Free Motion to Amend Pleadings - Rule 15 - 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)

AMENDED COMPLAINT

COMES NOW, Plaintiff TETRA TECH EC, INC., by counsel, and, pursuant to Rule 4 of the United States Court of Federal Claims, complains and alleges as follows: Jurisdiction 1. On September 27, 2001, the United States Army Engineering & Support Center, Huntsville, Alabama ("USAESCH") awarded Foster Wheeler Environmental Corporation ("FwEC") 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"). The Task Order included unit prices for different elements of work that originally totaled $2,777,814.20. The amount of the Task Order was increased to a total of $3,051,138.10 by Modification 03 dated January 30, 2003. 2. Under a contract modification dated February 10, 2004, the Task Order was novated from FwEC to Tetra Tech FW, Inc.

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3. Under a Change-of-Name Agreement dated June 29, 2005, the name Tetra Tech FW, Inc. was changed to Tetra Tech EC, Inc. ("Tetra Tech"). This Agreement was memorialized in a contract modification dated October 20, 2005. 4. On September 7, 2005, Tetra Tech served upon the Contracting Officer a properly certified claim under the Contract Disputes Act, 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 unexploded ordnance ("UXO") and UXO-like anomalies under the Task Order (the "Claim"). 5. By letter dated November 30, 2005, the Contracting Officer issued a final decision regarding Tetra Tech's Claim, finding that Tetra Tech is entitled to recover (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 UXO in Range 1; and (c) $13,104.00 for lost days associated with extreme weather. The Contracting Officer denied Tetra Tech's claim for the balance of the amounts in its Claim. 6. This Court has jurisdiction over Tetra Tech's Claim pursuant to the Tucker Act, 28 U.S.C. § 1491, and the CDA, 41 U.S.C. § 605(c)(5). General Allegations 7. Neither the solicitation for the Task Order nor the Task Order itself specified the number of UXOs and UXO-type items that Tetra Tech would be required to excavate. 8. The solicitation explicitly precluded Tetra Tech and other offerors from conducting a site investigation for the purpose of determining the quantities of UXOs and UXO-like items to be excavated.

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9. Tetra Tech understood from a list contained in the solicitation that USAESCH had a survey report that provided relevant information regarding UXO levels, but USAESCH declined Tetra Tech's request for a copy of this survey report until after the Task Order was awarded to Tetra Tech. 10. Tetra Tech, along with other prospective offerors, attended a pre-proposal meeting on or about August 15, 2001. At the meeting, a prospective offeror inquired, "Will USAESCH provide an UXO/OE per Acres assumption for the project?" USAESCH responded in writing to all prospective offerors: "The Contractor should assume 20 UXO/OE per acre." 11. In "Additional Questions and Answers" dated August 23, 2001, USAESCH directed all prospective offerors that, "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 UXO-like items pre acre [at sites other than Area G] ... 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." 12. On or about August 27, 2001, Tetra Tech submitted to USAESCH its "Technical Approach and Basis for Estimate," which stated, among other things, that Tetra Tech "anticipates that as many as 20 anomalies/acre may require intrusive investigation." Further, Tetra Tech expressly incorporated into its "Technical Approach and Basis of Estimate" the Questions and Answers provided by USAESCH's Contracting Officer. 13. In reliance upon USAESCH's pre-proposal representations, the terms of the solicitation, and other available information, Tetra Tech prepared its proposal,

