BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of ) ) American General Trading & Contracting, WLL ) ) Under

Contract No. DABM06-03-C-0009 )

ASBCA No. 56758

GOVERNMENT REPLY TO APPELLANTS MOTION FOR SUMMARY JUDGEMENT AND CROSS MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 5(b) of the Armed Services Board of Contract Appeals (ASBCA or the Board), the government hereby responds to appellants motion for summary judgment and moves for summary judgment as to the first claim on the ground that the subject contract, firmfixed unit price with total item adjustment, is not of a type that is subject to a claim of negligent estimate. See Eastern New Mexico University Roswell, ASBCA No. 57110, 12-2 BCA 35,090, see also Coyles Pest Control, Inc., HUDBCA No. 96-A-121-C10, 97-1 BCA 28,717. As to the second claim, the government moves for summary judgment on the ground that the parties did not create an implied-in-fact contract for construction of laundry facilities at Camp Victory and the 35th Brigade. Not all types of contracts can be breached by the government for making negligent estimates. American General Trading & Contracting, WLL, ASBCA No. 56708, 12-1 BCA 34,905. Here, the contract type is firm-fixed-unit price with total item adjustment. (answer 3, Part II). Requirements type contracts are subject to negligent estimate claims. However, appellant disclaimed any suggestion that this is a requirements contract in its June 17, 2009 motion, stating it this is a firm-fixed [unit] price contract. See American General Trading &

Contracting, WLL, ASBCA No. 56708, 12-1 BCA 34,905 citing app. mot at. 1.1 The appellant is correct. This contract is not a requirements type contract as the contract contains no language indicating exclusivity of the appellant to provide all of the governments laundry services and does not contain FAR 52.216-21 which is used when a requirements contract is contemplated. Further, the government had other laundry service providers before and during the contract with the appellant. Indefinite quantity contracts are not subject to a claim of negligent estimate. Indefinite quantity contracts obligate the government to purchase a guaranteed minimum quantity of supplies or services under the contract, followed by whatever additional purchases the government chooses to make up to a stated maximum. FAR 16.504(a); C.F.S. Air Cargo, 91-2 BCA 23,985 at 120,040 (quoting Crown Laundry & Dry Cleaners, Inc., 90-3 BCA 22,993 at 115,480-81). The government cannot be liable for breaching an indefinite quantity contract on the basis of making negligent estimates as long as the government orders the guaranteed minimum. Travel Centre v. Barram, 236 F.3d 1316 (Fed. Cir. 2001). This is not an indefinite quantity contract as the government never guaranteed a minimum number of items to appellant but instead specifically stated that appellant would be paid only for the total number of pieces received for laundry service. Further, the contract does not contain FAR clause 52.216-22 which is used in an indefinitely quantity contract is contemplated.
1

In its June 17, 2009 motion to amend the complaint appellant wrote: by and through its Attorney, and without opposition from the Government, hereby moves the Board for an order permitted the appellant to amend its complaint, pursuant to Rule 7 to correct a scriveners error regarding the type of contract; specifically, that they type of contract was a firm, fixed-price contract. In support, appellant states as follows: 1. In paragraphs 18 and 30 of the appellants original Complaint Contract No. DABM06-03-C-0009 was referred to erroneously as a requirements contract. 3. By this motion, Appellant seeks to clarify that the Contract is a firm, fixed-price contract, not a requirements contract and to remove all references indicating otherwise.

(app. mot. at 1) (emphasis added).

This contract is not enforceable as a requirements contract, an indefinite quantity contract, or a definite quantity contract. The government paid appellant for the 2,431,911 items at the firm-fixed unit price of 0.240 KD for small items, 0.280 KD for large items, 0.587 KD for sleeping bags (outer shell), and 1.450 KD for sleeping bags (Black Insert). Since AGT has already been paid at the firm-fixed unit price for all the items it laundered, it is not entitled to any further adjustment. See Eastern New Mexico University Roswell, ASBCA No. 57110, 12-2 BCA 35,090, see also Coyles Pest Control, Inc., HUDBCA No. 96-A-121-C10, 97-1 BCA 28,717. Assuming, arguendo, that the contract is subject to a claim of negligent estimate, the governments estimate of 1,000 to 7,000 troops was not negligent based on the information known to the contracting officer at the time. The government is not required to be clairvoyant. Womack v. United States, 389 F.2d 793 (Ct. Cl. 1968). The adequacy of the government's estimate is only tested by the relevant information reasonably available to it. Id. at 801. The contracting officers estimate of laundry services for 1,000 to 7,000 troops was reasonable under the circumstances. To hold the government liable for damages, the contractor has the burden to show by a preponderance of the evidence that the government estimates were inadequately or negligently prepared, not in good faith, or grossly or unreasonably inadequate at the time the estimate was made. Clearwater Forest Industries, Inc. v. United States, 650 F.2d 233 (Ct. Cl. 1981). Estimated quantities provided by the government are not guarantees. The mere fact actual contract purchases vary significantly from them typically does not lead to government liability. Medart, Inc. v. Austin, 967 F.2d 579, 581 (Fed. Cir. 1992). Here, the appellant asserts the total number of items laundered was 2,431,911, merely 3 % below the lowest end of the estimated range for 1,000 troops (2,520,000 pieces) during the base period (6-month) for which

the government paid USD $589,555.97.2 As to the second claim, the government moves for summary judgment on the ground that no implied-in-fact contract for facilities or services at an increased firm-fixed unit price resulted. There was no mutuality of intent to contract for either facilities or services at an increased firmfixed unit price, no consideration, and ambiguity in the offer and acceptance. The contracting officer sought laundry services, not facilities, at Camp Victory and the 35th Brigade area at the contracts firm-fixed-unit price rates. The appellant concedes that it billed and was paid at the firm-fixed-unit price for the laundry services it provided at those locations. Yet, appellant now argues that it entered into two implied in facts contracts, the first for laundry services at an increased-firm-fixed-unit rate and the second for construction of facilities. To prove the existence of an implied-in-fact contact, appellant must show mutuality of intent to contract, consideration, lack of ambiguity in offer and acceptance, and that the government representative whose conduct is relied upon had actual authority to bind the government in contract. City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990), cert. denied, 501 U.S. 1230 (1991). The appellant, here, has offered no such evidence, to support such a conclusion. In fact, appellant concedes in its motion it is true the parties did not reach agreement as to specific laundry item-prices in their communications, and there was ambiguity as to whether AGT was entitled to its proposed pricing (which was higher than the contract rate) as opposed to the contract rate unit pricing AGT has billed at. (app. mot at 37). Under these facts, no implied-infact contract resulted thus the governments summary judgment motion should be granted. Further, an implied-in-fact contract cannot exist if express contract already covers the same subject matter. Trauma Service Group v. U.S., 104 F.3d 1321 (C.A. Fed. 1997).

1,000 Soldiers x 5 camps x 4 weeks x 21 items x 6 months = 2,520,000.

PROPOSED FINDINGS OF FACT Appellants Unsolicited Proposal 1. On January 15, 2003, appellant submitted a proposal for laundry services to LTC Marshall K. May, the United States Army Central-Kuwait Director of Contracting. The proposal contained a description of supplies or services, that read: Laundry Service (Pick-up and delivery service). The contractor shall repair and replace all items damaged or lost. The service should include loading, unloading, segregating, transporting, counting and obtaining necessary document for items picked up or delivered. The items must be delivered within 48-72 hours of the items picked up. The number of personnel will vary from 1000-7000 per Camp, and the number of pieces if items will vary from 84,000-600,000 per month. (ex. 1) (emphasis added). At this point, the governments description of services did not indicate that the average of number of troops would be estimated at 3,500. 2. The description of services as restated in appellants January 15, 2003 laundry proposal, quoted above, was provided by the government to appellant according to Mr. Ajay George, appellants designated representative under Federal Rule of Civil Procedure (FRCP) 30(b)(6). (George tr. 35-36). 3. Appellants January 15, 2003 laundry proposal contained a quantity section that stated [b]ased on the above, we have taken an average of 3,500 at five (5) locations x 50 pieces per month and multiply by 6 in order to arrive at our cost. (ex. 1) (emphasis added). 4. The appellants January 15, 2003 proposal stated that the unit price would be $.97 cents per piece and the total lump sum price would be $10,185,000. (ex. 1). 5. The record contains a second laundry proposal from the appellant, also dated January 15, 2003 and also addressed to LTC May with virtually identical language, that cites the same unit price of $.97 cents, except it indicates a total lump sum price of $5,092,500 for a base period of 6 months and $5,092,500 for an option period of 6 months. (ex. 2). $5,092,500 plus $5,092,500 5

totals $10,185,000. Id. 6. Appellants FRCP 30(b)(6) representative, Mr. George, explained that AGT based its quantity on the average of 3,500,3 vice the 1,000 to 7,000 quoted by the government because it could not build a price on a small quantity then increase to 7,000. (George tr. at 37-38). Mr. George stated: The number of soldiers that was established and set to be in the camp was 1,000 to 7,000. Okay. So as an average you have to - when you are providing a laundry service you have to calculate it based on - you cannot base it on just a small quantity and say okay, we can provide up to 7,000, which is impossible. So always the trend is to have the minimum number as a standing number because it can grow to that bigger. So that's how the 3,500 was taken at that point of time. Id. Existing Laundry Service Providers 7. On January 19, 2003, the United States Army Central-Kuwait Directorate of Logistics (ARCENT-KU DOL) advised the United States Army Central-Kuwait Directorate of Contracting (ARCENT-KU DOC) that the commands current laundry facility in Fahaheel (Fahaheel Al Jabber Schouk) could not handle additional laundry services. (ex. 3). 8. In January of 2003, Fahaheel Al Jabber Schouk was providing laundry services to the Sea Point of Debarkation (SPOD),4 the Air Point of Debarkation (APOD),5 Camps Doha and Arifjan, as well as the airbases and washing approximately 200,000 pieces of clothing per month. Id. 9. The government was also able procure laundry services from LOGCAP and AIK. (COL Neumann aff.). The Solicitation 10. On January 23, 2003 the Directorate of Contracting (DOC) at Camp Arifjan, Kuwait

The average of 1,000 and 7,000 is actually 4,000. The appellant took the mean of 7,000, which is 3,500, vice averaging the quantities together. 4 The SPOD is U.S. military apportioned section of Kuwait Naval Base. 5 The APOD is the U.S. military apportioned section of Kuwait International Airport.

issued Solicitation DABM06-03-R-0014 for laundry services. (R4 tab 1). 11. The solicitation was open for one week. (R4, tabs 1, 2). 12. Award was to be made to the Lowest Price, Technically Acceptable Offeror. (R4, tab 1 at 6, 23, 30). 13. The solicitation indicated it was to result in a firm-fixed unit price with total item numbers adjustment contract. (R4, tab 1 at 2) (emphasis added). The period of performance was for six months with an optional period of an additional six months. Id. 14. CLIN 1001 of the solicitation stated: Laundry Service FFP Camp Laundry Service - Base Period Fixed Unit Price - See Statement of Work for laundry requirements. Laundry Estimated 1000 capable of surging to 7000 soldiers in one Camp on a monthly basis. Estimated Maximum: 6 Month/Camp x 5 Camps = 30 Months Period of Performance 1 FEB 2003 - 31 JULY 2003. 7,000 soldiers x 5 camps x 4 weeks x 21 items x 6 months = 17,640,000 pieces of clothing per six month. The average number of soldiers per camp per month is 3,500 soldiers. Equals 3,500 soldiers x 5 camps x 4 weeks x 21items x 6 months= 8,820,000 pieces of clothing per six month. This contract is Firmed Fixed Unit price with total item numbers adjustment. (R4, tab 1 at 2) (emphasis added). 15. CLIN 1002 of the solicitation, for option period one, stated:

Option 1 FFP Camp Laundry Service - Base Period Fixed Unit Price - See Statement of Work for laundry requirements. Laundry Estimated 1000 capable of surging to 7000 soldiers in one Camp on a monthly basis. Estimated Maximum: 6 Month/Camp x 5 Camps = 30 Months Period of Performance 1 Aug 2003 - 31 January 2004. 7,000 soldiers x 5 camps x 4 weeks x 21 items x 6 months = 17,640,000 pieces of clothing per six month. The average number of soldiers per camp per month is 3,500 soldiers. Equals 3,500 soldiers x 5 camps x 4 weeks x 21items x 6 months= 8,820,000 pieces of clothing per six month. This contract is Firmed Fixed Unit price with total item numbers adjustment. PURCHASE REQUEST NUMBER: W90FGP30170103 (R4, tab 1 at 2) (emphasis added). 16. The notice to bidders stated: The Bid will be Fixed Unit Price with quantities and dollars adjustments. The contractor shall bid on 4 categories of laundry: Small items 8 ounces or less, Large items over ounces, Sleeping Bags with 24 hour turn around and delivery and for Pressed uniforms. Government will accept lowest price technically acceptable. The bid will include a set price for each category of laundry see CLINS 3 through 6. The contractor will include in his bid the price of washing, drying tracking, transporting, pressing, storage, shed or shelter, subcontracting, reimbursement for lost items, replacement of damaged items. The bid shall include providing a plastic bag or mesh laundry bag for each soldiers laundry. The bid price for each category is firm, but the number of items laundered is adjusted. The contract is based on the average number of troops for each camp. The bid quote is for 6 months with equitable item and cost adjustment at the end of each month. The contractor will be paid on the last day of each month according to the COR acceptance of service counts annotated on the DD250. (R4, tab 1 at 29) (emphasis added). 17. The solicitation contained FAR clause 252.237-7017 INDIVIDUAL LAUNDRY (DEC 1991) which stated: (a) The Contractor shall provide laundry service under this contract on both a unit bundle and on a piece-rate bundle basis for individual personnel. (b) The total number of pieces listed in the "Estimated Quantity" column in the 8

