Free Answer - District Court of Federal Claims - federal

Case 1:06-cv-00436-MCW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________________________________________________________ ) ) ) Plaintiff, ) ) No. 06-436C v. ) ) (Judge Williams) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________________________________________________________ ULYSSES, INC., PLAINTIFF'S ANSWER TO DEFENDANT'S COUNTERCLAIMS For its answer to the United States counterclaims, Plaintiff, Ulysses, Inc., admits, denies and alleges as follows: 37. Denies. 38. Admits. 39. Admits. 40. Admits. 41. Admits. 42. Admits the issuance of Solicitation SP0900-02-T-CB06 for the procurement of a circuit card assembly identified by National Stock Number ("NSN") 5998-00-007-1450 to the extent supported by the document cited, which is the best evidence of its contents; otherwise denies all other allegations contained in paragraph 42 for lack of information or knowledge sufficient to form a belief as to their truth. 43. Denies the allegations contained in paragraph 43 for lack of information or knowledge sufficient to form a belief as to their truth. 44. Admits the First Solicitation was issued under the DSCC DIBBS/PACE system to the extent supported by the document cited; otherwise denies all other allegations contained in paragraph 44 for

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lack of information or knowledge sufficient to form a belief as to their truth. 45. Denies the allegations contained in paragraph 45 for lack of knowledge or information sufficient to form a belief as to their truth. 46. Denies the allegations contained in paragraph 46 for lack of knowledge or information sufficient to form a belief as to their truth. 47. Denies. Avers that the First Solicitation was for part number 178AS112, a circuit card assembly identified by National Stock Number ("NSN") 5998-00-007-1450. This part number does not belong to a specific manufacturer and is manufactured in accordance with a particular drawing or drawings and/or specifications; and to Ulyssess best information and belief relates to Cage Code 30003 of the Department of the Navy (DON). Under Federal Acquisition Regulations (FARs) 9.205 & 9.2061(c), Ulysses should have been afforded an opportunity pre-award to demonstrate its product met the standards of the part number. 48. Denies the allegations contained in paragraph 48 for lack of knowledge or information sufficient to form a belief as to their truth. 49. Denies the allegations contained in paragraph 49 for lack of knowledge or information sufficient to form a belief as to the truth of the matter asserted. 50. Denies the allegations contained in paragraph 50 for lack of information or knowledge sufficient to form a belief as to their truth. 51. Denies the allegations contained in paragraph 51 for lack of information or knowledge sufficient to form a belief as to their truth. 52. Admits that Ulysses submitted its quote electronically on DIBBS; otherwise denies all other allegations contained in paragraph 52 for lack of knowledge or information sufficient to form a belief as to the truth of the matter asserted. Avers Ulysses used its own Cage Code (54432) in its quote for part number 178AS112, Cage Code 30003.

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53. Admits the allegation contained in paragraph 53 to the extent supported by documentation; otherwise denies the allegation contained in paragraph 53. Avers that Cage Code 072E5 is not the design activity for part number 178AS112 and Cage Code 30003 is. 54. Denies the allegations contained in paragraph 54 for lack of information or knowledge sufficient to form a belief as to their truth. Avers that Cage Code 072E5 is not the design activity for part number 178AS112 and Cage Code 30003 is. 55. Denies the allegations contained in paragraph 55 for lack of information or knowledge sufficient to form a belief as to the truth of the matter asserted. 56. Admits the allegation contained in paragraph 56 to the extent that Ulysses was awarded Contract/Purchase Order No. SP0960-02-M-4209 (Contract 4209) on April 29, 2002, to supply P/N 178AS112, a circuit card assembly, for eighty-five (85) units at a unit price of $525.00 and a total price of $44,625.00; otherwise denies all other allegations contained in paragraph 56 for lack of information or knowledge sufficient to form a belief as to their truth. Avers that per the terms of the contract, delivery was 120 days ADO. On section B of the award document, delivery on both line items 0001 for 38 items and 0002 for 47 items was due on August 27, 2002. 57. Admits the allegation contained in paragraph 57 that delivery of the items was not made by June 29, 2002; otherwise denies all other allegations contained in paragraph 57 for lack of information or knowledge sufficient to form a belief as to their truth. Avers that per the terms of the contract, delivery was 120 days ADO. On section B of the award document, delivery on both line items 0001 for 38 items and 0002 for 47 items was due on August 27, 2002. 58. Denies the allegations contained in paragraph 58 for lack of information or knowledge sufficient to form a belief as to the truth of the matter asserted. 59. Denies the allegations contained in paragraph 59, as asserted. Avers that when Ulysses was contacted concerning its bid, Ulysses confirmed that the part that it would be providing would be

