U.S. Army Summary Judgment Response Negligent Estimate AGT

7/28/2019 U.S. Army Summary Judgment Response Negligent Estimate AGT

1/71

1

BEFORE THE

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of )

)

American General Trading & Contracting, WLL ) ASBCA No. 56758)

Under Contract No. DABM06-03-C-0009 )

GOVERNMENT REPLY TO APPELLANTS MOTION FOR SUMMARY

JUDGEMENT AND CROSS MOTION FOR SUMMARY JUDGMENT

Pursuant to Rule 5(b) of the Armed Services Board of Contract Appeals (ASBCA or

the Board), the government hereby responds to appellants motion for summaryjudgment and

moves for summary judgment as to the first claim on the ground that the subject contract, firm-

fixed unit price with total item adjustment, is not of a type that is subject to a claim of negligent

estimate. See Eastern New Mexico UniversityRoswell, ASBCA No. 57110, 12-2 BCA

35,090,see alsoCoyles Pest Control, Inc., HUDBCA No. 96-A-121-C10, 97-1 BCA 28,717.

As to the second claim, the government moves for summary judgment on the ground that the

parties did not create an implied-in-fact contract for construction of laundry facilities at Camp

Victory and the 35th Brigade.

Not all types of contracts can be breached by the government for making negligent

estimates. American General Trading & Contracting, WLL, ASBCA No. 56708, 12-1 BCA

34,905. Here, the contract type is firm-fixed-unit price with total item adjustment. (answer

3, Part II). Requirements type contracts are subject to negligent estimate claims. However,

appellant disclaimed any suggestion that this is a requirements contract in its June 17, 2009

motion, stating it this is a firm-fixed [unit] price contract.SeeAmerican General Trading &


2/71

2

Contracting, WLL, ASBCA No. 56708, 12-1 BCA 34,905 citingapp. mot at. 1.1 The appellant

is correct. This contract is not a requirements type contract as the contract contains no language

indicating exclusivity of the appellant to provide all of the governments laundry services and

does not contain FAR 52.216-21 which is used when a requirements contract is contemplated.

Further, the government had other laundry service providers before and during the contract with

the appellant.

Indefinite quantity contracts are not subject to a claim of negligent estimate. Indefinite

quantity contracts obligate the government to purchase a guaranteed minimum quantity of

supplies or services under the contract, followed by whatever additional purchases the

government chooses to make up to a stated maximum. FAR 16.504(a);C.F.S. Air Cargo, 91-2

BCA 23,985 at 120,040 (quoting Crown Laundry & Dry Cleaners, Inc., 90-3 BCA 22,993 at

115,480-81). The government cannot be liable for breaching an indefinite quantity contract on

the basis of making negligent estimates as long as the government orders the guaranteed

minimum.Travel Centre v.Barram, 236 F.3d 1316 (Fed. Cir. 2001). This is not an indefinite

quantity contract as the government never guaranteed a minimum number of items to appellant

but instead specifically stated that appellant would be paid only for the total number of pieces

received for laundry service. Further, the contract does not contain FAR clause 52.216-22

which is used in an indefinitely quantity contract is contemplated.

1 In its June 17, 2009 motion to amend the complaint appellant wrote:

by and through its Attorney, and without opposition from the Government, hereby moves theBoard for an order permitted the appellant to amend its complaint, pursuant to Rule 7 to correct ascriveners error regarding the type of contract; specifically, that they type of contract was a firm,

fixed-price contract. In support, appellant states as follows: 1. In paragraphs 18 and 30 of theappellants original Complaint Contract No. DABM06-03-C-0009 was referred to erroneously asa requirements contract. 3.By this motion, Appellant seeks to clarify that the Contract is a

firm, fixed-price contract, not a requirements contractand to remove all references indicatingotherwise.

(app. mot. at 1) (emphasis added).
http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=1017185&docname=48CFR16.504&rp=%2ffind%2fdefault.wl&findtype=L&ordoc=2026761042&tc=-1&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=T&pbc=BF02C2F1&referenceposition=SP%3b8b3b0000958a4&rs=WLW13.01http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=506&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026761042&serialnum=2001045611&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=BF02C2F1&rs=WLW13.01http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=506&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026761042&serialnum=2001045611&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=BF02C2F1&rs=WLW13.01http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=506&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026761042&serialnum=2001045611&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=BF02C2F1&rs=WLW13.01http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=506&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026761042&serialnum=2001045611&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=BF02C2F1&rs=WLW13.01http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=506&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026761042&serialnum=2001045611&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=BF02C2F1&rs=WLW13.01http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=506&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026761042&serialnum=2001045611&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=BF02C2F1&rs=WLW13.01http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=1017185&docname=48CFR16.504&rp=%2ffind%2fdefault.wl&findtype=L&ordoc=2026761042&tc=-1&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=T&pbc=BF02C2F1&referenceposition=SP%3b8b3b0000958a4&rs=WLW13.01


3/71

3

This contract is not enforceable as a requirements contract, an indefinite quantity

contract, or a definite quantity contract. The government paid appellant for the 2,431,911 items

at the firm-fixed unit price of 0.240 KD for small items, 0.280 KD for large items, 0.587 KD for

sleeping bags (outer shell), and 1.450 KD for sleeping bags (Black Insert). Since AGT has

already been paid at the firm-fixed unit price for all the items it laundered, it is not entitled to

any further adjustment. See Eastern New Mexico UniversityRoswell, ASBCA No. 57110, 12-2

BCA 35,090,see alsoCoyles Pest Control, Inc., HUDBCA No. 96-A-121-C10, 97-1 BCA

28,717.

Assuming, arguendo, that the contract is subject to a claim of negligent estimate, the

governments estimate of 1,000 to 7,000 troops was not negligent based on the information

known to the contracting officer at the time. The government is not required to be clairvoyant.

Womackv. United States, 389 F.2d 793 (Ct. Cl. 1968). The adequacy of the government's

estimate is only tested by the relevant information reasonably available to it.Id. at 801. The

contracting officers estimate oflaundry services for 1,000 to 7,000 troops was reasonable under

the circumstances. To hold the government liable for damages, the contractor has the burden to

show by a preponderance of the evidence that the government estimates were inadequately or

negligently prepared, not in good faith, or grossly or unreasonably inadequate at the time the

estimate was made. Clearwater Forest Industries, Inc. v. United States, 650 F.2d 233 (Ct. Cl.

1981). Estimated quantities provided by the government are not guarantees. The mere fact

actual contract purchases vary significantly from them typically does not lead to government

liability.Medart, Inc. v. Austin, 967 F.2d 579, 581 (Fed. Cir. 1992). Here, the appellant asserts

the total number of items laundered was 2,431,911, merely 3 % below the lowest end of the

estimated range for 1,000 troops (2,520,000 pieces) during the base period (6-month) for which
http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1968116409&ReferencePosition=801http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1968116409&ReferencePosition=801http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1968116409&ReferencePosition=801http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1981122187&ReferencePosition=239http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1981122187&ReferencePosition=239http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1992114495&ReferencePosition=581http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1992114495&ReferencePosition=581http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1992114495&ReferencePosition=581http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1992114495&ReferencePosition=581http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1992114495&ReferencePosition=581http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1981122187&ReferencePosition=239http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1981122187&ReferencePosition=239http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1968116409&ReferencePosition=801http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1968116409&ReferencePosition=801


4/71

4

the government paid USD $589,555.97.2

As to the second claim, the government moves for summary judgment on the ground that

no implied-in-fact contract for facilities or services at an increased firm-fixed unit price resulted.

There was no mutuality of intent to contract for either facilities or services at an increased firm-

fixed unit price, no consideration, and ambiguity in the offer and acceptance. The contracting

officer sought laundry services, not facilities, at Camp Victory and the 35th Brigade area at the

contracts firm-fixed-unit price rates. The appellant concedes that it billed and was paid at the

firm-fixed-unit price for the laundry services it provided at those locations. Yet, appellant now

argues that it entered into two implied in facts contracts, the first for laundry services at an

increased-firm-fixed-unit rate and the second for construction of facilities. To prove the

existence of an implied-in-fact contact, appellant must show mutuality of intent to contract,

consideration, lack of ambiguity in offer and acceptance, and that the government representative

whose conduct is relied upon had actual authority to bind the government in contract.City of El

Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990),cert. denied, 501 U.S. 1230 (1991).

The appellant, here, has offered no such evidence, to support such a conclusion. In fact,

appellant concedes in its motion it is true the parties did not reach agreement as to specific

laundry item-prices in their communications, and there was ambiguity as to whether AGT was

entitled to its proposed pricing (which was higher than the contract rate) as opposed to the

contract rate unit pricing AGT has billed at. (app. mot at 37). Under these facts, no implied-in-

fact contract resulted thus the governments summary judgment motion should be granted.

Further, an implied-in-fact contract cannot exist if express contract already covers the same

subject matter. Trauma Service Group v. U.S., 104 F.3d 1321 (C.A. Fed. 1997).