schedule is the estimated amount of individual laundry for this contract. The estimate is for information only and is not a representation of the amount of individual laundry to be ordered. Individuals may elect whether or not to use the laundry services. (c) Charges for individual laundry will be on a per unit bundle or a piece-rate basis. The Contractor shall provide individual laundry bundle delivery tickets for use by the individuals in designating whether the laundry is a unit bundle or a piece-rate bundle. An individual laundry bundle will be accompanied by a delivery ticket listing the contents of the bundle. (d) The maximum number of pieces to be allowed per bundle is as specified in the schedule and as follows -(1) Bundle consisting of 26 pieces, including laundry bag. This bundle will contain approximately [sic] pieces of outer garments which shall be starched and pressed. Outer garments include, but are not limited to, shirts, trousers, jackets, dresses, and coats. (2) Bundle consisting of 13 pieces, including laundry bag. This bundle will contain approximately [sic] pieces of outer garments which shall be starched and pressed. Outer garments include, but are not limited to, shirts, trousers, jackets, dresses, and coats. (End of clause) (R4, tab 1 at 26-27) (emphasis added). 18. The solicitation contained clause 252.237-7016 DELIVERY TICKETS (DEC 1991) which stated: (a) The Contractor shall complete delivery tickets in the number of copies required and in the form approved by the Contracting Officer, when it receives the articles to be serviced. (b) The Contractor shall include one copy of each delivery ticket with its invoice for payment. (R4, tab 1 at 26) (emphasis added). 19. The solicitation contained 252.237-7012 INSTRUCTION TO OFFERORS (COUNT-OFARTICLES) (DEC 1991) which stated: (a) The Offeror shall include unit prices for each item in a lot. Unit prices shall 9

include all costs to the Government of providing the services, including pickup and delivery charges. (b) Failure to offer on any item in a lot shall be cause for rejection of the offer on that lot. The Contracting Officer will evaluate offers based on the estimated quantities in the solicitation. (c) Award generally will be made to a single offeror for all lots. However, the Contracting Officer may award by individual lot when it is more advantageous to the Government. (d) Prospective offerors may inspect the types of articles to be serviced. Contact the Contracting Officer to make inspection arrangements. (R4, tab 1 at 25) (emphasis added). 20. The guidance to offerors required bidders to bid based on 7,000 troops, not an average number of troops nor 3,500 troops. Technical Exhibit 3 of the Solicitation - Price Quote Guidelines stated the contractor should place their Bid by laundry pieces based on 7,000 troops x 5 Camps x 4 weeks/mo x 21 pieces x 6mo = 17,640,000 pieces per 6 [sic] month. (R4, tab 1 at 23) (emphasis added). Technical Exhibit 3 of the Solicitation - Price Quote Guidelines states: the contractor should place their Bid by laundry pieces based on 7,000 troops x 5 Camps x 4 weeks/mo x 21 pieces x 6 mo = 17,640,000 pieces per month. (R4 tab 2 at 11). 21. Appellant did not rely on the technical exhibit 3 in preparing its bid. (George tr. 37-38). The appellant prepared its proposal based on the mean of 7,000 troop amount. Id. 22. Technical Exhibit 1 of the solicitation contained stated that the approximate numbers of personnel per camp is 1000-7000 soldiers. (R4, tab 1 at 22) (emphasis added). Technical exhibit 1, did not indicate an average number of troops, or suggest bidding on the mean amount. Id. 23. Section I of the solicitation contained ADJUSTMENT QUANTITY CLAUSE that stated: The purpose of this clause is to state the Governments best estimate of pieces of laundry to be serviced. The contractor will be paid for the total number of pieces 10

received for laundry service. If the quantity washed is lower than the total amount of the contract, the total amount to be paid will be equally reduced. If the contractors laundry service items total exceeds the amount of the contract at the end of 6 months the contractor will receive an equitable adjustments increase. The contract is Firm fixed price with item adjustment. (R4, tab 1 at 21) (emphasis added). 24. The solicitation contained clause 52.212-4 CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (FEB 2002). (R4, tab 1 at 15-17) (emphasis added). 25. Section H of the solicitation contained Special Contract Requirements, that stated: REQUIREMENTS Contract Requirements The Contractor shall repair and replace all items damaged or lost. The Service should include loading, unloading, segregating, transporting, counting and obtaining necessary document for the items picked up or delivered. The items must be delivered within 72 hours of the items picked up. The number of personnel will vary from 1000-7000 per Camp and the number of pieces of items will vary from 420,000-2,940,000 per month. The delivery shall be for 5 camps. Thre [sic] must be a tracking system in place for the COR to monitor and maintain receits [sic] and DD250 for contractor to get paid. (R4, tab 1 at 7) (emphasis added). 26. Section F of the solicitation contained Deliveries or Performance which stated: DELIVERY AND PERFORMANCE Delivery and Performance Delivery and pickup should be a minimum of twice a week for each camp. Contractor will be responsible for the delivery and the COR will monitor the delivery for timeliness, accuracy, method. A delivery schedule will be worked out between the contractor and the COR for each location. The contractor will provide a shed or cover for issuing as to protect the soldier and clothing from the elements. There will be a posted delivery schedule for all 5 camps. Laundry must be managed separately [sic] for each camp. Local procedures relating to delivery to the individual will be completely separate from laundry facility operations. For sleeping bags the delivery will be within 24 hours. (R4, tab 1 at 5) (emphasis added). 27. Section B of the solicitation, Supplies or Services and Prices, contained the following

11

descriptions of items:
ITEM NO 1003 SUPPLIES/SERVICES QUANTITY UNIT Each UNIT PRICE AMOUNT

Small items are 8 ounces or less FFP Small items are listed or characterized as the following: Socks, Bllack, Wool Socks, White, cotton Underwear Brown T-Shirt Grey T-Shirt Grey/Black shorts Wash cloth Assorted Colors items 8 ounces or less PURCHASE REQUEST NUMBER: W90FGP30170103

- Any

NET AMT

FOB: Destination

ITEM NO 1004

SUPPLIES/SERVICES

QUANTITY

UNIT Each

UNIT PRICE

AMOUNT

Large Items 9 ounces or more FFP -Desert Camouflage Uniform Blouse -Desert Camouflage Uniform Pants -Polyproplyene Top -Polyproplyene Bottoms -Sweater, Brown Sweat Pants, Grey/Black Sweat Shirt/Jacket, Grey Any Item 9 ounces or more moved stand PURCHASE REQUEST NUMBER: W90FGP30170103

NET AMT

FOB: Destination

12

ITEM NO 1005

SUPPLIES/SERVICES

QUANTITY

UNIT Each

UNIT PRICE

AMOUNT

Sleeping Bags FFP -Hour turn around with Bi-monthly washing authorized -Sleeping Bag, Outer -Sleeping Bag, Green Insert -Sleeping Bag, Black Insert The list may me modified if mission dictates additional bulk item PURCHASE REQUEST NUMBER: W90FGP30170103

NET AMT

ITEM NO 1006

FOB: Destination SUPPLIES/SERVICES

QUANTITY

UNIT Each

UNIT PRICE

AMOUNT

DCU starch and put on hanger FFP DCU will be lightly starched using nonionizing starch , pressed, put on hanger and in a clear plastic bag. E-9 and O-5 and above will recieve this service. PURCHASE REQUEST NUMBER: W90FGP30170103

NET AMT

FOB: Destination

(R4, tab 1 at 3-4). 28. The evaluation factors for award contemplated that the contractor would be responsible for tracking the individual pieces of laundry. Evaluation factor No. 11 stated that the prices per items must be based on 4 categories, Small items less than 8 ounces or less, Large items, over 8 ounces, and sleeping Bags and pressed uniforms on hangers (See matrix in Statement of work). (R4, tab 1 at 30). Evaluation factor No. 12 required the contractor to report number of laundry items serviced on the 30th of each month. Id. Evaluation factor No. 6 state that the contractor must be able to provide 3 receipts for each soldiers laundry; one for the soldier, one for the

13

contractor one for the COR to track on a DD250. Id. 29. Technical Exhibit 3 of the Solicitation - Price Quote Guidelines states: the contractor should place their Bid by laundry pieces based on 7,000 troops x 5 Camps x 4 weeks/mo x 21 pieces x 6 mo = 17,640,000 pieces per month. (R4 tab 2 at 11). 30. Section L of the Solicitation Notice to Bidders states: The Bid will be Fixed Unit Price with quantities and dollars adjustments. . . . The bid will include a set price for each category of laundry see CLINS 3 through 6. The contractor will include in his bid the price of washing, drying tracking, transporting, pressing, storage, shed or shelter, subcontracting, reimbursement for lost items, replacement of damaged items. . . . The bid price for each category is firm, but the number of items laundered is adjusted. The contract is based on the average number of troops for each camp. The bid quote is for 6 months with equitable item and cost adjustment at the end of each month. The contractor will be paid on the last day of each month according to the COR acceptance of service counts annotated on the DD250. (R4 tab 1 at 29). 31. The solicitation was amended on January 24, 2003 to add to the inspection and acceptance clause. (R4, tab 2 at 5). 32. The provisions cited above remained unchanged. (R4, tabs 1-2). 33. The solicitation was amended again on January 29, 2003 to further define the evaluation criteria. (R4, tab 2). Evaluation factors 6, 11, 12 cited above remained unchanged. (R4, tabs 12). 34. Final proposals were due on January 30, 2003. (R4, tab 2). Appellants Solicited Proposal 35. On January 30, 2003 the appellant submitted a laundry proposal. 36. Appellants proposal contained the following firm fixed unit prices. (ex 4, 5). Section B - Supplies or Services and Prices 14

ITEM NO 1001

SUPPLIES/SERVICES

QUANTITY

UNIT Each

UNIT PRICE

AMOUNT

Laundry Service FFP Camp Laundry Service - Base Period Fixed Unit Price - See Statement of Work for laundry requirements. Laundry Estimated 1000 capable of surging to 7000 soldiers in one Camp on a monthly basis. Estimated Maximum: 6 Month/Camp x 5 Camps = 30 Months Period of Performance 1 FEB 2003 - 31 JULY 2003. 7,000 soldiers x 5 camps x 4 weeks x 21 items x 6 months = 17,640,000 pieces of clothing per six month. The average number of soldiers per camp per month is 3,500 soldiers. Equals 3,500 soldiers x 5 camps x 4 weeks x 21items x 6 months= 8,820,000 pieces of clothing per six month. This contract is Firmed Fixed Unit price with total item numbers adjustment.

NET AMOUNT KD FOB: Destination SUPPLIES/SERVICES

KD 2,169,465/-

ITEM NO 1002 OPTION

QUANTITY

UNIT Each

UNIT PRICE

AMOUNT

Option 1 FFP Camp Laundry Service - Base Period Fixed Unit Price - See Statement of Work for laundry requirements. Laundry Estimated 1000 capable of surging to 7000 soldiers in one Camp on a monthly basis. Estimated Maximum: 6 Month/Camp x 5 Camps = 30 Months Period of Performance 1 Aug 2003 - 31 January 2004. 7,000 soldiers x 5 camps x 4 weeks x 21 items x 6 months = 17,640,000 pieces of clothing per six month. The average number of soldiers per camp per month is 3,500 soldiers. Equals 3,500 soldiers x 5 camps x 4 weeks x 21items x 6 months= 8,820,000 pieces of clothing per six month. This contract is Firmed Fixed Unit price with total item numbers adjustment. PURCHASE REQUEST NUMBER: W90FGP30170103

(LESS 2.5% FROM ABOVE) NET AMOUNT KD 2,115,228

15

ITEM NO 1003

SUPPLIES/SERVICES Small items are 8 ounces or less FFP Small items are listed or characterized as the following: Socks, Bllack, Wool Socks, White, cotton Underwear Brown T-Shirt Grey T-Shirt Grey/Black shorts Wash cloth Assorted Colors - Any items 8 ounces or less PURCHASE REQUEST NUMBER: W90FGP30170103

QUANTITY

UNIT PRICE KD/FILS

AMOUNT KD

1,260,000 1,260,000 1,260,000 420,000 420,000 840,000 69,000

.215 .215 .215 .215 .215 .215 .215

270,900 270,900 270,900 90,300 90,300 180,600 14,835

NET AMOUNT KD FOB: Destination

1,188,735

ITEM NO 1004

SUPPLIES/SERVICES Large Items 9 ounces or more FFP -Desert Camouflage Uniforn Blouse -Desert Camouflage Uniform Pants -Polyproplyene Top -Polyproplyene Bottoms -Sweater, Brown -Sweat Pants, Grey/Black -Sweat Shirt/Jacket, Grey -Any Item 9 ounces or more moved stand PURCHASE REQUEST NUMBER: W90FGP30170103

QUANTITY

UNIT PRICE KD/FILS

AMOUNT KD

420,000 420,000 420,000 420,000 420,000 420,000 420,000

.240 .240 .240 .240 .240 .240 .240

100,800 100,800 100,800 100,800 100,800 100,800 100,800

NET AMOUNT KD FOB: Destination

705,600

16

ITEM NO 1005

SUPPLIES/SERVICES Sleeping Bags FFP 24-Hour turn around with Bi-monthly washing authorized -Sleeping Bag, Outer -Sleeping Bag, Green Insert -Sleeping Bag, Black Insert The list may me modified if mission dictates additional bulk item PURCHASE REQUEST NUMBER: W90FGP30170103

QUANTITY

UNIT PRICE KD/FILS

AMOUNT KD

105,000 105,000 105,000

0.555 0.555 1.200

58,275 58,275 126,000

NET AMOUNT KD FOB: Destination

242,550

ITEM NO 1006

SUPPLIES/SERVICES DCU starch and put on hanger FFP DCU will be lightly starched using non-ionizing starch, pressed, put on hanger and in a clear plastic bag. E-9 and O5 and above will receive this service. PURCHASE REQUEST NUMBER: W90FGP30170103

QUANTITY

UNIT PRICE KD/FILS

AMOUNT KD

36,000

0.905

32,580

NET AMOUNT KD FOB: Destination

32,580

37. The parties negotiated four firm-fixed unit prices. (Cockerham tr. 49). These fixed rates were not annotated in the contract. Id. 38. The firmed-fixed unit prices that were negotiated to and agreed upon by both parties were 0.240 fils6 for small item; 0.280 fils for large items; 0.587 fils for sleeping bags; and 1.450 KD for laundry bags. (Cockerham tr. 56). Award 39. Contract DABM06-03-C-0009 was awarded to appellant on February 17, 2003 to
6

Fils is a subdivision currency used in Kuwait. One Kuwaiti dinar equals 1,000 fils.

