K-CON BUILDING SYSTEMS, INC., v. USA

Filing 185

ORDER granting 181 Motion to Strike 180 Amended Complaint. New Amended complaint due by 4/25/2014. Responsive pleading due by 5/9/2014. Response to any counterclaim due by 5/16/2014. Joint status report due by 5/23/2014. Signed by Judge Margaret M. Sweeney. (kb1)

In the United States Court of Federal Claims
No. 05-914C
(Filed: April 14, 2014)
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K-CON BUILDING SYSTEMS, INC.,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant.
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ORDER
On March 28, 2014, defendant in the above-captioned case filed a motion requesting that
the court either strike plaintiff’s amended complaint or dismiss the portions of the amended
complaint over which the court lacks jurisdiction. Plaintiff filed a response on March 31, 2014,
and defendant filed a reply on April 10, 2014.
In its original complaint, filed August 22, 2005, plaintiff set forth its jurisdictional and
factual allegations. Compl. ¶¶ 1-18. Then, in its prayer for relief, plaintiff challenged the
propriety of the Coast Guard’s default termination and the assessment of liquidated damages, and
accordingly sought (1) the conversion of the default termination into a termination for the
convenience of the government, (2) the remission of retained liquidated damages, and (3)
damages it incurred as a result of the purportedly wrongful default termination and liquidated
damages assessment. Id. at 3-4. Subsequently, in its February 26, 2014 Opinion and Order, the
court granted plaintiff’s motion to amend its complaint “to allege a claim based on its February
25, 2005 letter to the Coast Guard requesting a $50,325 price increase resulting from the
excusable delays it alleged in its other February 25, 2005 letters.” K-Con Bldg. Sys., Inc. v.
United States, 114 Fed. Cl. 722, 734-36 (2014).
Pursuant to the court’s order, plaintiff filed its amended complaint on March 14, 2014,
adding the following factual allegations:
17. On January 25, 2005, K-Con submitted three (3) claim letters to the Coast
Guard Contracting Officer requesting extensions for various excusable delays.
One of the letters demanded a thirty (30) day non-compensable extension as a
result of the Coast Guard's improper review and approval/ disapproval of K-Con' s
design. The second letter requested an extension as a result of interference by the

on-site inspector. The third letter requested an extension as a result of weather
delays. In each case the Coast Guard Contracting Officer denied K-Con’s
requests for extensions.
18. By letter dated January 25, 2005, K-Con submitted a claim for $50,325.00 for
extended overhead due to delays outlined in K-Con’s prior letter of June 25, 2005.
The Coast Guard never responded to this claim.
Am. Compl. ¶¶ 17-18 (citations omitted). Then, after setting forth its factual allegations but
before its prayer for relief, plaintiff added a two-paragraph section titled “Breach of Contract,” in
which it claims that the Coast Guard breached its contract with plaintiff by:
a. Improperly terminating K-Con for default;
b. Refusing to allow K-Con to complete the work and preventing K-Con from
completing the work;
c. Failing to comply with the terms of the Changes Clause;
d. Failing to extend the Task Order performance period as a result of changes
and delays caused by the Coast Guard;
e. Failing to recognize excusable delays to the performance period;
f. Interfering with and hindering K-Con’s performance;
g. Failing to pay for work performed; and
h. Improperly withholding liquidated damages.
Id. ¶ 23. In this same section, plaintiff requests “actual damages in excess of $50,000.00” and
the remission of liquidated damages as a result of the Coast Guard’s breach of contract. Id. ¶ 24.
The prayer for relief mirrors, in relevant part, the prayer for relief in the original complaint, with
one exception–plaintiff adds a request for “monetary damages in an amount to be determined by
the Court[.]” Id. at 5.
In its motion, defendant contends that plaintiff has alleged new breach-of-contract claims
in its amended complaint and argues that those claims are beyond the scope of what the court
permitted in its February 26, 2014 Opinion and Order. Defendant further argues that the court
lacks jurisdiction over these new breach-of-contract claims because plaintiff never submitted a
breach-of-contract claim to the contracting officer. In its response, plaintiff avers that its
amended complaint complies with the court’s order, arguing that its allegation that the Coast
Guard breached the contract is merely another way of stating its equitable adjustment claims.
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Upon reviewing the parties’ submissions, the court concludes that plaintiff has
improperly amended its complaint to add breach-of-contract claims. The court therefore
GRANTS defendant’s motion to strike and STRIKES plaintiff’s amended complaint (document
#180) from the docket. Plaintiff shall file a new amended complaint that includes only those
claims set forth in its original complaint (i.e., the claims related to the default termination and the
assessment of liquidated damages) and the claim for equitable adjustment permitted by the court
in its February 26, 2014 Opinion and Order (i.e., a claim based on plaintiff’s February 25, 2005
letter to the Coast Guard requesting a $50,325 price increase for extended overhead resulting
from the excusable delays described in plaintiff’s other February 25, 2005 letters).1
Plaintiff shall file a new amended complaint by no later than Friday, April 25, 2014.
Defendant shall file its responsive pleading no later than Friday, May 9, 2014, and plaintiff
shall file a response to any counterclaim asserted by defendant no later than Friday, May 16,
2014. Then, by no later than Friday, May 23, 2014, the parties shall file a joint status report
suggesting a schedule for further proceedings.
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Judge

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The court will not direct any particular changes. However, a new amended complaint
that lacks paragraphs 23 and 24 of, but is otherwise identical to, the submitted amended
complaint would be acceptable to the court.
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