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

Case 1:01-cv-00351-JFM

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

No. 01-351C (Judge Merow)

DEFENDANT'S RESPONSE TO PLAINTIFF'S PROPOSED FINDING OF UNDISPUTED FACTS In accordance with Rule 56(h)(2) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully submits the following Response to Plaintiffs' Proposed Finding Of Uncontroverted Fact, dated October 21, 2005. 1. 2. 3. 4. 5. Agrees. Agrees. Agrees. Agrees. Agrees that the text of Designer Note is accurately reflected, but plaintiff's

argument that this portion of the drawings applied to the hangar doors is not supported by the terms of the contract. To the contrary, as explained in DPFUF 6,1 hangar doors are not main resisting systems. 6. Agrees that the doors were 31 feet, five inches high. Disagrees with the

remainder of this paragraph, which constitutes plaintiff's legal argument, because the doors were

"DPFUF__" refers to "Defendant's Proposed Findings of Uncontroverted Facts," previously filed with the Court.
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not main resisting systems and other portions of the contract directly specified that the doors were to have a wind load of 40 pounds per square foot. DPFUF 4. 7. Agrees only that the standard is incorporated into the contract "to the extent

indicated by the reference thereto." PA 1.2 8. Disagrees. A proper calculation of the wind load using this formula comes to the

higher value reported in DPFUF 7. The allegation regarding the alleged other Air Force project is argumentative, not factual, and Mr. Kohn's affidavit has demonstrated no foundation for his alleged knowledge of any such project or what items were accepted by the Corps for it. In any event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 9. 10. Agrees. Agrees that the Corps explained the correct wind load requirement of 40 pounds

to Fleming during a telephonic meeting at about this time. Disagrees that the basis for the 40 pound requirement was limited to Section 8C of the contract. See DPFUF 4. In any event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 11. Admits that Clearwater has accurately reproduced the text of the contract. The

remainder of this paragraph is plaintiff's legal argument about the meaning of that text, not a statement of fact, and we disagree for the reasons set forth in our other filings. 12. specifications. Agrees to the extent that this paragraph is referring to references within the

"PA__" refers to a page of the appendix attached to "Plaintiff's Proposed Findings of Uncontroverted Fact."
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13.

Disagrees. This paragraph is an argument and not a statement of fact. In any

event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 14. fact. 15. 16. 17. Agrees. Agrees. Disagrees. This paragraph is a conclusory allegation of legal entitlement to Disagrees. This paragraph is plaintiff's legal argument and not a statement of

damages, not a statement of fact. 18. Agrees that the first statement in this paragraph accurately quotes the text of the

contract. Disagrees with the second statement in this paragraph because the drawings are to be read together with the specifications. In any event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 19. Disagrees. Mr. Kohn's affidavit has demonstrated no foundation for his alleged

knowledge of any such project or what items were accepted by the Corps for it. In any event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 20. 21. Agrees. Agrees that the Corps required four top rollers. Disagrees that the only reason the

Corps required four rollers was because of wind loading, since the contract's text required four rollers. DPFUF 16. Disagrees with the remainder of this paragraph because it is an argument, not statement of fact, and is based upon faulty premises, such as the improper wind load.

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See DPFUF 7. In any event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 22. 23. Agrees. Agrees with the first two sentences and that Fleming provided a letter to the

Corps on July 1, 1986 advancing the arguments reflected here. Disagrees that Mr. Kohn's affidavit reflects adequate foundation to explain why the Corps made its decision. In any event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 24. Agrees that Mr. Kohn's letter advanced the argument reflected in this paragraph

and that the Corps required compliance with the contract specification of four rollers for the remaining leaves. 25. Disagrees. This paragraph, allegedly based upon "information and belief" reflects

mere speculation by Mr. Kohn. In any event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 26. Disagrees. This paragraph consists entirely of plaintiff's legal argument and is

not a statement of fact. 27. Agrees only that the excerpts from the contract are accurate. Disagrees with the

remainder of this paragraph, which constitutes plaintiff's legal argument and not a statement of fact. 28. Disagrees with this paragraph, which is plaintiff's legal argument and not a

statement of fact. 29. Disagree that Fleming's decisions relating to wheel size were based upon the

contract specifications for the reasons contained in our motion for summary judgment,
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demonstrating that the rail size was 60 pounds per yard. In any event, none of plaintiff's allegations in this paragraph relating to its plans, if true, would preclude judgment in favor of the United States. 30. Agrees that the Corps required 60 pound per yard rail and that the Corps

interpreted the specification to refer to ASCE or AREA rail, either of which would weigh 60 pounds per yard. Disagrees with the remainder of this paragraph because it constitutes plaintiff's legal argument, not a statement of fact. 31. Agrees that Fleming provided letters purporting to demonstrate that 30 pound per

yard rail would be adequate, if not in compliance with the contract. 32. Agrees that the Corps required 60 pound per yard rail. Disagrees that the

evidence cited supports the finding that the Corps ordered a particular wheel thickness: at most, Mr. Kohn's statement supports the finding that he felt compelled to use the thicker wheel as a result of the Corps directive to comply with the rail requirements. In any event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 33. Agrees that the first sentence of this paragraph accurately describes the referenced

drawing; that, after contract award, Fleming advised the Corps that it considered it to be a design defect; and that Fleming's first submittal included a flush rail head, despite the contract requirements. The remainder of this paragraph is argument, not a statement of fact. 34. Agrees that the Corps rejected Fleming's submission because it was inconsistent

with the contract's specifications. Disagrees with the remainder of the paragraph, which is plaintiff's legal argument, not a statement of fact. 35. Agrees.
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36. 37. 38. 39.

