Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:04-cv-00632-LJB

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Filed 06/29/2004

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS INFORMATION SYSTEMS AND NETWORKS CORPORATION Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 04-632C (Judge Bush)

DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT 1. Info Systems. a section 8(a) contractor, entered into a

tripartite contract with the Small Business Administration ("SBA") and the United States Air Force. Complaint, App. 2; A1-79. 2. The contract had standard provisions permitting a Complaint, ¶ 7;

section 8(a) contractor to make claims directly to the procuring agency. 3. A17-18. The Air Force issued Delivery Order ("DO") 6009 to Info A5,48,54-60;

Systems pursuant to contract no. F49642-88-D-0054.

see A33-34 (delivery order provisions); see also Complaint, App. 2-5 (board discussion of delivery order provisions generally, and the issuance of DO 6009 pursuant to those provisions). 4. On June 12, 1990, the Air Force issued a partial A74-76;

termination for convenience related to DO 6009. Complaint, ¶ 10. 5.

In 1991, Info Systems filed a claim based in part upon

the termination, and in 1993, Info Systems appealed the deemed denial of the Info Systems claim to the Armed Services Board of

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Contract Appeals (the "board").

Complaint, ¶¶ 14-15; see

Complaint, App. 33-40 (board decision) (section titled "Invoices and Termination for Convenience Proposal"). 6. On July 10, 2002, the board issued a decision concerning Complaint, App. 1-55.

Air Force liability to Info Systems. 7.

On April 14, 2003, Info Systems executed a settlement Af-Ag.

agreement with the United States. 8.

In part, the settlement agreement read: This modification is issued to provide payment to the Contractor, Information Systems Network Corp. (ISN) after full and complete negotiations concluded on 21 March 2003 and decision of ASBCA Case # 46119, for the amount of $1,664,879.00 including both entitlement and quantum and have also decided to settle, for now and for all times, any and all claims and any other matters arising under or related to subject contract. By signing the SF30, the Contractor, ISN, agrees to full settlement of claims as described in this paragraph.

Ag. 9. The settlement amount was paid to Info Systems by the Aa; Ah.

United States. 10.

Info Systems agreed to release the United States from

"any and all claims and any other matters arising under or related to subject contract." 11. Ag.

The allegations in the complaint are matters arising Complaint, ¶¶

under or related to contract no. F49642-88-D-0054. 7-8,26-36.

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12. Order." 13. DO 6009:

The complaint identifies DO 6009 as the "Delivery Complaint, ¶ 8. Count I of the complaint alleges liability based upon

The defendant, in terminating the Delivery Order, breached its contract with ISN thereby preventing it from completing all 13 sites. Complaint, ¶ 27. 14. Count II of the complaint alleges liability based

upon DO 6009: As a result of the defendant's breach of the Delivery Order which prevented ISN from fully performing the Delivery Order, ISN was required to reallocate overhead which would have been absorbed from the revenue on the terminated portion of the Delivery Order to other contracts making those contracts less profitable to ISN. Complaint, ¶ 31. 15. Count III of the complaint, like Count I, alleges

liability based upon DO 6009: ISN is entitled to CDA interest on the amounts found to be due and owing under Count I . . . . Complaint, ¶ 35. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director S/ Franklin E. White, Jr. -3-

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FRANKLIN E. WHITE, JR. Assistant Director S/ James W. Poirier JAMES W. POIRIER Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor, 1100 L St, N.W Washington, D.C. 20530 Tele: 202-307-6289 Fax: 202-514-7969 June 29, 2004 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on June 29, 2004, a copy of the foregoing "DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT" 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. the Court's system. S/ James W. Poirier Parties may access this filing through