17

perform laundry services at five (5) separate and remote locations in Kuwait: Camp Pennsylvania, Camp Virginia, Camp New York, Camp New Jersey and Camp Connecticut. (R4 tab 3 at 15). The services to be required included loading, unloading, segregating, transporting, counting, washing, drying and obtaining necessary documents for the items within 72 hours of pick up (R4, tab 1 at 7, tab 3 at 9). 40. Modification P0001 among other things amended the contracts 6-month base period of performance to March 1, 2003 through August 31, 2003. (R4 tabs 3, 4). 41. The contract contained a 6-month option period. The option was exercised at the conclusion of the base period and later extended so the contract did not conclude until October 31, 2004. (R4, tabs 1-14). 42. In total, the performed under the subject contract for a total of 20-months and received $12,674,984.78. (Richardson aff.). The Contract Type: Firm-Fixed Unit Priced with Total Item Numbers Adjustment 43. The resulting contract was a firm-fixed unit-priced contract with total item numbers adjustment. (R4, tab 1 at 2, 21, 29, tab 3 at 2, 14). The contract is not a requirements contract. (amend. Compl. 18 and 30 at 5, 7). In its June 17, 2009 motion to amend the complaint appellant wrote:

by and through its Attorney, and without opposition from the Government, hereby moves the Board for an order permitted the Appellant to amend its complaint, pursuant to Rule 7 to correct a scriveners error regarding the type of contract; specifically, that they type of contract was a firm, fixed-price contract. In support, Appellant states as follows: 1. In paragraphs 18 and 30 of the Appellants original Complaint Contract No. DABM06-03-C-0009 was referred to erroneously as a requirements contract. 3. By this motion, Appellant seeks to clarify that the Contract is a firm, fixed-price contract, not a requirements contract and to remove all references indicating otherwise.

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(app. mot. at 1) (emphasis added). 44. Section C of the contract contained a Descriptions and Specifications under the title STATEMENT OF WORK that stated in paragraph 4. [t]he contractor shall provide 3 receipts for each soldiers laundry; one for the soldier, one for the contractor one for the COR to track on a DD250. 45. The appellant provided laundry slips in duplicate copies that tracked each item of laundry by type (small, large, sleeping bag) and quantity. (ex. 5). 46. Section C of the contract contained a Descriptions and Specifications under the title STATEMENT OF WORK. Paragraph 7. Stated: [t]he prices per items must be based on 4 categories, small items less than 8 ounces or less, large items, over 9 ounces, and sleeping bags. (R4, tab 3 at 5). 47. The parties negotiated firm fixed unit prices per type of item were as follows: 0.240 fils for small items; 0.280ls for large items; 0.587 fils for sleeping bags; and 1.450 KD for laundry bags. (Cockerham tr. 56). These firm-fixed unit rates were inadvertently left out of the contract. (Cockerham tr. 49, 56). 48. The contract identified that CLIN 1002 would be for small items, CLIN 1003 for large items, CLIN 1004 for sleeping bags (insert), and CLIN 1005 for sleeping bags (outer). (R4, tab 3 at 2-4).7 49. The appellant invoiced and was paid base upon these firm-fixed unit-price rates until

The contract was later modified to reflect CLIN 1003 small items, CLIN 1004 large items, and CLIN 1005 sleeping bags to mirror the invoices. (R4, tab 7).

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modification P0003. The invoices and corresponding payments are detailed below. 50. The contract funded each type of item by CLIN in the following amounts:
CLIN 1002 1003 1004 1005 TOTAL AMOUNT PLACED ON CONTRACT 1,341,628.25 KD 809,247.32 KD 61,662.68 KD 74,834.79 KD TYPE OF ITEM Small items Large items Sleeping bags (outer) Sleeping bag inserts FIRM FIXED UNIT RATE 0.240 fils 0.280 fils 0.587 fils 1.450 KD

(R4, tab 3 at 2-4). 51. The total contract award was KD 2,287,333.24 (USD 7,887, 356.00). (R4 tab 3 at 1 and 8). 52. Section C of the contract contained a Descriptions and Specifications under the title STATEMENT OF WORK that stated in paragraph 8 as follows: [t]he contractor shall report, to the COR, the number of laundry items serviced on the 30th of each month. (R4, tab 3 at 5). Paragraph 7 stated: [t]he prices per items must be based on 4 categories, small items less than 8 ounces or less, large items, over 9 ounces, and sleeping bags. Id. Paragraph 4 stated [t]he contractor shall provide 3 receipts for each soldiers laundry; one for the soldier, one for the contractor one for the COR to track on a DD250. Id. 53. Section I of the contract contained the ADJUSTMENT QUANTITY CLAUSE provided: The purpose of this clause is to state the Governments best estimate of pieces of laundry to be serviced. The contractor will be paid for the total number of pieces received for laundry service. If the quantity washed is lower than the total amount of the contract, the total amount paid will be equally reduced. . . .8 This contract is [a] firm-fixed-price with item adjustment. (R4 tab 1 at 21 and tab 3 at 14) (emphasis added). 54. The contract did not contain the FAR 52.216-21, REQUIREMENTS (OCT 1995) clause,

In other words if the services provided by the contractor did not equate to the governments estimated minimum, average or maximum numbers, the price of the contract would be equally reduced to avoid a surplus. If the services exceeded the governments maximum, the price of the contract would be adjusted to adequately compensate the contractor for the extra effort.

20

nor does it contain the FAR 52.216-22, INDEFINITE QUANTITY (OCT 1995) clause. (R4, tab 3). 55. The contract did incorporate the FAR 52.211-18, VARIATION IN ESTIMATED QUANTITY (APR 1984) clause. It states, in pertinent part: If the quantity of a unit-priced item in this contract is an estimated quantity and the actual quantity of the unit-priced item varies more than 15 percent above or below the estimated quantity, an equitable adjustment in the contract price shall be made upon demand of either party. (R4, tab 3 at 18). 56. CLIN 1001 stated: Laundry Service FFP Camp Laundry Service - Six Months Fixed Unit Price - See Statement of Work for laundry requirements. Laundry Estimated 1000 capable of surging to 7000 soldiers in one Camp on a monthly basis. Estimated Maximum: 6 Month/Camp x 5 Camps = 30 Months Period of Performance 1 March 2003 - 31 JULY 2003. 7,000 soldiers x 5 camps x 4 weeks x 21 items x 6 months = 17,640,000 pieces of clothing per six month. The average number of soldiers per camp per month is 3,500 soldiers. Equals 3,500 soldiers x 5 camps x 4 weeks x 21items x 6 months= 8,820,000 pieces of clothing per six month. This contract is Firmed Fixed Unit price with total item numbers adjustment. Contract may be extend for a maxinum of 6 six as mision requirement dictates. Also Clauses support a bilateral agreement of expanding the services to new locations.

(R4, tab 3 at 2). 57. The contact contained the same Delivery and Performance clause as was stated in the solicitation. (PFF 26, R4, tab 3 at 7). 58. The total amount obligated against Contract 0009 at award was $7,877,356. (R4, tab 3 at 8). 59. The contract contained a slightly difference contract requirements clause which stated: Section H - Special Contract Requirements

21

REQUIREMENTS Contract Requirements The Contractor shall repair and replace all items damaged or lost. The laundry service should include loading, unloading, segregating, transporting, counting, washing, drying and obtaining necessary document for the items picked up or delivered. The items must be delivered within 72 hours of the items picked up. The number of personnel will vary from 1000-7000 per Camp and the number of pieces of items will vary from 420,0002,940,000 per month. The delivery shall be for 5 camps. A tracking system must be in place for the COR to monitor and maintain receipts and DD250 for payment. (R4, at 3 at 10). 60. Section C - THE STATEMENT OF WORK of the contract, paragraph 2, provided that the contractor shall provide an effective pickup and delivery system with reliable transportation. The contractor must have a back up facility or plan in the event the facility becomes contaminated or destroyed. . . . (R4 tab 3 at 5). Paragraph 1, provided the contractor must be able to provide the required laundry service for the number of soldiers anticipated. The contractor must be able handle daily routine operation and surge to meet larger requirement within 3 days of notification of increased requirement. Id. 61. Technical Exhibit 1 provided: Section J - List of Documents, Exhibits and Other Attachments TECHNICAL EXHIBIT 1 Approximate numbers of personnel per camp is 1000-7000 soldiers. All laundry items shall be turned-in inside a laundry bag furnished by the soldier or a plastic bag furnished by the contractor with the last four numbers of the soldiers Social Security Number written on the inside of his/her clothing. All Items shall be folded and returned in a plastic bag. O-5 and above and E-9 should have the Desert Camouflage Uniform (DCU) Blouse and Pants which shall be pressed and on a hanger, and in a transparent cover. (R4, tab 3 at 14). 62. The Supplies and Services guidelines provided: The contractor shall provide laundry pick up and delivery service. The contractor shall repair and replace all items damaged or lost. The service should include 22

loading, unloading, segregating, transporting, counting, washing, drying and obtaining necessary documents for items picked up or delivered. The items must be delivered within 72 hours from the picked up time. Laundry Facilities are subject to inspection before and after awarding of contract. (R4, tab 3 at 16). 63. The contract also contained 52.217-7 OPTION FOR INCREASED QUANTITY-SEPARATELY PRICED LINE ITEM (MAR 1989), which stated: The Government may require the delivery of the numbered line item, identified in the Schedule as an option item, in the quantity and at the price stated in the Schedule. The Contracting Officer may exercise the option by written notice to the Contractor within 30 days. Delivery of added items shall continue at the same rate that like items are called for under the contract, unless the parties otherwise agree. (End of clause) (R4, tab 3 at 18) (emphasis in the original). 64. The contract also contained the following clauses: 52.217-8 OPTION TO EXTEND SERVICES (NOV 1999) 52.217-9 OPTION TO EXTEND THE TERM OF THE CONTRACT (MAR 2000) 252.237-7014 LOSS OR DAMAGE (COUNT-OF-ARTICLES). (DEC 1991) 252.237-7016 DELIVERY TICKETS (DEC 1991) The Governments Estimate 65. The contract estimated the range of soldiers in each camp would be 1,000 soldiers capable of surging up to 7,000 soldiers per camp on a monthly basis. (R4, tab 1 at 2, 7, 22, tab 3 at 2, 9, 15). 66. The contract estimated the total number of items to be laundered would range from 2,520,000 to 17,640,000 (R4, tab 1 at 2, 7, 22, tab 3 at 2, 9, 15). 67. The total contract award was KD 2,287,333.24 (USD 7,887, 356.00). (R4 tab 3 at 1 and 8). 68. For small items, a total of 1,341,628.25 KD was placed against CLIN 1002; for large items, a total of 809,247.32 KD was placed against CLIN 1003; for sleeping bags (outer), a total 23

of 61,662.68 KD was placed against CLIN 1004; and for sleeping bag inserts, a total of 74,834.79 was placed against CLIN 1005. Appellant Also Understood That the Low End of the Governments Estimate was 1,000 Soldiers; Appellant Understood That the Other Military Laundries Existed; and Appellant Understood the Adjustment Quantity Clause 69. On or about February 22, 2003, Mr. Lionel B. Gittens, appellants managing director, acknowledged in an email that it was hopeful the military could meet the low end of the requirement, he described as of 1,000 soldiers per camp using an estimate of 21 pieces because most existing military laundries at that time were collecting 500 bags per day. (ex. 8). 70. Appellant in its weekly activity report for the period of April 3-10, 2003, acknowledged the low end of the governments estimate as servicing 1,000 per camp. (ex. 9). 71. Appellant submitted charts where the y-axis on the chart begins at zero and increases to 1,000 and the x-axis ranges from March 16, 2003 to August 17, 2003 by week. (ex. 10). These charts also reflect appellants understanding that the low end of the governments estimated range was 1,000. Id. 72. On or about July 6, 2003, Sheila Gittens, appellants principal officer, emailed the contracting officer to inquire about ironing services. (ex. 11). In the email, Ms. Gittens acknowledged that the contract was based on an estimate of 1,000 to 7,000. Id. 73. On or about June 19, 2003, during the negotiations for modification P0003, Ms. Gittens emailed the contracting officer specifically requesting that the adjustment of quantities clause in the contract be restated. (ex. 12). Ms. Gittens cited to, Section I, page 14, of the 0009 contract and said, there is a reference to a price adjustment if quantity changes. We request that this clause be revised to specifically state what happens if the quantity falls below an acceptable level as we are experiencing here. Id. In that same email, Ms. Gittens acknowledged the 24

governments estimated range to be between 1,000 and 7,000 in each camp. Id. Contract Performance, Invoicing and Payment 74. Performance began March 1, 2003. (R4, tab 4). 75. On March 31, 2003, appellant submitted invoice number 3079 for a total of 281,564 items against CLIN nos. 1003, 1004, and 1005 at the following firm fixed unit prices for the following quantities:

FOR THE MONTH OF MARCH 2003 ITEM DESCRIPTION CLIN NO. 1 2 3 4 Small Items Large Items Sleeping Bags (outer shell) Sleeping Bags (Black Insert) Total Quantity 1003 1004 1005 1005

QTY 230895 50627 40 2 281564

UNIT PRICE 0.240 0.280 0.587 1.450

VALUE K.D. FILS 55414.800 14175.560 23.480 2.900

(ex. 6). The contracting officer approved 61,958.898 KD for payment for the total quantity of items appellant laundered in March 2003 at the contracts firm fixed unit rates. (ex. 6). 76. On April 30, 2003, appellant submitted invoice number 3091 for a total of 388,449 items against CLIN nos. 1003, 1004, and 1005 at the following firm fixed unit prices for the following quantities: FOR THE MONTH OF APRIL 2003 ITEM DESCRIPTION CLIN NO. 1 2 3 4 Small Items Large Items Sleeping Bags (outer shell) Sleeping Bags (Black Insert) Total Quantity 1003 1004 1005 1005

QTY 283034 97493 7860 62 388,449 25

UNIT PRICE 0.240 0.280 0.587 1.450

VALUE K.D. FILS 67928.160 27298.040 4613.820 89.900

(ex. 6). The contracting officer approved 94,933.424 KD payment for the total quantity of items appellant laundered in April 2003 at the contracts firm fixed unit rates. (ex. 6). 77. On May 31, 2003, appellant submitted invoice number 3133 for a total of 510,506 items against CLIN nos. 1003, 1004, and 1005 at the following firm fixed unit prices for the following quantities: FOR THE MONTH OF MAY 2003 ITEM DESCRIPTION CLIN NO. 1 2 3 4 Small Items Large Items Sleeping Bags (outer shell) Sleeping Bags (Black Insert) Total Quantity 1003 1004 1005 1005

