Free Stipulation - District Court of Federal Claims - federal

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

Fed. Cl. No. 06-146C (Judge Wheeler)

AMENDED JOINT STIPULATION OF UNCONTESTED FACTS I. THE PARTIES 1. The Plaintiff in this proceeding is Tetra Tech EC, Inc. ("Tetra Tech"), successor

in interest to Foster Wheeler Environmental Corporation ("FwEC"). Throughout this statement of facts all references to Plaintiff will be to "Tetra Tech". 2. The Defendant is the United States. Throughout this statement of facts all

references to Defendant will be to "the Government". II. THE BASE CONTRACT 3. On August 28, 2000, the U.S. Army Engineering & Support Center, Huntsville,

Alabama (hereinafter "the Government") made award to Tetra Tech, and five other contractors under Contract No. DACA87-00-D-0039 ("Contract D-0039"). 4. Contract D-0039 is an Indefinite Delivery, Indefinite Quantity (ID/IQ) contract

issued pursuant to FAR 16.504. Contract D-0039 anticipates the award of Task Orders for Ordnance and Explosives (OE) response and services. These services include the investigation and excavation of Unexploded Ordnance ("UXO"). These services were to be performed at former or active Department of Defense ("DOD") sites and at DOD sites subject to the Base Realignment and Closure Act (BRAC).

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5.

Contract D-0039 incorporates by reference the FAR 52.243-1 Changes ­ Fixed

Price (AUG 1987) and FAR 52.243-1 Changes ­ Fixed Price Alternate II (APR 1984) clauses, which are applicable to Task Orders issued under Contract D-0039. III. INDEPENDENT GOVERNMENT ESTIMATE 6. The Government prepared an Independent Government Estimate dated June 14,

2001, in support of a Request for Proposals for Task Order 006, to be issued under Contract D0039, in the amount of $2,984,639.38. 7. The Government based its IGE on the contractor excavating 40 anomalies per

acre. The Government based the 40 anomalies per acre "on an average anomaly count per acre experienced on similar sites." 8. The Government based its IGE on a Scope of Work for 256 acres, but the

Government issued Tetra Tech and the other offerors a Scope of Work for 309 acres. 9. $3,580,987. 1 IV. THE TASK ORDER ­ PREAWARD 10. On July 26, 2001, the Government issued a Request for Proposals for Task Order If the Government had based it IGE upon 309 Acres, the amount would have been

006 under Contract D-0039. The RFP included a Scope of Work for Non-Time Critical Ordnance and Explosives Removal Action at Fort George G. Meade, Maryland. The Scope of Work identified 23 anticipated high use areas (covering approximately 309 acres) for Ordnance and Explosives ("OE") clearance.

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This would have made the IGE higher than all but one offeror.

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11.

The Scope of Work ("SOW") identified "Area G" as one of the 23 areas subject

to OE clearance. The Government anticipated a higher volume of UXO and UXO-like items in Area G than in the other areas to be cleared. 12. The Government held a site visit of Fort Meade on August 7, 2001. Pursuant to

the SOW, the Government did not permit contractors to conduct any UXO related activities during the site visit. 13. The SOW stated that the "objective of [the proposed task order] is for the

contractor to safely locate, identify and final disposition of all UXO and suspected UXO from the site." 14. The SOW required contractors to "use detection instruments capable of detecting

the UXO expected at the depths required." The SOW, in accordance with Data Item Description ("DID") OE-005-05, established the depths to which detection instruments must identify UXO and UXO-like items. 15. The SOW stated that an Army Environmental Center contractor had previously

conducted a survey of 7600 acres of Fort Meade. This survey included the approximately 309 acres included in proposed Task Order 006. The SOW stated that the contractor had been able to survey roughly 7400 of the 7600 acres and that "[d]uring the survey, 14,100 individual UXO items and 18,000 expended ordnance were retrieved" on the surface or within 6 inches of the surface. 16. The Scope of Work, ¶¶ 8.2 to 8.5, identified records that would be "Government

