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

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No. 01-351 C (Judge Merow) ______________________________________________________________________________ IN THE UNITED STATES COURT OF FEDERAL CLAIMS CLEARWATER CONSTRUCTORS, INC, Plaintiff, v. THE UNITED STATES, Defendant. ______________________________________________________________________________ GOVERNMENT'S OPPOSITION TO PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT AND REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director JAMES M. KINSELLA Deputy Director J. REID PROUTY Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W., - 8th Floor Washington, D.C. 20530 Tele: (202) 305-7586 Fax: (202) 514-7969 Attorneys for Defendant December 19, 2005

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TABLE OF CONTENTS I. The Corps Required No Constructive Changes To The Contract . . . . . . . . . . . . . . . . . . . 2 A. B. II. The Contract Specified Wind Loads Of 40 Pounds Per Square Foot . . . . . . . . . . 2 The Contract Specified ed A 60 Pound Rail Size . . . . . . . . . . . . . . . . . . . . . . . . . 4

Clearwater May Not Recover For Any Alleged Defective Specifications . . . . . . . . . . . . 7 A. Clearwater Did Not Discharge Its Duty To Inquire Upon Patent Ambiguities . . . 7 1. 2. Clearwater Has Offered No Evidence Of Pre-Bid Inquiry . . . . . . . . . . . . 7 Any Alleged Pre-Bid Inquiry By Fleming Would Have Been Insufficient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B.

Fleming Was Not Misled By The Allegedly Defective Specifications . . . . . . . . 10 1. The Contractual Requirement For A 3/4 Inch Rail Height Was Not Misleading . . . . . . . . . . . . . . . . . . . . . . 10 Fleming Should Have Been Aware Of Any Design Defect Regarding The Top Rollers For The Door Leaves . . . . . . . . . . . . 11 Fleming Was Aware That The 60 Pound Rail Would Affect The Bottom Roller Size . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Fleming Was Aware That The Contract's Requirement For Leading And Trailing Safety Edges Posed Difficulties . . . . . . . . . . . . . . 12 The Pedestrian/Personnel Doors Were Not A Design Defect . . . . . . . . . 12

2.

3.

4.

5. III.

The Corps Is Not Liable For Any Difficulties Clearwater May Have Had In Obtaining Specialty Steel From Its Subcontractor . . . . . . . . . . . . . . . . . . . 13 Clearwater Cannot Collect Damages For Reasonable Actions Of Contract Administration Undertaken By The Corps . . . . . . . . . . . . . . . . . . . . . . . . . 14

IV.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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TABLE OF AUTHORITIES CASES Beacon Construction Co. of Mass. v. United States, 314 F.2d 501 (Ct. Cl. 1963) . . . . . . . . . . . 10 Community Heating & Plumbing Co., Inc. v. Kelso, 987 F.2d 1575 (Fed. Cir. 1993) . . . . . . . . 9 Comtrol, Inc. v. United States, 294 F.3d 1357 (Fed. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 10 E.L. Hamm & Associates v. England, 379 F.3d 1334, 1338-39 (Fed. Cir. 2004) . . . . . . . . passim Franklin E. Penny v. United States, 207 Ct. Cl.842, 542 F.2d 668 (1975) . . . . . . . . . . . . . . . . . 13 Lathan Co. v. United States, 20 Cl.Ct. 122, 128 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Robins Maintenance, Inc. v. United States, 265 F.3d 1254 (Fed. Cir. 2001) . . . . . . . . . . . . 10, 11 White v. Edsall Const. Co., Inc, 296 F.3d 1081 (Fed. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . 7, 9

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No. 01-351 C (Judge Merow) ______________________________________________________________________________ IN THE UNITED STATES COURT OF FEDERAL CLAIMS CLEARWATER CONSTRUCTORS, INC., Plaintiffs, v. THE UNITED STATES, Defendant. ______________________________________________________________________________ DEFENDANT'S OPPOSITION TO PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGEMENT AND REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Plaintiff, Clearwater Constructors, Inc. ("Clearwater"), has filed an opposition to the Government's motion for summary judgement ("the Government's motion") and filed its own cross-motion for summary judgment ("Clearwater's motion"). Although Clearwater's motion is long on criticism of the contract at the heart of its complaint ("the contract"), it does not demonstrate how such alleged deficiencies in the contract or any actions by the Corps of Engineers ("the Corps") actually required Clearwater to perform more work than required by the contract. Moreover, Clearwater concedes that any ambiguities in the contract were patent and that it did not resolve any such ambiguities prior to the bid, as was its legal obligation. Thus, as explained further below, and for the other reasons articulated in our motion, this Court should grant summary judgment in favor of the Government and dismiss this suit.

