Oasis International Waters, Inc. v. United States ( 2017 )

In the United States Court of Federal Claims
No. 10-707C
Filed: November 21, 2017
Reissued: December 1, 20171
* * * * * * * * * * * * * * * *
OASIS INTERNATIONAL WATERS, *
INC., *
*
Plaintiff, * Trial; Contract Interpretation;
v. * Site Conditions; Law of the
* Case; Quantum; Delay.
UNITED STATES, *
*
Defendant. *
*
* * * * * * * * * * * * * * *
OPINION
Laurence Schor, Asmar, Schor & McKenna, PLLC, Washington, D.C., for plaintiff.
With him were Susan L. Schor, Dennis C. Ehlers, David A. Edelstein, Robert D. Pratt,
and Allison G. Geewax, Asmar, Schor & McKenna, PLLC, Washington, D.C.
James P. Connor, Senior Trial Counsel, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C., for defendant. With him
were Tanya B. Koenig, Trial Attorney, Commercial Litigation Branch, Stephen C. Tosini,
Senior Trial Counsel, Douglas K. Mickle, Assistant Director, Commercial Litigation
Branch, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Chad A.
Readler, Acting Assistant Attorney General, Civil Division, Department of Justice.
HORN, J.
Plaintiff, Oasis International Waters, Inc. (Oasis), is a contractor that performed a
bottled water contract with the United States military in Iraq during the Iraq War. Oasis is
a Nevada corporation for which the principal place of business is in Utah. After the end of
contract performance, plaintiff filed a certified claim with the contracting officer, which was
denied in its entirety. Plaintiff thereafter filed a complaint in the United States Court of
Federal Claims on October 18, 2010, and, subsequently, on April 12, 2012, defendant
filed fraud counterclaims against plaintiff.
1 The court issued a series of opinions in the above captioned case on August 31, 2016,
April 7, 2017, and November 21, 2017. In response to the court’s November 21, 2017
Order, the parties agreed that all three opinions could be issued without redactions. After
reviewing the opinions, the court agrees with the parties and the original opinions are
hereby unsealed and reissued without redaction.
FINDINGS OF FACT
As stipulated to by the parties, “[a]fter the start of the Iraq War but prior to the
award of the contract at issue in this case, the Army procured all of its Iraq bottled water
requirements from Turkey, Kuwait, and Jordan and shipped it by truck into Iraq and to the
various U.S. military bases in Iraq.” United States Air Force Colonel Renee M.
Richardson, who served as one of the contracting officers on the contract at issue in this
case from May 2006 until October 2006,2 explained at trial that “[t]he previous approach
was bringing bottled water in from Turkey, Jordan, and Kuwait, of course, which put
soldiers on the road for the transportation.” As noted in the Statement of Work for the
solicitation at issue in this case, Solicitation No. W27P4A-05-R-0002 (the solicitation):
Up to the present time bottled water has been purchased from sources
outside of Iraq. This practice necessitates large numbers of convoys and
escorts to transport the bottled water from Kuwait, Jordan, and Turkey.
Producing bottled water locally would significantly reduce the number of
convoys required to transport water as well as reduce the likelihood of battle
related injuries.
The parties also stipulated that:
On or about March 2, 2005, Maj. Vazquez, a contracting officer with Joint
Contracting Command-Iraq (JCC-I, later Joint Contracting Command-Iraq
Afghanistan – JCC-I/A), serving at Camp Victory, issued a Request for
Information (RFI) “to get information on contractors capable of providing the
following capabilities for construction of re-locatable water purifying and
bottling facilities for distribution at several locations in Iraq. Locations will be
identified at a later date and time. These facilities are to produce clean
drinkable bottled water per all USDA and FDA standards and requirements.”
The RFI generated interest from 71 vendors, and, on April 3, 2005, the government
posted Solicitation No. W27P4A-05-R-0002.3 Proposals were due by May 3, 2005, and
the government received 22 bids in response to the solicitation, and answered 145
questions. A sample of the questions and answers reveals that the bidders had questions
about the pricing, capabilities, the land to be provided in Iraq and the obligations of the
government. For example, one part of question 33 stated: “Is our offer to give the cost per
liter with the personnel built in, seperate [sic] to the cost of the plant and equipment?” The
government replied: “All Costs per liter are to be included.” Likewise, question 40 asked:
“Start up Cost: Since the bid is predicated upon the deliverables per litre bottle of water,
can we assume that all costs(inc personnel and equipment deployment to site) incurred
between contract award and water production will fall upon the successful bidder?” The
2In 2006, Colonel Richardson was a Lieutenant Colonel. When she testified at trial, she
was a full Colonel. The court refers to her as Colonel Richardson in this opinion.
3 The government issued 11 amendments to the solicitation.
2
government replied: “Yes. It is up to you how you determine the cost per litre taking into
account all costs associated with this endeavor.”
There were a number of questions regarding the obligations of the government.
Question 2 asked, “[i]f projected demand falls short, what are the minimum volume
requirements? Is there a required minimum quantity the Government will procure?” The
government responded: “There are no minimums. The minimum is zero.” Additionally,
question 35, referring to question and answer 2, asked:
The answer to Question #2 states that there are no minimum purchase
quantities. This decision places an unreasonable amount of financial risk on
the contractor, and will likely severely limit the competition for this RFP
[Request for Proposals]. Request that the Government guarantee minimum
purchase quantities base [sic] on the estimated quantities that appear in the
RFP.
The government responded:
The levels of liters required are in the range. This is roughly the production
per day. You might have a day where your levels are lower, however, the
Government contract is a Firm Fixed Price not Indefinite Delivery / Indefinite
Quantity. The Government is entering into a one year contract with three
option years. The only thing that could prevent the basic year from occurring
is a Government decision to Terminate for Convenience or default of the
contractor to perform to the requirements and the Government would then
Terminate for Default.
One bidder questioned the potential for installment payments, asking: “Would the
Government authorize progress or installment payments recognizing 1) the significant
capital investment with establishing new capability and, 2) the ability to credit progress
payments with actual deliveries?” to which the government responded that: “The first
payment will be made once the contractor has the first plant operational and has had an
approved first article test accepted without conditions.”
In response to question 44, the government indicated “[t]he Government will
provide as flat land as possible,” and regarding site conditions, the government indicated
in the answer to question 89, stated that “[s]ite prep should be minimal. The water source
has been identified and deemed to have sufficient amounts by the government to support
the operation.” The government also noted in answer to question 89, however, “[i]t is up
to you what you do in order to meet the Government’s requirements and timeframe for
delivery.”
In response to the question: “Start up Cost: Since the bid is predicated upon the
deliverables per litre bottle of water, can we assume that all costs(inc personnel and
equipment deployment to site) incurred between contract award and water production will
fall upon the successful bidder?” the government indicated: “Yes. It is up to you how you
determine the cost per litre taking into account all costs associated with this endeavor.”
3
One of the 22 bids was submitted by American AquaSource, Inc. (American
AquaSource), and signed by Max Wyeth, President of American AquaSource. Attached
to the American AquaSource proposal was a spreadsheet showing the volumes of
production and an estimate for when each site would begin water production. American
AquaSource’s bid assumed a price of $3.50 per case of water, or a total of
$50,225,000.00, based on the production of 14,350,000 cases.4 At trial, Max Wyeth
explained that he calculated the $50.225 million figure “using our average forecast of
demand, we came up with a case number that would be produced per year, and multiplied
that by the case cost.”5
Major Mauricio Vazquez, who issued the RFI and answered the questions posed
by the potential offerors, contacted Max Wyeth to clarify the proposal and to submit a
“total cost per year for all four years and the Grand total.” Max Wyeth provided Major
Vazquez with a base year price of $50,225,000.00 and three option year prices of
$186,000,000.00, totaling $608,225,000.00. Max Wyeth confirmed in his correspondence
“that the 3.50 price is the only price, regardless of the winter/summer/surge period, for all
years within the contract.” After negotiations between Max Wyeth and Major Vazquez, in
which Major Vazquez asked Max Wyeth to reconsider the option year prices, on May 11,
2005, Max Wyeth submitted an amendment to the American AquaSource proposal, which
included a revised “Summary of Pricing Schedule” with a proposed base year price of
$50,225,000.00 and three option year prices of $112,000,000.00, for a total contract price
of $386,225,000.00. The parties have stipulated that, “[o]ther than AquaSource’s
proposed price, all other offerors whose proposals were found technically acceptable
offered prices in excess of $1 Billion.”6 Major Vazquez awarded contract no. W27P4A-
4 The court notes, however, for the basis of the estimate in the American AquaSource
proposal, American AquaSource assumed annual production of 384 million bottles or 32
million cases of water.
5 Counsel for defendant confirmed during Max Wyeth’s testimony:
Q. So, just so the record is clear, the $50.225 [million] in your proposal is based
upon $3.50 per case?
A. Yes.
6 The government’s own Independent Government Cost Estimate, estimated a total base
year cost of $149,145,842.23, or almost three times American AquaSource’s proposal for
the base year, to construct and operate the eight water bottling facilities in Iraq. Morrell
International, Inc., a corporation, whose Chief Executive Officer was Phil Morrell, also
submitted a separate proposal which provided for a base year price of $899,725,000.00,
option year prices of $831,287,500.00 per year, for a contract total of $3,393,587,500.00.
Phil Morrell, who later became the president of Oasis, the successor contractor to
American AquaSource, testified at trial, however, that his bid was a “bad bid,” and that he
had intended to bid at $5.50 per case of bottled water. Phil Morrell indicated that the
4
05-C-0002 (the contract) to American AquaSource on May 25, 2005. The contract called
for base year price of $50,225,000.00 and three option year prices of $112,000,000.00
each, for a total contract price of $386,225,000.00.7 Major Vazquez signed the contract
on behalf of the government and Max Wyeth signed on behalf of American AquaSource.
After the contract was awarded to American AquaSource, Paul Morrell contacted
Max Wyeth, and subsequently, in June 2005, Max Wyeth exchanged several emails with
Phil Morrell and Dan Petsche, then the Vice President for Contracts and Compliance for
Al-Morrell Development discussing the bottled water project.8 Paul Morrell testified that
“[o]ur original intent with American AquaSource was to sell our assets to him, as it
appeared that he didn't have the resources and the funding to acquire our assets, much
less build the factories. It morphed or migrated into a partnership between Max and Phil
and myself.”9 Paul Morrell explained that, initially:
Al-Morrell Development was essentially the performance arm of the
operation. We built the facilities. We financed them. All the employees were
employed by Al-Morrell Development. It was basically the part of the
organizations that really did all the performance. . . . Max's responsibility
was to provide water bottling expertise, because Phil and I were -- had
never built a water bottling plant prior to this.
The original arrangement changed, because as Paul Morrell testified:
Initially, Mr. Wyeth told us that he had the financing lined up, and he just
needed time. He didn't have time, because the first facility had to be up --
we're talking July, and we had basically 90 days to get the first facility up.
So, we really didn't have time. . . . So, our understanding was he would
continue to try to bring his financing option to the table, get money in the
bank. In the meantime, Phil and I would self-fund this first plant so that we
could meet the contractual deadlines. Over the course of the fall, it became
clear that Mr. Wyeth's options were not going to come to fruition, and AMD
[Al-Morrell Development] -- initially it was a parallel track. We were trying to
request “needed to be right around $5.50 per case,” for “somewhere around the 32 million
cases per year.”
7 The cover page to the contract listed the estimated dollar amount as “$386,225,000.00.”
At trial, Major Vazquez testified that this amount was in error and that the amount should
have been $50,225,000.00. Subsequently, on July 15, 2005, United States Air Force
Major Marc A. Lopez, who served as the contracting officer on the contract from June
2005 until September 2005, executed modification P00002 on behalf of the government,
which changed the dollar amount from “$386,225,000.00” to “50,225,000 (NTE),”
because “[o]nly the base year award should have been documented in the contract.”
8Max Wyeth testified that at the time he signed this contract he had no relationship with
Al-Morrell Development, Paul Morrell, Phil Morrell, or Paul Jeffries.
9 Phil Morrell and Paul Morrell are brothers.
5
obtain financing on behalf of AMD while we were waiting for his financing to
come into place. Ultimately his financing failed, and the AMD financing did
come into place late in the year or early the next year.
