Fleming Steel Co. v. Jacobs Eng'g Grp., Inc. (373 F. Supp. 3d 567, 2019)

Nora Barry Fischer, United States District Judge I. INTRODUCTION

This diversity action arises from a business arrangement between an architectural/engineering design management company, Defendant Jacobs Engineering Group ("Jacobs"), and a manufacturer which specializes in the custom design and fabrication of hangar doors, Plaintiff Fleming Steel Company ("Fleming"), involving the procurement of two Navy projects for the construction of an aircraft hangar at Andersen Air Force Base in Guam. After the Navy failed to approve Fleming as the sole source for the manufacture of a component part-the blast-rated hangar doors, Fleming initiated this action against Jacobs seeking damages and restitution on various claims. At this juncture, the only remaining claims consist of breach of an oral contract, negligent misrepresentation, and unjust enrichment. Currently pending before the Court is Jacobs' Motion for Summary Judgment (ECF No. 75 ) as to the remaining claims. For the reasons that follow, the Court will grant Jacobs' motion in part, and deny it in part.

II. LEGAL STANDARD

Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

More specifically, the moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the nonmoving party must set forth "specific facts showing that there is a genuine issue for trial" or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting FED. R. CIV. P. 56(e) ) (emphasis added by Matsushita Court). An issue is genuine only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. FACTUAL BACKGROUND

In 2010, the United States Naval Facilities Engineering Command ("NAVFAC") awarded Jacobs/Burns & McDonnell (the "Joint Venture" or "Jacobs") an Indefinite Delivery Indefinite Quantity ("IDIQ") contract to provide Architectural/Engineering ("A/E") services for the construction of aviation facilities within the U.S. Pacific Command Area of Responsibility. See Dep. of Cody Hoff (Hoff Dep.) at 12-13, Def.'s App. Ex. 1 (ECF No. 75-2 ) ; IDIQ contract, Pl.'s App. Ex. A (ECF No. 87-1 ). In February 2011, NAVFAC-Marianas (a branch of NAVFAC within NAVFAC Pacific Command) awarded the Joint Venture a task order for Project AJJY123010, Guam Fuel Systems Maintenance Hangar ("Project 3010") to provide A/E services in connection with the design of a hangar at Andersen Air Force Base in Guam. See Ex. 2 to Hoff Dep. (ECF No. 75-2 at 52-54 ). Project 3010 is what is known as a "design-bid-build" project; in design-bid-build projects, the A/E first prepares a full set of design plans and the project specifications, and the government then releases the plans and specifications to the public so that potential contractors may submit bids for the project construction. Hoff Dep. at 25; Dep. of John DeVenecia ("DeVenecia Dep.") at 25-26, Pl.'s App. Ex. CC (ECF No. 87-29 ). The contractor is just being asked to build the facility and not do any design work for it. DeVenecia Dep. at 26.

The Project 3010 hangar required, among other components, blast-hardened hangar doors. Dep. of Chris Surles ("Surles Dep.") at 20, 36, Def.'s App. Ex. 2 (ECF No. 75-3 ). Those doors were a "performance specification" item: the doors had to meet certain operational criteria, but the means of meeting the required criteria are left up to the subcontractor who ultimately builds the doors. Hoff Dep. at 21-22.

Jacobs reached out to potential hangar door manufacturers to assist it with the design of the blast-hardened hangar doors. Hoff Dep. at 21. Jacobs contacted Fleming Steel Company ("Fleming") for design-assist type conceptual work because Fleming had designed hangar doors previously. Surles Dep. at 21-22. Manufacturers have an incentive to assist A/E firms such as Jacobs in this regard because in doing so, they will obtain cost and other information which will give them an advantage in bidding on the project. Id. at 22-23.

Cody Hoff, who was employed by Jacobs, was the project manager for Project 3010, and later for Project 3027. Hoff Dep. at 7, 10. Chris Surles, who was also employed by Jacobs Engineering Group, was the architectural intern for Project 3010 and the project architect for Project 3017. Surles Dep. at 6, 8. John DeVenecia was the NAVFAC's Design Manager for Project 3010 from August 2010 until July 2012, and Mr. Hoff's principal point of contact on Project 3010. DeVenecia Dep. at 9-10. Clarence Lagutang was NAVFAC Marianas CI, Capitol Improvement Project Manager on Project 3010. Dep. of Clarence Lagutang ("Lagutang Dep.") at 7 (ECF No. 75-5 ).

Fleming has over 90 years of experience custom designing and fabricating specialized and unique aircraft hangar door systems for the United States Military (including Air Force One). Second Am. Compl., ¶ 1 (ECF No. 34 ). Seth Kohn is the president and owner of Fleming. Dep. of Seth Kohn ("Kohn Dep.") at 9. Mr. Kohn was Jacobs' principal point of contact at Fleming on the issue of sole sourcing for the Projects. Id. at ¶ 36. Mr. Kohn has been employed at Fleming since 1967. Id. at ¶ 10.

In May of 2011, Jacobs contacted Fleming about assisting in the development of the hangar door design concept for Project 3010. Hoff Dep. at 41-42. Jacobs and its blast consultant, ARA, with whom the Joint Venture had a subcontract for Project 3010, had already come up with a design concept for the hanger doors-Option 1-which was not an optimal solution at that time. Id. at 36, 38-40. On May 9, 2011, Bernie Klein from Jacobs emailed Mr. Kohn attaching Option 1 and asked Mr. Kohn to email him some details that they discussed so that Mr. Klein could develop Option 2. Ex. P 3 to Hoff Dep., Pl.'s App. Ex. J (ECF No. 87-10 ). Shortly thereafter, a telephone conference took place in which Mr. Hoff, his architects and the blast consultant discussed with Mr. Kohn the initial concepts of the project, and generally talked about the design details of the hanger doors, particularly the bottom rail. Hoff Dep. at 42-44, Pl.'s App. Ex. FF (ECF No. 87-32 ).

During May, June, and July of 2011, Jacobs and Fleming collaborated to develop hanger door concept designs, including designs for the hangar door head. Dep. of John Gavroy ("Gavroy Dep.") at 31-35; Various Emails between Gavroy and Surles, Exs. 6-9 to Gavroy Dep., Def.'s App. Ex. 7 (ECF No. 75-8 at 23-43 ). Mr. Kohn testified that during the May to July 2011 timeframe, Fleming provided significant design services to Jacobs:

Q: Okay. So during this time frame, based on the e-mails we looked at before the lunch break, what did this -- my math indicates that there are 609.5 hours reflected on page 1 of Exhibit 43. What did those 609.5 hours consist of?

A: Well, there was engineering and -- and -- there was a variety of things that were discussed and done. Part of it was design. Part of it was specifications. Part of it was concept. Part of it was debunking what they had already started with. I spent a tremendous amount of time when they first contacted me looking at what they thought was going to be workable. There's no way possible.

