Free Response to Motion - District Court of Federal Claims - federal

Case 1:08-cv-00191-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CHENEGA TECHNOLOGY SERVICES CORPORATION, Plaintiff, v. THE UNITED STATES,

) ) ) ) ) ) Defendant. ) ____________________________________)

No. 08-191C Judge Allegra

PLAINTIFF'S RESPONSES TO DEFENDANT'S PROPOSED FINDING OF UNCONTROVERTED FACTS

Pursuant to Rule 56(h)(2) of the Rules of the United States Court of Federal Claims ("RCFC"), plaintiff, Chenega Technology Services Corporation, submits the following responses to defendant's proposed findings of uncontroverted facts. 1. On January 28, 2000, the United States Army, Directorate of Contracting at Fort

Huachuca, Arizona, awarded Contract No. DABT63-00-D-0001 (the "Contract") to McLean Research Corporation, which, in August 2000, became a component of Chenega. Ex. A. Response: Accepted.

2.

The one-year indefinite delivery/indefinite quantity ("ID/IQ") contract, from which task

orders could be issued, specified that, pursuant to Federal Acquisition Regulation ("FAR") Clause 52.217-8: The Government may require continued performance of any services within the limits and at the rates specified in the contract in accordance with 52.217-8 (Section I). The Contracting Officer may exercise the option by written notice to the contractor prior to the expiration of the contract.

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Id. at B-1 (emphasis added). The Contract also contained FAR 52.216-18, which incorporated the terms of the Contract to all orders issued against the contract. Id. at I-8. Response: With the caveat that the gratuitous "emphasis added" is not found in the FAR, this item is accepted.

3.

On November 27, 2000, pursuant to FAR 52.217-9, the Army issued modification 2

P00003 to exercise an option on the Contract, extending it through January 31, 2002. Ex. B (Mods. P00003, P00004). Response: Accepted.

4.

In January 2001, the Army transferred the Contract to the Department of the Interior

("DOI") for administration by National Business Center ("NBC"), DOI's franchise contract management bureau, and the contract number was changed to Contract No. NBCHD010004. Id. (Mods. P00007, P00008). Response: Accepted.

5.

On January 22, 2002, NBC issued Modification No. 0010 to exercise the second option

period extending performance through January 31, 2003. Id. NBC subsequently issued Modification No. 0011, exercising the third and fourth option periods, extending performance through January 31, 2010. Id. Response: Accepted.

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6.

In late 2005, the Army issued a statement of work ("SOW") to NBC for technical

assistance services in support of the Army's Office of the Provost General, Operations Division, Corrections and Internment Branch ("OPG"). Ex. C. The work required a broad range of technical support, analysis, training, and policy development for the Army's correctional system. Id. The SOW contemplated one base year, with two one-year option periods. Id. Response: Accepted.

7.

In response to NBC's solicitation for the work, Chenega submitted a time and materials

proposal for a task order against the Contract. On December 8, 2005, NBC contracting officer Dean Haskin issued Task Order No. D0100040052 ("TO 0052") to Chenega for the correctional system work sought by the OPG. Ex. D. Response: Accepted.

8.

TO 0052 had a one-year base period for performance, commencing on December 9, 2005

and expiring December 8, 2006. Ex. D at 3. Modification 001 was issued in March 2006 to add the two one-year option periods contemplated in the SOW. Id. Option Year 1 was identified to begin December 9, 2006 and expire December 8, 2007. Id. Response: Not accepted because it is incomplete. The TO also added Major Alexander Conyers as the COTR. Proposed alternative: 8. TO 0052 had a one-year base period for performance, commencing on

December 9, 2005 and expiring December 8, 2006. Ex. D at 3. Modification 001 was issued in March 2006 to add the two one-year option periods contemplated in

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the SOW. Id. Option Year 1 was identified to begin December 9, 2006 and expire December 8, 2007. The TO also added Major Alexander Conyers as the COTR.Id.

9. On November 20, 2006, the OPG notified NBC of its desire to extend the contract by exercising TO 0052's first option period ("Option Year 1"). Ex. E. Response: Accepted.

