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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

THE UNITED STATES OF AMERICA §

For The Use And Benefit Of §

FROST & KEELING §

ASSOCS., INC. §

Plaintiff, §

§

v. § CIVIL ACTION NO. 6:20-cv-411

§

WHITESELL-GREEN, INC. & §

FEDERAL INSURANCE §

COMPANY §

Defendants. §

COMPLAINT

Now comes Use-Plaintiff, Frost & Keeling Assocs., Inc., by and through the undersigned 

attorneys and alleges as follows:

NATURE OF THE ACTION

1. This action is brought by FROST & KEELING ASSOCS., INC. (“FROST & 

KEELING”), to recover monies due and owing from WHITESELL-GREEN, INC 

(“WHITESELL”) and FEDERAL INSURANCE COMPANY (“FEDERAL”), relating to unpaid 

services, labor and materials furnished to Whitesell for plumbing, mechanical, and other construction 

work and services on the 21000 Block Rolling Pin Barracks, Fort Hood, Texas, the 41000 Block 

Rolling Pin Barracks, Fort Hood, Texas, and the 37000 Block Rolling Pin Barracks, Fort Hood, Texas”

(collectively “Rolling Pin Barracks”) Project located in Fort Hood, Texas, believed to be federal 

projects, contract number W9126G-14-D-0047, including Task Orders W9126G17F0135,

W9126G18F0035 and W9126G18F0183. Count I of this action is brought by Frost & Keeling against 

Whitesell to recover damages for breach of contract, including attorney’s fees. Count II of this action 

is brought by Frost & Keeling against Whitesell to recover the value of benefits conferred by Frost & 

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Keeling to Whitesell on a quantum meruit basis. Included with the foregoing Counts, is an action against 

Whitesell for violation of the United States Prompt Payment Act, 31 U.S.C. Ch. 39 and Prompt Payment 

for Construction Contracts Federal Acquisition Regulation 52.232-27. Count III of this action is 

brought by Frost & Keeling for payment as Use-Plaintiff under the United States Miller Act, 40 U.S.C. 

§§ 3131, et seq. on the Payment Bond provided by Federal and Whitesell.

PARTIES

2. The Plaintiff, Frost & Keeling Assocs., Inc., is a Texas corporation in good standing.

3. Defendant, Whitesell-Green, Inc., is a Florida corporation that may be served with 

summons by serving its registered agent, Incorp Services, Inc., at 815 Brazos, Suite 500, Austin, Texas 

78701-0000.

4. Defendant, Federal Insurance Company, may be served with summons by serving its 

registered agent, CT Corporation System, at 1999 Bryan Street, Suite 900, Dallas, Texas 75201-4284.

JURISDICTION

5. Jurisdiction is conferred upon this Court by the Miller Act, 40 U.S.C. § 3131, et seq.

6. Venue for this action properly rests in the Western District of Texas, Waco Division, 

under the Miller Act, 40 U.S.C. § 3131, providing venue in the United States District Court for the 

District in which the contract was performed. Rolling Pin Barracks, Block 41000 and 21000 are 

located within the Fort Hood Military Reservation. 

COUNT I

BREACH OF CONTRACT

7. Prior to the agreements between Frost & Keeling and Whitesell, Frost & Keeling

alleges that the United States of America and the Defendant, Whitesell, entered into a written contract 

whereby Whitesell agreed to perform certain construction work described in a written agreement for 

the construction, reconstruction, or improvements to the Rolling Pin Barracks, believed to be federal 

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projects, contract number W9126G-14-D-0047, including Task Orders W9126G17F0135, 

W9126G18F0035 and W9126G18F0183, hereinafter called “the Project.”