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manufactured in accordance with the DON, Naval Air Systems Command part number 178AS112 (Cage Code 30003) (While not necessarily verbalizing that cage code). Further, avers that the substance of this information was specified in Ulysses' bid offer, which noted Ulysses' Cage Code 54432. 60. Admits the allegations contained in the first and second sentences of paragraph 60 to the extent that Ulysses did not, during the time in question, and does not now, have a contractual relationship with Raytheon or manufactures such products under Raytheon's direction; otherwise denies all other allegations contained in the first and second sentences of paragraph 60. Avers that Ulysses did not, during the time in question, nor now, need a contractual relationship with Raytheon or any other manufacturer to manufacture part number 178AS112. Nor does Ulysses need to manufacture part number 178AS112 under the direction of Raytheon or any other manufacturer. Avers, as to the third sentence of paragraph 60, Ulysses, through its affiliated sister corporation, Melstrom MFG., has been approved by various authorities to provide part number 178AS112, including but not limited, to prime contractors who on best information and belief were utilizing Ulysses' and Melstrom's part as part of their approved US government contracts and were doing so with the approval of the US government; otherwise denies all other allegations contained in the third sentence of paragraph 60. 61. Admits the allegations contained in paragraph 61 to the extent supported by the document cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 61 for lack of information or knowledge sufficient to form a belief as to the truth of the matter asserted, and in particular the date of the undated stop work order. 62. Denies the allegations contained in the first sentence of paragraph 62. Avers that Ulysses

submitted a letter to DSCC after the stop work order and prior to the letter dated October 14, 2002; otherwise denies all other allegations contained in the first sentence of paragraph 62 for lack of information or knowledge to form a belief as to the truth of the matter asserted. Admits that the contracting officer alleged the assertions contained in the second sentence of paragraph 62 to the extent

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supported by the document cited, which is the best evidence of its contents. Denies the accuracy of those assertions. 63. Admits the allegations contained in the first sentence of paragraph 63. Avers, as to sentence two of paragraph 63, that Ulysses, through its affiliated sister corporation, Melstrom, MFG., has been approved by various authorities to provide part number 178AS112, including but not limited to prime contractors who on best information and belief were utilizing Ulysses' and Melstrom's part as part of their approved US government contracts and were doing so with the approval of the US government; otherwise denies all other allegations contained in the second sentence of paragraph 63. Denies the allegations contained in the third sentence of paragraph 63. 64. Admits the allegation contained in paragraph 64 in that on various occasions, Ulysses sent the contracting officer documentation, including drawings, to show Ulysses, through its affiliated sister corporation, Melstrom, MFG., was qualified to manufacture and was an approved source for part number 178AS112; otherwise denies the allegations contained in paragraph 64. 65. Denies the allegations contained in the first sentence of paragraph 65 for lack of information or knowledge sufficient to form a belief as to the truth of the matter asserted. Denies the allegations contained in the second sentence of paragraph 65. Avers that the Navy's actions with regard to source approval did not comply with Federal Acquisition Regulation (FAR) requirements. See FARs 9.205 and 9.206-1(c). 66. Admits the allegations contained in paragraph 66 to the extent supported by the document alluded to, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 66. 67. Admits. 68. Admits the allegations contained in the first sentence of paragraph 68 to the extent that Ulysses submitted documentation to the DSCC legal office that demonstrated Ulysses, through its

