Free Memorandum - 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 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

I.

INTRODUCTION Pursuant to Rule 56 of the Rules of the United States Court of Federal Claims, 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. The bases for Tetra Tech's motion are that there are no genuine issues as to any material fact, and Tetra Tech is entitled to judgment as a matter of law. The factual and legal grounds for Tetra Tech's motion are simple and clear. The Contracting Officer found in her final decision that Tetra Tech was entitled to an equitable adjustment of $341,482.23 for additional costs that Tetra Tech incurred in excavating more unexploded ordnance ("UXOs") and UXO-like items than Tetra Tech expected or its contract with the Government required.1 The methodology adopted by the Contracting Officer in

1

As discussed below, this is a net amount that is comprised of a compensable cost overrun of $576,154.05 for additional excavation costs, an additional $13,104.00 for weather impacts to which the parties had previously agreed, and a credit of $247,775.82 to the Government for an alleged reduction in the acreage that was actually excavated by Tetra Tech. (Ex. 1 hereto). 1

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calculating the amount of the equitable adjustment was developed by a Government team after analyzing more than 24,000 excavations by Tetra Tech. The Government's 30(b)(6) representatives supported this methodology, but admitted that the calculation was based upon a fundamental flaw. Correction of that flaw is a simple mathematical exercise, the specific details of which were acknowledged by the Government's Rule 30(b)(6) representatives. The Government has conceded it is bound by the testimony of its 30(b)(6) deponents. 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.

II.

STATEMENT OF UNDISPUTED FACTS 1. On September 27, 2001, the United States Army Engineering & Support Center, Huntsville, Alabama (the "Government") awarded Foster Wheeler Environmental Corporation ("FwEC"), predecessor in interest to Tetra Tech, Task Order 0006 under Contract No. DACA87-00-D-0039, for Non-Time Critical Ordnance and Explosives Removal Action at Fort George G. Meade, Maryland ("the Task Order"). (Amended Complaint and Answer, ¶ 1). The work included the removal of UXOs and UXO-like items from approximately 300 acres of land at Fort Meade, Maryland. (Ex. 1; Depo. Ex. 29 hereto).2 The Task Order included unit prices for different elements of work that originally totaled $2,777,814.20. Id. The amount of the Task Order was increased

2

Except for Exhibit 8 hereto, all exhibits to this Memorandum were exhibits in depositions conducted by Tetra Tech. For example, the narrative portion of the Contracting Officer's Final Decision was designated as "Plaintiff's Exhibit 29" in the depositions and is "Exhibit 1" to this Memorandum. Exhibits hereto are identified by their sequential exhibit numbers ("Ex. __") based on the order that they first appear in this Memorandum and also by their corresponding deposition exhibit numbers ("Depo. Ex. ___"). 2

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to a total of $3,051,138.10 by Modification 03 dated January 30, 2003. (Ex. 2; Depo. Ex. 30; Complaint and Answer, ¶ 1). 2. On September 7, 2005, Tetra Tech served upon the Contracting Officer a properly certified claim under the CDA, 41 U.S.C. §§ 601, et seq. ("CDA"), in the amount of $1,188,422.62, plus interest, for additional costs and profit that Tetra Tech incurred in performing the excavation and removal of UXOs and UXO-like anomalies under the Task Order (the "Claim"). (Complaint and Answer, ¶ 4). 3. By letter dated November 30, 2005, the Contracting Officer issued a final decision (the "Final Decision") on Tetra Tech's Claim, finding that Tetra Tech is entitled to recover a total of $341,482.23 for the following: (a) $309,045.23 for the clearance of greater than 21 UXO-like anomalies per acre; (b) $19,333.00 for the increased level of effort by Tetra Tech in clearing 37 millimeter UXOs in Range 1; and (c) $13,104.00 for lost days associated with extreme weather. (Ex. 1; Depo. Ex. 29, at p. 9; Complaint and Answer, ¶ 5). 4. In her Final Decision, the Contracting Officer stated that her determination of the amount to which Tetra Tech is entitled was based upon the results of an analysis of 24,674 anomalies by a "government team." (Ex. 1; Depo. Ex. 29, at p. 7). The Government team found that 1,422 of the anomalies excavated by Tetra Tech met the discrimination criteria that the Government believed should be applied. Id. This analysis was the end result of an exchange of data and information with Tetra Tech for a year. Id., p. 9. In the words of the Contracting Officer, "The Government found that overall TtEC was entitled to an equitable adjustment of $341,482.23." Id. This finding was adopted by the Contracting Officer ("This is the final decision of the Contracting

