Free Stipulation - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NORTH STAR ALASKA HOUSING CORP., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 98-168C (Judge Allegra)

PARTIES' STIPULATION OF FACTS Pursuant to the Court's July 18, 2005 order, the parties submit the following stipulation of facts: 1. Fort Wainwright, in Fairbanks, Alaska, is the site of Birchwood Estates, a 400-

unit housing project for soldiers and their families that plaintiff, North Star Alaska Housing Corporation ("North Star") developed and leases to the Government. 2. In 1986 and 1987, North Star and the United States entered into the series of

leases comprising the Birchwood Estates agreement. 3. Lease No. DACA 85-1-86-11 is the lease of the property on Fort Wainwright for

32 years, through June 26, 2018. 4. Lease No. DACA 85-9-86-27 is the lease of the same property with residential

property and other improvements back to the Government. 5. Lease No. DACA 85-8-88-17 ("the lease"), entered into November 6, 1987, is the

lease of improved property from North Star to the Government for a term of 19 years and six months, through May 5, 2007.

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6.

Article I of the lease provides that the "Premises" includes "land situated on the

Fort Wainwright Military Reservation ... together with the improvements constructed and provided thereon." 7. Article IV of the lease provides that "the Government shall pay to [North Star] an

annual rental . . . consist[ing] of a shelter rent and a maintenance rent" and that the "portion of the annual rental attributable to maintenance shall be increased or decreased at the commencement of each year." 8. Article IV of the lease provides that "[i]t is expressly understood and agreed to by

[North Star] that the obligations of the Government to make any payments under this agreement and Lease [are] subject to the availability of appropriations for that purpose." 9. Article VII of the lease provides that "[t]he Government shall have the right ... to

make alterations, attach fixtures, and erect additions, structures, or signs in or upon the Premises. However, no such changes shall be made to any improvement without the written consent of [North Star]." 10. Article VIII of the lease provides that "[i]n addition to rents stipulated in Article

IV of this Lease, the Government, at its option, may pay [North Star] an incentive fee not to exceed 5 percent (5%) of the maintenance rental for all housing units, for the period of time for which [North Star's] performance of the obligations and responsibilities contained herein are evaluated and found by the Government to substantially exceed the established standards. The amount of the incentive fee shall be determined by an Incentive Fee Board based upon the performance of [North Star] in operating the Premises in accordance with its obligation. Exhibit

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`C' contains the provisions to establish the makeup of the Board and the procedures for determining such bonuses." 11. Exhibit C to the lease is the "Maintenance, Repair and Operational Services

Standards Annex." 12. Section B.2 of the maintenance annex defines "acceptance inspection" as "[t]he

inspection of a vacant unit between changes of occupancy or subsequent to completion of renovation work to ensure that all work has been completed satisfactorily and that the unit is in a presentable condition for viewing and acceptance by a prospective occupant." 13. Section B.4 of the maintenance annex defines "Basic Allowance for Quarters

(BAQ) / Variable Housing Allowance (VHA)" as "[t]he housing allowances program(s) prescribed by Public Law, as amended, and any successor housing allowances program, provided to the military member to offset the cost of housing. The current BAQ and VHA rates and methods for calculating the average daily rate and provided in Exhibit 1." 14. Section B.7 of the maintenance annex defines "change of occupancy" as "[t]he

termination of assignment by the Government of [an] occupant to a unit or the assignment of [an] occupant by the Government to a unit and the associated downtime occurring between these two events." 15. Section B.10 of the maintenance annex defines "downtime" as "[t]he period of

time during which a unit is vacant and has been officially turned over to [North Star] for accomplishment of required work. For purposes of this lease agreement, downtime is measured in working days, vice calendar days."

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16.

Section B.15 of the maintenance annex defines "housing project manager" as

"[t]he individual(s), designated by the Government, who is/are charged with the responsibility for the day-to-day administration of the housing site and fulfillment of the Government's responsibilities under the terms of [the] lease agreement." 17. Section B.18 of the maintenance annex defines "maintenance" as "[t]he recurring

periodic or scheduled work required to preserve real property facilities, systems, moveable equipment, and accessories in such condition that they may be effectively utilized for their designated purpose." 18. Section B.24 of the maintenance annex defines "pre-termination inspection" as

"[t]he inspection of a unit prior to the termination of [an] occupant's assignment to that unit during which time the occupant's responsibilities and maintenance deficiencies are identified." 19. Section B.26 of the maintenance annex defines "repair" as "[t]he restoration of

real property facilities, systems, moveable equipment, and accessories to such condition that they may be effectively utilized for their designated purpose." 20. Section B.28 of the maintenance annex defines "site manager" as the "[p]rimary

point of contact authorized to act for [North Star] in all matters regarding work required at the housing site." 21. Section B.30 of the maintenance annex defines "termination" as "[t]he formal

cessation of assignment by the Government of [an] occupant to a unit." 22. Section B.31 of the maintenance annex defines "termination inspection" as "[t]he

inspection of a unit after a unit is vacated prior to the formal termination of assignment of [an] occupant to that unit." 4

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23.

Section B.33 of the maintenance annex defines "work authorization" as "[a]n

official document issued by the Government for the accomplishment of work by [North Star] and which is used to verify entitlement for reimbursement." 24. Section B.34 of the maintenance annex defines "work order" as "[a] chit or other

medium which is used by [North Star] to document all maintenance, repair, or renovation work accomplished by [North Star] in accordance with the terms of [the] lease agreement." 25. Section C.1 of the maintenance annex provides that "[North Star] is responsible

for the . . . maintenance, repair, replacement . . . and all operations required to support the housing site. This includes . . . housing units . . . and all other components and systems of the total housing site insofar as such responsibilities are not normally undertaken by local governmental authorities." 26. Section C.1(c)(2) of the maintenance annex provides that "[North Star] shall

furnish sufficient personnel to perform all work specified within this annex." 27. Section C.1(h) of the maintenance annex provides that "[a] facility history file for

each housing unit . . . identified by address shall be maintained by [North Star]. Each file shall contain a copy of all Government-issued work authorizations, preventative maintenance inspection reports[,] . . . routine maintenance or repair, and renovation work orders in progress or completed. The Government shall require access to these files and they shall be available for periodic review by the Government. All documents shall be filed within 10 days of the completed transaction."

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28.