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I.

The Corps Required No Constructive Changes To The Contract As demonstrated in our earlier motion, the two areas in which Clearwater alleges that the

Corps required work beyond that in the contract ­ wind loading and rail size ­ were clearly specified by the contract and thus do not form the basis for a constructive change claim. See Lathan Co. v. United States, 20 Cl.Ct. 122, 128 (1990). Clearwater's assertions otherwise are not supported by the contract documents. A. The Contract Specified Wind Loads Of 40 Pounds Per Square Foot For The Hangar Doors

In our earlier motion, we demonstrated that, in two places, the contract explicitly provided that the hangar doors were to withstand wind loads of 40 pounds per square foot. Clearwater's response completely ignores the first relevant contract provision; mischaracterizes the second; and applies inappropriate provisions to derive its conclusion. The two provisions which most directly require the hangar doors be designed for 40 pound per square foot loads are a chart labeled "Wall Wind Loads" upon sheet S-44 of the contract specifications, see DPFUF 41, and Section 8C, paragraph 3.1.1 of the contract, see id. The chart upon sheet S-44 specifies a 40 pound per square foot wind load. Id. Section 8C, paragraph 3.1.1, discusses the ability of the hangar doors to be opened in particular wind conditions, stating that it should "includ[e] the maximum designed wind load condition of . . . 40 pounds per square foot for the horizontal rolling doors." Id.

"DPFUF__" refers to a paragraph of "Defendant's Proposed Findings of Uncontroverted Facts," filed contemporaneously with our earlier motion. -2-

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Nothing in Clearwater's response directly addresses the Wall Wind Load chart upon Sheet S-44 or explains why it should be inapplicable. See Pl.Mot. 14-17.2 Inasmuch as that chart explicitly provides for 40 pound per square foot loads, it should be controlling. Clearwater's response to the provisions of Section 8C, paragraph 3.1.1, see Pl.Mot. 15-16, is unpersuasive. Clearwater characterizes the references to wind-load in this contract provision as merely explaining that the doors' opening abilities under such a wind, see id., but that misses the point that the contract's language here explicitly states that "the maximum designed wind load condition [is] 40 pounds per square foot for the horizontal rolling doors." DPFUF 4. Regardless of whether the paragraph discussed door opening parameters, it made crystal clear that the "maximum designed wind load" for the doors was 40 pounds per square foot. This is certainly consistent with Fleming Steel's ("Fleming's") initial view of the contract requirements, in which Mr. Seth Kohn, Fleming's president, wrote that the load was 40 pounds per square foot. See DPFUF 8. Clearwater's response to this controlling design directive is to attempt to sow confusion by referring to inapplicable portions of the contract to which it, nevertheless, did not comply. In particular, Clearwater asserts that a provision of the contract relating to wind-loads upon "main resisting systems" should be applicable. Pl.Mot. 14-15. The first problem with this assertion is that a hangar door is not a "main resisting system," which is defined as: . . . an assembly of major structural elements assigned to provide support for secondary members and cladding. The system primarily receives wind loads from relatively remote locations. Examples include rigid and braced frames, space trusses, roof and floor diaphragms, sheer walls and rod-braced frames.

2

"Pl.Mot.__" refers to a page of Clearwater's motion. -3-

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DPFUF 6. As we explained in our earlier motion, the hangar doors would be "secondary members or cladding" which were supported by the main resisting system. Id. Although Clearwater asserts in its response to our earlier proposed findings of uncontroverted fact that hangar doors are, in fact, main resisting systems, it provides no support, whatsoever for this bald claim. See DPFUF Resp. 63. Moreover, even if the doors were a main resisting system and Clearwater were free to ignore the previously cited contractual provisions mandating a 40 pound per square foot wind load, the main resisting system provision would require Clearwater to have designed for 35 pound per square foot wind load. PPFUF 6.4 Clearwater, nevertheless, claimed that it needed only comply with a 30 pound per square foot load, which is what Fleming actually designed. DPFUF 8; Comp. 13-25.5 B. The Contract Specified A 60 Pound Rail Size

The contract was also clear in requiring a 60 pound per yard rail for the bottom rollers. Clearwater's attempts to blur the meaning of the contract to suggest that the specifications supported use of either a 60 pound "AREA" rail or an "ASCE" rail of undetermined size, see Pl.Mot. 17-18, is neither supported by the contract nor Fleming's actual view of the contract requirements when designing the doors, building them, or explaining the contract in a later deposition.