Therefore, in July 2005, Phil Morrell, Al-Morrell Development, Max Wyeth, and American
AquaSource entered into a joint development and pre-incorporation agreement to form a
new corporation to fulfill the contract, with the agreement reflecting that the purpose of
American AquaSource’s contract was to “build up to six (6)[10] water bottling plants in the
country of Iraq.” Initially, the corporation was called Iraqua, Inc., but later changed its
name, on July 15, 2005, to Oasis. Subsequently, in the fall of 2005, Phil Morrell, Al-Morrell
Development, Max Wyeth, and American AquaSource signed an addendum to the joint
development and pre-incorporation agreement, assigning American AquaSource’s
contract to Oasis. The addendum required Max Wyeth, of American AquaSource, to
execute a novation agreement. The novation agreement was to be a modification to the
contract, and ultimately was modification P00005, discussed below. On December 5,
2005,11 “American Aqua Source, Inc.,” “Oasis International Water, Inc.,” and the “United
States of America” “enter[ed] into this Novation Agreement. . . as of August 1, 2005.” Max
Wyeth, then-president of Oasis and American AquaSource, signed the modification on
behalf of Oasis on December 2, 2005 and Colonel Brandon Montler signed for the military
on December 5, 2005.12 The modification stated that the “purpose of this modification”
was to reflect the novation agreement transferring all rights and responsibilities of the
bottled water contract from American AquaSource to Oasis. The modification also stated
that, “[a]ll other terms and conditions of the contract remain unchanged.”
Paul Morrell was the Chief Executive Officer of Al-Morrell Development from
August 15, 2005 through January 2006, and, thereafter, he served as President of Al-
Morrell Development. Paul Morrell also was the Chief Executive Officer of Oasis from
August 15, 2005 through January 2006, and, thereafter, served as President of Oasis.
Phil Morrell was Chairman of Oasis from July 2005 through December 2012. Paul Jeffries
served as both the Chief Executive Officer and Chief Financial Officer of Al-Morrell
Development and Oasis. Paul Jeffries served as Chief Financial Officer of Al-Morrell
Development and Oasis from June 2005 through January 2006, and, subsequently,
served as Chief Executive Officer of Al-Morrell Development and Oasis from January
2006 through 2010. Paul Jeffries was replaced as Chief Financial Officer of Al-Morrell
Development and Oasis by Neil Vos, who served as Chief Financial Officer from February
10 As explained below, although the contract, as executed, required eight water bottling
plants, the contract was modified by modification P00001 to require only six water bottling
plants.
11In 2005, Colonel Montler was a Major. When he testified at trial, he was a Colonel. The
court refers to him as Colonel Montler in this opinion.
12 At the time of the novation, Max Wyeth testified he was “out of the loop” and his interest
in Oasis was eventually bought out by the Phil Morrell and Paul Morrell. Max Wyeth also
was not involved in the completion of the bottled water plants. Oasis accepted Max
Wyeth’s resignation as president of Oasis on January 5, 2006.
6
16, 2006 until June 2011. As noted above, Dan Petsche was the Vice President for
Contracts and Compliance for Al-Morrell Development during initial discussions about the
contract with Max Wyeth, and he also was the Vice President for Contracts and
Compliance for Oasis from 2005 through October 31, 2011. At all times, Paul Morrell and
Phil Morrell had a controlling interest in Oasis, and after Max Wyeth was bought out and
resigned as president, Paul Morrell and Phil Morrell controlled 100% of Oasis.
The Contract
As noted above, Major Vazquez awarded contract no. W27P4A-05-C-0002 to
American AquaSource on May 25, 2005. Item no. 0001 of the contract was “NON-
PERSONAL SERVICS [sic]” (capitalization in original) and indicated:
The Contractor shall provide all labor, tools, supervision, personnel,
equipment, transportation, materials, facilities, and other essentials
necessary to perform and sustain 8 separate and independent purified
bottle water plants according to the 20 Mar 05 Statement of Objectives
(SOO). Period of Performance: 25 May 05 through 24 May 06.
The unit price was listed as “$3.50/case” for all amounts of water produced. Following the
item no. 0001 were three items for the three option years, item no. 1001, item no. 2001,
and item no. 3001, changing only the period of performance.13 After item nos. 0001, 1001,
2001, and 3001, there was a summary of the pricing schedule which stated:
SUMMARY OF PRICES FOR BASE YEAR AND THREE OPTION YEARS
TOTAL BASE YEAR $50,225,000.00
FIRST OPTION YEAR $112,000,000.00
SECOND OPTION YEAR $112,000,000.00
THIRD OPTION YEAR $112,000,000.00
GRAND TOTAL (Base Year and Three Option Years) $386,225,000.00
(capitalization and emphasis in original). The period of performance was listed in the
contract as:
BASIC PERIOD 25 May 2005 - 24 May 2006
OPTION PERIOD I 25 May 2006 - 24 May 2007
OPTION PERIOD II 25 May 2007 - 24 May 2008
OPTION PERIOD III 25 May 2008 - 24 May 2009
13 The similarity of the three options years after the base year is reflected in the
typographic error of “NON-PERSONAL SERVICS” in each of the three option years.
(capitalization in original).
7
(capitalization in original). The statement of objectives for the “purified bottled water
services” contract explained:
The purpose of this contract is to provide re-locatable purified bottled water
capabilities at various locations throughout Iraq Area of Operations (AO).
Contractor shall produce the amounts of bottled water as outlined in Figure
1. Contractor shall ensure bottled water capability is able to relocate upon
notification by the Contracting Officer (CO) due to military operational
requirements. Bottled water capabilities shall be established in the order as
listed in Figure 1. Actual locations will be given to the contractor that wins
award. The contractor shall provide all the mechanical equipment required
to produce and prepare for shipment the required amounts of bottled water.
The first bottled water site shall be operational 120 days after the contract
is awarded. This includes military inspection and acceptance. After contract
award, additional bottled water sites shall be established within the
remainder of days from contract award. A full 365 days from contract award,
all sites will be fully operational.
Figure 1, referenced in the statement of objectives, identified the production requirements
at each of the bottled water facilities at different points in the year.
LOCATION TOTAL PRODUCTION REQUIREMENT/DAY in 1K
Liters (winter/summer/surge)
Location 1 75-100K liters / 101-150K liters / 151-200K liters
Location 2 65-100K liters / 101-135K liters / 136-170K liters
Location 3 35-55K liters / 56-75K liters / 76-100K liters
Location 4 60-110K liters / 111-160K liters / 161-210K liters
Location 5 60-110K liters / 111-160K liters / 161-210K liters
Location 6 200-300K liters / 301-400K liters / 401-450K liters
Location 7 80-120K liters / 121-160K liters / 161-200K liters
Location 8 75-110K liters / 111-150K liters / 151-190K liters
(capitalization in original). Figure 1 contemplated three different quantity production
requirements: winter, summer, and “surge.” Colonel Richardson testified, explaining the
different requirements, as follows:
8
[D]uring the winter, the weather was a lot more reasonable in Iraq; the highs
were around the eighties, nineties. In the summer, temperatures got up to
135 degrees, requiring soldiers to drink more just to stay cool and to stay
hydrated. During surge, what that's really talking to is battle operations. Our
soldiers wind up wearing 60, 70, 80 pounds' worth of gear and then going
out into . . . tanks, which causes them to sweat and causes them to need
more water.
The tasks section of the contract instructed, in part: “The contractor shall provide
re-locatable purified water bottling capability for producing and packaging required
amounts of one liter bottles of water per day as outlined in Figure 1,” “Contractor shall
provide, operate, maintain, and repair all the mechanical equipment required to
accomplish the Government's objectives,” “Contractor shall ensure bottled water meets
or exceeds all US Government quality standards,” and “Contractor shall operate the
purified bottled water capabilities with enough personnel to meet the Government's
requirements.” Regarding payment to the contractor, the invoicing section of the contract
stated:
Invoicing shall occur monthly. The contractor shall invoice to the Contracting
Officer Representative (COR), by the 5th of each month, for the total of all
liters in [sic] produced, per location, for the entire previous month. The
CORs will prepare the DD250s and will submit them with the contractor's
invoice to the Contracting Officer (CO), no later than the 10th of each month.
Bottled Water Facilities
Although the contract, as awarded, required eight bottled water facilities, on May
26, 2005, as noted above, the day after contract award, United States Air Force
Lieutenant Marion Knapp executed a no-cost modification P00001 on behalf of the
government reducing the required number of water bottling facilities from eight to six. The
six bottled water facilities were: LSA Anaconda (Anaconda), Camp Victory, Al Asad
Airbase, Qayyarrah West (Q-West), Speicher, and Camp Taqaddum (TQ). On May 25,
2005, Major Vazquez indicated in an email to Lieutenant Knapp and Captain Patrick
Sturgill, who served as a “liaison” between the contractor and the military, that land would
be provided to the contractor no later than 30 days after contract award, “to ensure no
delay is imposed by the Government to the Contractor.” Although the answer to question
number 44 regarding the solicitation indicated that “[s]ite prep should be minimal,”
defendant had to provide site preparation at every location except Al Asad.14
14 In the case of Al Asad, plaintiff claims that: “Defendant refused to provide site prep at
Al Asad, Oasis was forced in December 2005 to hire its own subcontractor to prep the
site, which included filling borrow pits dug by the military, at a cost of $224,100,” and
further spent “$158,110 to abate the flooding and repair the damage caused to the site,”
as a result of the work done by another government contractor, Kellogg, Brown & Root,
at an adjacent site.
9
Anaconda, the first bottled water facility, was contractually required to be
operational by September 22, 2005. Major Lopez executed modification P00004 on
September 18, 2005, on behalf of the government, granting a 12-day extension of the
requirement for Anaconda’s certification until October 4, 2005. Although Anaconda began
producing water on October 10, 2005, Anaconda was not audited and certified operational
until December 14, 2005, after producing almost 2 million liters of water.
Camp Victory, the second bottled water facility, was initially required to be
operational by May 24, 2006. The military authorized land for Camp Victory on September
4, 2005. Camp Victory was certified operational on April 7, 2006, and began producing
bottled water on April 12, 2006. Al Asad, the third bottled water facility, was initially
required to be operational by May 24, 2006. The military authorized land for Al Asad on
August 22, 2005. The contractual deadline to complete Al Asad was extended to June
30, 2006, and Al Asad was certified operational on July 24, 2006.
Q-West, the fourth bottled water facility, was initially required to be operational by
May 24, 2006. The military authorized land for Q-West on September 11, 2005, but on
December 19, 2005, the military directed and authorized land at a different location for
the Q-West plant. The contractual deadline to complete Q-West was extended to June
30, 2006, and Q-West was certified operational on July 9, 2006. Plaintiff indicated it
encountered challenges with the water source at Q-West. Alan Morrell15 testified that “we
opened Q-West and started drawing from that irrigation line, we started getting turbid
water, water so turbid that it was filled with mud and sand. And at that time, it was so
significant that we couldn’t purify it.” As a result, “what it did is it . . . immediately fouled
all of our [equipment] -- we didn't have an ultra filtration system there because it didn't call
for one.” Moreover, the “ROWPU [Reverse Osmosis Water Purification Unit] was
immediately filled with mud, and fouled. And each set of those membranes is $26,000.
And they were ruined. And we couldn't keep them clean and operational enough to
operate and make water there as a result.” In order to fix the problem, Alan Morrell
testified that Oasis “purchased a Pall Aria from northern New York and we also took an
additional ROWPU system that we had used at Balad [Anaconda] and recommissioned
it, repiped and replumbed the lines at Q-West and solved the problem.”
Speicher, the fifth bottled water facility, was initially required to be operational by
May 24, 2006. The military authorized land for Speicher on August 13, 2005. The
contractual deadline to complete Speicher was extended twice, finally to June 30, 2006,
and Speicher was certified operational on June 20, 2006, and began producing bottled
water on June 24, 2006. Initially, Oasis believed they would receive water provided by the
government via a ROWPU. Alan Morrell testified, however, that “we opened the factory,
we start producing, and within 48 hours, KBR [Kellogg Brown & Root] came in and just
railed on us for consuming their ROWPU'd water. And they got -- they got their KBR
15 As noted above, Alan Morrell “was an Oasis consultant from late June 2005 through
October 2005. Specifically, he was the Oasis Contract and Compliance Administrator
from October 2005 through March 2007. He was Director of Contracts and Compliance
from March 2007 through November 2008. He was Project Management Director from
November 2008 through December 2009.”
10
COTR or contractor officer's representative for that site involved and they shut down our
water.” As a result, Alan Morrell testified that:
They’re [Oasis’ contracting officer and COSCOM (United States Corps
Support Command)] beating us up for delivering quantities, but they're
refusing to give us the water they're required to provide us. So, we're dealing
with that at Speicher, and we're dealing with a lack of water delivery at Q-
West to a level we can produce there, too, and we're all running for a
completed amount of or quantity of water, but we can't get to it.
As a solution, Oasis purchased from an American company a “BEV 9 reverse osmosis
system, and in the spring of 2007, installed it, commissioned it, and began to draw well
water.”
