Free Response to Motion [Dispositive] - District Court of Federal Claims - federal

Case 1:06-cv-00531-RHH

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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 OBJECTIONS TO DEFENDANT'S MOTION TO DISMISS Pursuant to RCFC 7.2(c), Plaintiff Advanced Logic Resources, Incorporated, 244 Mill Road, Yaphank, New York 11980-9783 (Advanced Logic Resources) files these Objections to Defendant's Motion to Dismiss. It is simply not true, as Defendant Defense Information Systems Agency would have it at its Statement of Fact Number 5, that "[a]fter a period of silence of almost seven years, ALR sent a certified "quantum claim" dated February 3, 2006, to the Government." Advanced Logic Resource's Quantum Claim for Breach submitted to the Defense Information Systems Agency on February 3rd, 2006 was filed strictly in ac-

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cordance with the Armed Services Board of Contract Appeal's Order on Quantum Submissions of September 30th, 2005 (Attachment), viz. Advanced Logic Resource's Quantum submission contained a revised Quantum Claim and an Expert Report, and it was submitted to Defendant on or before March 15th, 2006. The Armed Services Board of Contract Appeals' Order of September 30th, 2005 required, inter alia, that Advanced Logic Resources revise the Entitlement Claims then pending before the Armed Services Board of Contract Appeals in ASBCA Numbers 52467 and 52790, and that Advanced Logic Resources file a Quantum Claim and supporting Expert Report on or before March 15th, 2006. Upon submission of the Quantum Claim and Expert Report, Defendant was Ordered to "then proceed expeditiously with the audits." But Defendant has disregarded this Order of the Armed Services Board of Contract Appeals and has not ordered an audit, or audits, of any of Advanced Logic Resources' Claims. Instead, on May 22nd, 2006 a Defense Information Technology Contracting Organization (DITCO) Contracting Officer issued a final decision denying Advanced Logic Resources' properly-certified Quantum Claim for $138,000,000 in money damages and denying that Defendant is in material breach of its obligations under Value-Added Network License Agreement Number DCA200-2-

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94-H-0015 (the VLA). DITCO is a part of Defendant Defense Information Systems Agency, and DITCO is located on Scott Air Force Base, Illinois. The DITCO Contracting Officer's denial that Defendant is in material breach of the VLA comes after three prior determinations of the Armed Services Board of Contract Appeals that Defendant indeed is in material breach of its obligations under the VLA. Defendant could have Appealed to the United States Court of Appeals for the Federal Circuit from any one, or all, of these determinations that Defendant is in material breach of the VLA, but Defendant has not done so, and the time in which Defendant could have taken such an Appeal, or Appeals, has expired. In GAP Instrument Corp., ASBCA No. 51658, 2001 ASBCA LEXIS 47, a Contract dispute pending before it on the question of Entitlement only, the Armed Services Board of Contract Appeals held that Defendant was in breach of its obligation to electronically conduct business (small and simplified purchase transactions) only through firms that had signed the VLA, GAP Instrument, 2001 ASBCA LEXIS 47, *28; in breach of its obligation to provide small and simplified purchase electronic transactions only to firms that had signed the VLA, GAP Instrument, 2001 ASBCA LEXIS 47, *28-*29; and in breach of its obligation to implement by April 5th, 1996 a single unified -3-

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Department of Defense-wide system to electronically conduct business (small and simplified purchase transactions), GAP Instrument, 2001 ASBCA LEXIS 47, *30. Defendant did not Appeal, as it could have, from this decision of the Armed Services Board of Contract Appeals to the United States Court of Appeals for the Federal Circuit. 41 U.S.C. § 607(g)(1)(B). In CACI International, Inc., ASBCA Nos. 53058, 54110, 2005 ASBCA LEXIS 36, aff'd per curiam, 2006 U.S. App. LEXIS 9710, the Armed Services Board of Contract Appeals again held that Defendant had breached its obligation under the VLA to implement by April 5th, 1996 a single unified Department of Defense-wide system to electronically conduct business (small and simplified purchase transactions), and that Defendant had breached its obligation under the VLA by continuing to electronically conduct business (small and simplified purchase transactions) other than through VAN Providers that had signed the VLA. CACI International, 2005 ASBCA LEXIS 36, *51-*55. Defendant did not cross-Appeal to the United States Court of Appeals for the Federal Circuit from these holdings of the Armed Services Board of Contract Appeals. In Simplix, ASBCA No. 52570, 2006 ASBCA LEXIS 26, 2006 ASBCA LEXIS 48, appeal filed sub nom. Imagination & Information, Inc. v. Rumsfeld, Fed. Cir. No. 2006-4-

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1577, the Armed Services Board of Contract Appeals has again decided that Defendant has breached the VLA, Simplix, ASBCA No. 52570, 2006 ASBCA LEXIS 26, *51*52. And again Defendant has not cross-Appealed to the United States Court of Appeals for the Federal Circuit from these holdings of the Armed Services Board of Contract Appeals, and now it is too late to do so. Advanced Logic Resources timely filed a Civil Action with this Court from the DITCO Contracting Officer's final decision of May 22nd, 2006. 41 U.S.C. §§ 609(a)(1), 609(a)(3). Advanced Logic Resources filed this Civil Action here, instead of again Appealing to the Armed Services Board of Contract Appeals, 41 U.S.C. § 606, because, unlike this Court, the Armed Services Board of Contract Appeals lacks authority to impose monetary sanctions for disregard of its Orders, ASBCA No. 51813, Appeal of Security Insurance Co. of Hartford and National American Insurance Co. Under Contract No. F19650-92-C-0040, 2001 ASBCA LEXIS 151, *22-*23, and because Advanced Logic Resources thought it would be advantageous to place the United States Department of Justice between Advanced Logic Resources and the Defense Informa-

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tion Systems Agency. As evidenced by the untruth in Defendant's Statement of Fact Number 5, this later expectation appears to have been mistaken. Nonetheless, Advanced Logic Resources recognizes that it is the Armed Services Board of Contract Appeals, and not this Court, where three of the five pending cases arising from the VLA are still pending. Total Procurement Services, Inc., ASBCA No. 54163 is set for a Hearing commencing on October 16th, 2006 in San Francisco, California. Advanced Communications Systems, ASBCA No. 52592 is tentatively set for a Hearing commencing on March 6th, 2007 in Falls Church, Virginia. And GAP Instrument, ASBCA No. 55041 was yesterday set for a Hearing commencing on July 31st, 2007 in Falls Church, Virginia. Advanced Logic Resources opposes Defendant's Motion to Dismiss and the deceit on which this Motion is premised. Advanced Logic Resources does not oppose the transfer of this Civil Action to the Armed Services Board of Contract Appeals in accordance with 41 U.S.C. § 609(d). Respectfully submitted, /s/ Cyrus E. Phillips, IV Cyrus E. Phillips, IV -6-

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District of Columbia Bar Number 456500 September 26th, 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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CERTIFICATE OF SERVICE I hereby certify, under penalty of perjury, that on Tuesday, September 26th, 2006 a true and complete copy of these 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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