Free Memorandum of Contentions of Fact and Law - District Court of Federal Claims - federal

Case 1:06-cv-00146-TCW

Document 46

Filed 12/18/2007

Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

) ) Plaintiff, ) ) v. ) ) UNITED STATES, ) ) Defendant. ) ____________________________________)

TETRA TECH EC, INC.,

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

PLAINTIFF'S CONTESTED FACTUAL ISSUES AND CONTENTIONS OF FACT PLAINTIFF EXPECTS TO PROVE AT TRIAL Pursuant to the Court's Order of July 27, 2007, as amended on December 10, 2007, Plaintiff Tetra Tech EC, Inc. ("Tetra Tech") respectfully submits its Contested Factual Issues and Contentions of Fact That Plaintiff Expects to Prove at Trial. 1. Contested Factual Issue: Whether the determination that a buried item is

"UXO-like" should be based upon an analysis of the geophysical image of the item before the item is excavated. Factual Contentions to be Proven: Tetra Tech expects to prove that the term "UXOlike," as used under Task Order 006, refers to a determination made by the Ordnance and Explosives ("OE") contractor based upon an analysis of the geophysical image of an item before the item is excavated, as contrasted with the Government's position that UXO-like is determined by the physical characteristics of an item after its excavation. 2. Contested Factual Issue: Whether Tetra Tech reasonably relied to its detriment

upon the Government's affirmative, pre-proposal representation that a "Contractor should base

1

Case 1:06-cv-00146-TCW

Document 46

Filed 12/18/2007

Page 2 of 5

their bid on... [the requirement]...to recover all detectable UXO or UXO-like objects under the assumption that there will be approximately 20 such items per acre". (Emphasis added) Factual Contentions to be Proven: Tetra Tech expects to prove that it based its Task Order price on the removal (excavation) of 20 UXO and UXO-like items per acre, and that the Government was aware or should have been aware of this fact. In preparing its bid price, Tetra Tech understood that the determination of whether or not an item was "UXO-like" was based upon an analysis of geophysical data and determination prior to the excavation of the item. Plaintiff's understanding is consistent with the contract documents, its proposal, its Work Plan, its performance of the Task Order, the Government's administration of the Task Order (and prior task orders), and custom and usage in the OE industry. 3. Contested Factual Issue: Whether the Government withheld vital superior

knowledge related to site conditions at Fort Meade. Factual Contentions to be Proven: Tetra Tech expects to prove that the Government had possession of information that would have had a material impact on the calculation of Tetra Tech's price for Task Order 006, that Tetra Tech did not have this information, that the Government knew that Tetra Tech (and the other offerors) did not have the information, that Tetra Tech specifically requested such information, and that the Government failed to provide it. 4. Contested Factual Issue: Whether the Government had actual or constructive

knowledge of the discrimination criteria applied by Tetra Tech, Tetra Tech's performance in accordance with such criteria, the actual excavations performed by Tetra Tech and their being in conformance with the Task Order requirement. Factual Contentions to be Proven: Tetra Tech expects to prove that the Government had full knowledge of the discrimination criteria, Tetra Tech's performance in accordance with

2

Case 1:06-cv-00146-TCW

Document 46

Filed 12/18/2007

Page 3 of 5

such criteria, the resulting excavations and their being in conformance with the Task Order requirement as a result of communications from Tetra Tech, including emails and information posted on a website and accessible to the Government, and the physical presence of Government representatives at the site. 5. Contested Factual Issue: Whether Tetra Tech excavated and removed 14,359

UXO or UXO-like items (non-area G) at Fort Meade. Factual Contentions to be Proven: Tetra Tech expects to prove that Tetra Tech detected over 40,000 anomalies at the site, properly applied discrimination criteria that were disclosed to the Government, and excavated 14,359 UXO or UXO-like items (non Area G). 6. Contested Factual Issue: The amount of Tetra Tech's costs to excavate UXO

and UXO-like items in excess of 21 per acre at Fort Meade (for non-Area G) and the other elements of Tetra Tech's September 5, 2006 claim. Factual Contentions to be Proven: Tetra Tech expects to prove that its September 6, 2005 claim sets forth the additional costs for which Tetra Tech is entitled to an equitable adjustment in excavating substantially more than 21 UXO or UXO-like items per acre, and for the other elements of Tetra Tech's September 6, 2005 claim (additional geophysical activities, additional effort relating to 37mm munitions, and severe weather). 7. Contested Factual Issue (in the Alternative): If the Court concludes that the

UXO-like determination is made by physical examination of the items after they are removed from the ground, whether Tetra Tech is entitled to recover an amount higher than the Government estimate upon which the Contracting Officer's Final Decision was based, as explained in Plaintiff's motion for summary judgment, i.e., based on correction of the weighted formula employed in the Government estimate.

3

Case 1:06-cv-00146-TCW

Document 46

Filed 12/18/2007

Page 4 of 5

Factual Contentions to be Proven: Tetra Tech expects to prove that, even if UXO-like were determined based on physical examination of the items, the Government's weighted formula must be corrected in accordance with Plaintiff's motion for summary judgment. 8. Contested Factual Issue (in the Alternative): If the Court concludes that the

UXO-like determination is made by physical examination of the items after they are removed from the ground, whether Tetra Tech is entitled to recover an amount higher than the Government estimate upon which the Contracting Officer's Final Decision was based, as explained in Plaintiff's motion for summary judgment, i.e., based on the correction of the weighted formula employed in the estimate, plus additional credit for items unreasonably filtered out of the database by the Government. Factual Contentions to be Proven: Tetra Tech expects to prove that, even if UXO-like were determined based on physical examination of the items, the Government's weighted formula must be corrected in accordance with Plaintiff's motion for summary judgment, plus for additional credit for items unreasonably filtered out of the database. In addition to the contested factual issues and contentions set forth above, Tetra Tech reserves its right to prove its case in accordance with the case as tried and the positions taken by the Defendant at trial, subject to the limitations of the Court's Pretrial Order, the Rules of the United States Court of Federal Claims ("RCFC"), including RCFC 15(c), applicable law, and the subsequent rulings of this Court pursuant to its inherent power to manage this case. Respectfully submitted, TETRA TECH EC, INC.

Date: December 18, 2007

By:

s/William W. Thompson, Jr. William W. Thompson, Jr.

4

Case 1:06-cv-00146-TCW

Document 46

Filed 12/18/2007

Page 5 of 5

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.

CERTIFICATE OF SERVICE I hereby certify that on this 18th day of December 2007, a copy of the foregoing PLAINTIFF'S CONTESTED FACTUAL ISSUES AND CONTENTIONS OF FACT PLAINTIFF EXPECTS TO PROVE AT TRIAL 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/ William W. Thompson, Jr.

5