Lockheed Martin Aeronautics Company ( 2022 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
Lockheed Martin Aeronautics Company ) ASBCA No. 62209)
Under Contract No. FA8625-07-C-6471 )
APPEARANCES FOR THE APPELLANT: Stephen J. McBrady, Esq.
J. Chris Haile, Esq.
Skye Mathieson, Esq.
Michelle D. Coleman, Esq.
John Nakoneczny, Esq.
Crowell & Moring LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq.
Deputy Chief Trial Attorney
Caryl A. Potter, Esq.
Lawrence M. Anderson, Esq.
Kyle E. Gilbertson, Esq.
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE PAGE ON THE PARTIES’
CROSS-MOTIONS FOR SUMMARY JUDGMENT
This appeal, made under the Contract Disputes Act of 1978, 41 U.S.C.
§§ 7101-7109 (CDA), arose from the $143,529,290 claim brought by Lockheed Martin
Aeronautics Company (Lockheed Martin, LMA, LM, appellant, or contractor) against the
Air Force (Air Force, USAF, government, or respondent). The underlying contract
required the contractor to provide a set of upgrades to certain C-5 Galaxy aircraft.
Appellant seeks to recover for costs associated with allegedly excessive “over and above”
(O&A) work for particular airplanes and cumulative impacts based upon the “measured
mile” legal theory. This decision addresses the government’s motion for summary
judgment (gov’t mot.) and appellant’s six cross-motions for summary judgment, 1 which
focus upon whether LMA’s October 15, 2018 claim was timely. We grant appellant’s
2nd and 3rd cross-motions, 2 but emphasize that we do not reach the merits of its claim.
1
Lockheed Martin’s first through sixth cross-motions are identified as its 1st cross-motion,
2nd cross-motion, etc.
2
The Board previously granted appellant’s motion for partial summary judgment and
struck the government’s affirmative defense of laches; see Lockheed Martin
Aeronautics Co., ASBCA No. 62209, 21-1 BCA ¶ 37,886. The Board on
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
The Contract
1. On April 30, 2007, the Air Force awarded Contract No. FA8625-07-C-6471,
the “Reliability Enhancement and ReEngining Program” (RERP) to Lockheed Martin
(R4 3, tab 3). The contractor was required to provide a set of upgrades to each of
49 government-owned C-5 Galaxy aircraft. This included the installation of new
CF6-80C2 commercial engines and other enhancements to subsystems and major
components; the work was done under mostly fixed-price contract line items (CLINs).
(Id. at 3-13) The C-5 Galaxy is the largest military transport aircraft in the United States
government’s fleet (complaint ¶ 10).
2. The 49 RERP aircraft to be reworked were informally designated by the
parties as P-1 through P-49 (Joint Stipulation of Fact (JSF) 1). 4 These aircraft were
grouped into seven lots comprised of varying numbers of planes for the RERP work.
The 21 aircraft at issue in this appeal are aircraft P-7 through P-27; these were part of
Lots 3, 4, and 5. (R4, tab 2 at 3 n.1; JSF 2)
3. The total amount of the contract was “NTE [not to exceed] $23,000,000”
(R4, tab 3 at 2). The contract incorporated by reference Federal Acquisition
Regulation (FAR) 52.233-1, DISPUTES (JUL 2002) – ALTERNATE I (DEC 1991)
(id. at 35). It also contained FAR 52.243-01, CHANGES – FIXED-PRICE
(AUG 1987), which applied “to Firm-Fixed-Price CLIN(s), Fixed-Price Incentive
(Firm Target) CLIN(s) only” as well as FAR 52.243-03, CHANGES – TIME-AND-
MATERIALS OR LABOR-HOURS (SEP 2000), which applied “to Time-and-
Materials [T&M] CLIN(s) only” (id. at 36).
October 26, 2021 granted appellant’s third motion to compel; see Lockheed
Martin Aeronautics Co., ASBCA No. 62209, 21-1 BCA ¶ 37,891. Although
the Board finds adequate evidence in the existing record to decide the instant
motions, the latter decision should facilitate a more amicable resolution of the
parties’ discovery disagreements.
3
References to “R4” indicate submissions included in the government’s Rule 4 file.
Those to “app. supp. R4” designate those documents furnished by the appellant.
4
The JSF were proposed findings presented in the government’s motion for summary
judgment (see gov’t mot. at 1-8). In its opposition and cross-motions for summary
judgment (app. opp’n and mot.), Lockheed Martin stated that, for purposes of its
1st-cross-motion, it “accepts as true and adopts the factual (non-legal) assertions in
[the] Air Force[’s] ‘Undisputed Material Facts’” at “¶¶ 1-3, 5-6, and 8-20, as set
forth” in the government’s motion (id. at 11). We treat these agreed-upon
proposed findings as joint stipulations of fact, identify the JSF by the paragraph
number used in the government’s motion, and adopt these JSF as our findings to
the extent we determined these are supported by the record.
2
4. The contract included the full text of clause B036 CONTRACT TYPE:
TIME-AND-MATERIALS (FEB 1997) (TAILORED):
(a) The Contractor shall furnish at the hourly rates stated
below, all necessary and qualified personnel, managing
and directing the same to complete all T&M CLINS within
the performance period specified in Section F. In
performance of these CLIN(s), Contractor shall be
reimbursed for direct labor (exclusive of any work
performed in an unpaid overtime status) at the hourly rates
listed in Section J as an attachment.
CATEGORIES HOURLY RATE
Rates will be established each year and incorporated into
the contract as an attachment.
(b) For the purposes of the clause of this contract entitled
“Payments Under Time-and-Material and Labor-Hour
Contracts,” the total ceiling price of the CLIN(s) specified
in paragraph (a) above is $0.00. Applies to [T&M]
CLIN(s) only.
(R4, tab 3 at 14)
5. Contract clause FAR 52.243-07, NOTIFICATION OF CHANGES
(APR 1984) provided in ¶ (b) that the “Number of calendar days is (insert 30 for
RDSS/C) ‘30 days.’” Although the contract incorporated this clause by reference,
when this paragraph is read in full with the insertion, it provides in relevant part:
(b) Notice. The primary purpose of this clause is to obtain
prompt reporting of Government conduct that the
Contractor considers to constitute a change to this contract.