Furnished". The Scope of Work, ¶ 8.4, stated that the "Final Report, FGGM Ordnance Survey 7600 Acre Parcel, December 1995" would be "Government Furnished." The Final Report states

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that some of the 23 areas subject to clearance under the Task Order 006 RFP issued were high impact areas. 17. During the preproposal phase for Task Order 006, prospective bidders submitted

numerous questions to the Government. Tetra Tech asked if bidders would be permitted access to the survey report prior to the time proposals were due. The Government answered "no." Specifically, Tetra Tech's question and the Government's answer are as follows: Question 16. SOW Paragraph 8.2-8.5. Is it possible for bidders to review these documents prior to bid preparation? Answer 16. No. This would provide an unfair advantage to those Contractors which have offices in Huntsville. CEHNC plans to provide no more background documentation. 18. The Government did not release the survey report to Tetra Tech until after award

of Task Order 006. 19. An agency attorney made the following statement regarding the Government's

preaward activities related to the requirement under Task Order 006: The government knew that certain areas of the site were basically "clean" and that other areas of the site were truly in the middle of the impact area and heavily contaminated. Instead of extrapolating the possible number of anomalies across the site, the government expected that the offerors would know that the impact area was the most heavily contaminated and would adjust their approach for concentrating the work in that particular area. It was clear from the proposals that the offerors did not do this, yet the government decided to proceed with the award. 20. A Government 30(b)(6) witness testified, when asked if it was in the

Government's interest to withhold about the Fort Meade site the information "that there was a variation in terms of contamination, that some areas had a lot of ordnance or debris and that some areas didn't," as follows: I think it's in everyone's best interest to provide as much information as possible as to the characterization of a site. That's fairly undisputable I would think.

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21.

During the proposal phase, prospective bidders submitted numerous other

questions that were answered by the Government. The questions and answers include the following: Question 25: General. Will USAESCH provide an Anomaly per Acres assumption for the project? Answer 25: The Contractor should assume 200 anomalies per acre.

Question 26: General. Will USAESCH provide an UXO/OE item per Acres assumption for the project? Answer 26: The Contractor should assume 20 UXO/OE items per acre. * * * * * * * * * Question 33: Geophysical Survey & Anomaly Reacquisition (Task 4). Is the objective of the geophysical survey to detect all potential UXO items within the expected default depth (Table 1 of the SOW), or to the DID OE-005 detection depths, or to detect the MPM as listed in Table 1? Answer 33: The geophysical surveys shall detect all potential UXO items within the expected default depth (Table 1 of the SOW). This is consistent with the Action Memorandum.

[Supplemental Question to] Answer 33. This answer states that the "geophysical surveys shall detect all potential UXO items within the expected default depth." Does this mean that the contractor is required to dig all potential UXO items or only those with characteristics of the MPM listed in table 1? [Supplemental Answer] All potential UXO items. * * * * * * * * * Question 81: Paragraph 2.1 of the SOW states, "The objective of this task order is for the contractor to safely locate, identify and make final disposition of all UXO and suspected UXO from the site." What estimated number of anomalies per 100 foot square grid, or other unit area, should contractors use to estimate anomaly reacquisition and remediation efforts? Answer 81: The Contractor should assume 200 anomalies per acre, and 20 UXO/OE items per acre.

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22.

