Free Reply to Response to Motion - 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)

PLAINTIFF'S REPLY TO GOVERNMENT'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

I.

INTRODUCTION Plaintiff Tetra Tech EC, Inc. ("Tetra Tech") has moved the Court to issue an Order

granting Tetra Tech summary judgment with regard to Count VI of Tetra Tech's Amended Complaint. Tetra Tech's motion stands on two pillars. First, the Contracting Officer found in her final decision that Tetra Tech was entitled to an equitable adjustment of $341,482.23 based upon a calculation that was fundamentally flawed. Second, the factual basis for the flaw was admitted by the Government's 30(b)(6) representatives, along with the manner in which the calculation should be corrected. The amount then owed to Tech Tetra is a simple mathematical exercise. The Government's opposition raises no disputed issues of material fact. To the contrary, the Government's opposition papers are devoid of a single "affidavit or other written or oral evidence." RCFC 56(h)(3). Tetra Tech cited voluminous deposition testimony and authenticated exhibits in support of its motion. The Government's opposition cites none, other

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than the Contracting Officer's decision. The Government's opposition thus rests on nothing more than "mere allegations or denials" which, under Rule 56(e), constitute grounds for granting a motion for summary judgment. Even if argument alone provided a sufficient basis for resisting summary judgment, the Government's arguments are meritless. The Government does not dispute that the Contracting Officer found that Tetra Tech was "overall" entitled to an "equitable adjustment" in the amount stated in the final decision or that the Government still believes that Tetra Tech is entitled to an equitable adjustment in that amount. Instead, the Government's position rests precariously on the tautological argument that, because the Contracting Officer's final decision does not conclusively establish liability, Tetra Tech has not established liability. Tetra Tech agrees that the Contracting Officer's findings are not, in and of themselves, conclusive. However, what distinguishes the present case from those that establish this legal principle is that the Contracting Officer's findings were not only reaffirmed by the Contracting Officer during her deposition but, more importantly, by the Government's Rule 30(b)(6) representatives. The courts have signaled that in litigating a contract claim the Government should be allowed to take a different tack from the Contracting Officer's final decision. However, once a claim is in litigation, the Government is bound by a Contracting Officer's final decision if, as here, the Government's 30(b)(6) representative adopts the final decision. The Government has admitted that it is bound by its witnesses' 30(b)(6) testimony, which in this case establishes the factual predicate for recalculating the amount owed to Tetra Tech. Accordingly, Tetra Tech is entitled to summary judgment in the amount of the corrected Government calculation, $1,337,512.82, plus interest pursuant to the Contract Disputes Act ("CDA"), 41 U.S.C. § 611.

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II.

ARGUMENT A. Legal Standard for Opposing Summary Judgment

RCFC 56(e) sets forth the legal standard a party must meet to oppose summary judgment: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. RCFC 56(h)(3) requires concrete evidence in opposing a motion for summary judgment: In determining any motion for summary judgment, the court will, absent persuasive reason to the contrary, deem the material facts claimed and adequately supported by the moving party to be established, except to the extent that such material facts are controverted by affidavit or other written or oral evidence. See also, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The Government's opposition argues that the non-movant is entitled to the benefit of all presumptions and inferences. Govt. Opp., p. 6. However, the non-moving party in a contract case is not excused from the clear requirements of RCFC 56(e) to produce evidence of "specific facts" that counter a motion for summary judgment. In other words, the nonmovant may be entitled to the benefit of inferences arising from disputed facts, but in this case, the Government's opposition raises no disputed facts. After the movant has presented evidence supporting its motion for summary judgment, "the burden then shifts to the nonmoving party to demonstrate that a genuine factual dispute exists[.]" Buesing v. United States, 42 Fed.Cl. 679, 693 (1999), citing Celotex

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Corp. v. Catrett, 477 U.S. 317, 325 (1986). Thus, "the non-movant may not rest upon general denials in its pleadings or otherwise, but must proffer countering evidence sufficient to create a genuine factual dispute." Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560, 1562 (Fed. Cir. 1985). Accordingly, "significant probative evidence" must be brought

forward by the non-movant. State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). A non-movant cannot rely upon mere assertions that are not supported by facts or by legal argument alone. Johnson v. Southwestern Bell Telephone Co., 819 F. Supp. 578 (E.D. Tex. 1993), aff'd, 22 F.3d 1094 (5th Cir. 1994). Conclusory statements are insufficient evidence, as well. Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 835-836 (1984) (citations omitted); see also, Crown Operations Int'l, Ltd. V. Solutia Inc., 289 F.3d 1367 (Fed Cir. 2002) (the non-movant must identify specific factual allegations to support its assertion that a genuine issue of material fact exists). Thus, if the non-movant fails to bring forth evidence in the form of affidavits, deposition testimony or pleadings, a properly supported summary judgment motion should be granted. RCFC 56(e). B. The Government's Opposition Raises No Disputed Issues of Material Fact

