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

Case 1:06-cv-00146-TCW

Document 36-2 Filed 11/06/2007 Page 1 of 8 Peckar, Abramson, Bastianelli & Kelley, LLP
Attorneys & Counselors at Law

Two Lafayette Centre 1133 2~st Street, N.W. Suite 500 Washington, D.C. 20036 tel. 202.293.8815 fax 202.293.7994

VIA FEDERAL EXPRESS
~ew York

September 6, 2005
New Jersey San Francisco Los Angeles Miami Fert Lauderdale London

Lydia Tadesse, Contracting Officer U.S. Army Engineering and Support Center, Huntsville 4820 University Squm'e Huntsville, Alabama 35816
Re:

Certified Claim under Contract Disputes Act; Tetra Tech EC, Inc.; Contract DACA87-00-D-0039, Delivery Order 0006; Removal Action at Fort Meade,~aryland

www.govconlaw, com

Dear Ms. Tadesse: Tetra Tech EC, Inc. ("TtEC"), formerly Tetra Tech FW, Inc., .by counsel, hereby submits a certified claim pursuant to the Contract Disputes Act, 41 U.S.C. § 601, et seq., ("CDA"), Federal Acquisition Regulation ("FAR") 52.233-1, Aft. I, mad FAR 33.201, et seq., for $1,188,422.62 in additional costs and profit that TtEC incurred in performing the removal of unexploded ordinance ("UXO") and UXO-like anomalies under the above-referenced contract, plus interest as provided under 41 U.S.C. § 611.
o~" uln:,~ ~larnant~ "

The factual and legal

bases for TtEC's claim are set forth in TtEC's Requests for Equitable Adjustmem ("REAs") dated April 4, 2004 and September 17, 2004. The amounts claimed by TtEC in its REAs have been modified for the reasons stated in Exhibit 2, "Basis of Calculations Supporting Claimed Costs." Exhibits 3 through 6~ provide detailed summaries of UXO-like anomaly counts, labor hours, and claim calculations. Finally,

~ "Clemance of UXO Greater than 21 UXO-like Anomalies per Acre," "Increased Level of Effort for Senior Geophysicist," "Increased Level of Effort for 37 MM in Range 1," and "Lost Days Associated with Extreme Weather," respectively.

a member of the II [~]~1~ ~._~ Cons, r uction Law

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Peckar, Abramson, Bastianelli & Kelley, LLP
Attorneys & Counselors at Law Lydia Tadesse September 6, 2005 Page 2 of 3 Exhibit 7 is a Certification signed by a TtEC representative who is duly authorized to bind TtEC with respect to the claim. As set forth in TtEC's REAs, the number of anomalies that TtEC was actually required to excavate was over 400% greater than either party expected when they entered into this contract. In its proposal, TtEC explicitly stated in the section entitled "Technical Approach and Basis of Estimate" its expectation that "approximately 20 anomalies/acre will require intrusive investigation (excavation) at ali areas except Area 'G'." The U.S. Army Support Center, Huntsville ("USAESCH") directed all prospective bidders to "assume" for purposes of preparing their proposals that "there exists in the ground (below the surface) approximately 20 UXO or UXO-like items per acre." Under the contract, TtEC was required to submit a Work Plan that defined "the Contractor's proposed method of accomplishing the required work in accordance with the Basic Contract, this SOW [Statement of Work], and associated reference documents," ¶ 3.2. TtEC was expressly precluded from mobilizing or proceeding with the work unless and until its Work Plan was approved. ~rd Funther, the contract provided that, in "Perform[ing] UXO Clearance," TtEC was required to comply with its "approved WP [Work Plan]." ¶ 3.7. After contract award, the Work Plan submitted by TtEC, and -approved by USAESCH, stated that TtEC "assmned 20 anomalies/acre will require excavation." ~ 2.2.2.1. Additional corroboration of the parties' mutual intent is provided by Table 1 of the approved Explosives Safety Submission, which contained anomaly densities that were consistent with the 20 anomaly per acre scope of work. Therefore, the facts clearly establish that TtEC based its bid on the condition that it would be required to excavate approximately 20 anomalies per acre and that this condition was shared (in fact, directed) by the USAESCH. The additional excavations performed by TtEC constitute constructive changes in TtEC's scope of work under the Changes clause of the contract, FAR 52.243-1, Alt II, or, alternatively, are the consequences of USAESCH's breaches of the contract. In addition, the Govermnem is estopped from denying that the contract scope of work was for the excavation of approximately 20 anomalies per acre or, alternatively, the Goverm~nent waived its right, if any, to require TtEC to excavate at its own cost greater than 20 anomalies per acre. Aitemativeiy, the parties were mutually mistaken as to the actual scope of the excavation work that would be required. By letter dated August 22, 2005, the Contracting Officer addressed TtEC's REAs. While acknowledging that the unanticipated number of subsurface anomalies constituted a "changed condition," the Contracting Officer determined that TtEC was entitled to payment of only $341,482.23. The Contracting Officer further stated that the USAESCH would issue a change order in that amount. When this change order is issued and TtEC receives payment, then the total amount of its claim will be correspondingly reduced by $341,482.23.