Camp Taqaddum, or TQ, the sixth bottled water facility, was initially required to be
operational by May 24, 2006. Although the military initially authorized the land for TQ on
August 24, 2005, the military directed Oasis to use land at different locations twice, the
second time in March 2006. The contractual deadline to complete TQ was twice
extended, to June 30, 2006, and then to October 15, 2006. The site preparation for TQ
was completed by July 2, 2006, and on August 11, 2006, Colonel Richardson gave
approval for Oasis to construct the TQ plant. TQ was completed on October 23, 2006.
Although Oasis requested 40.5 days of excusable delay on September 25, 2006, United
States Air Force Lieutenant Colonel Joel R. Fortenberry, who served as the contracting
officer on the contract from October 2006 until early 2007, executed modification P00013
on October 24, 2006 on behalf of the government, granting plaintiff only eight days of
excusable delay for TQ. TQ was certified operational on October 25, 2006.
Relevant Modifications
During contract performance there were a series of relevant modifications to the
contract.16 As noted above, after contract award, modification P00001 reduced the
number of bottled water facilities from eight to six, and on July 15, 2005, Major Lopez
executed modification P00002 on behalf of the government, which changed the dollar
amount from “386,225,000 (estimated)” to “50,225,000 (NTE).” Subsequently, on August
9, 2005, Major Lopez and Max Wyeth executed modification P00003, which added a
“NTE,” or not to exceed limitation, on the quantity of water produced at each plant, and
did not require the government to purchase any minimum number of cases produced by
the contractor. Pursuant to modification P00003, the not to exceed “case quantity was a
total of 14,350,000 cases of water,” and, as modified in modification P00002, the not to
exceed price was $50,225,000.00. As explained above, modification P00004 granted a
twelve day extension of the requirement for the certification of the Anaconda bottled water
plant, and modification P00005 was the novation agreement.
16As the parties have stipulated, 13 relevant modification were issued after the contract
was executed.
11
Modification P00006
Prior to the execution of modification P00006, on March 27, 2006, United States
Air Force Lieutenant Colonel James E. Davis,17 who served as the contracting officer on
the contract from September 2005 until January 2006, sent Oasis a letter titled
“Preliminary Notice of Government Intent to Exercise Option CLINs 1001-5, Contract
W27P4A-05-C-0002 for $112M,” which stated: “The Government must withhold its intent
to exercise the option,” which meant the contract would come to an end. The letter
informed Oasis that “[t]he contracting office does not have assurance of adequate
funding.”18 On April 3, 2006, Paul Jefferies sent Lieutenant Colonel Davis a draft proposal,
which would form the basis of modification P00006, and included a way to include a base
year amount of 14,350,000 cases of bottled water at $3.50 per case for a total of
$50,225,000.00.
Modification P00006, which was executed on April 14, 2006 by Lieutenant Colonel
Davis and Phil Morrell, extended the base year of the contract from May 24, 2006 to
August 15, 2006, and required that the bottled water capability be established at the six
sites by June 30, 2006. Modification P00006 extended the contractual deadline for bottled
water plants to be operational to June 30, 2006. According to modification P00006, the
bottled water plants were to be operational in the following order: (1) Anaconda, (2) Camp
Victory, (3) Speicher, (4) Q-West, (5) TQ, and (6) Al Asad.19 Modification P00006 also
required the production of 14.35 million cases of water during the base period of the
contract, and removed the “not to exceed” requirements established in modification
P00003. Finally, the option years were realigned to match the extension of the base year,
so the first option period would run from August 16, 2006 until January 15, 2007, the
second option period would run from January 16, 2007 until January 15, 2008, and the
third option period would run from January 16, 2008 until January 15, 2009. Modification
P00006 also added a fourth option period that would run from January 16, 2009 until
August 16, 2009. The amount of water in the base period, the first option period, and the
newly added fourth option period were different than the second and third option years.
17In 2005 and 2006, Lieutenant Colonel Davis was a Major. When he testified at trial, he
was a Lieutenant Colonel. The court refers to him as Lieutenant Colonel Davis in this
opinion, unless quoting from a document.
18 Phil Morrell testified that “I told them [the government] that would be a really bad thing
to get a letter like that, because that letter would put us in default with our banker. And
that letter did put us in default with our banker, and it cost us $3 million to pull our -- our
contract out of default.” Phil Morrell also testified that Oasis had “already been told that
by Colonel Hay, that they [the government] didn’t have the funding to continue on this.”
19 At the time modification P00006 was executed, Anaconda and Camp Victory were
already operational.
12
After modification P00006 to the contract, the periods of performance, quantities of water,
and amounts due Oasis were:20
ITEM NO. SCHEDULE OF SUPPLIES/ QTY UNIT UNIT AMOUNT
SERVICES PRICE
0001 Purified bottled water (12 / 1 Liter CASE $3.50
bottles per case)
1001 BASE Period 14,350,000 $50,225,000.00
24 May 2005 to 15 August 2006
2001 OPTION ONE 14,285,715 $50,000,000.00
16 August 2006 to 15 January 2007
3001 OPTION TWO 32,000,000 $112,000,000.00
16 January 2007 to 15 January 2008
4001 OPTION THREE 32,000,000 $112,000,000.00
16 January 2008 to 15 January 2009
5001 OPTION FOUR 17,714,286 $62,000,000.00
16 January 2009 to 16 August 2009
(capitalization in original).
Modification P00011
As noted above, United States Air Force Colonel Richardson served as the contracting
officer on the contract from May 2006 until October 2006. By June 2006, Oasis personnel,
including Paul Morrell, Phil Morrell, Alan Morrell, Paul Jeffries and Dan Petsche had
begun negotiations with Colonel Richardson to further modify the contract. Both parties
had financial challenges, defendant obtaining the funding to exercise the first option, and
plaintiff, which would be in default with its lenders if the contract was terminated for
convenience.21 Internally, Oasis considered the following proposal, as noted in an August
1, 2006 email from Paul Morrell:
I’ve tried a lot of complicated algorithms to try to make a solution that is
equitable to both the Military and US. I’ve concluded that the most equitable
approach for everyone is the following: We gat [sic] paid a flat
$112,000,000/year just as the contract states or $9,333,333/month (5/6 th of
that until TQ comes online). We agree to deliver up to 32,000,000 cases per
year in aggregate with an annual reconciliation if the actual deliveries
exceed that amount.
The parties discussed several options for how to proceed moving forward, and
ultimately, on August 8, 2006, Oasis, at Colonel Richardson’s request, provided her a
20 Colonel Richardson testified that the modifications “changed the end date of option four
from 16 August 2009 to 16 July 2009. So, it actually decreased the period of performance
for the contractor.”
21According to plaintiff’s post-trial brief, “[d]uring the P00011 discussions, Oasis had an
outstanding debt of over $70 million.”
13
draft proposal, which was consistent with the internal Oasis proposal.22 The draft
proposal23 indicated two options:24
22Paul Jefferies testified at trial that “we were still being asked for significant concessions,
beyond what was outlined that I've tried to outline here. . . . I mean to the tune of $30
million of concessions yet beyond what's on this page.” Paul Jefferies also indicated that:
We didn't really make an offer. The negotiations began with Paul [Morrell]
and I sitting in a room with [Colonel] Renee [Richardson], and I believe her
assistant was there, and they told us that they were being pushed a
particular direction, that she would need concessions from us to pay out the
balance of the funds owed or she would have to move in this other direction.
23 Alan Morrell who earlier had testified about the water issues at the various plants
indicated that regarding the lack of water at Speicher, “on modification P00011, because
this was such a hot issue, again, part of the negotiation was a concession that we would
sort this problem out,” and Oasis “bought another BEV 9 reverse osmosis system.” Alan
Morrell also testified that “[p]art of the concessions that were demanded from us in
P00011 were two site improvements to solve water issues. One was Speicher, and the
other was Q-West.”
24The first option contemplated modifying the contract to not build TQ, but the parties
decided to build the TQ plant.
14
On August 12, 2006, Paul Morrell and Colonel Richardson executed modification P00011,
which was generally consistent with the Option II in the draft proposal and established a
payment structure by which Oasis would be paid $9,333,333.33 per month, independent
of any amount of water, moving forward in the option periods. Modification P00011 also
modified the fourth option period, ending on July 16, 2009.
The modification explained:
The purpose of this modification is to do the following:
1. Provide a revised CLIN structure to reflect monthly pricing based upon
water production capability.
2. Replace the Contract Statement of Objectives, with Performance Work
Statement, dated 12 August 2006, provided as Attachment 1 to this
modification.
3. Incorporate the contractor's Quality Assurance Plan into the contract
provided as Attachment 2 to this modification.
4. Incorporate the List of Critical Equipment into the contract, provided as
Attachment 3 to this modification.
5. Insert Special Clause, titled “Equipment Leased by the Government”, into
the Contract.
6. Insert clause DFARS 252.232-7007, “Limitation of Government's
Obligation” (May 2006) into the Contract.
7. Replace Contract Section J, List of Documents, Exhibits and Other
Attachments.
15
8. Decrease the contract amount by $11,604,166.45 from $386,225,000.00
to $374,620,833.55.
9. Decrease the contract funded amount by $5,604,166.35 from
$100,225,000.00 to $94,620,833.65.
10. Change the end date of Option 4 from 16 August 2009 to 16 July 2009.
On August 15, 2006, as part of modification P00011, Oasis submitted a final
invoice to close out the base year in the amount of $24,542,387.00. The total amount of
water produced in the base year was 8,705,992 cases, which translated to
$30,470,972.00 at $3.50 per case. In addition, from the time the contract was awarded to
the end of the base year, Oasis submitted nine invoices for payment at $3.50 per case,
totaling approximately $23 million, which the government paid.25
Modification P00013
After modification P00011 was executed, on September 25, 2006, Oasis requested
40.5 days of excusable delay for completing TQ. After TQ was completed 8 days after the
agreed to October 15, 2006 date in modification P00011, the parties executed
modification P00013 on October 24, 2006, with Lieutenant Colonel Fortenberry signing
on behalf of the government, and Paul Jeffries signing on behalf of Oasis. Modification
P00013 stated:
The purpose of this modification is to administratively establish an
agreement between the Government and Oasis International Waters, Inc.
that eight days of delay, with regards to the establishment of Bottled Water
Production Capability at Taqqadum, Iraq, is excusable. Oasis International
Waters, Inc. shall apply the excusable delay to their invoice submitted for
25 As reflected in the joint stipulations, and as agreed to by the parties regarding invoices
for the base year of the contract: On December 31, 2005, Oasis submitted an invoice to
the Government for 293,160 cases of water from Anaconda at 3.50 per case, for a total
of $1,026,060.00. On January 31, 2006, Oasis submitted an invoice for 356,400 cases of
water from Anaconda at $3.50 per case for a total of $1,247,400.00, and on February 28,
2006, Oasis submitted an invoice for 508,680 cases of water from Anaconda at $3.50 a
case, for a total of $1,780,380.00. On March 31, 2006, Oasis submitted an invoice for
664,320 cases of water from Anaconda at $3.50 per case, for a total of $2,325,120.00.
One month later, on April 30, 2006, Oasis submitted an invoice for 910,020 cases of water
from Anaconda and Camp Victory at $3.50 a case, for a total of $3,185,070.00. On May
31, 2006, Oasis submitted an invoice for 1,126,920 cases of water from Anaconda and
Camp Victory at $3.50 a case, for a total of $3,944,220.00. On June 15, 2006, Oasis
submitted an invoice for 1,381,140 cases of water from Anaconda and Camp Victory at
$3.50 a case, for a total of $4,833,990.00. On July 1, 2006, Oasis submitted an invoice
for 297,540 cases of water from Anaconda and Speicher at $3.50 a case, for a total of
$1,041,390.00. Finally, on July 31, 2006, Oasis submitted an invoice for 1,150,900 cases
of water from Anaconda, Q-West, Speicher, and Camp Victory, for a total of
$4,028,150.00.
16
the period of performance of 01 - 31 October 2006. All other contract terms
and conditions remain unchanged.
The contract ended on July 16, 2009, and Oasis performed on the contract until
that date. Subsequently, Oasis and the government entered into a separate, follow-on
contract regarding bottled water in Iraq.
Certified Claim
Prior to the filing of the certified claim, Phil Morrell sent an email to Paul Morrell
and Paul Jeffries on August 4, 2006, with his thoughts on the contract, as follows:
Capabilities for Time Period not Quantity
 Funding was received for purchase of water, but it [sic] the contract
was a capabilities contract
 Should have 2 Contracts
o Capabilities Contract
o Product Procurement Contract
 Funding was received for Contact# _____
 Contract#____ is a capabilities contract not a procurement contract
 $50 million on the table is for capability not water procurement
The general assumption from everybody is that the price of water in the
CLIN is somehow associated with the price of capabilities.