Section C.1(j) of the maintenance annex provides that "[t]he quality and

workmanship of maintenance, repair, replacement, and operational services shall be first class in every respect and will be subject to the approval of the Government." 29. Section C.1(p) of the maintenance annex, entitled "Cleanup," provides that

"[p]rior to acceptance of a unit by the Government, either for initial occupancy or after completion of maintenance or repair work, [North Star] shall clean the entire unit. [North Star] shall insure units meet the same standard of cleanliness the Government requires of terminating occupants. Work will consist of, but shall not be limited to, removal of all stains, fingerprints, and paint spots, cleaning of all dust and dirt, washing of windows, cleaning of all appliances, cleaning of all ceramic tile, and washing of floors." 30. Section C.1(s) of the maintenance annex provides that "[d]amages to a housing

unit or to other improvements within the project which are beyond normal wear and tear and are caused by the Government or an occupant, his dependents, or invited guests, which are not corrected by the Government or occupant, shall be repaired by [North Star]. The cost of such repairs shall be billed to the Government. Under no circumstances shall [North Star] negotiate or settle reimbursement of costs for such repairs directly with the occupant, his dependents, or invited guests. Repair of damages which occur to the units or other improvements that cannot be attributed to the Government, his agents, officers, occupants, their dependents, or invited guests, shall be accomplished by [North Star] at no cost to the Government." 31. Section C.1(t) of the maintenance annex provides that "[North Star] shall, with

the approval of the Government, establish a list of cleaning and repair costs for dwelling unit components which will establish the normal maximum amounts to be charged in the event of 6

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damage to property and equipment installed within a living unit over and above normal wear and tear. The list of repair costs will be based upon the latest published edition of applicable Engineered Performance Standards (EPS) Manuals (Army TB 420-series, Navy NAVFAC P-700 Series, Air Force AFM 85-series) which will be utilized to estimate manhour requirements. . . . The manhour requirements will be multiplied by the Department of Labor Service Contract Act Wage Determination plus materials at wholesale cost plus reasonable overhead and profit. . . . Such a list will be subject to change annually or from time to time by mutual agreement of [North Star] and the Government. Examples of items which might be included on this list are cleaning of stove, refrigerator, and entire dwelling unit, replacement of interior door, patching/repairing hole in interior door, patching/repairing hole in dry wall . . . ." 32. Section C.1(v) of the maintenance annex provides that "[North Star] shall provide

to the Government, for approval, a schedule of repairs and renovations in units which will result in the major inconvenience or relocation of occupants." 33. Section C.1(z) of the maintenance annex provides that "[North Star] shall submit

invoices in accordance with clause H.3." 34. Section C.2(a) of the maintenance annex provides that "[a]cceptance inspections

of all dwelling units will be conducted . . . after completion of repair or rehabilitation work on the unit. The Government shall conduct these inspections jointly with [North Star]. The Government will schedule these inspections to occur on the same date that the work is completed if notification of work completion is received before 12:00 noon, or before 12:00 noon of the next workday, if such notification is received after 12:00 noon, at a time that is mutually agreeable. The Government has the right to refuse to accept the unit if the work has not been 7

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completed or performed satisfactorily or is otherwise not in accordance with the provisions of this annex. The Government shall, immediately upon conclusion of the acceptance inspection, notify [North Star] in writing of acceptance or refusal. If the unit is refused, the Government shall also notify [North Star], in writing, of all discrepancies requiring correction." 35. Section C.2(b) of the maintenance annex provides that "[t]he Government shall

designate, by name and position title, the housing project manager and staff who will be responsible for the day-to-day administration of the Government's responsibilities with respect to this lease separate from lease administration functions. . . . The housing manager shall serve as the primary point of contact for matters involving the day-to-day coordination and administration of the Government's responsibilities." 36. Section C.2(c)(1) of the maintenance annex provides that the Government is

required to "[e]stablish and disseminate to occupants rules and regulations governing occupancy of the units." 37. Section C.2(c)(3) of the maintenance annex provides that the Government is

required to "[e]nsure occupant compliance with all rules and regulations." 38. Section C.2(c)(7) of the maintenance annex provides that the Government is

required to "[s]chedule and coordinate all change of occupancy inspections (check-in, pretermination and termination)." 39. Section C.2(c)(8) of the maintenance annex provides that the Government is

required to "[a]dvise [North Star] of proposed occupancy changes and date of pretermination and termination."

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40.

Section C.2(c)(10) of the maintenance annex provides that the Government is

required to "[n]otify [North Star] via work authorization of occupant-caused damages or conditions requiring correction or cleaning and reimbursing [North Star] for accomplishment of same." 41. Section C.2(c)(11) of the maintenance annex provides that the Government is

required to "[a]pprove [sic] annual . . . list of repair costs for occupant damages and printed occupant instructions as submitted by [North Star]." 42. Section C.2(c)(13) of the maintenance annex provides that the Government is

required to "[p]rovide list of occupant names and phone numbers, by address, to [North Star] as soon as possible but no later than 30 days of beneficial occupancy date and revise monthly thereafter." 43. Section C.2(c)(14) of the maintenance annex provides that the Government is

required to "[n]otify [North Star] of any maintenance or repair work required of which [North Star] may be unaware." 44. Section C.2(c)(15) of the maintenance annex provides that the Government is

required to "[s]chedule, arrange, and conduct performance evaluation meetings with [North Star], and any other parties deemed necessary by the Government." 45. Section C.2(c)(16) of the maintenance annex provides that the Government is

required to "[i]nspect each phase, at the Government's discretion, of the services rendered under this annex during both [North Star's] work performance and after completion of the tasks."

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46.

