     In the United States Court of Federal Claims
                                         No. 10-141C
                                   (Filed: March 31, 2015)


****************************
                                                   *      Contract Disputes Act, 41 U.S.C. § 601
JASMINE INTERNATIONAL TRADING &                    *      et seq. ; Common-Law Fraud
SERVICES, CO. W.L.L.,                              *      Counterclaim; Failure to State a Claim
                                                   *      Upon Which Relief Can Be Granted,
                     Plaintiff,                    *      Rule 12(b)(6); Alleged Nexus Between
                                                   *      Fraud and Contract Awards.
              v.                                   *
                                                   *
THE UNITED STATES,                                 *
                                                   *
                     Defendant.                    *
                                                   *
****************************
       Barry Wm. Levine, Dickstein Shapiro LLP, 1825 Eye Street, NW, Washington, D.C.
20006, for Plaintiff.

        Stuart F. Delery, Jeanne E. Davidson, Deborah A. Bynum, and Russell J. Upton, United
States Department of Justice, Civil Division, Post Office Box 480, Ben Franklin Station,
Washington, D.C. 20044, for Defendant. Captain Dana M. Collins, United States Army,
Litigation Division, of Counsel.
      ____________________________________________________________________

      OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO DISMISS
                  DEFENDANT’S AMENDED COUNTERCLAIM
    ______________________________________________________________________

WILLIAMS, Judge.

        This matter comes before the Court on Plaintiff’s motion to dismiss Defendant’s
amended counterclaim for failure to state a claim upon which relief can be granted. Plaintiff
Jasmine International Trading & Services, Company W.L.L. (“Jasmine”) was the awardee of
multiple contracts with the United States Army Contracting Command SWA-Kuwait (“the
Army”). Defendant alleges that Plaintiff provided bribes and other things of value to an Army
officer in Kuwait in exchange for the award of contracts, blanket purchase agreements (“BPAs”),
and calls under those BPAs. Defendant asserts a common-law fraud counterclaim, seeking
rescission of the contracts Plaintiff allegedly obtained through fraud and the disgorgement of
monies the United States paid Plaintiff under the contracts.1 Plaintiff contends that Defendant
failed to allege that fraud was the cause of the awards.

        This Court denies Plaintiff’s motion to dismiss because Defendant sufficiently pled a
direct causal nexus between the alleged fraudulent conduct and the awarded contracts.

                                         Background2

Jasmine and Major Cockerham

       Jasmine is a Kuwaiti company specializing in the sale of durable and nondurable goods.
Diaa Salem was the chief executive officer of Jasmine. Am. Answer to Pl.’s Fifth Am. Compl.
and Countercls. (“Am. Answer”) ¶ 101; Def.’s Mot. for Leave to File an Am. Answer to Pl.’s
Fifth Am. Compl. (“Mot. for Leave”), App. 16.

        Major John Cockerham was deployed to Camp Doha in Kuwait from November 2000
until January 2002, where he served as the Headquarters Company Commander, and again from
April 2002 to February 2003, where he worked as a contracting specialist. Am. Answer ¶ 98.
Major Cockerham was deployed to Camp Arifjan from approximately June 30, 2004 to late
December 2005, as a contracting officer, where he was responsible for soliciting bids and
awarding contracts in support of Army operations in southwest Asia. Id. at ¶ 99.

        During his deployment to Camp Doha from November 2000 to January 2002, Major
Cockerham became acquainted with Mr. Salem and they remained in contact when Major
Cockerham returned to the United States in February 2003. Id. at ¶¶ 104-05. In the spring of
2004, Mr. Salem traveled to San Antonio, Texas to visit Major Cockerham. Id. at ¶ 106.
Defendant alleges that during this visit, Mr. Salem gave Major Cockerham $1,200 and requested
his assistance in starting a corporation in the United States. Id. On or about April 16, 2004,
Major Cockerham incorporated D & J Trading as a Texas corporation, with Major Cockerham
owning 51% and Mr. Salem owning 49%. Id. at ¶ 107; Mot. for Leave, App. 17. In June 2004,
when Major Cockerham was deployed as a contracting officer to Camp Arifjan, he remained in
contact with Mr. Salem. Am. Answer ¶ 108.

