Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

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No. 02-796C (Judge Allegra) ______________________________________________________________________________ IN THE UNITED STATES COURT OF FEDERAL CLAIMS INFORMATION SYSTEMS & NETWORKS CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant. ______________________________________________________________________________ DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACTS ______________________________________________________________________________

PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director BRIAN M. SIMKIN Assistant Director STEVEN M. MAGER Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, Room 12074 Washington, D.C. 20530 Tele: (202) 307-0277 March 16, 2007 Attorneys for Defendant

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS INFORMATION SYSTEMS & NETWORKS CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 02-796C (Judge Allegra)

DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT Pursuant to Rule 56(h)(2) of the Rules for the United States Court of Federal Claims, defendant respectfully submits the following proposed findings of uncontroverted fact. Contracts 1. On July 15, 1994, the Government, through the Department of the Navy, awarded

Contract No. N00600-94-C-0389 ("contract 0389"), to plaintiff Information Systems And Networks Corporation ("ISN"). Def. App. 1.1 The ultimate customer was the Navy's Space and Naval Warfare Systems Command ("SPAWAR"). Id. The contract required ISN to provide all material, labor, and services to engineer, install, and test an automated technical control system ("ATC") for three Naval turnkey facilities located at the switching centers at Hampton Roads, Virginia, Pearl Harbor, Hawaii, and Camp Smith, Hawaii. Def. App. 9. The contract was for a firm fixed price of $4,416,645.54. Def. App. 3. The contract also contained four options to provide the same system at several other installations around the world. Def. App. 3-7.

1

Def. App. ___ refers to pages from the appendix attached to this filing. 2

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2.

Section G.2 of contract 0389 states, in relevant part: G.2 AUTHORIZED CHANGES ONLY BY THE CONTRACTING OFFICER, SUP 5252.243-9000 (JAN 1992) (a) Except as specified in paragraph (b) herein, no order, statement, or conduct of Government personnel who visit the Contractor's facilities, or in any other manner communicate with Contractor personnel during the performance of this contract, shall constitute a change under the "Changes" clause of this contract. (b) The Contractor shall not comply with any order, direction, or request of Government personnel unless issued in writing and signed by the Contracting Officer, or pursuant to specific authority otherwise included in this contract. (c) The Contracting Officer is the only person authorized to approve changes in any of the requirements of this contract and, notwithstanding provisions contained elsewhere in this contract, said authority remains solely with the Contracting Officer. In the event the Contractor effects any change (s) at the direction of any person other than the Contracting Officer, that change shall be considered to have been made without authority and no adjustment in price shall be made in the contract (or Delivery Order) to cover any increase in charges incurred as a result thereof.

Def. App. 24. 3. Def. App. 24. 4. Section G.4(a) of contract 0389 states, in relevant part: (3) When in the opinion of the contractor, the COTR requests effort outside the existing scope of the contract, the contractor will promptly notify the PCO in writing. (4) No action will be taken by the contractor under such technical instruction unless the PCO or ACO has issued a contractual change. Def. App. 25. The contract identifies "Roscoe W. Crawford" as the principal contracting officer.

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5. Price). Def. App. 39. 6. (a)

Contract 0389 incorporates by reference FAR section 52.243-1 (Changes ­ Fixed

Section I.46 of contract 0389 states, in relevant part: After contract award, the Government may solicit, and the Contractor is encouraged to independently propose, changes to the equipment, software specifications, or other requirements of this contract. These changes may be proposed to save money, to improve performance, to save energy, or to satisfy increased data processing requirements. However, if the proposed changes relating to improved performance are necessary to meet increased data processing requirements of the user, those requirements shall not exceed the contract requirements by more than 25%. If the proposed changes are acceptable to both parties, the Contractor shall submit a price proposal to the Government for evaluation. Those proposed changes that are acceptable to the Government will be processed as modifications to the contract.