"DPFUF Resp. __" refers to a paragraph of Clearwater's "Response to Defendant's Proposed Findings of Uncontroverted Facts." "PPFUF__" refers to a paragraph of "Plaintiff's Proposed Findings of Uncontroverted Facts," submitted with Clearwater's motion.
5 4

3

"Comp.__" refers to a paragraph of Clearwater's complaint. -4-

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Despite the new affidavit Clearwater attached from Mr. Kohn, asserting that the contract did not require 60 pound rails, see Kohn Aff. 28-336, Mr. Kohn wrote just the opposite in his March 31, 1986 letter to the Corps, stating, "Paragraph 2.6.2 of Section 8C and Drawing S-53 Detail E indicate that the bottom rail size should be a minimum 60 lbs. per yard." A 197. Mr. Kohn further explained in that letter his recommendation that Fleming be permitted to use a lighter rail, "instead of the 60 lbs. per yard rail shown in the drawings." Id. We previously demonstrated that Mr. Kohn's tabulation sheet stated that "specs call for 60 # rail." DPFUF 12. Even the portion of Mr. Kohn's deposition testimony now cited by Clearwater upon this matter includes his statement that, "[i]t was very clear in the specifications and later on or further on in the specifications they called for a 60-pound per yard rail . . ." DPFUF Resp. 12. Mr. Kohn had good reason to read the rail specifications the same way that the Corps did. First, the interpretation advanced now by Clearwater, that the rail was to be either a 60 pound "AREA" rail or an "ASCE" rail of undetermined weight, see Pl.Mot. 17-18, is not supported by the contract language in Section 8C, paragraph 2.6.2, which does not make any distinction between the weight of AREA rail or ASCE rail. A 12. Clearwater's grammatical argument, that the phrase, "weighing not less than 60 pounds per yard" modifies the phrase, "AREA rail," but not "ASCE rail," fails because it is the word, "rail," which is so modified, not "AREA rail." The word "rail" appears twice in the relevant sentence, first, in the plural, as the subject of the sentence and second, in the singular, as an object: "Rails shall be standard ASCE or AREA rail

"Kohn Aff.__" refers to a paragraph of the affidavit of Seth Kohn which Clearwater filed with its motion. "A__" refers to a page of the appendix attached to "Defendant's Proposed Findings of Uncontroverted Facts" previously filed with the Court. -57

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weighing not less than 60 pounds per yard." A 12. Since the only word, "rail," following "ASCE" is the one immediately after "AREA," both AREA and ASCE must apply to the same appearance of the word, "rail," which, in turn, is the word modified by "not less than 60 pounds per yard." Clearwater's reading would require that one option be that, "rails be standard ASCE," which is nonsensical because it would beg the question: "ASCE what?" Of course, if the Corps had intended it to be either ASCE rail of an undetermined, but appropriate weight or AREA rail of 60 pounds per yard, the contract would have said so in much clearer terms. Clearwater's argument that the Corps interpretation of the contract makes section 8.1 of the contract superfluous, see Pl.Mot. 17-18, actually cuts against Clearwater's new interpretation of paragraph 2.6.2. As Clearwater would have it, the statement in section 8.1 of the contract, that, "[b]ottom rails shall be A.S.C.E. rails of size and weight needed," would be unnecessary if the weight of the rails was specified by the contract in paragraph 2.6.2, and it is best to read a contract to not include unnecessary language. Pl.Mot. 17-18. The flaw in this argument is that it applies with even more force to Clearwater's interpretation of paragraph 2.6.2 because that interpretation would make the entire cluster of words8, "AREA rail weighing not less than 60 pounds per yard" meaningless, since section 8.1 provides that the bottom rails would be A.S.C.E. rails. The reading of the contract which contains the least superfluous language would consider the dictates of section 8.1 to be a suggestion that the Corps had decided to use A.S.C.E. rail of the weight required by the contract, which is specified in paragraph 2.6.2 as 60 pounds per yard. Certainly, this is a more appealing reading of the contract than one in which the most specific and clear specifications, 60 pounds per yard, were read out of the contract. This is not a phrase because the entire phrase would include the preceding words, "ASCE or." -68

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II.