Section C.2(c)(17) of the maintenance annex provides that the Government is

required to "[g]ive [North Star] written notice of either noncompliance or unsatisfactory work on the part of [North Star]." 47. Section C.3(a) of the maintenance annex provides that "[o]ccupants will be

responsible for the performance of those routine, housekeeping tasks which are normally performed by occupants in private housing of similar type and value. Assigned occupants shall be liable for loss or damage to the housing unit or equipment caused by the abuse or negligence of the assigned occupant, dependents, or guests. Upon vacating, occupants will turn over the quarters, equipment and appliances, and immediate environs in a clean and orderly condition." 48. Section C.3(a)(4) of the maintenance annex provides that "[c]leaning, waxing and

polishing floors" are the responsibility of the occupant. 49. Section C.3(a)(9) of the maintenance annex provides that "[c]aring for assigned

grounds" are the responsibility of the occupant. 50. Section C.3(a)(11) of the maintenance annex provides that "small maintenance

tasks such as policing grounds, insuring overall cleanliness, and routine adjustments not requiring the skills of an expert or artisan" are the responsibility of the occupant. 51. Section C.3(b) of the maintenance annex provides that "[t]he occupant shall abide

by all printed instructions relating to the occupancy of the unit." 52. Section D.1 of the maintenance annex provides that "[North Star] is responsible

for managing the total work effort associated with the maintenance and other services required herein to assure fully adequate and timely completion of these services. . . . [North Star] is expected to assure an adequate staff of personnel, with the necessary management expertise, at 10

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the housing site continuously to assure the completion of the work in accordance with sound and efficient management practices." 53. Section D.3 of the maintenance annex provides that "[North Star] shall meet with

the Government periodically as called for by the Government. A mutual effort will be made to resolve all problems identified. The written minutes of these meetings, prepared by the Government, shall be signed by [North Star] and the Government. Should [North Star] not concur with the minutes, [North Star] will state, in writing, to the Government any areas of disagreement." 54. Section D.5 of the maintenance annex defines "downtime" as "the period during

which a housing unit is vacant for reasons of change of occupancy, maintenance work, major repair or unhabitability, or restoration of units damaged by fires or acts of God. [North Star] shall ensure that downtime while a unit has been turned over to [it] does not exceed the allowable time prescribed [in sections D.5(a) and (b) of the maintenance annex]. Downtime must be minimized in order to maximize occupancy of these units." 55. Section D.5(a) of the maintenance annex, entitled "Change of Occupancy

Downtime," provides that "[t]he total number of downtime days for units vacant for purposes of change of occupancy maintenance shall not exceed the number of move-outs (excluding moveouts for purposes of scheduled repairs or fires and acts of God) per month multiplied by 3 days. For example, if there are 10 move-outs in 1 month, the total allowable downtime for that month is 30 days. Additionally, if [in] any 5-day work period, more than eight units are turned over to [North Star], two additional days will be allowed for each unit in excess of eight. For example, if there are 17 move-outs in a month, the total allowable downtime is 51 days. However, if 11 of 11

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these units were turned over to [North Star] within a 5-day work period, an additional 6 days will be allowed for a total of 57 days in allowable downtime (representing the additional 2 days for each of the units in excess of eight turned over within a 5-day work period added to the 51 days allowed for 17 move-outs). Deductions for [North Star's] failure to stay within prescribed downtime will be in accordance with clause H.1 [of the maintenance annex]." 56. Section D.5(b) of the maintenance annex, entitled "Scheduled Repair or

Renovation Downtime," provides that "[d]owntime for reasons of scheduled repair or renovation will be completed on the basis of the actual number of days any specific unit has been turned over to [North Star] for such work. The downtime period will begin with the date the Government turns the unit over, in writing, to [North Star] for this purpose and will end when the Government accepts, in writing, the unit from [North Star] subsequent to work completion. Deductions for [North Star's] failure to adhere to the scheduled downtime will be in accordance with clause H.1 [of the maintenance annex]." 57. Section D.7(a) of the maintenance annex provides that "[w]ork identified by

[North Star] or [the] Government during the pre-termination and final termination inspections which is required to make a unit ready for the next occupant, shall be accomplished while the unit is vacant. This work includes any routine maintenance and repair, as well as interior painting. The extent of interior painting, partial or complete, required to be dome during change of occupancy will be based on the criteria in clauses E.2.(a), E.2.(d), E.2.(g), and E.8 through E.8(d) of this annex. The preponderance of changes of occupancy normally occurs during June, July, and August which would affect [North Star's] workload. Based on historical data, it is

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estimated that 30% of the units may be vacated during a 12-month period. Variation from this percentage shall not be a basis for adjustment to this lease." 58. Section D.7(b) of the maintenance annex provides that "[North Star] is

responsible for conducting or participating in various types of inspections as described below. These inspections shall be conducted in accordance with the technical standards and guidance provided herein." 59. Section D.7(b)(1) of the maintenance annex provides that "[t]he Government will

schedule a pre-termination and termination inspection after being advised by the occupant of an impending move. . . . The Government will, in writing, notify [North Star] of the date, time, and address of each inspection. The Government will make every effort to provide this notice 21 days in advance of the projected change of occupancy. Because of short-time occupant orders or other extenuating circumstances, [North Star] can expect an average of 10-14 days advance notice. [North Star] is required to attend the pre-termination inspection. [North Star] representation at the termination inspection is at [North Star's] discretion." 60. Section D.7(b)(2) of the maintenance annex provides that "[d]uring the pre-

termination inspection, [North Star] shall identify and prepare work orders covering all painting, maintenance, and repair work required of [North Star]. The Government shall jointly identify, with the occupant, all damage to property and installed equipment which is over and above normal wear and tear and which is the occupant's responsibility to correct. The Government will provide the occupant with a list of this work and associated costs for which the occupant is liable, as contained on the approved list of repair costs, and provide a copy to [North Star]. At the conclusion of this inspection, the Government shall notify, in writing, [North Star] of the 13

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firm date and time for the final inspection and the date and time that the unit will be turned over to [North Star] for accomplishment of change of occupancy work. [North Star], in turn, shall immediately provide the Government with a firm written commitment as to the date and time that the unit will be turned back over to the Government for assignment to the next occupant. Exhibit 3 [to the maintenance annex] will be used for this purpose." 61. Section D.7(b)(3) of the maintenance annex provides that "[t]he Government will

conduct the termination inspection jointly with the occupant after the furnishings have been removed. Should the date and time that the unit will be turned over to [North Star] change for any reason, the Government shall immediately notify [North Star] in writing of the revised date and time. [North Star] will then immediately notify the Government, in writing, of the revised date and time that the unit will be turned over to the Government for assignment. Subsequent to the termination inspection, the Government will issue to [North Star] a work authorization for the repair of damages, or accomplishment of cleaning, which are the responsibility of the occupant but were not completed at the time of the termination inspection. 62. Section D.7(c) of the maintenance annex provides that "[f]or all change of

occupancy work, the standards of workmanship shall be in compliance with paragraphs E.1 through E.8.(e) [of the maintenance annex]. In the event the occupant fails to properly clean the unit for any reason, or correct damages beyond normal wear and tear for which the occupant is responsible, it shall become [North Star's] responsibility to satisfactorily clean and repair the unit for the next occupant in accordance with clauses C.1 and G.3 [of the maintenance annex]. This work will be documented by the Government work authorization (Exhibit 4 [to the maintenance annex]) and shall be accomplished during the period [North Star] is completing 14

