracting officer directed Plaintiff to install cooler and freezer condensate

drain lines in the kitchen. 14.) The contracting officer's directive to install cooler and freezer condensate drain

lines in the kitchen constituted a change to the contract. 15.) As a result of the contracting officer's directive to install cooler and freezer

condensate drain lines in the kitchen, Plaintiff suffered damages.

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16.)

Defendant is required to compensate Plaintiff for the damages it suffered as a

result of Defendant's change pursuant to F.A.R. § 52.243-4. 17.) The contracting officer directed Plaintiff to install high pressure steam traps at the

base of the high pressure steam risers. 18.) The contracting officer's directive to install high pressure steam traps at the base

of the high pressure steam risers constituted a change to the contract. 19.) As a result of the contracting officer's directive to install high pressure steam

traps at the base of the high pressure steam risers, Plaintiff suffered damages. 20.) Defendant is required to compensate Plaintiff for the damages it suffered as a

result of Defendant's change pursuant to F.A.R. § 52.243-4. Defendant's Statement Regarding The Relevant Legal Issues 1.) Whether Manhattan can prove by the preponderance of the evidence that the

contracting officer's directive to install heat tracing cable on the domestic hot water pipes constituted a change to the contract and, if so, whether Manhattan was damaged thereby. 2.) Whether Manhattan can prove by the preponderance of the evidence that the

contracting officer's directive to install the air handling units using stacked coil piping constituted a change to the contract and, if so, whether Manhattan was damaged thereby. 3.) Whether Manhattan can prove by the preponderance of the evidence that the

contracting officer's directive to install a high pressure steam trap at the base of the high pressure steam risers constituted a change to the contract and, if so, whether Manhattan was damaged thereby. 4.) Whether Manhattan can prove by the preponderance of the evidence that the

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contracting officer's directive to install cooler and freezer condensate drain lines in the kitchen constituted a change to the contract and, if so, whether Manhattan was damaged thereby. Defendant's Statement Regarding The Relevant Factual Issues 1.) Whether the contract documents required that Manhattan install heat tracing cable

on the domestic hot water pipes. 2.) Whether the contract documents required that Manhattan install the air handling

units using stacked coil piping. 3.) Whether the contract documents required that Manhattan install a high pressure

steam trap at the base of the high pressure steam risers. 4.) Whether the contract documents required that Manhattan install cooler and

freezer condensate drain lines in the kitchen. (i) Settlement The parties are not currently in a position to pursue fruitful settlement discussions. The parties will, however, continue to consider the possibility of settlement, and the use of ADR, throughout the proceedings. (j) Trial At this time, the parties anticipate that they will proceed to trial and that the trial will last one day. The parties agree that an expedited trial pursuant to paragraph 6(b) of Appendix G is not warranted. (k) Electronic Filing The parties are not aware of any special issues regarding electronic case management needs.

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(l)

Additional Information The parties request that the trial in this case take place in Washington, D.C. The parties are unaware of any other matters which should be brought to the Court's

attention at this time. Discovery Schedule 1. 2. 3. Exchange of documents by August 1, 2005 Completion of fact witness discovery by October 31, 2005 Designation of expert witnesses, if any, by September 15, 2005, and exchange of

expert witness reports within 30 days of fact witness discovery being completed 4. 5. Completion of expert witness discovery by December 15, 2005 Completion of all discovery by December 15, 2005 Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director

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s/ Adam C. Harrison, Esq. ADAM C. HARRISON, ESQ. Adam C. Harrison, P.C. 40 W. Chesapeake Ave., Suite 600 Towson, MD 21204 410-832-0000 410-832-9929 (Fax)

s/ Leslie Cayer Ohta LESLIE CAYER OHTA Trial Attorney Commercial Litigation Branch, Civil Division Department of Justice 1100 L Street, NW Washington, D.C. 20530 202-307-0252 202-307-0972 (Fax) Attorneys for Defendant June 21, 2005

Attorney for Plaintiff June 21, 2005

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