Clearwater May Not Recover For Alleged Defective Specifications A. Clearwater Did Not Discharge Its Duty To Inquire Upon Patent Ambiguities

Nothing in Clearwater's motion challenged our assertion that all of the allegedly defective specifications would have been patently ambiguous to Fleming, thus Clearwater must concede the point. Nor does Clearwater challenge the applicability of the law which provides that a contractor is obligated to seek clarification of patent deficiencies in a contract. E.g., White v. Edsall Const. Co., Inc, 296 F.3d 1081, 1085 (Fed. Cir. 2002). Instead, Clearwater asserts that Mr. Kohn must have made a clarifying inquiry because it was his practice to do so. Pl.Mot. 6. The evidence offered by Clearwater does not support this weak assertion and Fleming's demonstrated failure to obtain any clarification upon such specifications is a failure to meet its duty to inquire. 1. Clearwater Has Offered No Evidence Of Pre-Bid Inquiry

In our earlier motion, we demonstrated that no clarifying pre-bid inquiries had been made to the Corps by Clearwater or Fleming. The basis for this conclusion was the fact that any such inquiry would have been recorded in the records retained by the Corps and that the records did not reflect such an inquiry. A 42-43. Clearwater does not dispute the factual predicates of this conclusion, but, instead, alleges that the supporting affiant, Ms. Poluektova, was not involved in the contract some 19 years ago. Pl.Mot. 6. Clearwater has not given the Court any reason to believe that the description of the Corps' normal course of business is incorrect or that the memory of a Corps employee about unexceptional events nearly two decades ago would be any more helpful. On the other hand, the evidence offered by Clearwater in support of its assertion that pre-

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bid inquiries were made, Mr. Kohn's deposition testimony, is unspecific speculation, as consistent with Mr. Kohn's not having brought the issue to the attention of the Corps as it is with his having done so. Mr. Kohn's deposition testimony upon pre-bid inquiry first stated that it was his practice to send a letter to the Corps explaining areas of contract discrepancies, then stating (after being informed that no such letter had been produced in discovery) that, "I don't recall if there was or wasn't." SA 1.9 Mr. Kohn's inability to testify that he had actually made such a request to the Government continued: Q: A: Do you have a specific memory that you sent such a letter in this case? No, I don't have a specific memory of a letter. I know that I did question a lot of this though. Q: A: Q: A: When you said you questioned it, questioned it to whom? I don't recall that either. Do you recall if you questioned it to the government in any way? Specific? No. I'm not guaranteeing that I did, but I do remember questioning it.

SA 2 (emphasis added). Mr. Kohn also testified that, in his general practice, questions might be "given to the general contractors, which would, in turn take it to a pre-bid meeting or submit it as part of a letter for clarification." SA 1-2. In short, Mr. Kohn's testimony is equally consistent with his having raised the issue with Clearwater as with the Corps ­ especially given his admission that he did not guarantee that he had actually inquired with the Corps. In such a case, the testimony does not raise a factual dispute with the Corps' demonstration that no inquiry had, in fact, been made.

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We note that Mr. Kohn's March 31, 1986 (post-award) letter to the Corps regarding the contract problems is consistent with the issues being raised to the Corps for the first time therein and inconsistent with its being raised pre-bid. It includes such language as, "our preliminary investigation of the drawings . . . has found a condition on which we offer the following comments and suggestions," and "we also call to your attention." A 19. The letter is utterly devoid of any mention of pre-bid inquiry and reads as if the matters were brought to the Corps attention for the first time. Id. A review of Clearwater's complaint, which provides great detail regarding post-award meetings between Fleming and the Corps, demonstrates that it is conspicuously silent upon any pre-bid discussions between Fleming or Clearwater and the Corps about any alleged contractual ambiguities. The reason for this absence is simple and consistent with Mr. Kohn's testimony and the affidavit of Ms. Poluektova: whatever questions Mr. Kohn may have had about the contract and whoever they might have been articulated to, they were not made to the Corps. 2. Any Alleged Pre-Bid Inquiry By Fleming Would Have Been Insufficient

