Free Joint Preliminary Status Report - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CA, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 08-119C (Judge Christine O. C. Miller)

JOINT PRELIMINARY STATUS REPORT Pursuant to Rule 16 and Appendix A, paragraph III, 4, of the Rules of the United States Court of Federal Claims (RCFC), the parties respectfully submit the following joint preliminary status report: (a) Jurisdictional Basis Upon Which Plaintiff Relies CA, Inc., states that this Court possesses jurisdiction to entertain this action pursuant to the the Tucker Act, as amended, 28 U.S.C. § 1491, and pursuant to Contract Disputes Act of 1978, 41 U.S.C. § 609 (CDA). Defendant is currently not aware of any reason why this Court would not possess jurisdiction to entertain plaintiff's takings claims under the Tucker Act. The Government, however, contends that this Court does not possess jurisdiction to entertain plaintiff's contract claim because plaintiff was not in privity of contract with the Government in connection with the contract referenced in plaintiff's complaint. (b) Consolidation The parties do not believe that this case should be consolidated with any other case. (c) Bifurcation The parties are not aware of any reason why liability and damages should be tried separately.

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(d)

Deferral The parties do not believe that the present proceedings in this action should be delayed

pending consideration of another case before this Court or any other tribunal. CA continues to believe that trial in this case should be deferred pending resolution of CA, Inc. v. STG, Inc. (E.D. No. 08-cv-0193) should the Court in that case be willing to lift its stay. (e) Remand/Suspension The parties do not intend to request remand or suspension. (f) Joinder The parties do not believe that additional parties need be joined. CA reserves the right to explore joining STG as a party to this matter. (g) Dispositive Motions The Government intends to to file a motion to dismiss plaintiff's contract claim. The Government may also file a motion for summary judgment on the issue of whether the "Authorization to Purchase," referred to in the complaint, was executed by an individual with the contractual authority to bind the Government. While the parties agree that it is unlikely that other dispositive motions will be filed, the parties respectfully request that, on or before 30 days after the conclusion of discovery, they be allowed to file a status report regarding the appropriateness of filing any further dispositive motions. (h) Relevant Issues Plaintiff's Statement Regarding The Relevant Issues CA, Inc's Factual Issues In addition to each fact not expressly admitted in Defendant's Answer to CA's Complaint, 2

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CA has presently identified the following factual issues: 1.) Whether the Navy reimbursed PSC for the payments PSC made to the Army for

purchase of CA's software under the Army BPA. 2.) Whether the Navy has an excuse for failing to complete the installment payments

due for the delivered Unicenter TNG software products. 3.) Whether the Commander-in-Chief NAVEUR Command, Control,

Communication and Computers and/or his deputies were authorized to direct PSC as to the materials and services to be provided to the Navy under Contract No. N68786-97-C-6461. 4.) Whether and when the Navy Contracting Officer ("CO") learned of the

"Authorization of Purchase" and, if so, what, if any, steps the CO took to disavow that authorization. 5.) Whether the appropriated funds obligated to N68786-97-C-6461 exceeded $1.1

million in fiscal year 2002, $1.8 million in fiscal year 2003, and $2.3 million in fiscal year 2004. 6.) to the Navy. 7.) its network. 8.) Whether the NAVEUR used CA's Unicenter TNG software products on more Whether and when the Navy installed CA's Unicenter TNG software products on Whether the Navy paid PSC for CA's Unicenter TNG software products delivered

equipment than the number of licenses provided to PSC and the Navy. 9.) network. Whether and when the NAVEUR removed CA's Unicenter TNG software from its

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CA, Inc.'s Legal Issues 1.) Whether CA must establish privity of contract with the Government to recover

under its indemnification claim pursuant to FAR § 51.101. 2.) Whether CA is required to establish privity of contract with the Government in

order to recover from the Government for its takings claim under the Fifth Amendment. 3.) Whether the Government is liable to CA for PSC's non-payment of the

installment amounts due for CA's Unicenter TNG software products delivered and used by the Navy. 4.) Whether the Government's continued use of the delivered Unicenter TNG

software products without completing the full payment was a taking of property without compensation under the Fifth Amendment. 5.) Whether pursuant to the Department of Defense's established policy only a

contracting officer could direct the contractor to use established Government supply sources as authorized by FAR Subpart 51.1. Defendant's Statement Regarding The Relevant Issues Government's Factual Issues 1.) Whether "D. F. Kerrigan, Deputy Chief of Staff for Command, Control,

Communications and Computers," the signatory of the "Authorization to Purchase," was a warranted contracting officer who had the authority to execute such authorization in accordance with FAR 52.251-1. 2.) Whether "D. F. Kerrigan, Deputy Chief of Staff for Command, Control,

Communications and Computers" was a warranted contracting officer with authority to bind the 4

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Navy Material Support Office, the activity that awarded the contract to PSC. 3.) 4.) Whether PSC was authorized to act as the Government's purchasing agent. Whether there was an agency relationship between the Government and PSC.