So there's a lot that goes into it. It's not all concentrated. A lot of it is interrelated. There was a lot of time spent with the structural engineer on the interface between the door head and the sill. A lot of time spent with the blast engineer. A lot of time spent with Jacobs about how to pull all this together. So there -- there was a considerable amount of work done.

Kohn Dep. at 139-140, Pl.'s Ex. GG (ECF No. 87-33 ).

Jacobs received plans from Fleming and utilized this information when preparing the plans for the Navy's Request for Proposals ("RFP"). Hoff Dep. at 34-35, Pl.'s App. Ex. FF (ECF No. 87-32 ). Fleming's work also included preparation of fabrication drawings for the hangar doors. Kohn Dep. at 38. Mr. Hoff testified that the plans and specifications included in the solicitation for the Navy projects incorporated "useful" and "valuable" input from Fleming. Hoff Dep. at 65.

At the end of July 2011, Mr. Kohn informed Jacobs that Fleming could no longer support Jacobs without compensation. In this regard, Mr. Hoff testified:

Q: Okay. Now, in this E-mail [from Jim Brokaw of ARA dated 7/22/11], you say that Fleming has reached the end of the financial donation to the project. They asked if we could discuss a sole source to them from the government due to this being the first door of its kind and the sensitive nature of the load data. Jacobs support this stance, unless you feel we can write the performance spec based on the current concept that could be competitively bid, which would have to include the load data. Now, when you said that Fleming has reached the end of the financial donation to the project, what do you mean by that?

A: It was we were informed by Mr. Kohn that they could no longer support us without being compensated.

Q: And do you think Mr. Kohn was being reasonable when he said that?

A: Yes.

Q: And why so?

A: Because he - he had helped us and we understood there would be a limit to what they can do as part of the standard door assist, like we discussed previously in this deposition. And we knew at some point, that they would not be able to assist any further.

Q: Okay. And here it says that Fleming was asking whether or not they could be considered a sole source from the government, given that, you know, they were reaching the financial end for donation to the project.

A: Uh-huh.

Q: Were you supportive of that concept?

A: Yes. And as I stated - as I stated here, and to - that they would be. And I wanted to get with - to Jim to make sure he agreed with that as well.

Q: And did he?

A: Yes, because at that time, the key point to all of this was the load data. But by that time, we were told that load data was classified, we couldn't put it out in a public spec. So we really couldn't - we couldn't put out a performance spec and not tell the hangar door designers what they had to - loads they could design to. It would be impossible to design the - for them to design and fabricate a door.

Q: And it's also fair to say that if you're - Fleming was going to continue to provide its support in the design of the hangar doors, that you would expect them to be compensated in some way?

A: No, I would - I would - it would be part of their sole source.

Q: So when we talk about compensation, one way to receive compensation would be getting that sole source designation in the solicitation correct?

A: Yes, that would be one way.

Hoff Dep. at 68-71; Ex. P6 to Hoff Dep. (ECF No. 75-2 at 86 ).

Mr. Hoff further testified:

Q: And when Fleming continued to provide design support to Jacobs after this July 22nd, 2011 E-mail, was it your understanding or assumption that Fleming would be sole sourced to contract the hangar doors?

A: Based on our discussion, it was the agreement in -- I think it was September when we had our OBR -- onboard review meeting with NAVFAC in Guam -- the agreement in -- was that they all agreed that a sole source was -- was the best path forward. However, additional documentation for a ROM, et cetera, that was requested by NAVFAC from Fleming and the J&A paperwork -- subsequent J&A paperwork would have to be prepared first.

Q: And so that meeting you referred to was in what month and year?

A: September of 2011.

Q: And so was Fleming a participant in that September 11th, 2011 meeting?

A: No, they did not.

Q: So after that September 2011 meeting, you walked away from that meeting confident that the Navy would allow Fleming to be a sole source supplier of the hangar doors?

A: Yes.

Q: And were you highly confident, or fairly confident?

A: I had no reason to doubt that they would not be allowed to be -- that the J & A would not be approved.

...

Q: ... And so when Jacobs told Fleming that the Navy had agreed to sole source the hangar doors to Fleming, that was told to Fleming in order to encourage Fleming to continue to provide design services?

A: No, it was not. It was told to them to be able to help prepare the J & A for their product and the ROM calls that NAVFAC requested. I don't - I don't recall much additional effort required by Fleming at that point after that - after that meeting, besides preparing the J & A, and the ROM call system that they submitted to NAVFAC is to document the Justification and Authorization.

Hoff Dep. at 71-73, 153-54 (Pl.'s Ex. FF).

On July 29, 2011, Mr. Surles informed Mr. Kohn by email that Jacobs had raised with NAVFAC "the possibility of using Fleming as a sole-source for the Hangar Doors. NAVFAC is in favor of providing this due to the uniqueness of the design, the confidentiality of the blast criteria, and the required finished product compared to competitively bidding the doors[,]" and that Jacobs was awaiting NAVFAC's response. Surles' Dep. Ex. 37, Def.'s App. Ex. 2 (ECF No. 75-3 at 21-22 ).

On September 8 and 9, 2011, Mr. Hoff and other Jacobs employees attended a project review meeting with NAVFAC-Marianas representatives in Guam. Def.'s App. Ex. 9 (ECF No. 75-10 ). At the meeting, NAVFAC stated that Fleming would be the sole-source manufacturer of the hangar doors, and requested that Fleming prepare a Rough Order of Magnitude ("ROM") to estimate the cost of the sole-sourced item. Hoff Dep. at 71-73, 113-14; Surles Dep. Ex. 37.

On September 12, 2011, Mr. Surles informed Mr. Kohn by email that "[t]he team just returned from the 60% review meeting. NAVFAC has agreed to the sole sourcing as they understand that the hangar doors are a unique design. They will require a Rough Order of Magnitude from you to review. Please send this to Cody Hoff and he will forward to [NAVFAC]." Email dated 9/12/11, Pl.'s App. Ex. B (ECF No. 87-2 at 3 ). Mr. Kohn replied, "[t]hat is good news." Kohn Dep. at 46, & Ex. C to Kohn Dep., Def.'s App. Ex. 5 (ECF-75-6). Mr. Kohn testified he understood that "the government moves very slowly through things, and until the paperwork is generated and signed, it's not 100 percent official, but that's not verbally what I was being told." Kohn Dep. at 44.

Fleming did not participate in any discussions between Jacobs and the Navy regarding sole sourcing the hangar doors to Fleming. Hoff Dep. at 100. Nor did Fleming participate in any meetings between Jacobs and the Navy. Id. at 98.

On October 3, 2011, Fleming provided the ROM budget quote for the costs of fabricating the hangar doors to Jacobs for forwarding to the Navy. Kohn Dep. at 69-70; Pl.'s App. Ex. Z (ECF No. 87-26 ). That same day, Mr. Hoff forwarded the ROM budget quote to John DeVenecia and Clarence Lagutang at NAVFAC, who were Jacobs' primary points of contact on Project 3010. Both reviewed the ROM upon receiving it. Lagutang Dep. at 32-33, Def.'s App. Ex. 4 (ECF No. 75-5 ); DeVenecia Dep. at 65-66, Def.'s App. Ex. 3 (ECF No. 75-4 ).