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including its price, based upon an assumption of 20 UXOs and UXO-like items (also called "anomalies") per acre at sites other than Area G and 200 anomalies at Area G. 14. The Task Order required Tetra Tech to submit a Work Plan for USAESCH's approval before performing any work. The Task Order further required Tetra Tech to perform UXO removal in accordance with the approved Work Plan. Tetra Tech submitted, and USAESCH approved, a Work Plan stating that Tetra Tech "assumed that 20 anomalies/acre will require excavation at all areas except Area `G'." 15. Tetra Tech also prepared and submitted to USAESCH, and USAESCH approved, an Explosives Safety Submission that corroborated the parties' mutual understanding that Tetra Tech would be required to excavate and remove 20 anomalies per acre. 16. On or about April 16, 2003, when Tetra Tech had completed approximately 11 percent of the UXO removal at sites other than Area G, Tetra Tech provided USAESCH with the first of numerous written notifications that Tetra Tech was discovering and removing unanticipated levels of UXOs and UXO-like items. 17. At a meeting on April 29, 2003, a USAESCH representative acknowledged that Tetra Tech would be entitled to additional compensation if it was later determined that the number of anomalies per acre exceeded 20 per acre. 18. Tetra Tech actually discovered and excavated an average of 98 anomalies per acre at sites other than Area G, an overrun of approximately 500 percent. Of that number, approximately 59 anomalies per acre at sites other than Area G met the criteria for UXOs or UXO-like items, an overrun of approximately 300 percent. Tetra Tech also excavated and removed an average of 777 anomalies per acre at sites in Area G, an overrun of nearly 400 percent.

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19. In advance of performing anomaly excavations, Tetra Tech posted on its File Transfer Protocol ("FTP") internet site, to which USAESCH had full access, the specific discrimination criteria, including signal strength values, that Tetra Tech intended to apply in determining whether to perform excavations in particular areas of the site. 20. In advance of performing anomaly excavations, Tetra Tech posted on its FTP internet site, to which USAESCH had full access, electronic copies of "dig sheets" indicating the geophysical data upon which Tetra Tech relied in determining whether a UXO or UXO-like anomaly had been detected and the specific location of each such anomaly. 21. USAESCH had prior actual or constructive knowledge of Tetra Tech's anomaly excavations. 22. At no time did USAESCH object to Tetra Tech proceeding with the excavations identified on its "dig sheets" except that, from time to time, USAESCH representatives directed Tetra Tech to excavate anomalies, above and beyond those that Tetra Tech had already excavated, even though these anomalies did not meet the discrimination criteria that had been established for the particular areas where such anomalies had been identified. 23. By letter dated April 4, 2004, Tetra Tech submitted to the Contracting Officer a Request for Equitable Adjustment ("REA") in the amount of $1,002,214 for cost overruns in the excavation and removal of UXOs and UXO-like items at sites other Area G. 24. By letter dated September 17, 2004, Tetra Tech submitted to the Contracting Officer a REA in the amount of $406,156 for cost overruns in the excavation and removal of UXOs and UXO-like items at Area G.

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25. By letter dated October 22, 2004, Tetra Tech requested a final decision on its claims by the Contracting Officer. The Contracting Officer responded by accepting in principle Tetra Tech's entitlement to additional compensation, while offering only $219,080 for Tetra Tech's claims. 26. By letter dated August 22, 2005, the Contracting Officer responded to Tetra Tech's REAs by admitting that USAESCH had "found merit for a changed condition," and that USAESCH would issue a change order in the amount of $341,482.23 for Tetra Tech's claims. To date, no such change order has been issued. 27. The Claim that Tetra Tech submitted to the Contracting Officer on September 7, 2005 was based upon the same facts and legal arguments that supported its earlier REAs. However, Tetra Tech reduced the amount claimed to reflect adjustments in the number of UXO-like anomalies to exclude "surface finds" and "no finds," in costs associated with quality control rework, and in costs associated with shared staff. 28. In her final decision dated November 30, 2005, the Contracting Officer made "Findings" that Tetra Tech "is good at geophysical work," but that the Government "was reasonably certain that some costs were included [in Tetra Tech's bid] for digging a few more anomalies than the 20 stated." The Contracting Officer found that Tetra Tech was "entitled to an equitable adjustment of $341,482.23" for its Claim. To date, the Government has not paid Tetra Tech the amount to which the Contracting Officer found Tetra Tech was entitled. A. The $341,482.23 amount in the Contracting Officer's final decision was based on a calculation set forth in two spreadsheets prepared by the USAESCH. In its calculation, the USAESCH applied a weighted formula. The weighted