Except for changes identified as such in writing and signed
by the Contracting Officer [CO], the Contractor shall
notify the Administrative Contracting Officer [ACO] in
writing promptly, within [30] calendar days from the date
that the Contractor identifies any Government conduct
(including actions, inactions, and written or oral
communications) that the Contractor regards as a change to
the contract terms and conditions.
(R4, tab 3 at 36)
3
6. Contract Modification No. P00178, which has an effective date of
November 6, 2012, did not increase the contract price (R4, tab 7 at 1). The
modification contained the following release of claims by the contractor:
3. This Supplemental Agreement constitutes a full and
equitable adjustment between the Government and the
Contractor arising out of or in connection with all C-5
RERP Production Schedule impacts, including the pylon
sheer plate, improperly manufactured tower fitting, LM
Aero manufacturing manning needs, etc., to the date of this
Supplemental Agreement execution except for the issues
associated with the Bucket Engineering Change Proposal
(ECP) 12-00012A, that LM Aero is preparing. The
“Bucket ECP” will address the cost impact of those issues;
however the Contractor will not seek any further
adjustments to the C-5 RERP Production Schedule. Once
fully executed, the “Bucket ECP” (ECP 12-00012A) effort
and this Supplemental Agreement (P00178) will constitute
a full and equitable adjustment between the Government
and the Contractor and release all parties from liability
under the contract for further claims or equitable
adjustments arising out of or in connection with any past
legacy issues, runway closure, the aircraft cut wire, DCMA
[Defense Contract Management Agency] flight crew
availability, and/or DCMA additional inspection
requirements in addition to the issues discussed in
Paragraph 1 of this contract modification.
(Id. at 20-21) (underlining added)
7. Modification No. P00178 was a supplemental agreement with the primary
purpose of rebaselining the RERP production and delivery schedule for Lot 2,
aircraft 2 (P-3) through Lot 7, aircraft 11 (P-49), with no change in contract price (R4,
tab 7 at 1, 3). Other than the specific changes set forth in Modification No. P00178,
the parties expressly agreed that “All other contract terms and conditions remain
unchanged and in full force and effect as a result of this modification” (id. at 3;
see also JSF 19). We find that appellant’s release of claims in this modification was
retrospective to (and inclusive of) November 6, 2012.
8. In addition to fixed-price RERP modernization work, the contract also
required Lockheed Martin to perform O&A repair work for the aircraft under other
CLINs, which were entitled “Rapid Repair and Response” or “R3.” This work is
shown in CLINs 1005, 2005, 3005, and 4005 (R4, tab 3 at 6, 9, 11, 13). O&A repair
work was performed on a T&M basis until April 25, 2013. Thereafter, it was done on
4
a cost-plus-fixed-fee [CPFF] basis pursuant to Contract Modification No. P00182.
(R4, tab 10; JSF 3)
9. The contract’s “Statement of Work (SOW)” for the “Low Rate Initial
Production (LRIP) for the C-5M” efforts for Lots 1, 2, 3, and 4 is dated April 30, 2007
(R4, tab 3 at 1, 73). The SOW provided at ¶ 3.1.2:
3.1.2 Aircraft Modification
The Contractor shall provide all necessary facilities and
services required to modify the C-5 aircraft to the C-5M
configuration in accordance with this Statement of Work.
Systems, processes and staffing requirements used to build
the SDD 5 aircraft shall form the baseline for the first
production vehicle. Improvements and changes to
systems, processes, and staffing requirements shall be
incorporated as required to ensure conformity to the
technical baseline as defined in Section H, Clause H100.
The Contractor shall maintain a Manufacturing Plan that
reflects the C-5M work flow. Any work required to bring
the aircraft to flight worthiness that is beyond the scope of
this contract shall be accomplished on a Rapid Repair &
Response (R3) basis, in accordance with the R3 clause,
H106, or other mutually agreeable contractual
arrangement.
(Id. at 75) (underlining added)
10. The original contract did not contain a “Lot 5” (see, e.g., R4, tab 3 at 5-13).
In bilateral Contract Modification No. P00166 dated October 19, 2012 (app. opp’n and
mot. at 73-87), the parties “incorporate[d] by reference, Contract Change Proposal
(CCP) 11-00159, C-5 RERP Lot 5 Installations and to incorporate [CLIN] 5004 for
Lot 5 Installations” (id. at 75). The parties executed Modification No. P00196 on
December 20, 2012, which first established a T&M O&A CLIN for Lot 5 (app. supp.
R4, tab 186 at 1).
11. Contract Modification No. P00182, which became effective on April 25,
2013, increased the contract price to $45,651,026, and converted work being done
under the H106 clause from a T&M basis to a CPFF basis (R4, tab 10 at 1). This
5
“SDD” is an acronym for “System Development and Demonstration”; see, e.g., R4,
tab 3 at 22. The parties previously had entered into an SDD contract for the
upgrade of certain aircraft (complaint ¶ 13).
5
modification established new CPFF CLINs for the O&A work, including CLIN 3020
for Lot 3, CLIN 4025 for Lot 4, and CLIN 5021 for Lot 5 (see, e.g., id. at 4-10).
12. Modification No. P00182 also amended the contract to “incorporate the
revised special contract requirement H106 Clause ‘Rapid Repair and Response (R3)
for C-5 Modernization (MAR 2013).’” The modified clause reads in relevant part:
H106 RAPID REPAIR AND RESPONSE (R3) (MAR 2013)
A. The below R3 procedures will be utilized for R3 efforts
submitted on or before 28 Apr 2013 and those efforts being
completed or reworked associated with those R3 MDR
[Manufacturing Deficiency Report] efforts. New R3 efforts
will utilize the procedures in Paragraph B:
....