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Officer ..."). Id. One of the Government's 30(b)(6) witnesses confirmed that the amount set forth in the Final Decision matched the estimate of the Government team. (Slater, Tr. 15-16; Addendum, Section I).3 5. In its response to Paragraph 28 of the Amended Complaint, the Government confirmed that it: "Admits that the contracting officer intended for the equitable adjustment to be consistent with the contract and modifications; ..." (Answer to Amended Complaint, ¶ 28). 6. The Contracting Officer reached her conclusion as to the amount of Tetra Tech's entitlement to an equitable adjustment despite the Contracting Officer's detailed findings that Tetra Tech's performance had been unsatisfactory in some respects. For example: a. "TtEC assumed the risk of increased cost by not complying with the contract terms." (Ex. 1; Depo. Ex. 29, at p. 6). b. Tetra Tech performed an "inordinate number of anomaly picks" because of its application of incomplete discrimination criteria. Id. c. "The decision TtEC made to dig over 24,000 anomalies (102 anomalies per acre), without incorporating the required feed back process, was a corporate decision." Id. d. "It also appears that this [cost overrun] was a result of TtEC's failure to follow its own quality control plan regarding discrimination of geophysical data." Id.
3

Tetra Tech has provided as an Addendum to this Memorandum copies of the original transcript pages, as referenced herein. Specifically:: Addendum: Section I: Section II: Section III: Deposition Transcript of Brendan Slater Deposition Transcript of Lydia B. Tadesse Deposition Transcript of Jason Adams 4

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7. The Contracting Officer confirmed in her deposition that she had a clear understanding of the basis for her Final Decision, that she was "comfortable" with the information provided to her by the Government team, and that she was "very satisfied" with the way that the Government team had differentiated UXOs and UXOlike items in its analysis. (Tadesse Tr. 57-59). She explained that the team was comprised of the agency's geophysicist, technical manager, legal advisor, cost engineer, contract specialist, herself and possibly others. Id., at 42. She further testified that her Final Decision was based upon "sound business judgment," id., at 40-41, and that "I do agree with what you see here [in the Final Decision]," id., at 41. 8. Modification 03 to the Task Order provided additional funding for an increase in the number of anomalies to be excavated. (Ex. 2; Depo. Ex. 30). 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 per acre (opposed to the original 2 UXO items per acre)." (Ex. 3; Depo. Ex. 33, at second page; Slater Tr. 72 ­ 74). 9. The total acreage covered by Modification was 82 acres, as set forth in Tetra Tech's proposal for Modification 03, which specifically stated that it covered "the 82 acres requiring the revised increased dig depth." (Ex. 3; Depo. Ex. 33). 10. The scope of Modification 03 was explicitly recognized by the Government in its "Prenegotiation Objectives and Cost/Price Analysis," as follows: "The Contractor's Proposal includes 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." (Ex. 4;

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Depo. Ex. 34, at pp. 2-3, ¶¶ e. and h.; Slater Tr. 75-79; emphasis added). Further, the scope of Modification 03 was acknowledged by the Government's 30(b)(6) representative. (Slater Tr. 27-29, referring to Ex. 5; Dep. Ex 26, Att. 1); (Slater Tr. 7580, referring to Exs. 4 and 6; Depo. Exs. 34 and 35). He testified: Q: Okay. So based on review of these documents, does it appear that Mod

3 only applied to 82 acres? A. Yes.

(Slater Tr. 80, referring to Exs. 2, 4 and 6; Depo. Exs. 30, 34 and 35). Another 30(b)(6) Government witness provided the same testimony. (Adams Tr. 33-38, referring to Ex. 7 (Table); Depo. Ex. 54).4 Thus, Modification 03 was applicable to only a fraction of the 306 acres covered by the Task Order. 11. In a supplemental document production by the Government, Tetra Tech obtained two spreadsheets that show the calculations the Government team performed in reaching its determination of the number of anomalies to which the correct discrimination criteria were applied and the resulting amount to which Tetra Tech was entitled as an equitable adjustment. (Ex. 5 hereto; Slater Depo. Ex. 26, Att. 1, Slater Tr. 6-7, 27-34). These spreadsheets thus show exactly how the Government team and the Contracting Officer derived the equitable adjustment to which Tetra Tech was found to be entitled. 12. The spreadsheets demonstrate that the equitable adjustment amount of $341,378.23 was the weighted average of the UXO and UXO-like items that were anticipated in

