Free Stipulation - District Court of Federal Claims - federal

Case 1:08-cv-00015-MBH

Document 20

Filed 09/12/2008

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

No. 08-15C (Judge Horn)

JOINT STATEMENT OF ISSUES OF LAW AND FACT Pursuant to this Court's August 27, 2008 order, the parties jointly and respectfully submit this joint statement of issues of law and fact to be resolved in the next stage of this case, which is: "to examine `the relation of the parties and the circumstances under which they executed the contract." Burchick Const. Co. v. United States, Fed. Cl. No. 08-15C, order dated August 6, 2008. 1. Is there extrinsic evidence regarding the relation of the parties and the

circumstances under which they negotiated and executed contract no. VA786A-C-0021 (the "Contract"), specifically with reference to the parties' intent and understanding of unit price for rock removal required upon the solicitation bid sheet, which addresses the ambiguity regarding Terms I and II (as those terms are defined in the Court's August 6, 2008 opinion) in the Contract? 2. If such extrinsic evidence exists, and the parties disagree about its meaning, the

Court may need to conduct an evidentiary hearing to consider such evidence and then issue a ruling setting forth the legal interpretation of Terms I and II in the Contract. 3. If no such evidence exists, Burchick Construction Company, Inc. will request that

the Court enter summary judgment in its favor, consistent with the Court's August 6, 2008

Case 1:08-cv-00015-MBH

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Opinion. 4. With respect to the Court's request that the parties include a schedule for

depositions, the parties intend on taking depositions between October 21 and November 21, 2008. The identity of the specific witnesses to be deposed will be determined based upon the responses to the written discovery requests in this case.

Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director s/ Reginald T. Blades, Jr. REGINALD T. BLADES, JR. Assistant Director

s/ D. Matthew Jameson, III DONALD MATTHEW JAMESON, III Babst, Calland, Clements, Zomnir, PC Two Gateway Center 8th Floor Pittsburgh, PA 15222 Tel. (412) 394-5400 Fax. (412) 586.1038 e-mail: [email protected]

s/ Devin A. Wolak DEVIN A. WOLAK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L St., N.W. Attn: Classification Unit, 8th Floor Washington, D.C. 20530 Tel. (202) 616-0170 Fax. (202) 305-7644 e-mail: [email protected] Attorneys for Defendant

Attorney for Plaintiff September 12, 2008

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CERTIFICATE OF FILING I hereby certify that on September 12, 2008, a copy of the foregoing "Joint Statement Of Issues Of Law And 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. Parties may access this filing through the Court's system.

s/ Devin Wolak