In accordance with Answers 25, 26, 33, supplemental Answer 33 and Answer 81,

the Government advised contractors to dig "all potential UXO items" and to "assume 200 anomalies per acre, and 20 UXO/OE items per acre". 23. Contract D-0039 states that an "anomaly" is a "subsurface feature detected by a

geophysical instrument." 24. On August 23, 2001, the Government provided further clarification with respect

to the pre-proposal Questions and Answers, as follows: Clarification to bidding based on excavating 200 anomalies per acre: A quantity of 200 anomalies per acre was included in previous correspondence. This suggests that the requirement is for (309 acres x 200 anomalies =) 61,800 excavations. That is not the intent or objective. The requirement is to remove all reasonably detectable UXO and UXO-like items. Based on HNC's knowledge of the site and to provide an even basis for Proposal preparation purposes, the Contractor should assume there exists in the ground (below the surface) approximately 20 UXO or UXOlike items per acre. If the Contractor's false alarm ratio is, say 9:1, then 200 excavations would be required to recover 20 UXO or UXO-like items. The 200 per acre number is simply an illustration of the design process we would use to plan this activity. The Contractor's false alarm ratio may be lower or higher. Each Contractor should base their bid on their own process and cost to recover all detectable UXO or UXO-like objects under the assumption that there will be approximately 20 such items per acre. (Emphasis added) 25. On August 27, 2001, Tetra Tech submitted its cost and technical proposal which

included "Technical Approach and Basis for Estimate." The "Technical Approach and Basis for Estimate" identified the following Tetra Tech assumptions: · · Assume 200 anomalies/ acre [for all areas except Area G]. Assume that 20 anomalies/ acre will require excavation at all areas except "G". At Area "G", assume 200 anomalies/ acre will require excavation.

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·

Assume that 2 anomalies/ acre will require detonation at all areas except Area "G". At Area "G", assume 20 anomalies/ acre will require detonation.

26.

On September 17, 2001, Tetra Tech submitted a revised cost and technical

proposal. The revised "Technical Approach and Basis for Estimate" stated as follows: . . . FWENC [Tetra Tech] anticipates that approximately 20 anomalies/acre will require intrusive investigation (excavation) at all areas except Area "G". * * * * * * * * * * FWENC anticipates that approximately 2 OE/UXO per acre will require detonation. * * * * * * * * * * At Area "G", FWENC anticipates that as many as 200 anomalies/acre may require intrusive investigation. * * * * * * * * * * [At Area "G",] FWENC anticipates that as many as 20 OE/UXO per acre may require detonation 27. In its August 27, 2001 proposal and its September 13, 2001 revised proposal,

Tetra Tech stated that it incorporated by reference the pre-proposal Questions and Answers. 28. The term "UXO-like items" is not defined in Contract D-0039 or in the RFP for

Task Order 006. 29. The Government's Post Negotiation Memorandum, dated September 28, 2001,

stated that Tetra Tech September 13, 2001 revised proposal demonstrated a "clear understanding of the SOW." The contracting officer concurred in that determination. V. THE TASK ORDER - POSTAWARD 30. On September 27, 2001, the Government awarded Task Order 006 to Tetra Tech.

The Task Order included unit prices for different elements of work and totaled $2,777,814.20. 31. 32. 33. Modification 03 increased the amount of the task order to $3,051,138.10. Modification 04 increased the amount of the task order to $3,074,731.29. The Task Order required Tetra Tech to submit a Work Plan for the Government's

approval before performing any work. Tetra Tech's Work Plan stated that Tetra Tech "assumed

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34.

The Government approved Tetra Tech's Work Plan without objection to or

modification of Tetra Tech's stated assumptions in its Work Plan as to the number of anomalies per acre to be excavated. 35. The Task Order required Tetra Tech to conduct a Geophysical Prove Out

("GPO") and to prepare a GPO Report. 36. The discrimination criteria for each item were based upon the following

geophysical information from the GPO process: · Amplitude: a measured instrument response of the geophysical equipment, which is a millivolt reading and is reflected in the geophysical data as color that varies according to intensity from green (no response) to pink (high response). Amplitude for a given item is dependent on a variety of characteristics including (a) size, (b) shape, (c) depth, (d) composition (type of metal), and (e) orientation (how item is lying in the ground); and · · · Anomaly size; Anomaly shape; and Background noise.