The handwritten notation on the second page of "Table 1" is that of the Government's 30(b)(6) witness, who was also a Government Cost Engineer. (Adams Tr. 38; Ex. 6; Depo. Ex. 54). 6

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Area G and in non-G Areas. A legend to the spreadsheet explains that the Government's calculation was based upon: "Non-G Areas: Mod 3: funds 25 anomalies/AC and 3 UXO/UXO-like investigations/AC." (Ex. 5; Depo. Ex. 26, Att. 1; Slater Tr. 22-34). Thus, as the spreadsheet shows and the Government's 30(b)(6) representative testified, the calculation of the impact in the non-G Areas was based upon the anomalies and UXO items as provided for in Modification 03. Id. For Area G, the Government's analysis was based upon "20 UXO/UXO-like items/AC." Id. 13. The Government's analysis alleged that Tetra Tech had actually completed UXO removal in 278.57 acres, as compared with the 306.45 acres covered by the Task Order. (Exhibit 5; Depo. Ex. 26, Att. 1; Slater Tr. 50-51, 70-74). According to the Government, of the total acreage completed, 270.1 acres were in non-G Areas and 8.47 acres were in Area G. From this, the Government calculated that it was entitled to a credit for "Decrease due to Acreage" of 9.1%, or a total credit of $247,775.82. (Ex. 5; Depo. Ex. 26, Att. 1; Slater Tr. 50-52, 61-62). 14. On the plus side, the Government's analysis showed that Tetra Tech was entitled to an "Increase due to Items" calculated as follows. Based upon its analysis purporting to show that Tetra Tech excavated 1,422 UXO and UXO-like items5 and the actual acreage completed by Tetra Tech, the Government calculated that in the non-G Areas Tetra Tech had excavated 3.6 UXO and UXO-like items per acre (270.1 ÷ 974 = 3.6). (Ex. 5; Depo. Ex. 26, Att. 1; Slater Tr. 41-45, 70-71). This translated into an increase

For the limited purpose of this motion, Tetra Tech accepts the Government's determination of the number of UXOs and UXO-like items for which Tetra Tech should be reimbursed. The actual number is substantially higher. If the corrected estimating methodology is applied to the correct number of items, Tetra Tech's recovery would be much higher than the amount that Tetra Tech would recover under the present motion. 7

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of 20.2% over the factor of three items per acre that the Government applied because of Modification 03 (3 ÷ 3.6). (Ex. 5; Depo. Ex. 26, Att. 1; Slater Tr. 44-50). This 20.2% was then applied to the entire non-G Areas, not just the 82 acres that were subject to Modification 03. (Ex. 5; Depo. Ex. 26, Att. 1; Slater Tr. 54-55, 70-71). 15. For Area G, the Government calculated an increase of 164.34% over the contract's 20 items per acre, as applied to the 8.47 acres in Area G. (Ex. 5; Depo. Ex. 26, Att. 1; Slater Tr. 46-50, 54-55). 16. When these percentages are then applied to the non-G Areas (270.1 acres in the Government's calculation) and Area G (8.47 acres), the result is entitlement to a compensable contract price increase of $576,154.05 and a net equitable adjustment $341,482.23, after deducting the credit the Government exacted for the alleged decrease in acreage and adding the amount for adverse weather to which the parties had previously agreed. (Ex. 5; Depo. Ex. 26, Att. 1; Slater Tr. 63-66). 17. The Government misinterpreted the scope of Modification 03 in the analysis that formed the basis for the Final Decision. The Government improperly applied the

three UXO/UXO-like items per acre under Mod. 03 to all non-Area G acreage, when Mod. 03 actually applied to only 82 acres. The Government admitted this error 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? ... A: Of course, yes.