The ROM budget quote reflected the understanding between Jacobs and NAVFAC-which Jacobs conveyed to Fleming-that Fleming would be the sole-source supplier of the hangar doors. The ROM budget quote was on Fleming letterhead, signed by Seth Kohn, and stated that "we are pleased to offer our ROM budget quotation for furnishing ... [a] set of blast rated hangar doors." Pl.'s App. Ex. Z.

On November 9-10, 2011, Mr. Hoff attended the 90% On Board Review ("OBR") with the Navy. He prepared the agenda for this meeting. Pl.'s App. Ex. C. Mr. Hoff admitted that, as of the date of this meeting, the Navy had yet to finalize sole sourcing the hangar doors to Fleming. Hoff Dep. at 80-81. This was because the paperwork had not been signed off by the Contracting Officer. Id. at 82.

In December of 2011, NAVFAC requested that Jacobs and Fleming prepare a Justification and Approval ("J & A") memorandum describing the rationale for the sole-source. 12/16/11 Email from Mr. Hoff to Mr. Kohn, Ex. 19 to Kohn Dep., Def.'s App. Ex. 5. The Federal Acquisition Regulations ("FAR") require a J A memorandum signed by NAVFAC for a sole-source designation to be effective. FAR §§ 6.303, 6.304, Def.'s App. Ex. 10 (ECF No. 75-11 ). Mr. Kohn testified that he only had a "vague idea" of what a sole source J&A was. Kohn Dep. at 51. He said he was "vaguely familiar with the FARS" and "no expert on the FARS." Id. at 29.

On December 16, 2011, Mr. Hoff sent an email to Mr. Kohn passing along NAVFAC's request that Fleming prepare language for the J&A for the hangar doors. Ex. 19 to Kohn Dep. In that same email, Mr. Hoff informed Mr. Kohn that Project 3010 had been postponed "until at least FY14" because of a budget issue in Congress. Id. When asked about Mr. Hoff's email dated December 16, 2011 stating that a J &A would be required to sole source to Fleming, Mr. Kohn testified that he construed that to mean that the Navy was "trying to finish up their paperwork." Kohn Dep. at 49-51.

On January 19, 2012, Fleming provided draft language to be included in the J & A to Mr. Hoff. Ex. 19 to Hoff Dep., Def.'s App. Ex. 1. Mr. Hoff completed the J&A memorandum, and emailed the unsigned J&A to Mr. DeVenecia, the NAVFAC design manager on Project 3010. Ex. 17 to Hoff Dep. On January 29, 2012, Mr. DeVenecia instructed Mr. Hoff to include the "hangar door sole-source" to Fleming in Project 3010's "final design submittal." Ex. 19 to Hoff Dep. (1/20/11 email from C. Hoff including "Item 87 - [Hangar] Door Sole-source - We will include with our final design submittal"; Mr. DeVenecia replies on 1/29/11, "Concur, please execute.").

Jacobs submitted the Project 3010 design package to NAVFAC on or about January 31, 2012. Hoff Dep. at 108. The design package included (1) the hangar door specifications, which identified Fleming as the sole-source supplier of the hangar doors; and (2) the J&A for signature by NAVFAC. Hoff Dep. at 106-07; Ex. 6 to Lagutang Dep., Def.'s App. Ex. 4; Def.'s App. Ex. 11. NAVFAC personnel reviewed the specifications at that time, but did not instruct Jacobs to remove Fleming's name, or object in any way to Fleming being identified as the sole-source supplier of the hangar doors. Lagutang Dep. at 38-39.

Mr. DeVenecia and Ms. Teresa Aguon were responsible for submitting the J & A to the designated higher authorities within NAVFAC for approval. Aguon Dep. at 106-07, Def.'s App. Ex. 13 (ECF No. 75-14 ). Ms. Aguon was approached by Navy Design Manager, John DeVenecia to discuss a potential sole source and the process of preparing a Justification and Approval. Aguon Dep. at 13. For a J&A approval, there are multiple approvers in the capital improvements and acquisition line. Id. at 14-15. However, a Congressional budget dispute stalled Project 3010 until at least FY2014. Hoff Dep. at 95-96; Ex. 19 to Kohn Dep. Six months later, in July of 2012, Mr. DeVenecia left NAVFAC for another position with the U.S. Government. DeVenecia Dep. at 48. The J & A remained unsigned. During the multi-year delay of Project 3010, no one at NAVFAC ever informed Jacobs that the J & A had not been signed. Hoff Dep. at 118-21.

Even though Mr. Hoff felt there was an "understanding from back in September 2011" that Fleming Steel would be sole sourced the hangar doors, he "understood at the time that the J&A would have to be actually signed by the Navy." Until such time, sole sourcing to Fleming Steel was "not official." Id. at 117-118.

In October 2012, NAVFAC issued Jacobs/Burns & McDonnell a second task order, AJJY133027 ("Project 3027"), to provide A/E services for another Andersen Air Force Base hangar, adjacent to the Project 3010 hangar. Ex. 22 to Kohn Dep. NAVFAC-Pacific, which oversees NAVFAC-Marianas, administered Project 3027. Id.

By email dated January 6, 2013, Mr. Hoff told Fleming that "you are the sole source for the hangar doors" on Project 3010, and that "we are fixing to start design on the second hangar of the same size and criteria[,]" referring to Project 3027. Pl.'s App. Ex. M. Jacobs contends that the Project 3027 hangar doors were to be identical to the Project 3010 hangar doors, and thus no additional design work was needed or requested from Fleming for Project 3027. Hoff Decl. ¶ 5, Def.'s App. Ex. 14 (ECF No. 75-15 ).

Subsequently, Mr. Hoff informed Fleming that it would be sole sourced the hangar doors for Project 3027 "down the road" because due to funding issues Project 3010 had not been awarded and the Navy did not have a proven design yet. Hoff Dep. at 125 ("Q. And that you never told Fleming or represented to Fleming that they would be sole sourced on 3027 as well? Later down the road, I did ...").

Mr. Kohn testified that prior to October 2012 Jacobs stated that Project 3027 was "coming down the pike, and they were hoping it would be issued." Kohn Dep. at 147-148. Mr. Kohn further testified that, prior to that date, he had already provided Jacobs design services for Project 3027. Id. at 143-144.

