Free Stipulation - District Court of Federal Claims - federal

Case 1:00-cv-00775-TCW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BRERO CONSTRUCTION, INC. Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 00-775C (Judge Wheeler)

JOINT STIPULATION OF FACTS Pursuant to the Court's February 16, 2006 Order, the parties hereby stipulate to the following facts for purposes of the trial to be held in this case: 1. On January 15, 1993, plaintiff, Brero Construction Inc. ("Brero"), and the Department of

Labor ("DOL") entered into a contract ("the contract") for work involving the San Jose, California Job Corps Center. 2. Pursuant to the contract, Brero was to demolish certain buildings on the site, renovate

others, and build some new buildings. The original contract was for a firm fixed price of $8,268,000. 3. Certain modifications were made to the contract and its price was accordingly raised to

$8,999,199. 4. The original completion date of the contract had been 546 days from the Notice to

Proceed, which was February 1, 1993. 5. With the modifications noted above, the substantial completion date was extended to

September 9, 1994 with a project closeout date of November 4, 1994.

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6.

In early 1993, the San Jose area was subjected to very heavy rains. These rains caused

the soil in the are of the Job Corps Center to be so saturated with water that progress on the project was substantially delayed. 7. In March, 1993, Brero brought the soil conditions to the attention of the Contracting

Officer ("C.O.") and the parties engaged in discussions on the appropriate remedy. Ultimately, the C.O. agreed to provide a non-compensable 90 day extension of time, which was reflected in bilateral Modification 8 to the contract. 8. Throughout the lifetime of the project, DOL made several changes to the contract. Some

of these changes included some additional requirements; some eliminated or changed contractual requirements. For some of these changes, the C.O. determined that no additional costs were incurred and that no additional time would be required for completion of the job. 9. 10. The project was substantially completed on November 7, 1994. Brero made several requests for equitable adjustment regarding the changes and the

supposed inefficiencies they caused. A number of them have been resolved through a settlement at the Department of Labor Board of Contract Appeals. 11. Brero submitted to the C.O. a Time Impact Analysis dated October 9, 1998, a Revised

Quantum dated December 2, 1998, a Final Loss of Productivity Analysis dated September 20, 1999, revised Change Order Proposals ("COP") 170 and 222, and a Time Impact Analysis. including A/E errors in October 1999. 12. COPs 177 and 222 were not resolved by the settlement at the Department of Labor Board

of Contract Appeals. 13. COP 170, which is a request for a $246,411.97 equitable adjustment was based upon the

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additional "general conditions" costs allegedly generated by the change orders and the corresponding delay they caused in completion of the project. 14. COP 222 is a request for $697,826.80 in equitable adjustment for alleged "loss of

productivity" in the framing work on the project, allegedly caused by actions of the Department of Labor. 15. COP 170 and COP 222 were denied by the C.O. in a decision dated June 1, 2000, in

which the Government also asserted a $9,870 claim against Brero for liquidated damages as a result of Brero's completing the project 42 days late ( the C.O. determined that Brero should only be held responsible for 42 days of the 59 day delay) at the contractual rate of $235 per day. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Todd. M. Hughes TODD M. HUGHES Assistant Director

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s/ Ronald L. Roberts RONALD L. ROBERTS 1864 Woodmore Drive, Suite 205 Monument, CO 80132 Tele: (719) 593-7773 Fax: (719) 531-7312

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, N.W. Washington, D.C. 20530 Tele: (202) 305-7586 Fax: (202) 514-7969 Attorneys for Defendant

Attorney for Plaintiff April 21, 2006

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