**** (c) Change proposals submitted to the Contracting Officer shall be processed expeditiously. The Government shall not be liable for proposal preparation costs or any delay in acting upon any proposal submitted pursuant to this clause. The Contractor has the right to withdraw, in whole or in part, any change proposal not accepted by the Government within the period specified by the change proposal. The decision of the contracting officer as to the acceptance of any such proposal under this contract shall be final and shall not be subject to the "Disputes" clause of this contract. The Contracting Officer may accept any change proposal submitted pursuant to this clause by giving the Contractor written notice thereof. This written notice may be given by issuance of a modification to the contract. Unless or until a modification is executed to incorporate a change proposal under this contract, the Contractor shall remain obligated to perform in accordance with the terms of the existing contract

(d)

Def. App. 41-43. 7. On March 28, 1995, ISN formally executed a subcontract agreement with

Datacomm Management Sciences ("Datacomm"). Def. App. 45. In accordance with the 4

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agreement Datacomm was to provide ISN with the supplies and software ISN required for completion of the contract. Def. App. 46. ISN agreed to pay Datacomm a firm fixed price for each item ISN ordered. Id. The Engineering Change Proposal 8. Almost from the beginning of contract performance, ISN was behind schedule.

ISN was late in delivering contract data requirements lists ("CDRL"), as well as behind the overall installation for all three sites. Def. App. 59-63. While there were many reasons for ISN falling behind schedule, chief among them was the fact that ISN had initially understaffed the contract with temporary hires and that ISN did not understand the magnitude of the project. Id. Indeed, the problems required ISN to replace its program manager just a few months into the start of the project. Id. 9. The contract called for ISN to modernize the existing switching equipment in the

turnkey facilities. The communications configuration at the Hampton Roads facility however, was continually changing. Complaint ¶ 6. On June 20, 1995 to address ISN's performance problems and the changing configuration, ISN submitted an Engineering Change Proposal ("ECP"). Complaint ¶ 7. 10. In a June 26, 1995 letter, The Navy contract specialist, Lisa Murtha, wrote to ISN

that: "[a] formal modification to the contract will be issued for the combination of both the formal acceptance of an ECP for implementation of all sites in Lot I and the revised delivery schedule for all sites in Lot I." Def. App. 64. That letter further indicated that the ECP "will be reviewed by SPAWAR with comments" to be provided. Id. In addition, the letter indicated that ISN was required to provide a delivery schedule for all sites in Lot I. Id. 5

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11.

On July 20, 1995, Jeff Bergdahl, the contracting officer's technical representative

sent a facsimile to Roscoe Crawford, the contracting officer, that included a memorandum from SPAWAR to FISC. The memorandum indicated in paragraph 1 that SPAWAR reviewed the ECP and "technically approves ISN's proposed engineering changes," but recommended that all terms be negotiated. Def. App. 66. In paragraph 2, the memorandum addressed ISN's cost analysis, recommending, among other things, a further cost breakdown of the additional charges. Id. 12. Contracting officer Roscoe Crawford testified that discussions that he had with

Mr. Bergdahl indicated that SPAWAR viewed the ECP's costs as unreasonably priced. Def. App. 136. In addition, Mr. Crawford testified that ISN never provided a revised installation cutover schedule as requested by Ms. Murtha's June 26, 1995 letter. Def. App. 137. 13. On August 23, 1995, an ISN employee, in an internal ISN memorandum,

explained to Mr. Robertson that: PER FONCON WITH LISA MURTHA, 22 Aug 95: 1) She has not looked at the ECP, to date. 2) Due to end of year procurements(8a-2 each) She will not be able to work on our ECP until Mid-Sept 95. *** 5) I talked with Don Tabasco about contract and FAR requirements for Timely ECP processing by the government. He recommends that we take a more forceful approach with the contracting officer. You might want to touch base with him personally. *** If you decide to talk with Roscoe, please give me a heads up so I can do the same to Lisa?

