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

Case 1:06-cv-00146-TCW

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Filed 07/21/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS TETRA TECH EC, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 06-146C (Judge Wheeler)

JOINT PRELIMINARY STATUS REPORT Pursuant to Appendix A, Part III, of the Rules of the United States Court of Federal Claims ("RCFC"), the parties submit the following Joint Preliminary Status Report. 1. Jurisdiction

Tetra Tech EC, Inc. asserts jurisdiction pursuant to the Tucker Act, 28 U.S.C. § 1491, and the Contract Disputes Act of 1978, 41 U.S.C. § 601 et seq.. At this time, the United States knows of no reason to question the Court's jurisdiction. 2. Consolidation

This case should not be consolidated with any other case. 3. Bifurcation

The parties agree that the trial of liability and damages should not be bifurcated. 4. Deferral

The parties are not aware of any related cases currently pending in this or any other tribunal and, accordingly, the proceedings in this case should not be deferred pending consideration of any other case. 5. Remand/Suspension

Neither party will seek to remand or suspend this case.

Case 1:06-cv-00146-TCW

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6.

Joinder of Additional Parties

At this time, neither party intends to join additional parties. 7. Motions Pursuant to RCFC 12(b), 12(c) or 56

No motions pursuant to RCFC 12(b), 12(c) or 56 have been filed. At this time, the parties have not determined whether they will file any dispositive motions following the close of discovery. 8. Relevant Questions

Whether the number of UXO and UXO-like items that Tetra Tech excavated constituted a constructive change entitling Tetra Tech to an equitable adjustment under the contract. Whether the Government breached any implied warranty of specifications, duty to disclose superior knowledge, and/or duty to cooperate because of the number of UXO and UXOlike items that the Plaintiff excavated. Whether the Government is equitably estopped from denying liability to Tetra Tech due to (1) any pre-award representations that the Government made to Tetra Tech, (2) the Government's knowledge and approval of Tetra Tech's proposal, work plan and other submittals, and/or (3) any alleged promise to pay Tetra Tech's additional costs in the event that the number of anamolies exceeded 20 per acre. What are the legal implications of the Government's alleged pre-award representations regarding the amount of excavation that would be necessary to complete the Task Order. Whether the parties were mutually mistaken regarding the amount of excavation that would be necessary to complete the contract and, if so, whether Tetra Tech is entitled to have the Task Order reformed. 2

Case 1:06-cv-00146-TCW

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Whether Tetra Tech excavated more anamolies than necessary to fulfill the contract. 9. Settlement

At this time, the parties believe it is too early in the litigation to provide an opinion as to the likelihood of settlement. The parties will consider settling some or all of the claims as this litigation progresses. 10. Trial

If this matter cannot be resolved through settlement, the parties anticipate that the case will proceed to trial if dispositive motions are not filed or, if filed, do not dispose of the matter. Neither party requests an expedited trial schedule. 11. Electronic Case Management

This case is already designated as an electronic filing case and counsel for both parties are certified for Electronic Case Management. 12. Additional Issues

The parties are unaware of any additional information that the Court should be aware of at this time. 13. Proposed Discovery Plan

Pursuant to RCFC Appendix A, ¶ 5, the parties propose the following discovery plan: a. Initial Disclosures pursuant to RCFC 26(a)(1) shall be served on or before September 1, 2006. b. The parties propose that a party may serve upon any other party up to 25 interrogatories, including all discrete subparts, pursuant to RCFC 33. c. All fact discovery in this action shall be completed on or before February 1, 2007. 3

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d.

Defendant proposes that, on or before March 1, 2007, the parties shall file a Joint Status Report informing the Court of the need for expert discovery and further proceedings, as well as the likelihood of settlement. Plaintiff proposes that expert witness reports be disclosed by March 1, 2007, and expert witness depositions be taken by March 30, 2007.

Respectfully submitted, PETER D. KEISLER. Assistant Attorney General DAVID M. COHEN Director s/ Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director s/ William W. Thompson, Jr. WILLIAM W. THOMPSON, JR. PECKAR, ABRAMSON, BASTIANELLI & KELLEY, LLP 1133 21st Street, NW, Ste. 500 Washington, D.C. 20036 Tel: (202) 293-8815 Fax: (202) 293-7794 Attorneys for Plaintiff s/ James D. Colt JAMES D. COLT Trial Attorney Department of Justice Civil Division Commercial Litigation Branch 1100 L. Street, NW Attn: Classification Unit, 8th Floor Washington, D.C. 20530 Tel: (202) 305-7562 Fax: (202) 305-7643 Attorneys for Defendant

July 21, 2006

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of July, 2006, a copy of the foregoing JOINT PRELIMINARY STATUS REPORT 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/ James D. Colt