Tetra Tech analyzed and interpreted the amplitude, anomaly size and shape, and background noise to estimate size and depth of the anomaly for establishing the discrimination criteria. 37. The Government approved Tetra Tech's GPO by letter dated May 21, 2002.

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38.

Tetra Tech provided its discrimination criteria to the Government by posting it on

the File Transfer Protocol ("FTP") website. Tetra Tech also provided it directly to the Government by email on April 23, 2003. The Government did not object to or modify in any way the discrimination criteria. 39. On February 5, 2003, Tetra Tech and the Government executed Modification 03

to the Task Order. Mod. 03 provided additional funding for an increase in the number of anomalies to be excavated for 82 Acres. 40. The scope of Modification 03 was explicitly set forth in Tetra Tech's proposal for

Modification 03, dated December 2, 2002, as follows: With the revised dig depth, we have now assumed 25 anomalies per acre (versus 20 anomalies per acre in our original Technical Approach) and 3 UXO items per acre (opposed to the original 2 UXO items per acre). 41. In its "Prenegotiation Objectives and Cost/Price Analysis" for Mod. 03, dated

January 12, 2003, the Government stated as follows: The Contractor's Proposal includes an increase in the estimated number of anomalies per acre from 20 to 25. . . . This change applies to approximately 82 of the 306 project acres. 42. By letter dated April 16, 2003, Tetra Tech stated to the Government that it was

discovering and excavating unanticipated high levels of UXOs and UXO-like items. 43. The minutes of a meeting held on April 29, 2003 stated as follows:

2.1.1 Background: [Tetra Tech] had submitted a letter 16 April notifying the Contracting Officer that cost impacts were anticipated due to an increase in the number of anomalies requiring intrusive investigation. 2.1.2 Discussion: . . . * * * * * * * * * * * Mr. Potter continued on the point that the criteria was not number of excavations, but "20 UXO or UXO-like items" per acre and stated that the number could change but it will not be known until the end of the intrusive investigations. If at that time, the number averaged more than 20 per acre, that would be justification for a cost adjustment.

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44.

Tetra Tech posted on the FTP internet site dig sheets, raw and processed

geophysical data, and the discrimination criteria (including amplitude strength values). 45. By letter dated April 7, 2004, Tetra Tech submitted to the Contracting Officer a

Request for Equitable Adjustment ("REA") in the amount of $1,002,214, for the additional costs incurred in the excavation and removal of the unanticipated UXO and UXO-like items at sites other than Area G. 46. By letter dated September 17, 2004, Tetra Tech submitted to the Contracting

Officer a Request for Equitable Adjustment ("REA") in the amount of $406,156 for the additional costs incurred in the excavation and removal of the unanticipated UXO and UXO-like items at Area G. 47. By letter dated October 22, 2004, Tetra Tech requested a final decision on its

claims by the Contracting Officer. 48. $219,080. 49. By letter dated August 22, 2005, the Contracting Officer responded to Tetra By letter dated February 9, 2005, the Contracting Officer offered Tetra Tech

Tech's REAs. The Contracting Officer stated that the Government had "found merit for a changed condition" and that the Government would issue a change order in the amount of $341,482.23 for Tetra Tech's REA. To date, no such change order has been issued. VI. TASK ORDER ­ THE CLAIM 50. On September 7, 2005, Tetra Tech served upon the Contracting Officer a certified

claim under the Contract Disputes Act, 41 U.S.C. §§ 601, et seq. ("CDA"), in the amount of $1,188,422.62, plus interest, to compensate Tetra Tech for its additional costs incurred in

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performing the excavation and removal of UXOs and UXO-like anomalies under the Task Order (the "Claim"). 51. (a) acre; (b) $26,695.24 for increased level of effort by a senior geophysicist in performing Tetra Tech's certified Claim consisted of four parts: $1,119,723.25 for clearance of UXO in excess of 21 UXO-like anomalies per

the geophysical investigation of the additional UXO-like items; (c) $18,705.03 (corrected amount) for increased level of effort to investigate 37mm

projectiles in Range 1; and (d) $15,308.88 for costs resulting from extreme weather delays.

