Free Order on Motion for Summary Judgment - District Court of Federal Claims - federal

Case 1:06-cv-00146-TCW

Document 39

Filed 11/29/2007

Page 1 of 2

In the United States Court of Federal Claims
No. 06-146C (Filed: November 29, 2007) ******************************************** * * TETRA TECH EC, INC., * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * ******************************************** * ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT This case involves a contract claim by Plaintiff, Tetra Tech EC, Inc. ("Tetra Tech"), against the U.S. Army Engineering & Support Center, Huntsville, Alabama, under the Contract Disputes Act ("CDA"), 41 U.S.C. §§ 601-613. Tetra Tech has moved for summary judgment on the basis that the Contracting Officer made an error in calculating damages in her November 30, 2005 final decision, and that Government representatives have conceded this error in Rule 30(b)(6) depositions. The Contracting Officer awarded Tetra Tech $341,482.23 as an equitable adjustment in her final decision, but Tetra Tech states that the correct amount should have been $1,337,512.82, plus interest under the CDA. Defendant opposes Plaintiff's motion for summary judgment, principally on the ground that Defendant's liability for Plaintiff's claim has not been established.1 Tetra Tech submitted a certified claim to the Contracting Officer on September 6, 2005 in the amount of $1,188,422.62, plus interest. Tetra Tech asserted multiple theories of liability, such as breach of contract, constructive change, breach of implied contract, equitable estoppel, and mutual mistake. Following receipt of the Contracting Officer's November 30, 2005 final decision, Tetra

The parties briefed the summary judgment issues during the period October 5, 2007 through November 21, 2007. The Court concluded that oral argument on Tetra Tech's motion for summary judgment was unnecessary. -1-

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Case 1:06-cv-00146-TCW

Document 39

Filed 11/29/2007

Page 2 of 2

Tech filed suit in this Court on February 27, 2006. Tetra Tech learned of the Contracting Officer's error during discovery in this action, and filed an amended complaint, adding a Count VI entitled "Adoption of Government's Methodology in Calculating Amount of Recovery." As Defendant notes, Count VI of the amended complaint alleges a damages theory, not a liability theory. The question before the Court is whether the Contracting Officer's final decision establishes liability in Plaintiff's favor, or whether Plaintiff has shown liability against Defendant through its motion for summary judgment. The CDA provides that, if a contractor files a claim in this Court from a contracting officer's final decision, the action "shall proceed de novo in accordance with the rules of [this] court." 41 U.S.C. § 609(a)(3). Applicable case law holds that the contractor is not entitled to any presumption or inference from the contracting officer's final decision, because de novo review precludes any presumed correctness of the decision. England v. Sherman R. Smoot Corp., 388 F.3d 844, 853-57 (Fed. Cir. 2004) (In thorough analysis of CDA provisions, Court concludes that any presumptions from a contracting officer's decision are unwarranted); Wilner v. United States, 24 F.3d 1397, 140102 (Fed. Cir. 1994) (Plain language of CDA makes it clear that "when suit is brought following a contracting officer's decision, the findings of fact in that decision are not binding upon the parties and are not entitled to any deference"); Assurance Co. v. United States, 813 F.2d 1202, 1206 (Fed. Cir. 1987) (Contracting officer's findings of fact, if made, are not binding in any subsequent proceeding); Renda Marine, Inc. v. United States, 66 Fed. Cl. 639, 647 (2005) (Contracting officer's final decision is not binding on the parties, and is not entitled to any deference). Based upon the above authorities, the Court cannot draw any presumption or attach any deference to the Contracting Officer's final decision. Although the Contracting Officer may have granted Tetra Tech's claim in part, Tetra Tech did not accept the Contracting Officer's decision, but elected instead to challenge the decision in Court. In such circumstances, the Court applies a de novo standard of review. Tetra Tech therefore must establish Defendant's liability independently, apart from the Contracting Officer's final decision. The concessions on damages from Defendant's Rule 30(b)(6) representatives may well be relevant in determining the amount owing to Tetra Tech at a later stage, but Tetra Tech must first prove that Defendant is liable for Tetra Tech's claim. Defendant does not agree that any liability exists, and Tetra Tech's motion for summary judgment does not establish Defendant's liability. Accordingly, Plaintiff's motion for summary judgment is DENIED. Trial is scheduled for January 14-18, 2008. The parties shall comply with the terms of the Court's July 27, 2007 Pretrial Order as they prepare for trial. IT IS SO ORDERED. s/Thomas C. Wheeler THOMAS C. WHEELER Judge

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