Free Amended Complaint - District Court of Federal Claims - federal

Case 1:05-cv-00271-EJD

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BRICKWOOD CONTRACTORS, INC., No. 05-271C Plaintiff, v. THE UNITED STATES, Defendant. HONORABLE CHIEF JUDGE DAMICH

PLAINTIFF S FIRST AMENDED COMPLAINT Plaintiff, Brickwood Contractors, Inc. ("Brickwood") complains of defendant United States of America and for its amended claim of relief against defendant states as follows: I. 1. NATURE OF ACTION

This is a suit brought under the Contract Disputes Act by a contractor

appealing the final decisions of the Contracting Officer denying the contractor's claims for payment of an invoice submitted pursuant to a government contract, costs incurred due to differing site conditions, costs incurred due to changes, and costs incurred due to the government s interference with plaintiff s ability to perform on the contract. II. 2. PARTIES

Plaintiff is Brickwood, a Virginia corporation with its principal place of

business in Manassas, Virginia. 3. Defendant is the United States of America acting by and through its authorized

agents of the United States Department of Justice, Federal Bureau of Prisons. III. 4. JURISDICTION AND VENUE

The court has jurisdiction over this action and venue is proper pursuant to the

Contract Disputes Act, 41 U.S.C. §§ 601-613. IV. 5. BACKGROUND

On or about July 25, 2003, the defendant, acting by and through the United

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States Department of Justice, Federal Bureau of Prisons, Northeast Regional Contracting Office, awarded Contract No. J20802c-011 ( Contract ) to Brickwood. 6. Pursuant to the Contract, Brickwood was to provide all materials, supplies,

manpower, equipment, and expertise necessary to repair and repaint a 500,000 gallon water storage tank located at the Federal Correctional Institution Loretto. As awarded, the contract price was $769,998.00. 7. The Contract incorporates by reference the following clauses which are

relevant to this dispute: FAR 52.232-5, Payments under Fixed-Price Construction Contracts (Sep. 2002); FAR 52.233-1, Disputes (Alternate 1 Dec. 1991) (Jul. 2002); FAR 52.236.2, Differing Site Conditions (Apr. 1984); FAR 52.243-4, Changes (Aug. 1987). 8. On or about November 11, 2004, Brickwood submitted Invoice No. 07-

Revised to the United States for payment. That invoice requested progress payment in the amount of $83,580.76. 9. By letter dated November 24, 2004, defendant rejected Brickwood's Invoice

No. 07-Revised for payment. As a result, the defendant refused to pay any of the amount requested by Brickwood in that progress payment request. 10. By letter dated December 7, 2004, Brickwood submitted to the government a

certified claim for payment of Brickwood's Invoice No. 07-Revised in the amount of $83,580.76. 11. More than 60 days have passed since Brickwood submitted its claim for

payment of Brickwood s Invoice No. 07-Revised in the amount of $83,850.76 and defendant has failed or refused to issue a final decision on Brickwood's claim. CAUSE OF ACTION -- BREACH OF CONTRACT FAILURE TO PAY INVOICE 12. Brickwood incorporates by reference paragraphs 1-11 of the Complaint as if

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fully set forth herein. 13. Pursuant to FAR 52.232-5, defendant is obligated to make progress payments

to Brickwood as work proceeds based on proper invoices submitted by Brickwood. 14. Invoice No. 07-Revised submitted by Brickwood is a proper progress payment

request, in form and content. 15. government. 16. The refusal by the government to pay Invoice No. 07-Revised violates the Brickwood is entitled to payment of Invoice No. 07-Revised by the

government's obligations under the Payments Clause of the Contract. CAUSE OF ACTION BREACH OF CONTRACT

DIFFERING SITE CONDITION 17. Brickwood incorporates by reference paragraphs 1-16 of the Complaint as if

fully set forth herein. 18. On or about June 23, 2004, Brickwood encountered a differing site condition

when constructing the temporary water tank. 19. By letter dated June 23, 2004, Brickwood notified the defendant of the

differing site condition at the temporary tank. 20. 21. 22. Brickwood incurred additional costs due to the differing site condition. The defendant refused to pay Brickwood for the additional costs. By letter dated January 7, 2005, Brickwood submitted to the government a

certified claim for payment. 23. 24. By letter dated February 16, 2005, the government denied Brickwood s claim. The government s actions violate its obligations under the Contract. CAUSE OF ACTION BREACH OF CONTRACT

UNABSORBED HOME OFFICE OVERHEAD 25. Brickwood incorporates by reference paragraphs 1-24 of the Complaint as if

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fully set forth herein. 26. On or about June 23, 2004, Brickwood encountered a differing site condition at

the temporary water tank. The Government did not respond to the differing site condition until September 2004. 27. The government s delay in responding to the differing site condition pushed

construction work past the working season and requires Brickwood to return in May of 2005 to complete the work. 28. Brickwood could not perform work during the construction season and the

winter season and incurred unabsorbed home office overhead. 29. By letter dated January 7, 2005, Brickwood submitted to the government a

certified claim for payment. 30. 31. By letter dated February 16, 2005, the government denied Brickwood s claim. The government s actions violate its obligations under the Contract. CAUSE OF ACTION BREACH OF CONTRACT

IDLE EQUIPMENT 32. Brickwood incorporates by reference paragraphs 1-31 of the Complaint as if

fully set forth herein. 33. On or about June 23, 2004, Brickwood encountered a differing site condition at

the temporary water tank. The Government did not respond to the differing site condition until September 2004. 34. The government s delay in responding to the differing site condition delayed

work performance and pushed construction work past the working season. Brickwood must return in May of 2005 to complete the work. 35. Brickwood could not perform work during the construction season or the

winter season and incurred costs for idle equipment. 36. By letter dated January 7, 2005, Brickwood submitted to the government a