QTY 438589 71575 85 257 510506

UNIT PRICE 0.240 0.280 0.587 1.450

VALUE K.D. FILS 105261.360 20041.000 49.895 372.650

(ex. 6). The contracting officer approved 124,467.656 KD in payment for the total quantity of items appellant laundered in May 2003 at the contracts firm fixed unit rates. (ex. 6). 78. On June 30, 2003, appellant submitted invoice number 3156 for a total of 489,752 items against CLIN nos. 1003, 1004, and 1005 at the following firm fixed unit prices for the following quantities: FOR THE MONTH OF JUNE 2003 ITEM DESCRIPTION CLIN NO. 1 2 3 4 Small Items Large Items Sleeping Bags (outer shell) Sleeping Bags (Black Insert) Total Quantity 1003 1004 1005 1005

QTY 423300 65911 98 443 510506

UNIT PRICE 0.240 0.280 0.587 1.450

VALUE K.D. FILS 101592.000 18455.080 57.526 642.350

26

(ex. 6). The contracting officer approved 120,746.956 KD in payment for the total quantity of items appellant laundered in June 2003 at the contracts firm fixed unit rates. (ex. 6). 79. On July 31, 2003, appellant submitted invoice number 3193 for a total of 415,667 for CLIN Nos. 1003, 1004, and 1005 at the following firm fixed unit prices for in following quantities: FOR THE MONTH OF JULY 2003 ITEM DESCRIPTION CLIN NO. 1 2 3 4 Small Items Large Items Sleeping Bags (outer shell) Sleeping Bags (Black Insert) Total Quantity 1003 1004 1005 1005

QTY 369688 45537 66 376 415667

UNIT PRICE 0.240 0.280 0.587 1.450

VALUE K.D. FILS 88,725.120 12,750.360 38.742 545.200

(ex. 6). The contracting officer approved 102,059.422 KD in payment for the total quantity of items appellant laundered in July 2003 at the contracts firm fixed unit rates. (ex. 6). 80. On August 31, 2003, appellant submitted invoice number 3218 for a total of 350,973 items against CLIN nos. 1003, 1004, and 1005 at the following firm fixed unit prices for the following quantities: FOR THE MONTH OF AUGUST 2003 ITEM DESCRIPTION CLIN NO. 1 2 3 4 Small Items Large Items Sleeping Bags (outer shell) Sleeping Bags (Black Insert) Total Quantity 1003 1004 1005 1005

QTY 310524 39857 79 513 350973

UNIT PRICE 0.240 0.280 0.587 1.450

VALUE K.D. FILS 74525.760 11159.960 46.373 743.850

(ex. 6). The contracting officer approved 86,475.943 KD in payment for the total quantity of

27

items appellant laundered in August 2003 at the contracts firm fixed unit rates. (ex. 6). Total Amount of Laundry/Money Received by Appellant under the Contract 81. Appellant received KD 589,555.97 ($1,976,962.43 USD) for the base period of performance (1 March 2003 to 31 August 2003). (Richardson aff.). 82. Appellant invoiced and received payment for laundering 2,436,911 pieces of laundry from March 1, 2003 to August 31, 2003.9 (Richardson aff.). 83. Appellant invoiced and received payment for laundering 1,088,869.161 kg of laundry from September 1, 2003 to October 31, 2004. (Richardson aff.). 84. Appellant received a total of $12,674,984.78 dollars under the contract. (Richardson aff.). Modification P0003: Changes the Unit of Measurement under the Contract from Pieces to Kilograms to Conform to the way Appellant was actually tracking the Laundry 85. Upon routine quality control inspections, conducted by contracting officer Colleen Rodriguez, it was observed that the appellant was not counting the pieces of laundry as required by the contract. The appellant was weighing the laundry and estimating the pieces based on the weight. (Rodriguez dep. tr. 29-30). 86. The contracting officer Colleen Rodriguez observed: Well, one of the things, if you look at the basic contract, they called out the number of items and what they were saying was that they were being paid based on the number of socks or underwear or whatever that was being, you know, turned in by the soldiers. And I paid a visit to one of the camps and I watched them. And what they were doing is they were not counting the items, they were throwing them on a scale and weighing them.

(Rodriguez dep. tr. 27). 87. Based on appellants weighing the items vice tracking the individual pieces the contracting officer recommended that the unit of measurement in the contact be changed from
9

This equates to an average of 406,152 pieces per month.

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pieces to kilograms. She stated: I recommended that the contract be restructured to reflect that the laundry be paid by weight versus individual items. I recommended that the advance payment clause be removed because it was cut into the contract without proper authority. And I recommended that we change the estimates to be more in line with what the invoices were showing. (Rodriguez dep. tr. 29-30). 88. The contracting officer administered portions of this contract. (Rodriguez aff.). She approved the invoice appellant submitted for payment during the first six months of the base period. Id. 89. The contracting officer requested that the appellant propose new firm fixed unit pricing by kilogram verse weight. (ex. 7). 90. In response to the contracting officers request the appellant, in a letter addressed to contracting officer Colleen Rodriguez, dated September 1, 2003, proposed new firm-fixed unit prices by weight (2.890 per kilogram and 3.250 per kilogram). (ex. 7). 91. Appellant contended that new rate of 2.890 kilograms, even thought it was by kilogram verses by piece, was comparable to the piece rate for CLIN 1003 for small items (0.240 fils). Id. Appellant demonstrated this comparability by stating 240 fils multiplied by 12 pieces (1 kilogram) equals KD 2.880, as you can see, this is only an increase of 10 fils. Id. As illustrated below: 1 kilogram is equal to approximately 12 small pieces of laundry The piece meal rate for small items is .240 fils 12 (the estimated number of pieces) x .240 fils (the firm fixed unit rate for small itmes) = KD 2.880 The new rate is KD 2.890 per kilogram (or per 12 small pieces)

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Thus, this is only a increase of 10 fils 92. Despite the quantity of laundry services appellant received during the months of March through August 2003, appellant chose not to increase the firm-fixed unit rate by more than 10 fils. Id. 93. On September 1, 2003, the parties executed modification P0003 to exercise the option and correct the unit of measurement to conform to the appellants practices. (Rodriguez dep. tr. 27-29). 94. After the exercise of the option and extensions, performance ended on October 31, 2004. (R4, tabs 1-14). 95. After Modification P0003, the appellant invoiced and was paid for laundering 1,088,869.16 kilograms of laundry (or 13,066,429.92 small pieces) from September 1, 2003 to October 31, 2004.10 96. Appellant was paid KD 3,147,662.66 ($10,698,022.35) for the 1,088,869.16 kilograms of laundry services it provided during the option period and extension periods (September 1, 2003 through October 31, 2004). (Richardson aff.). Actual Pieces Laundry Laundered under the Contract 97. During the 6-month base term, the actual amount of laundry provided to AGT from the five camps was 3% below the lowest quantity estimated in the governments requirements. 98. The government estimated that appellant could receive as few as 2,520,000 pieces of laundry (assuming 1,000 soldiers use the service) during the base period. Appellant actually received 2,436,911 during the base period, just 3% below what was estimated. 99. During the option and extension periods, appellant received 1,088,869.16 kilograms of

10

This equates to approximately 13,066,430 pieces (1,088,869.16 kilograms x 12 pieces per kilogram), which is 933,316 pieces per month on average.

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laundry (or 13,066,429.92 small pieces) for service, for which appellant was paid KD 3,147,662.66 ($10,698,022.35). 100. Over the 20-month contract appellant was paid $12,674,984.78 of $13,500,676.09

(obligated on contract). (Richardson aff.). 101. 102. Appellant received 94% of all monies obligated under this contract. (Richardson aff.). In total, over the life the contract the appellant laundered 15,503,341 pieces of

laundry and received $12,674,984.78. (Richardson aff.) 103. Appellant was paid at the negotiated firm-fixed unit price for all of the laundry it

actually serviced during the contract. (Richardson aff.). Camp Victory and the 35th Brigade 104. The contracting officer, Colleen Rodriguez, negotiated with Ms. Shelia Gittens,

appellants principal officer, to obtain laundry services at the contracts firm-fixed unit rates. (Rodriguez aff.). 105. Contracting officer Rodriguez understood that the firm-fixed unit price for small

items was 0.240 KD, for large items it was 0.280 KD, for sleeping bags (outer shell) it was 0.587 KD, and for sleeping bags (Black Insert) it was 1.450 KD. (Rodriguez aff.). 106. The contracting officer did not agree a laundry service contract at increased unit rates.

(Rodriguez aff.). 107. The contracting officer did not agree to fund construction of facilities in connection

with the provision of laundry services at Camp Victory and the 35th Brigade. (Rodriguez aff.). 108. The last line of CLIN 1001 of the contract stated [a]lso Clauses support a bilateral

agreement of expanding the services to new locations. (R4, tab 3 at 2). 109. The solicitations description of delivery and performance stated that the contractor

31

would provide a shed or cover for issuing laundry to protect soldiers from the elements. (R4, tab 1 at 5). 110. Neither the solicitation nor the contract allowed for the reimbursement of shed,

covers, or facilities used by the contractor to issue laundry to the service members. The contract was strictly for services at negotiated firm-fixed unit rates, not for the construction of facilities. (Rodriguez aff.). 111. The contracting officer expected that appellants costs were built into its firm-fixed

unit rates. (Rodriguez aff.). 112. When the contracting officer queried Shelia Gittens to see if appellant could provide

laundry services at Camp Victory and the 35th Brigade, she was only expecting her to provide services at the firm-fixed unit rates as reflected in the basic contract. (Rodriguez aff.). 113. The contracting officers expectations were based on the terms and conditions of

contract, specifically the Adjustment Quantity Clause which read: [t]he purpose of this clause is to state the Governments best estimate of pieces of laundry to be serviced. The contractor will be paid for the total number of pieces received for laundry service. If the quantity washed is lower than the total amount of the contract, the total amount to be paid will be equally reduced. If the contractors laundry service items total exceeds the amount of the contract at the end of 6 months the contractor will receive an equitable adjustments increase. The contract is Firm fixed price with item adjustment. This contract is for 6 months with an option [sic] clauses to extend. The contractor shall have 11 days to mobilize [sic] and be fully operational by 26 February 2003. (Rodriguez aff.). 114. The contracting officer also based her expectations on FAR Clause 52.217-7 entitled

Option for Increased Quantity Separately Price Line Item (Mar 1989) which read, The government may require the delivery of the numbered line item, identified in the Schedule as an option item, in the quantity and at the price stated in the Schedule. The contracting officer may

32

exercise the option by written notice to the Contractor within 30 days. Delivery of added items shall continue at the same rate that like items are called for under the contract, unless the parties otherwise agree. (Rodriguez aff.). 115. Appellant billed and was paid for the all the laundry services under the subject

contract, including the Camp Victory and the 35th Brigade area, at the firm-fixed unit prices. (Rodriguez aff.). The Invasion of Iraq 116. Theater level preparation for war with Iraq began in September 2002 following the

Secretary of Defense approval of CENTCOMs Preparatory Task Lists and subsequent funding authority to upgrade the military support/throughput capacity in Kuwait in anticipation of a Presidential directive to invade Iraq. (Stratman aff.). 117. Major General Stratman (Retired) (hereinafter MG (Ret.)), was the Deputy

Commander, Coalition Forces Land Component Command (CFLCC) in support of U.S. Central Commands Operation Iraqi Freedom combat operations, (known as the DCG-S). In this role he served as the Head Contracting Authority (HCA) and directly over saw the Principal Assistant Responsible for Contracting (PARC), Colonel retired Mark R. Neumann. (Stratman aff.). 118. In accordance with the planning assumptions of our campaign plan (Cobra II), and

CFLCCs Preparatory Task List, MG (Ret.) Stratman oversaw the creation of multiple base camps in Kuwait to support the flow of forces into theater in the event of war with Iraq. (Stratman aff.). 119. Because the Army fought as Brigade Combat Teams and known/projected force

levels, in late 2002, MG (Ret.) Stratman set the troop capacity to be supported in each camp at 5000 to 7000 soldiers. It was understood that each camp needed this level of troop support

33

capacity. (Stratman aff.). 120. CFLCC developed a concept of support, with the use planning assumptions and

standard planning factors that at that time were designed to facilitate rapid operational maneuver and movement, and to sustain operations over long lines of communication (LOCs) with a responsive, dependable and predictable distribution system. This support concept is dependent upon a combination of unit capabilities to self-sustain for 5 days, a maximum pre-positioning of combat equipment in Theater, a well-focused Theater sustainment base, and a robust Theater Distribution System. (Stratman aff.). 121. The Campaign Plan provided for major troop staging and logistical support functions

to be performed in the Southern Region (Kuwait), augmented by a Northern supporting axis from Turkey. However, the Turkish government in early March 2003, disapproved the US governments request to flow 4th Infantry Division (4ID) forces thru Turkeynecessitating their deployment through Kuwait in the April/May 2003 timeframe and 4ID occupied the 5 camps during their Reception, Staging & Onward movement, and Integration (RSOI) activities prior to deploying into Iraq. The 4ID arrived in Kuwait in late March early April 2003. (Stratman aff.). 122. Planning factors called for the majority of the Kuwait camps to be enduring following

an invasion of Iraq for follow-on forces (e.g., 4ID)/reinforcements; and for retrograde/redeployment base camps. However, the decision to disband the Iraq Regular Army significantly impacted CFLCCs Stability and Support plans and prolonged the occupation phase of the campaign. (Stratman aff.). 123. In February of 2003, neither MG (Ret.) Stratman nor his staff knew when the

President would order the invasion of Iraq. Although military forces were staged in Kuwait, uncertainty was rampantprimarily because the United States had never attacked another nation

34

without first being directly attacked by that nation. President Bushs precedent-setting decision to topple Saddams Regime was not a foregone conclusion. (Stratman aff.). 124. One of the MG (Ret.) Stratmans greatest concerns prior to the Presidents decision,

was how to sustain the forces in theater if the order to invade was deferred indefinitely to allow the political/diplomatic process more time to work. While there had been several warning orders (WARNOs) directing the command to be prepared a certain date of invasion was not known by the command until mid-March 2003. (Stratman aff.). 125. CFLCCs mission was to be prepared to execute On Orders of the Commander-in-

Chief. (Stratman aff.). 126. MG (Ret.) Stratman, first learned that the President had directed the invasion of Iraq

on March 17, 2003 during a General Officer huddle with Lieutenant General ( LTG) McKiernan, Commanding General, CFLCC. (Stratman aff.). 127. After the start of the ground invasion, on or about 20 March 2003, forces continued to

flow into theater. The 4th Infantry Division, was the major follow-on force to flow through the Kuwait camps after G-Day. (Stratman aff.). 128. Colonel (COL) Mark R. Neumann (Retired) (hereinafter COL Neumann Ret.)

