# In th e United States Court of Federal Cl aims

No. 05-914C (F iled: April 14, 2014)

************************************* K-CON B U I L DI

NG SYSTEMS, I

NC., *

* Plaintiff, *

* v. * * THE UNI TED STATES, * * Defendant. * ************************************* 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. I n its orig inal complaint, filed Aug ust 22, 2005, plaintiff set forth its jurisdictional and factual alleg ations. Compl. ¶¶ 1-18. Then, in its pray er for relief, plaintiff challeng ed the propriety of the Coast Guard’s default termination and the assessment of liquidated damages, and according ly

soug ht (1) the conversion of the default termination into a termination for the convenience of the g overnment, (2) the remission of retained liquidated damag es, and (3) damag es it incurred as a result of the purportedly wrong ful default termination and liquidated damag es assessment. I d. at 3-4. Subsequently , in its F ebruary 26, 2014 Opinion and Order, the court g ranted plaintiff’s motion to amend its complaint “to alleg e a claim based on its F ebruary 25, 2005 letter to the Coast Guard requesting a $50,325 price increase resulting from the ex c usable delay s it alleg ed in its other F ebruary 25, 2005 letters.” K-Con B ldg . Sy s., I nc. v. United States, 114 F ed. Cl. 722, 734-36 (2014). Pursuant to the court’s order, plaintiff filed its amended complaint on March 14, 2014, adding the following factual alleg ations: 17. On J anuary

25, 2005, K-Con submitted three (3) claim letters to the Coast Guard Contracting

Officer requesting

ex tensions for various ex cusable delay s. One of the letters demanded a thirty (30) day non-compensable ex tension as a result of the Coast Guard' s improper review and approval/ disapproval of K-Con' s desig n. The second letter requested an ex tension as a result of interference by theon-site inspector. The third letter requested an ex tension as a result of weather delay s. I n each case the Coast Guard Contracting Officer denied K-Con’s requests for ex tensions. 18. B y letter dated J anuary

25, 2005, K-Con submitted a claim for $50,325.00 for ex tended overhead due to delay s outlined in K-Con’s prior letter of J une 25, 2005. The Coast Guard never responded to this claim. Am. Compl. ¶¶ 17-18 (citations omitted). Then, after setting forth its factual alleg ations but before its pray

er for relief, plaintiff added a two-parag raph section titled “B reach of Contract,” in which it claims that the Coast Guard breached its contract with plaintiff by : a. I mproperly

terminating K-Con for default; b. Refusing to allow K-Con to complete the work and preventing K-Con from completing the work; c. F ailing to comply with the terms of the Chang es Clause; d. F ailing to ex tend the Task Order performance period as a result of chang es and delay s caused by

the Coast Guard; e. F ailing to recog niz e ex cusable delay s to the performance period; f. Interfering

with and hinderingK-Con’s performance; g . F ailing to pay

for work performed; and h. I mproperly

withholding liquidated damag e s. I d. ¶ 23. In

this same section, plaintiff requests “actual damag es in ex cess of $50,000.00” and the remission of liquidated damag es as a result of the Coast Guard’s breach of contract. I d. ¶ 24. The prayer for relief mirrors, in relevant part, the pray er for relief in the orig inal complaint, with one ex c eption–plaintiff adds a request for “monetary damag es in an amount to be determined by the Court[ .] ” I d. at 5. I n its motion, defendant contends that plaintiff has alleg ed new breach-of-contract claims in its amended complaint and arg ues that those claims are bey ond the scope of what the court permitted in its F ebruary

26, 2014 Opinion and Order. Defendant further arg ues 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. I

n its response, plaintiff avers that its amended complaint complies with the court’s order, arg uing that its alleg ation that the Coast Guard breached the contract is merely another way

of stating its equitable adjustment claims.

-2-Upon reviewing the parties’ submissions, the court concludes that plaintiff has improperly

amended its complaint to add breach-of-contract claims. The court therefore G RANTS defendant’s motion to strike and STRIK ES p laintiff’s amended complaint (document #180) from the docket. Plaintiff shall file a new amended complaint that includes only those claims set forth in its orig inal complaint (i.e., the claims related to the default termination and the assessment of liquidated damag es) and the claim for equitable adjustment permitted by the court in its F ebruary

26, 2014 Opinion and Order (i.e., a claim based on plaintiff’s F ebruary 25, 2005 letter to the Coast Guard requesting a $50,325 price increase for ex tended overhead resulting from the ex cusable delay s described in plaintiff’s other F ebruary 25, 2005 letters). 1 Plaintiff shall file a new amended complaint by no later than F r iday, April 25, 2014

. Defendant shall file its responsive pleading no later than F riday, May 9, 2014 , and plaintiff shall file a response to any counterclaim asserted by defendant no later than F riday, May 16, 2014 . Then, by no later than F riday, May 23, 2014 , the parties shall file a joint status report sug g esting a schedule for further proceeding s. IT IS SO ORDERED. s/ Marg aret M. Sweeney MARGARET M. SW EENEY J udg e

1 The court will not direct any particular chang es. However, a new amended complaint that lacks parag

raphs 23 and 24 of, but is otherwise identical to, the submitted amended complaint would be acceptable to the court. -3-