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other change of occupancy work. [North Star] charges for the performance of work identified on the work authorization shall be in accordance with the approved list of repair costs . . . ." 63. Section D.7(d) of the maintenance annex provides that "[u]pon completion of all

change of occupancy work, [North Star] will notify the Government of work completion and unit availability. . . . The Government will conduct an acceptance inspection in accordance with C.2.(a) [of the maintenance annex]. Upon written notification of the Government's acceptance, the time period calculated for downtime purposes will be concluded." 64. Section D.7(d)(1) of the maintenance annex provides that "[a]ll change of

occupancy work must be completed within three working days after the unit becomes available, which shall be determined from the date the unit is turned over to [North Star] by the Government for change of occupancy work." 65. Section D.7(d)(2) of the maintenance annex provides that "[t]he downtime period

will be determined as follows: If the unit becomes available prior to 12:00 noon, the period will begin at 1:00 p.m. that day. If the unit becomes available at 12:00 noon or later, the maintenance period will begin at the start of the following work day." 66. Section D.8 of the maintenance annex provides that "[North Star] will, with the

approval of the Government, prepare for posting in all units, a set of printed instructions in English for the expected normal occupant care of the quarters and installed equipment and for operation of the heating system, . . . and other maintenance and operation of functions and precautions." 67. Section D.9 of the maintenance annex provides that "[t]he following forms are to

be used in conjunction with this lease agreement. (a) Notification of Scheduled Change of 15

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Occupancy (Exhibit 3). . . (b) Work Authorization (Exhibit 4). . . (c) Notification of Work Completion (Exhibit 5)." 68. Section E of the maintenance annex provides that "[North Star] shall be

responsible for maintaining all real property assets provided for in this lease agreement including dwelling units . . . to a standard that prevents deterioration beyond that which results from normal wear and tear, and corrects deficiencies in a timely manner to assure full life expectancy of the facilities and equipment. The level of maintenance shall assure all structures are free of missing components or defects which would affect the safety, pleasing appearance or habitability of the units or would prevent any electrical, mechanical, plumbing or structural system from functioning in accordance with the design intent. . . . The quality of the work and the repaired areas shall be fully compatible with adjacent surfaces or equipment. All replacements shall match existing dimensions, material, quality of work, finish, color and design. . . . Wherever the term `pleasing appearance' is used in this or subsequent paragraphs, it shall be construed to mean an appearance similar to the original finished appearance with only minor, nonobjectionable deterioration resulting from normal use. The housing unit shall be evaluated against the maintenance standards contained herein to determine deficiencies requiring corrections." 69. Section E.1(c) of the maintenance annex provides that "[a]ll Gutters,

Downspouts, and Splash Blocks: Shall be maintained to function as originally designed to effectively channel runoff water away from the housing unit. Gutters and downspouts shall be maintained properly aligned and secured to the house with splash blocks correctly positioned to

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receive the impact of the drainage water. Gutters and downspouts shall be kept free of debris or any obstruction." 70. Section E.2(a) of the maintenance annex provides that "[i]nterior wall systems

shall be maintained in a good state of repair free of damage, deterioration, cracks or defective materials. The aesthetic appearance shall be free of noticeable discoloration or other defects which would render an unsightly appearance to the interior walls." 71. Section E.2(b)(4) of the maintenance annex provides that "[a]ll linoleum and/or

resilient tile floor coverings shall be maintained free of cracks, chips, and torn or excessively worn material to provide floor coverings that are useable and have a pleasing appearance." 72. Section E.2(b)(6) of the maintenance annex provides that "[c]arpeting shall be

properly stretched to lay smooth and evenly. Any complete or partial replacement of carpeting shall be in kind." 73. Section E.2(i) of the maintenance annex provides that "[h]ouse accessories such

as mail slots, doorstops, mechanical door bells, door knockers, paper holders, soap trays, tumbler holders, towel bars, shower curtain rods, toilet seats, medicine cabinets, venetian blind brackets, cutain [sic] rod boards, closet pully guides, house numbers, dryer vents, smoke detectors, etc., shall be maintained free of defects and in a satisfactorily functioning condition." 74. Section E.8(c) of the maintenance annex provides that "[p]aint . . . shall be

carefully applied with good clean brushes, approved rollers or by airless spraying. . . . Finish coats shall be smooth and free from runs, sags or other surface preparation defects. Each coat of paint shall be of sufficient thickness to cover completely the previous coat or surfaces."

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75.

Section E.8(d) of the maintenance annex provides that "[c]omplete interior

painting will be accomplished as required in conjunction with the change of occupancy work. Complete interior painting will be accomplished at the first change of occupancy occurring subsequent to the 3rd, 6th, 9th, 12th, 15th, and 18th years of the lease agreement. Complete or partial interior painting during all other changes of occupancy, except where required in connection with maintenance and repair, will be at the discretion of [North Star]." 76. Section F.5(c) of the maintenance annex provides that "[North Star] is responsible

for the maintenance, repair, and replacement of equipment located in playgrounds, tot lots, and recreational areas. Equipment shall be maintained to function as originally designed." 77. Section G.1 of the maintenance annex provides that "[North Star] shall ensure

that refuse is collected twice weekly with three days between collections unless it is controlled by the local municipality. Refuse refers to garbage and trash generated by the occupant and Government within the housing site and includes bulk items. The use of detachable, centrally located trash containers, centrally placed can collection buildings and/or other similar systems for central deposit and collection of refuse within the housing site is not allowed." 78. Section G.3(a) of the maintenance annex provides that "[North Star] is

responsible for the performance of janitorial services in the housing site. In general, janitorial services are defined as the provision of all labor, material, supplies and supervision necessary to maintain areas and fixtures in and around real property buildings in a clean, sanitary and serviced condition."

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79.