(emphasis in original). At trial, Phil Morrell explained his view of the contract:
When I studied the contract, including when I talked to -- told Max [Wyeth]
that he could get a progress payment, which I did tell Max, way back in the
early days, probably a week into the -- two weeks into the contract, that he
could get a progress payment. Based on all the historic contracting that I
had done, and the way that I submitted my bid, the anticipation that was
there would be, you know, progress payment capabilities, or -- in the
contract. So, looking at Max’s bid, he had put $58 million in for what
appeared to be the construction capabilities, and then out of the $58 million,
based on -- and I read this somewhere, I think it was in the FAR firm fixed
price area -- it says that you -- if it’s for equipment, then you have to deduct
the salvage value of the equipment, and then you could bill for whatever
that was. So, that -- I didn’t actually sit down and do the numbers because
that’s just not what I do, but I – I suggested that we bill against the $52.25
million or $50.225 million as capabilities.
Paul Morrell stated at trial that he agreed with Phil Morrell about the contract being
a capabilities contract after executing modification P00011. Regarding Colonel
Richardson’s correspondence, he testified
17
she's commenting on the proposal . . . specifically, the 9.33 million per
month for capabilities going forward, and she's saying she thinks that's a
reasonable approach, but this is one of the first times where I hear a contract
officer say the same thing that Phil has been saying for most of the year,
that this is a water production capability contract. And Colonel Richardson
goes on, through the -- post-P00011, and she's very clear that it's a water
production capability contract and it has been all along. They've just been
administering it as if it weren't.
On June 20, 2008, Paul Morrell signed the certified claim, and on July 4, 2008,
Oasis submitted its certified claim to the government. At the beginning of the certified
claim, Paul Morrell, as President of Oasis, stated: “I certify that the claims stated herein
are made in good faith; that the supporting data are accurate and complete to the best of
my knowledge and belief; that the amount requested accurately reflects the Contract
adjustment for which the contractor believes the Government is liable.” Paul Morrell also
submitted a sworn affidavit26 in support of Oasis’ certified claim at the time he submitted
the certified claim, in which he stated:
During the period May 2005 to the present, I was responsible for the day-
to-day management of Contract W27P4A-05-C-0002 (the “Contract”) and
had responsibility for all aspects of Oasis' performance of the Contract I also
had overall responsibility for the cost and accounting issues involving Oasis'
performance of the Contract. This Affidavit is based on my first-hand
knowledge, the collective corporate knowledge of Oasis and the corporate
records of Oasis maintained in the ordinary course of business.
The certified claim identified eight claims for which plaintiff sought payment: Claim
1 was a “Claim for all bottled water supplied in the Contract base year, as extended to
August 15, 2006, excluding bottled water supplied from Camp Anaconda through May,
2006 (5,605,020 cases of bottled water),” for which plaintiff sought $19,617,570.00. Claim
2 was a “Claim for penalty wrongfully assessed for failure to open Camp TQ on time,”
which plaintiff ascribed “solely as a result of Government-caused delays and disruptions,”
for which plaintiff sought $2,270,833.00. The certified claim indicated that Claim 3 was a
“Claim for reduction in Contract consideration for first option period (August 15, 2006
through January 15, 2007) resulting from P00011,” for which plaintiff sought
$3,333,333.00. Claim 4 was a “Claim for water bottling capabilities services provided
through extension of Contract base year,” and plaintiff valued Claim 4 at $11,175,063.00.
Claim 5 sought $808,423.00 as a “Claim for cost of site improvements required,”
specifically at Anaconda, Camp Victory, Al Asad, and TQ. Claim 6 was a “Claim for cost
of water supply improvements at Camp Speicher and Camp Qwest,” for which plaintiff
sought $600,000.00. Claim 7 was a “Claim for other penalties assessed re: Government
26 In addition to Paul Morrell, Neil Vos, the then-Chief Financial Officer of Oasis, Lawrence
Schwartz, a certified public accountant, and Alan Morrell also submitted sworn affidavits
in support of the certified claim.
18
delays of TQ opening,” related to the “44 days of TQ AQL[27] penalties erroneously
assessed to Oasis due to Government-caused delays in establishing TQ in the first Option
Period” and was valued by plaintiff at $2,053,333.00. The plaintiff’s certified claim
reflected a total amount claimed for the first seven claims of “$39,858,555.” Below the
total for the first seven claims, plaintiff’s certified claim indicated: “Alternative additional
claim for water supplied from Camp Anaconda during initial Contract base year ending
May 2006, 3,100,972 cases of bottled water: $10,853,402.” The certified claim indicated
the plaintiff’s view that:
The Contract is not a model of clarity. The amount payable in the Contract
base year is a firm, fixed-price amount of $50,225,000. . . . However, the
Contract, as written, does not require delivery of any bottled water in the
Contract base year. In the Contract base year, Oasis was entitled to a firm,
fixed-fee payment of $50,225,000. The Contract provides that the entire
payment is for water purification and water-bottling capabilities. Under the
Contract, bottled water was a separately priced commodity to be paid for by
the Government at the price of $3.50 per case under a separate CLN.
(internal citations omitted).
The certified claim was passed between, and considered by, a number of
contracting officers and personnel, including United States Navy Lieutenant Commander
Klingenberg, who was the contracting officer when Oasis submitted its certified claim on
July 4, 2008, United States Air Force Major Jamie Rhone, who served as the contracting
officer from July 2008 until January 2009, and Dean Carsello, a Joint Contracting
Command Iraq Afghanistan (JCC-I/A) policy analyst, who was involved in reviewing the
claim in 2008 and 2009. United States Air Force Lieutenant Colonel Kevin Hobbs28 denied
Oasis’ certified claim in its entirety when he issued the Contracting Officer’s Final Decision
on October 18, 2009.
On October 18, 2010, plaintiff filed its complaint in the United States Court of
Federal Claims. Plaintiff’s complaint alleged eight counts, and the complaint mostly tracks
the claims raised in the certified claim, with the same dollar amounts, albeit framed as
breaches of contract in the complaint. The first count, “Breach of Contract, and Breach
of the Duty of Good Faith and Fair Dealing, for Failure to Pay for water TakenFrom
[sic] Sites other than LSA Anaconda” seeks damages in the amount of
$19,617,570.00, plus interest. (emphasis in original). The second count, “Breach of
Contract For Improper Assessment of a Liquidated Damages Penalty Against Oasis
for Failing to Have All Six Facilities Open by the End of the Base Year, or
Alternatively, for Reducing the Base Year Contract Price Without Consideration,”
seeks damages in the amount of $2,270,833.00, plus interest. (emphasis in original). The
third count, “Breach of Contract For Improper Reduction of the Option Period One
27 The parties have stipulated that “AQL” is an acronym for Acceptable Quality Level.
28 In 2009, Lieutenant Colonel Hobbs was a Major. When he testified at trial, he was a
Lieutenant Colonel. The court refers to him as Lieutenant Colonel Hobbs in this opinion.
19
Price Without Consideration” seeks damages in the amount of $3,333,333.00, plus
interest. (emphasis in original). The fourth count of the complaint, “Breach of Contract
Resulting from Government Acts and Omissions Impacting and Damaging Oasis
During the Base Year, as Extended” seeks damages in the amount of $11,175,063.00,
plus interest. (emphasis in original). The fifth count, “Breach of Contract Resulting
From Government Failure to Provide Suitable Construction Sites,” seeks damages
in the amount of $808,423.00, plus interest. (emphasis in original). Oasis’ sixth count,
“Breach of Contract and/or Constructive Change for Failure to Provide Suitable
Water at the Purification Facilities as Required by the Contract” seeks $600,000.00,
plus interest. (emphasis in original). The seventh count of the complaint, “Breach of
Contract For Unjustified Imposition of Penalties for Late Opening of TQ and/or
Wrongful Reduction in Contract Price,” seeks $2,053,333.20 plus interest. (emphasis
in original). Finally, the eighth count of the complaint, “Breach of Contract, and Breach
of the Duty of Good Faith and Fair Dealing, for Failure to Pay for Water TakenFrom
[sic] Site LSA Anaconda,” seeks damages in the amount of $10,853,402.00, plus
interest. (emphasis in original).
Defendant filed an answer to Oasis’ complaint on February 15, 2011, and, more
than a year later, on April 12, 2012, filed a motion to amend the pleadings to include fraud
counterclaims. Oasis responded to the amended answer and counterclaims on May 10,
2012, however, on June 6, 2014, defendant moved to, again, amend its pleadings and
filed a second amended answer and counterclaim. In the interim, during highly contested,
and at times uncooperative, discovery the parties filed numerous motions related to
discovery, the production of documents, how documents were maintained, how
documents were to be produced, and in what format, and who would bear the costs,
spoliation, whether or not various privileges applied to various documents, as well as
motions to compel, motions to strike, and motions to quash. The court held numerous
status conferences and hearings to try and resolve the various disputes between the
parties, issued numerous orders, including publishing one substantive, lengthy opinion
on attorney-client privilege and work product prior to trial. See Oasis Int’l Waters, Inc. v.
United States, 110 Fed. Cl. 87 (2013).
The parties also filed motions for summary judgment and motions in limine in
advance of the trial, and after trial, filed a series of lengthy post-trial briefing materials.
The effect of the discovery disputes, and difficult relationships, resulted in discovery
deadlines being repeatedly pushed back, and trial dates repeatedly postponed.
Ultimately, a six week trial was held. Initially, the court issued an opinion regarding the
fraud counterclaims raised by defendant. The court determined that, Paul Morrell, as
signatory to the certified claim, did not have the intent to commit fraud and genuinely
believed in his interpretation of the contract regarding what payments Oasis was entitled
to recover under the contract. The court also found that neither Paul Morrell, nor plaintiff,
acted recklessly when submitting plaintiff’s claims and the court denied defendant’s
counterclaims for the Special Plea in Fraud, False Claims Act, and the anti-fraud provision
of the Contract Disputes Act.
20
Subsequently, the court issued an opinion regarding contract interpretation and
duress, concluding that the government’s obligation under the contract solely was to pay
for water produced and delivered and does not demonstrate that the intent of the base
year of the contract was to compensate Oasis $50,225,000.00 for demonstrating the
capability to produce bottled water, and then, to additionally compensate the contractor
for producing the requested bottles of water. Additionally, the court determined that both
modification P00006 and modification P00011 were valid because plaintiff did not
demonstrate that it executed either modification under economic duress. At a status
conference after the court issued the contract interpretation opinion, plaintiff indicated that
the two remaining counts to be resolved are Count 5 and Count 7.29 This opinion
addresses the two remaining counts.
DISCUSSION
Count 5
The fifth count of plaintiff’s complaint, “Breach of Contract Resulting From
Government Failure to Provide Suitable Construction Sites,” seeks damages in the
amount of $808,423.00, plus interest.30 (emphasis in original). Count 5 sought damages
for site improvements at TQ as well as at Anaconda, Camp Victory, and Al Asad. In
plaintiff’s certified claim, Oasis argued to the contracting officer that “[t]he only reasonable
interpretation of the Government's promise to deliver ‘level’ land requiring ‘minimal’ site
preparation is that the Government agreed to deliver flat, graded land reasonably
prepared for installation of production bottled-water facilities. Thus, the Government
assumed all risks of site conditions being as warranted by the Government.” In the
contracting officer’s final decision, the contracting officer concluded:
T]he USG [United States Government] clearly stated that it would provide
as level a ground as possible to simplify structural evenness issues. In no
way did the USG promise to provide exactly level land, the USG later stated
in the same question and answer session that it was Oasis' responsibility
for all site improvements. This claim element is denied.
29 As indicated in the parties’ April 28, 2017 joint status report: “Oasis submits that two of
the counts of Oasis’ Claim remain unresolved by the previous decisions: Count 5 and
Count 7.” Defendant contended in the joint status report that “[t]he Court should enter
judgment in favor of the Government on all of Oasis’s claims,” and reiterates in its
September 14, 2017 submission, “[t]he Court’s contract interpretation decision defeats all
of Oasis’s claims.”
30 The count notes that in plaintiff’s May 30, 2017 submission to the court, plaintiff refers
to the amount for Count 5 as $808,473.00. For example, in the conclusion, plaintiff states:
“Oasis respectfully requests the Court award it damages in the amount of $808,473 for
differing site conditions pursuant to Count 5.”
