Case 1:07-cv-00337-LJB
Document 21
Filed 03/05/2008
Page 1 of 3
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
CCS INDUSTRIAL SALES, INC.,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
)
)
)
)
)
)
)
)
)
No. 07-337C
(Judge Bush)
JOINT STATUS REPORT FOLLOWING STAY AND REMAND
Pursuant to the Court’s January 3, 2008 order, plaintiff, CCS Industrial Sales, Inc., and
defendant, the United States, hereby submit this joint status report following the Court’s stay of
proceedings and remand to the agency.
On March 4, 2008, the contracting officer issued a decision on CCS’s claim. Exhibit A.
Both CCS and the Government desire an additional 60-days, to and including May 6,
2008, to continue settlement negotiations and further propose that the Court allow the parties to
file a joint status report recommending further proceedings in this matter by May 9, 2008.
Respectfully submitted,
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney General
JEANNE E. DAVIDSON
Director
s/ Steven J. Gillingham
STEVEN J. GILLINGHAM
Assistant Director
Case 1:07-cv-00337-LJB
Document 21
Filed 03/05/2008
Page 2 of 3
s/ Cyrus E. Phillips, IV
CYRUS E. PHILLIPS, IV
1828 L St., NW, Suite 660
Washington, D.C. 20036-5112
Tel: (202) 466-7008
Fax: (202) 466-7009
s/ Armando A. Rodriguez-Feo
ARMANDO A. RODRIGUEZ-FEO
Trial Attorney
Commercial Litigation Branch
Civil Division
Department of Justice
Attn: Classification Unit
8th Floor
1100 L St., NW
Washington, D.C. 20530
Tel: (202) 307-3390
Fax: (202) 514-8624
Attorney for Plaintiff
Attorneys for Defendant
March 5, 2008
-2-
Case 1:07-cv-00337-LJB
Document 21
Filed 03/05/2008
Page 3 of 3
CERTIFICATE OF FILING
I hereby certify that on this 5th day of March, 2008, a copy of the foregoing “JOINT
STATUS REPORT FOLLOWING STAY AND REMAND” 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. The parties may access this filing through the Court’s system.
s/ Armando A. Rodriguez-Feo
Case 1:07-cv-00337-LJB
Document 21-2
Filed 03/05/2008
Page 1 of 8
March4,4,2008
2008
March
USPS
USPSCertified
CertifiedMail
Mail
_
CCS
CCS
311Acorn
Acorn Lane
Lane
311
Picayune ,MS
MS 39466
39466
Picayune,
Subj:Claim
Claim for
for Clean
Clean Up
Up and
and Remediation
Remediation Services due to Hurricane Katrina Performed at
Subj:
at
VAMC New
New Orleans
Orleans -Purchase Order # 586-C60329
VAMC
Dear Mr.
Mr. Burge:
Burge:
Dear
am in
in receipt
receipt of
of the
the subject
subject claim in the total
total amount of
$1,519,696.33 that
of$I,519,696.33
that is
is dated
dated
II am
September 13,
13, 2006
2006 and
and was
was received
received by
by the
the Contracting
Contracting Officer
Officer on
on March
March 21,
21, 2007.
2007. In
September
In
accordance with
with the
the guidelines
guidelines of FAR 33.211
33.211 (a) (4), the Final Decision
accordance
Decision relative
relative to
to the
the
aforementioned claim
claim is
is as
as follows:
follows:
aforementioned
Description of
of the
/dispute
Description
the claim
claim/dispute
In the
the subject
subject claim CCS
CCS seeks additional payment for services rendered during the
In
the clean
clean up
up
and remediation process performed after Hurricane Katrina at the VAMC New Orleans
Orleans under
under the
the
teens of
tenns
of the
the purchase
purchase order
order number 586-C60329 due to additional work performed to include
ofwork
work
alleged changes, additional labor, additional materials
materials and
and other
other compensable
compensable acts
acts of
performed. CCS's
CCS'stheory
theoryof
ofrecovery
recovery is
is that
that itit held
held an
an implied-in
implied-in fact
fact contract for the value of
performed.
services performed at the govenunents'
governments' request and in accordance with its agreement.
agreement. CCS
CCS has
has
provided with their claim three
three separate
separate invoices
invoices as
as follows:
follows:
Invoice
1162
- Costs
dumpsters
to remove
47,190.00
- Costs
for for
dumpsters
used toused
remove
debris fordebris for$ $ 47,190.00
Invoice ##1162
basement
and
sub-basement
basement and sub-basement
Invoice
1173 - Work performed for dehumidification
dehumidification for
for
Invoice ## 1173
$ 373,212.19
$ 373,212.19
Floors
Floors 1-10
1-10
Invoice
Invoice ## 1174
1174- -Work
Workperformed
performedininbasement
basementtotoinclude
includerental
rental
equipment,
equipment, materials
materials and
and labor
labor to
to provide
provide
germicidal
germicidal fogging and
andspraying
spraying;; setup
setup and
and
dismantling
ofequipment
equipment,, set
set up
up of
ofcontainment
containment
dismantling of
walls,
walls,pumping
pumpingadditional
additionalwater
water;; and
and generator
generator
refueling
refueling and
and monitoring
monitoring
$$2,599,294.14
2,599,294.14
TOTAL
$
TOTAL
$3,019,696.33
3,019,696.33
Less
Payment
date 12-6-06 - $1,500
Less Payment
date 12-6-06
- $1,500,000.00
,000.00
TOTAL
REQUESTED
$
TOTAL REQUESTED
$1,519,696.33
1,519,696.33
The
Hurricane
theaftermath
aftermathofof
Hurricane
Thesubject
subject claim
claimisisvery
veryconfusing
confusingdue
duethe
thechaotic
chaoticevents
eventsdue
duetotothe
Katrina.
However,
Katrina. However, below
belowI Ihave
havesummarized
summarizedwhat
whatIIbelieve
believethe
thecontractor
contractor isis alleging
allegingand
andwhy,
why,
as
requesting.
as well
wellasasthe
therelief
reliefthe
thecontractor
contractorisisrequesting.