Agrees. Agrees. Agrees. Agrees with this paragraph except for the unsupported implication that the Corps

accepted the design as a result of the practices at any other alleged project. In any event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 40. Agrees that this paragraph accurately reflects the comments upon Fleming's

second submittal and that the contract specifications cited refer to 60 feet per minute as a maximum speed. The remainder of this paragraph constitutes plaintiff's legal argument, not statement of fact. In any event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 41. Agrees that the referenced meeting occurred and that the Corps agreed to permit

the design agreed upon. The allegation that Fleming "proved" what was required by the contract is argument, not a statement of fact. In any event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 42. of fact. 43. Agrees that this paragraph accurately quotes the contract section cited. The Disagrees. This paragraph constitutes plaintiff's legal argument, not a statement

statement regarding the means by which that the specification was created is based upon unsupported speculation in Mr. Kohn's affidavit. Agrees with the remainder of the paragraph only to the extent that Mr. Kohn is correct that the cables would have interfered with the safety edges as originally designed. The remainder of the paragraph constitutes argument and not a
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statement of fact. In any event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 44. Agrees that Fleming made its first submittal for the hangar doors on about May

12, 1986. The allegation that its submittal included the "proper" arrangement is plaintiff's legal argument, not a statement of fact. Mr. Kohn's affidavit has demonstrated no foundation for his alleged knowledge of any other such project or what items were accepted by the Corps for it. In any event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 45. 46. this paragraph. 47. this paragraph. 48. 49. Agrees. Agrees only that the Corps took exception to Fleming's second submittal as noted Agrees that the referenced letter by Fleming set forth the arguments contained in Agrees. Agrees that the referenced letter by Fleming set forth the arguments contained in

in this paragraph. The allegations that the Corps response "indicate[d] that the specifications were defective" and that the response demonstrated that the Corps "did not understand" the operation of the door are argumentative and speculative, not statements of fact. In any event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 50. Agrees that the referenced meeting occurred and that the Corps agreed with

Fleming's recommendation. The allegation that the Corps was convinced that use of safety edges upon trailing edges was "improper" is made without foundation. In any event, none of
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plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 51. Disagrees. This paragraph consists entirely of plaintiff's legal argument and is

not a statement of fact. 52. Agrees that Clearwater requested a redesign of the hangar doors to use a steel

different than that in the specifications. The allegation regarding steel allocation problems being "beyond the control" of Clearwater or Fleming is ambiguous and made without proper foundation. 53. 54. 55. 56. 57. 58. 59. 60. Agrees. Agrees. Agrees. Agrees. Agrees. Agrees. Agrees. Disagrees, because the support for this statement, Mr. Kohn's affidavit, is

insufficiently detailed to permit evaluation of its accuracy. In any event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States. 61. Disagrees with the allegation in the first sentence of this paragraph, because the

support for this statement, Mr. Kohn's affidavit, is insufficiently detailed to permit evaluation of its accuracy. Disagrees with the remainder of the paragraph, which is argument and not a statement of fact. In any event, none of plaintiff's allegations in this paragraph, if true, would preclude judgment in favor of the United States.
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62.

Disagrees. This paragraph consists entirely of plaintiff's legal argument and is

not a statement of fact. 63. Agrees that the Corps rejected the Fleming submittal. The remainder of this

paragraph is plaintiff's legal argument and is not a statement of fact. 64. 65. 66. 67. 68. 69. Agrees. Agrees. Agrees. Agrees. Agrees that the Corps approved the submittal on or about October 3, 1986. Agrees only that the first submittal was made on or about May 22, 1986 and that

the Corps issued its approval of the revised drawings on October 3, 1986. Disagrees with the remainder of this paragraph, which is plaintiff's legal argument and not statement of fact. 70. Disagrees. This paragraph consists entirely of plaintiff's legal argument and is

not a statement of fact. 71. Disagrees. This paragraph consists entirely of plaintiff's legal argument and is

not a statement of fact. 72. Disagrees. This paragraph consists entirely of plaintiff's legal argument and is

not a statement of fact. 73. 74. 75. 76. Agrees. Agrees. Agrees. Agrees.

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77.

Disagrees. This paragraph consists entirely of plaintiff's legal argument and is

not a statement of fact. 78. Disagrees that Fleming was "required" to travel to Omaha. Mr. Kohn's affidavit

does not provide support for the allegation of this "requirement." Disagrees with the remainder of this paragraph, which consists of plaintiff's legal argument and is not a statement of fact. 79. Disagrees. This paragraph consists entirely of plaintiff's legal argument and is

not a statement of fact. 80. Disagrees. This paragraph consists entirely of plaintiff's legal argument and is

not a statement of fact. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/James M. Kinsella JAMES M. KINSELLA Deputy Director

s/J. Reid Prouty J. REID PROUTY Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor, 1100 L Street, NW Washington, D.C. 20530 Tel: (202) 305-7586 Fax: (202) 514-7969 December 19, 2005 Attorneys for Defendant
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