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Peckar, Abramson, Bastianelli & Kelley, LLP
, A~orneys & Counselors at Law Lydia Tadesse September 6, 2005 Page 3 of 3 In light of the long pendency of TtEC's REAs and request for a final decision,2 TtEC respectfully requests that the Contracting Officer issue a final decision on or before September 27, 2005. Although the Government is normally allowed 60 days within which to render a final decision, the facts surrounding TtEC's claim have been known for many months and the Contracting Officer has already addressed the REAs in her letter of August 22, 2005. Under these circumstances, a final decision should be issued without further delay. Thm~k you for your consideration. Please contact me if you have any questions. Sincerely,

William W. Thom]~ Enclosure cc w/encl: Mr. Art Holcomb Jmnes Leonard, Esquire

Jr.

2 By letter dated October 22, 2004, TtEC requested a Contracting Officer's final decision on its REAs following unsuccessful discussions and negotiations between the parties.

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Contract DACA87-00-D-0039 :E)elivery Order 00006 Removal Action at Fort George G. Meade, Maryland

SUMMARY OF CLAIM ELEMENTS Summary AICLEARANCE OF U'XOGREATER THAN 21 UXO LIKE ANOMOLIES PER ACRE
FEE .........

Cost
$990,905.53

Fee

Total

$!..2.,8,817.72 $t,119,723.25 , $23,624.11
$26,695.24

TOTAL INCREASED LEVEL 0'J: EFFORT FOR SENIOR GEOPHYSICIST
FEE ......

TOTAL INCREASED LEVEL OF EFFORT FOR 3ZMM IN RANGE 1 FEE
TOTAL

$23,624.11
153,071.i3

$26,695.24

LOST DAYS ASSOCIATED WITH EXTREME WEATHER FEE TOTAL Grand Totals

$13,547.68
,,,

$1,761.20.

,,

$1,051,701.43 $136,721.19

$15,308.88 $1,188,422.62

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Contract DACA87-00-D-0039 Delivery Order 00006 Removal Action at Fort George G. Meade, Maryland
Basis of Calculations Supporting Claimed Costs Item A: Clearance of UXO Greater than 21 UXO Like Anomalies per Acre

The total cost of the clearance effort was based upon cost records extracted from the accounting system for project charge number 2417.0006.0701. The hours charged to the project were associated with contract labor billing rates for Option Year.One of the contract, modified for Ft. Meade, MD, when the effort was originally proposed. These rates are for firm fixed price work and exclude any fee or profit. The other direct costs were extracted directly from the accounting system for the same project charge number. The anomaly counts for UXO Like anomalies were adjusted to exclude surface finds and "No Finds" and "No Digs" identified by the ACOE. The resulting total subsurface UXO Like anomalies was divided by the total acres cleared (per ACOE) resulting in a per acre number of subsurface UXO Like anomalies. This number was compared to the anticipated 21 subsurface UXO Like anomalies originally anticipated. The total cost of the removal effort was divided by the resulting total subsurface UXO Like anomalies to arrive at a cost per removal. This method precludes the need for arbitrary assumptions regarding the variables of depth, anomaly type and the use of Engineering Controls by consistently applying the same mix of variables to both the anticipated 21 removals and the actual number of removals. The cost per removal was multiplied by increased number of subsurface UXO Like anomalies to arrive at the base clamed cost. This base claimed cost has been adjusted for the number of items identified as Quality Control Rework multiplied by the cost per removal. An additional adjustment to the claimed cost has been calculated for the perceived schedule impact of teclmical persomael working on another project also located at Ft. Meade. The hours expended by the identified technical persormel for both projects during the overiapping time fi-am~sllav~' - ~u~l~ ............... u,~,~,~,,,A~+~;"~ ~-1~,~,~,~ ~-ofol~ ~ ........... ~,~pnnf c~ml~a~'~u'a to removal schedule. The resulting schedule impact of 3.6 days was multiplied by the daily cost for the removal effort. This daily cost is based upon the total cost developed above divided by the total work days from the start of site work through the end of site work.
Item B: Increased Level of Effort for Senior Geopllysieist

