“Admit that Mistakes Were Made”: Government Not Required to Respond to Vague, Passively-Phrased Requests for Admission; Appeals of J.R. Filanc Construction Company, Inc., ASBCA Nos. 62580 et al.

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Contractor’s motion to compel government to respond to discovery requests is granted in part and denied in part. The government objected to the contractor’s interrogatories on the grounds that they were contention interrogatories that it didn’t need a response until the end of discovery. The board, however, found that these interrogatories could sharpen the issues and thus ordered the government to respond. The government also refused to respond to some of the contractor’s requests for admission. The board sided with the government on the requests for admission, noting that the requests were phrased in the passive voice. The government could not be required to provide admission for such vague requests.

J.R. Filanc Construction Company had a contract with the Navy to deliver water from a Marine base to public utility. Filanc submitted several claims alleging differing site conditions, government caused delays, and changes. The Navy denied the claims, and the Navy asserted its own claim against Filanc for deviating from contract requirements. Filanc appealed the various claims to the ASBCA.

On appeal, Filanc served several interrogatories and requests for admission. The Navy objected to many of the discovery requests. Filanc moved to compel the Navy’s response.

The Navy objected to several of Filanc’s contention interrogatories—i.e., interrogatories that sought the “all the facts” supporting contentions made by the Navy in the final decision. The Navy asserted that because the board reviews facts de novo on appeal, the contentions made in the final decision were not actually binding on the Navy. Rather, the Navy argued, absent an  adoption of these contentions at the end of trial, the Navy did not need to respond to the interrogatories.

The board, however, that the nature of its review on appeal did not make the information Filanc sought undiscoverable. The Federal Circuit has indicated that parties cannot flatly refuse to respond to contention interrogatories until the end of discovery. Understanding the Navy’s shifting position could be part of Filanc’s case. The board ordered the Navy to respond to the discovery requests.

The Navy also objected to several of Filanc’s requests for admission. The board found the Navy’s objections compelling. The requests used the passive voice when seeking information about causation. For instance, one request used the phrase, “Admit Filanc was required to mobilize saw-cutting.” The board noted that this was ambiguous; it was not clear whom or what required Filanc to use mobilized saw-cutting. The Navy could not be expected to provide an admission for such vaguely-phrased requests.

Filanc is represented by Kelly A. Floyd and Dustin R. Jones of Finch, Thornton & Baird, LLP. The government is represented by Craig D. Jensen and David M. Marquez of the Navy.

ASBCA - J.R. Filanc Construction Co