served as the CFLCC Principal Assistant Responsible for Contracting (PARC) in 2003. COL Neumann (Ret.) had direct contracting responsibility and oversight for all designated contingency contracting assets/operations in theater. All Army and Service Component Liaisons for contracting fell under his operational control. COL Neumann Ret. reported directly to Sandy Seiber and supported MG (Ret.) Stratman. (Neumann aff.). 129. The contracting officer, Lieutenant Colonel (LTC) Marshall Kevin May (Retired)

(hereinafter LTC May Ret.) the director of the Kuwait-Directorate of Contracting (KU-DOC)

35

reported directly to COL Neumann (Ret.). (Neumann aff.). 130. In January and February of 2003, neither COL Neumann (Ret.), nor anyone under his

control and authority knew when or if the President was going to give the call to invade Iraq, including the KU-DOC, LTC May. Forces had been massed in Kuwait before, with tanks placed along the border, and no call to invade ever came. In early 2003, the command was not working with perfect information. No one knew when troops might cross the line of demarcation. (Neumann aff.). 131. In February of 2003, COL Neumann (Ret.) specifically asked the CFLCC Chief of

Staff (CoS) how many soldiers and marines can we expect? To which the CoS replied, I dont know, the TPFDL [Time Phased Force Deployment List] has not been approved, it is with Donald Rumsfeld. (Neumann aff.). 132. COL Neumann (Ret.), then inquired of the CoS [h]ow many folks does it take to

invade a county? The CoS replied that it would take at least ten divisions (or APPROX 100,000 troops). (Neumann aff.). 133. Neither the PARC nor his staff would been involved in nor had access to CFLCC war

planning documents, except that portion of the Annex that pertained to Contingency Contracting. (Neumann aff.). 134. The charge was to build contracted supply capacity for deploying and returning

troops to allow commanders the greatest amount of control over their forces. The DOC used existing contracts to the maximum extent possible. At the time, the existing laundry service providers included AIK and LOGCAP. To meet the increasing demand the DOC contracted with other vendors, like AGT, to make up the difference. (Neumann aff.). 135. The DOC had no actual data on the exact number of troops expected they simply had

36

to be ready, should the call come. (Neumann aff.). 136. A projected range of 1,000 to 7,000 troops per camp would have been reasonable

based on the information know to us at the time. The rear-detachment personnel, permanently assigned to those camps, totaled (over 1,000 troops alone). This did not account for the staff element, over 1,000 personnel, Marine forces, sister services, nor our coalition partners. (Neumann aff.). 137. MG (Ret.) Stratman directed COL Neumann (Ret.) to build capacity for 5,000 to

7,000 to troops in each of the Kuwait camps (NY, NJ, CT, PA, and VA) based on the known elements and projected numbers. To allow commanders of Brigade Combat Teams to Divisions (approximately 5,000 up to 20,000 troops) greater command and control of their forces. The DOC expected the aforementioned camps to be used for Reception, Staging, Integration and Onward movement, RSOI, as well as training bases for forces as forces flowed through Kuwait into Iraq. The DOC contemplated that the Kuwaiti camps would have an enduring presence. Neither the PARC nor his staff envisioned that the aforementioned camps in Kuwait would be emptied, if or, when the invasion order was ultimately given. (Neumann aff.). 138. Based on guidance from senior leadership, in early 2003 COL Neumann (Ret.)

directed LTC May (Ret.) to build capacity to support up to ten divisions. Based COL Neumanns (Ret.) guidance, LTC May (Ret.) should have been preparing to support 5,000 to 7,000 troops, if not upwards of 10,000, troops in each of the five Kuwaiti camps mentioned above. This guidance would have specifically included support for laundry services. (Neumann aff.). 139. COL Neumann (Ret.) the PARC first learned that CFLCC was going to war when it

was announced. COL Neumann (Ret.) did not know for certain an invasion was going to occur

37

on or about March 20, 2003 until this announcement was made to the CFLCC staff. (Neumann aff.). 140. LTC May (Ret.) the contracting officer testified at his deposition that:

Q. All right. And how long before the invasion of Iraq was it first discussed that an invasion in -- in spring could occur? A. I don't recall a meeting talking specifics about when the war would occur. We didn't -- I didn't know, and I'm quite sure Colonel Brown didn't know or Colonel Neumann didn't know, when exactly we were going to war. Was it going to be the spring, the fall, the summer, or the winter. (May Dep. tr. 99). Q. Did you ever talk about the potential invasion of Iraq at any of those staff meetings? A. You asked me that before, and I told you no. I don't recall talking about... Q. Okay. And just to clarify, my question before was in reference specifically to Mr. Brown. This time I'm asking in reference to the Department of Logistics. Did you -A. Oh. Q. Did you ever discuss a potential of invasion of Iraq at any communication you had with the Department of Logistics personnel? A. I -- I don't recall that, sir. Because my -- my responsibility and my mission was contracting. (May Dep. tr. 103). Q. Okay. Do you recall at any point in time while you were in Kuwait having heard that the Kitty Hawk was sent to the Persian Gulf? A. No. Sir, so I make you understand something. I'm speculating, but these seem like to be news headlines. I'm a soldier on the ground in Kuwait. I would not be concerned with what my senior leaders in another force would be doing. All I know is I trust them to do the right thing by the soldiers. My job was to make sure we had contracting capabilities and support ready to go for whatever happens, when it happens. (May dep. tr. 109-10). Q. But as someone involved in contracting, wasn't it your concern if you see a lot more soldiers to make sure they have enough food, enough toilet paper, enough fuel, and everything that you're responsible for?

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A. No, sir. Unless that unit commander or senior person who is responsible for requirement document came into contracting, as a request for support, then, no. Because what you just said, toilet paper, all this other stuff could have came through the Logistic pipeline, or they could have brought it with them. So it doesn't concern me, sir. Unless you knock on my door and submit that requirement -- requirements document to me, that's funded. Then I'm ready to go with a contract. (May dep. tr. at 112-13). The only thing I remember about those Camps, sir, is that they were used prior to the war, they were used like we use our exercise area out in California, the NTC, National Training Center. And when the war started, they were used as support areas, staging areas prior to going into Iraq. That's what I recall. (May dep. tr. 31-32). Inmate Cockerham testified at his deposition that no one knew the numbers.

141.

(Cockerham dep. tr. 62-63). Q. Okay. You know, months prior, when you first heard about an actual invasion what was your what was you understanding of how many soldiers would be leaving these camp- -- these five camp? A. Heres what were told. The number were really unknown. What we did know is that we wanted a large troop build up in Iraq and that those camps would be a pass-through to Iraq and we were those camps were established to handle the max planes coming in and and basically an overflow so those camps was passed on an average of having 30,000 soldiers on the ground at one time prior to passing into Iraq. And that is why we wrote the specific language in Exhibit 1, page 21. If youll go to the adjustment quantity clause, that was put in there just for that reason. Id. (emphasis added). 142. Inmate Cockerham testified that the contracts were written so that there were clauses

so that we could make adjustments. (Cockerham dep. tr. 27). 143. The CFLCC invasion plan that supported U.S. Central Command's Campaign Plan

1003V and was titled COBRA II. (Benson aff.). COL Kevin Benson (Ret.) led the development of and watched the execution of COBRA II. COBRA II was a multi-phased operational plan. 39

Phase III was the initiation of combat operations and the decisive maneuver to Baghdad. Phase IV completed regime removal and transition to civil authority. Phases I and II were preparatory phases that set the conditions for the start of Phase III should the President order the invasion. The initiation of Phase III or combat operations is a political decision, made by the President. Id. 144. A specific G-Day date of March 20, 2003 was not contemplated by COBRA II nor

CFLCC planners in January and February of 2003. COBRA II specifically stated that Phase III or D-Day/G-Day would commence when directed. (Benson aff.). 145. COBRA II was developed with the use of planning assumptions and standard

planning factors. CFLCC planners used an unspecified C-Day and D-Day for planning. C-Day represented the date of deployments to the Iraq Theater of operations would commence while DDay and G-Day represented the start of major combat operation and the initiation of a ground force invasion respectively. At times these terms, D-Day and G-Day, were used interchangeably. (Benson aff.). 146. COBRA II did not indicate the actual date for G-Day or when the ground invasion

was to begin. CFLCC planners did not assume that G-Day was a foregone conclusion. When Secretary of Defense Donald Rumsfeld advised planners that he was not going to approve a Time Phased Force Deployment List (TPFDL) in late January 2003, he made it clear to planners that the initiation of combat operations was a decision that was to be made by the Commanderin-Chief. As the President had not yet decided whether to use a military option he, the secretary, was not going to approve a TPFDL as this would put the US on a path to war and that decision had not yet been taken. To continue the flow of forces, the Secretary of Defense directed that specific Requests for Forces (RFF) be developed as needed. As a result, commanders and planners had to build packages for forces on an individual basis to be personally approved or

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disapproved by the Secretary of Defense. (Benson aff.). 147. We used a planning assumption of 3,500 to 7,000 soldiers at Camps Virginia, New

York, New Jersey, Pennsylvania, and Connecticut Camps in Kuwait as that number allowed commanders the most flexibility. (Benson aff.). Building camps to support this capacity would allow the commander the flexibility of staging a range of forces from a Brigade Combat Team (approximately 5,000 troops) to a Division (up to 20,000 troops) in the camps. Id. Planners expected the aforementioned camps to be used for Reception, Staging, Integration and Onward movement, RSOI, as well as training bases for forces as they flowed through Kuwait into Iraq. Planners envisioned these forces would have a continuing presence in Kuwait as the camps would also be used for relief-in-place operations. Id. 148. Neither CFLCC planners nor COBRA II contemplated that the aforementioned camps

in Kuwait would be emptied after the beginning of G-Day. (Benson aff.). 149. Neither COL Benson (Ret.) nor his counterparts in CENTCOM J5 were aware on or

before March 17, 2003 that a ground invasion was going to commence on or about March 20, 2003. (Benson aff.). 150. Given that going to war is a political decision, COL Benson (Ret.) and the CFLCC

planners drove themselves to be ready to execute the plan when directed or on order. (Benson aff.). 151. COL Benson (Ret.) first suspected that CFLCC was going to war on March 17, 2003,

after a conversation with LTG McKiernan about Phase IV. On March 17, 2003, LTG McKiernan told COL Benson (Ret.) that he had to get through Phase III before he could think about Phase IV. COL Benson (Ret.) did not know for certain D/G-Day was March 20, 2003 until late on March 18, 2003. (Benson aff.).

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152.

Of relevance here, as it relates to the 6-month base period, the population of troops in

the camps was only taken from March through June of 2003. (MAJ Eggers aff.). During those months the population in the camps (also called Kabals11) was 18,839 in March 2003, 31,632 in April of 2003, 19,995 in May of 2003, 16,285 in June of 2003. (MAJ Eggers aff.). After June of 2003 the only data that was reported was by country not camp. Id. 153. The military population in Kuwait by month beginning in July of 2003 is as followsJuly 2003 August 2003 September 2003 October 2003 November 2003 December 2003 January 2004 February 2004 March 2004 April 2004 May 2004 June 2004 July 2004 August 2004 September 2004 October 2004 41,982 37,982 31,111 22,719 26,814 19,493 45,806 84,091 64,015 26,897 22,631 23,331 22,287 20,837 19,741 21,140

(MAJ Eggers aff.). 154. Some soldiers chose not to use services of appellant and washed their laundry by

hand. (ex. 13). STATEMENT OF DISPUTED GENUINE ISSUES OF MATERIAL FACT In accordance with Rule 5(b) and the Boards guidance for Summary Judgment motions revised October 1, 2009, the government asserts that disposition of this case by summary judgment motion is appropriate for the reason stated in this motion. Specifically, the type of
11

The population chart attached to MAJ Eggers affidavit lists the combined population of the Camps under the heading Kabals.

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contract is not subject to a claim of negligent estimate and contract interpretation is a matter of law that is appropriate for disposition by summary judgment motion. Conversely, appellants motion for summary judgment should be denied based on the following genuine issues of material fact. 1. The government disputes that Contract 0009 is a firm-fixed price requirements type contract. The government avers that Contract 0009 is a firm-fixed unit price contract with total item adjustment. 2. The government disputes that Contract 0009 is subject to a claim of negligent estimate. The government avers that Contract 0009 is not enforceable as a requirement contract, an indefinitely quantity contract, or a definite quantity contract. 3. The government disputes that the DOC-KU knew of a March 20, 2003 invasion on or about January-February 2003. The government avers that the DOC-KU did not know in January and February of 2003 that a ground invasion was to take place on March 20, 2003 as the president had not yet taken that decision. 4. The government disputes that the DOC-KU should have known a March 20, 2003 invasion was imminent. The government avers that the President could have chosen a nonmilitary solution or initiated the start of the ground invasion at a much later date. 5. The government disputes that its estimate was 3,500 troops. The government avers that it estimated a range of 1,000 to 7,000 soldiers would likely use the laundry services. Soldiers use of the laundry services was optional. Some soldiers chose not to use the services of appellant. 6. The government disputes that its estimate was negligent. The government avers that its estimated range of 1,000 to 7,000 soldiers was reasonable based on the information available to it at the time.