The original estimate assumed one minute average time for analysis of each subsurface anomaly. No base line for the number of Non UXO Like anomalies is available. Tt~e

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ratio of actual UXO Like anomalies to Non UXO Like anomalies was applied to the anticipated 21 UXO Like anomalies to arrive at a baseline number of anomalies to analyze. This base line number was compared to the total actual anomalies and the resulting difference was divided by 60 to determine the additional time required by a Senior Geophysicist to make the analysis. The resulting time was multiplied by the Senior Geophysicist rate to an'ire at the claimed cost.

The use of the ratio of actual subsurface UXO Like anomalies to the actual subsurface Non UXO Like anomalies precludes the need for arbitrary assumptions regarding the variables of depth and anomaly type by consistently applying the same mix of variables to both the baseline number of anomalies to analyze and the actual number of anomalies analyzed.
Item C: Increased Level of Effort for 37~nm in Range 1

The cost for this effort was segregated in the accounting system under project charge number 2417.0006.0702. The hours charged to the project were associated with contract labor billing rates for Option Year One of the contract, modified for Ft. Meade, MD, when the effort was originally proposed. These rates are for firm fixed price work and exclude any fee or profit. The other direct costs were extracted directly from the accounting system for the same project charge number.
Item D: Lost Days Associated with Extreme Weather

The costs for these delays are based upon the durations of the extreme weather conditions and the costs specifically identified with the lost time, such as per diem and equipment rental.

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Contract DACA87-00-D-0039 Delivery Order 00006 Removal Action at Fort George G. Meade, Maryland CLEARANCE OF UXO GREATER THAN 2"1 UXO LIKE ANOMOLIES PER ACRE (ALL AREAS EXCEPT AREA G)

Total UXO-Like anomolies Surface anomolies Total subsurface UXO-Like anomolies Total "No finds" and "No digs" Total subsurface items cleared Total cost of clearance Cost per item Total Acreage Total subsurface items cleared Average items cleared per Acre Estimated items per Acre Average items cleared per Acre Increase per Acre Increase per Acre Total Acreage Total Increase in items Cost per item Total Increase in items Total Additional Cost Reduction for QC Rework Rework subsurface UXO-Like anomolies Cost per item Total QC Rework Reduction Reduction for Shared Staff Total cost of clearance Total Workdays on site Cost per site workday Schedule Impact in days Cost per site workday Cost Reduction for Shared Staff Total Claimed Additional Cost Total Additional Cost Total QC Rework Reduction Total Shared Staff Reduction Total Claimed Additional Cost
Fee Total for increased clearance per acre

18,657 2,576 16,081 1,722 14,359 $1,990,303.88 $1,990,303.88 14,359 14,359 53.2 53.2 32.2 32.2 $138.61 $138.6! * 8,697 8,697 = $1,205,491.17 270.1 270.1 = 8,697 14,359 270.1 270.1 21.0 21.0 32.2
53.2

$138.61

!,393

$138.61 $138.61 $1,990,303.88 $!,990,303.88 3.9 3.9 $1,205,491.17 $1,205,491.17 * /

1,393

$193,083.73

361 .'361

$5,513.31

$5,513.31 $5,513.31

$21,50t .91

$193,083.73 $21,501.91 $214,585.64

$990,905.53

13.0%

$128,817.72
$t ,119,723.25

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Contract DACA87-00-D-0039 Delivery Order 00006 ~'~.moval Action at Fort George G. Meade, Maryland

. ,,~IOMOLY ANALYSIS UXO Like Anomolies Only Total UXO Like Anomolies Less Surface Anomolies Subtotal UXO Like Anomolies Less "No finds", "No digs" Total Acres Anaomolies/Acre All Except Area G 18,657 2,576 16,081 1,722 14,359 270.1 53.16

Total With Area G 20,294 2,598 17,696 1,722 15,974 278.8 57.30