Free Motion to Stay - District Court of Federal Claims - federal

Case 1:08-cv-00190-SGB

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Filed 05/15/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS GILL-SIMPSON, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 08-190C (Judge Braden)

DEFENDANT'S UNOPPOSED MOTION FOR A STAY PURSUANT TO 41 U.S.C. § 605(c)(5) Pursuant to 41 U.S.C. § 605(c)(5), Defendant, the United States, respectfully requests a 120-day stay of proceedings, to and including September 15, 2008, for the Defense Contract Audit Agency ("DCAA") to audit Gill-Simpson, Inc.'s ("GSI") claim and for the contracting officer to issue a decision. The Government's response to GSI's complaint is currently due on May 19, 2008, and the Court has not previously granted an enlargement of time for the purpose. GSI's counsel has authorized Government counsel to state that GSI does not oppose the Court's granting this request. As alleged in the complaint, GSI submitted to the contracting officer an October 9, 2007 claim seeking $926,996.26 for alleged Government caused delays and disruptions of GSI's Simpson's work on contract MDA904-003-C-0259 for the National Security Agency ("NSA"). GSI filed its complaint in this Court

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alleging a deemed denial of its request of claim. Although GSI's Claim was received by the NSA, the contracting officer did not act on it because GSI's claim did not come to his attention until after GSI filed its complaint. Since obtaining a copy of GSI's claim, the contracting officer has undertaken to obtain a DCAA audit of the claim and assemble documents that will be required for an audit. DCAA has assigned an auditor to perform an audit of the claim. At this time, DCAA's auditor cannot provide an estimate of when an audit can be completed both because of prior commitments and because of the need to obtain information both from the NSA and from GSI. Under these circumstances, the Government believes that the most efficient resolution of this matter can be achieved by staying this matter for an audit of GSI's claim and for a contracting officer's decision. See 41 U.S.C. § 605(c)(5) ("[I]n the event an appeal or suit is so commenced in the absence of a prior decision by the contracting officer, the tribunal concerned may, at its option, stay the proceedings to obtain a decision on the claim by the contracting officer."). Depending upon the conclusions of the DCAA audit, the contracting officer might issue a decision that would obviate any need for further judicial proceedings. Assuming that the audit and contracting officer's decision do not obviate the need for further judicial proceedings, the proposed stay will not delay the ultimate 2

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resolution of these proceedings, since the Government would routinely order a DCAA audit of GSI's claim as a preliminary step in its defense of this case. See SCM Corp. v. United States, 645 F.2d 893 (Ct. Cl. 1981) (dismissing complaint with prejudice for contractor's refusal to permit government auditors to make a proper audit of its asserted costs). In the absence of an audit, the contracting officer and Government counsel have very limited information available to respond to the allegations in the complaint. The audit will provide both parties the information necessary to proceed in an efficient manner. For the foregoing reasons, the Government respectfully requests that the Court grant this unopposed motion for stay of all proceedings to September 15, 2008. 1

Should the Court deny this motion, the Government respectfully requests that the Court provide for the Government to file its response to GSI's complaint within 14 days of the Court's order. 3

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Respectfully submitted, GREGORY G. KATSAS Acting Assistant Attorney General JEANNE E. DAVIDSON Director REGINALD T. BLADES, JR. Assistant Director

OF COUNSEL: Michelle L. Patail Office of General Counsel National Security Agency /s/ John. S. Groat JOHN S. GROAT Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 616-8260 Fax: (202) 514-7965 [email protected] May 15, 2008 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on May 15, 2008, a copy of foregoing DEFENDANT'S UNOPPOSED MOTION FOR A STAY PURSUANT TO § 41 U.S.C. § 605(c)(5) 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. Parties may access this filing through the Court's system.

s/John S. Groat

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