Exhibit A To Joint Status Report After Remand 1
Case 1:07-cv-00337-LJB
Document 21-2
Filed 03/05/2008
Page 2 of 8
Invoice##1162:
1162: Dated
Dated September
September 13,2006,
13, 2006, referencing
referencing 586-C60329,
586-C60329, CCS
CCS is
is claiming
claiming
Invoice
$47,190.00for
forcosts
costsincurred
incurredfor
fordebris
debrisremoval
removal from
from the
the VA
VA Medical
Medical Center.
Center.
$47,190.00
Invoice#1173:
#1173: Dated September 13,
2006, referencing
referencing 586-C60329,
586-C60329, CCS
CCS is claiming
Invoice
13,2006,
373,212.19for
forwork
workthey
theyallegedly
allegedlyincurred
incurredfor
fordehumidification
dehumidificationof
offloors
floors 1-10
1-10of
ofthe
theVAMC
VAMC
373,212.19
duringthe
thetime
timeperiod
periodfrom
fromDecember
December 14,
14,2005
2005through
throughFebruary
February 14,2006.
14, 2006.The
The
during
dehumidification work
work consisted
consisted of
of air
air movers,
movers, air
air scrubbers,
scrubbers, dehumidifiers, and barrel fans; and
and
dehumidification
technicianto
tomonitor
monitor equipment
equipment to
to ensure
ensure proper
proper operation;
operation; per
per diem
diem expense for employees;
aatechnician
dumpster;
and
commercial
supervisor/manager.
dumpster; and commercial supervisor/manager.
Invoice## 1174:
1174: Dated
2006, referencing 586-C60329,
586-C60329, CCS
CCS is claiming
Invoice
Dated September 13,
13,2006,
additional work
work and
and labor
labor in
in the
the amount
amount of $1,099,294.14 (original order - $1,500,000) {total
{total
additional
invoice isis $2,599,294.14)
$2,599,294.14} to
to include
include rental
rental equipment,
equipment, materials,
materials, and labor charges to provide
invoice
Germicidal fogging
fogging and
and spraying;
spraying; setup
setup and
and dismantling of
of equipment; setup of
Germicidal
of containment
walls; pumping
pumping additional
additional water;
water; and
and generator refueling and monitoring for the period October
October
walls;
7,
2005
through
March
4,
2006.
CCS
alleges
that
they
were
instructed
to
perform
the
work
by the
7, 2005 through March 4, 2006. CCS
that
to
the
COTR
through
this
date.
COTR through this date.
In May 2007,
2007, CCS
CCS filed
filed a complaint with the Court of Federal
Federal Claims
Claims seeking a declaratory
In
(CDA) for
for $1,519,696 as presented in
judgment and a judgment under the Contract Disputes Act (CDA)
invoices: 1162,
1162, 1173
and 1174.
ofFederal
Federal Claims
Claims has
has granted
granted aa Motion
Motion for
for aa
three invoices:
1173 and
1174. The
The Court
Court of
Stay of Proceedings and Remand to allow the Contracting
Contracting officer
officer to
to issue
issue aa final
final decision
decisionon
onthe
the
this CCS
CCS claim.
claim. This
decision
is
in
response
to
that
order.
It
is
my
understanding
that
This decision is in response
It is my understanding that
$32,026.87 for
for aa 1.5%
1.5% carrying
carrying cost
cost that
that was
was mistakenly
mistakenly
AfterDisaster wants to add to this claim $32,026.87
omitted from Invoice 72406. This
amount,
however,
was
never
presented
to
the
contracting
This amount, however, was never presented to the contracting
officer and a final decision will
will not
not be
be rendered
rendered on
on this
this issue.
issue.
Contracting
' s Statement of
of the
the relevant
relevant facts
facts
Contracting Officer
Officer's
This claim
claim arises
arises from
from the
the damage
damage brought
brought about
about by
bythe
thewinds
windsand
andrain
rainthat
thatinfiltrated
infiltratedthe
the
two
two lowest
lowest levels
levels of
ofthe
the VA
VA Medical
Medical Center,
Center,New
NewOrleans
Orleansininthe
thewake
wakeofofHurricane
HurricaneKatrina
Katrinainin
August
August 2005.
2005. The
Theentire
entiremedical
medicalcenter
centerwas
wasdevastated;
devastated;submerged,
submerged,and
andfungus
fungusinfected.
infected.
Patients
to be
be evacuated.
evacuated. In
In August
August 2005,
2005, VISN
VISN16
16contracting
contractingofficials
officialshired
hiredcontractors
contractorstoto
Patients had
had to
perform
perform clean-up
clean-up and
and remediation
remediation services
services at
at VAMC
VAMC New
New Orleans.
Orleans. CCS
CCSwas
wasone
oneofofthe
thefirst
first
contractors
contractors offered work at
at that time. They
Theysub-contracted
sub-contractedout
outthe
thework
workto
toSoutheast
SoutheastRestoration
Restoration
dba
dba AfterDisaster
AfterDisaster(AD).
(AD).
The
The issues
issuesininthis
thisclaim
claimbasically
basicallyinvolve
involvetwo
twodifferent
differentareas
areasofofwork
work.. The
Thefirst
first area
area of
ofwork
work
includes
the
cleanup
of
the
basement
and
sub-basement
ofVAMC
New Orleans.
Orleans. The
The second
second
includes the clean-up of the basement and sub-basement of
VAMC New
area
in VAMC
area of
ofwork
work includes
includesdehumidification
dehumidificationofoffloors
floors 1-10
I-lOin
VAMC New
NewOrleans.
Orleans.
Cleanup of
ofthe
thebasement
basementand
andsub-basement
sub-basement
Clean-up
CCS
/purchase orders
ofthe
thebasement
basementand
andsubsubCCSwas
wasawarded
awardedvarious
variouscontracts
contracts/purchase
ordersfor
forclean
clean-up
- up of
basement
of
VAMC
New
Orleans
.
This
clean-upwas
wasnecessary
necessaryininorder
orderfor
forVA
VAtotoeven
evenassess
assess
basement ofVAMC New Orleans. Thisclean-up
Exhibit A To Joint Status Report After Remand 2
Case 1:07-cv-00337-LJB
Document 21-2
Filed 03/05/2008
Page 3 of 8
whetherthe
thebuilding
buildingwas
wassalvageable.
salvageable. InInan
ane-mail
e -mailCCS
whether
CCSindicated
indicatedthat
thatthey
theycould
couldclean-up
clean-upthe
the
entirebasement
basementand
andsub-basement
sub-basementareas
areasfor
forbetween
between$1,000,000
$1,000,000 and
and $2,000,000.
