Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:06-cv-00531-RHH

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Filed 09/29/2006

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In the United States Court of Federal Claims
) ) ) ) ) ) ) No. 06-531C ) Judge Robert H. Hodges, Jr. ) ) )

ADVANCED LOGIC RESOURCES, INCORPORATED, Plaintiff, v. THE UNITED STATES, Defendant.

PLAINTIFF'S REJOINDER TO DEFENDANT'S REPLY TO PLAINTIFF'S OBJECTIONS TO DEFENDANT'S MOTION TO DISMISS Plaintiff Advanced Logic Resources, Incorporated, 244 Mill Road, Yaphank, New York 11980-9783 (Advanced Logic Resources) files this Rejoinder to Defendant's Reply to Plaintiff's Objections to Defendant's Motion to Dismiss. The Claims remaining before the Armed Services Board of Contract Appeals in ASBCA Numbers 52467 and 52790 are not the Claim that Advanced Logic Resources placed before a Defense Information Technology Contracting Organization Contracting Officer on February 3rd, 2006. ASBCA Number 52467 concerns a Claim for the

Case 1:06-cv-00531-RHH

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"value of services" provided by Advanced Logic Resources. Defendant's Motion to Dismiss, September 25th, 2006, at pages A77-A85. ASBCA Number 52790 concerns a Claim for misappropriation of the intellectual property of Advanced Logic Resources. Defendant's Motion to Dismiss, September 25th, 2006, at pages A93-A96. On July 27th, 2006 Advanced Logic Resources moved to dismiss these Claims remaining before the Armed Services Board of Contract Appeals, but the Defense Information Systems Agency has opposed these dismissals, and the matter remains pending before the Armed Services Board of Contract Appeals. The Claim that Advanced Logic Resources placed before a Defense Information Technology Contracting Organization Contracting Officer on February 3rd, 2006 and is now before the Court, 41 U.S.C. §§ 609(a)(1), 609(a)(3), is a Claim for lost profits arising from Defendant's breach of Value-Added Network License Agreement Number DCA200-94-H-0015. The Claim of Advanced Logic Resources that is now before the Court in no way seeks money damages for the value of services provided by Advanced Logic Resources or for the misappropriation of Advanced Logic Resources' intellectual property.

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Case 1:06-cv-00531-RHH

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Filed 09/29/2006

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It has long been the law that a Contractor may not proceed under the Contract Disputes Act on the same Claim and both in an Agency Board of Contract Appeals, 41 U.S.C. § 606, and before the United States Court of Federal Claims, 41 U.S.C. § 609(a)(1): It is well established that, pursuant to the Contracts Disputes Act, a contractor wishing to contest an adverse final decision by the contracting officer either may appeal the contracting officer's adverse decision to the appropriate board of contract appeals or may contest the contracting officer's decision directly to the Claims Court [now the United States Court of Federal Claims]. This choice has given rise to a body of jurisprudence known as the "Election Doctrine." National Neighbors, Inc. v. United States, 839 F.2d 1539, 1541 (Fed. Cir. 1988). But the Claims, and the Contracting Officer's final decisions, in ASBCA Numbers 52467 and 52790, are not the Claim, and the Contracting Officer's final decision, that is before the Court here. The Election Doctrine is inapplicable. Nor is it correct that Advanced Logic Resources "having substantially modified its claim, must certify its claim again." Defendant's Reply to Plaintiff's Objections to Defendant's Motion to Dismiss, September 28th, 2006, at 3. Once a Claim is properly certified and presented to a Contracting Officer, this Claim need not be re-certified if the ad damnum is revised: -3-

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It has been noted that "even after a certification has been submitted, a contractor is not precluded from changing the amount of the claim or producing additional data. The only requirements are that the contractor certify to the amount he then honestly believes is due and that the data furnished at the time are accurate and complete to the best of his knowledge and belief * * * *." Newell Clothing Co. ASBCA No. 24482, 80-2 BCA Para 14,774 at p. 72,916. Metric Construction Co. v. United States, 1 Cl. Ct. 383, 391 n.4 (1983). Respectfully submitted, /s/ Cyrus E. Phillips, IV Cyrus E. Phillips, IV District of Columbia Bar Number 456500 September 29th, 2006 1828 L Street, N.W., Suite 660 Washington, D.C. 20036-5112 Telephone: (202) 466-7008 Facsimile: (202) 466-7009 Electronic Mail: [email protected] Attorney of record for Plaintiff, Advanced Logic Resources, Incorporated.

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Case 1:06-cv-00531-RHH

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CERTIFICATE OF SERVICE I hereby certify, under penalty of perjury, that on Friday, September 29th, 2006 a true and complete copy of this Rejoinder to Defendant's Reply to Plaintiff's Objections to Defendant's Motion to Dismiss was filed electronically via the Court's Electronic Case Filing System, through which notice of this filing will be sent to: Domenique Grace Kirchner, Esq. Electronic Mail: [email protected] Attorney of record for Defendants, United States Department of Defense.

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