Cygnus Corp. v. United States

63 Fed. Cl. 150, 2004 U.S. Claims LEXIS 326, 2004 WL 2827929
United States Court of Federal Claims·Decided December 3, 2004·No. No. 01-699C·Published·Cited by 8 cases

Opinion

OPINION AND ORDER

LETTOW, Judge.

This contact case is before the court on defendant’s motion for summary judgment pursuant to Rule 56 of the Rules of the United States Court of Federal Claims (“RCFC”), along with plaintiffs cross-motion for summary judgment. Plaintiff, Cygnus Corporation, Inc. (“Cygnus”), alleges that the government is liable for breach of a contract under which Cygnus’s predecessor in interest, Herner & Company (“Herner”), provided the Office of Alternative Medicine (“OAM”) of the National Institutes of Health1 with two separate services relating to information technology. Cygnus brings this action pursuant to the Contract Disputes Act2 based on a claim for equitable adjustment in the amount of $585,452.46 for work performed during four option years in which the government exercised its option for only one of the two services but continued paying at a lower rate specified for performing both services.

The government’s primary argument is that Herner signed a bilateral modification to the contract pursuant to which Herner in effect manifested its assent to perform one of [152] the services at the lower pricing rate provided for performance of both services during each of the option years. The government additionally asserts that the doctrine of laches bars Cygnus’s claim because Cygnus did not object to the pricing until after it entered into a novation of, and assumed, its predecessor’s contract. Alternatively, the government seeks a partial summary judgment that it is not liable for claims accruing prior to the novation, contending that certain language in the novation agreement expressly releases the government from any claims arising prior to the novation.

The parties have fully briefed their cross-motions, and a hearing was held on September 28, 2004. For the reasons that follow, the government’s motion for summary judgment is granted and Cygnus’s cross-motion is denied.

BACKGROUND3

On April 12, 1996, OAM issued a solicitation for implementation of two separate operations: an information clearinghouse on alternative medicine and a database of scientific publications and related materials on the same subject. PF K 5; Defendant’s Appendix in Support of Its Motion for Summary Judgment (“Def.’s App.”) 1, 6. The solicitation instructed offerors to make separate pricing proposals for each of the two services but allowed an additional submission of an alternate pricing proposal for award of a contract covering both services. Def.’s App. 6-7, 9.4 Cygnus’s predecessor in interest, Herner, submitted a proposal on June 4, 1996 that offered two different pricing plans. PF 1ÍH 12-13; DF H 3; Plaintiffs Appendix (“Pl.’s App.”) 100-25. One plan proposed pricing for an award for either service, and the other, an alternative staffing plan, proposed pricing for an award for both services. Id. The latter plan offered lower unit prices, based on Herner’s expectation that such an award would result in lower overhead costs and increased efficiencies, and Herner’s proposal specified that “[tjhis plan is based on Herner and Company receiving the award for both” services. Pl.’s App. 103. On September 30, 1996, the government awarded Herner a fixed-price requirements contract with a base year from September 30, 1996 through September 29, 1997, with four one-year options for renewal. Def.’s App. 34, 69. The contract included both the clearinghouse and database projects and incorporated Herner’s proposal. Def.’s App. 34, 36^5. The contract was performed during the base year, with the government paying at the rate reflected in Herner’s alternate staffing plan.

On June 25,1997, the project officer sent a message by electronic mail to the contracting officer, Anthony Revenis, stating that OAM would not be exercising its renewal option. Def.’s App. 95; see also Pl.’s App. 628 (Revenis Dep. at 101). Mr. Revenis notified Herner of this decision on the following day. Def.’s App. 96. See also PF H 40; Pl.’s App. 628 (Revenis Dep. at 101). By a letter dated July 14, 1997, Herner requested a meeting “to clarify the reasons for not exercising the Option.” Def.’s App. 97-98. See also Pl.’s App. 628 (Revenis Dep. at 101). The parties met in August and September 1997 for that [153] purpose. PF 1142; Pl.’s App. 210 (Revenis’s notes of a meeting on Aug. 13, 1997), 211 (Revenis’s notes of a meeting on Sept. 2, 1997), 628 (Revenis Dep. at 101), 630-33 (Revenis Dep. at 109-123); Def.’s App. 132-33 (McRae Dep. at 18-19). Thereafter, on September 30, 1997, Cameron McRae, Herner’s Vice President of Administration & Finance, and Mr. Revenis signed a single-page “Amendment of Solicitation/Modifieation of Contract.” That Amendment provided in pertinent part:

1. The Publication/Database (Section II) of all option years is deleted (Pages B.5, B.7, B.9 & B.ll.)
2. Option year one, listed at page B.4 is hereby exercised (for the Clearinghouse only).
3. The contract ceiling amount is increased by $971,913.56, from $1,389,496.54 to $2,361,410.10.
4. The alternate project officers listed on page G-l are deleted.
5. The contract performance period is extended to 30 September 1998.

Pl.’s App. 41. The contract ceiling amount increase of $971,913.56 was the same figure as that set forth in Herner’s alternate staffing plan for the clearinghouse project during the first option year. Pl.’s App. 118; DF H 9.

Slightly more than three months later, in January 1998 OAM’s administrative officer sent a message by electronic mail to the project officer and Mr. Revenis stating that Herner wanted to schedule a meeting to discuss “an adverse claim” regarding pricing. Pl.’s App. 215; DF If 10. Internal correspondence by electronic means indicates that the agency twice postponed the meeting with Herner, and there is no evidence in the record that the meeting ever took place. Pl.’s App. 216-19; DF 1f 10.

Free access — add to your briefcase to read the full text and ask questions with AI

Cygnus Corp. v. United States, 63 Fed. Cl. 150, 2004 U.S. Claims LEXIS 326, 2004 WL 2827929 (uscfc 2004).

63 Fed. Cl. 150 (Cygnus Corp. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Katzin v. United States
120 Fed. Cl. 199 (Federal Claims, 2015)
Council of Athabascan Tribal Governments v. United States
693 F. Supp. 2d 116 (District of Columbia, 2010)
Lankster v. United States
87 Fed. Cl. 747 (Federal Claims, 2009)
Land Grantors in Henderson, Union v. United States
86 Fed. Cl. 35 (Federal Claims, 2009)
Colon v. United States
71 Fed. Cl. 473 (Federal Claims, 2006)
Cygnus Corp. v. United States
65 Fed. Cl. 646 (Federal Claims, 2005)