       1
         Originally Defendant had asserted counterclaims under the Forfeiture of Fraudulent
Claims Act (“FFCA”), 28 U.S.C. § 2514, also known as the Special Plea in Fraud Act, and the
False Claims Act (“FCA”), 31 U.S.C. § 3729, but it withdrew these statutory counterclaims.
Under Rule 41, Defendant’s withdrawn counterclaims will be dismissed without prejudice. Rule
41(a)(1)(A), in conjunction with Rule 41(c), permits a party to voluntarily dismiss any
counterclaim without a court order by filing a notice of dismissal or a stipulation of dismissal.
Pursuant to Rule 41(a)(1)(B), when a party voluntarily dismisses its claims without a court order,
the dismissal is without prejudice unless the notice states otherwise.
       2
         This background is derived from Plaintiff’s fifth amended complaint, Defendant’s
amended answer to Plaintiff’s fifth amended complaint, Plaintiff’s supplemental reply brief in
support of its motion to dismiss, the exhibits to Plaintiff’s fourth amended complaint, and the
appendices to the parties’ motion papers, cited as “App.”


                                                2
        Defendant alleges Mr. Salem agreed to give “things of value” to Major Cockerham,
including providing money to Major Cockerham’s sister, in exchange for the award of contracts,
BPAs, and calls. Am. Answer ¶ 103; Mot. for Leave, App. 18. Specifically, Defendant contends
Mr. Salem offered to pay Major Cockerham $1 million in or around August 2004, in exchange
for the award of government contracts. Am. Answer ¶ 110. “A handwritten note found in Major
Cockerham’s residence states that he expected ‘1 million’ from ‘Jas.’” Id. Defendant alleges
that Major Cockerham’s sister, Carolyn Blake, traveled to Kuwait on August 27, 2004. Id. at ¶
109. While there, Mr. Salem paid for her one-week stay at the Crowne Plaza Hotel in Kuwait
and gave her several hundred dinars in spending money. Id. Defendant alleges that Ms. Blake
occasionally collected bribes for her brother Major Cockerham and that Major Cockerham and
Ms. Blake maintained a list of all the money Ms. Blake received from government contractors on
Major Cockherham’s behalf. This list indicated that Ms. Blake received $60,000 from Mr.
Salem in July 2005. Id. at ¶¶ 111-13. In exchange for the bribes and other things of value
provided by Mr. Salem, Major Cockerham allegedly assisted in awarding Contract No.
W912D1-04-P-0931, Contract No. W912D1-06-C-0007, Contract No. W912D1-04-A-0050, and
calls under Contract No. W912D1-04-A-0050 to Jasmine. Id. at ¶¶ 96, 116, 120, 130.

Jasmine’s Contracts to Provide and Service Latrines

       The 0931 Contract

       On September 28, 2004, the Army awarded Jasmine Contract No. W912D1-04-P-0931
(“0931 Contract”) for the delivery of latrines. Fifth Am. Compl. ¶¶ 5, 7. Defendant alleges
Major Cockerham assisted in awarding this contract to Jasmine by signing an award-
recommendation memorandum on or around September 25, 2004. Am. Answer ¶¶ 119, 121.
The September 25, 2004 memorandum identifies Major Cockerham as the “POC [point of
contact]” for the 0931 Contract, and it includes his signature, the signatures of a three-member
Review Board, and the signature of the Chief of the Army’s Contract Branch. Pl.’s Suppl. Reply
Br. in Support of Mot. to Dismiss, Ex. 2. The Review Board reviewed a folder on the 0931
Contract provided by Major Cockerham and subsequently recommended that Jasmine be
awarded the contract. Id.

       Jasmine was to deliver the latrines in six phases under Contract Line Item Numbers
(“CLINs”) 0001, 1001, 1002, 1003, 1004, and 1005, and the period of performance was to end
on July 1, 2006. Fifth Am. Compl. ¶¶ 5, 7. Jasmine performed services pursuant to CLINs
0001, 1001, 1002, and 1003. Id. at ¶ 8. On or around July 14, 2005, Major Cockerham orally
requested that Jasmine provide and service 21 latrines in addition to the latrines that Jasmine was
already servicing under the 0931 Contract. Id. at ¶ 9. Jasmine provided and serviced the
additional latrines and submitted invoices for these 21 additional latrines as well as the latrines
subject to the 0931 Contract. Id. at ¶ 11. From 2004 to 2006, the Army paid Jasmine
approximately $3,268,000 for services provided under the 0931 Contract. Am. Answer ¶ 123.
This payment allegedly did not include the full amounts due for CLINs 1002 and 1003 or any
payments for the 21 additional latrines. Fifth Am. Compl. ¶ 15.