$2,000,000.
entire
OnSeptember
September 13,2005,
13, 2005,Contracting
Contracting Officer
Officer Griffin
Griffin awarded
awarded contract
contract V502P-2477
V502P-2477 to CCS
On
totopump
pumpwater
waterout
outof
ofthe
thebasement
basementand
andthe
thesub-basement.
sub-basement. This
This contract
contract included
included aa provision
provision that
thecontractor
contractorwas
wasnot
notauthorized
authorizedtotoperform
perform any
any work
work that
that exceeded
exceeded the
the total
total price
price of
of $180,000.
the
By
September
22,
2005,
the
pumping
of
the
basement
and
sub-basement
was
completed;
CCS
By September 22,2005, the pumping of the basement and sub-basement
submittedtwo
twoinvoices
invoices and
and was
was paid
paid aa total
total of$165,000
of $165,000 for
for this work.
work.
submitted
OnSeptember
September26,
26,2005
2005CCS
CCSwas
wasawarded
awardedcontract
contractV502P-2483,
V502P-2483,PO
PO502-C54323.
502-C54323. This
On
contract
required
CCS
to
"clear
out
and
clean
critical
areas
of
the
basement
and sub-basement"
sub-basement"
contract required CCS to "clear out and clean critical areas of the basement and
and
it
specifiedaanot
notto
toexceed
exceedlimit
limitof
of$500,000.
$500,000. During performance
performance of this
this contract,
contract, it
it
and it specified
became clear
clear that
that the
the work
work being
being performed
performed in
in the
the basement
basement and
and sub-basement
sub-basement exceeded the
became
scope of
ofthis
this contract.
contract. It was clear that this
this contract
contract would
would not
not be
be sufficient
sufficient for
for the
the work
work that
that
scope
was being
being ordered
ordered and
and performed.
performed. According
According to
to the
the Resident
Resident Engineer,
Engineer, the contractor was told
was
that contract
contract V502P-2483,
V502P-2483, PO
PO 502-C54323
502-C54323 was going to be cancelled and replaced with aa new
that
new
P.O. for
for the
the basement
basement and
and sub-basement
sub-basementwork.
work. It is my understanding that Maria Pizarro was
P.O.
involved in
in and
and aware
aware of
of this
this cancellation.
cancellation. According
According to the Resident Engineer the new P.O was
involved
to be
be capped
capped at
at$1.5
$1.5million
milliondollars.
dollars. In
to
InDecember
Decemberof
of2005,
2005, the
the Resident
Resident Engineer erroneously
believed that a new Purchase Order, with the $1.5 million dollar
price
dollar price limitation,
limitation, had
had been
been issued
issued
contracting. He
by contracting.
Heproceeded
proceededtotohave
havethe
thecontractor
contractorcontinue
continueperformance
performance under
underthat
that mistaken
mistaken
belief.
belief.
2006 the basement and sub-basement
By February 2,
2,2006
sub-basement work
work that
that was
was required
required of
ofCCS
CCS was
was
substantially completed.
completed. (The
only
work
after
2/2/06
was
that
CCS
was
required
to
provide
(The only work after 2/2/06 was that CCS was required to provide VA
VA
with some equipment until March 4, 2006) On
OnFebruary
February14,
14, 2006,
2006, Contracting
ContractingOfficer
OfficerBrenda
Brenda
Stewart issued PO 586-C60329 to
to CCS
CCS for
for the
the clean
clean up
up of
ofBasement
Basement and
and sub-basement
sub-basement that
thatthey
they
had performed.
dollars. On
performed. This
This purchase
purchase order
order included
included aa not to exceed amount of 1.5
1.5 million dollars.
On
February 20,
2006, contract
20,2006,
contract V502P-2483
V502P-2483 which
which was
was the
the initial
initial $500,000
$500,000contract
contracttotoclear
clearout
outand
and
clean critical areas
areas of
of the
the basement
basement and
and sub-basement,
sub-basement, was
was cancelled
cancelled in
in writing.
writing.
In June 2006, the
the VISN
VISN asked
asked CCS
CCS when
when they
they would
would submit
submittheir
theirinvoice(s)
invoice(s)against
againstPO
PO586586C60329. CCS
CCSreplied
repliedthat
that they
theywere
were awaiting
awaiting input
input from
from their
their subcontractor,
subcontractor, AD. CCS
CCS
submitted
ofthe
the basement
basementand
and sub-basement
sub-basementininSeptember
September
submitted the
the first
first invoice
invoice for
for the
the clean-up
clean-up of
2006;
2006; seven
seven months
months after
after the
the work
work had
had been
beencompleted.
completed.
In
of2006,
2006, VA
VA officials
officialscertified
certifiedand
andpaid
paidonly
only$1.5
$1.5million
millionunder
underPurchase
PurchaseOrder
Order
In December
December of
586-C60329
citing
the
not
to
exceed
provision
in
the
purchase
order.
586-C60329 citing the not to exceed provision in the purchase order.
Dehumidification
offloors
floors1-10
1-10
Dehumidificationof
CCS
floors1-10
1-10ofofthe
the
CCS was
wasalso
alsoawarded
awardedvarious
variouspurchase
purchaseorders
ordersfor
fordehumidification
dehumidificationofoffloors
VAMC
VAMCNew
NewOrleans.
Orleans. Only
Onlytwo
twoofofthese
thesepurchase
purchaseorders
ordersare
arerelevant
relevanttotothis
thisclaim.
claim.
The
2005 by
P.O. 586-C60192
586-C60192 and
and was
was issued
issuedon
onOctober
October27,
27,2005
by
Thefirst
first relevant
relevantPurchase
PurchaseOrder
Orderisis P.O.
Maria
MariaPizarro.
Pizarro. This
ThisP.O
P.Owas
wasissued
issuedtotoCCS
CCSfor
forproviding
providing"all
"alllabor
laborand
andmaterials
materialsfor
for
Exhibit A To Joint Status Report After Remand 3
Case 1:07-cv-00337-LJB
Document 21-2
Filed 03/05/2008
Page 4 of 8
dehumidificationof
offloors
floorsI 1through
through10
10ofofthe
theVAMC
VAMCNew
NewOrleans,
Orleans,LA".