21
The court concluded in its contract interpretation opinion that the language of the
contract and the questions and answers incorporated into the contract “demonstrate the
correctness of the defendant’s position that the government’s obligation under the
contract was solely to pay for water produced and delivered.” Therefore, defendant
argues: “Given that the Court has decided the Government’s only contractual payment
obligation [was to pay $3.50 per case for the production and delivery of water], Oasis’s
request that the Court rule that the contract also required the Government to pay for
Oasis’s site improvements is barred by the law-of-the-case doctrine. Accordingly, the
Court should deny Oasis’s claim for site improvement costs.” (citation omitted).
The United States Supreme Court has stated that “the doctrine [of law of the case]
posits that when a court decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same case.” Arizona v. California,
460 U.S. 605, 618 (citation and footnote omitted), reh’g denied, 462 U.S. 1146 (1983),
supplemented by 466 U.S. 144 (1984); see also Agostini v. Felton, 521 U.S. 203, 236
(1997). Law of the case is a judicially created doctrine, under which “a court will generally
refuse to reopen or reconsider what has already been decided at an earlier stage of the
litigation.” Suel v. Sec’y, Health & Human Servs., 192 F.3d 981, 985 (Fed. Cir. 1999)
(citation omitted), reh’g denied (2000). Nevertheless, “law of the case doctrine is limited
to issues that were actually decided, either explicitly or by necessary implication, in the
earlier litigation.” Toro Co. v. White Consol. Indus., Inc., 383 F.3d 1326, 1335 (Fed. Cir.
2004) (citation omitted), reh’g en banc denied (2004), cert. denied, 544 U.S. 948 (2005);
see also Kori Corp. v. Wilco Marsh Buggies & Draglines, Inc., 761 F.2d 649, 657 (Fed.
Cir.), cert. denied, 474 U.S. 902 (1985). Law of the case doctrine applies to a court’s own
decisions as well as decisions of other courts in the same case. See Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800, 816 (1988); see also Gindes v. United States, 740
F.2d 947, 950 (Fed. Cir.) (“law of the case [i]s a rule that ‘A decision by the court on a
point in a case becomes the law of the case unless or until it is reversed or modified by a
higher court.’” (quoting Raylaine Worsteds, Inc. v. United States, 137 Ct. Cl. 54, 146 F.
Supp. 723, 726 (1956))), cert. denied, 469 U.S. 1074 (1984); McGuire v. United States,
97 Fed. Cl. 425, 433 (2011). Law of the case is a doctrine that exists to promote judicial
economy and fairness. See, e.g., Mendenhall v. Barber-Greene Co., 26 F.3d 1573, 1582
(Fed. Cir.) (noting that law of the case doctrine rests on the need for judicially economy),
cert. denied, 513 U.S. 1018, and cert. denied sub nom. D.G. v. T.M.N., 513 U.S. 1018
(1994); Suel v. Sec’y, Health & Human Servs., 192 F.3d at 984 (noting that law of the
case aims to “protect the settled expectations of the parties and promote orderly
development of the case.”) (citations omitted).
The United States Court of Appeals for the Federal Circuit has further explained
the fairness theory behind the law of the case doctrine, stating: “Its elementary logic is
matched by elementary fairness-a litigant given one good bite at the apple should not
have a second.” Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 900 (Fed.
Cir.) cert. denied, 469 U.S. 857 (1984); see also Athey v. United States, 123 Fed. Cl. 42,
49 (2015). In other words, “‘no litigant deserves an opportunity to go over the same
ground twice, hoping that the passage of time or changes in the composition of the court
will provide a more favorable result the second time.’” Gindes v. United States, 740 F.2d
22
at 949 (quoting United States v. Turtle Mountain Band of Chippewa Indians, 222 Ct. Cl.
1, 612 F.2d 517, 520 (1979)). Furthermore, “a reassignment to another judge should not
be viewed as declaring open season on relitigating any prior rulings with which a party
disagrees.” Applegate v. United States, 52 Fed. Cl. 751, 765 (2002), appeal dismissed,
57 F. App’x 426 (Fed. Cir.), aff’d, 70 F. App’x 582 (Fed. Cir. 2003), cert. denied, 540 U.S.
1149 (2004) (citation omitted).
Law of the case is a discretionary doctrine that, “[i]n the absence of statute the
phrase, ‘law of the case,’ as applied to the effect of previous orders on the later action of
the court rendering them in the same case, merely expresses the practice of courts
generally to refuse to reopen what has been decided, not a limit to their power.”
Messinger v. Anderson, 225 U.S. 436, 444 (1912) (citations omitted). Although courts
have the power to revisit their own prior decisions, the United States Supreme Court has
cautioned that “as a rule courts should be loathe to do so in the absence of extraordinary
circumstances such as where the initial decision was ‘clearly erroneous and would work
a manifest injustice.’” Christianson v. Colt Indus. Operating Corp., 486 U.S. at 816
(quoting Arizona v. California, 460 U.S. at 618 n.8). More specifically, the United States
Court of Appeals for the Federal Circuit has identified only three exceptional
circumstances that justify a departure from the law of the case doctrine. The
circumstances are essentially the same as those that justify granting a motion for
reconsideration:
Reasons that may warrant departure from the law of the case, thus
providing an exception to the more rigorous requirements of res judicata,
include the discovery of new and different material evidence that was not
presented in the prior action, or an intervening change of controlling legal
authority, or when the prior decision is clearly incorrect and its preservation
would work a manifest injustice.
Intergraph Corp. v. Intel Corp., 253 F.3d 695, 698 (Fed. Cir. 2001) (citation omitted); see
also Gould, Inc. v. United States, 67 F.3d 925, 930 (Fed. Cir. 1995) (citing Gindes v.
United States, 740 F.2d at 950); Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d
at 900 (citing Central Soya Co. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1580 (Fed. Cir.
1983)). The standard to determine whether a court’s previous decision was clearly
erroneous and constitutes a manifest injustice “‘is a stringent one. . . . A mere suspicion
of error, no matter how well supported, does not warrant reopening an already decided
point.’” Gindes v. United States, 740 F.2d at 950 (quoting N. Helex Co. v. United States,
225 Ct. Cl. 194, 634 F.2d 557, 561-62 (1980) (citation omitted)). The United States Court
of Appeals for the Federal Circuit has noted that a “‘strong showing of clear error . . . is
required before a court should reexamine its decision in the prior appeal.’” Gindes v.
United States, 740 F.2d at 950 (quoting United States v. Turtle Mountain Band of
Chippewa Indians, 222 Ct. Cl. at 8, 612 F.2d at 521).
Oasis does not attempt to argue that the court’s conclusion that “the government’s
obligation under the contract was solely to pay for water produced and delivered” is not
law of the case, nor does plaintiff claim that the court’s conclusion was manifest injustice.
23
Absent any argument from the plaintiff, the court agrees with defendant that the sole
government obligation under the contract, as executed, was the payment for water
delivered. Therefore, Oasis’ site improvement claim is barred by the law of the case.
Instead of addressing the law of the case for the government’s obligation under
the contract as a result of the court’s contract interpretation and duress opinion, the
plaintiff initially argues that Oasis’ claim for site improvements was not resolved by
modification P00011. Defendant responds that: “P00011 precludes Oasis’ site
preparation claim because the parties agreed upon a final price ($47 million) for the first
year of the contract, and Oasis did not reserve site preparation claims from the final
contract price.” In the court’s opinion regarding contract interpretation and duress, the
court determined that modification P00011 was valid, as plaintiff did not demonstrate that
it executed modification P00011 under duress. The court also noted in the same opinion
that “[o]n August 15, 2006, as part of modification P00011, Oasis submitted a final invoice
to close out the base year in the amount of $24,542,387.00.”
Plaintiff argues that “[a]bsent waiver or release language in P00011, Count 5 must
survive,” (footnote omitted), and argues that
[t]he fact that Defendant requested that Oasis sign a waiver related to
P00011 and that Oasis refused to do so shows that the parties knew that
P00011 did not resolve all outstanding issues – otherwise Defendant would
not have needed to request such a waiver and Oasis would have no reason
not to sign such a waiver.
The court does not follow plaintiff’s logic. As plaintiff’s counsel of record indicated
regarding releases to the court during a discussion with the court at the close of the
plaintiff’s case in chief, “[t]he ones [the modifications] that the Government considers to
be specifically important to include them do. It happened on this particular contract. So,
there is a course of dealing on this contract.” Plaintiff’s counsel of record also indicated
that “[t]here's testimony that there were requests with regard to the remainder of the
modifications for the inclusion of that particular language, which was denied by the Oasis
people, who did not do it.” If the government’s requests for releases happened as a matter
of course during contract performance in the above captioned case, the fact that the
government requested a release for modification P00011 does not demonstrate that the
government believed all outstanding issues were not resolved.
Defendant also points to the language of Fraass Surgical Manufacturing Co. v.
United States, which states that “a supplemental agreement entered into between a
contractor and the government operates as a bar to all claims not specifically reserved,”
and points to site conditions not being reserved as a part of the subsequent agreement
in the form of modification P00011. See Fraass Surgical Mfg. Co. v. United States, 202
Ct. Cl. 585, 594, 505 F.2d 707, 712 (1974). Plaintiff, citing to Board of Contract Appeals
decisions, albeit not decisions regarding site conditions, argues that subsequent claims
may be allowed when the parties “had not discussed such costs in negotiations leading
up to the modification.” (citing Chantilly Constr. Corp., ASBCA, 81-1 BCA ¶ 14,863 (Feb.
24
24, 1992) and Crawford Tech. Servs., Inc., ASBCA, 93-3 BCA ¶ 26,136 (May 28, 1993)).
As noted above, the plaintiff, as part of modification P00011, agreed to submit an invoice
to close out the base year, which was ultimately $24,542,387.00. The final invoice, in
order to close out the base year, would necessarily have included all amounts owed in
the base year. The absence of a specific mention of the site conditions in modification
P00011 does not prove that the parties intended the issue to survive after the execution
of modification P00011.31
Defendant further states that “the vast majority of Oasis’s $808,473 in alleged site
preparation costs were incurred in the contract’s first year.” In fact, plaintiff’s submission
regarding Count 5 states that “Oasis incurred $115,920.00 in site improvement costs
related to the laydown yard at TQ in October 2006, several months after P00011 was
signed.” Holding aside the impact of law of the case and the impact of modification
P00011, regarding any site preparation costs that may have been incurred after
modification P00011, defendant argues that “the contract does not require the
Government to pay for Oasis’s site preparation costs.” Defendant further contends that
“Oasis cannot point to a single provision to support its position that these costs were the
Government’s responsibility.” As noted above, Major Vazquez awarded contract no.
W27P4A-05-C-0002 to American AquaSource on May 25, 2005. Item no. 0001 of the
contract was “NON-PERSONAL SERVICS [sic]” (capitalization in original), which
indicated:
The Contractor shall provide all labor, tools, supervision, personnel,
equipment, transportation, materials, facilities, and other essentials
necessary to perform and sustain 8 separate and independent purified
bottle water plants according to the 20 Mar 05 Statement of Objectives
(SOO). Period of Performance: 25 May 05 through 24 May 06.
Following item no. 0001 were three items for the three option years, item no. 1001, item
no. 2001, and item no. 3001, changing only the period of performance. 32 Defendant,
therefore, contends that “[t]he contract never states, as Oasis suggests, that the
Government was required to provide land that required no site preparation, nor does it
obligate the Government to pay for Oasis’s site preparation costs. Rather, the
Government was only required to provide ‘production facility real estate within a secure
military base’ in conditions that would be ‘austere and totally unimproved.’”
31Plaintiff also points to the language of modification P00011 itself and the Memorandum
for Record for modification P00011, neither of which discussed site conditions as
evidence that the site conditions were not part of the modification.
32 As noted above, the similarity of the three options years after the base year is reflected
in the typographic error of “NON-PERSONAL SERVICS” in each of the three option years.
(capitalization in original).
25
The contract at section 4.3 states:
Contractor shall provide living quarters, inside the base compound, to all of
their employees employed in the operation, maintenance, and repair of the
mechanical equipment required to accomplish the Government's objectives.
NOTE: Even though these locations are on military installations, the
offeror's must take into account this is a desert with high temperatures
during the day, low temperatures at night, wind and sand blowing, low
sanitization, limited resources, to include supplies and materials, with
austere and totally unimproved conditions in and around the military
installations where these plants will be residing. Also it is a combat zone.
(emphasis in original). Plaintiff argues that “[d]efendant’s basis for disputing Oasis’
claimed entitlement that the Contract says that the environment will be ‘austere and totally
unimproved,’ is based on a patent mischaracterization of the text of the Contract.” Plaintiff
further argues that “[t]he reference to ‘austere and totally unimproved’ conditions is within
the context of the living quarters of the contractor’s employees. It has nothing to do with
the condition of the land on which the plant would be built.” The court notes, however,
that modification P00001, in addition to having the same section 4.3 clause, also has a
clause for “Place of Performance,” at section 7.3.1, which states in full:
The Contractor shall perform services required in the SOO at six (6)
separate locations, fully independent of each other throughout the Iraqi AO.
