Free Amended Complaint - District Court of Federal Claims - federal

Case 1:06-cv-00436-MCW

Document 6

Filed 07/28/2006

Page 1 of 9

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) )

ULYSSES INC., Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

06-436C Judge Williams

AMENDED COMPLAINT Plaintiff, Ulysses Inc., ("Ulysses"), by its attorneys, Gdanski & Gdanski LLP, respectfully submits the following Amended Complaint pursuant to Rule 15a of the Rules of the Court of Federal Claims ("RCFC"). The Amended Complaint is identical in every way to the Complaint filed May 30, 2006, except Plaintiff did not attach a copy of the Contracting Officer's Final Decision to the original Complaint as required. The Amended Complaint now contains a copy of Contracting Officer Tim Luebke's final decision dated April 7, 2006. The Original Complaint dated May 25, 2006 follows below. This Complaint is directly related to 04-938C and 04-939C, two docket numbers subsequently consolidated by Judge Williams of this Court. The underlying facts as well as the causes of action are identical. 04-938C and 04-939C was dismissed by Judge Williams without prejudice because of the lack of a Contracting Officer's final decision. Ulysses, Inc. v. United States, 66 Fed. Cl. 161 (2005). Plaintiff is filing this Complaint, which also details the course of events describing the previous dismissal of 04-938C and 04-939C, along with a Notice of Directly Related Cases requesting the Case be reinstated and re-assigned to Judge Williams. Background

1

Case 1:06-cv-00436-MCW

Document 6

Filed 07/28/2006

Page 2 of 9

1.

Ulysses was awarded Contract/Purchase Order No. SP0960-02-M-4209 (Contract 4209) on April 22, 2002, for the production of P/N 178AS112 Circuit Card Assembly Critical Application Item. The contract was for eightyfive units for a total value of $44,625.00.

2.

On June 27, 2002, Ulysses was awarded a second contract, Contract/Purchase Order No. SP0960-02-M-5456 (Contract 5456) for the production of ninetynine units of this identical item for a total value of $50,490.00.

3. 4.

The combined amount for both contracts was $95,115.00. Both contracts specifically stated: "ACCELERATED DELIVERY IS ACCEPTABLE AND DESIRED AT NO COST TO THE GOVERNMENT." (emphasis in original).

5.

Upon award of the contracts, Ulysses immediately began production of the items in accordance with the Government's desires for "accelerated delivery."

6.

Ulysses has performed government contracts and has specifically supplied item P/N 178AS112, an internal component of P/N 178AS100. Upon award, Ulysses immediately began production of the item in accordance with the Department of the Navy, Naval Air Systems Command P/N 178AS112, in order to perform in an accelerated time frame.

7.

On February 14, 2002, Ulysses received a letter from Contracting Officer Brian Kennedy, in reference to both contracts 4209 and 5456, stating that Ulysses was not an approved manufacturer for Cage 072E5 178AS112 and warning that if Ulysses could not supply the exact part, the Government would cancel the contract without cost.

2

Case 1:06-cv-00436-MCW

Document 6

Filed 07/28/2006

Page 3 of 9

8.

In August 2002, The Agency issued a stop work order directing Ulysses to stop producing the units under both contracts. Ulysses had by this time substantially manufactured the contracted items, having completed 85% of the part.

9.

Ulysses promptly responded to the stop work order and sent a letter to the agency on August 26, 2002 referencing contracts 4209 and 5456.

10.

In the letter Ulysses stated that it has historically been both the manufacturer of the part and has manufactured the equipment itself having manufactured both P/N 178AS112, and the final component P/N 178AS100.

11.

Ulysses has always been considered as an approved source for P/N 178AS112 and the final component P/N 178AS100. If Ulysses was in fact not an approved source for parts 178AS112, and P/N 178AS100, the agency had waived this requirement in the past.

12.