In its Claim, Tetra Tech seeks compensation for geophysically investigating and excavating UXO and UXO like items in non-area G, in excess of 21 UXO and UXO-like items per acre. 52. Tetra Tech used 21 items per acre instead of 20 items per acre in its claim to

account for the extra 5 items per acre for the 59.65 acres subject to Mod. 03 for non-Area G. Tetra Tech explained this approach to the Government by letter dated April 7, 2004. 53. Tetra Tech's September 7, 2005 Claim for excavating more than 21 UXO or

UXO-like items per acre includes spreadsheets documenting costs Tetra Tech incurred to geophysically identify and excavate all UXO and UXO-like items for non-area G. As set forth in Tetra Tech's Claim, Tetra Tech used these documented costs to calculate a cost per UXO or UXO-like item excavated. The Government has not requested to conduct an audit of Tetra Tech's cost records in reviewing Tetra Tech's claim or in this litigation.

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54.

The additional components of Tetra Tech's Claim are also based on cost records

submitted with the September 7, 2005 claim. The Government has not requested to conduct an audit of Tetra Tech's cost records in reviewing Tetra Tech's claim or in this litigation. VII. TASK ORDER ­ THE FINAL DECISION 55. By letter dated November 30, 2005, the Contracting Officer issued a final

decision (the "Final Decision") on Tetra Tech's Claim, finding that Tetra Tech is entitled to recover a total of $341,482.23 itemized as follows: (a) (b) $309,045.23 for the clearance of greater than 21 UXO-like anomalies per acre; $19,333.00 for the increased level of effort by Tetra Tech in clearing 37

millimeter UXOs in Range 1; and (c) 56. $13,104.00 for lost days associated with extreme weather. In her Final Decision, the Contracting Officer stated that her determination of the

amount to which Tetra Tech is entitled was based upon the results of an analysis of 24,674 anomalies by a "government team." The Government team found that 1,422 of the anomalies excavated by Tetra Tech met the discrimination criteria that the Government believed should be applied. 57. The Contracting Officer determined that Tetra Tech should receive credit for

1,422 UXO or UXO-like items (as opposed to the 14,359 claimed by Tetra Tech). The Government based its calculation of UXO-like items upon the physical characteristics of the items after they had been excavated. Specifically, the Government required that the item must have a length, width and weight within the failure criteria used by Government safety specialist for the respective non-area G locations.

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58.

The Government admitted in its answer to the amended complaint that the

Contracting officer "intended for the equitable adjustment to be consistent with the contract and modifications ..." 59. In this litigation, the Contracting Officer testified: "I do agree with what you see

here [in the Final Decision]". 60. The $341,482.23 amount in the final decision is calculated as set forth in a

Government estimate on a two page spreadsheet. The Government's 30(b)(6) witness testified regarding the estimate as follows: Q: We are going to go back to the estimate at Exhibit 26, Attachment 1. Is this still the Government's position in this matter? This estimate does it reflect the Government's position? Yes, sir. I believe this was the last set of correspondence over the matter that had amounts on it. ... I understand. But as far as us sitting here in this litigation for the Plaintiff, understanding the Government's position in this matter, this exhibit represents where we are today? Yes. The Government estimate for the $341,482.23 amount in the final decision is

A: Q:

A: 61.

based on a calculation that includes a weighted formula. The weighted formula is based in part on the number of UXO and UXO-like items per acre established under Modification 03 of Task Order 006. 62. The weighted formula in the calculation for the estimate does not take into

account that the number of UXO and UXO-like items per acre established under Modification 03 of Task Order 006 applied to only 82 acres. 63. The Government's 30(b)(6) witness testified that the weighted formal would

change if Modification 03 of Task Order 006 applied to only 82 acres as follows: Q: Would your calculation change if the three per acre of the non-Area G applied to 82 acres as opposed to the whole 270? ...

