      In the United States Court of Federal Claims
                                      No. 11-453C

                                (Filed: January 3, 2013)

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SUFI NETWORK SERVICES, 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 REGARDING PLAINTIFF’S
                          FIRST AMENDED COMPLAINT

        Plaintiff SUFI Network Services, Inc. (“SUFI”) submitted a claim for attorneys’
fees to the contracting officer on December 29, 2010. After not receiving any response to
its claim for more than six months, SUFI commenced this action on July 8, 2011.
Following the Court’s denial of a motion to dismiss, Defendant filed an answer to SUFI’s
complaint on February 1, 2012. Thereafter, the Court granted SUFI’s motion for
summary judgment on liability on June 18, 2012. At the suggestion of the parties, the
Court stayed proceedings to determine quantum pending the disposition of the related
case in Docket No. 11-804C. The Court issued its opinion in the related case on
November 8, 2012. SUFI Network Servs., Inc. v. United States, No. 11-804C, 2012 WL
5448957 (Fed. Cl. Nov. 8, 2012). The Court simultaneously lifted the stay of
proceedings in this case.

     At issue is a first amended complaint that SUFI attempted to file on December 12,
2012 without seeking leave of Court under Rule 15. As Defendant pointed out in a
December 17, 2012 motion to strike the amended complaint, SUFI could not simply file
an amended complaint at this stage of the proceedings, because the time periods for
amending pleadings “once as a matter of course” had long since expired. RCFC 15(a)(1).
SUFI was required to seek leave to file its amended complaint, a fact which SUFI
acknowledged in its December 18, 2012 response to Defendant’s motion.                          In this
response, SUFI requested the necessary leave to file its amended complaint.

         A further question to be addressed is whether SUFI may amend its quantum claim
in this case without first submitting these amendments administratively to the contracting
officer for a final decision. SUFI’s amended complaint includes “(a) a few expense items
. . . found to have been omitted from the claim as filed with the [contracting officer], and
(b) based on the Court’s recent decision in 11-804C, SUFI will request overhead and
profit on the attorneys’ fees and expenses claimed, as such are out-of-pocket expenses to
SUFI.” Pl.’s Opp’n 1.

        The crux of the disagreement is the proper characterization of SUFI’s amended
claims. The Government argues that these amendments constitute additional claims, as
“SUFI’s overhead and profit amounts and SUFI’s additional expenses of counsel have
never been before the contracting officer.” Def.’s Mot. 3. As such, the Government
argues, SUFI has yet to exhaust its administrative contractual remedies and this Court
does not possess jurisdiction. Id. at 4. In response, SUFI asserts that the amendments are
merely “modifications to its damages” as they “relate to the identical facts and
circumstances as SUFI’s original claim that was ignored by the [contracting officer].”
Pl.’s Opp’n 1-2. Therefore, SUFI asserts that it does not have to restart the Disputes
clause process and is free to pursue the amendments within the current proceeding. Id.
(citing Santa Fe Eng’rs, Inc. v. United States, 818 F.2d 856, 858 (Fed. Cir. 1987)).

       Under Rule 15, “the court should freely give leave [to amend] when justice so
requires.” RCFC 15(a)(2). This general principle is tempered, however, by the
requirement that claims first be submitted to the contracting officer for a final decision.
See Contracts Disputes Act (CDA), 41 U.S.C. §7103(a).1 As articulated by the Federal
Circuit, this standard “does not require rigid adherence to the exact language or structure
of the original CDA claim [when it] arise[s] from the same operative facts, claim[s]
essentially the same relief, and merely assert[s] different legal theories for that recovery.”
Ace Constructors, Inc. v. United States, 499 F.3d 1357, 1361 (Fed. Cir. 2007) (citations
omitted) (finding that claims based on same contract provisions, requirements, costs,
requested relief, and legal theories were properly before the court); Scott Timber Co. v.
United States, 333 F.3d 1358, 1366 (Fed. Cir. 2003) (finding that although plaintiff posed
different legal theories, claims presented to the contracting officer and the court were
“essentially the same” as they sought “consequential damages” for breach).

       Here, SUFI is not asserting a new claim, but is simply amending its attorneys’ fees
claim to include additional cost and profit items that it now believes are recoverable.
SUFI’s underlying claim is still one for attorneys’ fees, and the operative facts have not

1
 Although the CDA does not apply to the contract at issue here, the applicable Disputes clause embodies
the same requirement. Am. Compl. ¶ 3; Def.’s Mot. 5.

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changed. The Court concludes that SUFI’s changes to its quantum calculation as
represented in the amended complaint are not new claims requiring submission to the
contracting officer, and are properly before the Court.

        The Court also permits SUFI’s modifications regarding inadvertent omissions of
expenses from its initial claim to the contracting officer. The Government is correct in
pointing out that courts will not condone evasions of claim requirements such as “a
deliberate understatement of amount[s] . . . or a careless initial appraisal failing to satisfy
the criteria of [the CDA].” Tecom, Inc. v. United States, 732 F.2d 935, 938 n.4 (Fed. Cir.
1984); Def.’s Reply 3. Neither of these circumstances are present here, however, and
“[i]t would be most disruptive of normal litigation procedure if any increase in the
amount of a claim based upon matters developed in litigation before the court had to be
submitted to the contracting officer before the court could continue to a final resolution of
the claim.” J.F. Shea Co. v. United States, 4 Cl. Ct. 46, 54 (1983).

       Accordingly, Defendant’s motion to strike Plaintiff’s first amended complaint is
DENIED, and Plaintiff’s cross-motion for leave to file its first amended complaint is
GRANTED. Defendant should file an answer to the amended complaint within 20 days,
on or before January 23, 2013.

       IT IS SO ORDERED.

                                                   s/Thomas C. Wheeler
                                                   THOMAS C. WHEELER
                                                   Judge




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