Mr. Toutsas, President of Ulysses, explained that Ulysses and another company owned by Mr. Toutsas, Melstrom Manufacturing Corp., had previously manufactured the part and had also manufactured the end equipment, Circuit Firing Equipment P/N 178AS100.

13.

Ulysses attached copies of the purchase orders it completed for the identical part for other companies, as well as the finished product, Circuit Firing Equipment P/N 178AS100, the next highest assembly which the part is a component of. Ulysses completed the part for Sikorsky Aircraft order 3P7853063, June 6, 1997, Aero International Inc. order #P7964575, Sikorsky

3

Case 1:06-cv-00436-MCW

Document 6

Filed 07/28/2006

Page 4 of 9

Aircraft order #P7964575, Australian Government order #4500068888, April 4, 2002. 14. Ulysses also attached a copy of an order for the part from Associated Aircraft Mfg. & Sales for 16 units dated April 17, 2002. This order was for the same part P/N 178AS112 for an order of 16 units of the part. Ulysses also attached other records of production and supply of this specific part to government contractor companies showing that it produced both the part and the end product of which the part was one component. 15. This letter went unanswered. On October 14, 2002, Ulysses again contacted the agency by letter stating that they were awaiting a response from the government. 16. Ulysses again alerted the government on November 13, 2002 that one of the contracts was 95% complete and the second contract 85% and Ulysses decided to complete the production stating that it would not be cost effective to restock the components and reset the job in the future. In the letter dated November 13, 2002, Ulysses advised the Government:

"One of the contracts is approximately 95% complete and the second contract is approximately 80% - 85% complete. In view of the fact that both contracts are close to completion we intend to go back into production and complete the remaining work that is to be done. We realize that in the event that the unthinkable happens, which is cancellation of the contracts on the basis that we are not the manufacturer of the item, the cost of the remaining percentage of the work to be done will not be included in the settlement cost. The reason for us in completing the assemblies is that it will not be economical to restock the components and reset the job in the future. In the event you decide to cancel the contracts, we would appreciate your response to our letter of October 14, 2002, and furnish us with the information requested as well as justify the reasons for not considering us as

4

Case 1:06-cv-00436-MCW

Document 6

Filed 07/28/2006

Page 5 of 9

the manufacturer of the item after we provided you with all the information indicating that we are."

17.

In another letter dated November 20, 2002, Ulysses suggested that if the agency had doubts about its ability to manufacture the item, it could impose a First Article testing requirement at no cost to the Government. Ulysses also suggested that a Defense Contract Management Command representative could "verify the data in our files as well as witness the inspection and test of the subject unit."

18.

Ulysses offered the government different options in the November 20, 2002 letter and suggested possible solutions including that if in fact the government doubted its ability to manufacture the part then the agency could impose a First Article requirement at no cost to the government and inspect and test the First Article.

19.

The government failed to exercise proper discretion and inspect and perform First Article testing on the part, particularly when Ulysses had performed 85% of the contract.

20.

Over eight months later, on June 17, 2003, The Agency issued contract modifications canceling both contracts 4209 and 5456. The modifications cancelled all remaining contract line items under both purchase orders "at no cost or liability to the Government or the contractor." Contract 4209, Modification P00001; Contract 5456, Modification P00001 (June 17, 2003).

5

Case 1:06-cv-00436-MCW

Document 6

Filed 07/28/2006

Page 6 of 9

21.

On June 1, 2004, Ulysses filed two complaints in the Court of Federal Claims, 04-938C and 04-939C, which was subsequently consolidated by Judge Williams of this Court.

22.

Ulysses sought the total contract amounts of $44,625.00 under Contract 4209, and $50,490.00 under Contract 5456.

23.

The Defendant filed a motion to dismiss for lack of subject matter jurisdiction arguing that Plaintiff never filed a formal claim to the contracting officer for a final decision.

24.

Plaintiff opposed the motion arguing that present before the Court was a valid appeal of a "cancellation" of the contract. Quantum, Plaintiff conceded, was not yet before the Court, but the Court has proper jurisdiction of the issue of the validity of the "cancellation" of the contract. Plaintiff asked the Court to either find it has jurisdiction to consider whether there was an improper cancellation and / or a breach of the contract by the government.

