Free Amended Complaint - District Court of Federal Claims - federal

Case 1:08-cv-00113-CCM

Document 6-7

Filed 03/17/2008

Page 1 of 3

July 20, 2007
REQUEST FOR FINAL

CONTCTING OFFICER'S DECISION
Mr. Wille Bethune

Contracting Offcer
Federa Emergency Management Agency

(Via Certfied Mal.
Ret Receipt Requested)

Finacial and Acquiition Mangement Division Flood, Fire and Mitigation Brach
500 C Street, S.W., Room 350
Washigtn, D.C. 20472

Re: Contrt No. HSFEH-06-R-8AM
Maintence and Deactivation of

Manuftu Homes and Travel Trailers

Contrtor: Alcatec, LLC

Dear Sir:

As you mow, th Goverent entered into the Contrt referenced above with Alcatec, LLC ("Alcatee"), the Gener Contractor. The Contrt and all athments, as well as the
Governent's Solicitaon and Alcatee's Prposal, ar in the possession of

the Goverent and

are incorporated herein by refernce.

Goverent's Solicitation an the Prposal of Alcat. In one of

The Contrac provided for Contract Line Item Number ("CLIN") prcing, as did the the line items, the Contrct

provided for CLIN 1000 "Phae-In", and the RFQ, the Prposal and the Contrt provided that

CLIN 1000 was to be a lump sum price.
In Section M, Factor 6 of

the Solicitation, it was stated tht: "The govenent wil

evaluate the proposed Phase-In Plan. The successfu Offeror wil have 30 days frm date of

Contract awad to complete Phase-In requiements." Obviously, the Contrt contemplated tht

Alcatec would complete all work under CLI 1000 with 30 days, and tht Alcatec would be
paid the lump sum amount contaed in CLIN 1000 immedately upon completion of Ths payment term is specifically set fort in Section G.l of

th item.
the Contrt, which states: "Payment

sha be made on a task order basis and monthy intalents based on Contrt Line Item
quatities accepted."

Alcaec tiely completed and invoiced the Goverent for all work requied of Alcatec
puruat to CLIN 1000. The amount invoice to the Governent by Alcatec was $6,111,000.00,
which is the Contrt amount for CLIN 1000 agreed to by both pares.

Despite the proper biling by Alcatec for al work puruant to CLIN 1000, the
Governent failed and refued to pay Alcatec the Contract amount for CLIN i 000. Inte, the

Case 1:08-cv-00113-CCM

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Governent arbitrarly reduced the Contract amount for CLIN i 000 by $4,173,912.00, and paid
Alcatec the reduced amount of$1,937,088.00. The Governent atemted to just reduction by contending that CLIN 1000 was based upon a specific number of performed by Alcatee, and tht CLIN 1000 should be reduced when the number of

ths
unts to be
unts assigned

to Alcatee was reuced from 6,700 unts to 2,124 units.

Alcatee objected to this reduction, but the Governent has failed an refued to pay

Alcate the Contrct amount for CLIN 1000. The Govenent ha asserd that the Contrt amount for CLIN 1000 "was an error unown to the Goverent until afer the Contract was awarded accetig Alcaee's proposed cost of $6, 111,000.00 for CLI i 000." In a clea
contrction to its own theory, th Goverent later stated that the $1,937,088.00 payment

made to Alcatec for CLIN 1000 was not a fmal payment, but was, intead, a "recmmened

paral payment", which the Goverent staed was bein paid "until pares can reah fial ageement as to the correct CLIN 1000 amount." (See FEM Memoradum daed July 11,
CLIN 1000. Following ths Memorandum, the Goverent paid Alcatec an additiona
$327,440.31 forCLIN 1000.

2006, athed heret as Exhbit "All). It should be noted tht th Memoradum spcay
states tht FEMA "certes the serces were performed" with regard to Alcate's completon of

Contr to the Goverent's asseron, CLIN 1000 was a lump su line item under the

Solicitation, under Alcate's Proposa, and under the Contract. There is no basis for the

Governent's position th ths lump sum lie item ca be reuce based upon a redction in the
unts perormed by Alcaee. Intead, the Solicitaon, Proposal and Contrt ar abundatly clea

th the work perormed under CLIN 1000 is to include prepartion expenses, mobilion expenses, "and all effort neeessar durg the Phase-In to inur the abilty to sucssfuy perform the tasks and activities asciate with ths Contrt. Th tak sh be complete
with 30 days of Contrct award." Ths pricing is alo clealy set fort in the IIProposal Pricing
Sheetsll, which list CLIN 1000, Phase-In, as one lump su with no unts assigned. (See
Attchment i, Page 1 of

the Contrt).

The Governent offcials who dred the Solicitation and the Contrt corrtly understo and accounted for the fact th frnt-end costs, prearation costs an mobiltion
costs ar incur regadless of the number of

unts which may ultiately be peronned by the

contrtor. These costs ar incurd before the fial number of

unts to be peormed by the

contractor is mown so those costs ar, by necesty, incur without regard to the number of

unts which may follow. That is preisely the reaon the Governent drafed the Solicitation and
the Contrct to provide tht CLIN 1000 was a lump sum pay ite indeendent of any numbe of

unts.
If there were any doubt as to the proper interpretaon of

the Contrt as it relates to
18, 200 and

CLI 1000, that doubt can be elied by lookig at the Governent's own documents
prepared afer the Contrt was exeeuted. In a FE Task Order da April

signed by the Contracti Offcer, the Goveient descrbed the Contract amount for CLIN

1000 as follows: "Finn Fixed Price: $6,111,000." (See Tas Orer atthed her as Exhbit liB"). On Februar 9, 2007, the Contrtig Officer signed AmendmentIodificaton No.

Case 1:08-cv-00113-CCM

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Filed 03/17/2008

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P00002, and the Governent stated on Page B-2 tht CLIN 1000 was: "Fixed Rate

$6,111,000.00." (See AmendmentIodication attached hereto as Exhbit "C").
The Governent's unlateral and unfounded alteration of Alcatec to potential

the Contrt terms ha subjeeted

liabilty frm its subcontrctors, who ha the same payment proviion for CLIN 1000 incorporate into their subcontracts, Alcatec has, in fact, aleady been sued by one subcontrctor for the failure to pay the ful lump sum amount for CLI 1000.
Alcatec's Contrct pnce of$6,11 1,000.00 for CLIN 1000 was acepted by the

Govennent, afer which Alcate procee to satisfatonly perform all work requied for CLIN 1000. The Governent had no contrctul basis or justification for unlatey reucing
Alcatec's lump sum Contrt amount for CLIN 1000. .
Alcatec does, therfore, hereby make a clai in the amount of$3,846,471.69 for payment
in ful of

the remaider of CLIN 1000 purt to the Contrt.

the Contr, FAR 52.232-25, for the Goverent's failur to pay

In addition, Alcatee is entitled to the Intet Penalty set fort in Seetion I, Page 1-13 of the Contract amount for CLIN

100 with the tie specifed in the Contrct.

Alcatec does hereby request a Final Contrng Offcer's Decsion with regar to ths
clai. Alcatec's certficaon of

the clai follows below.

Respectflly sumitted

ALCATBC, LL
By:

Rosem Barbour
Mangig Member

CERTICATION

Puruat to the Contrct Dispute Act, I certfy that th clai is mae in good fath that the
supportg data are accurate and compl~te to the best .of my mowledge and belief and tht the
amount reqested accurtely refleets the Contrt adjustment for which Alcatec believes the

Governent is liable.

A1at, LLC

Rosemar Barbour, Maagig Member