2 1,000 Soldiers x 5 camps x 4 weeks x 21 items x 6 months = 2,520,000.
http://web2.westlaw.com/find/default.wl?referencepositiontype=S&serialnum=1990182272&referenceposition=820&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=350&tf=-1&findtype=Y&fn=_top&mt=133&vr=2.0&pbc=1DA33BC2&tc=-1&ordoc=2016433366http://web2.westlaw.com/find/default.wl?referencepositiontype=S&serialnum=1990182272&referenceposition=820&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=350&tf=-1&findtype=Y&fn=_top&mt=133&vr=2.0&pbc=1DA33BC2&tc=-1&ordoc=2016433366http://web2.westlaw.com/find/default.wl?referencepositiontype=S&serialnum=1990182272&referenceposition=820&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=350&tf=-1&findtype=Y&fn=_top&mt=133&vr=2.0&pbc=1DA33BC2&tc=-1&ordoc=2016433366http://web2.westlaw.com/find/default.wl?referencepositiontype=S&serialnum=1990182272&referenceposition=820&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=350&tf=-1&findtype=Y&fn=_top&mt=133&vr=2.0&pbc=1DA33BC2&tc=-1&ordoc=2016433366http://web2.westlaw.com/find/default.wl?serialnum=1991075986&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=780&tf=-1&findtype=Y&fn=_top&mt=133&vr=2.0&pbc=1DA33BC2&ordoc=2016433366http://web2.westlaw.com/find/default.wl?serialnum=1991075986&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=780&tf=-1&findtype=Y&fn=_top&mt=133&vr=2.0&pbc=1DA33BC2&ordoc=2016433366http://web2.westlaw.com/find/default.wl?referencepositiontype=S&serialnum=1990182272&referenceposition=820&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=350&tf=-1&findtype=Y&fn=_top&mt=133&vr=2.0&pbc=1DA33BC2&tc=-1&ordoc=2016433366http://web2.westlaw.com/find/default.wl?referencepositiontype=S&serialnum=1990182272&referenceposition=820&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=350&tf=-1&findtype=Y&fn=_top&mt=133&vr=2.0&pbc=1DA33BC2&tc=-1&ordoc=2016433366


5/71

5

PROPOSED FINDINGS OF FACT

Appellants Unsolicited Proposal

1. On January 15, 2003, appellant submitted a proposal for laundry services to LTCMarshall K. May, the United States Army Central-Kuwait Director of Contracting. The proposal

contained a description of supplies or services, that read:

Laundry Service (Pick-up and delivery service). The contractor shall repair andreplace all items damaged or lost. The service should include loading, unloading,segregating, transporting, counting and obtaining necessary document for itemspicked up or delivered. The items must be delivered within 48-72 hours of theitems picked up. The number of personnel will varyfrom 1000-7000 per Camp,and the number of pieces if items will vary from 84,000-600,000 per month.

(ex. 1) (emphasis added). At this point, the governments description of services did not

indicate that the average of number of troops would be estimated at 3,500.

2. The description of services as restated in appellants January 15, 2003 laundry proposal,quoted above, was provided by the government to appellant according to Mr. Ajay George,

appellants designated representative under Federal Rule of Civil Procedure (FRCP) 30(b)(6).

(George tr. 35-36).

3. Appellants January 15, 2003 laundry proposal contained a quantity section that stated[b]ased on the above, we have taken an average of 3,500 at five (5) locations x 50 pieces per

month and multiply by 6 in order to arrive at our cost. (ex. 1) (emphasis added).

4. The appellants January 15, 2003 proposal stated that the unit price would be $.97 centsper piece and the total lump sum price would be $10,185,000. (ex. 1).

5. The record contains a second laundry proposal from the appellant, also dated January 15,2003 and also addressed to LTC May with virtually identical language, that cites the same unit

price of $.97 cents, except it indicates a total lump sum price of $5,092,500 for a base period of 6

months and $5,092,500 for an option period of 6 months. (ex. 2). $5,092,500 plus $5,092,500


6/71

6

totals $10,185,000.Id.

6. Appellants FRCP 30(b)(6) representative, Mr. George, explained that AGT based itsquantity on the average of 3,500,3 vice the 1,000 to 7,000 quoted by the government because it

could not build a price on a small quantity then increase to 7,000. (George tr. at 37-38). Mr.

George stated:

The number of soldiers that was established and set to be in the camp was 1,000 to7,000. Okay. So as an average you have to - when you are providing a laundryservice you have to calculate it based on - you cannot base it on just a small quantityand say okay, we can provide up to 7,000, which is impossible. So always the trendis to have the minimum number as a standing number because it can grow to thatbigger. So that's how the 3,500 was taken at that point of time.

Id.

Existing Laundry Service Providers

7. On January 19, 2003, the United States Army Central-Kuwait Directorate of Logistics(ARCENT-KU DOL) advised the United States Army Central-Kuwait Directorate of Contracting

(ARCENT-KU DOC) that the commands current laundry facility in Fahaheel (Fahaheel Al

Jabber Schouk) could not handle additional laundry services. (ex. 3).

8. In January of 2003, Fahaheel Al Jabber Schouk was providing laundry services to the SeaPoint of Debarkation (SPOD),4 the Air Point of Debarkation (APOD),5 Camps Doha and Arifjan,

as well as the airbases and washing approximately 200,000 pieces of clothing per month.Id.

9. The government was also able procure laundry services from LOGCAP and AIK. (COLNeumann aff.).

The Solicitation

10.On January 23, 2003 the Directorate of Contracting (DOC) at Camp Arifjan, Kuwait

3 The average of 1,000 and 7,000 is actually 4,000. The appellant took the mean of 7,000, which is 3,500, viceaveraging the quantities together.4 The SPOD is U.S. military apportioned section of Kuwait Naval Base.5 The APOD is the U.S. military apportioned section of Kuwait International Airport.


7/71

7

issued Solicitation DABM06-03-R-0014 for laundry services. (R4 tab 1).

11.The solicitation was open for one week. (R4, tabs 1, 2).12.Award was to be made to the Lowest Price, Technically Acceptable Offeror. (R4, tab 1

at 6, 23, 30).

13.The solicitation indicated it was to result in a firm-fixed unit price with total itemnumbers adjustment contract. (R4, tab 1 at 2) (emphasis added). The period of performance

was for six months with an optional period of an additional six months.Id.

14.CLIN 1001 of the solicitation stated:Laundry ServiceFFPCamp Laundry Service - Base PeriodFixed Unit Price - See Statement of Work for laundry requirements.Laundry Estimated 1000 capable of surging to 7000 soldiers in one Camp on amonthly basis. Estimated Maximum: 6 Month/Camp x 5 Camps = 30 MonthsPeriod of Performance 1 FEB 2003 - 31 JULY 2003. 7,000 soldiers x 5 camps x4 weeks x 21 items x 6 months = 17,640,000 pieces of clothing per six month.The average number of soldiers per camp per month is 3,500 soldiers. Equals3,500 soldiers x 5 camps x 4 weeks x 21items x 6 months= 8,820,000 pieces ofclothing per six month. This contract isFirmed Fixed Unit price with total itemnumbers adjustment.

(R4, tab 1 at 2) (emphasis added).

15.CLIN 1002 of the solicitation, for option period one, stated:


8/71

8

Option 1FFPCamp Laundry Service - Base PeriodFixed Unit Price - See Statement of Work for laundry requirements.Laundry Estimated 1000 capable of surging to 7000 soldiers in one Camp on a

monthly basis. Estimated Maximum: 6 Month/Camp x 5 Camps = 30 MonthsPeriod of Performance 1 Aug 2003 - 31 January 2004. 7,000 soldiers x 5 camps x4 weeks x 21 items x 6 months = 17,640,000 pieces of clothing per six month.The average number of soldiers per camp per month is 3,500 soldiers. Equals3,500 soldiers x 5 camps x 4 weeks x 21items x 6 months= 8,820,000 pieces ofclothing per six month. This contract isFirmed Fixed Unit price with total itemnumbers adjustment.PURCHASE REQUEST NUMBER: W90FGP30170103


16.The notice to bidders stated:

The Bid will beFixed Unit Price with quantities and dollars adjustments. Thecontractor shall bid on 4 categories of laundry: Small items 8 ounces or less,Large items over ounces, Sleeping Bags with 24 hour turn around and deliveryand for Pressed uniforms. Government will accept lowest price technicallyacceptable.

The bid will include a set price for each category of laundry see CLINS 3 through6. The contractor will include in his bid the price of washing, drying tracking,transporting, pressing, storage, shed or shelter, subcontracting, reimbursement forlost items, replacement of damaged items. The bid shall include providing aplastic bag or mesh laundry bag for each soldiers laundry.

The bid price for each category is firm, but the number of items laundered isadjusted. The contract is based on the average number of troops for each camp.The bid quote is for 6 months with equitable item and cost adjustment at the endof each month. The contractor will be paid on the last day of each monthaccording to the COR acceptance of service counts annotated on the DD250.


17.The solicitation contained FAR clause 252.237-7017 INDIVIDUAL LAUNDRY (DEC1991) which stated:

(a) The Contractor shall provide laundry service under this contract on both a unitbundle and on a piece-rate bundle basis for individual personnel.

(b) The total number of pieces listed in the "Estimated Quantity" column in the


9/71

9

schedule is the estimated amount of individual laundry for this contract. Theestimate is for information only and is not a representation of the amount of

individual laundry to be ordered. Individuals may elect whether or not to use the

laundry services.

(c) Charges for individual laundry will be on a per unit bundle or a piece-ratebasis. The Contractor shall provide individual laundry bundle delivery tickets foruse by the individuals in designating whether the laundry is a unit bundle or apiece-rate bundle. An individual laundry bundle will be accompanied by adelivery ticket listing the contents of the bundle.