Four Subcontracts Between Frost & Keeling and Whitesell

8. Whitesell hired Frost & Keeling as a subcontractor for work encompassed within 

Whitesell’s agreement with the United States of America. Frost & Keeling and Whitesell entered into 

four subcontracts for work on the Rolling Pin Barracks Project: 

a. On or about July 13, 2018, Whitesell and Frost & Keeling entered into a 

Subcontract for Frost & Keeling to perform all HVAC work on the 21000 

Block Rolling Pin Barracks, Ft. Hood, Texas for a lump sum price (“21000 

Mechanical Subcontract”). A true and correct copy of the 21000 Mechanical

Subcontract is attached hereto as Exhibit 1 and incorporated by reference.

b. On or about July 13, 2018, Whitesell and Frost & Keeling entered into a 

Subcontract for Frost & Keeling to perform all plumbing work on the 21000 

Block Rolling Pin Barracks, Ft. Hood, Texas for a lump sum price (“21000 

Plumbing Subcontract”). A true and correct copy of the 21000 Plumbing 

Subcontract is attached hereto as Exhibit 2 and incorporated by reference.

c. On or about, August, 29, 2018, Whitesell and Frost & Keeling entered into a 

Subcontract to perform all HVAC work on the 41000 Block Rolling Pin 

Barracks, Ft. Hood, Texas for a lump sum price (“41000 Mechanical 

Subcontract”). A true and correct copy of the 41000 Mechanical Subcontract

is attached hereto as Exhibit 3 and incorporated by reference.

d. On or about August 29, 2018, Whitesell and Frost & Keeling entered into a 

Subcontract to perform all plumbing work on the 41000 Block Rolling Pin 

Barracks, Ft. Hood, Texas for a lump sum price (“41000 Plumbing 

Subcontract”). A true and correct copy of the 41000 Plumbing Subcontract is 

attached hereto as Exhibit 4 and incorporated by reference.

The 21000 Subcontracts 

9. The scope of work of the 21000 Mechanical Subcontract (Exhibit 1) included: the 

installation of new HVAC equipment; new mechanical piping and insulation; new mechanical 

ductwork and duct insulation; new building automation system controls; penetrations for mechanical 

piping and duct work; fire dampers; and the addition of copper risers. 

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10. The scope of the 21000 Plumbing Subcontract (Exhibit 2) included: the installation

of new plumbing equipment and fixtures; new plumbing piping and piping insulation; new water 

meters; and new penetrations for piping and venting. 

11. Frost & Keeling performed all work in compliance, or substantial compliance, with 

the 21000 Subcontracts. 

12. Despite performing all work under the 21000 Subcontracts, Whitesell failed to make 

payments to Frost & Keeling for amounts owed under the 21000 Mechanical Subcontract for Payment 

Application 13, Payment Application 14, Payment Application 15, Payment Application 16, Payment 

Application 17, and Payment Application 18. Whitesell also only made partial payment on the amount 

due in Payment Application 12. 

13. Whitesell also failed to make payments to Frost & Keeling for amounts owed under 

the 21000 Plumbing Subcontract for Payment Application 11, Payment Application 12, Payment 

Application 13, Payment Application 14, Payment Application 15, and Payment Application 16. 

Whitesell also only made partial payment on the amount due in Payment Application 10. 

14. In addition to Whitesell’s complete failure to make the above referenced payments, all 

payments which Whitesell did submit were significantly past due and were not paid in accordance with 

the subcontract provisions and in violation of the Prompt Pay Act and Federal Acquisition 

Regulations. 

15. To date, the principal sum owed under the 21000 Subcontracts totals $415,104.15 

16. Whitesell’s failure to pay Frost & Keeling in full for its work in accordance with the 

contract documents is a breach of the respective Subcontracts. Such breach has caused injury to Frost 

& Keeling and is expected to cause further injury to Frost & Keeling in the future.

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The 41000 Subcontracts 

17. The scope of work of the 41000 Mechanical Subcontract (Exhibit 3) included: the 

installation of new HVAC equipment; new mechanical piping and insulation; new mechanical 

ductwork and duct insulation; new building automation system controls; penetrations for mechanical 

piping and duct work; fire dampers, and the addition of copper risers. 

18. The scope of the 41000 Plumbing Subcontract (Exhibit 4) included: the installation

of new plumbing equipment and fixtures; new plumbing piping and piping insulation; new water 

meters; and new penetrations for piping and venting. 