3. WORK REQUESTS:
A. The Contractor shall prepare and submit a work request
to notify the [ACO] or his/her authorized representative of
a legacy discrepancy that requires repair. The ACO or
his/her authorized representative will review the work
request to determine whether the work is within the general
scope of the R3 CLIN. The Government reserves the right
to question any work request that does not appear to be
reasonable. Upon Government determination that it is
appropriate to accomplish the work under the R3 CLIN(s),
the Contractor shall perform the work described on the
work request. The Contractor shall not be bound by
individual work request hours, but the cumulative actual
cost of labor and materials shall not exceed the NTE
amount established in the applicable R3 CLIN(s).
Contractor performance of work approved by the ACO or
his/her authorized representative is subject to availability
of funds on the applicable R3 CLIN.
....
F. If an R3 activity causes an increase or decrease in the
cost of, or the time required for, performance of any part of
work under this contract, the [CO] will make an equitable
adjustment in the contract prices, the delivery schedule, or
both. The Contractor shall assert its right to an equitable
6
adjustment under this paragraph within 90 days from
completion of the R3 activity that the Contractor believes
causes an increase in cost or schedule. The right to an
equitable adjustment shall be the Contractor's exclusive
remedy and the Government shall not be liable to suit for
breach of contract for actions accomplished in accordance
with the R3 clause. Failure to agree to an adjustment shall
be a dispute under the Disputes clause. Nothing in this
clause, however, shall excuse the Contractor from
proceeding with the contract as changed.
(R4, tab 10 at 12-13)
13. In accordance with Contract Modification No. P00301, effective
September 30, 2014 (R4, tab 12 at 1), “Category 2” MDRs were identified as those
“Legacy condition repairs meeting the criteria of the scope of the H106 Clause and
charged against the O&A CLIN” (id. at 9).
Contract Performance
14. In the induction phase, LMA received the aircraft at its facility in Marietta,
GA and prepared to do the work. The government and the contractor then inspected
the planes to assess what work was needed. (R4, tab 2 at 13; complaint ¶¶ 59, 62)
15. As of October 15, 2012, only P-1 through P-5, the first five aircraft to be
repaired, had been delivered to the government (app. opp’n and mot., ex. 1
(declaration of Kaitlin E. Hill 6)).
16. Nine aircraft (P-6 through P-14) had been inducted by October 15, 2012
and were undergoing varying stages of work under the contract. All of these aircraft
had Category 2 MDRs that were ordered or approved on or after that date. (App.
opp’n and mot., ex. 1)
17. Lockheed Martin could not identify the extent of the need for legacy
repairs before the aircraft were inducted. Even after induction, many legacy issues
could not be detected until various areas of the aircraft were opened up during the
6
Ms. Hill, who was a Financial Analyst for appellant, provided data on the contract
that was obtained from Lockheed Martin’s information management systems
(app. opp’n and mot., ex. 1).
7
process of performing the RERP upgrade work and post-upgrade testing. (App. opp’n
and mot., ex. 2 (declaration of John Ferentinos 7))
18. O&A work was approved by the government after the need was identified
by the parties during inspections, test phases, and throughout the performance of work
on each aircraft (app. opp’n and mot. at ex. 2 at 2-3).
Lockheed Martin’s Claim
19. On October 15, 2018, pursuant to the CDA and the contract’s FAR 52.233-1
DISPUTES clause, Lockheed Martin submitted a certified claim in the amount of
$143,529,290; it requested a final decision from a government CO (R4, tab 2 at 1-3).
LMA’s claim alleges that “excessive O&A work changes resulted in an additional,
constructive change in the form of cumulative impacts to the performance of the
fixed-price RERP effort” (id. at 21). Appellant “calculates a total of 428,482
production hours attributable to the cumulative disruptive impacts of O&A changes” in
its claim (id. at 25; JSF 5).
20. Appellant cannot state, per each individual aircraft designated P-7 through
P-27, a specific number of hours of “excessive O&A work.” Lockheed Martin says it
did not keep such information in its course of business with respect to each aircraft.
(Gov’t mot. at 3 8 citing “Appellant’s Response to Respondent’s First Set of
Interrogatories” (id. at 19-27); JSF 6)
21. LMA’s monetary demand is predicated on the legal theory of a “type of
measured-mile analysis.” Appellant maintains this approach “provides a comparison
of a production period that is impacted by a disruption with a production period that is
not impacted.” (R4, tab 2 at 22 (footnote omitted); see also id. at 23-25)
22. Lockheed Martin’s claim lists the following “MDR documents” and “O&A
hours” for aircraft P-5 through P-27:
7
Among other duties, Mr. Ferentinos served as Liaison/Material Review Board
Engineering Manager for LMA on this contract from February 2012-September
2018 (app. opp’n and mot., ex. 2 at 1).
8
When citing the government’s motion, we reference the sequential page number for
the digital version of that document.
8
(R4, tab 2 at 11; JSF 8)
23. By email dated March 22, 2012, Lockheed Martin reported the following
O&A hours for aircraft P-1 through P-4. Work on these planes, which were not
included by LMA in the chart depicted in SOF ¶ 22, had been completed under the
RERP Contract. These aircraft were returned to the Air Force prior to March 22,
2012:
a. P-1 (aka A/C 0082): 9,412 O&A hours (returned to the
Air Force - 5 Oct 10)
b. P-2 (aka A/C 0088): 10,523 O&A hours (returned to
the Air Force - 8 Apr 11)
c. P-3 (aka A/C 0091): 9,819 O&A hours (returned to the
Air Force - 24 Aug 11)
d. P-4 (aka A/C 0093): 10,390 O&A hours (returned to
the Air Force - 9 Jan 12)
(Gov’t mot., ex. B at 1; JSF 9)
24. The P-5 aircraft was returned to the Air Force on July 20, 2012 (JSF 10).
This plane is listed in the chart in SOF ¶ 22 as having 6,952 O&A hours.
25. The P-27 aircraft is one of the 21 aircraft included in LMA’s claim as
having allegedly had RERP production hours and performance costs improperly
9
increased as a result of disruption caused by excessive O&A work (JSF 11). This
plane is listed last in the chart in SOF ¶ 22 with 6,121 O&A hours.
