Free Amended Complaint - District Court of Federal Claims - federal

Case 1:08-cv-00113-CCM

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UNITED STATES COURT OF FEDERAL CLAIMS

ALCA TEC, LLC
VS.

PLAINTIFF

CAUSE NO.1 :08-cv-00113-CCM
DEFENDANT

THE UNITED STATES OF AMERICA

AMENDED COMPLAINT

Alcatec, LLC ("Alcatec"), Plaintiff, presents the following Amended Complaint against
the United States of America, Defendant, and for its cause of action, Alcatec would show unto

the Cour the following:
1.

Alcatec is a limited liability corporation formed under the laws of the State of
Mississippi, having its principal place of

business in Jackson, Mississippi.
2.

The United States of America (the "Governent"), Defendant, is a governental entity

which, in all respects relevant to this case, act by and through the Federal Emergency
Management Agency ("FEMA").

3.

On or about November 29, 2005, the Governent issued Request for
Proposal/Solicitation No. HSFEHQ-06-R-8AMS (the "RFP"). The RFP requested Proposals by

December 30, 2005 for work related to refurbishment, maintenance, deactivation and related
activities with regard to manufactured homes and travel trailers furnished by FEMA to Hurcane

Katrna victims along the Mississippi Gulf Coast. (A true and correct copy of the RFP is in the
possession of

the Governent, and the RFP is incorporated herein by reference.).

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4.

The RFP contained specific, detailed pricing procedures setting forth the maner in
which offorors were to respond to the RFP. The pricing procedures set forth in the RFP required

the offorers to price each line item, many of which were unit price items based upon the number
of units to be performed under the RFP, or time units based upon the length of time of

performance. The RFP contemplated that work assigned to the successful offorors would be on a

"task order basis," with the Governent issuing task orders for the work needed from the
successful offorors.
5.

The RFP contained one line item, however, which was to be priced as a lump sum item

by the offorors. This was Contract Line Item No. 1000 ("CLIN 1000"). The Governent

identified CLIN 1000 as a "Phase-In" work item, and stated that this item was to cover
preparation expenses, mobilization expenses, and "all efforts necessar durng the Phase-In to
insure the ability to successfully perform the tasks and activities associated with this Contract. II
In addition, the Governent provided that CLIN 1000 was to be the first item of

work performed

by a successful offoror, and stated that "this task shall be completed within thirty days of contract
award. II Finally, unlike other line items in the RFP which were based upon unit prices to be paid

according to units performed, the CLIN 1000 line item was one lump sum with no units
assigned. (See Attachment I, Page 1 of

the RFP).
6.

Alcatec performed a takeoff, solicited subcontractor pricing, and otherwise prepared its
Proposal in response to the RFP. Alcatec properly followed and completed the line item pricing
procedure set forth by the Governent in the RFP. Specifically, Alcatec submitted its price for

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CLIN 1000 to include all costs associated with the

Phase-In preparation and mobilzation to

perform the specified work, as well as the prices for such preparation and mobilization submitted

by its subcontractors. Alcatec's price in its Proposal for CLIN 1000 was $6,111,000.00, which
included its subcontractors' prices. (A tre and correct copy of Alcatec's Proposal is in the

possession of

the Government and is incorporated herein by reference.)
7.

After its review and analysis, the Governent accepted Alcatec's Proposal and

determined that Alcatec was a successful offoror to perform the work set forth in the RFP. On or
about April 30, 2006, the Governent awarded Contract No. HSFEHQ-06-D-0429, (lithe

Contract"), to Alcatec. (A true and correct copy of the Contract is in the possession of the
Governent and is incorporated herein by reference.)
8.

Following the execution of the Contract, the Governent issued its Task Order for

performance of CLIN 1000 to Alcatec on or about April 18, 2006. In the Task Order, the
Governent specified that Alcatec was to "provide Phase-In services in accordance with the
above numbered contract, ii and the Governent specifically stated that CLIN 1000 was to be a

"firm fixed price: $6,111,000." Finally, the Task Order required Alcatec to perform the work
within thirty days. (A true and correct copy of

the Task Order for CLIN 1000 is attached hereto

as Exhibit "A" and incorporated herein by reference.)
9.

Alcatec timely, properly and completely performed all work required of it pursuant to
CLIN 1000, as did its subcontractors. The Governent specifically acknowledged that Alcatec

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had properly and timely performed all work pursuant to CLIN 1000 and the corresponding Task
Order, Exhibit "A" hereto.
10.