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Def. App. 69. Additionally, ISN included in its submitted progress reports for September through December 1995, that the June ECP had not been approved. Def. App. 70-84. On January 26, 1996, Mr. Don Tabasco, ISN's manager of contracts, wrote to the Government to complain about the fact that ISN had not received approval of the June 20, 1995 ECP. Def. App. 85-86. Funding 14. On August, 31, 1995, Jeffery Bergdahl, the contracting officer's technical

representative informed ISN that the ECP was "technically" approved. Def. App. 87. Further, Mr. Bergdahl acknowledged that additional funds would have to be added to the contract to accommodate the ECP. Id. 15. On August 23, 1995, just one week prior to the writing of the above

memorandum, SPAWAR, had reprogrammed $789,319 from another contract to partially fund the ECP. Def. App. 88. On November 27, 1995, the reprogrammed funds were withdrawn from contract 0389 due to an emergent requirement. Def. App. 89. The reprogrammed funds represent the only monies added to contract 0389. As of November 27, 1995, there was no money added to contract 0389 to fund the ECP. 16. In addition, Mr. Bergdahl also specifically stated that the "agreed configuration"

that had been proposed by ISN and technically approved by SPAWAR, "obviously was never set forth in the contract." Def. App. 145. 17. Meeting notes from a December 6, 1995 meeting between Roscoe Crawford and

SPAWAR representatives indicate that Mr. Crawford "never modified the contract to re-establish the deliv. schedule on any of the sites because he could never get a good idea of what a realistic 7

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new deliv. schedule would be. Also the contractor would not agree to pay consideration to extend the schedule. So right now we are in limbo." Def. App. 130. 18. ISN's program manager testified that ISN was aware that without a formal

modification of the contract, ISN could not start work on the ECP. Def. App. 133. Mr. Robertson also testified that ISN was aware that the Government did not possess funding for the ECP, and that without such funding, the ECP could not be approved. Def. App. 134. Termination 19. On February 20, 1996, the Government issued a stop work order to ISN. Def.

App. 90. This was preliminary to the Government terminating ISN's contract for the convenience of the Government. On February 23, 1996, the Government took possession of all of the Government inventory retained by ISN. Id. The contract was formally terminated for the convenience of the Government on March 15, 1996. Def. App. 91. At the time of the termination, ISN had partially completed only the installation at the Hampton Roads Virginia site. ISN did not even start the installation at the two Hawaii sites. Id. 20. Pursuant to Part 49 of the Federal Acquisition Regulations ("FAR"), ISN, on June

6, 1996, submitted a termination settlement proposal ("proposal"). Def. App. 96-104. ISN sought payment of $5,060,578 on a $4,416,646 contract in which ISN had only performed work on a third of the contract requirements. The proposed amount included $443,396 in profit. Id. ISN also stated that it had spent $2,401,080 for materials. Id. There was no discussion about any outstanding payments due to ISN's subcontractor, Datacomm. In fact, according to a request letter from Datacomm, ISN still owes Datacomm $196,688.68 plus interest for materials Datacomm furnished to ISN pursuant to their subcontract agreement. Def. App. 105. 8

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21.

On December 19, 1996, the Defense Contract Audit Agency ("DCAA") issued

audit Report No. 6311-97B17100001. Def. App. 106. At the request of the termination contracting officer, DCAA had conducted an audit of ISN's settlement proposal. Id. The auditor concluded that he could support a $4,049,532 settlement with ISN. Def. App. 109. The auditor questioned $1,011,047 of ISN's $5,060,578 proposal. In particular, all of the claimed profit was questioned. Def. App. 107. The disallowance was due in part to a previous audit of ISN's request for progress payments 3-5. Def. App. 116-123. The earlier audit had concluded that ISN was in loss position on contract 0389. Def. App. 117. Previous Proceeding 22. On October 3, 2001, this Court, Judge James Turner presiding, issued a bench

ruling to the effect that there was no settlement agreement between ISN and the Government. Def. App. 124-128. On March 29, 2002, ISN moved to dismiss its other counts without prejudice, pending a decision upon appeal. This Court granted ISN's motion on April 2, 2002. 23. This Court's October 3, 2001 ruling was subsequently affirmed by the United

States Court of Appeals for the Federal Circuit on October 16, 2002. Def. App. 129. 24. In July 16, 2002, ISN refiled its complaint re-alleging counts for breach of

contract, breach of the duty of good faith and fair dealing, constructive change, equitable adjustment, and attorney's fees. Compl. 25. On April 12, 2005, this Court dismissed ISN's breach of contract claim (Count I).