                                                3
        On or around February 27, 2006, Jasmine received a letter ordering it to remove all
latrines from Camp Arifjan immediately because the 0931 Contract had ended on September 30,
2005. Fifth Am. Compl. ¶ 13. Defendant paid Jasmine 44,400 Kuwaiti Dinars for services
allegedly performed between October 1, 2005, and November 30, 2005, pursuant to the 0931
Contract. Am. Answer ¶ 82. Defendant asserts these payments were made in error because
Jasmine did not have a contract to perform the services at the time and requests that any amount
Jasmine recovers in this action be offset by 44,400 Kuwaiti Dinars. Id. at ¶¶ 83, 84. Jasmine
viewed the order for removal of the latrines as a breach of the 0931 Contract because this order
terminated the contract earlier than stipulated before all six phases had been completed. Fifth
Am. Compl. ¶¶ 5, 13, 14. On November 13, 2006, Jasmine submitted a claim seeking
286,744.90 Kuwaiti Dinars. Id. at ¶ 20; Fourth Am. Compl., Ex. E. On June 1, 2010, Jasmine
received the contracting officer’s final decision (“COFD”) denying the claim except for
91,041.576 Kuwaiti Dinars, which was payment for services Jasmine provided from October 1,
2005, to February 27, 2006. Fifth Am. Compl. ¶ 21; Fourth Am. Compl., Ex. F.

       On or around October 23, 2005, the Army’s Department of Logistics requested a quote
from Jasmine to service 113 additional latrines at Camp Arifjan. Fifth Am. Compl. ¶ 48.
Jasmine provided a quote on October 31, 2005, and Major Cockerham accepted Jasmine’s quote
via email that same day. Id. Jasmine requested documentation to reflect this acceptance, but the
Army allegedly did not provide Jasmine with this documentation. Id. at ¶ 50.

       The 0007 Contract

       On or around November 1, 2005, Major Cockerham posted solicitation number W912D1-
06-R-0011 for latrine services. Am. Answer ¶ 126. Jasmine submitted a proposal, and its
quoted price was higher than at least three other contractors who submitted proposals. Id. at ¶
127. Defendant alleges that Major Cockerham supervised the personnel conducting the technical
evaluation of the bids and that he assigned ratings to the bids so Jasmine would receive the
highest adjectival rating. Id. at ¶¶ 128, 129. On November 5, 2005, the Army awarded Jasmine
Contract No. W912D1-06-C-0007 (“0007 Contract”), which required Jasmine to service and
maintain 617 latrines at Camp Arifjan. Fifth Am. Compl. ¶¶ 46, 47.

          Jasmine serviced 730 latrines at Camp Arifjan and submitted invoices for these services
on February 6, 2006. Id. at ¶ 51. Jasmine also invoiced the Army for repairs that it made to
government-owned latrines in December 2005, January 2006, and February 2006. Id. at ¶ 53.
The Army allegedly did not pay Jasmine the full amounts due under the invoices, and Jasmine
submitted a claim on November 13, 2006, seeking 15,526.89 Kuwaiti Dinars. Id. at ¶¶ 53, 55;
Fourth Am. Compl., Ex. B.3 On June 1, 2010, Jasmine received the COFD denying its claim in
its entirety. Fifth Am. Compl. ¶ 56.

Jasmine’s Contract for Equipment and Supplies: The 1172 Contract




       3
         From November 2005 to February 2006, the Army paid Jasmine approximately
$475,000 for services rendered under the 0007 Contract. Am. Answer ¶ 132.
                                               4
        On September 24, 2005, the Army awarded Jasmine Contract No. W912D1-05-P-1172
(“1172 Contract”). Fifth Am. Compl. ¶ 24. Under the 1172 Contract, Jasmine provided the
Army Department of Logistics with equipment and supplies, including a 60-foot paint booth. Id.
at ¶ 26. After the contract was approved, Jasmine realized that the vendor’s quoted price was
based on different product specifications, rendering the contract price too low. Id. at ¶ 28.
Jasmine obtained three new price proposals, provided them to Captain James Tulloch, and
offered to provide the paint booth at Jasmine’s cost. Id. Captain Tulloch, with the approval of
Major Cockerham, selected one of the new proposals, and the parties agreed to modify the order.
Id. at ¶ 29. Jasmine then sent the Army a detailed written price quote with insurance, shipping,
and miscellaneous charges amounting to $119,840. Id. Major Cockerham and Captain Tulloch
verbally agreed to the revised terms, and Jasmine proceeded with procurement and construction
of the paint booth. Id. at ¶¶ 30, 31. On May 14, 2006, Jasmine delivered the paint booth to
Kuwait and notified Captain Tulloch that it was ready for delivery upon approval of additional
funds or written approval of acceptance. Id. at ¶ 34. The Army allegedly did not provide any
acceptance or payment. Id.

