Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:03-cv-02033-NBF

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IN THE UNITED STATES COURTOF FEDERALCLAIMS COMMERCIAL CASUALTY INSURANCE COMPANYOF GEORGIA, Plaintiff, No. 03-2033C (Judge Firestone) THE UNITED STATES, Defendant. DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT Pursuant to Rule 56(d) of the Rules of the United States Court of Federal Claims ("RCFC"),defendant, the United States, respectfully submits Defendant's ProposedFindings UncontrovertedFact. 1. OnJune 25, 2001, the United States Departmentof the Navy("Navy") awarded

Contract No. N62467-01-C-3215 ("the contract") to F.A.S. DevelopmentCompany, Inc. ("FAS"), to replace a 400Hz frequency converter at NavalAir Station Atlanta in Marietta, Georgia. Def. App. 1-3; Compl.~I 4. 2. OnJuly 17, 2001, plaintiff, Commercial Casualty Insnrance Company Georgia of

("Commercial Casualty" or "surety"), executed a performance bond in the amount $108,768.00 and a paymentbond in the amountof $108,768.00 in com~ectionwith and as required by the contract. Def. App.5-8; Compl.¶4. 3. OnJanuary 10, 2002, Commercial Casualty notified the Navyof outstanding

claims by "subcontractors and vendors on projects bondedby the surety" upon behalf of FAS, and that no paymentsshould be madeto FAS.Def. App. 9. 4. OnMarch27, 2002, FASand the Navyexecuted a bilateral modification,

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ModificationNo. P00001,to amend contract specifications, decrease the contract price from the $108,768.00, to $52,625.00, and extend the contract completiondate from October9, 2001, to June 14, 2002. Def. App. t0-11. Subsequently, FASand the Navyexecuted Modification No. P00002to extend the contract completiondate from June 14, 2002, to June 24, 2002. Def. App. 12. FAScompletedits work upon the contract on or about July 24, 2002. Def. App. 20; Compl.

5.

OnJuly 31, 2002, the NavyinformedFAS that its request for an assiom:m~ent the of

contract balance to ConmaercialCasualty was denied pursuant to the Assignmentof ClaimsAct, because "voluntary assig~mnentsof claims against the Govermnent [are barred] unless the assiglm~ent to a bank, trust, or financial institution." Def. App.13. is 6. OnAugust2, 2002, Conunercial Casualty requested by letter that the Navynot

release the contract funds to FAS but, instead, pay Commercial Casualty as the surety. Def. App. 16-18. In its letter, Conmaercial Casualtystated that it "is equitably subrogatedto the contract funds through its paymentof claims on this and other projects." Def. App. 17 (emphasisadded). At that time, however, Commercial Casualty had paid no claims upon this contract. Def. App. 34-35. 7. OnAugust19, 2002, the Navyunilaterally issued Modification No. P00003to the

contract, assessing liquidated dan~agesat $140.00per day for 30 days in the amount of $4,200.00, and decreasing the contract price to $48,425.00. Def. App. 19-20. OnSeptember10, 2002, FASsubmitted a final invoice, release, and request for payment the remainingcontract of balance of $48,425.00. Def. App. 21-23. The Navyhas not paid FASand continues to retain the contract funds. Compl.~t 6.

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8.

By letter dated September16, 2002, Commercial Casualty notified the Navythat

it had received claims for paymentfrom FAS'ssubcontractors upon the contract, FCX Systems, Inc. and RogersElectrical Contractors, Inc. ( Ro~,ers Electric"), and demanded the Navy that makepayment to CommercialCasualty. Def. App. 24-25. CommercialCasualty received claims from FAS'ssubcontractors totaling $37,209.00. Def. App. 26-32. 9. OnJuly 31, 2003, Commercial Casualty sent a paymentto Hatmakerand

Associates, a debt collection agencyhired by FCX Systems, in the amountof $25,644.00for the labor madmaterials that FCX Systems provided upon the contract. Def. App. 33-34. Hatmaker and Associates kept 20 percent of the paymentowedto FCX Systemsas its fee for debt collection. Def. App. 40. Accordingly, FCXSystems only received $20,515.20 of the amount owedto it upon the contract. Id_.=. The paymentmadeby Commercial Casualty to FCX Systems was madepursuant to the paymentbond issued by Co~mnercialCasualty. Compl.~I 8. 10. Although FASforwarded invoices from Rogers Electric to CommercialCasualty for paymenton or about August6, 2002, Rogers Electric has not received any paymentfrom CommercialCasualty. Def. App. 26, 38-39. 11. Commercial Casualty filed a complaint in this Court on September2, 2003. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

DAVID M. COHEN Director

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S/JAMES M. KINSELLA JAMES M. KINSELLA D~utyDirector

OF COUNSEL: S/KELLY B. BLANK KELLY B. BLANK Trial Attorney CommercialLitigation Branch Civil Division Departmentof Justice Attn: Classification Unit 8th Floor 1100 L St, N.W Washington, D.C. 20530 Tele: (202) 353-7961 Fax: (202) 353-7988

PAMELAJ. NESTELL Trial Attorney EngineeringField Activity Chesapeake Litigation Headquarters 1314 Harwood St., S.E. Washington, D.C. 20374 Tele: (202) 685-2136

May27, 2005

Attorneys for Defendant

4

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CERTIFICATEOF FILING I hereby certify that on May27, 2005, a copy of the foregoing "DEFENDANT'S PROPOSED FINDINGSOF UNCONTROVERTED was filed FACT" electronically. I

understand tbat notice of this filing wilt be sent to all parties by operationof the Court's electronic filing system. Parties may access this filing through the Court's system.

/s/KELLY B. BLANK