Information Systems & Networks, Corp. v. United States

81 Fed. Cl. 740, 2008 U.S. Claims LEXIS 123, 2008 WL 1991748
CourtUnited States Court of Federal Claims
DecidedMay 6, 2008
DocketNo. 02-796C
StatusPublished
Cited by9 cases

This text of 81 Fed. Cl. 740 (Information Systems & Networks, Corp. 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
Information Systems & Networks, Corp. v. United States, 81 Fed. Cl. 740, 2008 U.S. Claims LEXIS 123, 2008 WL 1991748 (uscfc 2008).

Opinion

OPINION

ALLEGRA, Judge.

This contract case arises under the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613. It is before the court on defendant’s motion for summary judgment. Having fully considered the briefs and oral argument on this motion, the court GRANTS this motion for the reasons that follow.

I. BACKGROUND1

On or about July 15, 1994, defendant, acting through the Department of the Navy’s [742]*742Fleet and Industrial Supply Center, Norfolk, Virginia (FISC), awarded plaintiff, Information Systems & Networks Corp (Information Systems or ISN), a contract (No. 00600-94-C0389) to provide various material, labor, and services for naval telecommunications centers at Hampton Roads, Camp H.M. Smith, and Pearl Harbor. The objective of the contract was to lessen the manpower needs associated with the Technical Control Facilities that provide tactical and strategic communications support for the U.S. Navy’s fleet and other Department of Defense components. The Space and Naval Warfare Systems Command (SPAWAR) was the primary beneficiary of the contract. The contract indicated that plaintiff was to “provide all material, labor, and services to engineer, provide, install, test, [and] provide operational assistance to seven ATC turnkey facilities.” It further anticipated that Information Systems would perform site surveys “to gather information about site conditions such as available electrical power, air conditioning, space, equipment placement, etc., which will enable the Contractor to determine the specific communications equipment to satisfy the contract requirements.” Plaintiff was to formulate the survey results into a report that was to be reviewed and approved by defendant. Any new equipment, software or specification changes identified in that report were then to be processed as a formal modification to the contract.2

The contract specified, in great detail, who had the authority to issue a written modification and repeatedly warned Information Systems not to perform additional work without a properly signed modification. For example, one section provided that “[t]he Contracting Officer may accept any change proposal submitted pursuant to this clause by giving the Contractor written notice thereof. This written notice may be given by issuance of a modification to this contract.” Another section detailed:

G.2 AUTHORIZED CHANGES ONLY BY THE CONTRACTING OFFICER, SUP 5252.243-9000 (JAN.1992)
(a) Except as specified in paragraph (b) herein, no order, statement or conduct of Government personnel who visit the Contractor’s facilities, or in any other manner communicate with Contractor personnel during the performance of this contract, shall constitute a change under the “Changes” clause of this contract.
(b) The Contractor shall not comply with any order, direction or request of Government personnel unless issued in writing and signed by the Contracting Officer, or pursuant to specific authority otherwise included in this contract.
(c) The Contracting Officer is the only person authorized to approve changes in any of the requirements of this contract and, notwithstanding provisions contained elsewhere in this contract, said authority remains solely with the Contracting Officer. In the event the contractor effects any change(s) at the direction of any person other than the Contracting Officer, that change shall be considered to have been made without authority and no adjustment in price shall be made in the contract (or Delivery Order) to cover any increase in charges incurred as a result thereof.

[743]*743Yet another section of the contract, in explaining the duties of the contracting officer’s technical representative (COTR), reemphasized that only the contracting officer could approve a modification to the contract, adding that “[n]o action should be taken by the contractor” upon the technical instructions of the COTR absent the written issuance of a contractual change. Finally, the contract incorporated various FAR (48 C.F.R.) clauses, among them that at FAR § 43.301, which provides that supplemental agreements must be in writing and, in particular, “shall” be on a Standard Form 30 (SF 30). Under the contract, Roscoe Crawford, Jeffery Berghdal and Lisa Murtha served, respectively, as the contracting officer, contracting officer’s technical representative, and contract specialist.

Defendant asserts that Information Systems lagged behind schedule, almost from the start of its performance. On March 21, 1995, the contracting officer provided Information Systems with a lengthy list of supposedly overdue contract data requirements and asked plaintiff to provide him with a plan to “get back on track and in compliance with the original contract.” In June of 1995, SPAWAR identified changes it felt needed to be made to the contract, particularly as to the Hampton Roads site, and requested that plaintiff submit an engineering change proposal (ECP) that would effectuate those changes. On June 20, 1995, plaintiff submitted that ECP, accompanied by: (i) a cost breakdown differentiated by total cost, contract cost, and ECP cost; (ii) an equipment list for Hampton Roads; and (in) a revised schedule with a set of specific delivery dates for Hampton Roads. On June 26, 1995, Ms. Murtha wrote plaintiff, indicating that “[a] modification to the contract will be issued for ... the formal acceptance of an ECP,” and that the “ECP submitted ... will be reviewed by SPAWAR with comments to be provided” on June 26 or 27,1995. The letter also requested Information Systems to provide a revised installation schedule.

On July 21, 1995, Mr. Berghdal sent Mr. Crawford and Ms. Murtha a copy of a July 20, 1995, memorandum from SPAWAR providing the latter’s comments on the ECP. This memorandum began by stating—

SPAWAR has reviewed reference (a) ECP and technically approves [Information Systems’] proposed engineering change. Recommend negotiate all terms and conditions listed in reference (a) with [Information Systems].

It went on to provide detailed comments on various aspects of Information Systems’ cost analysis sheet. On August 23, 1995, SPA-WAR, in a document signed by the contracting officer, reallocated $789,319 to the contract in question, allegedly to fund the ECP. (However, on November 27, 1995, these funds were reallocated to another purpose.).

Also on August 23, 1995, one of plaintiffs employees, Mr. Tobin, wrote Mr. Robertson, plaintiffs program manager, to “update him on the status of our ECP at FISC.” This internal memorandum stated that Lisa Mur-tha “has not looked at the ECP, to date,” and would be unable to do so until mid-September of 1995. The memorandum reflects that Mr. Tobin informed Ms. Murtha that he “did not think that ISN (my VP) would wait that long.” Referring, by section number, to the “change proposals” clause in the contract, Mr. Tobin further stated—

I talked with Don Tabasco about contract and FAR requirements for timely ECP processing by the government. He recommends that we take a more forceful approach with the contracting officer. You might want to touch base with him personally.

On August 31, 1995, Mr.

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Bluebook (online)
81 Fed. Cl. 740, 2008 U.S. Claims LEXIS 123, 2008 WL 1991748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/information-systems-networks-corp-v-united-states-uscfc-2008.