LA".This
Thiswas
wasan
an
dehumidification
estimatedpurchase
purchaseorder
orderwith
withaanot
nottotoexceed
exceedamount
amountof$500,000.00.
of $500,000.00. This
This purchase
purchase order
order
estimated
includedaa"Deliver
"Deliveronlbefore
on/beforedate
dateof
ofFebruary
February9,2006.
9, 2006. In
In short,
short, this
this P.O.
P.O. was
was for
for the
the
included
dehumidification
of
floors
110
from
10/28/05
through,
at
the
latest,
February
6,
2006.
dehumidification of floors 1- 10 from 10/28/05 through, at the latest, February 6, 2006. To date,
CCShas
hassubmitted
submittedone
oneinvoice,
invoice,invoice
invoice1128,
1128,under
underthis
thispurchase
purchaseorder.
order. It was
was submitted on
CCS
November11,2005,
11, 2005,and
andwas
wasfor
foraatotal
totalof$214,474.45.
of $214,474.45. This invoice was paid by VA.
November
Thesecond
secondrelevant
relevantPurchase
Purchase Order
Order isis P.O.
P.O. 586-C60254
586-C60254 issued
issued on
on January
January 11,
2006 by
The
11,2006
MariaPizarro.
Pizarro. This P.O was
to CCS for
for provision of all
all labor and
and materials
materials required to
to
Maria
was issued to
continue
the
dehumidification
process
established
under
previous
purchase
orders.
This
was
continue the dehumidification process established under previous purchase orders. This was an
estimatedpurchase
purchaseorder
orderwith
withaanot
nottotoexceed
exceedamount
amountof$2,394,738.90.
of $2,394,738.90. This
This purchase
purchase order
estimated
included aa"Deliver
"Deliver on/before
on/beforedate
dateof
of March
March3,
3,2006.
2006. In short, this P.O. was for the
included
dehumidification of
of floors
floors 11- 10
10 from
from 1/11/06 through,
through, at the latest, March 3, 2006. On
dehumidification
On January
January
nd and
and3,d
3rdof2006,
of 2006,CCS
CCSsubmitted
submittednine
nineinvoices
invoicesunder
underthis
thispurchase
purchase order
order for
for a total
total
22°d
$2,064,723.20. VA has
$2,064,723.20.
has paid CCS
CCS $2,115,423.40
$2,115,423.40 under
under this
this purchase
purchase order.
In September
September 2006,
2006, CCS
CCS submitted Invoice #1173, referencing Purchase Order 586-C60329.
In
586-C60329.
In this
this invoice,
invoice, CCS
CCS claimed $373,212.19 for work they allegedly incurred for
In
for dehumidification
dehumidification
of floors
floors 1-10 of the
the New Orleans VAMC during the time period
of
period from
from December
December 14,
14, 2005
2005
through February 14,
14, 2006.
2006. This
through
This invoice
invoice did
did not
not mention
mention P.O.
P.O. 586-C60192
586-C60192 or
orP.O.
P.O. 586-C60254.
586-C60254.
Furthermore this
this invoice was submitted months after the work was completed.
Furthermore
completed.
As stated above,
above, VA officials certified and paid only
As
only $1.5
$1.5 million
million under
under Purchase
Purchase Order
Order586586C60329 citing the not to exceed provision in
the
purchase
order.
in the purchase order.
Submission of
of claim
claim
Submission
On January 23,
2007, CCS
23,2007,
CCS submitted
submitted aa certified
certified claim
claim to
to CO,
CO, Maria
MariaPizarro,
Pizarro,for
forthe
thebalance
balance
of
of the three invoices previously
previously submitted.
submitted. CO
CO Pizarro
Pizarro replied
replied that
that PO
PO 586-C60329
586-C60329was
wasclosed
closed
with the December
December 1,
I, 2006
2006 payment
payment and
and that
that the
the remaining
remaining balance
balance"cannot
"cannotbe
bepaid
paidatatthis
thistime".
time".
On May
May 31,
31, 2007,
2007, CCS
CCS filed
filed aa complaint
complaintwith
withthe
theCourt
Courtof
ofFederal
Federal Claims
Claimsseeking
seeking
declaratory
$1 ,519,696for
forthe
thethree
three
declaratory relief
relief and
and aa judgment
judgment under
under the
the Contract
Contract Disputes
Disputes Act
Act for
for $1,519,696
invoices
invoices described
described above.
above.
In
In anticipation
anticipation of
of litigation
litigation the
the Contracting
Contracting Officer submitted this claim to the VA Office of
of
the
the Inspector
Inspector General
General (OIG)
(OIG) for
for aadetailed
detailed review.
review. Jerry
JerryGrahe,
Grahe,auditor,
auditor,conducted
conductedthorough
thorough
research
research to
to determine
determine whether
whetherquestioned
questionedsums
sumswere
weresupported
supportedand
andallowable
allowable(Report
(Reportattached).
attached).
Contracting
Contractingofficer
officeranalysis:
analysis:
Clean-up
Clean-upof
ofthe
the basement
basementand
andsub-basement
sub-basement
IIhave
havecarefully
carefullyreviewed
reviewedthe
thefacts
factsand
andcircumstance
circumstancesurrounding
surroundingthe
theclean-up
clean-upofofthe
the
basement
theVAMC
VAMCNew
NewOrleans
Orleansininthe
theaftermath
aftermathofofHurricane
HurricaneKatrina.