Specifically, the Court held that the lack of a written modification demonstrated that there was no meeting of the minds with regard to the ECP, and that no agency official with authority had assented to the ECP, either in writing or by conduct. Def. App. 146-152. 9

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director s/ Brian M. Simkin BRIAN M. SIMKIN Assistant Director s/ Steven M. Mager STEVEN M. MAGER Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, Room 12074 Washington, D.C. 20530 Tele: (202) 616-2377 [email protected] March 16, 2007 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on this 16th day of March 2007, a copy of the foregoing "DEFENDANT'S PROPOSED FINDINGS 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/ Steven M. Mager Steven M. Mager Trial Attorney Commercial Litigation Branch Civil Division Department of Justice

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No. 02-796C (Judge Allegra) ______________________________________________________________________________ IN THE UNITED STATES COURT OF FEDERAL CLAIMS INFORMATION SYSTEMS & NETWORKS CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant. ______________________________________________________________________________ APPENDIX OF EXHIBITS SUPPORTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________

PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director BRIAN M. SIMKIN Assistant Director STEVEN M. MAGER Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, Room 12074 Washington, D.C. 20530 Tele: (202) 307-0277 [email protected] March 16, 2007 Attorneys for Defendant

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INDEX TO APPENDIX DEFENDANT'S EXHIBITS 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. PAGE(S)

Extract from Contract No. N00600-99-C-0389. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-44 Extract from Subcontract Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45-58 Excerpts from Deposition of William Robertson, pp. 76-79 . . . . . . . . . . . . . . . . . . . 59-63 Letter from Lisa Murtha, to ISN, dated June 26, 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Facsimile from Jeff Bergdahl to Roscoe Crawford, dated July 21, 1995 . . . . . . . . . 65-68 Memorandum from Daniel Tobin, dated August 23, 1995 . . . . . . . . . . . . . . . . . . . . . . . 69 ISN Progress Reports for September through December 1995 . . . . . . . . . . . . . . . . . 70-84 Letter from Donald Tabasco to Roscoe Crawford, dated January 26, 1996. . . . . . . . 85-86 Memorandum from Jeff Bergdahl to ISN, dated August 31, 1995 . . . . . . . . . . . . . . . . . 87 Funding Document, dated August 29, 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Funding Document, dated November 27, 1995. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Letter from Roscoe Crawford to ISN, dated February 20, 1996 . . . . . . . . . . . . . . . . . . . 90 Notice of Termination, dated March 15, 1996. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91-95 Termination Settlement Proposal, dated June 6, 1996 . . . . . . . . . . . . . . . . . . . . . . . 96-104 Letter from Thomas Parnon to ISN, dated December 29, 1999 . . . . . . . . . . . . . . . . . . . 105 Defense Contract Audit Agency, Audit Report No. 6311-97B17100001, dated December 19, 1996. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106-115 Defense Contract Audit Agency, Audit Report No. 6221-96G17500001, dated November 13, 1995. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116-123

17.

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INDEX TO APPENDIX (continued) DEFENDANT'S EXHIBITS: 18. PAGE(S)

Excerpts from Oral Argument and Status Conference, Information Systems & Networks v. United States, Fed. Cl. No. 98-178, dated October 3, 2001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124-128 Order of Judgment, Information Systems & Networks v. United States, Fed. Cir. No. 98-178, dated October 16, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Typed Meeting Notes, dated December 6, 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . 130-131 Excerpts From Deposition of William Robertson, pp. 219-220 . . . . . . . . . . . . . . 132-134 Excerpts From Deposition of Roscoe Crawfrod, pp. 36, 66 . . . . . . . . . . . . . . . . . 135-137 Excerpts From Deposition of Jeffrey Bergdahl, pp. 46, 101-106 . . . . . . . . . . . . . 138-145 Opinion, Information Systems & Networks v. United States, Fed. Cl. No. 02-796, dated April 12, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146-152

19.

20. 21. 22. 23. 24.

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