       On or around November 13, 2006, Jasmine submitted a claim seeking 61,912.72 Kuwaiti
Dinars for all of the equipment and supplies. Fifth Am. Compl. ¶ 42; Fourth Am. Compl., Ex. L.
On September 29, 2009, Jasmine received the COFD denying its claim in its entirety. Fifth Am.
Compl. ¶ 43.4

Jasmine’s Contract to Supply Water: The 0050 Contract

       In September 2004, Major Cockerham assisted in awarding Jasmine a contract to provide
water in Iraq and Kuwait, Contract No. W912D1-04-A-0050 (“0050 Contract”). Am. Answer ¶
116. Between October 2004 and May 2005, Major Cockerham issued five calls under the 0050
Contract for deliveries of bottled water. Id. at ¶ 117. From 2004 to 2005, the Army paid
Jasmine $3,031,093.06 for these calls under the 0050 Contract issued by Major Cockerham. Id.
at ¶ 118. On September 28, 2004, the Army also awarded a contract to provide bottled water,
Contract No. W912D1-04-A-0053, to D & J Trading, the company jointly incorporated by Major
Cockerham and Mr. Salem. Id. at ¶¶ 107, 116.

        On December 19, 2004, Jasmine’s trucks delivered water supplies to the TAJI Army
Base in Iraq pursuant to the 0050 Contract. Fifth Am. Compl. ¶ 59. When the trucks were
offloaded, uniformed Army personnel directed the truck drivers to load military equipment into
the trucks and transport the equipment to Camp Doha and Camp Arifjan in Kuwait.5 Id. When
the trucks arrived in Kuwait, Major Cockerham and Major Derrick Shoemaker told the truck
drivers that the Army could not receive delivery of the equipment until it received authorization
and confirmation from the TAJI Army Base. Id. at ¶ 60. Major Cockerham instructed Jasmine
personnel to store the equipment until the Army received authorization, and Major Timothy Petty
assured Jasmine personnel that the Army would promptly pay the transport and storage cost. Id.
        4
            Defendant did not assert any counterclaims with respect to the 1172 Contract.
        5
            Camp Arifjan is approximately 600 miles from the TAJI Army Base. Fifth Am. Compl.
¶ 59.


                                                  5
at ¶¶ 60, 61. Major Petty instructed Jasmine personnel to deliver the equipment to a designated
delivery point when he received authorization and confirmation, and Jasmine delivered the
equipment on January 14, 2005, after storing it for 29 days. 6 Id. at ¶¶ 62, 65. On January 28,
2006, Jasmine sent an invoice to Major Petty, charging $695,400 for backhauling, delivery, and
storage fees. Id. at ¶ 66.

        Jasmine performed a similar backhauling mission under the 0050 Contract that same
month, January 2005. On January 17, 2005, Jasmine transported two “green containers” from
Iraq to Camp Arifjan in Kuwait. Id. at ¶ 67. On January 28, 2006, Jasmine sent an invoice to
Major Petty, charging $36,600 for backhauling, delivery, and storage fees. Id. at ¶ 69. The
Army allegedly did not pay either invoice. Id. at ¶ 70. On or around January 25, 2008, Jasmine
submitted a claim seeking 201,475 Kuwaiti Dinars, which included backhauling, storage, and
delivery of military equipment. Id. at ¶ 76; Fourth Am. Compl., Ex. T. On or around September
28, 2009, Jasmine received the contracting officer’s interim decision denying Jasmine’s claims
for unpaid services related to backhauling. Fifth Am. Compl. ¶ 77.

Procedural History

       Plaintiff filed this action on March 3, 2010. Plaintiff subsequently amended its complaint
several times and filed its fifth amended complaint on March 16, 2012. Plaintiff invokes the
Contract Disputes Act (“CDA”) and claims that Defendant breached the 0931 Contract, the 0007
Contract, the 1172 Contract, and the 0050 Contract. Id. at ¶¶ 15, 37, 53, 71. On August 14,
2012, Defendant filed a motion for leave to file an amended answer to Plaintiff’s fifth amended
complaint. The Court granted Defendant’s motion on August 15, 2012, and accepted its
amended answer for filing as of that date. Order entered 08/15/2012, Doc. 62. In its amended
answer, Defendant asserted counterclaims under the FFCA, the FCA, and common-law fraud.