NOTE: Specific locations will be identified to the award winner.
NOTE: Even though these locations are on military installations, the
offeror's must take into account this is a desert with high temperatures
during the day, low temperatures at night, wind and sand blowing, low
sanitization, limited resources, to include supplies and materials, with
austere and totally unimproved conditions in and around the military
installations where these plants will be residing. Also it is a combat zone.
(emphasis in original). This section refers to the six bottled water facilities to be built, but
uses identical language to the section 4.3 clause. It appears to the court that the
government intended that all of the land provided to Oasis would be “austere and totally
unimproved conditions.” The court disagrees with plaintiff’s claim that defendant’s
reference to the austere and totally unimproved conditions is a “patent
mischaracterization.” The more correct reading appears to be that the government
intended that the land provided to plaintiff would be “austere and totally unimproved.”
Plaintiff also argues that “[p]otential offerors, because they were not allowed to visit
the sites prior to award, submitted several questions regarding the condition of the sites.
Defendant’s answers to the questions, which were incorporated into the Contract, clarified
that the land would be essentially build-ready.” As noted above, a number of question
and answers addressed site conditions. Question 44 asked the government: “If it is
necessary to lay concrete pads, on which to position hardware, bury pipes etc, will that
work fall to the contractor (under supervision of the client), or is this an action delivered
26
by the client?” The government responded that: “Contractor Responsible. The
Government will provide as flat land as possible to simplify any structural evenness
issues.” Question 89 asked the government: “Will some land-surveying, geodesy[33] data
be available from Government/Army engineers to reduce risk of sending geodesy
engineers with site-surveying teams? The government responded that: “Site prep should
be minimal.[34] The water source has been identified and deemed to have sufficient
amounts by the government to support the operation. It is up to you what you do in order
to meet the Government's requirements and timeframe for delivery.” Oasis argues that
these answers were the government “guaranteeing land that was as ‘flat’ as possible and
which would require ‘minimal’ site prep,” but neither answer comes close to a “guarantee”
by the government, that would create a contractual obligation on the government’s part.
In addition, as noted by defendant, another question and answer, question 48
noted that the Army had indicated that the “[p]roduction facility Real Estate within a secure
military base shall be provided to the contractor," and asked: “What is it?” to which the
government responded: “Just Land, you must provide us how much land you will need.”
Finally, in response to question 40: “Start up Cost: Since the bid is predicated upon the
deliverables per litre bottle of water, can we assume that all costs(inc personnel and
equipment deployment to site) incurred between contract award and water production will
fall upon the successful bidder?” the government indicated: “Yes. It is up to you how you
determine the cost per litre taking into account all costs associated with this endeavor.”
The court believes that these answers, rather than supporting plaintiff’s view, are
consistent with the government’s view that the site preparation costs were to be borne by
Oasis, and, therefore, were not the government’s responsibility, as the contract placed
33 The National Ocean Service, an office within the National Oceanic and Atmospheric
Administration, and therefore, part of the United States Department of Commerce, defines
geodesy as “the science of accurately measuring and understanding three fundamental
properties of the Earth: its geometric shape, its orientation in space, and its gravity field—
as well as the changes of these properties with time.”
http://oceanservice.noaa.gov/facts/geodesy.html
34The government also argues that “Oasis is not just seeking costs above ‘minimal’ site
preparation; Oasis is seeking all of its site preparation costs,” (emphasis in original), and
Oasis cites no evidence showing that its site preparation costs were more
than minimal and the trial evidence shows the opposite: Oasis’s $808,473
in site preparation costs were (a) less than two percent of the costs of the
$60 million costs of the project; (b) less than one percent of the $100 million
in profit that Oasis made on the bottled-water contract; (c) and less than
one quarter of one percent of the $381 million that the Government paid
Oasis under the bottled-water contract.
(internal citations omitted). As the court concludes Oasis is not entitled to site preparation
costs, the court does not have resolve the semantical differences between the parties for
what minimal means.
27
the cost of establishing bottled water plants and producing the bottled water on the
contractor.
Nor do the plaintiff’s statements that the government made some site improvement
of the bottled water sites change the court’s conclusion. Plaintiff contends that Alan
Morrell’s affidavit and testimony, discussed further below, demonstrates that the Army
“repeatedly admitted responsibility for making the land build-ready,” and that “[d]efendant
never denied responsibility for site improvements or attempted to charge Oasis for these
costs or otherwise seek reimbursement.” Defendant correctly points out that even if
government performed some site preparation work, that did not obligate the government
to perform all the site preparation work, nor did it create a contractual obligation to do
so.35
The defendant also notes that “[a]lthough Oasis repeatedly characterizes its site
improvement claim as one for ‘differing site conditions,’ the Federal Acquisition
Regulation (FAR) differing site condition clause, FAR § 52.236–2, was not included in the
contract.” Review of the contract supports defendant’s contention that the differing site
conditions clause is not present in plaintiff’s contract. Moreover, although the plaintiff
characterizes its claims as one of differing site conditions, including its conclusion in its
Count 5 submission, “[f]or the above reasons, Oasis respectfully requests the Court
award it damages in the amount of $808,473 for differing site conditions pursuant to Count
5,” the plaintiff, however, also states that “[t]he $808,473 in site improvements identified
by Oasis was necessary to make the land compliant with the contractual requirement of
build-ready land, and are properly recoverable under the Contract’s changes clause.”
(citing FAR § 52.243-1).
The contract did include a changes clause, which stated in full:
52.243-1 Changes-Fixed-Price. (Aug 1987)
(a) The Contracting Officer may at any time, by written order, and without
notice to the sureties, if any, make changes within the general scope of this
contract in any one or more of the following:
(1) Drawings, designs, or specifications when the supplies to be furnished
are to be specially manufactured for the Government in accordance with the
drawings, designs, or specifications.
(2) Method of shipment or packing.
(3) Place of delivery.
35 The defendant notes that, regarding the two cases plaintiff cites to prove that if
defendant made the site improvements at no additional cost it would have been illegal,
Vulcanite Portland Cement Co. v. United States, 74 Ct. Cl. 692, 705 (1931) and Aviation
Contractor Employees, Inc. v. United States, 945 F.2d 1568, 1573 (Fed. Cir. 1991) both
cases explain that “the necessary contractual element of consideration is missing when
the Government agrees to perform work outside of its contractual requirements. As a
result, any Government assistance to Oasis for site preparation work did not create a
contractual obligation for the Government to perform all of Oasis’s site preparation work.”
28
(b) If any such change causes an increase or decrease in the cost of, or the
time required for, performance of any part of the work under this contract,
whether or not changed by the order, the Contracting Officer shall make an
equitable adjustment in the contract price, the delivery schedule, or both,
and shall modify the contract.
(c) The Contractor must assert its right to an adjustment under this clause
within 30 days from the date of receipt of the written order. However, if the
Contracting Officer decides that the facts justify it, the Contracting Officer
may receive and act upon a proposal submitted before final payment of the
contract.
(d) If the Contractor's proposal includes the cost of property made obsolete
or excess by the change, the Contracting Officer shall have the right to
prescribe the manner of the disposition of the property.
(e) Failure to agree to any adjustment shall be a dispute under the Disputes
clause. However, nothing in this clause shall excuse the Contractor from
proceeding with the contract as changed.
The record does not reflect, nor was there evidence introduced at trial, that there was a
written order regarding the differing site conditions or a response from Oasis within 30
days. The government also argues, “Oasis has failed to comply with the contractual
provision on which it relies,” and that “[t]here was also no reason for the Government to
authorize changes because site preparation costs were already Oasis’s contractual
responsibility.” The court does not see how plaintiff could recover for differing site
conditions by relying on the changes clause at FAR § 52.243-1.
Plaintiff also argues that “Oasis has proven quantum,” perhaps as an
acknowledgment that there is no contract provision for differing site condition clause.
“Quantum meruit is ‘[a] claim or right of action for the reasonable value of services
rendered.’” United Pac. Ins. Co. v. United States, 464 F.3d 1325, 1329 (Fed. Cir. 2006)
(quoting Black’s Law Dictionary 1276 (8th ed. 2004)). The United States Court of Appeals
for the Federal Circuit distinguishes two types of quantum meruit claims: implied-in-law
and implied-in-fact. See Int’l Data Prods. Corp. v. United States, 492 F.3d 1317, 1325
(Fed. Cir. 2007). An implied-in-law contract is
a contract in which there is no actual agreement between the parties, but
the law imposes a duty in order to prevent injustice. The Court of Federal
Claims, however, lacks jurisdiction over contracts implied in law. 28 U.S.C.
§ 1491(a)(1) (2000). On the other hand, “[w]here a benefit has been
conferred by the contractor on the government in the form of goods or
services, which it accepted, a contractor may recover at least on a quantum
valebant or quantum meruit basis for the value of the conforming goods or
services received by the government prior to the rescission of the contract
for invalidity. The contractor is not compensated under the contract but
rather under an implied-in-fact contract.” United Pac. Ins. Co. v. United
States, 464 F.3d at 1329-30.
29
Int’l Data Prods. Corp. v. United States, 492 F.3d at 1325-26; see also Perri v. United
States, 340 F.3d 1337, 1343 (Fed. Cir. 2003) (“Recovery in quantum meruit, however, is
based upon a contract implied in law.” (citing Fincke v. United States, 230 Ct. Cl. 233,
246, 675 F.2d 289, 296 (1982)); Sanders v. United States, 252 F.3d 1329, 1334 (Fed.
Cir. 2001); Steinberg v. United States, 90 Fed. Cl. 435, 443 (2009). Thus, the Court of
Federal Claims does not have jurisdiction over implied-in-law contract claims, but does
have jurisdiction over express and implied-in-fact contracts.
An implied-in-fact contract cannot exist, however, when there is an express, written
contract. See Hercules Inc. v. United States, 516 U.S. 417, 423-24 (1996) (stating that
the Tucker Act only extends to express or implied-in-fact contracts, based on a meeting
of the minds, and not implied-in-law contracts, and that implied-in-fact contracts are
agreements “not embodied in an express contract”); Trauma Serv. Grp. v. United States,
104 F.3d 1321, 1326 (Fed. Cir. 1997) (“Further, an implied-in-fact contract cannot exist if
an express contract already covers the same subject matter.”) (citing Atlas Corp. v. United
States, 895 F.2d 745, 754-55 (Fed. Cir.), cert. denied, 498 U.S. 811 (1990) and
Reforestacion de Sarapiqui v. United States, 26 Cl. Ct. 177, 190, aff’d, 985 F.2d 583 (Fed.
Cir. 1992))).
In Enron Federal Solutions, Inc. v. United States, 80 Fed. Cl. 382 (2008), the
United States Court of Federal Claims addressed the court’s jurisdiction over equitable
claims, id. at 409 (citing Trauma Serv. Grp., Ltd. v. United States, 33 Fed. Cl. 426, 432
(1995), aff’d, 104 F.3d 1321 (Fed. Cir. 1997) and Perri v. United States, 340 F.3d at 1343-
44), and noted the narrow circumstances under which the Court of Appeals for the Federal
Circuit have permitted quantum meruit recovery, namely when a plaintiff “provides
services or goods to the government pursuant to an attempted express contract, but . . .
the government simply refuses to pay.” Enron Fed. Solutions, Inc. v. United States, 80
Fed. Cl. at 409 (citing Perri v. United States, 340 F.3d at 1343-44) (emphasis in original);
footnote omitted). In the above captioned case, however, there is only an express
contract, and at no point does plaintiff allege that an implied-in-fact contract exists. More
specifically, plaintiff’s complaint at Count 5 is identified as a breach of contract claim, and
never indicates that an implied-in-fact contract could result from the bottled water sites
provided by the government. Moreover, as noted above, an implied-in-fact contract
cannot be found when an express contract between the two parties on the same subject
matter already exists. See Enron Fed. Solutions, Inc. v. United States, 80 Fed. Cl. at 410
(citing Trauma Serv. Grp. v. United States, 104 F.3d at 1326 and Atlas Corp. v. United
States, 895 F.2d at 754-55). Even if plaintiff’s Count 5 survived, there does not appear
to a basis for recovery in quantum.