(d) The maximum number of pieces to be allowed per bundle is as specified in theschedule and as follows --

(1) Bundle consisting of 26 pieces, including laundry bag. This bundle willcontain approximately [sic] pieces of outer garments which shall be starched and

pressed. Outer garments include, but are not limited to, shirts, trousers, jackets,dresses, and coats.

(2) Bundle consisting of 13 pieces, including laundry bag. This bundle willcontain approximately [sic] pieces of outer garments which shall be starched andpressed. Outer garments include, but are not limited to, shirts, trousers, jackets,dresses, and coats.

(End of clause)

(R4, tab 1 at 26-27) (emphasis added).

18.The solicitation contained clause 252.237-7016 DELIVERY TICKETS (DEC 1991)which stated:

(a) The Contractor shall complete delivery tickets in the number of copiesrequired and in the form approved by the Contracting Officer, when it receives thearticles to be serviced.

(b) The Contractor shall include one copy of each delivery ticket with its invoicefor payment.


19.The solicitation contained 252.237-7012 INSTRUCTION TO OFFERORS (COUNT-OF-ARTICLES) (DEC 1991) which stated:

(a) The Offerorshall include unit prices for each item in a lot. Unit prices shall


10/71

10

include all costs to the Government of providing the services, including pickupand delivery charges.

(b)Failure to offer on any item in a lotshall be cause for rejection of the offer onthat lot. The Contracting Officer will evaluate offers based on the estimated

quantities in the solicitation.

(c) Award generally will be made to a single offeror for all lots. However, theContracting Officer may award by individual lot when it is more advantageous to

the Government.

(d) Prospective offerors may inspect the types of articles to be serviced. Contactthe Contracting Officer to make inspection arrangements.


20.The guidance to offerors required bidders to bid based on 7,000 troops, not an average

number of troops nor 3,500 troops. Technical Exhibit 3 of the Solicitation - Price Quote

Guidelines stated the contractor should place their Bid by laundry pieces based on 7,000 troops

x 5 Camps x 4 weeks/mo x 21 pieces x 6mo = 17,640,000 pieces per 6 [sic] month. (R4, tab 1

at 23) (emphasis added). Technical Exhibit 3 of the Solicitation - Price Quote Guidelines states:

the contractor should place their Bid by laundry pieces based on 7,000 troops x 5 Camps x 4

weeks/mo x 21 pieces x 6 mo = 17,640,000 pieces per month. (R4 tab 2 at 11).

21.Appellant did not rely on the technical exhibit 3 in preparing its bid. (George tr. 37-38).The appellant prepared its proposal based on the mean of 7,000 troop amount.Id.

22.Technical Exhibit 1 of the solicitation contained stated that the approximate numbers ofpersonnel percamp is 1000-7000 soldiers. (R4, tab 1 at 22) (emphasis added). Technical

exhibit 1, did not indicate an average number of troops, or suggest bidding on the mean amount.

Id.

23.Section I of the solicitation contained ADJUSTMENT QUANTITY CLAUSE that stated:The purpose of this clause is to state the Governments best estimate of pieces oflaundry to be serviced. The contractor will be paid for the total number of pieces


11/71

11

received for laundry service. If the quantity washed is lowerthan the totalamount of the contract, the total amount to be paid will be equally reduced. If thecontractors laundry service items total exceeds the amount of the contract at theend of 6 months the contractor will receive an equitable adjustments increase.The contract is Firm fixed price with item adjustment.


24.The solicitation contained clause 52.212-4 CONTRACT TERMS AND CONDITIONS--COMMERCIAL ITEMS (FEB 2002). (R4, tab 1 at 15-17) (emphasis added).

25.Section H of the solicitation contained Special Contract Requirements, that stated:REQUIREMENTS

Contract Requirements

The Contractor shall repair and replace all items damaged or lost. The Service shouldinclude loading, unloading, segregating, transporting, counting and obtaining necessarydocument for the items picked up or delivered. The items must be delivered within 72hours of the items picked up. The number of personnel will vary from 1000-7000 perCamp and the number of pieces of items will vary from 420,000-2,940,000 per month.The delivery shall be for 5 camps. Thre [sic] must be a tracking system in place for theCOR to monitor and maintain receits [sic] and DD250 for contractor to get paid.


26.Section F of the solicitation contained Deliveries or Performance which stated:DELIVERY AND PERFORMANCE

Delivery and Performance

Delivery and pickup should be a minimum of twice a week for each camp. Contractorwill be responsible for the delivery and the COR will monitor the delivery for timeliness,accuracy, method. A delivery schedule will be worked out between the contractor andthe COR for each location. The contractor will provide a shed or cover for issuing as toprotect the soldier and clothing from the elements. There will be a posted deliveryschedule for all 5 camps. Laundry must be managed separately [sic] for each camp.Local procedures relating to delivery to the individual will be completely separate fromlaundry facility operations. For sleeping bags the delivery will be within 24 hours.


27.Section B of the solicitation, Supplies or Services and Prices, contained the following


12/71

12

descriptions of items:

ITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT1003 Each

Small items are 8 ounces or lessFFP

Small items are listed or characterized as the following: -Socks, Bllack, Wool -Socks, White, cotton -Underwear -Brown T-Shirt -Grey T-Shirt -Grey/Black shorts -Wash cloth Assorted Colors - Anyitems 8 ounces or lessPURCHASE REQUEST NUMBER: W90FGP30170103

NET AMT

FOB: Destination


Large Items 9 ounces or moreFFP-Desert Camouflage Uniform Blouse-Desert Camouflage Uniform Pants-Polyproplyene Top-Polyproplyene Bottoms-Sweater, Brown -Sweat Pants, Grey/Black -Sweat Shirt/Jacket, Grey -Any Item 9 ounces or more moved standPURCHASE REQUEST NUMBER: W90FGP30170103

NET AMT

FOB: Destination


13/71

13


Sleeping BagsFFP-Hour turn around with Bi-monthly washing authorized-Sleeping Bag, Outer-Sleeping Bag, Green Insert-Sleeping Bag, Black InsertThe list may me modified if mission dictates additional bulk itemPURCHASE REQUEST NUMBER: W90FGP30170103

NET AMT

FOB: DestinationITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT

1006 EachDCU starch and put on hangerFFPDCU will be lightly starched using nonionizing starch , pressed, put on hangerand in a clear plastic bag. E-9 and O-5 and above will recieve this service.PURCHASE REQUEST NUMBER: W90FGP30170103

NET AMT

FOB: Destination

(R4, tab 1 at 3-4).

28.The evaluation factors for award contemplated that the contractor would be responsiblefor tracking the individual pieces of laundry. Evaluation factor No. 11 stated that the prices per

items must be based on 4 categories, Small items less than 8 ounces or less, Large items, over 8

ounces, and sleeping Bags and pressed uniforms on hangers (See matrix in Statement of work).

(R4, tab 1 at 30). Evaluation factor No. 12 required the contractorto report number of laundry

items serviced on the 30thof each month.Id. Evaluation factor No. 6 state that the contractor

must be able to provide 3 receipts for each soldiers laundry; one for the soldier, one for th e


14/71

14

contractor one for the COR to track on a DD250.Id.

29.Technical Exhibit 3 of the Solicitation - Price Quote Guidelines states: the contractorshould place their Bid by laundry pieces based on 7,000 troops x 5 Camps x 4 weeks/mo x 21

pieces x 6 mo = 17,640,000 pieces per month. (R4 tab 2 at 11).

30.Section L of the SolicitationNotice to Bidders states:The Bid will beFixed Unit Price with quantities and dollars adjustments. . . .

The bid will include a set price for each category of laundry see CLINS 3 through6. The contractor will include in his bid the price of washing, drying tracking,transporting, pressing, storage, shed or shelter, subcontracting, reimbursement forlost items, replacement of damaged items. . . .

The bid price for each category is firm, but the number of items laundered isadjusted. The contract is based on the average number of troops for each camp.The bid quote is for 6 months with equitable item and cost adjustment at the endof each month. The contractor will be paid on the last day of each monthaccording to the COR acceptance of service counts annotated on the DD250.

(R4 tab 1 at 29).

31.The solicitation was amended on January 24, 2003 to add to the inspection andacceptance clause. (R4, tab 2 at 5).

32.The provisions cited above remained unchanged. (R4, tabs 1-2).33.The solicitation was amended again on January 29, 2003 to further define the evaluation

criteria. (R4, tab 2). Evaluation factors 6, 11, 12 cited above remained unchanged. (R4, tabs 1-

2).

34.Final proposals were due on January 30, 2003. (R4, tab 2).AppellantsSolicited Proposal

35.On January 30, 2003 the appellant submitted a laundry proposal.36.Appellants proposal contained the following firm fixed unit prices. (ex 4, 5).Section B - Supplies or Services and Prices


15/71

15


Laundry ServiceFFPCamp Laundry Service - Base Period

Fixed Unit Price - See Statement of Work for laundry requirements.Laundry Estimated 1000 capable of surging to 7000 soldiers in one Camp on amonthly basis. Estimated Maximum: 6 Month/Camp x 5 Camps = 30 MonthsPeriod of Performance 1 FEB 2003 - 31 JULY 2003. 7,000 soldiers x 5 campsx 4 weeks x 21 items x 6 months = 17,640,000 pieces of clothing per sixmonth. The average number of soldiers per camp per month is 3,500 soldiers.Equals 3,500 soldiers x 5 camps x 4 weeks x 21items x 6 months= 8,820,000pieces of clothing per six month. This contract is Firmed Fixed Unit pricewith total item numbers adjustment.