10. The OPG also issued an updated SOW and designated LTC Alexander Conyers as the Contracting Officer's Technical Representative ("COTR"). Ex. F. Response: Not accepted because it is confusing with regard to the appointment of a COTR. The proposed finding suggests that the COTR was first appointed on November 10, 2006. The only new information in the November 20, 2006 action was the acknowledgment that Major Conyers had been promoted to LTC Conyers. Proposed alternative: 10. The OPG also issued an updated SOW and re-confirmed LTC Alexander Conyers (previously identified as Major Conyers) as the Contracting Officer's Technical Representative ("COTR"). Ex. F

11.

Mr. Haskin advised the OPG that NBC's normal lead time to exercise an option was 60

days, and he could not guarantee the option would be exercised before the expiration of the base year. Ex. G. Mr. Haskin also requested the OPG expedite the delivery of funds to exercise the option. Id. Response: Accepted.

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12.

As of December 1, 2006, NBC had not received funding to exercise Option Year 1. Mr.

Haskin notified the OPG that, due to the limited time remaining in the base performance period, NBC would not be able to complete the actions necessary "to ensure there is no lapse in service." Ex. H. Response: Accepted.

13. On December 5, 2006, Chenega's senior contract administrator, Paula Isicson, contacted Mr. Haskin to request "the status of the government issuing a modification to exercise the option to extend the Period of Performance so we can advise our employees as to whether they should report to work after December 8th." Ex. I. Response: Not accepted because it is incomplete. Ms. Isicson specifically stated in her email that, "Is the government willing to exercise the option period subject to the availability of funds clause?" Proposed alternative: 13. On December 5, 2006, Chenega's senior contract administrator, Paula Isicson, contacted Mr. Haskin to request "the status of the government issuing a modification to exercise the option to extend the Period of Performance so we can advise our employees as to whether they should report to work after December 8th. Is the government willing to exercise the option period subject to the availability of funds clause?". Ex. I.

Response: Accepted.

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14. After a telephone conversation with Mr. Haskin, Ms. Isicson stated in an e-mail that it was his understanding that because NBC had received funding, "Chenega can continue to work on this task until the modification is issued." Ex. J. Response: Accepted

15. Mr. Haskin replied that Chenega's election to continue work beyond the base period of performance, but prior to the written exercise of the option, "should not be a problem," but that because NBC did not receive the funding until five days before the performance end date, he "could not guarantee the action would be completed in time." Ex. K. Response: Accepted

16.

Brenda Campbell, the NBC Contracting Officer, however, clarified that, until a

modification was issued, Chenega would be working at its own risk: Please be advised that anytime a contractor works without the benefit of a signed contract they are working at risk. The Government will not ask or condone a contractor to work at risk. We can exercise an option late as long as there was demonstrated intent to do so. If and when a modification is issued to exercise the option Chenega will be allowed to invoice for services as if there were no break. Ex. L. Response: Not accepted. The description of "Brenda Campbell, the NBC Contracting Officer" is misleading in that she was not the Contracting Officer for the contract. The NBC Contracting Officer for the contract was Dean Haskin, as stated in finding # 7. Proposed alternative: 16. Brenda Campbell of NBC, however, clarified that, until a modification

was issued, Chenega would be working at its own risk: Please be advised that

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anytime a contractor works without the benefit of a signed contract they are working at risk. The Government will not ask or condone a contractor to work at risk. We can exercise an option late as long as there was demonstrated intent to do so. If and when a modification is issued to exercise the option Chenega will be allowed to invoice for services as if there were no break. Ex. L.

17. On December 8, 2006, NBC issued Chenega a notice of "Intent to Exercise the Option to Extend the Term of the Contract," which provided, in part: This letter advises you of our intent to extend the contract and does not in any way commit or obligate the Government. Should the Government `extend the term of the contract, a modification will be issued. By acknowledging receipt and acceptance of this notification, the contractor agrees to waive the 60-day notification in FAR 52.217-9. Please return this letter, executed . . . if you concur with this. Ex. M. Response: Accepted.

18.