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(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. 18. The Government's 30(b)(6) representative testified that a re-calculation could be performed by reworking the calculation to accurately account for Modification 03. This would entail breaking out Modification 03's 82 acres from the 270 acres in nonG Areas, applying three anomalies per acre to that acreage, and then applying two items per acre to the balance of the acreage. (Slater Tr. 86-87). 19. Another Government 30(b)(6) deponent, Mr. Jason Adams, further clarified that the 82 acres to which Mod. 03 applied should be broken down as 59.65 acres to be applied to non-Area G and 22.3 acres to be applied to Area G. (Ex. 7, Depo. Ex. 54; Adams Tr. 37-38). 6 This means that the actual scope of Mod 3 was 59.65 non-G Area acres and 22.3 Area G acres, and results in a net 210.45 acres for non-G Areas (270.1 ­ 59.65 = 210.45). Id. Accordingly, the 20.2% weighted factor based on three UXO/UXO-like items per acre average under Mod. 03 should apply to only 59.65 acres for non-G Area acreage. Id. 20. As a further adjustment to the Government's formula, the UXO and UXO-like items per acre for the 8.47 Area G acres may be increased from 20 to 30 items per acre. The 20 to 30 items increase is consistent with going from two to three UXO/UXO-like items per acre under Modification 03 for non-Area G acreage. This reduces the

6

The handwritten notation on the second page of "Table 1" is that of the witness. (Adams Tr. 38; Ex. 6; Depo. Ex 54). 9

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percentage used for the Area G weighted calculation from 164.37% to 76.33%, and results in a substantial benefit to the Government.7 21. The Government has agreed through its 30(b)(6) representatives that its calculation should be corrected as follows: a. The 20.2% weighted percentage calculation, corresponding to the three UXO/UXO-like items per acre under Mod. 03, should apply to only the 82 acres covered by Modification 3. (Slater Tr. 85-87). b. An 80% weighted factor should be applied to the 210.45 non-Area G acres that are not subject to Modification 03. Id. c. The 82 acres to which Modification 03 applied should be allocated as 59.65 acres to non-Area G and 22.3 to Area G. (Adams Tr. 37-38). 22. Thus, the weighted average would change as follows: Original Government Formula: 20.2(270.1/278.57) + 164.34(8.47/278.57) = 24.58% (Ex. 5; Dep. Ex. 26, Att. 1). Revised Formula: 80(210.45/278.57) + 20.2(59.65/278.57) + 76.33(8.47/278.57) = 67.08% (Ex. 8 ). When the corrected formula is then applied to the Tasks affected by the overrun (Tasks 4, 6, 7 and 9), the amount of the compensable increase is $1,572,184.64. Id. After deducting the Government acreage credit ($247,775.82) and adding the amount of the previously

7

This adjustment is offered for the limited purpose of presenting in this motion a revised calculation that is completely consistent with the testimony of the Government's 30(b)(6) witnesses and the documentary record. 10

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agreed weather impact ($13,104.00), the net amount owed to Tetra Tech as an equitable adjustment is $1,337,512.82, plus CDA interest. Id.

III.

ARGUMENT A. Legal Standard for Summary Judgment

Under RCFC 56, the moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." RCFC 56(c). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted."). The existence of "some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]" Id. Therefore, to avoid summary judgment, the nonmoving party must put forth evidence sufficient for a reasonable factfinder to return a verdict for that party. Id., at 248-50. The initial burden to establish the absence of disputed genuine issues of material fact belongs to the movant. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, there is "no express or implied obligation in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id., at 323. The movant's initial burden is discharged if the movant can demonstrate "an absence of evidence to support the nonmoving party's case." Buesing v.

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United States, 42 Fed.Cl. 679, 693 (1999), citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548. "[T]he burden then shifts to the nonmoving party to demonstrate that a genuine factual dispute exists[.]" Id. (citations omitted). B. The Government Is Bound by its Rule 30(b)(6) Witnesses

Tetra Tech's motion seeks nothing more than exactly the same equitable adjustment that the Contracting Officer determined was owed to Tetra Tech in the Final Decision, as corrected for admitted errors in the calculation of the amount owed. See Travelers Casualty and Surety of America v. United States, 74 Fed. Cl. 75, 103 (2006) (Contractor permitted to increase damages claimed because contractor was "merely correcting computational errors and not altering the nature of the claims.") The findings in a Contracting Officer's final decision are not, in and of themselves, entitled to a presumption that they are correct or binding on the parties. England v. Sherman R. Smoot Corp., 388 F. 3d 844 (Fed. Cir. 2004). Here, however, the Government has through its 30(b)(6) representatives adopted the Contracting Officer's methodology for calculating the equitable adjustment to which Tetra Tech is entitled. The testimony of a party's 30(b)(6) representative is binding on that party. U.S. ex rel. Fago v. M&T Mort. Corp., 235 F.R.D. 11, 24 (D.D.C. 2006) ("Rule 30(b)(6) testimony is a sworn corporate admission that is binding on the corporation.") In the present case, Tetra Tech raised at a pre-trial conference on July 27, 2007 whether the Government was 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. (Ex. 9, July 27, 2007 Telephonic Conference, Tr. 5-7). Government counsel acknowledged that the Government would be bound by the testimony of