         On October 19, 2012, Plaintiff filed a motion to dismiss Defendant’s amended
counterclaims, arguing that the Court lacked subject-matter jurisdiction over Defendant’s
counterclaims and that Defendant failed to state a claim upon which relief may be granted. Pl.’s
Mot. to Dismiss Def.’s Am. Countercls. (“Pl.’s Mot.”) 1. On July 23, 2013, this Court held a
hearing on Plaintiff’s motion to dismiss and advised the parties that it would defer ruling on the
motion pending a decision from the United States Court of Appeals for the Federal Circuit in
Kellogg Brown and Root Services, Inc. v. United States, No. 2012-5106. Tr. 166.
Consequently, this action was stayed from July 24, 2013 to March 28, 2014. On October 20,
2014, Defendant voluntarily dismissed its counterclaims asserted under the FFCA and the FCA,
in light of the Federal Circuit’s ruling in Kellogg Brown and Root Services, Inc. v. United States,
728 F.3d 1348 (Fed. Cir. 2013) (“KBR III”). Def.’s Suppl. Opp’n to Pl.’s Mot. to Dismiss Def.’s
Countercl. 1. Defendant continues to press its common-law fraud counterclaim, and Plaintiff
seeks dismissal of this counterclaim in the motion sub judice.




       6
         Jasmine used 19 trucks to deliver two hummers, two 20-foot containers, one helicopter,
one truck, and one truck full of miscellaneous equipment. Id. ¶ 64.
                                                6
                                            Discussion

Standard of Review

       Plaintiff moves to dismiss Defendant’s counterclaim for failure to state a claim upon
which relief can be granted under Rule 12(b)(6). Pursuant to Rule 8(a)(2), a pleading must
contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
RCFC 8(a)(2); see Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (construing Rule 8 of the
Federal Rules of Civil Procedure, which is identical to RCFC 8). To survive a motion to dismiss
under Rule 12(b)(6), the complaint must contain facts sufficient to “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Iqbal, 556
U.S. at 678 (2009). As the Federal Circuit recently recognized in ABB Turbo Systems AG v.
Turbousa, Inc.:

               [t]o avoid dismissal under Rule 12(b)(6), the complaint must
               contain sufficient factual allegations “to raise a right to relief above
               the speculative level.” Twombly, 550 U.S. at 555. Rule 8’s
               pleading standard “does not require ‘detailed factual allegations.’”
               Iqbal, 556 U.S. at 678 . . . . But it requires more than “barren
               recitals of the statutory elements, shorn of factual specificity,”
               Speaker v. Dep’t of Health & Human Servs., 623 F.3d 1371, 1384
               (11th Cir. 2010), and more than the mere possibility of liability or
               mere consistency with liability, Iqbal, 556 U.S. at 678; Twombly
               550 U.S. at 557, 570. What is needed is “facial plausibility” of the
               claim, which exists “when the plaintiff pleads factual content that
               allows the court to draw the reasonable inference that the
               defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
               678 (citing Twombly, 550 U.S. at 556). Rule 8 “simply calls for
               enough fact to raise a reasonable expectation that discovery will
               reveal evidence” of the alleged violation. Twombly, 550 U.S. 556.

774 F.3d 979, 984-85 (2014). To determine whether a complaint states a plausible claim for
relief, a court must engage in a context-specific analysis and “draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679. “When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Id.

Rescission and Disgorgement

        Defendant raises a counterclaim for common-law fraud, contending that Jasmine’s
contracts are void or voidable and that the Government is entitled to rescission and disgorgement
of all sums paid to Jasmine under the 0931 Contract, the 0007 Contract, and the 0050 Contract
because the contracts “were tainted by bribery, conflict of interest, and fraud.” Am. Answer ¶
144.




                                                  7
        Plaintiff argues the Court must dismiss Defendant’s counterclaim for common-law fraud
because Defendant “failed to properly allege a causal link between the claimed fraudulent
activity and Jasmine’s acquisition of the three contracts at issue.” Pl.’s Mot. 25. The elements
of common-law fraud are:

               (1) a representation of a material fact, (2) the falsity of that
               representation, (3) the intent to deceive or, at least, a state of mind
               so reckless as to the consequences that it is held to the equivalent
               of intent (scienter), (4) a justifiable reliance upon the
               misrepresentation by the party deceived, which induces him to act
               thereon, and (5) injury to the party deceived resulting from reliance
               on the misrepresentation.