NET AMOUNT KD KD 2,169,465/-

FOB: DestinationITEM NO SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT1002 EachOPTION Option 1

FFPCamp Laundry Service - Base PeriodFixed Unit Price - See Statement of Work for laundry requirements.Laundry Estimated 1000 capable of surging to 7000 soldiers in one Camp on amonthly basis. Estimated Maximum: 6 Month/Camp x 5 Camps = 30 MonthsPeriod of Performance 1 Aug 2003 - 31 January 2004. 7,000 soldiers x 5 camps x4 weeks x 21 items x 6 months = 17,640,000 pieces of clothing per six month. Theaverage number of soldiers per camp per month is 3,500 soldiers. Equals 3,500

soldiers x 5 camps x 4 weeks x 21items x 6 months= 8,820,000 pieces of clothingper six month. This contract is Firmed Fixed Unit price with total item numbersadjustment.PURCHASE REQUEST NUMBER: W90FGP30170103

(LESS 2.5% FROM ABOVE)

NET AMOUNT KD 2,115,228


16/71

16

ITEM NO SUPPLIES/SERVICES QUANTITY UNIT PRICE AMOUNT1003 KD/FILS KD

Small items are 8 ounces or lessFFPSmall items are listed or characterized as the following:Socks, Bllack, WoolSocks, White, cottonUnderwearBrown T-ShirtGrey T-ShirtGrey/Black shortsWash cloth Assorted Colors - Anyitems 8 ounces or less

PURCHASE REQUEST NUMBER: W90FGP30170103

1,260,000 .215 270,9001,260,000 .215 270,9001,260,000 .215 270,900

420,000 .215 90,300420,000 .215 90,300840,000 .215 180,600

69,000 .215 14,835

NET AMOUNT KD 1,188,735

FOB: Destination


Large Items 9 ounces or moreFFP-Desert Camouflage Uniforn Blouse-Desert Camouflage Uniform Pants-Polyproplyene Top-Polyproplyene Bottoms-Sweater, Brown

-Sweat Pants, Grey/Black-Sweat Shirt/Jacket, Grey -AnyItem 9 ounces or more moved standPURCHASE REQUEST NUMBER: W90FGP30170103

420,000 .240 100,800420,000 .240 100,800420,000 .240 100,800420,000 .240 100,800420,000 .240 100,800

420,000 .240 100,800420,000 .240 100,800

NET AMOUNT KD 705,600

FOB: Destination


17/71

17


Sleeping BagsFFP24-Hour turn around with Bi-monthly washing authorized-Sleeping Bag, Outer-Sleeping Bag, Green Insert-Sleeping Bag, Black InsertThe list may me modified if mission dictates additional bulkitemPURCHASE REQUEST NUMBER: W90FGP30170103

105,000 0.555 58,27105,000 0.555 58,27105,000 1.200 126,00


FOB: Destination


DCU starch and put on hangerFFPDCU will be lightly starched using non-ionizing starch,pressed, put on hanger and in a clear plastic bag. E-9 and O-5 and above will receive this service.PURCHASE REQUEST NUMBER: W90FGP30170103

36,000 0.905 32,580


FOB: Destination

37.The parties negotiated four firm-fixed unit prices. (Cockerham tr. 49). These fixed rateswere not annotated in the contract.Id.

38.The firmed-fixed unit prices that were negotiated to and agreed upon by both parties were0.240 fils6 for small item; 0.280 fils for large items; 0.587 fils for sleeping bags; and 1.450 KD

for laundry bags. (Cockerham tr. 56).

Award

39.Contract DABM06-03-C-0009 was awarded to appellant on February 17, 2003 to6 Fils is a subdivision currency used in Kuwait. One Kuwaiti dinar equals 1,000 fils.


18/71

18

perform laundry services at five (5) separate and remote locations in Kuwait: Camp

Pennsylvania, Camp Virginia, Camp New York, Camp New Jersey and Camp Connecticut. (R4

tab 3 at 15). The services to be required included loading, unloading, segregating, transporting,

counting, washing, drying and obtaining necessary documents for the items within 72 hours of

pick up (R4, tab 1 at 7, tab 3 at 9).

40.Modification P0001 among other things amended the contracts 6-month base period ofperformance to March 1, 2003 through August 31, 2003. (R4 tabs 3, 4).

41.The contract contained a 6-month option period. The option was exercised at theconclusion of the base period and later extended so the contract did not conclude until October

31, 2004. (R4, tabs 1-14).

42.In total, the performed under the subject contract for a total of 20-months and received$12,674,984.78. (Richardson aff.).

The Contract Type:

Firm-Fixed Unit Priced with Total Item Numbers Adjustment

43.The resulting contract was a firm-fixed unit-priced contract with total item numbersadjustment. (R4, tab 1 at 2, 21, 29, tab 3 at 2, 14). The contract is not a requirements contract.

(amend. Compl. 18 and 30 at 5, 7). In its June 17, 2009 motion to amend the complaint

appellant wrote:

by and through its Attorney, and without opposition from the Government, herebymoves the Board for an order permitted the Appellant to amend its complaint,pursuant to Rule 7 to correct a scriveners error regarding the type of contract;

specifically, that they type of contract was a firm, fixed-price contract. In support,Appellant states as follows: 1. In paragraphs 18 and 30 of the Appellants originalComplaint Contract No. DABM06-03-C-0009 was referred to erroneously as arequirements contract. 3.By this motion, Appellant seeks to clarify that the

Contract is a firm, fixed-price contract, not a requirements contractand to remove allreferences indicating otherwise.


19/71

19

(app. mot. at 1) (emphasis added).

44.Section C of the contract contained a Descriptions and Specifications under the titleSTATEMENT OF WORK that stated in paragraph 4. [t]he contractor shall provide 3 receipts

for each soldiers laundry; one for the soldier, one for the contractor one for the COR to track on

a DD250.

45.The appellant provided laundry slips in duplicate copies that tracked each item of laundryby type (small, large, sleeping bag) and quantity. (ex. 5).

46.Section C of the contract contained a Descriptions and Specifications under the titleSTATEMENT OF WORK. Paragraph 7. Stated: [t]he prices per items must be based on 4

categories, small items less than 8 ounces or less, large items, over 9 ounces, and sleeping bags.

(R4, tab 3 at 5).

47.The parties negotiated firm fixed unit prices per type of item were as follows:0.240 fils for small items;

0.280ls for large items;

0.587 fils for sleeping bags; and

1.450 KD for laundry bags.

(Cockerham tr. 56). These firm-fixed unit rates were inadvertently left out of the contract.

(Cockerham tr. 49, 56).

48.The contract identified that CLIN 1002 would be for small items, CLIN 1003 for largeitems, CLIN 1004 for sleeping bags (insert), and CLIN 1005 for sleeping bags (outer). (R4, tab 3

at 2-4).7

49.The appellant invoiced and was paid base upon these firm-fixed unit-price rates until7 The contract was later modified to reflect CLIN 1003 small items, CLIN 1004 large items, and CLIN 1005sleeping bags to mirror the invoices. (R4, tab 7).


20/71

20

modification P0003. The invoices and corresponding payments are detailed below.

50.The contract funded each type of item by CLIN in the following amounts:CLIN TOTAL AMOUNT PLACED

ON CONTRACTTYPE OF ITEM FIRM FIXED

UNIT RATE

1002 1,341,628.25 KD Small items 0.240 fils1003 809,247.32 KD Large items 0.280 fils1004 61,662.68 KD Sleeping bags (outer) 0.587 fils1005 74,834.79 KD Sleeping bag inserts 1.450 KD

(R4, tab 3 at 2-4).

51.The total contract award was KD 2,287,333.24 (USD 7,887, 356.00). (R4 tab 3 at 1 and8).

52.Section C of the contract contained a Descriptions and Specifications under the titleSTATEMENT OF WORK that stated in paragraph 8 as follows: [t]he contractorshall report, to

the COR, the number of laundry items servicedon the 30th of each month. (R4, tab 3 at 5).

Paragraph 7 stated: [t]he prices per items must be based on 4 categories, small items less than 8

ounces or less, large items, over 9 ounces, and sleeping bags.Id. Paragraph 4 stated[t]he

contractor shall provide 3 receipts for each soldiers laundry; one for the soldier, one for the

contractor one for the COR to track on a DD250.Id.

53.Section I of the contract contained the ADJUSTMENT QUANTITY CLAUSE provided:The purpose of this clause is to state the Governments best estimate of pieces of

laundry to be serviced. The contractor will be paid for the total number of piecesreceived for laundry service. If the quantity washed is lower than the totalamount of the contract, the total amount paid will be equally reduced. . . . 8 Thiscontract is [a] firm-fixed-price with item adjustment.

(R4 tab 1 at 21 and tab 3 at 14) (emphasis added).

54.The contract did not contain the FAR 52.216-21, REQUIREMENTS (OCT 1995) clause,8 In other words if the services provided by the contractor did not equate to the governments estimated minimum,average or maximum numbers, the price of the contract would be equally reduced to avoid a surplus. If the servicesexceeded the governments maximum, the price of the contract would be adjusted to adequately compensate thecontractor for the extra effort.
http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=1017185&docname=48CFR52.216-21&rp=%2ffind%2fdefault.wl&findtype=L&ordoc=2026761042&tc=-1&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=BF02C2F1&rs=WLW13.01http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=1017185&docname=48CFR52.216-21&rp=%2ffind%2fdefault.wl&findtype=L&ordoc=2026761042&tc=-1&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=BF02C2F1&rs=WLW13.01


21/71

21

nor does it contain the FAR 52.216-22, INDEFINITE QUANTITY (OCT 1995) clause. (R4, tab

3).