Katrina.
basementand
andsub-basement
sub-basementofofthe
Exhibit A To Joint Status Report After Remand 4
Case 1:07-cv-00337-LJB
Document 21-2
Filed 03/05/2008
Page 5 of 8
addition,the
theOIG
OIGhas
hasaudited
auditedthis
thisclaim
claimtotodetennine
determinewhether
whetherthe
thecosts
costs claimed
claimed by
by CCS
CCS are
are
InInaddition,
supportableand
andallowable.
allowable. II have
have carefully
carefully considered
considered these
these results.
results.
supportable
myopinion,
opinion,atatthe
thetime
timethat
thatthe
thework
workwas
wasperfonned,
performed, there
there was
was no
no express
express contract
contract
InInmy
governingthis
thiswork.
work. Initially contract
contract V502P-2483,
V502P-2483, with
with aa not
not to
to exceed
exceed amount
amount of$500,000,
of $500,000,
governing
wasissued
issuedtotoCCS
CCSfor
forthis
thiswork.
work.ltItappears
appearsthat
thatalmost
almostimmediately,
immediately,this
thiscontract
contractwas
wasverbally
verbally
was
cancelled. It
It is
is my
my belief
belief that
that the
the contractor,
contractor, VA
VA engineering,
engineering, and
and VA
VA contracting
contracting all
all verbally
cancelled.
agreedthat
thatthis
thiscontract
contractwas
wasnot
notsufficient
sufficientororappropriate
appropriatefor
forthe
thework
workbeing
beingperfonned.
performed. (This
(This
agreed
contractwas
waslater
laterexpressly
expresslycancelled
cancelledwith
with no
no invoices
invoices being
being paid.)
paid.)
contract
Assoon
soon as
as itit became
became apparent
apparent that
that contract
contract V502P-2483
V502P-2483 did
did not cover the work being
As
performed, CCS
CCS was
was promised
promised aa new
new purchase
purchase order and
and was asked to continue working on
perfonned,
on the
the
clean-upof
ofthe
thebasement
basementuntil
untilititcould
couldbe
beprocessed.
processed. Contracting Officer Maria Pizarro appears
clean-up
to have
have been
been at
at least
leastaware
aware of
ofthis
this promise,
promise,ififnot
notinvolved
involvedin
in it.
it. The Resident Engineer indicates
to
thatboth
both he
he and
and the
the COTR
COTR told
told CCS
CCS that
that the
the new
new P.O.
P.O. would
would have
have aa limit
limit of$1.5
of $1.5 million
million
that
dollars. II have no evidence,
dollars.
evidence, however, that this limitation was ever communicated to CCS by
by
someone
with
actual
contract
authority
until
the
Purchase
Order,
PO
586-C60329,
was
formally
someone with actual contract
until
was fonnally
issued.
issued.
On February
February 14,2006,
14, 2006, II issued
issued PO
PO 586-C60329
586 -C60329 for
On
work.
for the
the basement
basement and
and sub-basement
sub-basement work.
This
P.O. clearly
clearly included
included aa not
not to
to exceed amount
of $1.5 million
amount of$1.5
million dollars
dollars.. II received
this
This P.O.
received this dollar
dollar
limitation
amount
from
the
COTR.
limitation amount from the COTR. I issued this purchase order
order after
after the
the work
work was
was substantially
completed . I do
do not
not have any evidence of
' s acceptance
ofthe
the contractor
contractor's
ofthe
the price.
price. limitation
completed.
acceptance of
limitation
contained
in
the
Purchase
Order
.
contained in the Purchase Order. I believe that
that it would be
be difficult
difficult to
to prove
provethat
that the
the contractor
contractor
agreed to
to this
this price
price limitation.
limitation.
agreed
It is clear that
that CCS performed
that the work that
perfonned was necessary
necessary for the VA to
to assess
assess the
the damage
damage
to
to the
the VAMC.
VAMC. Although II am aware
aware of
of some
some concerns
concerns about
about the
the quality
quality of
ofthe
the work
work performed,
perfonned,
none
ofthe
the work
work has
has been
been clearly
clearlydocumented
documented as
as unsatisfactory
unsatisfactory.. The
The VA
VA benefited from
from this
this
none of
work
work and
and II find
find that
that the
the CCS
CCS is
is entitled to be paid the reasonable and
and allowable costs
costs associated
associated
with
with the
the work
work performed.
perfonned.
Invoice
162 dated
Invoice 1162:
1162: CCS
CCSisisclaiming
claiming$47,190
$47,190for
forwaste
wastehauling
haulingexpense
expenseon
oninvoice
invoice1 1162
dated
September
13, 2006. This
Thisinvoice
invoicecovers
coverscost
costof
ofwaste
wasteremoval
removal including
includingdelivery,
delivery, hauling
haulingand
and
September 13,
service
charges.
CCS
asked
the
VA
for
a
separate
PO
to
cover
the
waste
removal,
however
none
service charges. CCS asked the VA for a separate PO to cover the waste removal, however none
was
10,2005
2005through
through
was issued.
issued. The
The amount
amount requested
requested represents
represents waste
waste hauling
hauling from
from October
October10,
February
2006. The
ofthese
these costs.
costs. The
TheResident
ResidentEngineer
Engineer
February 1,1,2006.
The OIG
OIG has
has not
not questioned
questioned any
any of
confirms
confinns that
that the
the waste
waste hauling
haulingshould
shouldbe
becharged
chargedunder
underPO
PO586-C60329.
586-C60329.I Iconcur
concurwith
withpayment
payment
of
$47,190
for
this
invoice
under
PO
586-C60329.
of$47,190 for this invoice under PO 586-C60329.
Invoice
Invoice 1174:
1174: CCS
CCS isisclaiming
claimingan
anadditional
additional $1,099,294.14
$1,099,294.14($2,599,294.
($2,599,294.14
lessthe
thepayment
payment
14 less
of
$1,500,000)
for
the
basement
cleanup
on
invoice
of$1 ,500,000) for the basement cleanup on invoice 1174.
1174. The
TheOIG
OIGreport
reportreviewed
reviewedthe
theentire
entire
invoice
of$2,599,294.14.
$2,599,294.14.
invoiceamount
amountof
The
theequipment
equipmentrental
rentalexpense
expenseunder
underAD
AD
TheOIG
OIGreport
reportquestioned
questioned$95,497.44
$95,497.44worth
worthofofthe
invoice
ofof
AfterDisaster,
invoice72406
72406(part
(partofofinvoice
invoice1174).
1174).CCS
CCSisisclaiming,
claiming,ononbehalf
behalf
AfterDisaster,cost
costfor
for
Exhibit A To Joint Status Report After Remand 5
Case 1:07-cv-00337-LJB
Document 21-2
Filed 03/05/2008
Page 6 of 8
equipmentremaining
remainingon-site
on-siteafter
afterFebruary
February2,2006
2, 2006with
withcharges
charges continuing
continuing through
through March
March 4,
equipment
2006.The
TheOIG
OIGindicates
indicatesthat
thatAfterDisaster
AfterDisasterhad
hadno
nopresence
presence on
on site
site after
after February
February 2,2006.