Unigene Lab., Inc. v. Apotex, Inc., 655 F.3d 1352, 1359 (Fed. Cir. 2011) (citing In re Spalding
Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed. Cir. 2000)). “[A] Government contract tainted
by fraud or wrongdoing is void ab initio.” Godley v. United States, 5 F.3d 1473, 1476 (Fed. Cir.
1993) (citing J.E.T.S., Inc. v. United States, 838 F.2d 1196, 1200 (Fed. Cir. 1988)). It is well
established that a contract may be adjudged void ab initio where there exists the type of severe
legal infirmity that would preclude the parties’ exchange of promises from giving rise to an
enforceable agreement. See Total Medical Mgmt., Inc. v. United States, 104 F.3d 1314, 1321
(Fed. Cir. 1997); Godley, 5 F.3d at 1476; United States v. Amdahl Corp., 786 F.2d 387, 394-95
(Fed. Cir. 1986).

     In KBR III, the Federal Circuit held that but-for causation is required to establish a
common-law fraud claim. 728 F.3d at 1371. The Federal Circuit stated:

               [t]his court’s precedent confirms that common-law fraud is not
               established simply by showing that kickbacks were paid to
               personnel involved in contract decision-making: ‘Illegal acts by a
               government contracting agent do not alone taint a contract . . .
               Rather the record must show some causal link between the
               illegality and the contract provisions.’ . . . [F]raud must be a but-
               for cause of the outcome to satisfy the requirements of common-
               law fraud.

Id. (quoting Godley, 5 F.3d at 1476). In KBR III, the Federal Circuit affirmed the dismissal of
the common-law fraud claim because, notwithstanding the kickbacks, the contract at issue would
have been awarded to the same subcontractor. Id. at 1372. Under KBR III, to assert a
cognizable common-law fraud claim, Defendant must allege that fraud was the but-for cause of
the awards of the three contracts Defendant seeks to void. See id.

        Defendant’s common-law fraud claim meets this causation standard. The following
allegations in Defendant’s amended answer and counterclaim directly link Jasmine’s alleged
fraudulent activities to the contract awards:

              “Diaa Salem [Jasmine’s CEO] agreed with Mr. Cockerham to give things of
               value to Mr. Cockerham, including providing money directly to Mr.
                                                 8
               Cockerham’s sister, Carolyn Blake, in exchange for the award of contracts,
               BPAs, and calls issued thereunder, to companies which Diaa Salem owned,
               controlled, and/or had an interest in, including Jasmine and D & J Trading.” Am.
               Answer ¶ 103. “In spring of 2004 . . . , Mr. Salem gave Mr. Cockerham $1,200
               in cash.” Id. at ¶ 106. “On or about August 27, 2004 . . . , Mr. Salem paid for
               Ms. Blake’s week-long stay at the Crowne Plaza Hotel in Kuwait. Mr. Salem
               gave her several hundred Kuwaiti dinars in spending money.” Id. at ¶ 109. “On
               July 5, 5005, Diaa Salem sent a wire transfer in the amount of $60,000 to Ms.
               Blake.” Id. at 111.

              “In or around August 2004, Mr. Salem offered to pay Mr. Cockerham $1 million
               in exchange for the award of Government contracts.” Id. at ¶ 110.

              “During September 2004, Mr. Cockerham assisted in awarding calls for two
               bottled water BPAs to Mr. Salem’s companies, including . . . BPA W912D1-04-
               A-0050 (BPA 0050) awarded to Jasmine on September 28, 2004 . . . . Mr.
               Cockerham issued five calls under BPA 0050 . . . for deliveries of bottled water .
               . . . The Army paid Jasmine $3,031,093.06 for the calls under BPA 0050 issued
               by Mr. Cockerham alone.” Id. at ¶¶ 116-18.

              “In September 2004, Mr. Cockerham also assisted in awarding another contract
               to Jasmine, Contract W912D1-04-P-0931 (Contract 0931).” Id. at ¶ 120.

              “On or about September 25, 2004, Mr. Cockerham signed a memorandum
               recommending that Jasmine be awarded Contract 0931 for the lease and servicing
               of latrines. Jasmine ultimately was awarded Contract 0931 on September 28,
               2004.” Id. at ¶¶ 121-22.

              “Jasmine’s price for the services was higher than at least three other contractors
               who submitted proposals in response to solicitation W912D1-06-R-0011.
               Jasmine’s proposal for services exceeded the next lowest proposal by more than
               17 percent . . . . Mr. Cockerham assigned ratings to the bids that gave Jasmine the
               highest adjectival rating. Upon information and belief, Mr. Cockerham added
               points inconsistently among all proposals to favor Jasmine’s proposal. On or
               around November 7, 2005, the Army awarded Jasmine Contract 0007,” under
               solicitation number W912-D1-06-R-0011. Id. at ¶¶ 127, 129-30.