Finally, although the court does not reach the issue, the court shares the
defendant’s concerns about whether that the affidavit submitted by Alan Morrell is
“unreliable and contradicted by the trial evidence.” As plaintiff states in its Count 5
submission, “Oasis submitted the sworn affidavit of Alan Morrell. The affidavit describes
in detail the basis for the $808,473 in costs incurred by Oasis to correct the deficient
sites.” (internal citation omitted).
30
As an example of the affidavit’s potential unreliability is the section on site
preparations for Anaconda. Alan Morrell’s affidavit states:
With normal rainfall it became clear that the Camp Anaconda site required
substantial grading, earth compaction, and gravel fill for ongoing site access
and for flood abatement. Oasis spent another $88,610 between September
12 and November 19, 2005, for those improvements. The additional site
work performed by Oasis was necessary to make the Camp Anaconda site
usable for a purified water-bottling facility. Without these improvements, it
would have been impossible to open a production facility at Camp
Anaconda. The additional amount expended for the minimal site
preparation at Camp Anaconda, excluding accrued interest, was $98,760.
He testified to the same at trial, as indicated in this exchange with plaintiff’s counsel about
the site conditions for Anaconda:
[A.] [T]he total amount was $98,760.
Q. And in your affidavit, you mention 52 days of delay based on your
research. That, again, included all aspects of giving you the site as well as
the time to prep, correct?
A. Correct.
Q. And did it include any others that you can recall, any other aspects or
delaying events?
A. No, it would have been related to -- primarily it would have been related
to site improvements.
An Oasis memorandum, dated February 19, 2008, regarding “Anaconda Land Issuance
and Site Prep,” however, stated that: “Minimal site prep required. Only required minor
grading,” and contented: “Land prep was completed and ready for building 16JUL05
(Newell 18JUL05 field report). Actual mobilization and construction began within days.”
(emphasis in original). Given that plaintiff’s support for its site preparation costs is solely
derived from Alan Morrell’s testimony and his affidavit and backup material, it is not clear
to the court that Oasis would be awarded site preparation cost damages.
Count 7
The seventh count of plaintiff’s complaint, “Breach of Contract For Unjustified
Imposition of Penalties for Late Opening of TQ [Camp Taqaddum] and/or Wrongful
Reduction in Contract Price,” seeks $2,053,333.20, plus interest. (emphasis in original).
Plaintiff’s certified claim explained that Claim 7 was a “Claim for other penalties assessed
re: Government delays of TQ opening,” which plaintiff characterizes as related to the “44
days of TQ AQL [Acceptable Quality Level] penalties erroneously assessed to Oasis due
to Government-caused delays in establishing TQ in the first Option Period” and was
31
valued by plaintiff at $2,053,333.00.” In the September 14, 2017 submission to the court
addressing Count 7, plaintiff states that “Count 7 has not been resolved by either P00011
or P00013.” By contrast, defendant argues that “Count 7 is premised upon the invalidation
of P00011, a valid modification,” and that “bilateral modification P00013 is an accord and
satisfaction that defeats Count 7 as a matter of law.”
As reflected above, Camp Taqaddum, or TQ, the sixth bottled water facility, was
initially required to be operational by May 24, 2006. Although the military initially
authorized the land for TQ on August 24, 2005, the military directed Oasis to use land at
different locations twice, the second time in March 2006. The contractual deadline to
complete TQ was twice extended, first, by modification P00006 to June 30, 2006, and
then, by modification P00011 to October 15, 2006. The site preparation for TQ was
completed by July 2, 2006, and on August 11, 2006, Colonel Richardson gave approval
for Oasis to construct the plant at TQ. Modification P00011, although it was signed on
August 12, 2006, provided that, beginning September 1, 2006, for each day that TQ was
not meeting Acceptable Quality Level requirements for the bottled water, Oasis would
have to pay a $46,666.66 penalty.36 TQ was completed on October 23, 2006, eight days
after it was required to be operational and fifty two days after the AQL deductions began
on September 1, 2006. TQ was certified operational on October 25, 2006.
Oasis requested 40.5 days of excusable delay on September 25, 2006, Lieutenant
Colonel Fortenberry executed modification P00013 on behalf of the government, granting
plaintiff only eight days of excusable delay for TQ. Modification P00013 also stated:
The purpose of this modification is to administratively establish an
agreement between the Government and Oasis International Waters, Inc.
that eight days of delay, with regards to the establishment of Bottled Water
Production Capability at Taqqadum, Iraq, is excusable. Oasis International
Waters, Inc. shall apply the excusable delay to their invoice submitted for
the period of performance of 01 - 31 October 2006. All other contract terms
and conditions remain unchanged.
As a result of the penalties, Oasis reduced its invoices by $2,053,000.00. In plaintiff’s
certified claim, Oasis argued to the contracting officer that
P00011, was signed on August 12, 2006, three days before the end of the
Contract base year, P00011 retroactively reduced the base Contract year
payment from $50,225,000 to $47,954,167, a $2,270,833 "penalty" that the
Government demanded because Oasis had not opened the water-bottling
facility at TQ on time. . . . P00011 also imposed "penalties" for the delayed
36 The language of modification P00011 provided for each bottled water facility that the
“Monthly Deduction for performance below AQL” was “.5% of the total monthly price for
each day the AQL is not met or surpassed.” As explained above, the payment structure
of the contract after modification P00011 was that Oasis would be paid $9,333,333.33
per month, independent of any amount of water, moving forward. TQ was only the bottled
water facility also to contain the phrase “Effective beginning 1 Sep 06 for this facility.”
32
opening of TQ, if it did not meet an expedited construction schedules to
have TQ operational by October 15, 2006. The penalties, ultimately
assessed amounted to $2,053,333.
(emphasis in original; internal citations omitted). As noted above, Count 7 of plaintiff’s
complaint sought $2,053,333.20, plus interest, however, in plaintiff’s September 14, 2017
submission to the court addressing Count 7, plaintiff states: “For every day of excusable
delay that the Court finds, Oasis is entitled to receive $46,666.66 from Defendant. If the
Court finds that Oasis is entitled to 32.5 days of excusable delay, Oasis should receive
$1,516,666.45.”
During plaintiff’s opening statement at trial, plaintiff’s counsel indicated, regarding
Count 7:
Count 7, for the so-called AQL penalties.[37] She [Colonel Richardson]
assessed penalties because a site that had not yet even been provided was
not providing water. She assessed penalties as liquidated damages,
because even into the first option period she said I’m assessing damages
for 45 days for not having this plant online, even though -- even though the
evidence will show, even when the site was made available to them, there
was a slow-down and a directed suspension simply because the
Government had not yet decided they even wanted the plant.
As explained at length in the court’s contract interpretation and duress decision,
modification P00006 and modification P00011 were valid, as plaintiff did not demonstrate
that it executed modification P00006 and modification P00011 under economic duress.
As explained above, modification P00006, which was executed on April 14, 2006 by
Lieutenant Colonel Davis and Phil Morrell, extended the base year of the contract from
May 24, 2006 to August 15, 2006, and required that the bottled water capability be
established at the six sites by June 30, 2006, thereby extending the contractual deadline
for bottled water plants to be operational to June 30, 2006. In modification P00011, the
parties jointly agreed that the “[a]ll water capabilities shall be fully established prior to 15
October 2006.” The parties agreed to this, even though Colonel Richardson gave
approval for Oasis to construct the plant at TQ on August 11, 2006, one day before
modification P00011 was executed.
37 Plaintiff’s counsel previously explained in his opening statement:
P00011 reduced the price of the Option one period, which had already been
exercised, by more than $3 million. P00011 forced Oasis to essentially
agree to a form of liquidated damages called AQL, a quality of water which
didn’t even exist in the contract until it was introduced by P00011. P00011
also purports to resolve some water quality issues . . . at no cost to the
Government.
33
In plaintiff’s September 14, 2017 submission to the court addressing Count 7,
plaintiff argues that in the court’s contract interpretation opinion, “[t]he Court has found
that P00011 was valid. As such, the Court has also found that the AQL penalty structure
was also valid (i.e. $46,666.66 per day absent excusable delay). However, the fact that
the AQL penalty structure was valid does not mean that all of the assessed penalties
were valid.”38 (citation omitted; emphasis in original). Plaintiff, therefore, argues that
“Oasis was entitled to (and did) make a claim for excusable delay under the Contract as
modified by P00011.” Plaintiff then claims that, “[t]he 40.5 days of excusable delay
requested by Oasis all occurred between August 15, 2006 and September 25, 2006.
P00011 could not have resolved and/or waived these delays because P00011 was signed
on August 12, 2006, three days before the first excusable delays identified by Oasis
occurred.” (internal references omitted). In response, defendant argues that “Count 7 is
premised upon the invalidation of P00011, a valid modification.” The court notes that
although plaintiff argues that Oasis could not have accounted for all the excusable delay
that occurred after modification P00011 was signed, the court believes the purpose of
P00011 was to anticipate any delays that would occur in the future and put a penalty on
those delays. The language of modification P00011 makes this clear as the penalty for
TQ was a “Monthly Deduction for performance below AQL” of “.5% of the total monthly
price for each day the AQL is not met or surpassed. Effective beginning 1 Sep 06 for this
facility.”
As explained above, the payment structure of the contract after modification
P00011 was that Oasis was paid $9,333,333.33 per month, independent of any amount
of water, moving forward. Oasis’ actions after modification P00011 was executed are
consistent with modification P00011 and the penalty language, as demonstrated on its
invoices for September 2006. The September 15, 2006 invoice lists an amount of
$9,333,333.33, “For The Balance Due on Purified Bottled Water Capacity Sevices [sic]
Base Period 16 August thru 15 September 2006,” and a “Deduction for Performance
below AQL- Taqqadum Sept 1 -Sept 15,” in the amount of $699,999.99. Likewise the
September 30, 2006 invoice list an amount of $4,666,666.50, “For The Balance Due on
Purified Bottled Water Capacity Sevices [sic] Base Period 16 September thru 30
September 2006,” and a “Deduction for Performance below AQL- AL Taqqadum Sept 16
-Sept 30,” in the amount of $699,999.99.
As noted above, in the negotiations for modification P00011, Paul Morell sent an
August 1, 2006 email to Phil Morrell and Paul Jeffries, copying Alan Morrell and Dan
Petsche, which indicated:
I’ve tried a lot of complicated algorithms to try to make a solution that is
equitable to both the Military and US. I’ve concluded that the most equitable
approach for everyone is the following: We gat [sic] paid a flat
$112,000,000/year just as the contract states or $9,333,333/month (5/6 th of
that until TQ comes online). We agree to deliver up to 32,000,000 cases per
38 The court notes that in plaintiff’s complaint, plaintiff originally argued that “[t]he
Government erroneously interpreted P00011 as implementing the minimum AQL
production requirements effective September 1, 2006.”
34
year in aggregate with an annual reconciliation if the actual deliveries
exceed that amount.
Paul Morrell anticipated that Oasis would not be paid the full monthly fee so long
as TQ was not producing bottled water in accordance with AQL, otherwise the
government would be paying the flat monthly fee with only 5 of the 6 bottled water facilities
producing water.39 On August 12, 2006, Paul Morrell and Colonel Richardson executed
modification P00011, which was generally consistent with the Option II draft proposal,
quoted below, and established a payment structure by which Oasis would be paid
$9,333,333.33 per month, independent of any amount of water. The Option II proposal
outlined the following:
39 The court notes that the daily penalty, assuming 30 days in a month, would be
$51,851.85, assuming the 5/6th payment structure in Paul Morrell’s email, or slightly more
than the $46,666.66 in Modification P00011.
35
Furthermore, as noted by defendant, the amount due Oasis to close out the base year,
$24,542,387.00, included an “Allowance for capital purchases to complete TQ. Allowed
due to military delay of Land,” valued at “$ 5,500,000 Estimate.” Therefore, even though
Colonel Richardson gave approval for Oasis to construct the plant at TQ on August 11,
2006, one day before modification P00011 was executed, modification P00011 included
an estimated $5.5 million to compensate Oasis for the delays related to TQ. Moreover,
Oasis itself, in agreeing to modification P00011 agreed to the structure and timing of any
delays moving for TQ moving forward, as indicated by an August 11, 2006 email Paul
Morell sent to Alan Morrell, copying Phil Morrell, Paul Jeffries, and Dan Petsche, which
stated:
Alan,
Because we’ve moved to a daily penalty for each day this site is late we
need to monitor military caused delays very closely. I’d like you to go to TQ
and establish a baseline of what we need from the military and begin
working the issues and tracking the delays. The delays should be reported
and accumulated on your daily sitrep report to the military. Historical delays
are a non-issue for this exercise as the clock just started over.