Mr. Kohn testified that Mr. Surles sent him an email stating that Fleming Steel was sole sourced for both projects 3010 and 3027, Kohn Dep. at 152, however, Mr. Kohn subsequently recalled that the notification of sole source for both projects came in a telephone conversation between Kohn and Surles, not an email, Kohn Decl., ¶ 13, Pl.'s App. Ex. MM (ECF No. 87-39 ). Additionally, Mr. Kohn stated that Fleming provided design services in support of Project 3027 based on Jacobs' representation that the doors would be sole sourced to Fleming for this project as well. Id. at ¶ 14. Mr. Kohn testified that he provided design services under Project 3027 in July 2012. Kohn Dep. at 143-144. Mr. Surles of Jacobs also testified that Fleming provided "valuable services" with respect to both Projects 3010 and 3027. Surles Dep. at 71-72.

In approximately April or May 2014, NAVFAC-Pacific opened the bidding process for construction of Project 3027 by issuing a request for proposals ("RFP") from general contractors. Hoff Dep. at 149. The Project 3027 specifications identified Fleming as the sole-source supplier of the hangar doors. Id. at 138-39. On May 14, 2014, Cody Hoff informed Fleming that it would be the sole source supplier of the hangar doors for the Navy Projects, stating that "my understanding is the spec for the hangar doors says the door[s] are to be provided by Fleming Steel." Pl.'s App. Ex. N.

Shortly after bidding began, NAVFAC received a Request for Information ("RFI") from a potential general contractor inquiring whether other hangar door manufacturers could be substituted for Fleming. 5/21/14 NAVFAC Email, Def.'s App. Ex. 15 (ECF No. 75-16 ). This question prompted NAVFAC-Pacific's contracting officer-apparently unaware that the bid documents named Fleming as the sole-source supplier of the hangar doors-to inform Jacobs that NAVFAC could not "sole-source the door manufacturer at this point" because "[s]ole source justification approvals are required prior to advertising the project." Id.

In early June 2014, Mr. Hoff spoke with Mr. Lagutang at NAVFAC-Marianas about the sole-source justification for Project 3010, and learned for the first time that the Project 3010 J & A had never been signed by NAVFAC. Def.'s Am. Resps. & Objs. To Pl.'s First Set of Interrogatories at p. 2, Def.'s App. Ex. 16 (ECF No. 75-17 ); Hoff Dep. at 119-21. The following day, on June 4, 2014, Layne Hazama of NAVFAC-Pacific directed Jacobs to remove the sole-source design elements from the Project 3027 specifications. Def.'s App. Ex. 17. Later that same day, Mr. Hoff emailed Mr. Hazama, emphasizing that "[t]he government direction, established during [Project 3010] was to sole-source the doors [to Fleming]." Id.

On June 9, 2014, Mr. Lagutang informed Cody Hoff, "Hot off the press ... I guess we're going with sole source after all. Can we coordinate this effort along with the AMU Tanker." Mr. Lagutang testified that this meant he got the J & A verbiage from NAVAC Pacific, not that the J & A had been completed. Id. at 56-57. Mr. Lagutang further testified that as of 6/9/14, sole sourcing the hangar doors to Fleming was not a done deal, and additional steps still needed to be taken on the technical side, and then the J&A had to go through the Navy's acquisition for final approval before it could go up the chain. Id. at 79-81.

Mr. Hoff continued to press NAVFAC for the Fleming sole-source. 6/10/14 Email from Hoff to Hazama, Def.'s App. Ex. 17. On June 20, 2014, one of Fleming's competitors, Industrial Door, sent a letter to NAVFAC protesting Fleming's designation as the sole-source supplier of the hangar doors in the Project 3027 bid documents. Ex. 9 to Horikawa Dep., Def.'s App. Ex. 18 (ECF No. 75-19 ). Mr. Kohn suspected that Industrial Door was interfering with Fleming's sole-source by challenging it with the Navy. Kohn Dep. at 97. On July 2, 2014, NAVFAC announced that the identification of Fleming in the RFP materials was an "error" and that Fleming's name would be removed. Def.'s App. Ex. 19 (ECF No. 75-20 ).

On September 17, 2014, NAVFAC announced to potential bidders that, due to Fleming's participation in the design of the hangar doors, "an apparent Organizational Conflict of Interest exists that would likely preclude Fleming's participation in this effort as either a prime or subcontractor." Ex. 17 to Horikawa Dep., Def.'s App. Ex. 18. NAVFAC advised in Notice 11, "[s]hould any [general] contractor wish to submit a proposal utilizing Fleming," it must "address the apparent OCI in [its] proposal, and provide a detailed explanation with supporting documentation." Id. No general contractors submitted proposals utilizing Fleming. Horikawa Dep. at 50, 58-60. Ultimately, the successful general contractor selected Norco Manufacturing as its subcontractor to design and manufacture the hangar doors for both Guam hangar projects. 5/29/15 Email from P. McQuiston to J. Rosario at NAVFAC, Def.'s App. Ex. 20 (ECF No. 75-21 ).

After failing to receive a subcontract for the hangar doors, in May of 2015, Fleming retained a Washington lobbying firm-O'Brien, Gentry, & Scott (OGS)-to represent it in connection with the hangar door projects. Gentry Dep. at 11-12, Def.'s App. Ex. 21 (ECF No. 75-22 ). For well over a year, OGS corresponded both with the Navy and with Fleming's Congressional representatives requesting, among other things, that the Navy compensate Fleming for its design work on the hangar doors. Kostro Dep. at 9; emails between S. Kostro and C. Bidwell with NAVFAC, Ex. 11 to Kostro Dep. at 5, Def.'s App. Ex. 22 (ECF No. 75-23 ). In January of 2016, the Navy denied Fleming's request for financial compensation. Ex. 11 to Kostro Dep. at 5.

Subsequently, in June of 2016, Fleming commenced this action against Jacobs. Discovery has ended, and Jacobs has moved for summary judgment on all remaining claims. As the motion has been fully briefed, it is ripe for disposition.

IV. DISCUSSION

A. Breach of Contract Claim (Count I)

Jacobs maintains that Fleming's breach of contract claim fails as a matter of law for four independent reasons. First, Jacobs argues that the record is devoid of any evidence of a purported oral contract between Fleming and Jacobs. Second, even if some oral contract existed, it was too indefinite to be enforceable. Third, the doctrine of judicial estoppel bars Fleming's breach of contract claim because it failed to disclose any such contract in its Chapter 11 Disclosure Statement filed with the U.S. Bankruptcy Court for the Western District of Pennsylvania. Fourth, the Jacobs' employees with whom Fleming contends agreed to the oral contract lacked the actual or apparent authority to do so. In addition, Jacobs submits that Fleming's breach of contract claim fails as to Project 3027 because that project did not exist at the time the alleged oral contract was formed. The Court will consider each of these arguments below.

1. Evidence of an Oral Contract

Jacobs argues that the record is devoid of any documentary evidence that an oral contract existed between Fleming and Jacobs. Jacobs submits that none of the thousands of emails or telephone conference memos produced during discovery mention any contract between Jacobs and Fleming. In addition, Jacobs contends that there are no memoranda memorializing the telephone conversation during which Fleming alleges the oral contract was formed, even though Fleming's regular practice is to memorialize important phone calls. Moreover, Jacobs submits that Fleming's own executives-Mr. Rapp and Mr. Gavroy-were unaware of any purported oral contract between Fleming and Jacobs. Finally, Jacobs argues that Fleming failed to inform any third party that it had a "multi-million-dollar" oral contract with Jacobs. Jacobs attempts to discredit Mr. Kohn's deposition testimony, which Jacobs contends is the only possible evidence of an oral agreement, as self-serving, vague and conclusory.