2, 2006.
2006.
Furtherinvestigation,
investigation,however,
however,confirms
confirmsthat
thatthe
theVA
VArequested
requestedAfterDisaster
AfterDisastertotocontinue
continuetotorent
rent
Further
equipmentuntil
untilthe
theVA
VAno
nolonger
longerneeded
neededit.it.According
Accordingtotothe
theResident
ResidentEngineer,
Engineer,the
theequipment
equipment
equipment
questionremained
remainedonsite
onsiteatatthe
theVAMC
VAMCthrough
throughMarch
March4,2006.
4, 2006. Therefore,
Therefore, the
the questioned
ininquestion
amountof
of$95,497.44
$95,497.44should
should be
be paid.
paid.
amount
TheOIG
OIGreport
reportquestioned
questioned$16,322.43
$16,322.43 of
of the
the material
material and
and supplies
supplies and
and employee
employee health care
The
expenseon
onAD
ADinvoice
invoice72406.
72406. The OIG
OIG states
states items
items identified
identified and
and questioned
questioned on
on this
this invoice
expense
are
not
what
is
generally
referred
to
as
materials
or
commodities
that
are
consumed
during aa
are not what is generally referred to as materials or commodities that are consumed during
processor
orsupplies
supplies generally
generally referred
referredto
to as
as materials
materials stored
stored and
and dispensed
dispensed when
when needed.
needed. Many
process
itemsreferred
referredto
toas
assmall
smalltools
tools are
are generally
generally recovered
recoveredthough
though overhead
overhead and
and profit
profit accounts
accounts
items
since
it
does
not
meet
the
definition
of
a
direct
cost.
since it does not meet the definition of a direct cost.
concurwith
with the
the OIG
OIG report
report on
on the
the$16,322.43
$16,322.43 of
of questioned
questioned costs.
costs. The items claimed will
will
II concur
or can
can be
be used
used on
on future
future projects
projects by
by AfterDisaster.
AfterDisaster. Generators were rentcd
rented on a daily rate;
or
therefore maintenance
maintenance cost
cost should be included in the daily rate with the exception of
of the
the fuel.
fuel.
therefore
The cost
cost of
of health
health care
care benefits to
to employees does not meet the definition of
of direct costs
costs since
since
The
AfterDisaster will
will still
still benefit
benefit from
from these
these after
after demobilizing.
demobilizing. Therefore,
Therefore, the
the amount
amount of
of
AfterDisaster
$16,322.43 will
will be
be denied.
denied.
$16,322.43
Of the
$1,099,294. 14 claimed
claimed under
under invoice
invoice 1174
Of
the additional
additional $1,099,294.14
1174,, 1find
1 find that
that the
the contractor is
owed
a
total
of $1,082,971.71.
owed a total of$I,082,971.71.
Claim amendment involving invoice 1174•
1174: A
A new
new issue
issue was
was apparently
apparently raised
raised by
by
AfterDisaster after
after submission
submission of the
the initial
initial claim.
claim. ItIt is
my
understanding
that
AfterDisaster
is my understanding that AfterDisaster has
has
requested that CCS add an additional $32,026.87
$32,026.87 to
to the
the claim
claim for
for aa 1.5%
1.5% carrying
carrying cost
cost that
that was
was
mistakenly omitted from Invoice 72406 (part ofCCS
of CCS invoice 1174).
1174). AfterDisaster
AfterDisaster indicates
indicates that
that
VA was unable
ofthis
this massive
massive project.
project. AfterDisaster
AfterDisaster further
further claims
claims that
that
unable to
to provide
provide for
for funding
funding of
they initially
initially funded
funded the
the project
project and
and they
they wish
wish to
to therefore
therefore include
include their
their normal
normal finance
finance terms
termsof
of
1.5%
per
month
on
invoice
72406.
1.5% per month on invoice 72406.
This
tothe
thecontracting
contractingofficer
officerfor
foraafinal
finaldecision.
decision.
This claim
claim has
has never
never been
been formally
formallypresented
presentedto
Although
Although IIwill
will not
notrender
renderaadecision
decisionon
onthis,
this,I Iwill
willindicate
indicatethat
thatI Icurrently
currentlyhave
haveno
noevidence
evidencethat
that
anyone
anyone in
in VA
VA ever
ever agreed
agreed to
to accept
accept financing
financing from
from the
the contractor
contractor or from
from the subcontractor. I I
have
have no
no evidence
evidence that
that VA
VAagreed
agreedto
topay
paythe
thecontractor
contractoraafinance
financecharge.
charge.
Dehumidification
offloors
floors 1-10
1-10
Dehumidificationof
Invoice
Invoice 1173:
1173: CCS
CCS isisclaiming
claiming$$373,212.19
oninvoice
invoice1173
1173dated
datedSeptember
September13,
13,2006.
This
373,212.19 on
2006. This
invoice
dehumidificationfor
forfloors
floors 1-10
1-10ofofthe
theVAMC
VAMCNew
NewOrleans
Orleansfrom
from
invoiceisisfor
forthe
thecosts
costsofofdehumidification
December
2005 through
2006. This
December14,
14,2005
throughFebruary
February 14,
14,2006.
Thiswork
workisisclearly
clearlyoutside
outsideofofthe
thestatement
statementofof
work
- C60329 which
work on
onPO
PO586
586-C60329
whichwas
wasissued
issuedfor
forremediation
remediationfor
forthe
thebasement
basementand
andsub-basement.
sub-basement.
However,
However, IIhave
havedone
donesome
someextensive
extensiveresearch
researchand
andthis
thiswork
workappears
appears to
to be
be within
within the
the scope
scopeof
of
purchase
- C60192
. As
purchaseorders
orders586
586-C60
192and
and586-C60254
586-C60254.
