Free Response to Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:06-cv-00146-TCW

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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)

PLAINTIFF'S RESPONSE TO DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT Pursuant to RCFC 56(h)(2), Plaintiff Tetra Tech EC, Inc. ("Tetra Tech") hereby responds to Defendant's proposed findings of uncontroverted fact in response to Tetra Tech's motion for summary judgment. DPFUF No. 1: Contract No. DACA87-00-D-0039 ("Contract") was modified four times, which brought the total contract price to $3,074,731.29. Contracting officer's final decision dated November 30, 2005 (Ex. 1 to PPFUF) at p. 1. RESPONSE: Agree.

DPFUF No. 2: Tetra Tech's certified claim consisted of four parts: (1) $1,119,723.25 for clearance of UXO in excess of 21 UXO-like anomalies per acre; (2) $26,695.24 for increased level of effort by a senior geophysicist; (3) $26,695.24 for increased level of effort to investigate 37mm projectiles in Range 1; and (4) $15,308.88 for costs resulting from extreme weather delays. Contracting officer's final decision (Ex. 1 to PPFUF) at p. 2; certified claim dated

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September 6, 2005, which is Tab F to the final decision, and portions of which are attached to defendant's proposed findings. RESPONSE: Agree.

DPFUF No. 3: In her final decision, the contracting officer stated that the primary asserted basis of the claim was Tetra Tech's purported belief that the number of anomalies it was actually required to excavate was more than 400 percent above the number it had expected to excavate when the contract was awarded. Contracting officer's final decision (Ex. 1 to PPFUF) at p. 2 RESPONSE: Agree that this is a summary of an element of the Contracting Officer's final decision. Disagree with the Contracting Officer's characterization of Tetra Tech's claim, which was comprised on a number of factual and legal bases.

DPFUF No. 4: During the proposal phase, prospective bidders submitted numerous questions that were answered by the Corps. One of the questions was whether the contractor would be expected "to dig all potential UXO items" or only those with certain characteristics. The Corps responded: "All potential UXO items." Contracting officer's final decision (Ex. 1 to PPFUF) at p. 2. RESPONSE: Agree with Government's paraphrasing of an excerpt from the final decision; a more completed recitation of the question and the Government's response to Question 26 is contained in the Contracting Officer's final decision.

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DPFUF No. 5: During the proposal phase, a prospective bidder asked whether the Corps would provide an anomaly-per-acre assumption for the project. The Corps answered: "The Contractor should assume 20 UXO/OE items per acre." Contracting officer's final decision (Ex. 1 to PPFUF) at p. 3. RESPONSE: Disagree with Government's characterization of statements in Contracting Officer's final decision.

DPFUF No. 6: During the proposal phase, a prospective bidder asked if bidders should assume that 20 anomalies per acre would, upon excavation, be identified as UXO/OE1 and require disposal. The Corps answered, "Yes." Contracting officer's final decision (Ex. 1 to PPFUF) at p. 3. RESPONSE: Agree with Government's paraphrasing of an excerpt from the final decision; a more complete recitation of the question and the Government's response to Question 26 is contained in the Contracting Officer's final decision.

DPFUF No. 7: During the proposal phase, a prospective bidder asked: "What estimated number of anomalies per 100 foot square grid, or other unit area, should contractors use to estimate anomaly reacquisition and remediation efforts?" The Corps initially answered: "The Contractor should assume 200 anomalies per acre, and 20 UXO/OE items per acre." The Corps later supplemented this answer with a clarification: 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
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"OE" refers to ordnance and explosives. 3

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(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 [the Corps'] 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. Contracting officer's final decision (Ex. 1 to PPFUF) at p. 3.

RESPONSE: Agree that this is an accurate recitation of an excerpt from the Contracting Officer's final decision.

DPFUF No. 8: In her final decision, the contracting officer identified several problems with Tetra Tech's performance of the Contract. Those problems included the following:
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Tetra Tech's geophysicist apparently chose not to apply all of the applicable criteria (size, mass, and composition) to an anomaly before identifying the anomaly as one that required excavation. As a result, Tetra Tech excavated an excess number of false alarms or false positives.

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Although the contract and Tetra Tech's work plan required ongoing comparisons of actual and predicted results, Tetra Tech apparently waited until excavations were complete before it compared predicted results with actual results.

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Tetra Tech's decision to dig over 24,000 anomalies (102 anomalies per acre), without incorporating the required feed back process, was a corporate decision.

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"The fact that this resulted in an extremely large set of anomalies to dig was [Tetra Tech's] risk, not a differing site condition." Contracting officer's final decision (Ex. 1 to PPFUF) at pp. 5-7. RESPONSE: Agree that this is a summary of certain of the Contracting Officer's findings in the final decision. Disagree that the underlying factual allegations are true.

DPFUF No. 9: In her final decision, the contracting officer stated that, in response to Tetra Tech's request for an equitable adjustment, the "[G]overnment, in an effort to reach resolution, decided to allow some compensation . . . ." Contracting officer's final decision (Ex. 1 to PPFUF) at p. 9. RESPONSE: Agree that this is an accurate recitation of an excerpt from the Contracting Officer's final decision. Disagree this excerpt can be read without the omitted text and have relevance to the case or assist the Court in its decision. The Contracting Officer stated that she agreed to "allow some compensation" which was in part "for an increase overall for geophysical surveys and mapping; UXO clearance; and performing quality control". Contracting Officer's final decision (Ex. 1 to PPFUF) at p. 9.

DPFUF No. 10: In her final decision contracting officer stated that overall, Tetra Tech was entitled to an equitable adjustment of $341,482.23, broken down as follows: A. Clearance of UXO greater than 21 UXO-like anomalies per acre. Of the $1,119,723.25 claimed, I find that you are entitled to $309,045.23. B. Increased level of effort for senior geophysicist. Of the $26,695.24 claimed, I find that you are entitled to zero dollars. C. Increased level of effort for 37mm in Range 1. Of the $26,695.24 claimed, I find that you are entitled to $19,333.00.

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D. Lost days associated with extreme weather. Of the $15,308.88 claimed, I find that you are entitled to $13,104.00. Contracting officer's final decision (Ex. 1 to PPFUF) at p. 9. RESPONSE: Agree that this is an accurate quotation from the Contracting Officer's final decision. For purposes of Tetra Tech's motion for summary judgment with regard to Count VI of Plaintiff's Amended Complaint, also agree with the methodology used to derive the amounts owed to Tetra Tech. Disagree that the computation was performed correctly.

Respectfully submitted, TETRA TECH EC, INC.

Date: November 21, 2007

By:

__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.

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of November 2007, a copy of the foregoing PLAINTIFF'S RESPONSE TO DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT 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.

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