              “From at least April 2004 until July 2005, Mr. Salem promised Mr. Cockerham
               money and other things of value in exchange for the award of contracts, BPAs
               and calls thereunder to Jasmine, including BPA 0050, Contract 0931, and
               Contract 0007.” Id. at ¶ 136.

        Defendant alleges a direct causal nexus between Plaintiff’s bribery scheme and Major
Cockerham’s recommendation of Jasmine for the 0931 Contract, his favoring Jasmine’s offer in
the ratings for the 0007 Contract, his assistance in awarding Jasmine the 0050 Contract, and his
issuance of five calls under the 0050 Contract. Defendant has pled sufficient facts “to raise a
reasonable expectation that discovery will reveal evidence” that Major Cockerham’s fraudulent

                                               9
conduct was a but-for cause of Jasmine’s receipt of these awards. Twombly, 550 U.S. at 556.
At the pleading stage, the salient inquiry is not whether Defendant is likely to prevail on the
merits, but instead whether it is entitled to offer evidence in support of its counterclaim.
Chapman Law Firm Co. v. Greenleaf Constr. Co., Inc., 490 F.3d 934, 938 (Fed. Cir. 2007).

        With respect to the 0050 Contract, Plaintiff acknowledges that Defendant pled that Major
Cockerham assisted in awarding calls and issued five calls to Jasmine under this contract. Pl.’s
Suppl. Reply 8. In order to distance Major Cockerham from these awards and render but-for
causation implausible, Plaintiff asserts that these calls “could reasonably have been expected to
be issued to Jasmine anyway, given that Jasmine had been awarded the umbrella 0050 contract.”
Id. In so arguing, Plaintiff invites this Court to ignore the procedure for deciding a Rule 12(b)(6)
motion and to assume facts directly contradicting Defendant’s allegation—not to assess, as
Twombly and Iqbal direct, whether Defendant’s allegations of causation are plausible.

        Plaintiff asks the Court to dismiss the allegations that Major Cockerham had a conflict of
interest, assisted in awarding the calls, and actually issued five calls under this contract as
implausible based on its say-so that there was some amorphous, unattributed “reasonable
expectation” that these calls would have been awarded to Plaintiff “anyway.” Pl.’s Suppl. Reply
8. This Court recognizes that “courts deciding a motion to dismiss for insufficient pleading may
consider the strength of alternative explanations of the alleged facts.” ABB Turbo Sys. AG, 774
F.3d at 987. However, Plaintiff’s unsupported suggestion that Jasmine would have been
awarded these calls “anyway,” goes well beyond offering an alternative explanation of the
alleged facts—it seeks to substitute a wholly different factual basis for these awards without
evidence.

        In KBR III, the Federal Circuit affirmed the trial court’s finding following a trial that
KBR would have awarded the subcontract at issue notwithstanding the kickbacks paid to
personnel involved in contract decision-making. The Court in KBR III emphasized the factual
record supporting the trial court’s conclusion:

               [T]he Court of Federal Claims also found that ample evidence
               supports a finding that Tamimi would have received the award of
               the work at Anaconda regardless of Mr. Hall’s actions, crediting
               the testimony of Mr. Jonas, KBR’s former Vice President for
               Procurement Materials and Property, who testified that the award
               of WR 3 to Tamimi just made sense and that it would have been
               irresponsible on the part of KBR at that time to attempt to use
               another subcontractor at Anaconda. Additionally, the Court of
               Federal Claims found that [t]he notion of awarding the work at all
               four DFACs at Anaconda did not originate with Mr. Hall, but with
               Mr. [Jim] Spore, then-Regional Project Manager for Northern Iraq.
               Unlike Godley, this case is not before us on summary judgment,
               and the Court of Federal Claims did determine, as a finding of fact,
               that the illegal conduct overall did not irreparably taint the
               contract, i.e., that Tamimi would have received a Master
               Agreement and WR 3 absent any participation by Messrs. Hall and
               Holmes.
                                                10
KBR III, 728 F.3d at 1372 (alteration in original) (internal quotations omitted). Plaintiff’s effort
to undermine allegations in Defendant’s counterclaim without the benefit of evidence does not
alter the fact that here at the pleading stage, Defendant did allege the requisite link between a
decision-maker with a conflict of interest and the award of these calls. See ABB Turbo Sys. AG,
774 F.3d at 987. It would be error for this Court to conclude that these allegations are
implausible and subject to dismissal simply because Plaintiff has failed to elaborate on the extent
of Major Cockerham’s input into the award decisions at the pleading stage. See ABB Turbo Sys.
AG, 774 F.3d at 986-87 (reversing the district court’s dismissal for insufficient pleading because
“[t]he court’s analysis was too demanding of specificity and too intrusive in making factual
assessments”).