Government's Legal Issues 1.) Whether the purported "Authorization To Purchase," signed by a "D. F. Kerrigan,

Deputy Chief of Staff for Command, Control, Communications and Computers," complied with FAR § 51.101. 2.) Whether the March 21, 2002 "Authorization To Purchase" authorized PSC to

make purchases under the referenced Army blanket purchase agreement (BPA). 3.) Whether under the terms of the PSC contract, the Navy is liable to CA for

purchases made by PSC pursuant to the BPA. 4.) the Navy. 5.) Whether CA can establish that this Court has jurisdiction to entertain its CDA Whether CA lacks privity of contract with the Navy under the PSC's contract with

claim under Johnson Controls v. United States, 713 F.2d 1541 (Fed. Cir.1984). 6.) Whether the contracting officer for PSC's contract with the Navy authorized PSC

to use Government supply sources during contract performance, as required by FAR 51.102. (i) Advisability of ADR The Government does not believe that ADR is necessary or appropriate at this time. The parties will, however, continue to consider the possibility of settlement and the use of ADR, throughout the proceedings. CA believes that absent settlement, ADR would be an appropriate means to seek resolution of this case. 5

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(j)

Possibility of Trial If this case does not settle or is not otherwise resolved upon dispositive motions, the

parties will proceed to trial. CA believes that it is unlikely a trial would exceed five days. The Government believes that the trial would take from six to ten days. CA seeks expedited resolution of this matter, but agrees that it does not meet the criteria for expedited trial pursuant to paragraph 4(j) of Appendix A. CA believes that the case presents largely legal issues with few factual issues remaining to be confirmed. CA, accordingly, believes that the case could reasonably be prepared for trial by June 1, 2009. The Government believes that the earliest date it could reasonably be expected to be ready for trial is March 2010. The parties agree that trial should be held in Washington, DC. Joint Proposed Schedule The Government proposes that the exchange of documents be accomplished by January 1, 2009. CA proposes that the exchange of documents be accomplished by October 1, 2008. The Government proposes that service of interrogatories and requests for admissions be accomplished by January 31, 2009. CA proposes that service of Interrogatories and requests for admissions be accomplished by November 3, 2008. The Government proposes completion of fact witness discovery be accomplished by June 30, 2009. CA proposes that the completion of fact witness discovery be accomplished by January 30, 2009. The Government proposes that the filing of dispositive motions be accomplished by August 31, 2009. CA proposes that the filing of dispositive motions be accomplished by March 6

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16, 2009. (k) Electronic Filing The parties are not aware of any special issues regarding electronic case management needs. (l) Additional Information CA believes that this case presents relatively few factual issues. The Government believes that relevant documents may be found in numerous locations, including many overseas: including the Washington, DC area, Charleston, South Carolina, and various Navy operating locations in Europe, including Naples, Italy; Sigonella, Italy; LaMadellena, Italy; Rota, Spain; and various other locations in Greece and possibly London. CA anticipates that this will not be a document intensive case, CA believes that while the underlying contract is classified this fact would present at most a modest issue in discovery because plaintiff's counsel has a cleared facility and cleared attorneys and other personnel necessary to handle classified information. The Government believes that the fact that the underlying contract in this case is classified will present an obstacle to discovery. The parties are unaware of any other matters which should be brought to the Court's attention at this time. Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director s/ Reginald T. Blades, Jr. REGINALD T. BLADES, JR. Assistant Director 7

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s/ Alan W. H. Gourley ALAN W. H. GOURLEY, ESQ. Crowell & Moring 1001 Pennsylvania Avenue, N.W. Suite 1100 Washington, DC 20004-2595 (202) 624-2500 (202) 628-5116 (Fax)

s/ Leslie Cayer Ohta LESLIE CAYER OHTA Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street NW Attn: Classification Unit, 8th Floor Washington, D.C. 20530 202-307-0252 202-307-0972 (Fax) Attorneys for Defendant July 14, 2008

Attorneys for Plaintiff July 14, 2008

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