19. Frost & Keeling performed all work in compliance, or in substantial compliance, with

the 41000 Subcontracts. 

20. Despite performing all work under the 41000 Subcontracts, Whitesell failed to make 

payments to Frost & Keeling for amounts owed under the 41000 Mechanical Subcontract for 

Payment Application 14, Payment Application 15, Payment Application 16, and Payment Application 

17. Whitesell also only made partial payment in Payment Application 13.

21. Whitesell also failed to make payments to Frost & Keeling for amounts owed under 

the 41000 Plumbing Subcontract for Payment Application 9, Payment Application 10, Payment 

Application 11, Payment Application 12, Payment Application 13, Payment Application 14, and 

Payment Application 15. Whitesell also only made partial payment in Payment Application 8.

22. To date, the principal sum owed under the 41000 Subcontracts total $524,518.51.

23. In addition to Whitesell’s complete failure to make the above referenced payments, all 

payments which Whitesell did submit were significantly past due and in violation of the Prompt Pay 

Act and Federal Acquisition Regulations. 

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24. Whitesell’s failure to pay Frost & Keeling in full for its work in accordance with the 

contract documents is a breach of the respective Subcontracts. Such breach has caused injury to Frost 

& Keeling and is expected to cause further injury to Frost & Keeling in the future.

Profit Sharing Agreement and Cost Saving Split Agreement

25. In addition to the above contracts, Frost & Keeling had both a profit sharing 

agreement (“profit agreement”) and a cost saving split agreement (“split agreement”) with Whitesell. 

The profit agreement arose out of helping Whitesell bid and win the Ft. Hood projects. Under the 

agreement, Whitesell would pay Frost & Keeling 10% of the net profits excluding cost savings created 

later by Frost & Keeling. The split agreement arose out of the bid pricing for plumbing work 

submitted by competing subcontractors for the 21000, 41000 and 37000 blocks of Rolling Pin 

Barracks, and carried in Whitesell’s contract award amounts. Upon review of competing bids, Frost 

& Keeling offered that it could perform and manage the same work for significantly less than what 

was carried in the original bids. Therefore, Frost & Keeling proposed to perform and manage the 

work at a lower price in return for a share in the cost savings Whitesell would enjoy as a result. Frost 

& Keeling offered increased cost savings for the 37000 block of Rolling Pin Barracks by identifying, 

qualifying, detailing scopes of work and securing pricing for a replacement subcontractor to perform 

the mechanical and plumbing work on the project. The split agreement contemplated that Whitesell 

and Frost & Keeling would split, 50/50, the amount Whitesell saved on the plumbing and mechanical 

work when compared to the pricing carried by Whitesell in its bids. 

26. Thereafter, the parties engaged in a course of conduct and numerous communications

which memorialized the agreements. The total cost savings on the Projects would be $4,853,822.67. 

Therefore, the amount owed to Frost & Keeling is $2,426,911.33 plus an estimated amount of 

$429,273.20 for 10% of the net profits of all three (3) projects. Frost & Keeling fully performed its 

part of the agreement and saved Whitesell millions of dollars. Despite such performance, Frost & 

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Keeling has not received any money from Whitesell despite a contract with Whitesell to pay Frost & 

Keeling the 10% of the project net profits and the 50% of the amount saved from the competing bids.

Attempts to Resolve

27. Frost & Keeling made numerous attempts to resolve this matter with Defendant, 

Whitesell, to no avail. Each request for a meeting was ignored by Whitesell. In prior correspondence, 

Whitesell was invited to submit any dispute it may have to the outstanding balances via a proposed 

meeting between the parties. Whitesell has continually avoided its payment obligations and failed to 

submit a good faith dispute regarding the outstanding balance despite the terms of the contract, 

thereby leaving Frost & Keeling no other option but to file this complaint. 