26. Lockheed Martin’s claim alleges that the contract had a baseline of 4,276
O&A hours per aircraft (R4, tab 2 at 22). However, this baseline was not stated in any
of O&A CLINs 1005, 2005, 3005, and 4005, nor does it appear anywhere else in the
RERP contract as signed in April 2007 (R4, tab 3, passim). This baseline is not stated
in any contract modification made thereafter. (JSF 12)
27. LMA’s incurrence of claimed increased costs, allegedly caused by the
“cumulative, disruptive impact” of “O&A changes” on RERP labor efficiency,
pre-dated October 15, 2012. These “impacts” are highlighted in its certified claim,
in which Lockheed Martin identifies an “adjustment” of the final amount claimed to
“reflect the November 2012 . . . resolution for past legacy issues.” (R4, tab 2 at 25)
The downward adjustments for the alleged costs attributable to thousands of hours of
“excess O&A disruption” that were performed prior to November 6, 2012, which
appellant could not claim after its release in Modification No. P00178, are detailed in
cost information developed and submitted by LMA (app. supp. R4, tab 436 at 12-13;
JSF 20 9).
28. Lockheed Martin’s certified claim seeks to recover only for impacts
associated with O&A work/MDRs that took place or were approved after Modification
No. P00178, which is dated November 6, 2012 (R4, tab 408 at 23, tab 436 at 9, 12-13).
The Contracting Officer Declined to Issue a Final Decision
29. By correspondence dated December 7, 2018, the CO declined to issue a
final decision on LMA’s claim of October 15, 2018 (R4, tab 1).
Lockheed Martin’s Appeal Is Docketed by the ASBCA
30. On October 3, 2019, the contractor appealed to the ASBCA on the basis of
the government’s “deemed denial of its 15 October 2018 certified claim.” The Board
on October 7, 2019 issued its “Notice of Docketing” and designated the appeal as
ASBCA No. 62209.
9
LMA asserts that it seeks recovery for issues that arose only after the release in
Modification No. P00178, which was effective November 6, 2012. The
contractor states that it “does not adopt as true the non-factual legal assertions”
in the government’s proposed finding 20. (App. opp’n and mot. at 12 n.5)
10
Discovery Responses Relevant to the Parties’ Motions for Summary Judgment
31. On February 25, 2020, the government sent its Second Set of
Interrogatories to LMA. Interrogatory 1.a. to appellant was as follows:
1. The H106 Rapid Repair and Response (R3) (March 2013)
Clause (R4, tab 10 at 13) provides at subparagraph f. that
“The Contractor shall assert its right to an equitable
adjustment under this paragraph within 90 days from
completion of the R3 activity that the Contractor believes
causes an increase in cost or schedule.”
a. Does Appellant contend that it in fact asserted such
right to an equitable adjustment for R3 efforts “submitted
on or before 28 Apr 2013” (R4, tab 10 at 12)
(Gov’t mot., ex. C at 3-4; JSF 13)
32. On April 10, 2020, Michael Smith, Senior Manager of Business
Operations, Air Mobility & Maritime Missions at Lockheed Martin, certified the
following answer from appellant in response to Interrogatory 1.a. above:
Yes. Furthermore, Lockheed Martin repeatedly notified
the Government, including but not limited to the [CO], the
Air Force Program team, and [DCMA], in emails, letters,
during Project Management Meetings, during the delay
and disruption meetings, during the Cost Summit, in
Contractor Performance Assessment Reports (CPARs),
etc., of the operative facts that establish Lockheed Martin’s
claim.
(Gov’t mot., ex. C at 4; JSF 14) (emphasis omitted)
33. In the government’s Second Set of Interrogatories to Appellant,
interrogatory 1.b. requested:
b. If Appellant does contend that it in fact asserted such
right to an equitable adjustment pursuant to paragraph
A.3.f. of the H106 clause, state all facts that support such
contention, including, without limitation, the date of each
assertion, the person making/signing the assertion to the
government, the description or identification of any
document transmitting the assertion to the government, and
identification of the specific R3 activity (e.g. MDR by its
11
designated number) that “the Contractor believe[d]
cause[d] an increase in cost or schedule.”
(Gov’t mot., ex. C at 4; JSF 15)
34. In response to the above interrogatory 1.b, LMA stated:
The below documents both independently and/or
collectively demonstrate that Lockheed Martin requested an
equitable adjustment for R3 efforts and put the Air Force on
notice of the operative facts establishing entitlement to such
an adjustment.
....
On 24 February 2011, Lockheed Martin provided a letter to
the Air Force regarding the late delivery of aircraft 85-0002
[aircraft P-2]. The letter noted that there were many issues
that resulted in the late delivery, including legacy-related
issues, specifically legacy MDRs, among other things.
Lockheed Martin additionally noted that the program faced
a major challenge with the MDRs. Specifically, Lockheed
Martin stated [:] “With the second production aircraft
nearing completion, a key lesson learned is that, on a
cumulative basis, legacy aircraft problems (a.k.a. “Over and
Above”) significantly impacted schedule…. LM asks the
Government consider this fact and help us avoid a
protracted engagement determining how much delay is
Government caused (with commensurate equitable
adjustments in schedule) and how much is attributable to
LM causes.” The letter was signed by Steve Pilcher and
addressed to Jeffrey J. Joseph, Contracting Officer.
Reference: D0-LTM-2011-000253-0
(Gov’t mot., ex. C at 5-6; JSF 16)
35. On April 16, 2020, appellant produced its February 24, 2011 letter in
response to Respondent’s First Request for Admission and Production of Documents,
which called for any written notifications of change pursuant to FAR 52.243-7 in the
contract with respect to aircraft P-7 through P-27. The sentence emphasized below is
the sentence omitted by ellipsis in that same paragraph from the February 24, 2011
letter that appellant identified in response to respondent’s Second Set of
Interrogatories:
12
With the second production aircraft nearing completion, a
key lesson learned is that, on a cumulative basis, legacy
aircraft problems (a.k.a. “Over and Aboves”) significantly
impact schedule. For ship 85-0002 [aircraft P-2], over 215
MDRs were processed, resulting in over 4,500 hours of
over and above work not accounted for in the Integrated
Master Schedule (IMS). LM asks that the Government
consider this fact and help us avoid a protracted
engagement determining how much delay is Government
caused (with commensurate equitable adjustments in
schedule) and how much is attributable to LM causes.