In response, Fleming submits that sufficient evidence exists to allow a jury to decide whether the parties entered into an oral agreement. In support, Fleming points to the Court's previous finding, in its Report and Recommendation on Jacobs' motion to dismiss, that Exhibits 3 through 10 attached to the Amended Complaint provide sufficient factual matter to show the existence of the essential elements of a contract. That, combined with the facts gathered through discovery, demonstrate, according to Fleming, the existence of an oral agreement between it and Jacobs. After reviewing the extensive summary judgment record, the Court agrees with Fleming.

In order to state a claim for breach of contract under Pennsylvania law, Plaintiff must show "(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages." Kaymark v. Bank of Am., N.A. , 783 F.3d 168, 182 (3d Cir. 2015) (quoting Omicron Sys., Inc. v. Weiner , 860 A.2d 554, 564 (Pa. Super. Ct. 2004) ). The essential elements of a contract will be found to exist where (1) "both parties have manifested an intent to be bound by the terms of the agreement," (2) "the terms are sufficiently definite," and (3) there is consideration. Johnston the Florist, Inc. v. TEDCO Constr. Corp. , 441 Pa.Super. 281, 657 A.2d 511, 516 (1995). The agreement shall be considered valid and binding if all three elements exist. Id. (citation omitted). Moreover, "in the case of a disputed oral contract, what was said and done by the parties, as well as what was intended by what was said and done by the parties, are questions of fact to be resolved by the trier of fact." Id. (citing Solomon v. Luria , 213 Pa.Super. 87, 246 A.2d 435 (1968) ).

With regard to government procurement contracts in particular, the Court of Appeals has delineated the following standard/guidelines:

In the attempt to ascertain the outward manifestation of intention expressed by the parties, it is often helpful to consider the general usage or custom prevailing in a given market. See 5 Samuel Williston, supra, § 648, at 1-2 nn. 1-2. We therefore consider "teaming agreements," as that term is normally understood within the context of government contracting. Typically, a teaming agreement is an arrangement whereby a subcontractor will "team" with a company intending to bid on a government contract as a prime contractor in order to pool financial and technical resources. See Northrop Corp. v. McDonnell Douglas Corp. , 705 F.2d 1030, 1037 n. 1 (9th Cir. 1983) ; Experimental Eng'g v. United Tech. Corp. , 614 F.2d 1244, 1245 (9th Cir. 1980) ; Air Tech. v. General Elec. Co. , 347 Mass. 613, 199 N.E.2d 538, 547 (1964) ; see also Colsa Corp. v. Martin Marietta Servs., Inc. , 133 F.3d 853, 854 (11th Cir. 1998). The subcontractor would ordinarily provide technical expertise and assist in the prime contractor's bid submission in return for the prime contractor's promise to award the subcontract. Parties to such a teaming agreement benefit from the arrangement not only as a means of sharing resources, but also as a hedge against the many uncertainties involved in government contracting. In many cases, the finalized subcontract between the parties to a teaming agreement will specifically enumerate the scope of obligations for each party contingent upon the prime contractor winning the RFP so that there is usually little need to enforce the teaming arrangement itself. Often, however, the parties may reach an understanding to team, but fail to execute a subcontract as anticipated in the teaming agreement. See McDonnell Douglas , 705 F.2d at 1037 ; Experimental Eng'g , 614 F.2d at 1245 ; Air Tech. , 199 N.E.2d at 548. As with most other "preliminary agreements" precedent to an executed contract, see generally E. Allan Farnsworth, Precontractual Liability and Preliminary Agreements: Fair Dealing and Failed Negotiations , 87 Colum. L.Rev. 217 (1987), the question arises whether the teaming agreement itself, absent an executed subcontract, may constitute the basis for contractual liability. Courts have generally allowed such a cause of action in contract based solely on the teaming agreement, see Brent E. Newton, Note, The Legal Effect of Government Contracting Teaming Agreements: A Proposal for Determining Liability and Assessing Damages in Event of Breach , 91 Colum. L.Rev.1990, 2010-13 (1991) (collecting cases), but not without overcoming two major obstacles: (1) the intent of the parties to enter into a binding contractual relationship; and (2) the existence of sufficiently objective criteria to enforce. See, e.g., Allen & Co. v. Occidental Petroleum Corp. , 382 F.Supp. 1052, 1057 (S.D.N.Y. 1974), aff'd , 519 F.2d 788 (2d Cir. 1975).

These two factors for consideration closely track the general elements of contract formation. For instance, it is well established that evidence of preliminary negotiations or a general agreement to enter a binding contract in the future fail as enforceable contracts because the parties themselves have not come to an agreement on the essential terms of the bargain and therefore there is nothing for the court to enforce. See Goldman v. McShain , 432 Pa. 61, 247 A.2d 455, 458 (1968) ; Reich v. Vegex, Inc. , 51 F.Supp. 99, 103 (E.D. Pa. 1942) (applying Pennsylvania law) ; 1 Joseph M. Perillo, Corbin on Contracts § 2.8(a), at 131-34 (Rev. ed.1993). Conversely, it is equally well established in contract law that an agreement with open terms may nevertheless constitute an enforceable contract. See Carlos R. Leffler, Inc. v. Hutter , 696 A.2d 157, 163 (Pa. Super. Ct. 1997) ; 1 Joseph M. Perillo, supra , § 2.8, at 138-39; cf. Uniform Commercial Code § 2-311(1) ("An agreement for sale which is otherwise sufficiently definite ... to be a contract is not made invalid by the fact that it leaves particulars of performance to be specified by one the parties."). With teaming agreements, courts are particularly sensitive to what the parties intended in agreeing to "team"-that is, searching for sufficiently definite terms for enforcement other than the simple promise to enter into a subcontract at a later date-and whether that teaming agreement was intended to bind the parties during the various stages of government contract procurement. See, e.g., Occidental Petroleum , 382 F.Supp. at 1057 ; Air Tech. , 199 N.E.2d at 547-48.

The fact that the parties never finalized an implementing subcontract is usually not fatal to enforcing the teaming agreement on its own-if the parties intended the teaming agreement itself to constitute a binding agreement that enumerated definite terms of behavior governing the parties during, or even after, the bidding process. See, e.g., Air Technology Corp. , 199 N.E.2d at 547-48 ; Experimental Eng'g , 614 F.2d at 1246-47 ; but see W.J. Schafer Assocs., Inc. v. Cordant, Inc. [254 Va. 514], 493 S.E.2d 512 (Va. 1997) (teaming agreement standing alone did not create any binding obligations). Such terms might include the subcontractor's assistance in the prime contractor's proposal in return for the prime contractor's delivery of an agreeable subcontract. See Experimental Eng'g , 614 F.2d at 1246. Or, the parties might promise to work exclusively with each other in preparing the bid for the government contract. See McDonnell Douglas , 705 F.2d at 1038-38. Of course, if the parties to a teaming agreement do not wish to create binding obligations before executing an ultimate subcontract, they need only say so. See 1 Joseph M. Perillo, supra , § 2.9.