"Defendant's Response to Plaintiff's Proposed Findings of Uncontroverted Fact" does not dispute the essential elements of Tetra Tech's proposed factual findings. In most cases, the Government either agrees with Tetra Tech's recitation of the facts or states that the documents or deposition testimony cited by Tetra Tech are admitted to the extent reflected in the documents themselves or the deposition transcripts. In many cases, the Government simply

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states, without explanation or reference to record evidence, that it "otherwise disagrees."1 See Govt. Response to PPFUF Nos. 11-21, pp. 7-12. However, unsupported allegations are insufficient as a matter of law to raise disputed issues of fact under RCFC 56. Similarly, "Defendant's Proposed Findings of Uncontroverted Fact" are simply selected quotes from, and characterizations of the Contracting Officer's final decision. Again, no disputed issues of material fact are raised that are relevant to Tetra Tech's motion for summary judgment. Most significantly, the Government offers no evidence showing that the Contracting Officer did not, in fact, miscalculate the amount owed to Tetra Tech, or that Tetra Tech has not properly corrected the Contracting Officer's calculation, as set forth in its motion.

The Government's Response to PPFUF No. 10 makes the curious statement that its 30(b)(6) witnesses, Messrs. Slater and Adams, did not testify as to the acreage associated with Modification 03 because the "scope of Modification 03" was not covered by Tetra Tech's 30(b)(6) notice. The Government's argument is spurious. Tetra Tech's 30(b)(6) notice on January 22, 2007 explicitly covered Government estimates or projections relating to the task order at issue "and any amendment or modifications thereto." (Motion, Ex. 5, Exhibit A, ¶ 1 thereto). Further, among the subjects listed in the 30(b)(6) notice was the factual basis for a Government spreadsheet that was Attachment 1 to the notice. Id. at ¶ 3. That spreadsheet showed how the Government calculated the amount owed to Tetra Tech. On its face, the spreadsheet shows that a fundamental assumption underlying the Government's calculation was: "JUL 2004: Non-G Areas: Mod 3: fund anomalies/AC and 3 UXO/UXO-like investigations/AC." (Motion, Ex. 5, Exhibit A, ¶ 3 and Attachment 1 thereto). Tetra Tech's 30(b)(6) notice specifically covered the "'JUL 2004,' numerical values, acreages and dollar values" on the spreadsheet. Id. Thus, the 30(b)(6) notice clearly encompassed the acreage associated with Modification 03. Further, Messrs. Slater and Adams were designated by Government counsel to testify about the spreadsheet, both witnesses acknowledged that they were testifying as the Government's 30(b)(6) representatives for this subject, and both proceeded to testify at length about the scope of Modification 03 without objection by Government counsel. Thus, any objection as to the scope of the 30(b)(6) depositions of these two witnesses ­ even if otherwise meritorious ­ has been waived. Finally, the Government failed to object to Tetra Tech's other proposed factual findings relating to the 30(b)6) testimony of witnesses Slater and Adams about the 82 acres covered by Modification 03 and its importance to the calculation of Tetra Tech's equitable adjustment. See Govt. Response to PPFUF Nos. 18, 19, 21. Again, any objection by the Government to PPFUF No. 10 has been waived. 5

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The Government's opposition papers attempt to raise backdoor factual disputes through unsupported statements that it "disagrees with" or "objects to" Tetra Tech's statements of fact. Tetra Tech's proposed undisputed facts were all supported by deposition testimony or authenticated documentary exhibits. By contrast, the Government has, quite simply, offered no evidence whatsoever of specific facts in opposition to Tetra Tech's motion. Thus, in contravention of RCFC 56(e), the Government's opposition is based on nothing more than "mere allegations or denials of the adverse party's pleading." In the complete absence of any countering evidence, the Court should "deem the material facts claimed and adequately supported by the moving party to be established" and grant summary judgment. RCFC 56(h)(3). 1. The Contracting Officer's findings do not raise disputed factual issues for purposes of Tetra Tech's motion

The only "facts" set forth in the Government's opposition memorandum and Proposed Findings of Undisputed Fact are the Contracting Officer's characterization of the facts in her final decision. In every case, the source of the "facts" alleged by the Government in its opposition papers is the Contracting Officer's final decision; no factual allegations are made beyond the four corners of the final decision. The Government apparently hopes to create the impression that the Contracting Officer's findings raise disputed factual issues that can only be resolved at trial. In particular, the Government mischaracterizes Tetra Tech's position regarding the adverse findings of the Contracting Officer by suggesting that Tetra Tech had argued "the contracting officer's findings that were adverse to Tetra Tech should be given no consideration whatsoever." (Govt. Opp., p. 12).