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affiliated sister corporation, Melstrom, MFG., was qualified to manufacture part number 178AS112, it had supplied the part number in the past and that it was an approved source in that regard. (See answer to paragraph 60, sentence 3, incorporated herein). Denies the allegations contained in the second and third sentences of paragraph 68. 69. Admits. 70. Denies the allegations contained in paragraph 70 for lack of information or knowledge sufficient to form a belief as to their truth. 71. Denies the allegations contained in paragraph 71 for lack of information or knowledge sufficient to form a belief as to their truth. 72. Denies the allegations contained in paragraph 72 for lack of information or knowledge sufficient to form a belief as to their truth. 73. Admits the allegations contained in the first sentence of paragraph 73 to the extent that on June 27, 2002, Purchase Order SP0960-02-M-5456 was issued to "Ulysses, Inc., CAGE 54432" for 99 units of NSN 5998-00-007-1450 at a total price of $50,490, to be delivered by November 4, 2002; otherwise denies all other allegations contained in the first sentence of paragraph 73. Admits the allegation contained in the second sentence of paragraph 73 to the extent that Frequency Selective Networks, Inc. (56662) P/N 178AS112 is listed under Section B of the award document; otherwise denies all other allegations contained in the second sentence of paragraph 73. Avers Section B of the award document identified the requested item as a circuit card assembly identified by National Stock Number ("NSN") 5998-00-007-1450. Avers FARs 9-205 and 9-206-1(c), specifically permit pre-award approval for any product manufactured in accordance with DON's part number 178AS112, CAGE 30003. 74. Denies the allegations contained in paragraph 74 for lack of information or knowledge sufficient to form a belief as to the truth of the matter asserted.

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75. Denies the allegations contained in paragraph 75 for lack of information or knowledge sufficient to form a belief as to the truth of the matter asserted. And to the degree the allegations are asserted to be identical to the First Purchase Order, Ulysses' answers are repeated by incorporation. 76. Admits. 77. Admits. 78. Denies the first sentence in paragraph 78 and affirmatively asserts that notwithstanding the government's mischaracterization1 of the statements in the certified claim to the contracting officer, Ulysses (speaking jointly upon its on behalf and that of Melstrom, MFG., its affiliated sister corporation) specifically stated that it "has always been considered as an approved source for P/N 178AS112 and the final component P/N 178AS100." Ulysses further stated that, "If Ulysses was in fact not an approved source for parts 178AS112, and P/N 178AS100, the agency had waived this requirement in the past." In that certified claim, Ulysses also specifically stated, "Ulysses and another company owned by Mr. Tsoutsas, Melstrom Manufacturing Corp., had previously manufactured the part and had also manufactured the end equipment, Circuit Firing Equipment P/N 178AS100." Avers with respect to its approved source status for part numbers 178AS112 and 178AS100, Uylsses was considering its affiliation with its sister corporation Melstom MFG. Admits the second sentence in paragraph 78. 79. Admits the allegations contained in paragraph 79. Avers, in that certified claim, Ulysses also stated that "...if Ulysses is not on the agency's approved source list then by allowing Ulysses to provide these parts in the past, the government has waived the requirement for Ulysses to be on the approved source list..." 80. Admits 81. Denies

Ulysses'counsel does not believe, however this may have occurred, that there was any intentional misrepresentation on the part of DOJ's current counsel of record.