55.The contract did incorporate the FAR 52.211-18, VARIATION IN ESTIMATEDQUANTITY (APR 1984) clause. It states, in pertinent part:

If the quantity of a unit-priced item in this contract is an estimated quantity andthe actual quantity of the unit-priced item varies more than 15 percent above orbelow the estimated quantity, an equitable adjustment in the contract price shallbe made upon demand of either party.

(R4, tab 3 at 18).

56.CLIN 1001 stated:Laundry ServiceFFPCamp Laundry Service - Six MonthsFixed Unit Price - See Statement of Work for laundry requirements.Laundry Estimated 1000 capable of surging to 7000 soldiers in one Camp on a monthlybasis. Estimated Maximum: 6 Month/Camp x 5 Camps = 30 Months Period ofPerformance 1 March 2003 - 31 JULY 2003. 7,000 soldiers x 5 camps x 4 weeks x 21items x 6 months = 17,640,000 pieces of clothing per six month. The average number ofsoldiers per camp per month is 3,500 soldiers. Equals 3,500 soldiers x 5 camps x 4weeks x 21items x 6 months= 8,820,000 pieces of clothing per six month. This contractis Firmed Fixed Unit price with total item numbers adjustment. Contract may be extendfor a maxinum of 6 six as mision requirement dictates. Also Clauses support a bilateralagreement of expanding the services to new locations.

(R4, tab 3 at 2).

57.The contact contained the same Delivery and Performance clause as was stated in thesolicitation. (PFF 26, R4, tab 3 at 7).

58.The total amount obligated against Contract 0009 at award was $7,877,356. (R4, tab 3 at8).

59.The contract contained a slightly difference contract requirements clause which stated:Section H - Special Contract Requirements
http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=1017185&docname=48CFR52.216-22&rp=%2ffind%2fdefault.wl&findtype=L&ordoc=2026761042&tc=-1&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=BF02C2F1&rs=WLW13.01http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=1017185&docname=48CFR52.211-18&rp=%2ffind%2fdefault.wl&findtype=L&ordoc=2026761042&tc=-1&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=BF02C2F1&rs=WLW13.01http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=1017185&docname=48CFR52.211-18&rp=%2ffind%2fdefault.wl&findtype=L&ordoc=2026761042&tc=-1&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=BF02C2F1&rs=WLW13.01http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=1017185&docname=48CFR52.216-22&rp=%2ffind%2fdefault.wl&findtype=L&ordoc=2026761042&tc=-1&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=BF02C2F1&rs=WLW13.01


22/71

22

REQUIREMENTS

Contract Requirements

The Contractor shall repair and replace all items damaged or lost. The laundry serviceshould include loading, unloading, segregating, transporting, counting, washing, drying

and obtaining necessary document for the items picked up or delivered. The items mustbe delivered within 72 hours of the items picked up. The number of personnel will varyfrom 1000-7000 per Camp and the number of pieces of items will vary from 420,000-2,940,000 per month. The delivery shall be for 5 camps. A tracking system must be inplace for the COR to monitor and maintain receipts and DD250 for payment.

(R4, at 3 at 10).

60.Section C - THE STATEMENT OF WORK of the contract, paragraph 2, provided thatthe contractor shall provide an effective pickup and delivery system with reliable transportation.

The contractor must have a back up facility or plan in the event the facility becomes

contaminated or destroyed. . . . (R4 tab 3 at 5). Paragraph 1, provided the contractor must be

able to provide the required laundry service for the number of soldiers anticipated. The

contractor must be able handle daily routine operation and surge to meet larger requirement

within 3 days of notification of increased requirement.Id.

61.Technical Exhibit 1 provided:Section J - List of Documents, Exhibits and Other Attachments

TECHNICAL EXHIBIT 1

Approximate numbers of personnel per camp is 1000-7000 soldiers. All laundryitems shall be turned-in inside a laundry bag furnished by the soldier or a plasticbag furnished by the contractor with the last four numbers of the soldiers Social

Security Number written on the inside of his/her clothing. All Items shall befolded and returned in a plastic bag. O-5 and above and E-9 should have theDesert Camouflage Uniform (DCU) Blouse and Pants which shall be pressed andon a hanger, and in a transparent cover.

(R4, tab 3 at 14).

62.The Supplies and Services guidelines provided:The contractor shall provide laundry pick up and delivery service. The contractorshall repair and replace all items damaged or lost. The service should include


23/71

23

loading, unloading, segregating, transporting, counting, washing, drying andobtaining necessary documents for items picked up or delivered. The items mustbe delivered within 72 hours from the picked up time. Laundry Facilities aresubject to inspection before and after awarding of contract.

(R4, tab 3 at 16).

63.The contract also contained 52.217-7 OPTION FOR INCREASED QUANTITY--SEPARATELY PRICED LINE ITEM (MAR 1989), which stated:

The Government may require the delivery of the numbered line item, identified in theSchedule as an option item, in the quantity and at the price stated in the Schedule. TheContracting Officer may exercise the option by written notice to the Contractor within 30days. Delivery of added items shall continue at the same rate that like items are called forunder the contract, unless the parties otherwise agree.

(End of clause)

(R4, tab 3 at 18) (emphasis in the original).

64.The contract also contained the following clauses:52.217-8 OPTION TO EXTEND SERVICES (NOV 1999)52.217-9 OPTION TO EXTEND THE TERM OF THE CONTRACT (MAR 2000)252.237-7014 LOSS OR DAMAGE (COUNT-OF-ARTICLES). (DEC 1991)252.237-7016 DELIVERY TICKETS (DEC 1991)

The GovernmentsEstimate

65.The contract estimated the range of soldiers in each camp would be 1,000 soldierscapable of surging up to 7,000 soldiers per camp on a monthly basis. (R4, tab 1 at 2, 7, 22, tab 3

at 2, 9, 15).

66.The contract estimated the total number of items to be laundered would range from2,520,000 to 17,640,000 (R4, tab 1 at 2, 7, 22, tab 3 at 2, 9, 15).

67.The total contract award was KD 2,287,333.24 (USD 7,887, 356.00). (R4 tab 3 at 1 and8).

68.For small items, a total of 1,341,628.25 KD was placed against CLIN 1002; for largeitems, a total of 809,247.32 KD was placed against CLIN 1003; for sleeping bags (outer), a total


24/71

24

of 61,662.68 KD was placed against CLIN 1004; and for sleeping bag inserts, a total of

74,834.79 was placed against CLIN 1005.

Appellant Also Understood That the Low End

of the GovernmentsEstimate was 1,000 Soldiers;Appellant Understood That the Other Military Laundries Existed; andAppellant Understood the Adjustment Quantity Clause

69.On or about February 22, 2003, Mr. Lionel B. Gittens, appellants managing director,acknowledged in an email that it was hopeful the military could meet the low end of the

requirement, he described as of 1,000 soldiers per camp using an estimate of 21 piecesbecause

most existing military laundries at that time were collecting 500 bags per day. (ex. 8).

70.Appellant in its weekly activity report for the period of April 3-10, 2003, acknowledgedthe low end of the governments estimate as servicing 1,000 per camp. (ex. 9).

71.Appellant submitted charts where the y-axis on the chart begins at zero and increases to1,000 and the x-axis ranges from March 16, 2003 to August 17, 2003 by week. (ex. 10). These

charts also reflect appellants understanding that the low end of the governments estimated

range was 1,000.Id.

72.On or about July 6, 2003, Sheila Gittens , appellants principal officer, emailed thecontracting officer to inquire about ironing services. (ex. 11). In the email, Ms. Gittens

acknowledged that the contract was based on an estimate of 1,000 to 7,000. Id.

73.On or about June 19, 2003, during the negotiations for modification P0003, Ms. Gittensemailed the contracting officer specifically requesting that the adjustment of quantities clause

in the contract be restated. (ex. 12). Ms. Gittens cited to, Section I, page 14, of the 0009 contract

and said, there is a reference to a price adjustment if quantity changes. We request that this

clause be revised to specifically state what happens if the quantity falls below an acceptable level

as we are experiencing here.Id. In that same email, Ms. Gittens acknowledged the


25/71

25

governments estimated range to be between 1,000 and 7,000 in each camp.Id.

Contract Performance, Invoicing and Payment

74.Performance began March 1, 2003. (R4, tab 4).75.On March 31, 2003, appellant submitted invoice number 3079 for a total of 281,564

items against CLIN nos. 1003, 1004, and 1005 at the following firm fixed unit prices for the

following quantities:

FOR THE MONTH OF MARCH 2003ITEM DESCRIPTION CLIN NO. QTY UNIT PRICE VALUE

K.D. FILS1 Small Items 1003 230895 0.240 55414.8002 Large Items 1004 50627 0.280 14175.5603 Sleeping Bags (outer

shell)1005 40 0.587 23.480

4 Sleeping Bags (BlackInsert)

1005 2 1.450 2.900

Total Quantity 281564

(ex. 6). The contracting officer approved 61,958.898 KD for payment for the total quantity of

items appellant laundered in March 2003 at the contracts firm fixed unit rates. (ex. 6).