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certified claim for payment. 37. 38. By letter dated February 16, 2005, the government denied Brickwood s claim. The government s actions violate its obligations under the Contract. CAUSE OF ACTION BREACH OF CONTRACT

EXTENDED FIELD OVERHEAD 39. herein. 40. During construction, Brickwood encountered changes, including changes at the Brickwood incorporates paragraphs 1-38 of the Complaint as if fully set forth

Chlorine Building. 41. Brickwood submitted requests for information to the government which were

either ignored or insufficiently answered. 42. thereof. 43. By letter dated January 7, 2005, Brickwood submitted to the government a Brickwood incurred damages due to the government s responses, or lack

certified claim for payment. 44. 45. By letter dated February 16, 2005, the government denied Brickwood s claim. The government s actions violate its obligations under the Contract. CAUSE OF ACTION BREACH OF CONTRACT

ERECT & DISMANTLE TEMPORARY TANK 46. herein. 47. On or about June 23, 2004, Brickwood encountered a differing site condition at Brickwood incorporates paragraphs 1-45 of the Complaint as if fully set forth

the temporary water tank. The Government did not respond to the differing site condition until September 2004. 48. As a result of the differing site condition and the government s response to the

same, Brickwood was required to erect and dismantle the temporary water tank on multiple

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occasions and incurred additional costs. 49. By letter dated January 7, 2005, Brickwood submitted to the government a

certified claim for payment. 50. 51. By letter dated February 16, 2005, the government denied Brickwood s claim. The government s actions violate its obligations under the Contract. CAUSE OF ACTION BREACH OF CONTRACT

INSTALL TEMPORARY DRIVEWAY 52. herein. 53. During construction, Brickwood encountered changes, including the location Brickwood incorporates paragraphs 1-51 of the Complaint as if fully set forth

for constructing the driveway at the Chlorine Building. 54. Brickwood incurred additional costs to construct a driveway at the Chlorine

Building due to government changes. 55. By letter dated January 7, 2005, Brickwood submitted to the government a

certified claim for payment. 56. 57. By letter dated February 16, 2005, the government denied Brickwood s claim. The government s actions violate its obligations under the Contract. CAUSE OF ACTION BREACH OF CONTRACT

FLOW SENSOR 58. herein. 59. During construction, Brickwood encountered changes, including the ability to Brickwood incorporates paragraphs 1-57 of the Complaint as if fully set forth

utilize the specified flow sensor. 60. 61. The government-specified flow sensor could not attach to the watermain. Brickwood incurred additional costs to install a flow sensor that would attach

to the watermain.

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62.

By letter dated January 7, 2005, Brickwood submitted to the government a

certified claim for payment. 63. 64. By letter dated February 16, 2005, the government denied Brickwood s claim. The government s actions violate its obligations under the Contract. CAUSE OF ACTION BREACH OF CONTRACT

GOVERNMENT INTERFERENCE WITH ABILITY TO PERFORM 65. herein. 66. During construction, Brickwood encountered differing site conditions and Brickwood incorporates paragraphs 1-64 of the Complaint as if fully set forth

other changes. Upon the occurrences, Brickwood sought information and responses from the government. The government has failed to timely respond to Brickwood s requests, or insufficiently responded to Brickwood s requests. Such action and/or inaction by the government interfered with Brickwood s ability to perform on the Contract. 67. The government appears to contend Brickwood should have performed

exterior painting and associated work during the winter. This was not possible due to freezing temperatures and its effect on water storage. Brickwood advised the government in writing on August 4, 2004, August 28, 2004, September 27, 2004, and October 1, 2004 of the government s actions and/or inactions and their impact on Brickwood s ability to perform, including the ability to perform work during the winter. Brickwood advised in writing that it would need to return in the spring of 2005 to complete the work. 68. The government further interfered with Brickwood s surety relationship,

thereby affecting Brickwood s ability to perform on the Contract. 69. Such actions and/or inactions by the government caused damage to Brickwood

in an amount to be proven at trial. 70. The government s actions violate its obligations under the Contract.

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PRAYER FOR RELIEF WHEREFORE, plaintiff respectfully prays for relief as follows: 1. Judgment against the United States in an amount not less than $346,115.45, the

exact amount to be proven at trial; 2. Such other and further relief as the court deems just, necessary, and proper.

DATED this 22nd day of April, 2005. PRESTON GATES & ELLIS LLP

By /s/ Derek D. Crick ____________ Derek D. Crick, WSBA #28759 PRESTON GATES & ELLIS LLP 925 Fourth Avenue, Suite 2900 Seattle, WA 98104-1158 Phone: (206) 623-7580 Fax: (206) 623-7022 [email protected] Counsel of Record for BRICKWOOD CONTRACTORS, INC. OF COUNSEL: Mark G. Jackson Kevin A. Rosenfield PRESTON GATES & ELLIS LLP 925 Fourth Avenue, Suite 2900 Seattle, WA 98104-1158 (206) 623-7580 (206) 623-7022 April 22, 2005

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CERTIFICATE OF SERVICE I hereby certify that on April 22, 2005, I electronically filed the foregoing with the Clerk of the Court using CM/ECF system which will send notification of such filing to all parties of record.

/s/_Judy Goldfarb___________________ Judy Goldfarb

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