Despite Ms. Campbell's warning, after the period of performance for TO 0052 expired on

December 8, 2006, Chenega continued working. Mr. Haskin, and his contract specialist Eileen Carter, continued the administrative review necessary to issue the modification to exercise Option Period 1, but soon discovered that the COTR, LTC Conyers, lacked required COTR training. Ex. N. Response: Not accepted. It omits the important fact that the Government did not communicate the issues about the COTR training until prompted by Chenega to update the status of the modification approval. Further, the introductory phrase "Despite Ms. Campbell's warning" in both redundant and argumentative editorializing. Proposed alternative:

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18.

Chenega continued working. Mr. Haskin, and his contract specialist Eileen

Carter, continued the administrative review necessary to issue the modification to exercise Option Period 1, but soon discovered that the COTR, LTC Conyers, lacked required COTR training. No effort was made to communicate these concerns to Chenega prior to January 9, 2007. Ex. N.

19. On January 9, 2007, Ms. Isicson contacted NBC about the status of the yet-to-be-issued modification. Ex. O. Response: Accepted.

20. Ms. Carter notified Ms. Isicson of the COTR's training deficiency and advised that the contract modification to exercise Option Year 1 could not be issued until the COTR completed training. Ex. P. Response: Accepted.

21. In mid-March, the OPG suggested a new COTR, Gerald Patterson. Ex. Q. Response: Accepted.

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22. In June, 2007, NBC became aware that the Small Business Administration required Chenega to re-certify its 8(a) status, and Campbell instructed her staff that no new awards could be made, or options on existing contracts exercised, until Chenega's 8(a) status was resolved. Ex. R. Response: Chenega objects to the entire proposed finding because: (1) it is irrelevant to any issue in this case since the Government has never claimed that it was declining to exercise the option because if the Chenega 8a status; (2) the information is simply wrong. SBA had no requirement for Chenega to recertify its 8a status. The requirement was for Chenega to re-certify its small business size status and if it failed to do so, the agency could no longer claim small business or 8a credits for the contract. The validity of the contract was never at issue or the ability of the Government to exercise options was never curtailed. 23. On June 22, 2007, Mr. Haskin advised Chenega that NBC would not exercise the option period due to the delay period since the expiration of TO 0052. Ex. S. Mr. Haskin also informed Chenega that because Chenega worked beyond the period of performance of the base year "at [its] own risk," NBC would not authorize payment for services rendered after base period expired. Id. Response: If #22 is allowed to remain, #23 must be revised to state that the June 22rd communication made no reference to the 8a re-certification issue. Proposed alternative: 23. On June 22, 2007, Mr. Haskin advised Chenega that NBC would not exercise the option period due to the delay period since the expiration of TO 0052. Ex. S. Mr. Haskin also informed Chenega that because Chenega worked beyond the period of performance of the base year "at [its] own risk," NBC would not authorize payment for services rendered after base period expired. Mr. Haskin did

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not inform Chenega that there were concerns about its ability to re-certify its 8a status. Id.

24. On July 2, 2007, Chenega requested that NBC reverse its decision to not exercise the option period. Ex. T. Response: Accepted.

25. On August 6, 2007, Campbell advised Chenega that its request for reconsideration was denied. Ex. U. Response: Accepted.

26. On November 28, 2007, Chenega submitted a certified claim to Mr. Haskin seeking $169,956.17 for services rendered after the base period of performance ended on December 8, 2006. Ex. V. Response: Accepted.

27. On January 11, 2008, Mr. Haskin issued the Contracting Officer's Final Decision denying Chenega's claim because Chenega worked without a contract in place at its own risk. Ex. W. Response: Accepted.

28. On March 19, 2008, Chenega commenced the instant litigation. Response: Accepted.

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Respectfully submitted this 25th day of August, 2008. /s/William K Walker William K Walker Walker Reausaw 888 17th Street, NW, Suite 1100 Washington DC 20006 Tele: 202-857-7910 Fax: 202-857-7912

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CERTIFICATE OF FILING

I hereby certify that on this 25th day of August 2008, a copy of the foregoing "Plaintiff's Responses To Defendant's Proposed Finding Of Uncontroverted Facts" 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. Parties may access this filing through the Court's system.

/s/William K. Walker