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7. The government disputes that the appellant and the government entered into a implied-infact contract for construction of laundry facilities and additional laundry services at increased firm-fixed unit prices. The government avers that Contract 0009 allowed the government to require the delivery of the numbered line items, identified in the schedule as an option item, in the quantity and at the price stated in the schedule. Under the contract, delivery of those added items were to continue at the same rate that like items were called for under the schedule, unless the parties agree otherwise (and the parties did not agree otherwise). Further, the contract required the contractor to provide a shed or cover for issuing laundry it its cost. 8. The government specifically disputes appellant proposed finding of fact numbers 3, 7, 8, 11, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 28, 29, 30, 33, 39, 40, 41, 42, 43, 45, 46, 47, 48, 50, 51, 54, 55, 56, 57, 58, 65, 66, 67, 69, 70, 71, 72, 73, 74, 76, 78, 82, 83, 84, 85, 86, 90, 92, 94, 98, 99, 101, 104, 105 and 107. 9. The information contained in appellants PFFs 24, 27, 36, 52, 59, 60, 61, 62, 63, 68, 75, 77, 79, 80, 81, 87, 89, 91, 93, 95, 96, 97, and 100 is within the purview of the appellant so the government can neither dispute nor confirm them. ARGUMENT Summary judgment is properly granted only where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). [S]ubstantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Colbert v. Potter, 471 F.3d 158, 164 (D.C. Cir. 2006). The moving party bears the burden of establishing the absence of any genuine issue of material

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fact and all significant doubt over factual issues must be resolved in favor of the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Pure contract interpretation is a question of law which may be resolved by summary judgment. P.J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed. Cir. 1984); Textron Defense. Sys. v. Widnall, 143 F.3d 1465, 1468 (Fed. Cir. 1998). Determination of the type of contract the parties entered into is generally a matter of law. Maintenance Engineers, Inc. v. United States, 749 F.2d 724, 726 n.3 (Fed. Cir. 1984). AGT claims that the government breached this laundry contract by negligently estimating its laundry requirements for the five camps. It contends that prior to award of the contract, the government had actual knowledge that the soldiers in the five Kuwait camps would be ordered to invade Iraq, significantly reducing the number of personnel in the camps below the estimated average of 3,500. We disagree. First, the appellants claim is not colorable as this is firmfixed unit price contract with total item adjustment and thus not subject to a claim of negligent estimate. Second, appellant misstates the government estimate. The government estimated a range of 1,000 to 7,000 not the average of 3,500 as alleged by appellant. Third, neither the DOC-KU nor military planners had actual knowledge of March 20, 2003 invasion, nor did they understand that war was foregone conclusion in January and February of 2003 as the President had not yet taken that decision. Fourth, the governments estimated range of 1,000 to 7,000 was reasonably prepared based on the information available to it at the time. As the Board noted in its December 13, 2011 decision, not all types of contracts can be breached by the government for making negligent estimates. American General Trading & Contracting, WLL, ASBCA No. 56708, 12-1 BCA 34,905. Though not the only kind of contract subject to such claims, see Timber Investors, Inc. v. United States, 587 F.2d 472 (Ct. Cl.

45

1978), requirements type contracts clearly are subject to negligent estimate claims. Rumsfeld v. Applied Companies, Inc., 325 F.3d 1328, 1334-35 (Fed. Cir. 2003); C.F.S. Air Cargo, Inc., ASBCA No. 40694, 91-2 BCA 23,985. Requirements contracts obligate designated government activities to fill all of some particularly defined requirement for supplies or services with the contractor during a specified period, though they do not guarantee any particular minimum quantity will be purchased. FAR 16.503(a); C.F.S. Air Cargo, Inc., ASBCA No. 40694, 91-2 BCA 23,985 quoting Crown Laundry & Dry Cleaners, Inc., ASBCA No. 39982, 90-3 BCA 22,993 at 115,480-81, aff'd, 935 F.2d 281 (Fed. Cir. 1991) (table). In contrast, indefinite quantity contracts obligate the government to purchase a guaranteed minimum quantity of supplies or services under the contract, followed by whatever additional purchases the government chooses to make up to a stated maximum. FAR 16.504(a); C.F.S. Air Cargo, 91-2 BCA K 23,985 at 120,040 (quoting Crown Laundry & Dry Cleaners, Inc., 90-3 BCA 22,993 at 115,480-81). The government cannot be liable for breaching an indefinite quantity contract on the basis of making negligent estimates as long as the government orders the guaranteed minimum. Travel Centre v. Barram, 236 F.3d 1316 (Fed. Cir. 2001) (holding that the government's failure to disclose material information affecting its estimate for an indefinite-delivery, indefinite-quantity supply contract was not a breach as long as the government purchased the minimum quantity); C.F.S. Air Cargo, Inc., ASBCA No. 40694, 91-2 BCA 23,985 (concluding, in contrast to requirements contracts, whether the estimates [for an indefinite quantity contract] were negligently prepared or not is simply not material in light of the Government's legal obligation to order only the guaranteed minimum). Consequently, the nature of Contract 0009 is a material fact in determining whether is can be breached based upon a claim of negligent estimate.

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A. Appellant has not established that Contract 0009 is of a type that is subject to a claim of negligent estimate. There are generally three types of variable quantity procurement contracts: definite quantity, indefinite quantity, and requirements. Mason v. United States, 615 F.2d 1343 (Ct. Cl.1980). Appellant has not established that Contract 0009 is either of these types. The government asserts that Contract 0009 is not enforceable as either a definite quantity, indefinite quantity, nor requirements contract. See Eastern New Mexico University Roswell, ASBCA No. 57110, 12-2 BCA 35,090, see also Coyles Pest Control, Inc., HUDBCA No. 96-A-121-C10, 97-1 BCA 28,717. Further, because AGT has already been paid for all the laundry services it provided at the firm-fixed unit rates, it is not entitled to further adjustment. The seminal case illustrating the governments point is the Eastern New Mexico appeal, which involved commercial education services for the Air Forces Pararescue and Combat Rescue Officer School at Kirtland Air Force Base. Eastern New Mexico University Roswell, ASBCA No. 57110, 12-2 BCA 35,090. The instant case involves commercial laundry services, but the analysis is the same in Eastern New Mexico. There the statement of work (SOW) required the contractor to sponsor the course and further stated that the estimated course size, length, frequency, and objectives are listed at Appendix A. The SOW also stated that the contractor would bill the Air Force on a per-class or per-student basis for each EMT course. Further, it would provide up to 4 courses of EMT-B and up to 4 courses of EMT-P at Kirtland, according to the needs of the Air Force. Also, it would have the capability to provide 2 (or more) EMT-P courses at the host campus according to the needs of the Air Force. Appendix A, stated under class size, in relevant part, that the class sizes might range from low of 24 to high of 32 for EMT-P based on the needs of the Air Force and may range from 24 to 36 for EMT-B.

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In the present case, the solicitation similarly required the appellant to bid on a per-piece basis and estimated a range of 1,000 to 7,000 soldiers or 2,520,000 to 17,640,000 pieces of laundry. In Eastern New Mexico, the Air Force at Appendix A provided a detailed projected class sized by fiscal year which contained a parenthetical stating the estimated number of students per class. Appendix D, contained a proposed Emergency Medical Service (EMS) Consortium agreement which indicated that the training would not result in nor was it meant to displace employees or impair existing contracts for services. Further, the parties agreed to the number for students to be trained, and that number would be reviewed on a regular basis. Admission to the program was to be governed by the Air Education and Training Commands training polices and directives. The appellant in Eastern New Mexico was a branch community college. Appellant submitted a proposal, wherein it indicated that it been awarded a previous contract for sponsorship and clinical experiences at the Air Force school and then entered into a consortium agreement with the Air Force school to provide accredited and college credit for all students enrolled in the Pararescue Paramedic Program. The Air Force awarded Contract 0035 to Eastern New Mexico. The base period was 12 months. The contract contained FAR 52-217-8 and -9, option to extend services and the term of the contract respectively. The Air Force exercised the option, which extended the contract another 12 months, and the parties later bilaterally executed a modification which extended the contract another 6 months. The contract contained neither the 52.216-21, Requirements nor the 52.216-22, Indefinite Quantity clauses. The CLINs set out the parties agreement on a firm-fixed price basis. The CLINs set out the per-student rates and contained the following language:

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Contractor will invoice for each class using the subCLINs based on the actual composition of that class and the agreed upon prices per student. Thus, contractor will be paid only for the actual number of students attending the classes during the period of performance. Id. The subCLINs contained similar language and per-student rates. The Air Force denied Eastern New Mexicos shortfall claim arguing that the contract called for a price per-student. Further, the CLINs stated that the contractor will be paid only for the actual number of students attending the classes during the period of performance and the 2432 student range was an estimate not a guarantee. In finding for the Air Force, the Board analyzed whether the contract was enforceable as a requirements contract, indefinitely quantity contract, and definite quantity contract. The Board ultimately concluded that it was enforceable as none of those. Further, since the appellant had not disputed that it had been paid at the perstudent contract rate the Board found that Eastern New Mexico was not entitled to further adjustment. Unlike the facts in Eastern New Mexico, here the government disputes that the 2,436,911 pieces of laundry appellant claims it laundered is an accurate count of the items laundered. The government avers that the true count is likely unknown as the appellant was observed by the contracting officer to weight not count the pieces of laundry as required by the contract. Similar, to Eastern New Mexico, AGT has not alleged that it accepted payments in accordance with the firm-fixed unit prices as negotiated by the parties. Unlike the appellant in Eastern New Mexico, AGT has vacillated back and forth regarding exactly what it contends the contract type is in this case. Originally, it contended that the contract was firm-fixed price thus it was entitled the total value obligated irrespective of the quantity of items laundered. (app. mot. at 1). Now, appellant appears to be asserting that the contract is a requirements type contract. (app. br. at 4).

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Similar to the Air Force, the government here asserts that the solicitation called for perpiece price for small items, large items, and sleeping bags (inner and outer). Just as in the Eastern New Mexico appeal, both the solicitation and the contract in this case stated that the contractor will be paid only for the actual number of items laundered stating the range of 1,000 to 7,000 was the governments best estimate not a guarantee. Upon analysis, Contract 0009 is not enforceable as a requirements contract, indefinitely quantity contract, or definite quantity contract. Accordingly, AGT is entitled to no further price adjustment. 1. Contract 0009 is Not a Requirements Contract, As Such It Is Not Subject to a Claim of Negligent Estimate. Contract 0009 Does Not Include FAR 52.21621, Prescribed for Use When a Requirements Contract is Contemplated. There is No Language of Exclusivity Associated with this Requirement. Further, the Government Had Existing Laundry Service Providers at the Time of Award. Contract 0009 is not enforceable as a requirements contract and therefore not subject to a claim of negligent estimate. There is nothing contained within the terms of the contract as awarded that precludes the government from awarding additional laundry services to another contractor or from performing the function in-house. In fact, other contractors were providing laundry services to the government at the time of solicitation and award as well as during performance. (PFF 7, 8, 134). The contract did not contain FAR clause 52.216-21 which is used when a requirements contract is contemplated. Further the contract does not contain any language of exclusivity or language by the government guarantying it will give its entire laundry requirement to the appellant. Further, appellant has disclaimed any notion that this is a requirements contract in its June 17, 2009 motion to amend the complaint, stating that it is a firm-fixed price contract (app. mot. at 1). The appellant, as the moving party, has the burden of establishing the absence of any genuine issue of material fact and that it is entitled to judgment as a matter of law. Appellant has 50

not explained how its negligent estimate claim applies to this contract. The government disputes that this contract is of a type that is subject to a claim of negligent estimate. Despite the governments early statement in its motion filed pre-discovery, the government, post-discovery, now disclaims any notion that this contact is a firm-fixed price requirements contract as previously stated. The government does not concede that Contract 0009 is a type of contract that can be subject to a claim of negligent estimate. Contract 0009s type is thus a disputed material fact. In Eastern New Mexico, the Board stated, as a matter of substantive law, an essential element of a requirements contract is the promise by the buyer to purchase the subject matter of the contract exclusively from the seller. Modern Systems Technology Corp. v. United States, 979 F.2d 200, 205 (Fed. Cir. 1992); Mason v. Unites States, 615 F.2d at 1343, 1346 n.5 (Ct. Cl. 1908). The seller's entitlement to all of the buyer's requirement is the key, furnishing the necessary consideration for an enforceable requirements contract. Torncello v. United States, 681 F.2d at 756, 761 (Ct. Cl. 1982). FAR 16.503, describes a requirements contract as one providing for filling all actual purchase requirements of designated Government activities for supplies or services during a specified contract period, with deliveries or performance to be scheduled by placing orders with the contractor. FAR 16.506(d) prescribes the inclusion of the clause at FAR 52.216-21, in solicitations and contracts when a requirements contract is contemplated. In Eastern New Mexico the Board reasoned that the contract, as written, was not intended to be a requirements contract because (1) it was undisputed that the contract did not include FAR 52.216-21, prescribed for use when a requirements contract is contemplated. (2) The SOW issued with the solicitation and which became a part of the contract required the contractor to provide

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education, training and testing in support of the USAF Combat Rescue Officer/Pararescue School Emergency Medical Technician Program at Det 1, 342 TRS, Kirtland AFB NM. There was no language of exclusivity associated with this requirement. (3) The government's obligation in the contract was expressed at various places in terms of the needs of the Air Force. The SOW states the contractor Shall provide up to 4 courses of EMT-B and 4 courses of EMT-P at Kirtland AFB, NM in facilities provided by USAF Pararescue/Combat Rescue Officer School annually, according to the needs of the United States Air Force. Appendix A, Estimated Workload Data, gave course size ranges for EMT-B and EMT-P based on needs of USAF. Moreover, Paragraph II.3 of the parties' consortium agreement stated that the number of students would be reviewed on a regular basis. Conspicuously absent was any language committing the government to fill all of its EMT-B and EMT-P training needs from Eastern New Mexico. This lack of exclusivity is consistent with the parties' understanding, as expressed in Paragraph II.2 of the parties' consortium agreement at Appendix D, that [tjhis EMS training program will not result in, nor is it meant to displace employees or impair existing contracts for services. Id. The board concluded, when read as a whole the contract did not contain a commitment from the government to fill all of its EMT training needs from Eastern New Mexico. Therefore, it was not enforceable as a requirements contract. The same is true here. First, it is undisputed that the FAR 52.216-21 was left out of the contract. Second, the SOW stated the contractor must be able to provide the required laundry services for the number of soldiers anticipated. (R4, tab 3 at 5). There is no language of exclusivity associated with this requirement. Further, the government contracted with appellant to augment laundry services it was already receiving. As here, when read as a whole Contract

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0009 does not contain a commitment from the government to fill all of its laundry services from appellant. Therefore, it is not enforceable as a requirements contract. 2. Contract 0009 is not an indefinite-quantity contract. The Air Force also argued that the contract in Eastern New Mexico was not an indefinitequantity contract because it did not include the Indefinite Quantity clause at FAR 52.216-22, prescribed by FAR 16.506(e) for such a contract, and because the contract contain[ed] no minimum quantity of supplies and services by which the Government [was] bound. The appellant in Eastern New Mexico countered that the absence of a standard ID/IQ clause does not mean that this Contract cannot be an ID/IQ contract. It argued that while [t]he Contract indicated that the precise number of airmen to be trained was unknown, and that it would vary from class to class, depending upon the needs of the USAF, paragraph 1 of Appendix A of the SOW contains a minimum number of students to be trained, 24, and therefore, the contract was a valid, enforceable ID/IQ services contract with a minimum order quantity of 24 students per class. Eastern New Mexico argued further that [a]t best, the SOW when read with the CLIN and the deposition testimony, show the contract language is ambiguous and therefore should be construed against the drafter, USAF. The Board found further claims unpersuasive. Again, the Board began its analysis with the black letter law. To be enforceable as an indefinite-quantity contract, substantive law requires that the buyer must agree to purchase from the seller at least a guaranteed minimum quantity of goods and services. Mason v. United States, 615 F.2d 1343, 1346 n.5 (Ct. Cl. 1980); Torncello v. United States, 681 F.2d 756, 761 (Ct. Cl. 1982) ([w]ith indefinite quantities contracts, however, the buyer's promise specifically is uncertain, and such a contract would fail for lack of consideration if it did not contain a minimum quantity term.); Maintenance Engineers v. United States, 749 F.2d at 724, 726 (C.A.