Section G.3(b) of the maintenance annex provides that "[a]reas to receive

janitorial service include . . . the Government administrative space and common use areas of multi-use buildings." 80. Section G.3(c) of the maintenance annex provides that "[c]omplete janitorial

services shall be provided to single housing units when ordered by the Government for abandonments and change of occupancy. [North Star] will be reimbursed by the Government for these in accordance with the current List of Repair Costs." 81. Section H.1(c) of the maintenance annex provides that "[i]n the event [North Star]

fails to complete change of occupancy maintenance work by the date identified by [North Star] as when the unit would be returned to the Government . . ., the Government shall assess liquidated damages based on the most current average daily rate of BAQ plus VHA plus average daily lease cost per unit for each calendar day subsequent to that date." 82. Section H.1(d) of the maintenance annex provides that "[i]f the downtime in any

one month for units vacant for purposes of change of occupancy work exceeds the allowable downtime for that month (established in accordance with clause D.5(a) [of the maintenance annex]), the Government shall assess liquidated damages based on the most current average daily rate of BAQ plus VHA plus average daily lease cost for each calendar day in excess of the allowable downtime." 83. Section H.1(e) of the maintenance annex provides that "[i]f [North Star] fails to

complete scheduled repairs in units that were made vacant for that purpose within the time period approved by the Government, the Government will deduct shelter and maintenance rentals prorated on a daily basis beginning with the first late day plus, liquidated damages based 19

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on the most current average daily rate of BAQ and VHA for each calendar day in excess of the approved time period." 84. Section H.(2.) of the maintenance annex provides that "[f]or those items of work,

as identified elsewhere in this annex, for which [North Star] is entitled to reimbursement in addition to the monthly lease and maintenance rents, the Government shall issue a work authorization, in writing, authorizing the accomplishment of such work. The work authorization will include the unit address, identification of work to be accomplished, and date when unit will be turned over to [North Star]. [North Star] charges for this work will be based upon the approved list of repair costs." 85. Section H.(3.) of the maintenance annex provides that "[North Star's] invoices

shall be submitted monthly in an original and three copies for services performed to the Government. The original of each invoice shall have attached to it a copy of the work authorization document(s) and a summary of the charges for reimbursable work. Upon the Government's verification of work actually performed invoices will be processed for payment." 86. Section H.(3.)(a) of the maintenance annex provides that payment of North Star's

invoices will be based on "[a] monthly charge for the maintenance and operational service portion of the work." 87. Section H.(3.)(b) of the maintenance annex provides that payment of North Star's

invoices will be based on "[r]eimbursable work which is authorized by Government work authorizations and which is billed in accordance with the approved List of Repair Costs." 88. Section H.(4.) of the maintenance annex provides that "[a]n incentive fee, for

exceptional performance of standards contained in this annex, not to exceed 5 percent of the 20

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`Maintenance Rental', will be determined on an annual basis by a board composed of three (Army) Officers or civilian personnel who will evaluate [North Star's] performance over the preceding twelve-month period. The board will make a determination within 60 days after the end of the period to grant all, some, or none of the incentive award fee." 89. On December 16, 1985, North Star submitted its best and final cost proposal for

the Birchwood Estates project. 90. In its best and final cost proposal, North Star stated that its "[s]taffing levels will

have to be constantly looked at and changed depending on workloads. It is our intention to staff for average move-in and move-out situations. However, if occupancy levels have a swing in either direction the manning levels will be increased or decreased as appropriate either with staff or sub-contractor labor. . . . We are confident that we can handle occupancy swings . . . ." 91. In its best and final cost proposal, North Star stated that "[t]he refuse collection

will be the responsibility of the Developer. Developer will follow the guidelines as outlined under G. "Standards for Provision of Operational Services: 1.Refuse Collection." 92. In its best and final cost proposal, North Star referred to its "[p]lan for attaining

average 3-day downtime." 93. 94. North Star's best and final cost proposal was not incorporated into the lease. In 1989, the Government awarded North Star a $13,236.09 incentive fee award

for January 24, 1987 through November 5, 1987, the "interim lease period." 95. In 1989, the Government awarded North Star a 4.5 percent incentive fee award

for November 6, 1987 through November 5, 1988. The Government cited responsiveness to

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soldiers and their families and execution of work as areas in which North Star's performance could improve. 96. 97. In 1990, the Government awarded North Star $56,113.93 for 1989. In 1997, the Government awarded North Star an incentive fee of $39,000 for

1996. The Government stated that "the only rated areas which were significantly less than exceptional were between occupancy vacancy rates." 98. 1997. 99. In 1999, the Government awarded North Star an incentive fee of $3,370 for In 1997, the Government awarded North Star an incentive fee of $21,272 for

1998. The Government praised North Star's improvement in worker response time and postmaintenance clean up. The Government stated that "the only rated areas which were significantly less than exceptional were between occupancy vacancy rates." 100. The Government did not award North Star an incentive fee for 1999. The

Government noted that the 1999 resident survey "produced average ratings which exceeded `satisfied' . . . for both resident satisfaction with clean up and worker courtesy." The Government cited refuse collection, exterior painting, carpet installation, playground issues, and resident survey responses regarding Birchwood Estates as areas detracting from North Star's overall performance. 101. 102. The Government did not award North Star an incentive fee for 2000. The Government did not award North Star an incentive fee for 2001. The

Government stated that it was precluded from awarding any incentive fee because of work authorizations missing from the Birchwood facility history files. 22

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103. 104. 105. 106.

The Government did not award North Star an incentive fee for 2002. The Government did not award North Star an incentive fee for 2003. The Government did not award North Star an incentive fee for 2004. In September 1995, pursuant to a settlement agreement (the "Settlement

Agreement"), North Star and the Government settled Case No. 93-88C (Fed. Cl.). 107. Paragraph 8 of the Settlement Agreement provides that North Star offered "to

assume full responsibility for refuse collection and disposal." 108. Paragraph 10 of the Settlement Agreement provides that the Government "agrees

that [North Star's settlement payment of $1,000 per month] shall be accepted as full compensation for the costs of refuse collection, which were incurred by the defendant prior to the Court's decision regarding plaintiff's responsibility for refuse collection." 109. On November 22, 1995, the Fort Wainwright Director of Public Works informed

the Commander, U.S. Army Engineer District Alaska that "[t]he Army standard for adequate housing is weekly curbside trash pick-up." 110. On December 1, 1995, the Government contracting officer directed North Star to

provide the same type of refuse collection and disposal as is required by the lease and as has been provided at Birchwood Estates in the past. The contracting officer directed North Star to the lease provision requiring that North Star "insure that refuse is collected twice weekly . . . ." 111. On December 29, 1995, the Government stated that a specific area of concern

regarding refuse collection was North Star's "[f]ailure and refusal to comply with the Contracting Officer's direction in writing, on 1 December 1995, to provide the same level of trash collection services as provided in the past." 23

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112.