ATACS Corp. v. Trans World Comm'ns, Inc. , 155 F.3d 659, 666-67 (3d Cir. 1998). The court of appeals observed that Pennsylvania had not explicitly recognized the validity of teaming agreements as enforceable contracts, but concluded that Pennsylvania "would recognize a teaming agreement as an enforceable contract provided that the parties intended to be bound by the teaming arrangement and the agreement contains sufficient terms for enforcement." Id. at 667.

With these precepts in mind, the Court will consider whether sufficient evidence exists from which a reasonable jury could find that an oral teaming agreement existed between Fleming and Jacobs.

2. Manifestation of an Intent to be Bound by the Oral Agreement

Although Jacobs is correct that the record does not contain any documentary evidence in which the parties specifically used the term "contract" or "agreement" with regard to their teaming arrangement on the hangar doors, that is not dispositive of whether an oral contract was formed between them. Rather, the record does contain several emails, a telephone conference memo and deposition testimony from which a reasonable jury could infer that the parties intended to enter into a teaming agreement.

For example, the record contains a Fleming telephone memo regarding Mr. Kohn's telephone call with Mr. Surles and Mr. Hoff, Jacobs' employees, on May 24, 2011. See Def.'s App. Ex. J to Kohn Dep. (ECF No. 75-6 at 56 ). In that telephone memo, Mr. Kohn writes that he informed Surles and Hoff that after reviewing the materials that Jacobs had provided to Fleming, Fleming determined that the initial concept Jacobs presented would not work, and as a result, the engineering assistance Jacobs was requesting was extensive and would require more work than Fleming could afford to do for free. Mr. Kohn further noted that Surles and Hoff understood but were very concerned about doing this as a "D-B"-a design-build-and the project was further complicated because of classified design criteria. Mr. Kohn goes on to note that:

Told them [Fleming] was not interested in just being the design engineer-we're a manufacturer. Said that because this door sys was so unique the Govt. should lean toward sole source-Cody and Chris agreed. Told them that Fleming would continue and complete the design work as a team member if we were sole sourced to provide the doors. Cody agreed and would talk with Govt. Felt sure he could get it done. We'll await word.

Id. At his deposition, Mr. Kohn recalled a telephone conference that occurred sometime within a couple of weeks of the May 24, 2011 telephone conference, during which Jacobs promised that Fleming would be sole-sourced for Project 3010. Kohn Dep. at 116. In relevant part, Mr. Kohn testified:

Q: [I]s it your testimony that there was a particular call that you had with Jacobs personnel in which a contract was reached?

A: I don't know if you can call it a contract, per se, in the fact that we've had many calls. Any when they finally came back said, we'll get you sole sourced, we need this design, and I agreed to go ahead and finish the design work. And that was the only reason I pursued it, was because I was told, we will get you the sole sourcing.

...

Q: And what precise words do you remember the Jacobs personnel, people, using in terms of indicating to you that Fleming would be sole sourced?

A: To the best of my recollection it was, "we will get you sole sourced."

Q: And you understood that to mean that Jacobs was telling you that they would get NAVFAC to sole source Fleming Steel for the projects (sic)?

A: They would get it done, yes.

...

Q: Tell me everything you remember about that phone call.

A: I just did. They called, they wanted to know if we were proceeding. I said, no, I cannot proceed any further. I've got to have some assurances. We'll get you the sole source, period. And I said, okay, fine, I'll commit my resources to it.

...

Q: Now, based on the documents produced in discovery by both sides, I don't see any e-mail confirming any contract between Fleming Steel and Jacobs. Have you seen one?

A: No.

Q: Okay. Is that consistent with your recollection that you didn't send any kind of confirmatory e-mail to Jacobs about this phone call?

A: No. Our actions were confirmatory as far as I was concerned. We proceeded and they accepted.

Kohn Dep. at 116-118.

On July 22, 2011, Mr. Hoff emailed Jim Brokaw of ARA stating, "Fleming has reached the end of the financial donation to the project. They asked if we could discuss a sole source to them from the government due to this being the first door of this kind and the sensitive nature of the load data. Jacobs supports this stand, unless you feel we can write a performance spec based on eh (sic) current concept that can be competitively bid, which would have to include the load data." Hoff email dated 7/22/11, Pl.'s App. Ex. K (ECF No. 87-11 ). Thereafter, as promised, Mr. Hoff contacted Mr. Lagutang at NAVFAC on 7/25/11 via email to request a sole source justification for the hangar doors. See Hoff email dated 7/25/11, Def.'s App. Ex. 8 (ECF No. 75-9 ).

In addition, several emails were exchanged between Mr. Surles or Mr. Hoff and Mr. Kohn regarding the status of getting Fleming sole-sourced on the hangar doors. In the July 29, 2011 email from Mr. Surles to Mr. Kohn, Mr. Surles states: "Per our recent conversation, Cody [Hoff] has discussed with [NAVFAC] the possibility of using Fleming as a sole source for the Hangar Doors. [NAVFAC] is in favor of providing this due to the uniqueness of the design, the confidentiality of the blast criteria, and the required finished product compared to competitively bidding the doors. [NAVFAC] is in the process of running this through contracting, so hopefully they can get it approved." Pl.'s App. Ex. F (ECF No. 87-6 ). Mr. Rapp, Vice President of Operations for Fleming, testified that this email was consistent with his recollection that the Navy had not yet approved Fleming to be sole sourced as of July 29, 2011, but was leaning heavily in that direction. Rapp Dep. at 17-18, Def.'s App. Ex. 23.

In addition, in the September 12, 2011 email from Surles to Kohn, Mr. Surles states: "NAVFAC has agreed to the sole sourcing ...." Pl.'s App. Ex. B. Mr. Rapp testified that when he read that email, his understanding was that the "U.S. Navy had agreed to the sole sourcing and were looking for a rough order of magnitude." Rapp Dep. at 16.

Jacobs attempts to argue that Mr. Gavroy, Flemings' principal engineer on the hangar doors project, testified that as of 2011 a contract did not exist between Jacobs and Fleming, citing Gavroy Dep. at 50:20-22. However, Mr. Gavroy's actual testimony does not support Jacobs' argument. When the entire testimony is reviewed, it is clear that Mr. Gavroy is referring to the subcontract with the Government for the manufacturing of the hangar doors:

Q: And what is your understanding as to why Al Sullivan is suggesting, "If we could get the Contractor/Navy to buy off, could we work the contract that we go ahead and design the door and fabricate it early"?