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A: 64.

Of course, yes.

The Government's 30(b)(6) witness further testified on how to adjust the

weighted formula to take into account that the number of UXO and UXO-like items per acre established under Modification 03 of Task Order 006 applied to only 82 acres as follows: Q: A: Q: A: Q: A: Q: A: Yes. How would the 82 acres affect your weighted -I would have to know what Areas H and W covered, as far as all these trails. As in being in Area G or Non-Area G? Well, the Mod references an Area H and W. Yes. Yes, under Non-Area G I would have to know which of these specific trails were affected by that. The effect would be I would now have three. Three variables? Three variables. So the 82 acres would be referenced against the three anomaly per acre, and then there would be an additional calculation for increase for everything outside the 82 acres.

VIII. GOVERNMENT SCOPE OF WORK AND PERFORMANCE WORK STATEMENTS ISSUED AFTER TETRA TECH SUBMITTED ITS REA 65. Task Order 006 was issued in the Government's "evolutionary" phase of making

the transition from prescriptive to performance based service contracting. 66. In a Scope of Work and two Performance Work Statements issued by the

Government for OE clearance requirements after Tetra Tech submitted its REAs under Task Order 006, the Government included very specific language, that the contractor is not entitled to an equitable adjustment if unanticipated high numbers of anomalies are encountered. 67. On September 7, 2005, the Government issued an RFP for the OE clearance

requirements in support of the construction of the Proposed Infantry Platoon Battle Course at Fort Benning, Georgia. The Scope of Work states that: No price adjustments will be allowed to any firm fixed price tasks for differing site conditions related to ... the quantity, type, and/or depth of MEC [Munitions and Explosives of Concern], MEC scrap, MPPEH, munitions debris, and/or other anomalies

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encountered. The Contractor shall not qualify their bid based on a specific number of anomalies or digs, etc. 68. In an October 12, 2005 Performance Work Statement for Former Raritan Arsenal

in Edison, New Jersey, the Government states that: b. The Contractor has been provided data during the proposal process to include, but not limited to, answers to specific questions and any site data included in previous project documents. . . . . c. . . .. Any assumptions or estimates of conditions included in the Contractor's proposal shall be considered as informational only and shall not be considered as contractually binding to either party. Requests for an equitable adjustment or a claim of changed or differing site conditions will not be allowable for conditions that differ from those assumed or that the Contractor could reasonably be expected to know, anticipate, or assume or any of the following specific conditions: * * * * * * * * * * * · The quantity, type, distribution or depth of cultural debris, cultural features, site construction features, discarded military munitions, material potentially presenting and explosive hazard (MPPEH), military munitions, pit burials, munitions and explosives concern (MEC), munitions constituents, munitions debris, MEC, MEC scrap, MPPEH, munitions debris, range-related debris, small arms ammunition, unexploded ordnance, hot rocks, metallic debris, and/or other anomalies encountered. [If recovered chemical warfare material (RCWM) or radioactive material is encountered, this will be grounds for an equitable adjustment]. Note that the number of anomalies investigated by the Contractor and the time it takes to achieve the performance requirements of this task is solely controlled by the Contractor (except for Government induced delays). The fact that the contractor excavates more anomalies or takes more time than expected to perform the work is not grounds for an equitable adjustment. The Contractor is expected to apply the most appropriate technology to locate and discriminate between items that meet the QA failure criteria and all other anomalies. 69. In a May 23, 2007 Performance Work Statement for OE clearance at Former Erie

Army Depot, the Government states that:

2.6.2 The Contractor has been provided data, either by inclusion or reference, during the proposal process to include, but not limited to, answers to specific questions and any site data included in previous project documents. Specifically, documents gathered and interpreted by a third party Contractor. The Government makes no claims as to the accuracy or completeness of the site data supplied and/or the actual working conditions to be encountered. The actual conditions that the Contractor experiences may differ from the conditions reported in the data. Of particular note, the data collection was under