On August 1, 1997, the Government informed North Star that "[w]e are

preparing a questionnaire for distribution to a sampling of tenants which we will distribute during the month of August. We will forward a copy of the proposed survey form to your staff for review and comments before it is finalized. It is our intention that the result of this survey process will be a more complete and unbiased view of specific aspects of Birchwood operations from the tenant's point of view." 113. On August 23, 1996, a fire occurred to 765 Bataan Court. The cost of repairing

damage caused by the fire amounted to $15,695.63. 114. The Government directed North Star to replace the upstairs hallway carpet in Unit

884 due to staining and non-pleasing appearance. North Star replaced the carpet, which was blue, with brown carpet. The adjacent carpet was also blue. The Government then ordered North Star to either replace all of the surrounding carpet with brown carpet or replace the new brown carpet with matching blue carpet. 115. North Star submitted a request for a contracting officer decision ("COD")

concerning carpet matching in Unit 884, and the contracting officer ("CO") issued a COD concluding that any carpet being installed must be comparable in kind and color as adjacent carpet whether the replacement is due to occupant caused damage or fair wear and tear. 116. North Star completed a full interior paint of Unit 704 in June 2001. In November

2002, the Government ordered a full interior paint of Unit 704. 117. North Star submitted a request for COD concerning painting in Unit 704, and the

CO issued a COD concluding that North Star was required to accomplish complete interior painting of Unit 704 at its own expense. 24

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118.

The Government directed North Star to replace all of the carpet and the laundry

room vinyl in Unit 833 due to normal wear and tear. North Star asserted that the carpet replacements were necessitated by occupant damage, claiming that the most recent occupant spilled bleach throughout the carpet and did not call in work orders for frays, seam runs, or unraveling. Respecting the vinyl replacement, North Star asserted that the small crack in the vinyl did not warrant replacement, and that the non-pleasing appearance of the vinyl was due to occupant-caused stains and neglect. 119. North Star submitted a request for COD concerning replacement of carpet and

replacement of laundry room vinyl in Unit 833. The CO issued a COD concluding that (1) North Star was required to replace the carpet at its own expense because the carpet was worn out and no longer had a pleasing appearance, "including the failure of repairs performed in 1999, unraveling seams, frays, runs, and stains," and (2) North Star was required to replace the laundry room vinyl at its own expense because there was no evidence which would constitute occupant damage. 120. On March 21, 2003, the Government issued a work authorization authorizing the

replacement of a light fixture in Unit 1029, and approved reimbursement for that work in the amount of $107.69, consisting of $89.00 for purchase of the light fixture (as quoted by North Star to the housing inspector), plus markups. 121. wear and tear. The light fixture in Unit 1029 had been damaged by the occupant beyond normal

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122.

North Star billed the Government $189.72 for replacement of an occupant

damaged light fixture in Unit 1029. The Government agreed to pay $107.69 ­ the original workauthorized amount. 123. North Star submitted a request for COD concerning replacement of the light

fixture in Unit 1029. The CO issued a COD concluding that North Star was responsible for the difference in cost between the original light fixture and the replacement light fixture. 124. The Government directed North Star to replace the vinyl in Unit 1090 at North

Star's expense because of the presence of cracks. North Star contended that the vinyl could be easily repaired, and that replacement was not necessary. North Star repaired the vinyl, and the Government again directed that North Star replace the vinyl. North Star then replaced the vinyl. 125. The Government directed North Star to replace the vinyl in Unit 1111 at North

Star's expense due to cracking and non-pleasing appearance. North Star contended that the vinyl could be easily repaired, and that replacement was not necessary. North Star repaired the vinyl, and the Government again directed that North Star replace the vinyl. North Star then replaced the vinyl. 126. North Star submitted a request for COD concerning replacement of vinyl in Unit

1090 and Unit 1111. The CO issued a COD concluding that the vinyl in Unit 1090 and Unit 1111 required replacement because of the presence of cracks. The CO also concluded that because vinyl replacement had not been work authorized, North Star was responsible for the cost of replacement 127. The Government directed North Star to fully replace the vinyl in Unit 633 at

North Star's expense because of its non-pleasing appearance that was due to fair wear and tear. 26

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North Star contended that occupant damage caused the non-pleasing appearance because of occupant abuse, and failure to properly maintain the vinyl in accordance with the manufacturer's recommendations. 128. North Star submitted a request for COD concerning replacement of vinyl in Unit

633, and the CO issued a COD concluding that the non-pleasing appearance was due to fair wear and tear. 129. The gutter downspout of the garage of Unit 638 was damaged. The Government

contended that the damage was fair wear and tear; North Star contended it was occupant damage. 130. North Star submitted a request for COD concerning replacement of the gutter

downspout, but the CO declined to issue a COD because the request implicated allegations already pending before the Court. 131. The Government directed North Star to paint the bathroom of Unit 961. North

Star told the Government it had fully repainted the bathroom during change of occupancy. 132. North Star requested that the contracting officer's representative ("COR")

inspect the bathroom paint. The COR responded that with use of a black light, he detected imperfections with the paint. 133. North Star submitted a request for COD concerning painting in Unit 961, and the

COD concluded that using a black light to inspect paint was reasonable, and that North Star was financially responsible for the painting. 134. The Government did not authorize repair of the kitchen countertop or downstairs

hall carpet in Unit 961. North Star contended that the countertop and carpet needed to be

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replaced because of occupant damage. North Star told the Government that the countertop and carpet were burned. 135. North Star submitted a request for COD concerning the need for countertop and

carpet replacement in Unit 961, but the CO declined to issue a COD because the request implicated allegations already pending before the Court. 136. 815, and 744. 137. Cleaning was not included on the List of Repair Costs after 1999 because the The Government directed and work authorized North Star to clean Units 874,

Government subcontracted the work to an outside contractor. 138. North Star billed the Government $865.56 for cleaning of Unit 874. The

Government approved payment of $580.80. 139. North Star billed the Government $1,073.19 for cleaning of Unit 815. The

Government approved payment of $740.52. 140. North Star billed the Government $1,054.32 for cleaning of Unit 744. The

Government approved payment of $726.00. 141. North Star submitted a request for COD concerning the 2003 List of Repair Costs

submitted by North Star and the Government's requirement that North Star provide separate invoices for items included on the List of Repair Costs North Star submitted. The CO declined to issue a COD because the request implicated allegations already pending before the Court. 142. North Star submitted a request for COD concerning whether the Housing