76.On April 30, 2003, appellant submitted invoice number 3091 for a total of 388,449 itemsagainst CLIN nos. 1003, 1004, and 1005 at the following firm fixed unit prices for the following

quantities:

FOR THE MONTH OF APRIL 2003ITEM DESCRIPTION CLIN NO. QTY UNIT PRICE VALUE

K.D. FILS1 Small Items 1003 283034 0.240 67928.1602 Large Items 1004 97493 0.280 27298.0403 Sleeping Bags (outer

shell)1005 7860 0.587 4613.820


1005 62 1.450 89.900

Total Quantity 388,449


26/71

26

(ex. 6). The contracting officer approved 94,933.424 KD payment for the total quantity of items

appellant laundered in April 2003 at the contracts firm fixed unit rates. (ex. 6).

77.On May 31, 2003, appellant submitted invoice number 3133 for a total of 510,506 itemsagainst CLIN nos. 1003, 1004, and 1005 at the following firm fixed unit prices for the following

quantities:

FOR THE MONTH OF MAY 2003ITEM DESCRIPTION CLIN NO. QTY UNIT PRICE VALUE

K.D. FILS

1 Small Items 1003 438589 0.240 105261.360

2 Large Items 1004 71575 0.280 20041.0003 Sleeping Bags (outer

shell)1005 85 0.587 49.895


1005 257 1.450 372.650


(ex. 6). The contracting officer approved 124,467.656 KD in payment for the total quantity of

items appellant laundered in May 2003 at the contracts firm fixed unit rates. (ex. 6).

78.On June 30, 2003, appellant submitted invoice number 3156 for a total of 489,752 itemsagainst CLIN nos. 1003, 1004, and 1005 at the following firm fixed unit prices for the following

quantities:

FOR THE MONTH OF JUNE 2003ITEM DESCRIPTION CLIN NO. QTY UNIT PRICE VALUE

K.D. FILS

1 Small Items 1003 423300 0.240 101592.000

2 Large Items 1004 65911 0.280 18455.0803 Sleeping Bags (outer

shell)1005 98 0.587 57.526


1005 443 1.450 642.350



27/71

27


items appellant laundered in June 2003 at the contracts firm fixed unit rates. (ex. 6).

79.On July 31, 2003, appellant submitted invoice number 3193 for a total of 415,667 forCLIN Nos. 1003, 1004, and 1005 at the following firm fixed unit prices for in following

quantities:

FOR THE MONTH OF JULY 2003ITEM DESCRIPTION CLIN NO. QTY UNIT PRICE VALUE

K.D. FILS

1 Small Items 1003 369688 0.240 88,725.1202 Large Items 1004 45537 0.280 12,750.3603 Sleeping Bags (outer

shell)

1005 66 0.587 38.742


1005 376 1.450 545.200



items appellant laundered in July 2003 at the contracts firm fixed unit rates. (ex. 6).

80.On August 31, 2003, appellant submitted invoice number 3218 for a total of 350,973items against CLIN nos. 1003, 1004, and 1005 at the following firm fixed unit prices for the

following quantities:

FOR THE MONTH OF AUGUST 2003ITEM DESCRIPTION CLIN NO. QTY UNIT PRICE VALUE

K.D. FILS

1 Small Items 1003 310524 0.240 74525.7602 Large Items 1004 39857 0.280 11159.9603 Sleeping Bags (outer

shell)

1005 79 0.587 46.373


1005 513 1.450 743.850




28/71

28

items appellant laundered in August 2003 at the contracts firm fixed unit rates. (ex. 6).

Total Amount of Laundry/Money Received by Appellant under the Contract

81.Appellant received KD 589,555.97 ($1,976,962.43 USD) for the base period ofperformance (1 March 2003 to 31 August 2003). (Richardson aff.).

82.Appellant invoiced and received payment for laundering 2,436,911 pieces of laundryfrom March 1, 2003 to August 31, 2003.9 (Richardson aff.).

83.Appellant invoiced and received payment for laundering 1,088,869.161 kg of laundryfrom September 1, 2003 to October 31, 2004. (Richardson aff.).

84.Appellant received a total of $12,674,984.78 dollars under the contract. (Richardson aff.).

Modification P0003: Changes the Unit of Measurement under the Contract

from Pieces to Kilograms

to Conform to the way Appellant was actually tracking the Laundry

85.Upon routine quality control inspections, conducted by contracting officer ColleenRodriguez, it was observed that the appellant was not counting the pieces of laundry as required

by the contract. The appellant was weighing the laundry and estimating the pieces based on the

weight. (Rodriguez dep. tr. 29-30).

86.The contracting officer Colleen Rodriguez observed:Well, one of the things, if you look at the basic contract, they called out thenumber of items and what they were saying was that they were being paid basedon the number of socks or underwear or whatever that was being, you know,turned in by the soldiers. And I paid a visit to one of the camps and I watchedthem. And what they were doing is they were not counting the items, they werethrowing them on a scale and weighing them.

(Rodriguez dep. tr. 27).

87.Based on appellants weighing the items vice tracking the individual pieces thecontracting officer recommended that the unit of measurement in the contact be changed from

9 This equates to an average of 406,152 pieces per month.


29/71

29

pieces to kilograms. She stated:

I recommended that the contract be restructured to reflect that the laundry be paidby weight versus individual items. I recommended that the advance paymentclause be removed because it was cut into the contract without proper authority.

And I recommended that we change the estimates to be more in line with what theinvoices were showing.

(Rodriguez dep. tr. 29-30).

88.The contracting officer administered portions of this contract. (Rodriguez aff.). Sheapproved the invoice appellant submitted for payment during the first six months of the base

period.Id.

89.The contracting officer requested that the appellant propose new firm fixed unit pricing

by kilogram verse weight. (ex. 7).

90.In response to the contracting officers request the appellant, in a letter addressed tocontracting officer Colleen Rodriguez, dated September 1, 2003, proposed new firm-fixed unit

prices by weight (2.890 per kilogram and 3.250 per kilogram). (ex. 7).

91.Appellant contended that new rate of 2.890 kilograms, even thought it was by kilogramverses by piece, was comparable to the piece rate for CLIN 1003 for small items (0.240 fils).Id.

Appellant demonstrated this comparability by stating 240 fils multiplied by 12 pieces (1

kilogram) equals KD 2.880, as you can see, this is only an increase of 10 fils. Id.

As illustrated below:

1 kilogram is equal to approximately 12 small pieces of laundry

The piece meal rate for small items is .240 fils

12 (the estimated number of pieces) x .240 fils (the firm fixed unit rate

for small itmes) = KD 2.880

The new rate is KD 2.890 per kilogram (or per 12 small pieces)


30/71

30

Thus, this is only a increase of 10 fils

92.Despite the quantity of laundry services appellant received during the months of Marchthrough August 2003, appellant chose not to increase the firm-fixed unit rate by more than 10

fils.Id.

93.On September 1, 2003, the parties executed modification P0003 to exercise the optionand correct the unit of measurement to conform to the appellants practices. (Rodriguez dep. tr.

27-29).

94.After the exercise of the option and extensions, performance ended on October 31, 2004.(R4, tabs 1-14).

95.After Modification P0003, the appellant invoiced and was paid for laundering1,088,869.16 kilograms of laundry (or 13,066,429.92 small pieces) from September 1, 2003 to

October 31, 2004.10

96.Appellant was paid KD 3,147,662.66 ($10,698,022.35) for the 1,088,869.16 kilogramsof laundry services it provided during the option period and extension periods (September 1,

2003 through October 31, 2004). (Richardson aff.).

Actual Pieces Laundry Laundered under the Contract

97.During the 6-month base term, the actual amount of laundry provided to AGT from thefive camps was 3% below the lowest quantity estimated in the governments requirements.

98.The government estimated that appellant could receive as few as 2,520,000 pieces oflaundry (assuming 1,000 soldiers use the service) during the base period. Appellant actually

received 2,436,911 during the base period, just 3% below what was estimated.

99.During the option and extension periods, appellant received 1,088,869.16 kilograms of10 This equates to approximately 13,066,430 pieces (1,088,869.16 kilograms x 12 pieces per kilogram), which is933,316 pieces per month on average.


31/71

31

laundry (or 13,066,429.92 small pieces) for service, for which appellant was paid KD

3,147,662.66 ($10,698,022.35).

100. Over the 20-month contract appellant was paid $12,674,984.78 of $13,500,676.09(obligated on contract). (Richardson aff.).

101. Appellant received 94% of all monies obligated under this contract. (Richardson aff.).102. In total, over the life the contract the appellant laundered 15,503,341 pieces of

laundry and received $12,674,984.78. (Richardson aff.)

103. Appellant was paid at the negotiated firm-fixed unit price for all of the laundry itactually serviced during the contract. (Richardson aff.).

Camp Victory and the 35th

Brigade

104. The contracting officer, Colleen Rodriguez, negotiated with Ms. Shelia Gittens,appellants principal officer, to obtain laundry services at the contracts firm-fixed unit rates.

(Rodriguez aff.).

105. Contracting officer Rodriguez understood that the firm-fixed unit price for smallitems was 0.240 KD, for large items it was 0.280 KD, for sleeping bags (outer shell) it was 0.587

KD, and for sleeping bags (Black Insert) it was 1.450 KD. (Rodriguez aff.).