A: I think at this point in time, engineering wasn't very busy, so Al is saying, well, if we're going to actually produce this door, why don't we start working on it now. And I think that was no, we're not going to do that until we get a contract, which is usually the way it goes.

Q: So you did not have a contract at this point?

A: No. And this would have been on the full-scale door, not the mock up.

Gavroy Dep. at 50. Moreover, the evidence suggests that neither Mr. Gavroy nor Mr. Rapp would have any knowledge of whether an oral teaming agreement existed between Fleming and Jacobs, since Mr. Kohn was exclusively responsible for contract negotiations with Jacobs. Kohn Decl. ¶ 9. With regard to his understanding of how Fleming would be compensated for its work on the hangar door design and specifications in 2011, Mr. Gavroy testified that he was under the impression that Fleming was sole-sourced and they were going to be doing all the work and providing the doors. Gavroy Dep. at 70.

Moreover, the emails and deposition testimony of Jacobs' own employees-Messrs. Klein, Hoff, and Surles-provide evidence from which a reasonable jury could infer that an oral teaming agreement existed between Fleming and Jacobs. See, e.g. , Klein email dated 5/6/11 to Jim Brokaw with ARA, Pl.'s App. Ex. J (indicating Klein is "in pursuit with Fleming to develop OPTION 2"); Klein email dated 5/9/11, Pl.'s Ex. J (requesting Fleming's assistance in developing Option 2); Hoff Dep. at 40, Pl.'s App. Ex. FF (Jacobs was searching for "the best design solution for our clients as possible ... [and was] turning to Fleming because of Fleming's particular expertise in development of hangar doors."); Surles email dated 5/20/11, Pl.'s App. Ex. G (attaching details on the hangar door and thanking Fleming for "working with us to develop a solution."); Gavroy Dep. at 31-35 & various emails between Gavroy & Surles, Exs. 6-9 to Gavroy Dep., Def.'s App. Ex. 7 (Jacobs and Fleming collaborated to develop hanger door concept designs, including designs for the hangar door head, during May, June and July 2011); Hoff Dep. at 69-70 (Hoff supported sole-sourcing to Fleming; it was a means for compensating Fleming for its continued design work on the hangar doors); Hoff's Meeting Notes, Pl.'s App. Ex. S (ECF No. 87-19 ) (noting no permission to use proprietary details in RFP without sole-source). In addition, the fact that Hoff continued to press the NAVFAC to approve sole-sourcing to Fleming, even as late as 2014, raises the inference that Jacobs knew it would be in breach of its teaming agreement to get Fleming sole-sourced if NAVFC did not approve the sole-sourcing.

In ATACS Corp. , the Court of Appeals found that the parties had entered into an oral teaming agreement, based on various letters exchanged between the parties indicating their intent to team and work exclusively with each other in preparation for the RFP. 155 F.3d at 668. The evidence also showed that the prime contractor represented to the government that the plaintiffs constituted part of the "team" that would undertake the project under its auspices as prime contractor. Id. As such, the Court of Appeals concluded that the plaintiffs met their burden of establishing an intent to be bound by the terms of the teaming agreement during the negotiations for a subcontract to be executed by the parties. Id. Similarly here, a reasonable jury could conclude from the parties' discussions and emails, and Jacobs' representations to NAVFAC, that Jacobs needed Fleming's expertise to come up with the design and specifications for the hangar doors and Fleming agreed to help in exchange for Jacobs agreeing to sole source the manufacturing of the hangar doors to Fleming and obtaining NAFVAC's approval of Fleming as the sole source for the hangar doors. As such, a reasonable jury could find that they manifested their mutual assent to be bound by their oral teaming agreement.

The existence of a teaming agreement between Fleming and Jacobs is also supported by the Massachusetts Supreme Judicial Court's decision in Air Technology Corp. v. General Electric Co. , 347 Mass. 613, 199 N.E.2d 538 (1964), cited by the Third Circuit in ATACS Corp., supra . In Air Technology , the defendant sought plaintiff's research and design assistance in obtaining and carrying out a prime contract for a largely unspecified, untested nuclear detection system, in exchange for defendant obtaining Air Force approval of plaintiff as a sole source for the nuclear detection system. 199 N.E. 2d at 543-44, 546-47. Although defendant included plaintiff in the formal proposal to the Air Force, it made no effort after that to obtain Air Force approval of plaintiff as the sole source. Id. at 623, 199 N.E.2d 538. The court found that both defendant and plaintiff had made substantial contributions to the team in time and expenditure, and risked the value of their preliminary work. Id. at 625, 199 N.E.2d 538. Even though their relationship was not a joint venture, the Court held that the defendant may be held to its contractual responsibilities to plaintiff as a team member. As such, by failing to press for plaintiff's continued participation in the program and offering the work for competitive bid, the Court concluded that defendant had breached its duties to plaintiff. Id. at 626, 199 N.E.2d 538.

Despite the evidence cited above suggesting the existence of a teaming agreement, Jacobs argues that after Fleming learned in 2014 that it would not be sole-sourced for the Projects, Fleming never invoiced Jacobs for amounts supposedly due under the alleged oral contract, and that somehow demonstrates that an oral agreement did not exist between them. While it is undisputed that Fleming initially pursued compensation from the Navy over its loss of the sole-sourcing on the hangar doors, when it was unsuccessful, Fleming then sought compensation from Jacobs. Fleming's choice to seek compensation from the Navy first was a legal strategy and does not alone automatically lead to the conclusion that it did not believe it had any legal recourse against Jacobs.

Jacobs also proffers Mr. Kohn's failure to mention the oral contract between Fleming and Jacobs to third parties, such as Stephanie Kostro of OGS (Washington lobbying firm hired by Fleming), as evidence that the oral agreement did not exist. This may be a factor that the jury deems relevant, but there is also evidence contained in the record to suggest otherwise. For example, the following evidence suggests that Ms. Kostro was aware of the teaming arrangement between Fleming and Jacobs. First, the letter from Cindy Readal, with the Department of the Navy, to Congressman Mike Kelly dated September 2, 2016 refers to Ms. Kostro's previous discussions with the Navy regarding the sole-sourcing issue and the use of information provided by the Navy in Fleming's future negotiations with Jacobs to resolve their dispute. Readal Letter dated 9/2/16, Pl.'s App. Ex. E (ECF No. 87-5 ). Second, a series of emails exchanged between Ms. Kostro and various Navy personnel indicates that she was actively negotiating with them as early as June 24, 2015 on Fleming's behalf. See Pl.'s App. Ex. H (ECF No. 87-8 ). In addition, James Gentry, a partner in OCG who supervised Ms. Kostro, testified that at Mr. Kohn's request, he reviewed all of the documents to obtain an understanding of what Fleming's interaction with the Navy and Fleming's interaction with Jacobs was, in order to determine how Fleming may seek some resolution of the situation. Gentry Dep. at 12, Def.'s App. Ex. 21 (ECF No. 75-22 at 13 ).