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To the contrary, precisely because the Contracting Officer made adverse findings against Tetra Tech, yet still found Tetra Tech entitled to an equitable adjustment calculated according to the methodology adopted by the Contracting Officer and then by the Government's 30(b)(6) witnesses, Tetra Tech is entitled to summary judgment. Instead of undermining Tetra Tech's motion, Tetra Tech's motion embraces the fact that the Contracting Officer made findings that Tetra Tech's performance was unsatisfactory in some respects. (PPFUF No. 7, Tetra Tech Memo, pp. 13-14).2 The relevant point is that the Contracting Officer took these adverse findings into account, but determined that "overall TtEC was entitled to an equitable adjustment of $341,482.23." (Tetra Tech Memo, p. 14; Ex. 1; emphasis added). Tetra Tech's alleged performance failures were thus an integral part of the equitable adjustment calculus in the final decision. (Tetra Tech Memo, p. 13, note 8). Stated differently, Tetra Tech was found to be entitled to an equitable adjustment applying the Contracting Officer's methodology, despite the alleged performance failures. The Government admits that the Contracting Officer took into account all of the adverse findings set forth in the final decision. In its response to Tetra Tech's proposed factual finding No. 11, the Government admitted that its spreadsheet (Ex. 5, Depo. Ex. 26, Att. 1) shows the Government's methodology for calculating the equitable adjustment, but added the following qualification: "The contracting officer's decision was not based solely upon the referenced spreadsheets, but rather was based upon all of the information and factors identified in her final decision." (Govt. Response to PPFUF No. 11, p. 7; emphasis added).

2

These are exactly the same alleged performance failures that the Government cites in its opposition papers. Govt. Opp., pp. 4-5. 7

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Therefore, far from raising disputed factual issues, the Contracting Officer's adverse findings support Tetra Tech's motion for summary judgment. For purposes of Tetra Tech's motion, there are no disputed factual issues. The only issue is whether the Government's miscalculation should be corrected, as its witnesses concede that it should be. 2. The facts regarding Modification 03 are undisputed

The error in the Government's calculation of the equitable adjustment for Tetra Tech was the Government's failure to properly account for the acreage associated with Modification 03. Modification 03 increased the expected number of UXOs per acre from 2 to 3 UXOs. (Ex. 3; Depo. Ex. 33). Because the Government's weighted average methodology is based upon the number of expected UXOs versus actual UXOs per acre, this numerical value and the acreage to which it is applied have a dramatic impact on the resulting calculation of the compensable overrun. The spreadsheet that calculates the amount owed to Tetra Tech shows that it is based on 3 UXOs per acre and that the Government mistakenly based its calculation on an assumption that Modification 03 applied to the entire non-G Area acreage (i.e., 270 acres, according to the Government's calculation), instead of the 82 acres actually covered by Modification 03. (Ex. 5; Depo. Ex. 26, Att. 1; Slater Tr. 54-55, 70-71). In "Defendant's Response to Plaintiff's Proposed Findings of Uncontroverted Fact," the Government disagrees with Tetra Tech's allegation that Modification 03 applied to only 82 acres, but admits the truth of the documents and testimony that establish this fact. See Govt. Response to PPFUF Nos. 16-19, 21. The evidence establishing that Modification 03 covered only 82 acres is overwhelming and undisputed. To summarize:

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The scope of Modification 03 was explicitly set forth in Tetra Tech's proposal for Modification 03: "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 (opposed to the original 2 UXO items per acre)." (Ex. 3; Depo. Ex. 33; Slater Tr. 72-73). The total acreage covered by Modification was "82 acres" and Tetra Tech's proposal specifically covered "the 82 acres requiring the revised increased dig depth." Id. The scope of Modification 03 was also explicitly recognized by the Government in its "Prenegotiation Objectives and Cost/Price Analysis," as follows: "The contractor's proposal included 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. ... 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 (opposed to the original 2 UXO items per acre)." (Ex. 4; Slater Depo. Ex. 34, Slater Tr. 70, 72-77; emphasis added). Finally, the scope of Modification 03 was acknowledged by the Government's 30(b)(6) representative. (Id., Slater Tr. 27-29, 75-80). He testified: Q: Okay. So based on review of these documents, does it appear that Mod 3 only applied to 82 acres? Yes.