(Gov’t mot., ex. E at 2; JSF 17)
36. Appellant’s April 16, 2020 response to Respondent’s First Request for
Admission and Production of Documents, which called for any document(s) that
appellant contends were written notification(s) of change pursuant to contract clause
FAR 52.243-7, also included a document entitled “O&A Delay & Disruption Impact
History.” This provides:
Beginning Sep 2012, LM, LCMC and DCMA held weekly
D&D meetings to agree on categorizing impacts to either
RERP/LM or Legacy/AF
- Critical Path Schedule baseline in Aug 2012 utilized as
basis for Delays
- LM assess delay and assign, with LCMC/DCMA weekly
agreement
- Upon aircraft delivery, DD-250 date to be adjusted for
legacy impact
- Costs for legacy delay and disruption have not been
contractually addressed
(Gov’t mot., ex. F; JSF 18) (emphasis added, omitted)
THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT
I. Standard of Review for Motions for Summary Judgment
Summary judgment is a salutary measure for resolving litigation where there
are no disputed material facts and the movant has proven that it is entitled to judgment
13
as a matter of law. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390
(Fed. Cir. 1987); Federal Rules of Civil Procedure (FED. R. CIV. P.) 56(a). The
Board’s duty in evaluating such motions is not “to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “By its very terms, this
standard provides that the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material fact.” Id. at 247-48.
Our assessment “necessarily implicates the substantive evidentiary standard of
proof that would apply at the trial on the merits” (Anderson v. Liberty Lobby Inc., 477
U.S. at 252), and we look to FED. R. CIV. P. 56 for guidance in deciding summary
judgment motions (Board Rule 7(c)(2)). The “facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those
facts.’” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550
U.S. 372, 380 (2007)). “Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
omitted).
While the movant must demonstrate there is no “genuine issue for trial,”
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (citing FED. R. CIV. P. 56(e)), the
nonmovant must “make a showing sufficient to establish the existence of an element
essential to [its] case, and on which [it] will bear the burden of proof at trial.” Celotex,
477 U.S. at 322. “In order to overcome a motion for summary judgment, the party
opposing the motion must point to an evidentiary conflict created on the record; mere
denials or conclusory statements are insufficient.” SRI Int’l v. Matsushita Elec. Corp.
of Am., 775 F.2d 1107, 1116 (Fed. Cir. 1985) citing Barmag Barmer Maschinenfabrik
AG v. Murata Mach., Ltd., 731 F.2d 831, 836 (Fed. Cir. 1984).
When considering cross-motions for summary judgment, we “evaluate each
motion on its own merits, taking care in each instance to view the evidence in favor of
the non-moving party.” Almanza v. United States, 935 F.3d 1332, 1337 (Fed. Cir. 2019)
citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. “This standard is not changed
when the parties bring cross-motions for summary judgment, each nonmovant receiving
the benefit of favorable inferences.” Chevron U.S.A. Inc. v. Mobil Producing Tex. &
N.M., 281 F.3d 1249, 1253 (Fed. Cir. 2002) citing Murphy Expl. & Prod. Co. v. Oryx
Energy Co., 101 F.3d 670, 673 (Fed. Cir. 1996).
II. The Government’s Motion for Summary Judgment Asserts that Appellant’s
Claim Was Untimely
The gravamen of the government’s summary judgment motion is that ASBCA
No. 62209 should be dismissed because appellant’s underlying claim is time-barred. It
14
maintains that, for the Board to have jurisdiction, Lockheed Martin’s claim of
October 15, 2018 must not have accrued before October 15, 2012, which is the six-year
filing limit for this appeal under 41 U.S.C. § 7103(a)(4)(A) and FAR 33.201. (Gov’t
mot. at 3). 10 Appellant agrees that October 15, 2012 is the date for application of the
statute of limitations. Lockheed Martin goes a step further in narrowing the date by
when its claim must have accrued: it maintains that this must have occurred after
November 6, 2012, which is the effective date of its release of claims in Modification
No. P00178 (see, e.g., app. opp’n and mot. at 9-11; see also SOF ¶¶ 6-7, 28).
We agree with appellant that Lockheed Martin’s claim must not have accrued
on or before November 6, 2012 to be timely due to its retrospective release of claims
in Modification No. P00178 (see SOF ¶¶ 6-7, 28), and consider the government’s
assertions that it is entitled to summary judgment because appellant’s claim accrued by
either February 24, 2011 or September 2012.
A. The Government’s Assertion That Lockheed Martin’s Claim Is Untimely
Because Appellant Knew or Should Have Known of the Basis for Its Claim
by February 24, 2011
The government justifies summary judgment upon the assertion that Lockheed
Martin knew or should have known by February 24, 2011 of the “operative facts” of
its claim for “excessive’ O&A hours per aircraft.” Because this date is prior to the
statutory cutoff of October 15, 2012, accrual in 2011 would render the October 15,
2018 claim untimely and deprive the Board of jurisdiction. The government relies
upon the contractor’s correspondence of February 24, 2011, which asserted appellant’s
“right to an equitable adjustment of the contract caused by the alleged impact of ‘over
4,500 hours of over and above work not accounted for in LMA’s planned schedule to
do the RERP work for aircraft P-2.” (Gov’t mot. at 10-11)
Appellant denies that the O&A hours it complained of on February 24, 2011 are
of the same type as those raised in its claim. Lockheed Martin argues that it has, at a
minimum, established “the presence of triable disputes of material fact” that preclude
the government’s motion. The contractor says that the correspondence relied upon by
the government cites O&A hours for the P-2 aircraft that included work by both its
production and support departments, whereas the claim’s excess O&A hours are for
production work only. LMA says this difference indicates the government’s attempt
to make an “apples-to-oranges” comparison between the hours cited in the
10
For unstated reasons of its own, the government did not pursue this argument as a
motion to dismiss for lack of jurisdiction in accordance with FED. R. CIV. P.