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82. Denies. Ulysses affirmatively asserts that it was approved to produce part number 178AS112 when its sister affiliated corporation, Melstrom, was approved production of part number 178AS100 under Contract No. N00383-86-R-2207 in 1987. (See FAR 9.403 defining "Affiliates"). Part number 178AS112 is a subpart of part number 178AS100. Melstrom produced and had accepted by the government part number 178AS112 when it produced part number 178AS100. Upon information and belief, contracts and/or subcontracts for part number 178AS112 were also approved and accepted by the government with Ulysses, through its affiliated sister corporation, Melstrom, producing the said part number. Ulysses affirmatively asserts that under FAR 9-205 and 9-206-1(c), the contracting officers have a regulatory obligation to ascertain if Ulysses' product is in compliance with the parts specified in the solicitations. The computerized format of contracting utilized in these claims by the government's admission does not afford contractors this regulatory opportunity and invalidates the contracting process. The government has asserted the DIBBS process is automated without buyer intervention. (See government allegation in paragraph 44 of counterclaim). The DIBBS process only provided for future contractor approval for future procurement and not for present procurement as provided by regulations. (See government allegation in paragraph 51 of counterclaim). Ulysses had offered to the government a first article inspection at no charge. Furthermore, Ulysses' product was in conformity with approved government standards as reflected by the fact that the government subsequently issued in 2004 a contract (N00383-04-M-188D) to Ulysses' sister affiliated corporation Melstrom for restoration of part number 178AS100. This was a sole source contract offered by the government contracting office to Melstrom for the part number previously provided by Melstrom, Ulysses' affiliated sister corporation. 83. Adopts by reference and incorporates the answers to the allegations in paragraphs 37 through 82 above. 84. Denies. 85. Denies.

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86. Denies. 87. Adopts by reference and incorporates the answers to the allegations in paragraphs 37 through 86 above. 88. Denies. 89. Denies. 90. Adopts by reference and incorporates the answers to the allegations in paragraphs 37 through 86 above. 91. Denies. 92. Denies. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 93. Plaintiff will affirmatively show that Plaintiff, through its affiliated sister corporation, Melstrom, had been an approved source or reasonably relied on its past dealings with the government and other entities that it was an approved source for part number 178AS112; and, thereby the government cannot assert Plaintiff's claims were false or fraudulent. SECOND AFFIRMATIVE DEFENSE 94. Plaintiff will affirmatively show that Defendant failed to comply with the requirements of the Federal Acquisition Regulation and other applicable laws including, but not limited to, FARs 9.202(c)(1) & (2), 9.205(b), 9.206-1(c), by not allowing Plaintiff (post-bid) the opportunity to demonstrate its ability to meet the requirements to supply part number 178AS112 (pre-award); and, thereby the government cannot assert Plaintiff's claims were false or fraudulent. THIRD AFFIRMATIVE DEFENSE 95. In its certified claim on February 16, 2006, Ulysses did not unequivocally assert that it was an approved source for the part number for which payments were being sought, but rather that the

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government approved or waived the approval requirement by issuing contracts in the past for part numbers 178AS112 and 178AS100 to Plaintiff, through Plaintiff's affiliated sister corporation, Melstrom MFG., and therefore, its claim cannot be asserted to be false. (See copy of the enclosed certified claim. Please note Plaintiff only has in its possession a photocopy of the certified claim with a couple of lines on the top of pages two and three as illegible. However, the Government has the original). FOURTH AFFIRMATIVE DEFENSE 96. Defendant's counterclaim is barred by estoppel, in that Defendant's own actions contributed to any misunderstandings as to the claims pertaining to contracts SP0960-02-M-4209 and SP0960-02-M5456. FIFTH AFFIRMATIVE DEFENSE 97. Upon information and belief, which will be further explored via discovery, the agency failed to comply with the requirements of Federal Acquisition Regulation sections 9.202(c), 9.205(b) and 6.100 et. seq., as well as other applicable laws, and should be estopped from asserting its claims.

Respectfully submitted, s/ Kenneth J. Haber Kenneth J. Haber Law Office of Kenneth Joel Haber, P.C. 15879 Crabbs Branch Way Rockville, MD 20855 Phone: (301) 670-0016 Fax: (301) 948-3091 September 14, 2007 Attorney for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on this 14th day of September, 2007, a copy of the foregoing PLAINTIFF'S ANSWER TO DEFENDANT'S COUNTERCLAIMS was filed electronically. I understand that notice of this filing will be sent to all parties of record by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ Kenneth J. Haber KENNETH J. HABER