Assuch,
such,I Ifind
findthat
thatthe
thecontractor
contractorshould
shouldbebe
reimbursed
, non-duplicative
reimbursedfor
forthe
theappropriate
appropriate,
non-duplicativecosts
costsassociated
associatedwith
withthis
thiswork
workunder
underpurchase
purchase
Exhibit A To Joint Status Report After Remand 6
Case 1:07-cv-00337-LJB
Document 21-2
Filed 03/05/2008
Page 7 of 8
orders586-C60192
586-C60192and
and586-C60254
586-C60254issued
issuedon
onOctober
October28,2005
28, 2005and
andJanuary
January11,2006
11, 2006
orders
respectively.
respectively.
TheOIG
OIGreviewed
reviewed the
thecosts
costsclaimed
claimedin
ininvoice
invoice 1173.
The
1173. The
The OIG
OIGreport
reportquestioned
questioned $13,789.78
$13,789.78
of
technician
time
for
work
performed
without
authorization
oftcchnician time for work perfonned without authorization, , or
oraatotal
totalof$16,685.63
of $16,685.63 when
when
including CCS
CCS overhead
overhead and
and profit.
profit . (According
( Accordingto
including
tothe
theOIG,
OIG,AfterDisaster
AfterDisasterclaimed
claimed 10
10 hours
hours of
of
technician
time
per
day
for
monitoringof
of dehumidification
dehumidification equipment.
equipment . However,
technician time per day for monitoring
However, there
therewas
was no
no
dehumidification equipment
equipment to
to monitor during
during the
the time period
period in question.)
question .) In
addition,
the
dehumidification
In addition, the
OIG report
report questioned
questioned $5,598.16
$ 5,598.16 for
for the
the total
total carrying
carryingcost
cost including
including CCS
OIG
CCS overhead
overhead and
and profit.
profit.
(A carrying
carrying cost
costof
of 1.5%
1.5 % was
was applied
appliedto
toinvoices.)
invoices .) The
The OIG's
OIG 'stotal
questioned
cost
on
invoice
(A
total questioned cost on invoice
1173was
was $22,283.79.
$22,283.79.
1173
In response
response to
to the
the OIG's
OIG's questioning of
In
of the carrying costs, AfterDisaster indicates
indicates that
that VA
VA
was unable
unable to
to provide
provide for
for funding
funding ofthis
of thismassive
massiveproject.
project. AfterDisaster claims that they funded
was
the project
project and
and is
is therefore
therefore including
including their
their nonnal
normal finance
finance terms
terms of 1.5% per month on this
the
invoice.
InVOIce.
Once again
again there
there is
is no
no evidence that the
the VA ever requested financing from CCS or from
Once
from
AfterDisaster and
and no
no evidence
evidence that
that VA
VA agreed
agreed to
to pay
pay financing
financingcosts.
costs. In addition, the
AfterDisaster
dehumidification of floors
floors 1-10,
1-10, was
was in
in fact
fact funded
funded by
by VA
VA prior
prior to
to performance.
performance. There were
were two
two
dehumidification
funded purchase
purchase orders
orders under
under which
which CCS
CCS should
should have
have invoiced.
invoiced. P.O.
properly funded
P.O. 586-C60192,
586-C60192,
issued on
on October 28,2005,
28, 2005, covered
covered dehumidification
dehumidification through
through February
February 6,
6, 2006.
2006. It
issued
It had
had aa not
not to
to
of $500,000 and CCS has thus far only invoiced for
exceed amount of$500,000
for $214,474.45
$214,474.45 under
under that
that
order. In
2006, covered
purchase order.
In addition
addition P.O.
P.O. 586-C60254
586-C60254 issued
issued on
on January
January 11,
11,2006,
covered
March 3, 2006.
2006. This purchase order had
had a not
not to
to exceed
exceed amount
amount of
dehumidification through March
$2,394,738.90. To
$2,394,738.90.
To date,
date, CCS
CCS has
has only
only invoiced
invoiced for
for aa total
total of
of$2,064,723.20
$2,064,723 .20 under
under this
this purchase
purchase
order.
order.
The fact that CCS did not
not choose
choose to
to invoice
invoice under
under those
those available
available purchase
purchase orders
ordersdoes
doesnot
not
make the VA responsible for
for finance
finance charges. The
Thefact
fact that
that CCS
CCS submitted
submittedother
otherinvoices
invoicesunder
under
those purchase
purchase orders
orders in
in November
November 2005
2005 and
and in
in January
January2006
2006shows
showsthat
thatCCS
CCSwas
wasfully
fullyaware
aware
of
of those purchase orders. For
Forall
allof
ofthe
theabove
abovereasons,
reasons, IIfind
find that
that CCS
CCS isisnot
not entitled
entitledto
to the
the
carrying
carrying cost
cost of
of $5,598.16
$5,598.16 under
under invoice
invoice 1173.
1173.
In
[n response to the OIG's
OIG's findings
findings questioning
questioning $16,685.63
$16,685.63 for
for technician
technician time,
time, After
AfterDisaster
Disaster
indicates
ofproviding
providingmoisture
moisturereadings
readingswhich
whichwere
werecontinued
continued
indicates that
that this
this cost
cost includes
includes the
the cost
cost of
until
until January
January 16,
16, 2006.
2006. According
Accordingtotothe
theResident
ResidentEngineer,
Engineer,moisture
moisturereadings
readingsshould
shouldtake
takeno
no
more
than
2
hours
per
day.
Therefore
I
will
allow
2
hours
per
day
for
a
total
of
62
hours
at
more than 2 hours per day. Therefore I will allow 2 hours per day for a total of 62 hours at
regular
of$32.91
$32.91 or
or $2,040.42
$2,040.42 for
for these
these moisture
moisture readings.
readings. The
Thetotal,
total,with
withoverhead
overhead
regular time
time rate
rate of
and
profit,
then
for
these
readings
comes
to
$2,448.50.
I
am
denying
the
remaining
$14,237.33
of
and profit, then for these readings comes to $2,448.50. I am denying the remaining $14,237.33 of
the
the amount
amountclaimed
claimedfor
forthis
thistechnician
techniciantime.
time.
In
ofthe
the submitted
submittedcosts
costs for
for invoice
invoice1173.
1173. 1 Ifind
findthat
thatunder
under
In total,
total, I[am
am denying
denying$19,835.49
$19,835.49of
invoice
$353,376.70.
invoice1173,
1173,the
thecontractor
contractorisisentitled
entitledtotoaatotal
totalofof$353,376.70.