12(b)(1) although it could appropriately have done so (see, e.g., Satterfield &
Pontikes Constr. Co., ASBCA Nos. 59980, 62301, 21-1 BCA ¶ 37,873 at
183,907-08). The government made a similar procedural choice in opposing
Lockheed Martin’s 2nd through 6th cross-motions; this is discussed in § III.B.
15
February 24, 2011 letter and those referenced in its subsequent claim. (App. opp’n
and mot. at 55-57)
Lockheed Martin provided and relied upon a declaration by employee
John M. Greer to controvert the government’s assertion that the February 24, 2011
letter supports the government’s motion (see, e.g., app. opp’n and mot. at 48-49, 52-53,
55-57, ex. 6 (declaration of John M. Greer)). 11 He stated that LMA’s email of March
22, 2012 lists “hours for the support and production departments” for “Aircraft P-1
through P-4” (id. at 2, ¶ 5). Mr. Greer prepared the chart depicted in ¶ 7 of his
declaration, which shows O&A hours for aircraft P-1 through P-27 that included
production work only. He said that these totals would have been “much higher if [the
chart had] included support department hours.” (Id. at 2-3, ¶¶ 7-8)
The government seeks to undermine appellant’s contention that the O&A hours
cited in Lockheed Martin’s correspondence of February 24, 2011 and email of
March 22, 2012 differed from those in its October 15, 2012 claim by criticizing
LMA’s choice of declarant(s) and failure to provide an affidavit. It asserts that
appellant did not oppose the government’s motion with an “affidavit from a
‘knowledgeable affiant,’” which the government calls “required evidence.” The
government argues that appellant failed to “set forth specific facts showing there is a
genuine issue for trial,” and indicates that evidence from another witness would have
been more appropriate. (Gov’t reply at 2-3) (emphasis omitted)
12
B. The Government’s Assertion in the Alternative That Lockheed Martin’s
Claim Is Untimely Because Appellant Knew or Should Have Known of the
Basis for Its Claim in September 2012
The government alternatively urges that “in any event,” Lockheed Martin’s
claim of October 15, 2018 is untimely because it accrued no later than September 2012
(gov’t mot. at 11-13). It contends that appellant “admitted in its answer to government
interrogatories, and by the documents it produced, that [appellant] knew no later than
September 2012 . . . that it had a claim for O&A impacts to RERP work.” It says the
contractor repeatedly had notified the government of its “right to an equitable
adjustment for such alleged impacts to fixed-price RERP CLINs.” The government
cites a document from LMA entitled “O&A Delay & Disruption Impact History,”
which indicates that the parties initiated “delay and disruption meetings” in
September 2012. The government contends that it was “repeatedly notified” during
these meetings “of the operative facts that establish Lockheed Martin’s claim.” It
11
Mr. Greer’s current position at Lockheed Martin is “Government Finance Analyst
Stf.” He began working on the subject contract in January 2014 as a
“Government Finance Analyst” and continued on the project until the contract
ended. (App. opp’n and mot., ex. 6)
12
The government’s opposition and the government’s reply are two separate documents.
16
maintains that the level of O&A hours for various aircraft serviced during that period,
as well as information provided in the meetings in question, demonstrate that
“September 2012 is the latest possible point that LMA knew or should have known
that it had ‘the operative facts that establish Lockheed Martin’s claim.’” (Id. at 12) 13
The contractor resists summary judgment predicated on the September 2012
meetings on several bases. First, it reiterates the “apples-to-oranges” argument made
against the government’s assertion that the contractor knew or should have known of
the basis for its claim by February 24, 2011. LMA again cites Mr. Greer’s declaration
for the proposition that the number of O&A hours described in an email of March 22,
2012 “cannot be compared to the data points utilized” for the claim, as the former
“include[s] hours for support departments” whereas the latter relied on different data
points. (App. opp’n and mot. at 57, ex. 6) Appellant contends that the “10,523 hours
described for aircraft P-2, and the 4,276 contract baseline hours reflect very different
measures of O&A hours.” This is because the former “includes hours for support as
well as production departments” whereas “the hours utilized for comparison in
[LMA’s] claim, including the referenced 4,276 hour Contract baseline, do not include
hours for support departments.” (Id. at 55)
Appellant also relies upon the declaration of John Ferentinos to support its
contention that “the volume of actual O&A hours for [aircraft] P-1 through P-5 could
not have provided [it] with knowledge that the volume of O&A hours would
consistently exceed more than double the estimated O&A volume for the majority of
the aircraft” (app. opp’n and mot. at 57; see also id., ex. 2 (declaration of
John Ferentinos)). He stated that “legacy conditions on the C-5 aircraft received from
the [government] under the Contract, and the O&A repairs necessary to address those
legacy conditions, differed from aircraft to aircraft.” According to Mr. Ferentinos,
LMA did not know before receiving an aircraft from the government about the nature
and extent of legacy repairs that were necessary. “Even after receiving an aircraft and
beginning the RERP work, Lockheed Martin would continue to discover unknown
legacy conditions throughout performance of the RERP work on that aircraft.” As a
result, appellant “had to continuously identify and document legacy conditions on an
aircraft and, with concurrence from the government, perform the O&A work to
address them.” (Id. at 2-3)
Lockheed Martin also supports its opposition to the government’s motion with
the declaration of Kaitlin E. Hill (app. opp’n and mot., ex. 1) to substantiate that only
13
We address Lockheed Martin’s contention that its claim did not accrue in
September 2012 because the “Continuing Claim Doctrine” applies and is timely
because “each MDR [after November 6, 2012] establishes its own accrual date”
(app. opp’n and mot. at 57-59) in §§ III-VI infra in analyzing LMA’s cross-
motions for summary judgment.
17
aircraft P-1 through P-5 had been delivered to the government by October 15, 2012;
see also SOF ¶¶ 15-18).