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Fed. 1984) (holding under an indefinite quantities contract, the legal obligation of the Government was to order a minimum value of maintenance services during the life of the contract while retaining the right to obtain additional such services from any source it chose). FAR 16.504(a), describes an indefinite-quantity contract as one providing for an indefinite quantity, within stated limits, of supplies or services during a fixed period. An indefinitequantity contract must require the Government to order and the contractor to furnish at least a stated minimum quantity of supplies and services. FAR 16.504(a)(l). FAR 16.506(e) prescribes the inclusion of the clause at FAR 52.216-22, INDEFINITE QUANTITY, in solicitations and contracts when an indefinite-quantity contract is contemplated. In Eastern New Mexico, the Board noted further that, consistent with its title, paragraph 1 of the SOW Appendix A provided an estimated range from a low of 24 to high of 32 students for EMT-P classes and an estimated range from 24-36 students for EMT-B classes. Id. Further, an estimated range is not a guaranteed minimum contract term. Id. This is especially so for a range that could fluctuate depending on the needs of USAF as it lacks a firm, determinable number that can be contractually enforced. Id. Apply the above points to the instant contract leads to the conclusion that it cannot be a requirements type of contact. [A]n interpretation which gives a reasonable meaning to all parts of an instrument will be preferred to one which leaves a portion of it useless, inexplicable, inoperative, void, insignificant, meaningless or superfluous; nor should any provision be construed as being in conflict with another unless no other reasonable interpretation is possible. Hoi-Gar Mfg. Corp. v. United States, 351 F.2d 972, 979 (Ct. Cl. 1965). In Eastern New Mexico, the Board specifically held: Each CLIN of ' the 0035 contract instructs the contractor to invoice for each class using the subCLINs based on the actual composition of that class and the 54

agreed upon prices per student. Each CLIN also states that contractor will be paid only for the actual number of students attending the classes during the period of performance. Each subCLIN of the 0035 contract required the contractor to invoice for this class at the agreed upon rates per student based on actual class composition. ENMU-Rs interpretation that the contract is an indefinite-quantity contract containing a minimum number of students to be trained, 24, conflicts with the subCLINs and the CLINs. If the government is obligated to pay for at least 24 students per class, then it makes no sense to require ENMU-R to invoice based on the actual number of students attending the classes and to tell ENMU-R the government will pay accordingly. The government's interpretation that paragraph 1, Appendix A of the SOW, as providing only estimates of the number of students who will be attending classes is not only consistent with the plain language of the entire paragraph but can be read harmoniously with the CLINs and subCLINs of the contract. Since the government's interpretation is the only one that falls within the zone of reasonableness, there is no ambiguity. Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (Fed. Cir. 1999) (citing WPC Enters., Inc. v. United States, 323 F.2d 874, 876 (Ct Cl. 1963)). Id. The Board concluded Contract 0035, when read as a whole, did not contain a guaranteed minimum quantity term, and was thus not enforceable as an indefinite-quantity contract. Likewise, in the present case, the Contract 0009 provided an estimated range of 1,000 to 7,000 troops/ 2,250,000 to 17,640,000 pieces of laundry. (R4, tab 3 at 2, 9, 15 see also tab 1 at 2, 7, 22). An estimated range is not a guaranteed minimum contract term especially, whereas here, the range could fluctuate depending on the number of soldiers in each camp and the number of soldiers that chose to utilize the laundry services of appellant. (R4, tab 1 at 2, 7, 22). As the Board stated in Eastern New Mexico, an interpretation that gives reasonable meaning to all parts of an instrument will be preferred to one which leaves a portion of it useless, inexplicable, inoperative, void, insignificant, meaningless or superfluous; nor should any provision be construed as being in conflict with another unless no other reasonable interpretation is possible. Id. Here, using the Boards reasoning in Eastern New Mexico, if the government was obligated to pay for at least 3,500 troops/8,820,000 pieces, irrespective of how many pieces it

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actually laundered, it made no sense to require appellant to invoice based on the actual number of pieces laundered (R4, tab 1 at 30); to track the quantity of pieces on laundry slips (R4, tab 1 at 7, 30, tab 3 at 5); to propose a per-piece price based on the type of pieces of items to be laundered (R4, tab 1 at 30, tab 3 at 5); to provide a copy of the delivery slip with each invoice for payment (R4, tab 1 at 26, tab 3 at 20, 5); to advise the appellant that the pieces listed in the estimated quantities column in the schedule is for information only and is not a represent of the entire amount individual laundry to be ordered (R4, tab 1 at 26); to tell appellant that it would only be paid for the actual laundry it services (R4, tab 1 at 21, tab 3 at 14); and to pay the appellant accordingly. Here, as in Eastern New Mexico, the governments interpretation that the solicitation and contract only provided estimates of the number of pieces of laundry to be serviced is not only consistent with the plain language of the entire contract but can be read harmoniously with the CLINs of the contract. Since the governments interpretation is the only one that falls within the zone of reasonableness, the Board should find that there is no ambiguity and find for the government. 3. Contract 0009 is not enforceable as a definite quantity contract. In addition to being an indefinite-quantity contract or a requirements contract, an indefinite-delivery contract can also be a definite-quantity contract. FAR 16.501-2. In Eastern New Mexico, even though neither party argued that Contract 0035 is a definite-quantity contract, the Board nonetheless considered whether that contract could be considered as an enforceable definite-quantity contract. Id. The Board explained, a definite-quantity contract provides for delivery of a definite quantity of specific supplies or services for a fixed period, with deliveries or performance to be

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scheduled at designated locations upon order. FAR 16.502. The Board reasoned in Eastern New Mexico, because the actual number of students would vary from class to class depending upon the needs of the Air Force, and because the needs of the Air Force would in turn, depend on the Air Force's admission policies and recruiting results, it concluded that Contract 0035 did not need to provide for delivery of a definite-quantity of EMT training services to qualify as a definite-quantity contract. As is the case here, the actual number of pieces/soldiers would vary from month to month based on the whether the individual soldiers chose to utilize the services of appellant. Further, the presence of the troops in the camps would vary based on the needs of the Army. Thus, Contract 0009 did not need to provide for delivery of a definite-quantity of laundry services to qualify as a definite-quantity contract. 4. Appellant AGT is not entitled to anymore than what has already been paid. In Eastern New Mexico the Board concluded that because Contract 0035 was not enforceable either as an indefinite-quantity contract or as a requirements contract, and because Eastern New Mexico has already been paid for all of the classes it taught at the per student rates set out in the contract, it is not entitled to further adjustment. The Board granted the governments motion for summary judgment on the shortfall claim. The same result should follow here. Since Contract 0009 is not enforceable as either an indefinite-quantity contract or as a requirements contract and because appellant has already been paid for all of the laundry it serviced that the negotiated firm-fixed unit rates, it is not entitled to further adjustment. While not binding on this Board, sister Boards of Contract Appeals, under similar facts have gone through the same analysis and reached the same conclusions. For example, the Department of Housing and Urban Development (HUD) Board of Contract Appeals (BCA), in

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Coyles Pest Control, Inc., HUDBCA No. 96-A-121-C10, 97-1 BCA 28,717, determined that a contract that did not contain the necessary elements to be an enforceable as an indefinite quantity contract, or as a requirements contract was in fact neither. The HUD Board stated that enforcement of the Coyle contract fails for lack of consideration as there was no clause stating a minimum quantity or a clause requiring the Government to purchase all of its requirements from Appellant. Id. The HUD Board reasoned, since the contract was not enforceable for lack of consideration, appellant was entitled to payment only for the services ordered by the government and performed by appellant. Further the HUD Board concluded, that the appellant had been paid for all services performed. Thus, the HUD Board concluded, appellant's claim for an additional payment of $1,525,170.74 failed as a matter of law. Id. Likewise, in the instant case, Contract 0009 does not contain a minimum number of pieces appellant must launder nor does it contain FAR 52.21622 which is required for all indefinite quantity contracts by FAR 16.506(e). Also, similar to Coyle, Contract 0009, did not contain a clause requiring the government to order all of its laundry services from appellant, nor did it incorporate by reference the Requirements clause found at FAR 52.21621, which is required for all requirements contracts by FAR 16.506(d). The contract specifically stated that the contractor must be able to provide the required laundry service for the number of soldiers anticipated. In fact, the government already had existing laundry services providers. (PFF 7, 8, 134). AGT has asserted that Contract 0009 is a firm fixed price contract, and therefore, it is entitled to the full estimated value of the contract. Appellants arguments are not clear. However, in light of the appellants most recent filing, it appears the appellant is also asserting that Contract 0009 is a requirements contract and the government breach by negligently estimating its requirement. Both arguments fail for the same reasons the HUD Board articulated

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in Coyles Pest Control. Here, Contract 0009 does not contain the necessary elements of an enforceable indefinite quantity contract, nor an enforceable requirements contract. Thus, appellant is entitled to payment only for the services ordered by the DOC-KU and performed by it. It was undisputed that appellant has been paid for the laundry services it provided at the negotiated rates. Since Contract 0009 does not contain the necessary elements of an enforceable indefinite quantity contract, nor an enforceable requirements contract, and appellant has been paid for the items it laundered at the negotiated firm-fixed unit rates, this aspect of its motion must fail as a matter of law. B. Assuming, Arguendo That This Contract is Subject to a Claim of Negligent Estimate the Governments Estimate Was Not Flawed. Appellant has offered nothing but the word of a convicted inmate, John Cockerham, to substantiate its claims that the government was informed that an invasion would occur. Inmate Cockerham has an obvious bias against the United States as he was prosecuted and is currently serving time for his fraudulent behavior while a contracting officer in Kuwait. Appellants gross misrepresentation is based on conjecture and wishful thinking and certainly not based on any credible evidence. It is not enough to show that the government was not clairvoyant. Womack v. United States, 389 F.2d. 793, 801 (Ct. Cl. 1968). Nor does it matter that the government failed to search for or create information. Medart Inc. v. Austin, 967 F.2d 579, 582 (Fed. Cir. 1992). To hold the government liable for damages, the contractor has the burden to show by preponderant evidence that the governments estimated range of 1,000 to 7,000 was inadequately or negligently prepared, not in good faith, or grossly or unreasonably inadequate at the time the estimate was made. See Clearwater Forest Industries, Inc. v. United States, 650 F.2d 223 at 239 (Ct. Cl. 1981). Appellant simply cannot make such a showing because the facts show otherwise. 59

Military planners and senior leader within the Directorate of Contracting and the CFLCC were uncertain when the invasion would occur, if at all. They carried out their duties faithfully and honorably. Appellant offers nothing but newspaper articles and conjecture to accuse those officials of negligent estimates. The contracting personnel and CFLCC leaders were operating based on the information they had available to them. MG (Ret.) Stratman set the troop capacity to be supported in each camp at 5000 to 7000 soldiers because the Army fought as Brigade Combat Teams (BCTs) and known/projected force levels, in late 2002. It was understood that each camp needed this level of troop support capacity. (PFF 119). In February of 2003, neither MG (Ret.) Stratman nor his staff knew when the President would order the invasion of Iraq. Although military forces were staged in Kuwait, uncertainty was rampantprimarily because the United States had never attacked another nation without first being directly attacked by that nation. President Bushs precedent-setting decision to topple Saddams Regime was not a foregone conclusion. (PFF 123). Planning factors called for the majority of the Kuwait camps to be enduring following an invasion of Iraq for follow-on forces (e.g., 4ID)/reinforcements; and for retrograde/redeployment base camps. However, the decision to disband the Iraq Regular Army, significantly impacted CFLCCs Stability and Support plans and prolonged the occupation phase of the Campaign. (PFF 122). Certainly, with the uncertainty of know when a call to invade might come, one of the MG (Ret.) Stratmans greatest concerns prior to the Presidents decision, was how to sustain the forces in theater if the order to invade was deferred indefinitely to allow the political/diplomatic process more time to work. While there had been several warning orders (WARNOs) directing the command to be prepared a certain date of invasion was not known by the command until mid-March 2003. (PFF 124). MG (Ret.) Stratman first learned that the

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President had directed the invasion of Iraq on March 17, 2003 during a General Officer huddle with LTG McKiernan, Commanding General, CFLCC. (PFF 126). COL Neumann (Ret.) served as the CFLCC Principal Assistant Responsible for Contracting (PARC) in 2003. COL Neumann (Ret.) had direct contracting responsibility and oversight for all designated contingency contracting assets/operations in theater. All Army and Service Component Liaisons for contracting fell under his operational control. Colonel Neumann reported directly to Sandy Seiber and supported MG (Ret.) Stratman. (PFF 128). The contracting officer, LTC May (Ret.), the director of the Kuwait-Directorate of Contracting (KUDOC) reported directly to COL Neumann (Ret.). (PFF 129). In January and February of 2003, neither COL Neumann (Ret.), nor anyone under his control and authority knew when or if the President was going to give the call to invade Iraq, including the KU-DOC, LTC May. COL Neumann (Ret.) noted, forces had been massed in Kuwait before, with tanks placed along the border, and no call to invade ever came. (PFF 130). In early 2003, the command was not working with perfect information. No one knew when troops might cross the line of demarcation. (PFF 130). In February of 2003, COL Neumann (Ret.) specifically asked the CFLCC Chief of Staff (CoS) how many soldiers and marines they could expect to which he replied he did not know citing that the TPFDL [Time Phased Force Deployment List] had not yet been approved by Donald Rumsfeld. (PFF 131-32). The DOC had no actual data on the exact number of troops expected they simply had to be ready, should the call come. (PFF 135). A projected range of 1,000 to 7,000 troops per camp would have been reasonable based on the information know to us at the time. The reardetachment personnel, permanently assigned to those camps, totaled over 1,000 troops alone. This did not account for the staff element, over 1,000 personnel, Marine forces, sister services,

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nor our coalition partners. No one envisioned that the aforementioned camps in Kuwait would be emptied,12 if an invasion order was ultimately given. (PFF 137). LTC May (Ret.) testified at his deposition I didn't know, and I'm quite sure Colonel Brown didn't know or Colonel Neumann (Ret.) didn't know, when exactly we were going to war. (May dep. tr. 99). In fact, inmate Cockerham confirmed that the contracts were written with adjustment quantity clauses so that could make adjustments because the numbers [of troops] were really unknown. (Cockerham dep. tr. 27, 62-63). The CFLCC invasion plan was a multi-phased operational plan. (PFF144). The plan did not set or determine the when the initiation of combat operations or the decisive maneuver to Baghdad would begin as that is a political decision, made by the President. Planners did not contemplate a specific date for the start of a ground invasion in January and February of 2003. Typical of military plans, the CFLCC plan stated that initiation of Phase III operations would occur when directed or on order. (PFF 144). COBRA II did not indicate the actual date for G-Day or when the ground invasion was to begin. CFLCC planners did not assume that G-Day was a foregone conclusion. When Secretary of Defense Donald Rumsfeld advised planners that he was not going to approve a Time Phased Force Deployment List (TPFDL) in late January 2003, he made it clear to planners that the initiation of combat operations was a decision that was to be made by the Commander-in-Chief. As the President had not yet decided whether to use a military option he, the secretary, was not going to approve a TPFDL as this would put the US on a path to war and that decision had not yet been taken. To continue the flow of forces the Secretary of Defense directed that specific Requests for Forces (RFF) be developed as needed. Neither CFLCC planners nor COBRA II
12

Further, the government asserts that the camps were not emptied. (PFF 152-53). In March June of 2003, the camp population was 18,839, 31,632, 19,995, and 16,285 respectively. There is no data available regarding the population of the camps after June 2003. Id.