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formula was based upon the ratio of the contractually agreed upon UXO/UXOlike items per acre to the per acre average of UXO/UXO-like items that the USAESCH credited to Tetra Tech. B. The USAESCH intended that the weighted formula would be consistent with the scope of Modification 03 to the Task Order in defining the UXO/UXOlike items per acre and the applicable acreage. C. The Government admits that the weighted formula upon which the Contracting Officer relied in calculating the amount to which Tetra Tech was entitled is not consistent with the scope of Modification 03. The Government admits that its weighted formula should be corrected to conform with the scope of Modification 03. The Government further admits that the corrected weighted formula produces the amount to which Tetra Tech is entitled on its Claim. D. When the USAESCH's weighted percentage formula is corrected to reflect the scope of Modification 03, Tetra Tech is entitled to recover $1,337,512.82, plus CDA interest. E. The USAESCH based its evaluation of Tetra Tech's entitlement on an assumption that Tetra Tech should be paid for excavating 1,422 items exhibiting the length, width and weight of UXO/UXO-like items after they were excavated and recorded in the project database. Tetra Tech has claimed entitlement to the additional costs it incurred in excavating items that exhibited UXO/UXO-like characteristics as determined by geophysical interpretation before excavation. F. The assumption upon which the USAESCH relied in determining that Tetra Tech should be credited with only 1,422 items failed to consider certain

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descriptive information and the use of estimates related to length, width and/or weight of the items, even though it is the custom and practice in the ordnance removal/excavation industry to consider such descriptive information and estimates to determine whether an excavated item is UXO/UXO-like. G. The Government admits that Tetra Tech is entitled to credit for no less than an additional 141 UXO/UXO-like items, even based on the USAESCH's method of determining UXO/UXO-like after the items are excavated. Applying the USAESCH's weighted formula, as corrected for Modification 03 and these additional 141 items, Tetra Tech is entitled to recover $1,864,386.86, plus CDA interest. H. The Government admits that it failed to consider other factors such as improper limitations on USAESH's discriminators for determining the number of UXO/UXO-like items for which Tetra Tech should be credited. When these factors are properly accounted for in the calculation of the weighted formula, the Government should credit Tetra Tech for its excavation of additional UXO/UXOlike items, above and beyond those for which the Government has admitted liability. 29. USAESCH revised the scope of work in other solicitations that it issued after Tetra Tech submitted its REAs to purportedly place upon contractors the risk of encountering unanticipated numbers of anomalies. For example, a solicitation issued by USAESCH on or about September 6, 2005 for munitions response services provides, among other things, that, "No price adjustments will be allowed to any firm fixed price tasks for differing site conditions related to ... the quantity, type, and/or

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depth of MEC [Munitions and Explosives of Concern], MEC scrap, MPPEH, munitions debris, and/or other anomalies encountered. The Contractor shall not qualify their bid based on a specific number of anomalies or digs, etc." The solicitation and Task Order at issue contain no such provisions and, thus, the Government assumed the risk of overruns in anomaly excavation and removal costs. COUNT ONE (Breach of Contract) 30. Tetra Tech incorporates by this reference the statements and allegations in Paragraphs 1 through 29 as if fully set forth in this Paragraph. 31. USAESCH breached its implied warranty of the accuracy and completeness of its plans and specifications. 32. USAESCH had superior knowledge of the numbers and types of UXOs and UXO-like items that Tetra Tech would be required to excavate, but refused and failed to provide such information to Tetra Tech prior to the submission of its proposal. 33. USAESCH provided inaccurate information to Tetra Tech prior to the submission of its proposal regarding the number of UXOs and UXO-like items and otherwise misrepresented the numbers of UXOs and UXO-like items that Tetra Tech would be required to excavate. 34. USAESCH breached its duty to cooperate with Tetra Tech. 35. USAESCH failed and refused to provide an equitable adjustment of the contract price pursuant to the "Changes" clause in the Task Order. 36. As a direct and proximate result of the foregoing breach(es) of contract, Tetra Tech suffered damages for which the Government is liable in the full amount of its Claim.