Delay

28. In addition to the above referenced breaches, Whitesell’s actions throughout the 

Project have caused significant delays. An analysis of available Project records reveals a pattern of 

delays related to design, out of sequence work and subsequent manipulation of the Project schedule 

by Whitesell. Although responsible, Whitesell hid the true cause of the delays and set the stage for 

constructive acceleration of the work on the Project. Whitesell further failed to secure time extensions 

for design related delays and subsequently made matters worse by issuing unjustified cure notices to 

Frost & Keeling. 

COUNT II

QUANTUM MERUIT

29. In the alternative, Frost & Keeling would show that Frost & Keeling’s above-described 

services, labor and materials were furnished for the benefit of Whitesell, either at its specific direct 

request or with its knowledge and consent. Whitesell accepted and received said services, labor, and 

materials with knowledge that Plaintiff Frost & Keeling expected compensation from Whitesell.

30. Plaintiff, Frost & Keeling’s, services, labor, and materials benefited Whitesell, and the 

reasonable value of the services, labor and materials furnished to Whitesell by Frost & Keeling, which 

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remains unpaid as of this date, exceeds nine hundred and thirty nine thousand six hundred twenty two 

dollars and sixty six cents ($939,622.66).

31. Frost & Keeling demands judgment against Whitesell for the reasonable value of its 

services, labor, and materials, plus applicable statutory, contractual and Contract Disputes Act interest, 

costs and attorney’s fees pursuant to Texas Civil Practices and Remedies Code § 38.001 et seq., Tex. 

Property Code Ch. 28, and the parties’ contracts. Frost & Keeling has agreed to pay the undersigned 

attorneys a reasonable fee for the services and therefore seeks to recover such amounts from Whitesell

for the preparation and trial of this case in United States District Court, and additional amounts in the 

event of an appeal.

COUNT III

MILLER ACT

32. Pursuant to 40 U.S.C. §§ 3130, et seq. Federal and Whitesell furnished performance 

and payment bonds to the United States of America wherein Whitesell, as principal, and Federal, as 

surety, bound themselves jointly and severally for the protection of all persons supplying services, 

labor, and material in the performance of the work on the Project.

33. Frost & Keeling supplied services, labor and material at the request of and by virtue 

of its agreements with Defendant, Whitesell. After allowing appropriate credits and offsets, there 

remains unpaid to Frost & Keeling a minimum amount of nine hundred and thirty nine thousand six 

hundred twenty two dollars and sixty six cents ($939,622.66), not including the monies due pursuant 

to the cost saving split agreement and net profit agreement, at the time of the institution of this suit.

34. The Defendant, Whitesell, has failed and refused to pay to the Use-Plaintiff, Frost & 

Keeling, all amounts due, before the expiration of a period of ninety (90) days after the day on which 

the last of the services, labor, and material were furnished or supplied by Frost & Keeling, for which 

claim is hereby made.

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35. The contract between Whitesell and the United States was to be performed at the Fort 

Hood Military Reservation and all of the services, labor and material was supplied by Frost & Keeling

in Fort Hood and within the Western District of Texas, Waco Division.

PLAINTIFF’S DEMAND FOR JURY TRIAL

36. Plaintiff, Frost & Keeling, asserts its rights under the Seventh Amendment of the U.S. 

Constitution and demands, in accordance with Federal Rule of Civil Procedure 38, a trial by jury on 

all issues.

CONCLUSION

WHEREFORE, Frost & Keeling Assocs., Inc. demands judgment against Defendants, 

Whitesell-Green, Inc. and Federal Insurance Company, jointly and severally, in the amount of its actual 

damages, plus applicable statutory, contractual and/or Contract Disputes Act interest, costs, attorney’s 

fees, and for all other relief to which Frost & Keeling is entitled.

Respectfully submitted,

COKINOS │YOUNG

10999 IH-10 West, Suite 800

San Antonio, Texas 78230

(210) 293-8700 - Telephone

(210) 293-8733 – Facsimile

By: /s/ Stephanie O’Rourke 

STEPHANIE L. O’ROURKE

State Bar No. 15310800

Sorourke@cokinoslaw.com

STANLEY W. CURRY

State Bar No. 05274000

scurry@cokinoslaw.com

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