Free Answer - District Court of Federal Claims - federal

Case 1:06-cv-00146-TCW

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Filed 05/30/2006

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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)

DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT For its answer to the plaintiff's complaint, defendant, the United States, admits, denies and alleges as follows: Jurisdiction 1. Admits the allegation contained in Paragraph 1 to the extent supported by the referenced contract, task order, and modification, which are the best evidence of their contents; otherwise denies the allegations contained in Paragraph 1. 2. Admits the allegation contained in Paragraph 2 to the extent supported by the referenced contract modification, which is the best evidence of its contents; otherwise denies the allegations contained in Paragraph 2. 3. Denies the allegations contained in the first sentence of Paragraph 3 for lack of knowledge or information sufficient to form a belief as to the truth of the matter asserted. Admits the allegation contained in the second sentence of Paragraph 3 to the extent supported by the referenced contract modification, which is the best evidence of its contents; otherwise denies the allegations contained in the second sentence of Paragraph 3. 4. The allegation that the claim presented is "properly certified" constitutes a legal conclusion and the plaintiff's characterizations of its case to which no response is required; to the

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extent it may be deemed an allegation of fact, it is denied. Admits the remainder of the allegations contained in Paragraph 4 to the extent supported by the referenced claim, which is the best evidence of its contents; otherwise denies the allegations contained in Paragraph 4. 5. Admits the allegations contained in Paragraph 5 to the extent supported by the referenced contracting officer decision, which is the best evidence of its contents; otherwise denies the allegations contained in Paragraph 5. 6. The allegations contained in Paragraph 6 is an allegation of law to which no response is required; to the extent they may be deemed allegations of fact, they are denied. General Allegations 7. To the extent that Tetra Tech alleges in Paragraph 7 that the Task Order made a legal specification of what Tetra Tech would be required to excavate, it is an allegation of law to which no response is required; to the extent that the allegations contained in Paragraph 7 may be deemed allegations of fact, they are denied. 8. Denies. 9. Denies the allegation contained in the first phrase of Paragraph 9 regarding Tetra Tech's understanding for lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted; denies the remaining allegations contained in Paragraph 9. 10. Admits. Avers that the prospective offerors also were informed that there might be 200 anomalies per acre and that every anomaly would not have to be removed. 11. Admits the allegations contained in Paragraph 11 to the extent supported by the referenced document, which is the best evidence of its contents; otherwise denies the allegations contained in Paragraph 11. 2

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12. Admits the allegations contained in Paragraph 12 to the extent supported by the referenced document, which is the best evidence of its contents; otherwise denies the allegations contained in Paragraph 12. 13. Denies the allegations contained in Paragraph 13 for lack of information or knowledge sufficient to form a belief as to the truth of the matters asserted. 14. Admits the allegations contained in Paragraph 14 to the extent supported by the referenced documents, which are the best evidence of its contents; otherwise denies the allegations contained in Paragraph 14. 15. Admits that Tetra Tech supplied an Explosives Safety Submission; denies the other allegations contained in Paragraph 15. 16. Denies the allegations contained in the first phrase of Paragraph 17 for lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted; admits the allegations contained in the remainder of Paragraph 16 to the extent supported by the referenced notifications, which are the best evidence of their contents; otherwise denies the allegations contained in the remainder of Paragraph 16.. 17. Denies. 18. Denies. 19. Admits to the extent supported by the referenced website, which is the best evidence of its contents; otherwise denies the allegations contained in Paragraph 19. 20. Admits to the extent supported by the referenced website, which is the best evidence of its contents; otherwise denies the allegations contained in Paragraph 20. 21. Denies. 3