25.

The Court by decision filed June 30, 2005, dismissed the action stating, "Because Plaintiff has failed to submit a "claim: to the contracting officer (CO) or obtain a CO's final decision as required by the CDA, this action is dismissed."

26.

By letter dated February 16, 2006, Ulysses filed a claim with Contracting Officer Brain Kennedy requesting a contracting officer's final decision.

27.

Mr. Kennedy was no longer employed with Defense Supply Center Columbus and the claim was re-filed with the DSCC General Counsel March 2, 2006 requesting a contracting officer's final decision.

6

Case 1:06-cv-00436-MCW

Document 6

Filed 07/28/2006

Page 7 of 9

28.

By letter dated April 7, 2006, DSCC contracting officer Mr. Tim Luebke issued a formal denial of Ulysses' claim stating, "The cancellation was proper, no contract for the specific part was entered into, and the government is not obligated to pay you for the costs you expended in manufacturing your own parts. This is the final decision of the contracting officer..."

29.

Ulysses is now filing a Complaint in the United States Court of Federal Claims requesting the following relief due to DSCC's improper termination of the two contracts.

RELIEF REQUESTED 30. Ulysses has successfully provided both P/N 178AS112, as well as P/N 178AS100 which incorporates P/N 178AS112 to the government in the past. 31. By letter dated November 20, 2002, Ulysses offered the agency the option of imposing a First Article requirement on the part or for the agency to verify the data in Ulysses' files and witness the inspection and the test of the part. Ulysses offered this to allay the misguided fears of the agency stating, "Therefore, if you are still in doubt of our ability to manufacture the units according to military specifications and standards, you may impose a F/A requirement at no cost to the Government, which F/A/ can be tested and inspected in our facility or can be sent to any designated Government facility by your office and this can be accomplished within 10 working days as far as we are concerned." 32. The agency improperly failed to accept Ulysses First Article submission and test Ulysses' part in order to ensure compliance with the specifications.

7

Case 1:06-cv-00436-MCW

Document 6

Filed 07/28/2006

Page 8 of 9

33.

As a result of the Agency's improper action, as stated above, Ulysses has incurred substantial costs associated with this contract and has been damaged by the Agency's actions and requests this Court to:

34.

1. Issue a determination that the Agency should accept Part 178AS112 as Ulysses is an approved source and pay Ulysses the total contract amount for Contract 4209 for a value of $44,625.00;

35.

2. Issue a determination that the Agency should accept Part 178AS112 as Ulysses is an approved source and pay Ulysses the total contract amount for Contract 5456 for the production of ninety-nine units of this identical item for a total value of $50,490.00;

36.

3. Issue a determination that if Ulysses is not on the agency's approved source list then by allowing Ulysses to provide these parts in the past, the government has waived the requirement for Ulysses to be on the approved source list and should pay Ulysses the total contract amount for Contract 4209 and 5456 totaling $95,115.00.

37.

The government is liable to Ulysses in the amount of $95,115.00

Date: July 28, 2006

Respectfully submitted, s/ Sam Z. Gdanski SAM Z. GDANSKI Gdanski & Gdanski, LLP. 3 Rockwood Lane Suffern, NY 10901 845-362-4800 Attorney for Plaintiff Ulysses, Inc

8

Case 1:06-cv-00436-MCW

Document 6

Filed 07/28/2006

Page 9 of 9

CERTIFICATE OF SERVICE I hereby certify that on this 28th day of July 2006, a copy of the foregoing Amended Complaint was filed via electronic filing and James D. Colt, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, 1100 L. Street, NW, Washington, DC 20530 was notified electronically.

s/ Sam Z. Gdanski Gdanski & Gdanski, LLP Attorney for Plaintiff 3 Rockwood Lane Suffern, NY 10901

9