A.

(Slater Tr. 80). Another 30(b)(6) Government witness, a Government Cost Engineer, provided the same testimony, and performed a mathematical calculation that confirmed the 82 acres (81.95 acres per his own calculation). (Motion Ex, 7, Depo. Ex. 54, at the eighth page; Adams Tr. 36-38)

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The Government acknowledged the correct acreage factor and how it could be correctly applied through the testimony of its 30(b)(6) deponent, Project Manager Brendan Slater. (Slater Tr. 70-75, 80-83). He testified: 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? ... Of course, yes.

A:

(Slater Tr. 71-72). He further testified that the factor of three anomalies per acre should be applied only to the 82 acres covered by Modification 03 "and then there would be an additional calculation for increase for everything outside the 82 acres." Id., at 81-82. C. Liability Has Been Established through Rule 30(b)(6) Testimony and Other Admissions

The Government does not argue in its opposition memorandum that there are disputed issues of material fact. Instead, the Government devotes its entire opposition argument to the proposition that Tetra Tech has not established liability because the Contracting Officer's final decision is a meaningless nullity. (Govt. Opp., pp. 5-13). For support, the Government cites a line of cases holding that the Contracting Officer's final decision does not, in and of itself, conclusively bind the Government. Id. Tetra Tech conceded this point in its supporting memorandum. (Tetra Tech Memo, p. 12). By focusing on this non-issue, the Government completely misses the core of Tetra Tech's argument: liability is established here, not simply because of the Contracting Officer's findings in her final decision, but because those findings were reconfirmed by the Contracting Officer during her deposition and were adopted by the Government's 30(b)(6) witnesses and even by the Government's opposition papers.

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The policy underlying the rule that a final decision lacks conclusiveness is based upon the not unreasonable proposition that the Government should be free to take a different position when new facts are discovered during litigation. This does not mean, however, that a final decision is not conclusive if it is otherwise binding on the Government as a result of positions taken by the Government in a litigation. In other words, binding litigation positions do not become non-binding simply because they happened to have been the subject of a Contracting Officer's decision. This distinction is implicitly recognized in a case cited by both the Government and Tetra Tech, England v. Sherman R. Smoot Corp., 388 F.3d 844 (Fed. Cir. 2004). In England, the court ruled that after an appeal from a Contracting Officer's final decision, the action proceeds "de novo in accordance with the rules of the appropriate court." (citing Wilner v. United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994) (en banc); emphasis added). Those rules, of course, include RCFC 30(b)(6). England has since been construed as meaning that "once an action is brought following a CO decision, the parties start in court or before the board with a clean slate." The Rice Company, AGBCA No. 2003-188-1, 05-2 BCA ¶ 32,995, 2005 WL 1423637, p. 17 (June 13, 2005). The Government thus began with a clean slate at the start of this litigation. Tetra Tech then conducted fact witness and 30(b)(6) depositions aimed at discovering, among other things, the factual basis for the Contracting Officer's calculation of the equitable adjustment to which Tetra Tech is entitled and to also determine whether the Government has since then adopted a different position or methodology. The fact deposition of the Contracting Officer established her belief that the methodology employed by the Government to calculate Tetra Tech's equitable adjustment in the final decision (a sophisticated weighted average based on

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actual UXOs excavated in particular areas on the site) was still correct. She testified: "I do agree with what you see here [in the Final Decision]." (Tadesse Tr. 41).3 This methodology was specifically adopted by the Government's 30(b)(6) witness when questioned about deposition Exhibit 26, Attachment 1 (Ex. 5; Depo. Ex. 26), the Government spreadsheet that shows exactly how the equitable adjustment was calculated. The Government's 30(b)(6) witness testified: 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 [Motion Ex. 5, Depo. Ex. 26] represents where we are today? Yes.