Exhibit A To Joint Status Report After Remand 7
Case 1:07-cv-00337-LJB
Document 21-2
Filed 03/05/2008
Page 8 of 8
Summary
Summary
Withregard
regardtotothe
thebasement
basementand
andsub-basement
sub-basementwork,
work ,except
With
exceptasasspecifically
specificallynoted
notedabove,
above, the
the
contractorisisseeking
seekingcompensation
compensation for
for work
work that
that was
was ordered
ordered by
contractor
byVA
VApersonnel
personnelwith
withknowledge
knowledge
ofwarranted
warrantedcontracting
contractingstaff.
staff. Furthermore,
Furthermore,there
of
thereisisnot
notsufficient
sufficientdocumentation
documentationto
toshow
show that
that
the
work
was
less
than
satisfactory
PurchaseOrder
Order586-C60329,
586 -C60329,which
the work was less than satisfactory. . Purchase
whichestablished
establishedthe
thenot-tonot-toexceedlimit
limitof
of $1.5
$1.5 million
million dollars,
dollars ,was
exceed
wasnot
notformally
formallyissued
issued until
until after
afterthe
thework
workwas
was
substantiallycomplete.
complete. It would be difficult to
agreed to
to this
this price
to prove
prove that
that the contractor agreed
substantially
limitation.
The
government
benefited
from
the
performance
limitation. The government benefited from the performance of
ofthis
thiswork
work and
andshould
shouldpay
pay
appropriatecosts
costsassociated
associated with
with this
this work.
work.
appropriate
CCS isis claiming
claiming $47,190
$47,190 for
for waste
wastehauling
haulingexpense
expenseon
oninvoice
invoice 1162. Reimbursement
CCS
Reimbursement for
forthis
this
amountrequested
requested under
underthis
this claim
claim is
is approved
should
be
amount
approved as
as part
part of
of PO
PO 586-C60329
586-C60329 and
and should be
reimbursed.
reimbursed.
CCS is
is claiming
claiming an
an additional
additional $1,099,294.14
CCS
$1,099,294.14 ($2,599,294.14
($2,599,294.14 less
less the
the payment
payment of
of $1,500,000)
$1,500,000)
for
the
basement
cleanup
on invoice
invoice 1174.
1174. VA
VA denies
denies payment
in
for the basement cleanup on
payment for
for material
material and
and supply
supply cost
cost in
the
amount
of
$16,322.34.
I
find
that
the
contractor
is
still
owed
a
total
the amount of $16,322.34. I find that the contractor is still
of
71 under
of $1,082,971.
$1,082,971.71
under
invoice 11174
174 for
for work
work performed.
performed.
invoice
of the
the medical
medical center
center the
the contractor
contractor
For the dehumidification work performed on Floors
Floors 1-10
1-10 of
is claiming $373,212.19
$373,212.19 on invoice 1173. This work is not involved in clean-up of
is
of the basement
or sub-basement
sub-basement and
and is
is clearly outside
outside of scope
scope of
of PO
PO 586-C60329.
586-C60329. However,
However, this
this work
work isis
within the scope of
of other purchase orders that were
were issued
issued to
to CCS,
CCS, specifically
specifically P.O.
P.O. 586-C60192
586-C60192
and
P.O.
586-C60254.
I
find
that
CCS
should
be
reimbursed
for
the
appropriate
costs
and
I find that CCS should be reimbursed for the appropriate costs for
for
performing this work under those purchase orders.
orders. For
of
Forthe
the reasons
reasons specified
specified above,
above, aa total
total of
$19,835.49 has been denied from the contractor's invoice.
invoice. Therefore
Thereforethe
thetotal
totalamount
amountowed
owedtoto
the contractor for this work
work under
under purchase
purchase orders
orders 586-C60192
586-C60192 and
and 586-C60254
586-C60254isis$353,376.70.
$353,376.70.
CCS's
CCS's total
total certified
certified claim
claim was
was for
for $1,519,697.04. This
Thisclaim
claim primarily
primarily consisted
consisted of
ofthree
three
invoices: invoices
invoices 1162,
1162, 1173
1173 and
and 1174.
1174. 1 Ihave
havefound
foundthat
thatunder
underthese
thesethree
threeinvoices
invoicesthe
the
contractor
$1,483,538.41. This
contractor is
is entitled to
to aa combined
combined total
total of
of$1,483,538.41.
Thisamount
amountconstitutes
constitutescomplete
complete
compensation
compensation for
for all
all costs
costs associated
associated with
with the
thework
workperformed
performedunder
underP.O,
P.O,586-C60329
586-C60329and
andallall
costs
associated
with
work
relating
to
dehumidification
for
floors
1-10
of
the
VAMC
New
costs associated with work relating to dehumidification for floors 1-10 of the VAMC New
Orleans
14, 2005 through
Orleans from
from October
October 28,
28,14,2005
through March
March 3,
3, 2006.
2006. This
Thisamount
amountfurther
furtherconstitutes
constitutesfull
full
compensation
for
the
contractor's
certified
claim
filed
in
January
23,
2007.
This
amount
is
compensation for the contractor's certified claim filed in January 23,2007. This amount is
inclusive
ofall
all costs
costs direct
direct and
and indirect
indirect including
including all
all litigation
litigation costs,
costs, attorney's
attorney'sfees
feesand
andinterest.
interest.
inclusive of
This
Thisisisthe
thefinal
final decision
decisionof
ofthe
theContracting
ContractingOfficer.
Officer. This
This decision
decision was
was issued
issuedin
in compliance
compliancewith
with
the
the Order
Orderof
ofthe
the United
United States
States Court
Court of
ofFederal
Federal Claims
Claims dated
dated January
January 3,
3, 2008.
2008. However
Howeverthese
these
matters
matters are
arestill
still ininlitigation.
litigation. Therefore,
Therefore,no
nopayments
paymentswill
willbebemade
madepursuant
pursuanttotothis
thisfinal
finaldecision
decision
except
exceptas
asspecifically
specificallyordered
orderedby
bythe
theUnited
UnitedStates
StatesCourt
CourtofofFederal
FederalClaims.
Claims.
E~V\d~~
Brenda
BrendaStewart
Stewart
Contracting
ContractingOfficer
Officer
Exhibit A To Joint Status Report After Remand 8