Datalect Computer Services, Ltd. v. United States

42 Cont. Cas. Fed. 77,243, 40 Fed. Cl. 28, 1997 U.S. Claims LEXIS 291, 1997 WL 780906
CourtUnited States Court of Federal Claims
DecidedDecember 18, 1997
DocketNo. 95-328 C
StatusPublished
Cited by5 cases

This text of 42 Cont. Cas. Fed. 77,243 (Datalect Computer Services, Ltd. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Datalect Computer Services, Ltd. v. United States, 42 Cont. Cas. Fed. 77,243, 40 Fed. Cl. 28, 1997 U.S. Claims LEXIS 291, 1997 WL 780906 (uscfc 1997).

Opinion

ORDER

MOODY R. TIDWELL, III, Judge.

This case is before the court on defendant’s motion for summary judgment and plaintiffs cross-motion for partial summary judgment, both filed pursuant to Rule 56 of the Court of Federal Claims (RCFC 56). The parties entered into a requirements contract pursuant to which plaintiff provided maintenance and repair services for “tier-ill” computer equipment to the United States Army, Europe (“USAREUR”). At issue is whether defendant, through the [30]*30USAREUR, breached its duty of care in preparing its estimate of requirements, and whether the government is liable for failing to order all of its actual requirements from plaintiff. The court heard oral argument on the parties’ motions on September 17, 1997. For the reasons set forth below, the court grants in part and denies in part defendant’s motion for summary judgment as to entitlement and damages, and grants in part and denies in part plaintiffs cross-motion for partial summary judgment as to entitlement.

BACKGROUND

On July 23, 1992, defendant, through the USAREUR Contracting Center, Fifth Signal Command, issued an invitation for bids (“IFB”) for the maintenance and repair of government-owned “tier-III” (freestanding, office-based, personal) computer equipment in Germany, Belgium, the United Kingdom and Italy. On February 5,1993, USAREUR entered into requirements contract No. DAJA37-93-D-0065 with Dataleet Computer Services, Ltd. (“Dataleet”), a corporation organized under the laws of the United Kingdom. As a result of being awarded the contract, Dataleet established an operation in Germany. Performance of the contract, which incorporated a one year term with three one year options, began in March, 1993. The government exercised all of the options, and performance continued through March, 1997.

The Contract

The IFB and resulting contract contained a mandatory estimate of the government’s requirements for tier-III maintenance and repair. See 48 C.F.R. § 16.503(a)(1) (1996) (requiring a statement of estimated needs). In addition, the contract provided that Datalect would be the exclusive contractor for such requirements. The contract stated:

The quantities of supplies or services specified in the Schedule are estimates only and are not purchased by this contract. Except as this contract may otherwise provide, if the Government’s requirements do not result in orders of the quantities described as “estimated” or “maximum” in the Schedule, that fact shall not constitute the basis for an equitable price adjustment____ Except as this contract otherwise provides, the Government shall order from the contractor all the supplies or services specified in the Schedule that are required to be purchased by the Government activity or activities specified in the Schedule.

(Def.’s App. at 99.)1 While an equitable adjustment was unavailable under the contract for failure of the government’s requirements to meet the estimate, the Statement of Work (“SOW”) required Dataleet to furnish all labor, materials and facilities to provide demand maintenance on all of the tier-III equipment covered by the contract.

The location of the mandatory estimate in the solicitation and contract is unclear. Defendant contends that “Technical Exhibit 1” was the official “estimate.” Technical Exhibit 1 listed the total number of service calls in specific locations to Sorbus GmBH (“Sorbus”), the tier-III maintenance contractor from 1989 to 1993, in fiscal year 1991.2 Technical Exhibit 1 also listed the manufacturer and model of each piece of equipment serviced, if such information was available. Accompanying the historical workload information provided in Technical Exhibit 1, was an instruction that:

This technical exhibit furnishes data, which in conjunction with the contractor’s experience in the trade, should allow the contractor to arrive at an accurate estimate of the workload. The information presented here consists of repair data for FY 91.

(Def.’s App. at 104.) The number of service calls to Sorbus in fiscal year 1991 totaled [31]*3116,939, averaging approximately 60-65 calls per business day.

Plaintiff avers that “Section B” of the proposed contract was the official “estimate.” Section B contained the specific maintenance/repair functions, or “CLINs,” to be performed by the tier-III maintenance contractor. The CLINs were organized by generic types of equipment to be serviced, and were identified by item numbers. Examples of CLINs included “demand maintenance calls per keyboard” and “demand maintenance calls per laser printer/scanner.” (Def.’s App. at 197.) The contract provided for bids/payment on a fixed price per call basis for each CLIN. Adjacent to each CLIN was an estimate of the quantity of the service required, a unit of measure, and two lines for the contractor to fill in for its proposed unit price and total price (the estimated quantity multiplied by the unit amount). In preparing the quantity estimate in the CLINs, the contracting officer representative (“COR”) at the time the solicitation was compiled, Raymond Selken, consulted records contained in Technical Exhibit 1 and made minor reductions in the number of calls per CLIN in the base contract versus the number of calls per CLIN depicted in the contract option years. For example, Mr. Selken incorporated a 5% reduction from the 1991 workload figures in each of the contract’s option years to account for a reduction of requirements as a result of the ending of the Persian Gulf War. Accompanying the itemized list of CLINs was the following statement: “DEMAND MAINTENANCE IN ACCORDANCE WITH THE STATEMENT OF WORK (SOW), ATTACHMENT 1. NOTE: OFFERORS ARE REQUESTED TO PRICE PER DEMAND CALL. QUANTITIES ARE YEARLY ESTIMATES.” (Id.)

While the location of the official estimate is unclear, both “estimates” described above were based upon the historical workload information in Technical Exhibit 1. In addition, the government submits that in its “estimate” it did not undertake, outside of some minor reductions in requirements, to evaluate or set forth factors that may have affected the number of service calls to the contractor.

Actual Service Call Rate

Despite the historical workload of 60-65 service calls per business day, the actual service call rate under the Datalect contract fluctuated between approximately 25-45 service calls per day. In a letter to Datalect dated November 22, 1994, James Demetroulis, a contracting officer for the Fifth Signal Command, stated that an approximate 48% decrease in calls had occurred under the Datalect contract. Datalect did not adjust its work force or parts inventory downward when it received fewer service calls than depicted in the solicitation. Beginning approximately 4-6 months into Datalect’s performance of the contract, Datalect complained to the contracting officer about the reduced call rate. The government cited as contributing factors the decreased population of Army personnel in Europe since 1991, resulting from the Base Realignment and Closure Act, the reduction in forces or troop strength in USAREUR (“the drawdown”), the purchase of new computers under extended one to five year warranties in the early 1990’s, and the turning-in of outdated computer equipment. In its inquiries, Datalect also cited the government’s apparent in-house maintenance as a factor contributing to the reduced call rate.

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42 Cont. Cas. Fed. 77,243, 40 Fed. Cl. 28, 1997 U.S. Claims LEXIS 291, 1997 WL 780906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/datalect-computer-services-ltd-v-united-states-uscfc-1997.