A:

Q:

A:

(Slater Tr. 21-22; attached hereto as Ex. 10). The Government has even adopted the Contracting Officer's methodology in its opposition to Tetra Tech's motion for summary judgment. The Government repeatedly argues that it never agreed that Tetra Tech is entitled to an equitable adjustment for more than the amount reflected in the Contracting Officer's final decision, but does not deny that Tetra Tech should be paid in accordance with the Contracting Officer's findings and calculation of the amount owed. The Government's opposition papers state:

The Contracting Officer was still of this opinion even though Tetra Tech had demonstrated through its earlier 30(b)(6) depositions and its earlier settlement proposal that the amount of the equitable adjustment in the final decision was based upon a miscalculation. Tetra Tech Memo, p. 14. In other words, the Contracting Officer stood by the validity of the methodology used to calculate the equitable adjustment, even though a factual error as to the acreage associated with Modification 03 resulted in a miscalculation of the amount owed. 12

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"No Government witness has testified that Tetra Tech is entitled to be paid more than the amount proposed in the contracting officer's final decision." (Govt. Opp., p. 12). "Neither Ms. Tadesse, nor Mr. Slater, nor Mr. Adams testified or opined that the Government is in any way obligated to pay Tetra Tech an amount larger than the amount proposed in the contracting officer's final decision." (Id., p. 13). "No Government witness has testified that Tetra Tech that Tetra Tech [sic] is owed or is entitled to an amount in excess of $341,482.23." (Defendant's Response to PPFUF No. 22, at p. 13). The Contracting Officer has not only found that Tetra Tech is entitled to an equitable adjustment ­ which necessarily entails a finding of liability ­ but has adopted a particular methodology for calculating the amount owed to Tetra Tech after taking account of Tetra Tech's alleged performance failures. Then, that same methodology has been adopted by the Government through the testimony of its 30(b)(6) witnesses.4 The only thing that remains in this case is the correction of the Government's miscalculation. The factual basis for that correction is established by undisputed facts, and the recalculation is a simple mathematical calculation.5

Significantly, the Government does not argue that the methodology for its equitable adjustment calculation is in any way flawed. To the contrary, the Government's opposition adopts and reaffirms the methodology. The Government objects only to correcting the application of the methodology, even though the source of the miscalculation is crystal clear (the failure to correctly apply the Modification 03 acreage). A trial is not needed to apply the Government's own methodology correctly; this can be accomplished with a calculator. The Government mistakenly argues that the recalculation is a "conclusion of law." Govt. Response to PPFUF Nos. 19 and 21. The steps necessary to perform the recalculation have been established by the Government's 30(b)(6) witnesses. (Tetra Tech Memo, Proposed Findings of Fact Nos. 18-22, pp. 9-12). With or without that testimony, the actual calculation 13
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D.

The Government Should Not Be Permitted to Circumvent its Own 30(b)(6) Testimony

The Government has acknowledged to the Court that it is bound by the testimony of its 30(b)(6) representatives generally, and specifically with respect to the database that formed the basis for the Government's analysis of the Government's liability. (Motion, Ex. 9, July 27, 2007 Telephonic Conference, Tr. 5-7). This is the same database that provided the source data for the Government's calculation of the equitable adjustment owed to Tetra Tech. Government counsel stated at a telephonic conference: "I mean, the government is obviously bound by 30(b)(6) testimony, and any testimony at trial to the contrary in general would have to be excluded." Id., p. 6. The Government's opposition offers no evidence to suggest that the methodology for calculating the equitable adjustment should be anything other than the original methodology used by the Contracting Officer and later reaffirmed by the Government's 30(b)(6) witnesses. To the contrary, the Government's opposition endorsed that methodology. Similarly, the Government has offered no evidence that the Contracting Officer failed to consider any other alleged performance failures by Tetra Tech, beyond those listed in the final decision.6 Finally, as the Government's 30(b)(6) witnesses recognized and as undisputed facts clearly show, the Government applied its methodology with an erroneous acreage factor that is easily corrected. Under the circumstances, what evidence does the Government intend to offer at trial? Does the Government intend to discredit the methodology it has consistently employed and endorsed, or offer undisclosed alleged performance failures? The Government is bound by its

can be performed by anyone with access to a calculator and the Government's spreadsheet. The resulting amount is obviously not a legal conclusion.
6

The Government conducted no document discovery, and cited no deposition testimony in its opposition other than transcript references taken from Tetra Tech's motion papers. 14

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30(b)(6) testimony and by the positions it has taken in its pleadings and in its statements to the Court. This case should not go trial; it should be resolved by summary judgment. III. CONCLUSION For the foregoing reasons and the reasons stated in Tetra Tech's motion papers, Tetra Tech respectfully requests that the Court enter an Order granting its motion for summary judgment. 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.

Exhibit 10 (Attached)

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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 REPLY TO GOVERNMENT'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT, including Exhibit 10, 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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