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contemplated that the aforementioned camps in Kuwait would be emptied after the beginning of G-Day. (PFF 148). In fact, COL Benson nor his counterparts in CENTCOM J5 were aware on or before March 17, 2003 that a ground invasion was going to commence on or about March 20, 2003. (PFF 149). COL Benson first suspected that CFLCC was going to war on March 17, 2003, after a conversation with LTG McKiernan about Phase IV. On March 17, 2003, LTG McKiernan told COL Benson that he had to get through Phase III before he could think about Phase IV. COL Benson did not know for certain D/G-Day was March 20, 2003 until late on March 18, 2003. (PFF 151). Estimated quantities provided by the government are not guarantees. The mere fact actual contract purchases vary significantly from them typically does not lead to government liability. Medart Inc. v Austin, 967 F.2d 579, 581 (Fed. Cir. 1992). Here, the contract purchases only varied 3% from the low end of the estimated range during the base period. Over the entire contract period, the contract purchases exceeded the low end of the estimate.13 Appellant won several follow-on contracts and continued providing laundry services at those locations for years following the conclusion of this contract. (L. Gittens dep. tr. 167). C. No implied in fact contract for laundry services at Camp Victory or the 35th Brigade resulted. The CDA grants the ASBCA jurisdiction to decide appeals from decisions by COs relative to a contract. 41 U.S.C. 7105(e)(1)(A). However, the appellant bears the burden of proving by a preponderance of the evidence that the Board has jurisdiction under the CDA to

13

After Modification P0003, the appellant invoiced and was paid for laundering 1,088,869.16 kilograms of laundry (or 13,066,429.92 small pieces) from September 1, 2003 to October 31, 2004. This averages to 933,316 pieces per month. Calculated by multiplying the total weight laundered, 1,088,869.16 kilograms, by the measure appellant calculated in it September 1, 2003 letter (ex.7), 12 pieces per kilogram then dividing the result13,066,430 pieces by the number of months.

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consider its appeal. Thai Hai, ASBCA No. 53375, 02-2 BCA 31,971 at 157,920, aff'd, 82 Fed. Appx. 226 (Fed. Cir. 2003). Appellant alleges that jurisdiction is based on an implied-in-fact contract directly with the Army. Where a contractor alleges jurisdiction on the basis of an implied-in-fact contract: Our jurisdiction is intertwined with determining the merits of his allegations and we clearly have jurisdiction to determine whether the alleged contract exists. See Choe-Kelly, Inc., ASBCA No. 43481, 92-2 BCA 24,910. Thai Hai, 02-2 BCA 31,971 at 157,920; see also Reynolds Shipyard Corp., ASBCA No. 37281, 90-1 BCA 22,254. If it is determined that no contract exists between DFM and the Navy, the Board lacks jurisdiction and the appeal must be dismissed. D & F Marketing, Inc., ASBCA No. 56,043, 09-1 BCA 34,108. To prove the existence of an implied-in-fact contact, appellant must show (1) mutuality of intent to contract, (2) consideration, (3) lack of ambiguity in offer and acceptance, and (4) that the government representative whose conduct is relied upon had actual authority to bind the government in contract. City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990), cert. denied, 501 U.S. 1230 (1991). Extensive negotiations in which the parties demonstrate hope and intent to reach an agreement are not sufficient in themselves to establish a contract implied-in-fact. Moreover, in negotiations where the parties contemplate that their contractual relationship would arise by means of a written agreement, no contract can be implied. Pacific Gas & Electric Co. v. United States, 3 Cl. Ct. 329, 339 (1983) (citations omitted), aff'd, 738 F.2d 452 (Fed. Cir. 1984) (unpub.). Finally, an express contract precludes the existence of an implied contract dealing with the same subject, unless the implied contract is entirely unrelated to the express contract. Atlas Corp. v. United States, 895 F.2d 745, 754-55 (Fed. Cir. 1990), cert. denied, 498 U.S. 811 (1990). Todd Pacific Shipyards Corp., ASBCA No. 55126, 08-2 BCA 33,891.

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In order for the government to prevail on a motion for summary judgment, it must demonstrate that, with respect to at least one of these four elements, there are no material facts in dispute and that it is entitled to judgment in its favor as a matter of law. D & F Marketing, Inc., ASBCA No. 56,043, 09-1 BCA 34,108. Thus, appellant must produce specific evidence showing the existence of disputed material fact; argument, speculation and bare assertion will not suffice. Id. Failure to establish the existence of material facts in dispute as to even one element is fatal to appellants opposition to the governments motion for summary judgment. The contracting officer, Colleen Rodriguez, negotiated with Ms. Shelia Gittens, appellants principal officer to obtain laundry services at the contracts firm-fixed unit rates. (Rodriguez aff.). The contracting officer understood that the firm-fixed unit price for small items was 0.240 KD, for large items it was 0.280 KD, for sleeping bags (outer shell) it was 0.587 KD and for sleeping bags (Black Insert) it was 1.450 KD. (Rodriguez aff.). The last line of CLIN 1001 of the contract stated [a]lso Clauses support a bilateral agreement of expanding the services to new locations. (R4, tab 3 at 2). The solicitations description of delivery and performance stated that the contractor would provide a shed or cover for issuing laundry to protect soldiers from the elements. (R4, tab 1 at 5). Neither the solicitation nor the contract allowed for the reimbursement of shed, covers, or facilities used by the contract to issue laundry to the service members. The contract was strictly for services at negotiated firm-fixed unit rates, not for the construction of facilities. (Rodriguez aff.). The contracting officer expected that appellants costs were built into its firm-fixed unit rates. (Rodriguez aff.). The contracting officer did not agree to a laundry service contract at increased unit rates. (Rodriguez aff.). The contracting officer did not agree to fund construction of facilities in connection with the provision of laundry services at Camp Victory and the 35th Brigade.

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(Rodriguez aff.). Thereby, when the contracting officer queried Shelia Gittens to see if appellant could provide laundry services at Camp Victory and the 35th Brigade, she was only expecting her to provide services at the firm-fixed unit rates as reflected in the basic contract. (Rodriguez aff.). The contracting officers expectations were based on the terms and conditions of contract, specifically the Adjustment Quantity Clause which read: [t]he purpose of this clause is to state the Governments best estimate of pieces of laundry to be serviced. The contractor will be paid for the total number of pieces received for laundry service. If the quantity washed is lower than the total amount of the contract, the total amount to be paid will be equally reduced. If the contractors laundry service items total exceeds the amount of the contract at the end of 6 months the contractor will receive an equitable adjustments increase. The contract is Firm fixed price with item adjustment. This contract is for 6 months with an option [sic] clauses to extend. The contractor shall have 11 days to mobilize [sic] and be fully operational by 26 February 2003. (Rodriguez aff.). The contracting officer also based her expectations on FAR Clause 52.217-7 entitled Option for Increased Quantity Separately Price Line Item (Mar 1989) which read [t]he Government may require the delivery of the numbered line item, identified in the Schedule as an option item, in the quantity and at the price stated in the Schedule. The contracting officer may exercise the option by written notice to the Contractor within 30 days. Delivery of added items shall continue at the same rate that like items are called for under the contract, unless the parties otherwise agree. (Rodriguez aff.). Appellant billed and was paid for the all the laundry services under the subject contract, including the Camp Victory and the 35th Brigade area, at the firmfixed unit prices. (Rodriguez aff.). Even if we accept all of appellant's allegations of fact as true for purposes of this motion, which we do not, there is simply no factual foundation for a contract implied-in-fact. First, the alleged implied contract is not entirely unrelated to the parties' express contract, under laundry

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services in Kuwait. Second, the contract officer has specifically stated that she was not intending to contract for laundry facilities nor services at an increase piece-rate. (Rodriguez aff.). There was no concurrence by the contracting officer as to appellants understanding and thus no implied-in-fact contract. Drawing all reasonable inferences in appellants favor, appellant is simply incapable of establishing the existence of any consideration for such an implied agreement, as appellant already had a written contract with the Army for laundry services that specifically provided, [d]elivery of added items shall continue at the same rate that like items are called for under the contract, unless the parties otherwise agree. (PFF 114). Hence, the Army is entitled to summary judgment on appellants claim of an implied contract for laundry services at Camp Victory and the 35th Brigade Area as a matter of law. Appellant even concedes in its brief that the partied did not reach agreement as to specific laundry item-prices in their communications and there was ambiguity as to whether AGT was entitled to its proposed pricing (which was higher than the Contract rate) as opposed to the Contract rate unit pricing AGT had billed at. (app. br. at 37). Further, because the contract terms specifically show the contract was not for construction, and the contracting officer denies she ever agreed to any construction under the contract, that aspect of appellants motion for summary judgment must fail. D. Appellant has more than covered its costs under Contract 0009. In considering a claim against the government for the start up costs of appellant, the Board should consider the contract as a whole contract (base, options exercised, and extensions), not just the initial base period of 6 months. While the appellant concedes it received merely 3 % below the lowest end of the estimated range during the 6-month base period (1,000 troops/2,520,000 pieces), the average over the life of the contract far exceeds the lowest

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estimated quantity. Using the formula stated in the CLIN structure, the lowest estimate equates to 420,000 pieces of laundry per month (1000 soldiers x 5 camps x 4 weeks x 21 pieces = 420,000). The average quantity over the 20 month period of performance for the contract equates to 775,167 pieces per month (2,436,911 for the base period + 13,066,430 for the option/extensions period divided by 20 months = 775,167). In a letter dated September 1, 2003, appellant offered a rate which is essentially the same as the per piece rate (from a stated equivalent KD 2.880/kg to KD 2.890/kg) for the exercise of the option period. This rate was offered after stating, [o]ur previous contract was a firm fixed price contract based on a daily amount of 1,000 7,000 per camp per day. The total value of DABM06-03-C-0009 at completion was KD 4,009,191.78 including all option CLINs. The contract value at award was KD 2,287,333.24. Appellant invoiced and was paid for KD 3,737,218.63 of this amount (93.2%). The last option month was not extended (November 2004) because appellant was awarded the IDIQ contract W912D1-05-D-0001 which was a follow-on to DABM06-03-C-0009. (Richardson aff.). Under the follow-on contract, appellant invoiced and was paid for $13,038,949 for laundry services performed from November 2004 through April 2007. (Richardson aff.). Over the 20 month contract, appellant was paid $12,674,984.78 of $13,500,676.09 (obligated on contract). Therefore, appellant was paid 94% of all monies obligated. CONCLUSION The government respectfully requests that the Board grant its motion for summary judgment and deny appellants motion for summary judgment on the grounds stated above.

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LIST OF ENCLOSURES ATTACHED IN SUPPORT OF THE GOVERNMENTS REPLY/CROSS MOTION FOR SUMMARY JUDGMENT Exhibit 1. Appellants Unsolicited Proposal dated January 15, 2003 Exhibit 2. Appellants Unsolicited Proposal (different version) dated January 15, 2003 Exhibit 3. Email dated January 19, 2003 Exhibit 4 Payment Vouchers Exhibit 5. Appellant Laundry Slip(s) Exhibit 6. Appellant Invoices March August 2003 Exhibit 7. Appellant Letter dated September 1, 2003 Exhibit 8. Email from Mr. Lionel B. Gittens dated February 22, 2003 Exhibit 9. Weekly Activity Report April 3-10, 2003 Exhibit 10. Charts Exhibit 11. Email Ms. Shelia Gittens dated July 6, 2003 Exhibit 12. Email Ms. Shelia Gittens dated June 19, 2003 Exhibit 13. Government Show Cause Notice Exhibit 14. Email Ms. Shelia Gittens dated July 6, 2003 Exhibit 15 Affidavit Major General Henry Hank Stratman Exhibit 16 Affidavit Colonel Mark R. Neumann Exhibit 17 Affidavit Colonel Kevin Benson Exhibit 18 AffidavitMajor Rebecca Eggers Exhibit 19 AffidavitMs. Colleen Rodriguez Exhibit 20 AffidavitMs. Shearom J. Richardson and Gary Bliss Exhibit 21 Deposition TranscriptLieutenant Colonel Marshall K. May

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Exhibit 22 Deposition TranscriptMs. Colleen Rodriguez Exhibit 23 Deposition TranscriptMs. Shelia Gittens Exhibit 24 Deposition TranscriptMr. Lionel Gittens Exhibit 25 Deposition TranscriptMr. Ajay George (FRCP 30(b)(6)) Exhibit 26 Deposition TranscriptInmate John Cockerham The Rule 4 File (not attached/already provided)

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