Despite Alcatec's proper and timely completion of all work required of it pursuant to

CLIN 1000, the Governent failed and refused to make payment to Alcatec for the full lump
sum contract amount for CLIN 1000. Instead, the Governent issued a unilateral Modification
of

Contract which purorted to reduce the amount ofCLIN 1000 from $6,111,000 to $1,937,088.

The Governent attempted to justify this unilateral Modification by stating that "there was an

error on a contract line item number (CLIN unown to the Governent until after contract
award." The Governent fuher stated that Alcatec's "Proposed Cost" for CLIN 1000 was

based upon 6,700 units, and the Governent stated that the number of unts had been reduced to
2,124. (A true and correct copy of

the unilateral Modification is attached hereto as Exhibit "B".)
11.

In reliance upon the unilateral Modification, the Governent paid Alcatec $1,937,088 for

CLIN 1000, rather than the lump sum contract amount of $6,111.000. Yet, in the Governent's
Memorandum approving payment in the reduced amount, the Governent called the reduced

payment a "recommended parial payment" and stated that the "COTR certifies the services were
performed and he approves a partial payment of $1,937,088 of

the invoice amount until paries

can reach final agreement as to the correct CLIN 1000 amount. (See Memorandum of July 11,
2006 attached hereto as Exhibit "Cii) (Emphasis added).
12.

In addition, the Public Voucher Request for the payment of the reduced CLIN 1000
amount included a notation from the Governent that this amount was "approved for partial

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payment," yet the Public Voucher Request correctly showed a lump sum amount due for CLIN
1000of$6,111,000. (See Public Voucher Request attached hereto as "Exhibit "D".)
13.

Without additional explanation, the Governent subsequently paid Alcatec the additional

amount of $327,440.31 for CLIN 1000. Alcatec objected to the unilateral reduction from the
lump sum contract amount for CLIN 1000 and invoiced the Governent for the unpaid amount

of $3,846,471.69. On July 3, 2007, the Governent rejected Alcatec's request for payment in

full for the contract lump sum amount for CLIN 1000. (See Receiving Document dated July 3,
2007 attached hereto as Exhibit "E".)
14.

Subsequently, Alcatec forwarded to the Governent a Request for Final Contracting
Officer's Decision dated July 20, 2007. This Request for Final Contracting Officer's Decision

was certified by Alcatec and requested payment in full for the contract amount of CLIN 1000.
(See Request for Final Contracting Officer's Decision attached hereto as Exhibit "F".) The

Governent has failed to respond to Alcatec's Request for Final Contracting Officer's Decision.

This action has been timely brought, as the Governent has had ample time to issue a Final

Contracting Offcer's Decision on Alcatec's claim, but has failed to do so.
15.

Governent's failure to pay Alcatec the full amount of the contract line item for CLIN

1000 amounts to a breach by the Governent of the Contract with Alcatec.
16.

As a direct and proximate result of the Governent's breach of contract as set forth
above, Alcatec has been damaged in an amount not less than $3,846,471.69.

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17.

In addition to the recovery set forth above, Alcatec is entitled to the Interest Penalty set
forth in the Contract from the date of Alcatec's invoice until the date of Alcatec's certification of

its claim. Alcatec is also entitled to CDA interest from and after the date Alcatec certified its
claim until payment by the Governent.

WHEREFORE, PREMISES CONSIDERED, Alcatec prays for judgment against the

Governent in an amount not less than $3,846,471.69, plus prejudgment interest, CDA interest,
a reasonable attorney's fee pursuant to the Equal Access to Justice Act, and all costs of

this cause

accruing.
Respectfully submitted,

ALCATEC, LLC

By: Isl Phil B. Abernethy Phil B. Abernethy (MSB 1023) 210 East Capitol Street, 17th Floor Jackson, Mississippi 39201 Post Offce Box 22567 Jackson, Mississippi 39225-2567 (601) 985-4536 (T) phil.abernethy~butlersnow.com

ITS ATTORNY

OF COUNSEL:

Butler, Snow, O'Mara, Stevens & Canada, PLLC 210 East Capitol Street 17th Floor, AmSouth Plaza (39201) Post Office Box 22567 Jackson, Mississippi 39225-2567 Telephone: (601) 948-5711 FAX: (601) 985-4500

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