Decision on the Government’s Motion for Summary Judgment
As we must, the Board draws all justifiable inferences in favor of Lockheed
Martin as nonmovant for this motion. “Although we determine whether disputed facts
are present, the Board will not at this juncture serve as arbiters to resolve controversies
nor weigh evidence or make determinations of credibility,” Kellogg, Brown & Root
Servs., Inc., ASBCA No. 58518, 16-1 BCA ¶ 36,408 at 177,524 citing Anderson v.
Liberty Lobby Inc., 477 U.S. at 248.
FED. R. CIV. P. 56(c)(4) requires that “[a]n affidavit or declaration used to
support or oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.”
Appellant has established disputed material facts concerning an “essential
element” for which it bears the burden at trial (Celotex, 477 U.S. at 323), i.e. whether
it knew the degree to which it would encounter allegedly excessive O&A work,
particularly for additional “production hours” prior to October 15, 2012 (see Optimum
Servs., Inc., ASBCA No. 59952, 16-1 BCA ¶ 36,490 at 177,822-23) (regarding the
burden of proof using a measured mile approach). Summary judgment is appropriate
only where the movant shows “that there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law” (Celotex, 477 U.S.
at 322; FED. R. CIV. P. 56(a)).
1. There Are Triable Issues Concerning What Lockheed Martin’s
Correspondence of February 24, 2011 Evinces
The government has not controverted (and we agree) that Lockheed Martin
could not have known what repairs the aircraft needed until the planes were delivered
to the contractor, opened up and/or otherwise inspected, and the government approved
the MDRs that defined the work it required LMA to perform (see, e.g, SOF ¶¶ 9,
12-18, 22-24; see also SOF ¶¶ 31- 36). Based upon their positions within the
company, personal knowledge, and level of involvement with the contract, we find that
the declarations of Messrs. Greer and Ferentinos and Ms. Hill are sufficient to bring
into question whether Lockheed Martin knew or should have known of the basis for its
claim by February 24, 2011. Mr. Greer particularly disputed that the “excessive”
O&A hours mentioned in LMA’s letter of that date were the same as those cited in its
claims, and Mr. Ferentinos emphasized that the contractor could not have known of the
extent of necessary repairs until the government approved the MDRs. Similarly, the
declaration of Ms. Hill is adequate to demonstrate that the aircraft identified in its
claim had not been delivered by LMA as of October 15, 2012 (SOF ¶ 15); any of these
18
aircraft which had been inducted by that date had MDRs that were approved thereafter
(SOF ¶ 16).
There are disputed material facts, and the government failed to show, that
appellant knew or should have known of its October 15, 2018 claim at the time of the
contractor’s letter of February 24, 2011. Appellant’s proffer exceeded “mere denials
or conclusory statements” (see, e.g., SRI Int’l, 775 F.2d at 1116). 14 The declarations of
Messrs. Greer and Ferentinos and Ms. Hill are adequate to demonstrate triable issues
concerning whether LMA knew of its claim by February 24, 2011, and whether the
hours cited in that letter were calculated in the same manner as those that are the
subject of the claim.
2. There Are Triable Issues Concerning Whether Appellant Knew or Should
Have Known of Its Claim at the September 2012 Meetings
As with the government’s argument that LMA’s claim accrued February 24,
2011 and for the same reasons, we find that appellant established disputed material
facts regarding whether it knew or should have known that its claim had accrued in
September 2012. The government did not overcome LMA’s contention that the
government is attempting to compare “apples-to-oranges” for the type of hours cited
(i.e., the compilation of “production” and “support” hours in the meetings versus that
of “production” hours only in its claim). The government did not show that the data
discussed at the September 2012 delay & disruption meetings demonstrated that the
contractor was or should have been then aware of the basis for its October 15, 2018
claim. Nor did the government successfully impugn the declarations of Messrs. Greer
and Ferentinos or Ms. Hill, either on the basis of format or sufficient personal
knowledge (see, e.g., gov’t reply at 2-4) (contending that LMA “fail[ed] to set forth
the type of evidence required by the Federal Circuit to avoid summary judgment in
favor of the government”) (emphasis omitted).
14
FED. R. CIV. P. 56(c)(1) allows “a party asserting that a fact cannot be or is
genuinely disputed” to support its assertion by means of a variety of materials
that are made part of the record. These may include “depositions, documents,
electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials.” Subdivision (c) of the Advisory
Committee Notes to the 2010 Amendment of FED. R. CIV. P. 56 shows that the
former evidentiary requirement of a “formal affidavit” was eliminated. In
accordance with 28 U.S.C. § 1746, the rule now permits “a written unsworn
declaration, certificate, verification, or statement subscribed in proper form as
true under penalty of perjury to substitute for an affidavit.”
19
Conclusion
We conclude there are disputed material facts regarding whether Lockheed
Martin knew or should have known that its claim had accrued by either February 24,
2011 or September 2012. This is because there are questions regarding what the
contractor knew and when about the need for O&A work, and regarding the number of
production hours in its claim versus the production and support hours discussed in its
February 24, 2011 letter and at the September 2012 meetings. These preclude a grant
of summary judgment to the government, and we deny its motion.
III. Lockheed Martin’s Six Cross-Motions for Summary Judgment: The
Government’s Overarching Assertions That Appellant’s 2nd-6th
Cross-Motions Raise a New Claim and There Is No “Continuing Claim”
Lockheed Martin filed six cross-motions for summary judgment which, like the
government’s motion, concern the timeliness of its October 15, 2018 claim. Appellant
seeks to prove that its claim did not accrue before October 15, 2012, which is the date
of the six-year limit placed by the CDA. Each of LMA’s motions aims to establish the
Board’s jurisdiction, albeit for a different reason. (App. opp’n and mot., passim) We
include an overview to provide context for the subsequent analyses, and address the
government’s arguments common to LMA’s 2nd through 6th cross-motions.
A. Overview of Appellant’s Cross-Motions for Summary Judgment
Lockheed Martin argues in its 1st cross-motion that its claim is timely because
its release on November 6, 2012 in Modification No. P00178 “reset any claim accrual
date” and claim accrual “begins anew” or “re-starts” (app. opp’n and mot. at 2, 10-19).