Mr. Kohn's testimony does not even inform the Court of which, if any, alleged contract deficiencies he thinks he might have brought to the attention of the Corps. SA 1-2. Nevertheless, should the Court find that there is evidence which would support a finding that he brought some contractual deficiencies to the attention of the Corps, a casual mention of such concerns would have been insufficient to discharge Fleming's duty when facing a patent ambiguity. "[I]t is not enough under the duty to inquire to make an initial inquiry," the inquiry must be pursued to clarification. Community Heating & Plumbing Co., Inc. v. Kelso, 987 F.2d 1575, 1580 (Fed. Cir. 1993)(even if contractor inquires, the inquiry must be pursued to

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clarification). See also Beacon Construction Co. of Mass. v. United States, 314 F.2d 501, 504 (Ct. Cl. 1963) (purpose of requiring inquiry regarding ambiguities and discrepancies "is to enable potential contractors (as well as the Government) to clarify the contract's meaning before the die is cast"). B. Fleming Was Not Misled By The Allegedly Defective Specifications

As demonstrated in our earlier motion, Fleming was aware of all of the allegedly defective specifications when it estimated the job and was misled by none of them. Accordingly, it is not entitled to any recovery for them. E.g., Robins Maintenance, Inc. v. United States, 265 F.3d 1254, 1257 (Fed. Cir. 2001); accord Comtrol, Inc. v. United States, 294 F.3d 1357, 1364 (Fed. Cir. 2002); E.L. Hamm & Associates v. England, 379 F.3d 1334, 1338-39 (Fed. Cir. 2004) (If a contractor is aware of the defect at the time of entering the contract, it may not recover upon a defective specifications claim.). 1. The Contractual Requirement For A 3/4 Inch Rail Height Was Not Misleading

We demonstrated in our earlier motion that the contract called for a 3/4 inch rail height. Clearwater concedes that the contract drawings called for that rail height and that the work the Corps required of Clearwater was exactly that called for in the contract. Pl. Mot. 9-10. Under these circumstances, Clearwater has no basis for its claim of a design defect which would have misled it: Clearwater's insistence that Fleming knew better than the Corps what the Corps wanted was a case of Clearwater misleading itself.

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2.

Fleming Should Have Been Aware Of Any Design Defect Regarding The Top Rollers For The Door Leaves

This portion of the claim can profitably be considered in two sections: the top rollers for the center door leaves and the top rollers for all other door leaves. Our earlier motion demonstrated that the contract specifications required four top rollers per door leaf and that the Corps held Fleming to that requirement for all but the central doors. Although Fleming now claims that the contract was defective here because the contract drawings did not "indicate the quantity of top guide rollers or their location," Pl.Mot. 7, this statement is irrelevant because the quantity (four per door leaf) of the top guide rollers was plainly spelled out in the contract specifications as Clearwater concedes. Id. Clearwater's further assertion, that two rollers per door leaf would have been sufficient for the doors, Pl.Mot. 7-8, is equally irrelevant here: the contract spelled out the number of door rollers; the Corps required that number be used for all but the central leaves. Clearwater appears to be laboring under the mistaken notion that contract specifications different than those Fleming or another subcontractor would use if it designed the project constitute deficient specifications. Clearwater cites no law in support of this novel claim. More to the point, the foundation for a defective specification claim is that the contractor is misled by the allegedly deficient contract specifications, Robins Maintenance, 265 F.3d at 1257; since Fleming knew of the specifications here, it cannot claim to have been misled for those leaves in which four rollers were required. The central door leaves represent a slightly more complicated issue because we have conceded that the contract requirements of four wheels were impossible for these leaves. Nevertheless, Mr. Kohn was aware that four wheels per leaf would be inappropriate for these leaves when he made his estimate prior to the bid, A 26, but did nothing to resolve it with the -11-

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Corps. Under these circumstances, Clearwater is not entitled to any recovery. E.L. Hamm, 379 F.3d at 1339. 3. Fleming Was Aware That The 60 Pound Rail Would Affect The Bottom Roller Size

We explained in our earlier motion that Fleming was well aware of any problems created by the 60 pound bottom rail with regard to the bottom roller, but did nothing to obtain clarification from the Corps about the matter. Clearwater's motion does not address this directly, but approaches the 60 pound rail as being outside of the contract requirements. See Pl.Mot. 1719. We dispatched this argument earlier in this brief. 4. Fleming Was Aware That The Contract's Requirement For Leading And Trailing Safety Edges Posed Difficulties