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COUNT TWO (Constructive Change) 37. Tetra Tech incorporates by this reference the statements and allegations in Paragraphs 1 through 36 as if fully set forth in this Paragraph. 38. Tetra Tech's excavation and removal of UXOs and UXO-like items in excess of 20 per acre constitutes a constructive change, for which Tetra Tech is entitled to an equitable adjustment under the "Changes" clause in the Task Order for the full amount of its Claim. COUNT THREE (Breach of Implied Contract) 39. Tetra Tech incorporates by this reference the statements and allegations in Paragraphs 1 through 38 as if fully set forth in this Paragraph. 40. Representations made to Tetra Tech by USAESCH, including its representations at the pre-proposal meeting on or about August 15, 2001 and at a meeting on or about April 29, 2003, and Tetra Tech's performance in reliance on those representations, constitute an implied contract to pay Tetra Tech for all additional costs incurred in excavating and removing UXOs and UXO-like items in excess of 20 per acre. 41. USAESCH's failure and refusal to pay Tetra Tech the full amount of its Claim is a breach of implied contract for which the Government is liable. COUNT FOUR (Equitable Estoppel) 42. Tetra Tech incorporates by this reference the statements and allegations in Paragraphs 1 through 41 as if fully set forth in this Paragraph. 43. Tetra Tech relied to its detriment upon the foregoing representations and admissions by USAESCH, by performing the excavation and removal of UXOs and UXO-like items in excess of 20 per acre.

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44. By reason of the foregoing, the Government is estopped from denying its liability for the full amount of Tetra Tech's claim. COUNT FIVE (Mutual Mistake) 45. Tetra Tech incorporates by this reference the statements and allegations in Paragraphs 1 through 44 as if fully set forth in this Paragraph. 46. At the time the parties executed the Task Order, Tetra Tech and USAESCH were mutually mistaken as to the number of UXOs and UXO-like items would need to be excavated and removed by Tetra Tech, and Tetra Tech did not assume the risk of this mistake. 47. USAESCH was aware of, and accepted the benefits from, Tetra Tech's excavation and removal of UXOs and UXO-like items in excess of 20 per acre. 48. For the foregoing reasons, the Task Order should be reformed to reflect a total contract price that has been increased to reflect the full amount of Tetra Tech's Claim. COUNT SIX (Adoption of Government's Methodology In Calculating Amount of Recovery) 49. Tetra Tech incorporates by this reference the statements and allegations in Paragraphs 1 through 48 as if fully set forth in this Paragraph. 50. The Contracting Officer's calculation of the amount owed to Tetra Tech on its Claim, as set forth in the Contracting Officer's final decision, incorrectly applied the scope of Modification 03, thus resulting in a mistaken and material reduction in the amount which Tetra Tech is entitled to recover on its claim. 51. Correcting the calculation and weighted formula upon which the Government relies to properly apply the scope of Modification 03, results in a recovery of $1,337,512.82, plus CDA interest.

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52. Further correcting the calculation and weighted formula to account for the additional excavations which the Government admits should be credited to Tetra Tech, results in a recovery of $1,864,386.86, plus CDA interest. 53. Tetra Tech is entitled to recover the amounts resulting from the correct application of the weighted formula adopted by the Contracting Officer in the final decision on Tetra Tech's claim. WHEREFORE, for the foregoing reasons, Tetra Tech respectfully requests that the Court enter judgment in Tetra Tech's favor in the amount of Tetra Tech's claim, $1,188,422.62, plus interest under the CDA. Alternatively, Tetra Tech respectfully requests that the Court enter judgment in Tetra Tech's favor in the amount(s) that result from the correct application of the weighted formula adopted by the Government: (i) As corrected to reflect the proper scope of Modification 03, i.e., $1,337,512.82, plus CDA interest; or (ii) As corrected to reflect the proper scope of Modification 03 and the additional UXO/UXO-like items for which the Government admits Tetra Tech should be credited, i.e., $1,864,386.86, plus CDA interest. Additionally, Tetra Tech requests such other relief as the Court may deem appropriate. TETRA TECH EC, INC.

By: __s/ William W. Thompson , Jr.______________ William W. Thompson, Jr. Robert D. Banfield PECKAR, ABRAMSON, BASTIANELLI & KELLEY, LLP 1133 21st Street, N.W., Suite 500 Washington, D.C. 20036

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(202) 293-8815 Telephone (202) 293-7794 Facsimile Attorneys for Tetra Tech EC, Inc.

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