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conditions that will differ from those encountered during the removal. For example, the results of sampling for site characterization may not be representative of the anomaly densities that may be encountered in an actual removal action. The Contractor shall be responsible for interpreting the data provided in context of the conditions under which the survey was conducted and the data analysis and extrapolation limitations typical of site assessment efforts. The Contractor attests that they have made an independent inspection of the site, have gathered the information necessary to fully understand the conditions they will encounter during execution of this task order, and have used any data provided by the Government at the contractors own risk. 2.6.3 The Contractor is expected to apply due diligence to the development of their proposal and to know or estimate the conditions to be encountered that will affect the cost, quality, or schedule of the work included in this task order. Requests for an equitable price adjustment or claim of changed site conditions will not be allowable for conditions that the Contractor could reasonably be expected to know, anticipate, or assume or any of the following specific conditions: a. . . . . * * * * * * * * * g. The quantity, type, distribution or depth of cultural debris, cultural features, site construction features, Discarded Military Munitions (DMM), Material Potentially Presenting an Explosive Hazard (MPPEH), military munitions, burial pits, Munitions and Explosives of Concern (MEC), munitions constituents, munitions debris, range-related debris, small arms ammunition, unexploded ordnance (UXO), hot rocks, metallic debris, and/or other anomalies encountered. (If recovered chemical warfare material (RCWM) or radioactive material is encountered, this will be grounds for an equitable adjustment). Note that the number of anomalies investigated by the Contractor and the time it takes to achieve the performance requirements of this task order is solely controlled by the Contractor (except for Government induced delays). The fact that the Contractor excavates more anomalies or takes more time than expected to perform the work is not grounds for an equitable adjustment. The Contractor is expected to apply the most appropriate technology to locate and discriminate between items that meet the QA failure criteria and all other anomalies. * * * * * * * * * 2.6.4 The Contractor certifies that their proposal is not qualified or contingent upon any of the above conditions. Any estimates of such conditions included in the data provided to the Contractor by the Government or included in the Contractor's proposal are not binding contractual conditions. The act of signing this task order signifies that the Contractor has been given amply opportunity to assess the conditions under which the work will be performed and the contractor fully understands those conditions. The Contractor accepts full and sole responsible for identifying and considering all factors that may affect the cost to execute the work. The Contractor attests that it has had sufficient opportunity to do so and has used any data or information provided to them by any party at their own risk.

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70.

Contract D-0039 and Task Order 006 do not contain provisions such as quoted

from the solicitations for Fort Benning, Former Raritan Arsenal and Former Erie Army Depot. IX. TESTIMONY OF GOVERNMENT 30(B)(6) WITNESS 71. The Chief Geophysicist for the U.S. Army Engineering & Support Center,

Huntsville, Alabama, testified at the close of his 30(b)(6) testimony as follows: Q Under the contract is Tetra Tech entitled to be paid for digging geophysical anomalies that have anomaly characteristics similar to the discrimination item for each area as determined by geophysical interpretation? A Yes.

Respectfully submitted,

TETRA TECH EC, INC.,

JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director s/ Roger A. Hipp ROGER A. HIPP Trial Attorney Commercial Litigation Branch Civil Division Attn: Classification Unit 8th Floor, 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 305-3091 Fax: (202) 307-0277 Attorneys For Defendant Date: January 11, 2008

s/William W. Thompson, Jr. William W. Thompson, Jr. Robert D. Banfield PECKAR & ABRAMSON, PC 1133 21st Street, N.W., Suite 500 Washington, D.C. 20036 (202) 293-8815 Telephone (202) 293-7794 Facsimile Attorneys for Tetra Tech EC, Inc. Date: January 11, 2008

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