Manager had the authority to order North Star to perform disputed work, and the CO concluded

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that the the COR's "authority in the event of a dispute is limited to determine financial responsibility for the work performed." 143. The Government informed North Star that it exceeded permissible downtime by

29.5 days in February, 2002 and .5 days in March of 2002 and reduced North Star's Rent by $2,847.47. 144. On April 30, 2002, North Star wrote to the COR requesting the backup

documentation to the February and March 2002 downtime calculations. 145. The Government informed North Star that it exceeded permissible downtime by

25 days in April, 2002 and reduced North Star's Rent by $2,308.25. 146. The Government informed North Star that it exceeded permissible downtime by

1.5 days in May, 2002 and 24 days in June 2002 and reduced North Star's Rent by $2,350.61. 147. The Government informed North Star that it exceeded permissible downtime by

53 days in July, 2002 and 13 days in August 2002 and reduced North Star's Rent by $6,014.58. 148. On September 4, 2002 North Star submitted and the CO received a request for

COD, which is Plaintiff's Exhibit 231. 149. The Government informed North Star that it exceeded permissible downtime by

14 days in September 2002 and 33 days in October 2002 and reduced North Star's Rent by $4,293.91. 150. The Government informed North Star that it exceeded permissible downtime by

19.5 days in November 2002 and reduced North Star's Rent by $1,804.52. 151. The Government informed North Star that it exceeded permissible downtime by

13.5 days in December 2002 and reduced North Star's Rent by $1,233.08. 29

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152.

The Government informed North Star that it exceeded permissible downtime by

20 days in January 2003 and reduced North Star's Rent by $1,939.20. 153. The Government informed North Star that it exceeded permissible downtime by

68.5 days in February 2003 and reduced North Star's Rent by $6,946.80. 154. The Government informed North Star that it exceeded permissible downtime by

13.5 days in March 2003 and reduced North Star's Rent by $1,308.95. 155. The Government informed North Star that it exceeded permissible downtime by

32 days in April 2003 and reduced North Star's Rent by $3,146.88. 156. The Government informed North Star that it exceeded permissible downtime by

42.5 days in May 2003 and reduced North Star's Rent by $4,120.79. 157. The Government informed North Star that it exceeded permissible downtime by

83.5 days in June 2003 and reduced North Star's Rent by $8,211.38. 158. The Government informed North Star that it exceeded permissible downtime by

175 days in July 2003 and reduced North Star's Rent by $16,968.00. 159. The Government informed North Star that it exceeded permissible downtime by

457 days in August 2003 and reduced North Star's Rent by $44,310.72. 160. The Government informed North Star that it exceeded permissible downtime by

525.5 days in September 2003 and reduced North Star's Rent by $51,677.66. 161. The Government informed North Star that it exceeded permissible downtime by

329.5 days in October 2003 and reduced North Star's Rent by $31,948.31. 162. The Government informed North Star that it exceeded permissible downtime by

26.5 days in November 2003 and 39 days is December 2003 and reduced North Star's Rent by 30

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$6,389.41. 163. The Government informed North Star that it exceeded permissible downtime by

48.5 days in January 2004 and reduced North Star's Rent by $4,898.98. 164. The Government informed North Star that it exceeded permissible downtime by

47 days in February 2004 and reduced North Star's Rent by $4,895.05. 165. The Government informed North Star that it exceeded permissible downtime by

2.5 days in May 2004 and reduced North Star's Rent by $252.52. 166. The Government informed North Star that it exceeded permissible downtime by

7 days in June 2004 and reduced North Star's Rent by $717.71. 167. The Government informed North Star that it exceeded permissible downtime by

18.5 days in September 2004 and reduced North Star's Rent by $1,896.80. 168. The Government informed North Star that it exceeded permissible downtime by

1 day in October 2004 and reduced North Star's Rent by $101.01. 169. The Government informed North Star that it exceeded permissible downtime by

2 days in March 2005 and reduced North Star's Rent by $207.84. 170. Pages 49 through 51 of the August 4, 2000 Fort Wainwright Resident's Handbook

(the "2000 Resident Handbook") provide instructions for cleaning toilets, tubs, countertops, vinyl flooring, carpets, and levolor blinds. 171. Page iv of the 2000 Resident Handbook provides that it is the resident's

responsibility: "[n]ot to use the yard as a storage area (i.e. tires, wood, trash bags, furniture, boxes, cloth material, batteries, charcoal, etc.)[;] ... [n]ot to construct trailers, ice houses, etc. in housing area[;] ... [t]o maintain [the] quarters as a prudent homeowner, and report any needed 31

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repairs (which are not resident Self-Help repairs)[;] ... [t]o keep the premises clean and safe inside and outside in accordance with this Residents Handbook. Obey all rules, regulations and policies of the Post[;] ... [t]o dispose of trash properly and in a timely manner (to include pet feces on a daily basis)[;] ... [t]o use all electrical, plumbing, sanitary, heating and appliances properly and in accordance with applicable manuals. 172. Page 3 of the 1996 Resident Handbook provides that the resident's

responsibility includes "keep[ing] your home and grounds in a clean, orderly, sanitary, and safe condition. As a sponsor, you are responsible for ensuring that your quarters, grounds, and equipment are not subject to abuse or neglect, and that the premises are not used for commercial, illegal or immoral purposes. The care and cleaning of your home's appliances and fixtures is strictly your responsibility. . . . Living in government family quarters includes a responsibility for some self-reliance by doing 'handyman' type work. Specifically, Self-Help type jobs are those which would be done by a prudent homeowner to conserve funds and to preserve the individual premises. ... In cases of damage beyond normal fair wear and tear, the resident will be held liable for payment or repair/restoration prior to clearance of quarters." 173. Page 16 of the 1996 Resident Handbook provides that "Family Housing areas are

inspected periodically by Post Services. Items of interest for inspections are; grass cutting and edging; trimming along fences; pet mess removal; pet damage; pets tied to porches, trees, fences or utility outlets; storage of recreational vehicles; storage of tires or other appliances; privately owned vehicle repairs; policing of trash including all common areas, dumpsters."

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174.