Thanks,
Paul
As noted above, plaintiff’s submission states that “[t]he Court has found that P00011 was
valid. As such, the Court has also found that the AQL penalty structure was also valid
(i.e. $46,666.66 per day absent excusable delay). However, the fact that the AQL penalty
structure was valid does not mean that all of the assessed penalties were valid.” (citation
omitted; emphasis in original). The court, however, agrees with defendant that plaintiff’s
argument “is premised upon the invalidation of daily deductions agreed to in P00011,”
and as the court has found modification P00011 to be a valid modification, plaintiff’s
careful attempt to thread the needle of its argument must fail.
Regarding the delays Paul Morell focused on in his August 11, 2006 email, the
court notes 45 days after modification P00011 was executed, on September 25, 2006,
Oasis requested 40.5 days of excusable delay. After TQ was completed 8 days after the
agreed to October 15, 2006 date in modification P00011, the parties executed
modification P00013, on October 24, 2006, which granted plaintiff eight days of excusable
delay. As noted above, modification P00013 stated:
The purpose of this modification is to administratively establish an
agreement between the Government and Oasis International Waters, Inc.
that eight days of delay, with regards to the establishment of Bottled Water
Production Capability at Taqqadum, Iraq, is excusable. Oasis International
Waters, Inc. shall apply the excusable delay to their invoice submitted for
36
the period of performance of 01 - 31 October 2006. All other contract terms
and conditions remain unchanged.
Defendant argues that “bilateral modification P00013 is an accord and satisfaction
that defeats Count 7 as a matter of law.” Defendant also argues that
Oasis submitted a request for 40.5 days of excusable delay on September
25, 2006, and, following negotiations, the parties agreed upon eight days of
delay in P00013. Given that P00013 contained no reservation of rights and
addressed excusable delays (the same subject as count 7), the doctrine of
accord and satisfaction bars Oasis’s delay claims.
(internal references omitted). Plaintiff responds by noting that, “[w]hen a contractor signs
a valid bilateral modification, it is barred under the doctrine of accord and satisfaction from
pursuing claims that were clearly resolved by the terms of the modification itself,” but
argues that “P00013 does not include a waiver, a release, or any language indicating that
it was intended to resolve any matters not explicitly mentioned.”
The court notes that, unlike modification P00006 and modification P00011, plaintiff
did not argue at trial or in the post-trial filings that modification P00013 was executed
under duress. Plaintiff’s witnesses at trial pointed to the fact that Oasis did not sign a
waiver of claims for modification P00013, and in plaintiff’s May 30, 2017 submission to
the court addressing Count 5, plaintiff argues that “as P00013 did not include any waiver
language and the contemporaneous documentation shows that the parties intended to
preserve unaddressed days.” As the court determined above, as it related to Count 5,
however, “a supplemental agreement entered into between a contractor and the
government operates as a bar to all claims not specifically reserved.” Fraass Surgical
Mfg. Co. v. United States, 202 Ct. Cl. at 594, 505 F.2d at 712. As explained by the United
States Court of Appeals for the Federal Circuit:
Discharge of a claim by accord and satisfaction occurs when some
performance different from that which was claimed as due is rendered and
such substituted performance is accepted by the claimant as full satisfaction
of his claim. Brock & Blevins Co. v. United States, 343 F.2d 951, 955, 170
Ct. Cl. 52 (1965). However, courts may refuse to bar a claim based upon
the defense of accord and satisfaction where the parties continue to
consider the claim after execution of a release. Winn–Senter Constr. Co. v.
United States, 75 F. Supp. 255, 110 Ct. Cl. 34 (1948). “Such conduct
manifests an intent that the parties never construed the release as an
abandonment of plaintiff's earlier claim.” A & K Plumbing & Mechanical, Inc.
v. United States, 1 Cl. Ct. 716, 723 (1983).
37
Cmty. Heating & Plumbing Co. v. Kelso, 987 F.2d 1575, 1581 (Fed. Cir. 1993);40 see also
Meridian Eng’g Co. v. United States, 122 Fed. Cl. 381, 411 (2015). As also explained by
a Judge of the United States Court of Federal Claims:
The doctrine of accord and satisfaction is an absolute defense that
terminates any previous right that a party may have had to assert a claim of
the same subject matter. See C & H Commercial Contractors, Inc. v. United
States, 35 Fed. Cl. 246, 252 (1996) (quoting Chesapeake & Potomac Tel.
Co. v. United States, 228 Ct. Cl. 101, 108, 654 F.2d 711, 716 (1981));
accord McLain Plumbing & Elec. Svc., Inc. v. United States, 30 Fed. Cl. 70,
79–80 (1993). An “accord” is a contract under which both parties agree that
one party will render additional or alternative performance in order to settle
an existing claim made by the other party, and “satisfaction” is the actual
performance of the accord. See id. The party asserting an accord and
satisfaction defense must establish four elements: (1) proper subject
matter; (2) competent parties; (3) a meeting of the minds; and (4)
consideration. See id.; accord Brock & Blevins Co. v. United States, 170 Ct.
Cl. 52, 59, 343 F.2d 951, 955 (1965). An executed bilateral modification with
a release provision usually constitutes an accord and satisfaction unless
that release is either ambiguous or limited in scope. See Merritt–Chapman
& Scott Corp. v. United States, 198 Ct. Cl. 223, 228–30, 458 F.2d 42 (1972);
Brock & Blevins Co. v. United States, 170 Ct. Cl. at 59, 343 F.2d at 954-55.
Jackson Constr. Co. v. United States, 62 Fed. Cl. 84, 92 (2004).
The court notes that there is no suggestion in the record that both sides were not
competent to execute medication P00013. The court believes the testimony of Marcus
Overbay and Paul Jefferies satisfies the requirements of the meeting of the minds and
consideration. Marcus Overbay, a contract specialist during the contract performance,
had the following exchange with defendant’s counsel regarding modification P00013:
[Q.] Can you describe basically what this modification [P00013] was
supposed to accomplish?
A. Well, we saw the previous exhibit there. The contractor had filed for 40
days of excusable delays for setting up the camp. We had -- Colonel
Fortenberry led discussions with Oasis to negotiate those excusable delays.
There was a disagreement on -- on those, and there was a settlement
reached on eight days.
40 The court recognizes the precedential standard articulated by the United States Court
of Appeals for the Federal Circuit in Community Heating & Plumbing, but notes that the
facts and outcome are different, as the Federal Circuit determined that the plaintiff’s
claims were not barred by accord and satisfaction because “the evidence in the record
indicates that the Navy continued to negotiate and audit Community's claims years after
they were submitted.” Cmty. Heating & Plumbing Co. v. Kelso, 987 F.2d at 1581.
38
Q. And why do you say the term “settlement”? What are you looking at in
the modification that would indicate that?
A. This is a bilateral agreement for eight days, if you see the modification
there, and it has -- I can’t read that signature now, but someone from Oasis
signed it, and then Colonel Fortenberry did.
Q. Do you remember Oasis having any resistance or push-back on this
modification?
A. I don’t remember that.
Mr. Overbay subsequently discussed with defendant’s counsel on direct examination an
email sent by Colonel Fortenberry to plaintiff that stated in part: “At any rate, we're able
to offer 8 days of total excusable delays. I'm hoping that this will get you guys where you
need to be.” Mr. Overbay explained that “they had the -- the excusable delay request. We
disagreed with the number of days, and this is the -- the total that we had offered them.
So, it was -- it was a step towards negotiations.” In response to defendant’s counsel’s
question: “Was this a take-it-or-leave-it type approach?” Mr. Overbay responded: “No.
We were open to discuss with them.” At trial, Paul Jeffries had the following exchange
with plaintiff’s counsel:
Q. Were you involved in the negotiations regarding a request for delay-
related days for TQ in the AQL penalties?
A. Yes, Alan [Morrell] and I -- Alan put together, as we requested, about 40
days worth of Government-responsible delays, and remember, it's not
always that the Government did it, but the environment itself justified the
delay. So, if you had a dust storm that shut down all trucking for a week,
then that's a justifiable delay. In other cases, there may be more direct
Government impacts, but, you know, those types of things. We put together
40 days worth of delays, documented delays around TQ, and they allotted
us eight of the 40.
...
Well, what we believed by the contract would be considered excusable
delays. We put together a chart of 40 days of delays, and presented those,
and they allowed eight of them. And to our surprise, they allowed eight of
them.
Q. Did they give you a reason for why they were only allowing eight?
A. No, they just said we would allow eight and that was the end of the
discussion. So, we tried to say, wait a minute, and have that argument, but
39
their [sic]-- you know, there are just times when this is what we've decided,
that's it. There was no further dialogue about it.
Q. Did you sign a waiver of claims at the time of P00013?
A. No.
Q. Do you recall if the eight days were related to that October 15th deadline?
A. You know, it was convenient that the eight days brought us into alignment
with that October 15th deadline. It wasn't our goal or initiative -- I don't recall
that it was our goal to align those dates, but it -- it may have been, but I don't
recall what it was, but they miraculously aligned to ensure that we were in
compliance with the contract, but paid maximum penalty on, you know,
delay of TQ.
Despite plaintiff’s argument that, as with Count 5, absent a waiver or release, the
additional days of excusable delay must survive, and claims that “the plain language of
P00013 does not, on its face, claim to resolve all of the 40.5 delay days requested by
Oasis, it only resolved 8 of them,” and that “[a]ll P00013 did was acknowledge that there
had been eight days of delay. There is no language indicating that the eight days was a
settlement and/or that Oasis was relinquishing its ability to claim for the additional 32.5
days of delay,” the court agrees with the defendant that because Oasis agreed to eight
days of excusable delay in modification P00013, the doctrine of accord and satisfaction
bars Oasis from requesting any additional days of delay in its claim for Count 7 beyond
the eight already resolved. Therefore, the court determines that given plaintiff’s execution
of modification P00006, modification P00011, and modification P00013, plaintiff has not
demonstrated entitlement to any additional days of delay beyond the eight days the
parties agreed to in modification P00013.
Moreover, although the court does not need to address the merits of plaintiff’s
Count 7 claim for more than the eight agreed to days of delay, the court does note
defendant’s observation that it took Oasis 53 days to complete TQ, which was notably
quicker than it took to complete the other bottled water plants,41 and even if plaintiff’s view
of the excusable delay was completely correct, and there were 40.5 days of delay, TQ
would have been able to be completed in 12.5 days. Even assuming Oasis could have
constructed TQ quicker as it was the only bottled water plant to construct, it seems
unlikely that Oasis could have completed the entire process in 12.5 days. 42
41As defendant notes, defendant’s expert testified that “once they [Oasis] actually started
physical constructions, they basically completed the construction within 120 to 140 days,
typically.”
42The defendant also points out the changing number of days of excusable delay offered
by plaintiff, from citing both 22.5 days and 44 days in the certified claim, to the 40.5 days
indicated in the most recent submission by plaintiff.
40
The court also notes that, although plaintiff argues that “it is undisputed that the
32.5 days of delay occurred,” defendant disagrees, noting that “[t]he only evidence that
Oasis adduced at trial related to its delay claim, a spreadsheet submitted to the
Government in September 2006, seeks 40.5 days of delay, eight of which were granted
in P00013, leaving Oasis with 32.5 days of alleged delay,” and “Oasis failed to present
any witness testimony to explain the large discrepancy between the alleged delays it
presented to the contracting officer for a final decision, and the delays for which it now
seeks damages.” Plaintiff argues that “[d]efendant provided no witnesses and identified
no documents at trial that contradict the claimed delays. Further, defendant’s delay expert
did not challenge the requested delay days in his expert report. As such, the Court may
take it as undisputed that all 32.5 days of delay occurred and were attributable to the
causes identified by Oasis in its delay matrix.” (internal reference omitted). Defendant
contends that “Oasis’s failure to adduce witness testimony on its delay claim is also telling.
Oasis never asked Alan Morrell, the Oasis employee who prepared its delay claim, a
single question about the specifics of its alleged delays, only asking Mr. [Alan] Morrell the
conclusory question of whether the delays were ‘might be claimable under the contract.’”
Further, defendant, quoted the cross examination testimony of Oasis’ expert witness
Douglas Masengale, who stated that Alan Morrell “didn’t do a critical path analysis [for
the delay claims,] so, therefore, I would not put any weight in his days.” It is not clear to
the court that the evidence offered by plaintiff at trial would be sufficient to prove its
additional days of delay, even if the court were to consider them. In sum, plaintiff has not
proven entitlement to the additional days of delay pursuant to Count 7 of its complaint.
CONCLUSION
For the reasons explained above, the court concludes that plaintiff has not
demonstrated its entitlement to payment related to site conditions or additional days of
delay for establishing the bottled water facility at TQ or Camp Taqaddum. Therefore, the
court finds in favor of defendant for Count 5 and Count 7.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
41