We demonstrated in our earlier motion that Fleming was aware of the problems with the safety edges as originally designed, but did nothing to resolve them prior to the bid. Clearwater's argument in its motion is merely an explication of the problems presented by those doors as originally designed. Pl.Mot. 11-12. We do not disagree; rather, we note that Clearwater was not misled by the deficiencies here, but did nothing to resolve them until after contract performance began. E.L. Hamm, 379 F.3d at 1338-39. Moreover, because the alleged deficiencies were an "obvious inconsistency of consequence," Fleming cannot seek damages as a result of them when it made no effort to bring the inconsistency to the attention of the Corps prior to the bid. Id. at 1339. 5. The Pedestrian/Personnel Doors Were Not A Design Defect

We explained in our earlier motion that there was nothing misleading about the location of the pedestrian doors. In response, Clearwater asserts that it should be compensated for

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answering questions the Corps had about its chosen location of the doors. Pl.Mot. 12-13. A close reading of Clearwater's allegations demonstrates that it performed no additional work: Fleming submitted its plans; the Corps questioned the location of the doors; Fleming responded that they were placed appropriately; the Corps asked Fleming to scale the drawings; it refused; and the Corps allowed Fleming to put the doors where it pleased. Id. This sequence of events supports no claim for defective specifications and reflects no additional work on the part of Fleming beyond the typical interplay between contractor and customer upon the submission of plans. III. The Corps Is Not Liable For Any Difficulties Clearwater May Have Had In Obtaining Specialty Steel From Its Subcontractor We explained in our earlier motion that Clearwater has no basis for seeking damages from the Corps for difficulties its chosen subcontractor (AFCO) had in obtaining a type of structural steel required by the contract. As we discussed and Clearwater now concedes, the basis for this portion of the claim is that Clearwater encountered difficulty obtaining a particular type of structural steel required by the contract and requested that Fleming redesign the doors to use a different kind of steel. Pl.Mot 19-20. Clearwater appears to complain that the Corps did not approve its newly proposed designs as quickly as it would have liked, id., but this is no basis for a claim: the Corps was under no obligation to allow any deviation from the design based upon Clearwater's difficulty in obtaining materials required by the specifications, see Franklin E. Penny v. United States, 207 Ct. Cl. 842, 542 F.2d 668 (1975) (responsibility for obtaining supplies rests with contractor), thus the Corps' allowing such a deviation was an act of forbearance. Clearwater has provided no authority for the proposition that the Corps should be liable to it for actions taken to essentially allow Clearwater to deviate from the contract's strict -13-

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requirements. IV. Clearwater Cannot Collect Damages For Reasonable Actions Of Contract Administration Undertaken By The Corps The last set of Clearwater's claims is based upon the notion that the Government allegedly delayed its approval of Clearwater's contract submittals within 30 days. Pl.Mot 23-25. We discussed these claims in our earlier motion, explaining that the Government would only be liable if the delay were in approval were its fault. Clearwater's motion here catalogues particular submittals, beginning with June 18, 1986 and concludes that the Government should be liable for its failure to approve them before October 3, 1986. Pl.Mot. 23-24. The most obvious flaw in this claim is that it assumes that the submittals were wrongly rejected. We demonstrated in our earlier motion and herein that the Corps' rejections of Fleming's initial plans and those plans submitted on July 1, 1986 were based upon the fact that they did not comply with contractual requirements, such as the number of top rollers. See SA 3-4 (item 15, rejecting two-roller proposal for non-central doors in July 1, 1986 submittal). The next submittal provided by Fleming was the one submitted by Fleming to Clearwater on August 29, 1986 and forwarded to the Corps more than a week later. See PPFUF 66, 67. Clearwater concedes that 30 days is a reasonable time for the Corps to review such submittals, Pl.Mot. 24, and these were approved on October 3, 1986, 25 days later. Id. Accordingly, by Clearwater's own admission, the Corps' approval of the first set of Fleming's plans which complied with the contract was timely. Finally, Clearwater's claims for additional costs, as a result of travel and making multiple submittals to the Corps is admittedly premised upon the Corps being liable for an equitable adjustment in this case. Pl.Mot. 28. Since, as we described in our earlier motion and above, the -14-

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Corps is not liable to Clearwater in this case, Clearwater's claims for added expenses should be denied. CONCLUSION For the foregoing reasons and for those reasons set forth in our earlier motion for summary judgment, we respectfully request that the Court grant the Government's motion for summary judgment and deny Clearwater's cross-motion for summary judgment. 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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