106. The contracting officer did not agree a laundry service contract at increased unit rates.(Rodriguez aff.).

107. The contracting officer did not agree to fund construction of facilities in connectionwith the provision of laundry services at Camp Victory and the 35th Brigade. (Rodriguez aff.).

108. The last line of CLIN 1001 of the contract stated [a]lso Clauses support a bilateralagreement of expanding the services to new locations. (R4, tab 3 at 2).

109. The solicitations description of delivery and performance stated that the contractor


32/71

32

would provide a shed or cover for issuing laundry to protect soldiers from the elements. (R4,

tab 1 at 5).

110. Neither the solicitation nor the contract allowed for the reimbursement of shed,covers, or facilities used by the contractor to issue laundry to the service members. The

contract was strictly for services at negotiated firm-fixed unit rates, not for the construction of

facilities. (Rodriguez aff.).

111. The contracting officer expected that appellants costs were built into its firm-fixedunit rates. (Rodriguez aff.).

112.

When the contracting officer queried Shelia Gittens to see if appellant could provide

laundry services at Camp Victory and the 35th Brigade, she was only expecting her to provide

services at the firm-fixed unit rates as reflected in the basic contract. (Rodriguez aff.).

113. The contracting officers expectations were based on the terms and conditions ofcontract, specifically the Adjustment Quantity Clause which read:

[t]he purpose of this clause is to state the Governments best estimate of pieces oflaundry to be serviced. The contractor will be paid for the total number of piecesreceived for laundry service. If the quantity washed is lower than the totalamount of the contract, the total amount to be paid will be equally reduced. If thecontractors laundry service items total exceeds the amount of the contract at theend of 6 months the contractor will receive an equitable adjustments increase.The contract is Firm fixed price with item adjustment. This contract is for 6months with an option [sic] clauses to extend. The contractor shall have 11 daysto mobilize [sic] and be fully operational by 26 February 2003.

(Rodriguez aff.).

114. The contracting officer also based her expectations on FAR Clause 52.217-7 entitledOption for Increased Quantity Separately Price Line Item (Mar 1989) which read, The

government may require the delivery of the numbered line item, identified in the Schedule as an

option item, in the quantity and at the price stated in the Schedule. The contracting officer may


33/71

33

exercise the option by written notice to the Contractor within 30 days. Delivery of added items

shall continue at thesame rate that like items are called for under the contract, unless the parties

otherwise agree. (Rodriguez aff.).

115. Appellant billed and was paid for the all the laundry services under the subjectcontract, including the Camp Victory and the 35th Brigade area, at the firm-fixed unit prices.

(Rodriguez aff.).

The Invasion of Iraq

116. Theater level preparation for war with Iraq began in September 2002 following theSecretary of Defense approval of CENTCOMs Preparatory Task Lists and subsequent funding

authority to upgrade the military support/throughput capacity in Kuwait in anticipation of a

Presidential directive to invade Iraq. (Stratman aff.).

117. Major General Stratman (Retired) (hereinafterMG (Ret.)), was the DeputyCommander, Coalition Forces Land Component Command (CFLCC) in support of U.S. Central

Commands Operation Iraqi Freedom combat operations, (known as the DCG-S). In this role

he served as the Head Contracting Authority (HCA) and directly over saw the Principal Assistant

Responsible for Contracting (PARC), Colonel retired Mark R. Neumann. (Stratman aff.).

118. In accordance with the planning assumptions of our campaign plan (Cobra II), andCFLCCs Preparatory TaskList, MG (Ret.) Stratman oversaw the creation of multiple base

camps in Kuwait to support the flow of forces into theater in the event of war with Iraq.

(Stratman aff.).

119. Because the Army fought as Brigade Combat Teams and known/projected forcelevels, in late 2002, MG (Ret.) Stratman set the troop capacity to be supported in each camp at

5000 to 7000 soldiers. It was understood that each camp needed this level of troop support


34/71

34

capacity. (Stratman aff.).

120. CFLCC developed a concept of support, with the use planning assumptions andstandard planning factors that at that time were designed to facilitate rapid operational maneuver

and movement, and to sustain operations over long lines of communication (LOCs) with a

responsive, dependable and predictable distribution system. This support concept is dependent

upon a combination of unit capabilities to self-sustain for 5 days, a maximum pre-positioning of

combat equipment in Theater, a well-focused Theater sustainment base, and a robust Theater

Distribution System. (Stratman aff.).

121.

The Campaign Plan provided for major troop staging and logistical support functions

to be performed in the Southern Region (Kuwait), augmented by a Northern supporting axis

from Turkey. However, the Turkish government in early March 2003, disapproved the US

governments request to flow 4th Infantry Division (4ID) forces thru Turkeynecessitating their

deployment through Kuwait in the April/May 2003 timeframe and 4ID occupied the 5 camps

during their Reception, Staging & Onward movement, and Integration (RSOI) activities prior to

deploying into Iraq. The 4ID arrived in Kuwait in late March early April 2003. (Stratman aff.).

122. Planning factors called for the majority of the Kuwait camps to be enduring followingan invasion of Iraq for follow-on forces (e.g., 4ID)/reinforcements; and for retrograde/re-

deployment base camps. However, the decision to disband the Iraq Regular Army significantly

impacted CFLCCs Stability and Support plans and prolonged the occupation phase of the

campaign. (Stratman aff.).

123. In February of 2003, neither MG (Ret.) Stratman nor his staff knew when thePresident would order the invasion of Iraq. Although military forces were staged in Kuwait,

uncertainty was rampantprimarily because the United States had never attacked another nation


35/71

35

without first being directly attacked by that nation. President Bushs precedent-setting decision

to topple Saddams Regime was not a foregone conclusion. (Stratman aff.).

124. One of the MG (Ret.) Stratmans greatest concernsprior to the Presidents decision,was how to sustain the forces in theater if the order to invade was deferred indefinitely to

allow the political/diplomatic process more time to work. While there had been several warning

orders (WARNOs) directing the command to be prepared a certain date of invasion was not

known by the command until mid-March 2003. (Stratman aff.).

125. CFLCCsmission was to be prepared to execute On Orders of the Commander-in-Chief. (Stratman aff.).

126. MG (Ret.) Stratman, first learned that the President had directed the invasion of Iraqon March 17, 2003 during a General Officer huddle with Lieutenant General ( LTG) McKiernan,

Commanding General, CFLCC. (Stratman aff.).

127. After the start of the ground invasion, on or about 20 March 2003, forces continued toflow into theater. The 4th Infantry Division, was the major follow-on force to flow through the

Kuwait camps after G-Day. (Stratman aff.).

128. Colonel (COL) Mark R. Neumann (Retired) (hereinafterCOL Neumann Ret.)served as the CFLCC Principal Assistant Responsible for Contracting (PARC) in 2003. COL

Neumann (Ret.) had direct contracting responsibility and oversight for all designated

contingency contracting assets/operations in theater. All Army and Service Component Liaisons

for contracting fell under his operational control. COL Neumann Ret. reported directly to Sandy

Seiber and supported MG (Ret.) Stratman. (Neumann aff.).

129. The contracting officer, Lieutenant Colonel (LTC) Marshall Kevin May (Retired)(hereinafterLTC May Ret.) the director of the Kuwait-Directorate of Contracting (KU-DOC)


36/71

36

reported directly to COL Neumann (Ret.). (Neumann aff.).

130. In January and February of 2003, neither COL Neumann (Ret.), nor anyone under hiscontrol and authority knew when or if the President was going to give the call to invade Iraq,

including the KU-DOC, LTC May. Forces had been massed in Kuwait before, with tanks placed

along the border, and no call to invade ever came. In early 2003, the command was not working

with perfect information. No one knew when troops might cross the line of demarcation.

(Neumann aff.).

131. In February of 2003, COL Neumann (Ret.) specifically asked the CFLCC Chief ofStaff (CoS) how many soldiers and marines can we expect? Towhich the CoS replied, I dont

know, the TPFDL [Time Phased Force Deployment List] has not been approved, it is with

Donald Rumsfeld. (Neumann aff.).

132. COL Neumann (Ret.), then inquired of the CoS [h]ow many folks does it take toinvade a county? The CoS replied that it would take at least ten divisions (or APPROX 100,000

troops). (Neumann aff.).

133. Neither the PARC nor his staff would been involved in nor had access to CFLCC warplanning documents, except that portion of the Annex that pertained to Contingency Contracting.

(Neumann aff.).

134. The charge was to build contracted supply capacity for deploying and returningtroops to allow commanders the greatest amount of control over their forces. The DOC used

existing contracts to the maximum extent possible. At the time, the existing laundry service

providers included AIK and LOGCAP. To meet the increasing demand the DOC contracted

with other vendors, like AGT, to make up the difference. (Neumann aff.).

135. The DOC had no actual data on the exact number of troops expected they simply had


37/71

37

to be ready, should the call come. (Neumann aff.).

136. A projected range of 1,000 to 7,000 troops per camp would have been reasonablebased on the information know to us at the time. The rear-detachment personnel, permanently

assigned to those camps, totaled (over 1,000 troops alone). This did not account for the staff

element, over 1,000 personnel, Marine forces, sister services, nor our coalition partners.

(Neumann aff.).