Page 26 of the 1996 Resident Handbook states "[n]ever leave a stove unattended

and keep all flammable items . . . away from the stove," "never smoke in bed," and "[d]o not allow your children access to matches, lighters, etc." 175. Page 16 of the 2000 Resident Handbook provides that "[i]n the summertime, your

yard needs more frequent attention. This includes policing any garbage, picking up pet feces (which must be double bagged before placing in dumpster), timely cutting and trimming of grass, edging along your sidewalks, watering, fertilizing and pruning of your yard, bushes and trees. . . . Playground cleanliness is the responsibility of the area residents." 176. Page 41 of the 2000 Resident Handbook provides that "[r]esidents can have up to,

but no more than two (2) pets per house. . . . All animals will be registered within five (5) days of arriving on Fort Wainwright and receive vaccinations annually. . . . Animals must be kept under control at all times and will not be allowed to become a nuisance or menace to other persons, animals, or property. . . . Compliance with all sanitary regulations and necessary maintenance of areas where an animal is kept is mandatory and the direct responsibility of the owner. Pet feces will be picked up daily." 177. Page 42 of the 2000 Resident Handbook provides that "you are completely

responsible for any damages which your pet may do inside or outside of your home. If your home has installed carpeting, you must exercise strict controls to make sure your pets do not soil or urinate on the carpet. If odors or stains cannot be removed through deep cleaning (at your expense) you are pecuniary liable for the prorated replacement cost (less depreciation) for the entire carpet and pad."

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178.

Appendix B of the 2000 Resident Handbook provides that "[i]f the resident

willfully or negligently destroys, defaces, damages, impairs, or removes any part of the premises (including fixtures, facilities, and appliances) or willfully or negligently permits any person to do so, replacement or repair will be at the resident's expense." 179. Appendix B of the 2000 Resident Handbook provides that "[t]he residents will at

their own expense . . . replace or repair all broken or damaged glass, screens, flooring, wood plaster, drywall, and locks occurring during their occupancy, normal wear and tear excepted." 180. On August 23, 2001, the CO issued a COD regarding North Star's claim for

carpet pad replacement at 1155 Chennault Court. The CO concluded that "the pad underlying the carpet in question was the incorrect type. It is North Star's responsibility to replace incorrect or incompatible components with the correct items. I further find that carpet and pad are segregable items and the replacement of one does not necessarily require replacement of the other. Therefore, [North Star] is responsible for the $473.00 in dispute." 181. On October 30, 2001, the CO issued a COD regarding North Star's claim for

carpet replacement at 750 Talbot Court. The CO stated that "the Government's position is that the carpet was identified to be replaced due to normal wear and tear identified in inspections conduc[ted] in November and December 2000. An intervening need for an emergency occupancy occurred which resulted in the unit not being turned over to North Star for maintenance at that time. The Government contends the damage caused by the occupant should not be paid for by the Government because the carpet had been identified to be replaced at North Star's expense prior to the damage occurring." The CO concluded that "[t]he Government agreed to reimburse North Star for 50% of the pad in the living room ... [and] 50% of the carpet 34

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and pad in the stairway." The CO found that "the inspections conducted in November and December show the carpet in this unit to be in a condition which warranted replacement due to normal wear and tear." The CO concluded that "the Government's payment for 50% of the living room pad, and 50% of the carpet and pad in the stairway, is sufficient reimbursement to cover the lost opportunity costs associated with North Star not being permitted to comply with the replacement directive in December 2000." 182. In a memorandum dated May 1, 2002 from Connie Kiser to Eldon Wartes, the

Government stated that "[North Star] will be required to provide invoices for any items not included in the government approved repair cost list." 183. In a memorandum dated February 8, 2001 from Connie Kiser to Rodney Everette,

Ms. Kiser stated that "[t]he government is required to give a firm projected date of the turn over of the quarters for maintenance with a minimum ten (10) working day advance notice to [North Star]." 184. In a memorandum dated July 24, 2001 from LTC Michael Meeks to U.S. Army

Engineer District, Alaska, Chief, Real Estate Division, LTC Meeks requested that "the following protocol be established, effective immediately, for all CODs prepared by your office for the subject contract: . . . A staff summary (enclosure) shall be attached to each draft COD and this will be used by the FWA Housing Office to note concurrence/nonconcurrence and any comments. . . . In the event of nonconcurrence, the USARAK staff, including Staff Judge Advocate will review the draft COD. A summary of the USARAK and proposed changes in wording will be provided to the Office of Real Estate and reviewed prior to finalizing the COD. . . . This procedure will insure that Public Works and USARAK comments are reviewed and 35

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incorporated, as appropriate. This procedure supports command interest in clarifying end of lease options at the Birchwood site." 185. In an email dated November 02, 2004 from Connie Kiser to Harold Hopson,

Connie Kiser stated that "[i]t seems to me that we are going backwards on [3 CODs finalized in October 2004], you guys are the ones who were preaching that we were all the same `Government' and should project a united front then you do this. . . . whats up." 186. In a memorandum dated February 21, 2003 from Connie Kiser to

Eldon Wartes entitled "Change to Inspection Procedures," Ms. Kiser stated that, effective March 1, 2003, "all final termination inspections in Birchwood will be conducted by the Quality Assurance (QA) inspector or myself. The Family Housing Inspectors will only be involved in the residents damage check inspection, which will have been completed prior to the final termination inspection, they will no longer be involved in the determination of maintenance;" and that "[i]t is the Government's intention to identify any and all change of occupancy maintenance requirements at this inspection and subsequently notify [North Star] of those requirements at the earliest opportunity." 187. In a memorandum dated March 24, 2003 from Connie Kiser to Eldon Wartes,

Ms. Kiser stated that "[t]he only responsibility the government has in relation to determining maintenance is occupant damage. Fair wear and tear is entirely your responsibility to determine, all the Government has to do is determine acceptability after you return the unit from COM." 188. On September 23, 2002, the Government stated it would determine the actual

work requirements for Unit 884 after the final cleaning inspection.

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189.

On October 10, 2002, the COR stated that because North Star and the Project

Manager did not resolve the issue regarding replacement of kitchen vinyl in Unit 745, he "must resolve it in an arbitrary manner." The COR determined that the "Government will accept, and pay for, 50% of the replacement cost of the kitchen vinyl in [Unit 745]." 190. On January 8, 2003 Thomas Petersen, Department of Public Works Project

Manager, stated that the "[incentive fee board] does not have to physically meet, all [it] need[s] to do is meet in `cyberspace' by staffing a draft letter for comments by each Board memeber [sic]." 191. On February 10, 1997, the CO determined that "[d]owntime calculations should

be computed monthly and be in accordance with clause D.5.a." 192. On February 10, 1997, the Government proposed to the CO that $41,256.67 be

reduce