        Plaintiff sets up a similar construct in asking this Court to dismiss the counterclaim
implicating the 0931 Contract. There, Plaintiff acknowledges that Defendant pled both that
Major Cockerham assisted in the September 28, 2004 award and signed an award-
recommendation memorandum three days earlier as a point of contact. Pl.’s Suppl. Reply 9.
Plaintiff points out that three other individuals were named in the memorandum as
recommending the award and submits that, because Major Cockerham was not one of these three
recommenders and was not the contracting officer on that contract, the allegations did not
sufficiently link Major Cockerham with the award decision. Plaintiff suggests that Major
Cockerham did not exercise a sufficient degree of assistance in this award process to establish
his status as a decision-maker. Such a demand for specificity is unwarranted at this pleading
stage. As the Federal Circuit instructed in ABB Turbo Sys. AG, “[t]he [trial] court’s analysis
was too demanding of specificity and too intrusive in making factual assessments. ABB has
alleged ‘enough facts to state a claim to relief that is plausible on its face;’ it has ‘nudged [its]
claims across the line from conceivable to plausible.’” 744 F.3d at 986 (quoting Twombly, 550
U.S. at 570) (alteration in original).

        Given Defendant’s allegations that Major Cockerham assisted in the award, was a
contracting officer, signed the recommendation memorandum as a point of contact, and provided
the review folder, Defendant has alleged enough facts to “nudge” its common-law fraud claim
“across the line from conceivable to plausible.” The allegations that Major Cockerham orally
directed Jasmine to increase the quantity of latrines and services and that Jasmine complied with
this request further indicates that the scope of the 0931 Contract may have been increased as a
direct result of Major Cockerham’s authorization—adding to the plausibility of an inference that
Major Cockerham had decision-making responsibility for this contract. So too, the allegation
that it was Major Cockerham who accepted Plaintiff’s quote to provide additional services for
another 113 latrines, further suggests that he exercised decision-making responsibility for the
Army’s acquisition of services covered by the 0931 Contract. Whether Major Cockerham’s
fraudulent conduct and personal involvement in the award process tipped the scales in favor of
an award to Jasmine is an intensely factual inquiry not to be resolved at the pleading stage based
upon titles in a memorandum.

       Finally, Plaintiff contends that Defendant failed to allege causation with respect to the
award of the 0007 Contract. Plaintiff acknowledges that Defendant pled that Major Cockerham
wrote the solicitation with price being the most important factor, rated proposals, gave Jasmine

                                                 11
the highest adjectival rating, and, upon information and belief, “added points inconsistently
among all proposals to favor Jasmine.” Def.’s Am. Countercl. ¶ 129. Plaintiff seeks dismissal of
this common-law fraud counterclaim, arguing that Defendant failed to allege that Major
Cockerham was a decision-maker with respect to the 0007 Contract because he was not the
source selection official or the contracting officer on that contract. Despite the fact that Major
Cockerham did not bear these titles, he was a contracting officer on other contracts, and it is
plausible that Major Cockerham’s alleged conduct in drafting the solicitation and manipulating
Jasmine’s scoring in the evaluation resulted in the selection of Jasmine’s proposal.

        With respect to all of these awards, Plaintiff views the involvement of government
contracting personnel in the source selection and award process too narrowly. While the source
selection official is the final decision-maker, his award decision may well be informed by the
views of his subordinates, especially evaluators and contracting officials. Award decisions are
subjective, and, at this juncture, it would be premature for the Court to conclude that it is
implausible that Major Cockerham exercised sufficient decision-making authority to either direct
these awards to Jasmine or orchestrate scenarios ensuring that awards to Jasmine would be the
outcome.

        Defendant expressly alleges that the contracts were awarded in exchange for bribes and
payments Jasmine made or agreed to make to a Government contracting official and his sister.
This suffices to meet the pleading requirement for but-for causation set forth in KBR III.
Whether or not the alleged fraud was, in fact, the but-for cause of the awards to Plaintiff is a
matter to be determined following trial.

                                          Conclusion

      Plaintiff’s motion to dismiss is DENIED. The Court will convene a telephone status call
on April 21, 2015, at 11:00 a.m. EST to schedule further proceedings.



                                             s/Mary Ellen Coster Williams
                                             MARY ELLEN COSTER WILLIAMS
                                             Judge




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