In addition to Kostro and Gentry, the evidence shows that Fleming informed two other third parties-Senator Toomey and Congressman Kelly-that it was engaged by Jacobs and the Navy to assist in developing the design for the large Blast Hangar Doors in return for Fleming being designated as the sole source. See Fleming's Correspondence to Sen. Toomey dated 6/8/14, Ex. H attached to Kohn's Dep., Def.'s App. Ex. 5 (ECF No. 75-6 at 50-55 ); Readal's Letter, Pl.'s App. Ex. E. See also Capital Improvements - Information Paper dated 7/17/14, Pl.'s App. Ex. P (ECF No. 87-16 ). Thus, given this contradictory evidence, the question of whether Mr. Kohn informed third parties of the existence of the alleged oral contract is best resolved by the jury.

Finally, Jacobs' assertion that Kohn's deposition testimony, which is the only possible evidence of an oral agreement, is self-serving, vague and conclusory, and is belied by the evidence cited above.

Viewing the entire record and giving Fleming the benefit of all favorable inferences, the Court finds that a reasonable jury could find a teaming agreement was formed between Fleming and Jacobs.

3. Whether the Oral Contract is Too Indefinite to be Enforced

Jacobs next argues that if an oral agreement was formed, which it disputes, its terms were too indefinite to be enforceable. According to Jacobs, the only evidentiary support for the alleged oral contract is Mr. Kohn's deposition testimony, which falls short of establishing an enforceable contract. Jacobs contends that Mr. Kohn's description of the alleged contract is so vague that its most basic terms are left to speculation.

Fleming counters that the terms of their oral agreement are not vague, but are readily determinable from the contemporaneous evidence. In support of its argument, Fleming points to evidence in the record, e.g. , the 5/9/11 Klein email (Pl.'s App. Ex. J), Hoff Dep. at 68-72, and the Kohn Dep. at 115-117, that shows the scope of the work to be performed-Fleming would provide to Jacobs design plans and specifications for the hangar doors that complied with the blast-rated requirements in the Navy Delivery Order-and the consideration-Jacobs promised to obtain a sole-source designation for Fleming from the Navy.

After reviewing the record evidence, the Court finds that the terms of the teaming agreement are sufficiently definite to be enforceable. In determining whether an agreement contains sufficiently definite terms, Pennsylvania has adopted the RESTATEMENT (SECOND) OF CONTRACTS § 33 (1981). Ecore Int'l, Inc. v. Downey , 343 F.Supp.3d 459, 487 (E.D. Pa. 2018) (citing Reed v. Pittsburgh Bd. of Pub. Educ. , 862 A.2d 131, 135 (Pa. Commw. Ct. 2004) ). The Restatement provides:

(1) Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain.

(2) The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.

(3) The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance.

RESTATEMENT (SECOND) OF CONTRACTS § 33 (1981). "[T]he omission of an essential term in a contract, such as price, does not vitiate contract formation if the parties otherwise manifested their mutual assent to the agreement and the terms of that agreement are sufficiently definite." ATACS Corp. , 155 F.3d at 667 (citations omitted). "However, '[w]here ... there is no agreement or even a discussion as to any of the essential terms of an alleged bargain, such as time or manner of performance, or price or consideration, the 'agreement' is too indefinite for a party to reasonably believe that it could be enforceable in an action at law.' " Ecore Int'l , 343 F.Supp.3d at 489 (quoting Lackner v. Glosser , 892 A.2d 21, 31 (Pa. Super. Ct. 2006) ) (italics in original).

Here, as described in detail in Section 1.a. above, the record evidence suggests that the terms of the teaming agreement provide an adequate basis for determining whether a breach has occurred and an appropriate remedy. From this evidence and other evidence in the record, a reasonable jury could find that as a result of Jacobs' failure to get Fleming sole sourced on the hangar doors, Fleming was deprived of a valuable business opportunity for the manufacture of the hangar doors. Thus, the terms of the teaming agreement are sufficiently definite for enforcement and provide a basis for fashioning a suitable remedy.

4. Judicial Estoppel Doctrine

Jacobs argues that the doctrine of judicial estoppel provides another basis for finding that Fleming's breach of contract claim fails as a matter of law. Specifically, Jacobs argues that Fleming is judicially estopped from asserting the existence of an oral contract in this case because it failed to disclose any such contract in its November 2011 Disclosure Statement filed with the U.S. Bankruptcy Court. Jacobs submits that the Disclosure Statement required Fleming to list all leases and executory contracts to which Fleming was a party as of that date-November 14, 2011. By failing to do so, Fleming has taken irreconcilably inconsistent positions with its breach of contract claim in this case.

In response, Fleming counters that Jacobs grossly misunderstands bankruptcy law, as only ongoing contracts existing at the time the bankruptcy petition was filed had to be disclosed. Since the oral agreement between Fleming and Jacobs did not exist on April 4, 2011 when the bankruptcy petition was filed, Fleming submits that it was not required to list its oral contract with Jacobs in any of its bankruptcy filings.

Judicial estoppel was first articulated by the Court of Appeals in Scarano v. Central Railway Co. of New Jersey , 203 F.2d 510, 513 (3d Cir. 1953), in which the court stated that " 'a plaintiff, who has obtained relief from an adversary by asserting and offering proof to support one position, may not be heard later in the same court to contradict himself in an effort to establish against the same adversary a second claim inconsistent with his earlier contention.' " Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. Gen. Motors Corp. , 337 F.3d 314, 319 (3d Cir. 2003). Since its decision in Scarano , the Court of Appeals has consistently opined that judicial estoppel should only be applied to avoid a miscarriage of justice. Id. (citations omitted). The Court of Appeals identified three criteria for determining whether judicial estoppel should be applied:

First, the party to be estopped must have taken two positions that are irreconcilably inconsistent. Second, judicial estoppel is unwarranted unless the party changed his or her position "in bad faith -i.e., with intent to play fast and loose with the court." Finally, a district court may not employ judicial estoppel unless it is "tailored to address the harm identified" and no lesser sanction would adequately remedy the damage done by the litigant's misconduct.

Id. at 319-20 (quoting Montrose Med. Group Participating Savings Plan v. Bulger , 243 F.3d 773, 779-80 (3d Cir. 2001) ) (emphasis added in original).

The Court finds no merit to Jacobs' argument that Fleming was required to list the oral agreement on its Disclosure Statement because the oral contract was "presently known" to Fleming at that time. Jacobs cites several non-precedential cases for the proposition that a debtor in bankruptcy has duty to disclose all assets and interests in property, and this duty continues throughout the case, thus requiring the debtor to amend its forms and schedules whenever necessary to insure the accuracy and reliability of the information disclosed. These cases are inapposite, however, to the instant matter, because the debtors omitted or failed to adequately disclose assets or claims that existed at the time the bankruptcy case was initiated. In the instant matter, the oral