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its 30(b)(6) representatives: "I mean, the government is obviously bound by 30(b)(6) testimony, and any testimony at trial to the contrary would have to be excluded." Id., p. 6. In response to a question from the Court as to whether it would be grounds for a valid objection if the Government presented witnesses at trial who testified in conflict with the testimony of its 30(b)(6) representatives or provided additional information to which Tetra Tech was not privy during the depositions, Government counsel stated: "That's my understanding of the law." Id., p. 7. See Ierardi v. Lorillard, Inc., 1991 WL 158911, 1991 U.S. Dist. LEXIS 11320 (E.D.Pa., Aug. 13, 1991) (Party cannot introduce evidence during trial contradicting previous statements by Rule 30(b)(6) designee). Parties routinely rely upon 30(b)(6) testimony to support motions for summary judgment. See, e.g., Southern Nuclear Operating Co. v. U.S., 77 Fed. Cl. 396 (2007). The Government cannot resist summary judgment by arguing that the Contracting Officer's Final Decision failed to take into account factors that might mitigate the Government's liability. By its own terms, the Final Decision assigned to the Government an "acreage credit" to which the Government is not entitled, and made Findings that Tetra Tech had failed to comply with the contract's terms by allegedly failing to conduct proper quality assurance, failing to perform proper "feed back" analyses, and failing to apply proper discrimination criteria. (Ex. 1; SOF ¶ 6).8 These alleged failings were obviously considered by the Contracting Officer in finding that Tetra Tech was entitled to an equitable adjustment in accordance with the formula applied by the Government team and adopted by the Government's 30(b)(6) representatives. The Final Decision specifically states that, "The
8

Tetra Tech denies the validity of any of these alleged performance failures. For purposes of the present motion, Tetra Tech relies upon the Contracting Officer's Findings for the limited purpose of showing that Tetra Tech's alleged performance failures were an integral element of the equitable adjustment calculus in the Final Decision. 13

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Government found that overall TtEC was entitled to an equitable adjustment of $341,482.23." (Ex. 1; SOF ¶ 4; emphasis added). The Government is also foreclosed by the deposition testimony of the Contracting Officer from arguing that the Contracting Officer's Final Decision was somehow uninformed or misinformed, or that the Contracting Officer was unaware of the fundamental error in her calculation of the amount of the equitable adjustment. The Government became aware of its error during the deposition of its 30(b)(6) representative on February 13, 2007. A few weeks later, on March 8, 2007, counsel for Tetra Tech made a detailed, comprehensive settlement presentation to Government counsel that included a full oral and written description of the exact nature of the calculation error and the equitable adjustment amount to which Tetra Tech would be entitled if the error was corrected.9 The Contracting Officer was not deposed by Tetra Tech until five months later, on June 12, 2007. Despite thus having complete knowledge of the error in her calculation, she testified that her final decision was fully informed and that, in the present tense, "I do agree with what you see here [in the Final Decision]." (SOF ¶ 7). In conclusion, the facts are undisputed and, given the posture of the case, there exist no genuine issues of material disputed fact that the Government could raise. First, Tetra Tech's motion for summary judgment is based entirely upon the Government's own documents and witnesses. Second, the Government declined to pursue written discovery or fact witness depositions in this case and, thus, the Government has no countering evidence to rely upon. Phonometrics, Inc. v. Hospitality Intern., Inc., 120 Fed. Appx. 341, 343, 2005 WL 78693 (Fed. Cir., Jan. 12, 2005) (Plaintiff cannot resist motion for summary judgment where it

Exhibit 8 is a copy of the re-calculation provided to Government counsel, along with a three page narrative plus exhibits, explaining the re-calculation. 14

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"made no effort to depose Shuler or any Rule 30(b)(6) representative of [Defendant] prior to the motion for summary judgment.") For the foregoing reasons, Tetra Tech respectfully requests that the Court enter an Order granting its motion for summary judgment. Respectfully submitted, TETRA TECH EC, INC.

Date: October 5, 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 5th day of October 2007, a copy of the foregoing PLAINTIFF'S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, including Addendum and Exhibits 1 through 9, 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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