137. MG (Ret.) Stratman directed COL Neumann (Ret.) to build capacity for 5,000 to7,000 to troops in each of the Kuwait camps (NY, NJ, CT, PA, and VA) based on the known

elements and projected numbers. To allow commanders of Brigade Combat Teams to Divisions

(approximately 5,000 up to 20,000 troops) greater command and control of their forces. The

DOC expected the aforementioned camps to be used for Reception, Staging, Integration and

Onward movement, RSOI, as well as training bases for forces as forces flowed through Kuwait

into Iraq. The DOC contemplated that the Kuwaiti camps would have an enduring presence.

Neither the PARC nor his staff envisioned that the aforementioned camps in Kuwait would be

emptied, if or, when the invasion order was ultimately given. (Neumann aff.).

138. Based on guidance from senior leadership, in early 2003 COL Neumann (Ret.)directed LTC May (Ret.) to build capacity to support up to ten divisions. Based COL

Neumanns (Ret.) guidance, LTC May (Ret.) should have been preparing to support 5,000 to

7,000 troops, if not upwards of 10,000, troops in each of the five Kuwaiti camps mentioned

above. This guidance would have specifically included support for laundry services. (Neumann

aff.).

139. COL Neumann (Ret.) the PARC first learned that CFLCC was going to war when itwas announced. COL Neumann (Ret.) did not know for certain an invasion was going to occur


38/71

38

on or about March 20, 2003 until this announcement was made to the CFLCC staff. (Neumann

aff.).

140. LTC May (Ret.) the contracting officer testified at his deposition that:Q. All right. And how long before the invasion of Iraq was it first discussed thatan invasion in -- in spring could occur?

A. I don't recall a meeting talking specifics about when the war would occur. Wedidn't -- I didn't know, and I'm quite sure Colonel Brown didn't know or ColonelNeumann didn't know, when exactly we were going to war. Was it going to be thespring, the fall, the summer, or the winter.

(May Dep. tr. 99).

Q. Did you ever talk about the potential invasion of Iraq at any of those staffmeetings?A. You asked me that before, and I told you no. I don't recall talking about...Q. Okay. And just to clarify, my question before was in reference specifically toMr. Brown. This time I'm asking in reference to the Department of Logistics. Didyou --A. Oh.Q. Did you ever discuss a potential of invasion of Iraq at any communication youhad with the Department of Logistics personnel?A. I -- I don't recall that, sir. Because my -- my responsibility and my mission wascontracting.

(May Dep. tr. 103).

Q. Okay. Do you recall at any point in time while you were in Kuwait havingheard that the Kitty Hawk was sent to the Persian Gulf?

A. No. Sir, so I make you understand something. I'm speculating, but these seemlike to be news headlines. I'm a soldier on the ground in Kuwait. I would not beconcerned with what my senior leaders in another force would be doing. All Iknow is I trust them to do the right thing by the soldiers. My job was to makesure we had contracting capabilities and support ready to go for whateverhappens, when it happens.

(May dep. tr. 109-10).

Q. But as someone involved in contracting, wasn't it your concern if you see a lotmore soldiers to make sure they have enough food, enough toilet paper, enoughfuel, and everything that you're responsible for?


39/71

39

A. No, sir. Unless that unit commander or senior person who is responsible forrequirement document came into contracting, as a request for support, then, no.Because what you just said, toilet paper, all this other stuff could have camethrough the Logistic pipeline, or they could have brought it with them. So itdoesn't concern me, sir. Unless you knock on my door and submit that

requirement -- requirements document to me, that's funded. Then I'm ready to gowith a contract.

(May dep. tr. at 112-13).

The only thing I remember about those Camps, sir, is that they were usedpriorto the war, they were used like we use our exercise area out in California, theNTC, National Training Center. And when the war started, they were used assupport areas, staging areas prior to going into Iraq. That's what I recall.

(May dep. tr. 31-32).

141. Inmate Cockerham testified at his deposition that no one knew the numbers.(Cockerham dep. tr. 62-63).

Q. Okay. You know, months prior, when you first heard about an actual invasionwhat was yourwhat was you understanding of how many soldiers would beleaving these camp- -- these five camp?

A. Heres what were told. The number were really unknown. What we didknow is that we wanted a large troop build up in Iraq and that those camps wouldbe a pass-through to Iraq and we werethose camps were established to handlethe max planes coming in andand basically an overflow so those camps waspassed on an average of having 30,000 soldiers on the ground at one time prior topassing into Iraq. And that is why we wrote the specific language in Exhibit 1,page 21. If youll go to the adjustment quantity clause, that was put in there justfor that reason.

Id. (emphasis added).

142. Inmate Cockerham testified that the contracts were written so that there were clausesso that we could make adjustments. (Cockerham dep. tr. 27).

143. The CFLCC invasion plan that supported U.S. Central Command's Campaign Plan1003V and was titled COBRA II. (Benson aff.). COL Kevin Benson (Ret.) led the development

of and watched the execution of COBRA II. COBRA II was a multi-phased operational plan.


40/71

40

Phase III was the initiation of combat operations and the decisive maneuver to Baghdad. Phase

IV completed regime removal and transition to civil authority. Phases I and II were preparatory

phases that set the conditions for the start of Phase III should the President order the invasion.

The initiation of Phase III or combat operations is a political decision, made by the President.Id.

144. A specific G-Day date of March 20, 2003 was not contemplated by COBRA II norCFLCC planners in January and February of 2003. COBRA II specifically stated that Phase III

or D-Day/G-Day would commence when directed. (Benson aff.).

145. COBRA II was developed with the use of planning assumptions and standardplanning factors. CFLCC planners used an unspecified C-Day and D-Day for planning. C-Day

represented the date of deployments to the Iraq Theater of operations would commence while D-

Day and G-Day represented the start of major combat operation and the initiation of a ground

force invasion respectively. At times these terms, D-Day and G-Day, were used

interchangeably. (Benson aff.).

146. COBRA II did not indicate the actual date for G-Day or when the ground invasionwas to begin. CFLCC planners did not assume that G-Day was a foregone conclusion. When

Secretary of Defense Donald Rumsfeld advised planners that he was not going to approve a

Time Phased Force Deployment List (TPFDL) in late January 2003, he made it clear to planners

that the initiation of combat operations was a decision that was to be made by the Commander-

in-Chief. As the President had not yet decided whether to use a military option he, the secretary,

was not going to approve a TPFDL as this would put the US on a path to war and that decision

had not yet been taken. To continue the flow of forces, the Secretary of Defense directed that

specific Requests for Forces (RFF) be developed as needed. As a result, commanders and

planners had to build packages for forces on an individual basis to be personally approved or


41/71

41

disapproved by the Secretary of Defense. (Benson aff.).

147. We used a planning assumption of 3,500 to 7,000 soldiers at Camps Virginia, NewYork, New Jersey, Pennsylvania, and Connecticut Camps in Kuwait as that number allowed

commanders the most flexibility. (Benson aff.). Building camps to support this capacity would

allow the commander the flexibility of staging a range of forces from a Brigade Combat Team

(approximately 5,000 troops) to a Division (up to 20,000 troops) in the camps.Id. Planners

expected the aforementioned camps to be used for Reception, Staging, Integration and Onward

movement, RSOI, as well as training bases for forces as they flowed through Kuwait into Iraq.

Planners envisioned these forces would have a continuing presence in Kuwait as the camps

would also be used for relief-in-place operations. Id.

148. Neither CFLCC planners nor COBRA II contemplated that the aforementioned campsin Kuwait would be emptied after the beginning of G-Day. (Benson aff.).

149. Neither COL Benson (Ret.) nor his counterparts in CENTCOM J5 were aware on orbefore March 17, 2003 that a ground invasion was going to commence on or about March 20,

2003. (Benson aff.).

150. Given that going to war is a political decision, COL Benson (Ret.) and the CFLCCplanners drove themselves to be ready to execute the plan when directed or on order.

(Benson aff.).

151. COL Benson (Ret.) first suspected that CFLCC was going to war on March 17, 2003,after a conversation with LTG McKiernan about Phase IV. On March 17, 2003, LTG

McKiernan told COL Benson (Ret.) that he had to get through Phase III before he could think

about Phase IV. COL Benson (Ret.) did not know for certain D/G-Day was March 20, 2003

until late on March 18, 2003. (Benson aff.).


42/71

42

152. Of relevance here, as it relates to the 6-month base period, the population of troops inthe camps was only taken from March through June of 2003. (MAJ Eggers aff.). During those

months the population in the camps (also called Kabals11) was 18,839 in March 2003, 31,632 in

April of 2003, 19,995 in May of 2003, 16,285 in June of 2003. (MAJ Eggers aff.). After June of

2003 the only data that was reported was by country not camp.Id.

153. The military population in Kuwait by month beginning in July of 2003 is as follows-July 2003 41,982August 2003 37,982September 2003 31,111October 2003 22,719

November 2003 26,814December 2003 19,493January 2004 45,806February 2004 84,091March 2004 64,015April 2004 26,897May 2004 22,631June 2004 23,331July 2004 22,287August 2004 20,837September 2004 19,741October 2004 21,140

(MAJ Eggers aff.).

154. Some soldiers chose not to use services of appellant and washed their laundry byhand. (ex. 13).

STATEMENT OF DISPUTED GENUINE ISSUES OF MATERIAL FACT

In accordance with Rule 5(b) and the Boards guida

U.S. Army Summary Judgment Response Negligent Estimate AGT

Documents

Transcript of U.S. Army Summary Judgment Response Negligent Estimate AGT