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22. Admits the allegations contained in the first clause of Paragraph 22. Avers that it was not the responsibility of the Government to object to the excavation decisions of the contractor. The Remaining allegations contained in Paragraph 22 constitute legal conclusions to which no response is required; to the extent that the remaining allegations contained in Paragraph 22 may be deemed allegations of fact, they are denied. 23. Admits to the extent supported by the referenced document, which is the best evidence of its contents; otherwise denies the allegations contained in Paragraph 23. 24. Admits to the extent supported by the referenced document, which is the best evidence of its contents; otherwise denies the allegations contained in Paragraph 24. 25. Admits the allegations contained in the first sentence of Paragraph 25. Admits that the contracting officer proposed to pay $219,080 in compromise; otherwise denies the allegations contained in the second sentence of Paragraph 25. 26. Admits the allegations contained in the first sentence of Paragraph 26 to the extent supported by the referenced document, which is the best evidence of its contents; otherwise denies the allegations contained in the first sentence of Paragraph 26. Admits the allegations contained in the second sentence of Paragraph 26. 27. Denies the allegations contained in the first sentence of Paragraph 27. Admits the allegations contained in the second sentence of Paragraph 27 to the extent supported by the referenced document, which is the best evidence of its contents; otherwise denies the allegations contained in the second sentence of Paragraph 27. 28. Admits the allegations contained in the first and second sentences of Paragraph 28 to the extent supported by the referenced document, which is the best evidence of its contents; 4

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otherwise denies the allegations contained in the first and second sentences of Paragraph 28. Admits the allegations contained in the third sentence of Paragraph 28. 29. Denies the allegations contained in the first sentence of Paragraph 29. Admits the allegations contained in the second and third sentences of Paragraph 29 to the extent supported by the referenced documents, which are the best evidence of their contents; otherwise denies the allegations contained in the second and third sentences of Paragraph 29. The allegations contained in the fourth sentence of Paragraph 29 constitute legal conclusions, to which no response is required; to the extent they may be deemed allegations of fact, they are denied. COUNT ONE (Breach of Contract) 30. Defendant incorporates by reference its responses to Paragraphs 1 through 29 above. 31. The allegations contained in Paragraph 31 constitute legal conclusions to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 32. The allegations contained in Paragraph 32 constitute legal conclusions to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 33. The allegations contained in Paragraph 33 constitute legal conclusions to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 34. The allegations contained in Paragraph 34 constitutes legal conclusions and plaintiff's characterizations of its case to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 35. The allegations contained in Paragraph 35 constitute legal conclusions to which no answer is required; to the extent they may be deemed allegations of fact, they are denied.

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36. The allegations contained in Paragraph 36 constitute legal conclusions to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. COUNT TWO (Constructive Changes) 37. Defendant incorporates by reference its responses to Paragraphs 1 through 36 above. 38. The allegations contained in Paragraph 38 are conclusions of law, to which no response is required; to the extent they may be deemed allegations of fact, they are denied. COUNT THREE (Breach of Implied Contract) 39. Defendant incorporates by reference its responses to Paragraphs 1 through 39 above. 40. The allegations contained in Paragraph 40 are conclusions of law, to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 41. The allegations contained in Paragraph 41 are conclusions of law, to which no response is required; to the extent they may be deemed allegations of fact, they are denied. COUNT FOUR (Equitable Estoppel) 42. Defendant incorporates by reference its responses to Paragraphs 1 through 41 above. 43. The allegations contained in Paragraph 43 constitute legal conclusions to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 44. The allegations contained in Paragraph 44 are conclusions of law, to which no response is required; to the extent they may be deemed allegations of fact, they are denied. COUNT FIVE (Mutual Mistake) 45. Defendant incorporates by reference its responses to Paragraphs 1 through 44 above. 46. The allegations contained in Paragraph 46 are conclusions of law, to which no response is required; to the extent they may be deemed allegations of fact, they are denied. 6

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47. Denies 48. The allegations contained in Paragraph 48 constitute legal conclusions to which no answer is required; to the extent they may be deemed allegations of fact, they are denied.. 49. Denies that the plaintiff is entitled to the relief set forth in the prayer for relief following Paragraph 48 or to any relief whatsoever. 50. Denies each and every allegation not previously admitted or otherwise qualified. WHEREFORE, defendant requests that the Court enter judgment in its favor, that the complaint be dismissed, and that defendant be granted such other and further relief as the Court may deem just and proper.

Respectfully submitted, PETER D. KEISLER. Assistant Attorney General DAVID M. COHEN Director s/ Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director

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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 May 30, 2006 Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 30th day of May, 2006, a copy of the foregoing DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT 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

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