While appellant’s 2nd cross-motion does not employ the term “continuing claim
doctrine,, 15” it relies upon decisions that articulate that legal theory. LMA focuses in
this motion upon the date the government’s liability is fixed as the date of claim
accrual, and says that its claim “could not have accrued at any time before
Government direction to perform the specific O&A work.” (Id. at 7, 10, 20-25)
Appellant grounds its 3rd through 6th cross-motions in the continuing
claim doctrine, but keys its arguments in each to different claim-related events. Its 3rd
cross-motion bases timeliness on the government’s approval of relevant MDRs after
October 15, 2012 (app. opp’n and mot. at 26-30). The contractor’s 4th cross-motion
asserts claim timeliness upon the aircraft in question being inducted after October 15,
2012 (id. at 30-33), whereas its 5th cross-motion urges timeliness because the “Lot 5
option” was not “exercised until after” October 15, 2012 (id. at 33-35). The 6th
15
This doctrine is variously referred to as the “continuing claim doctrine” or the
“continuing claims doctrine.”
20
cross-motion alleges that the portion of LMA’s claim that pertains to the impacts from
the MDRs ordered under CPFF O&A CLINs and Lot 5 O&A work is timely because
these CLINs were not awarded until April 25, 2013 and December 20, 2012,
respectively (id. at 35-38).
B. The Government’s Assertion That Appellant’s 2nd Through 6th Cross-
Motions Raise New Claims
The government objects to Lockheed Martin’s 2nd through 6th cross-motions by
contending (among other things) that LMA raised matters in these that are outside the
claim presented to the CO (see, e.g., gov’t reply at 7-8). Because the government did
not pursue this argument in accordance with FED. R. CIV. P. 12(b)(1) 16 (see n.10,
supra), we consider this argument as presented, i.e. as a defense to appellant’s 2nd
through 6th cross-motions and not a jurisdictional motion. Had we evaluated the
government’s argument as a motion to dismiss in accordance with FED. R. CIV. P.
12(b)(1), the outcome would have been the same as our conclusion below: the Board
has jurisdiction over these motions and the government has not proven that appellant
erroneously asserted a new claim in these cross-motions.
1. The Government’s Allegations
The government contends that Lockheed Martin’s 2nd cross-motion is
tantamount to a “new, MDR-by-MDR alleged ‘impact’ claim,” and says that the Board
lacks jurisdiction because this claim was not submitted to a CO (gov’t reply at 7 n.1).
The government also raises the “new claim” argument in defending against LMA’s 3rd
through 6th cross-motions, each of which is predicated upon the continuing claim
doctrine (see gov’t opp’n at 20-23). According to the government, because “LMA’s
certified claim includes no ‘continuing claims’ that would save LMA’s certified claim
from being time-barred . . . . any such ‘distinct’ claims, as now framed by LMA, were
never presented to a [CO] in writing for a final decision as required by the CDA” (id.
at 23 (citing gov’t reply at 5-9)).
2. The Board’s Jurisdiction Over Lockheed Martin’s 2nd through 6th
16
Judge Hartman’s opinion in Kamran Zaland Supplies and Servs., ASBCA
No. 61339, 19-1 BCA ¶ 37,475 provides a helpful guide in distinguishing
between motions to dismiss pursuant to Fed. R. Civ. P. 12(b) that are “facial” in
nature versus those that are “factual.” The former involves an attack on the
“subject matter jurisdiction [and] questions the sufficiency of [the] pleading,”
whereas the latter “in contrast, challenges the existence of jurisdiction in fact
irrespective of allegations set forth.” Kamran Zaland, 19-1 BCA at 182,049
(further citations omitted). See also L-3 Commc’ns Integrated Sys. L.P.,
ASBCA No. 60713, 60716, 17-1 BCA ¶ 36,865 at 179,625 (citing 2 Moore’s
Federal Practice 3D §12.30[3]).
21
Cross-Motions
It helps to understand what a “claim” is for federal contract purposes, as it is a
term of art. FAR 2.101 in relevant part defines a “claim” as “a written demand or
written assertion by one of the contracting parties seeking, as a matter of right, the
payment of money in a sum certain, the adjustment or interpretation of contract terms,
or other relief arising under or relating to the contract.” This is consistent with the
CDA at 41 U.S.C. § 7103(a), which requires the prior submission of a contractor’s
claim to the CO for decision. It is well-established that the “content of the claim is
crucial, as it establishes the bounds of the appeal” (Northrop Grumman Sys. Corp.
Space Sys. Div., ASBCA No. 54774, 10-2 BCA ¶ 34,517 at 170,230). This
information provides essential notice, as “[t]he Government is entitled to learn the
basis of the claim asserted by the contractor, ensuring both a lack of prejudice to the
Government and judicial economy by establishing a process where claims are resolved
at the lowest possible level” (id. (citing J.S. Alberici Constr. Co. and Martin K. Eby
Constr. Co. (JV), ENG BCA 6178, 98-2 BCA ¶ 29,875 at 147,917, aff’d, Caldera v.
Alberici, 153 F.3d 1381 (Fed. Cir. 1998))).
The government raises whether Lockheed Martin went beyond the permissible
boundaries of its claim in its 2nd through 6th motions for summary judgment, and
whether appellant wrongly attempted to assert new claims through these motions
(gov’t opp’n at 20-23). The Board previously has considered this type of argument,
and has articulated a “standard for distinguishing between an extra-jurisdictional, new
claim from an alternative legal basis for an existing claim.” Our assessment “does not
require ridged [sic] adherence to the exact language or structure of the original
administrative CDA claim.” Scott Timber Co. v. United States, 333 F.3d 1358, 1365
(Fed. Cir. 2003). Instead, “we are to apply a common sense analysis.” Northrop
Grumman, 10-2 BCA at 170,230 (citing Ebasco Envtl., ASBCA No. 44547, 93-3 BCA
¶ 26,220 at 130,490 and Transamerica Ins. Corp. v. United States, 973 F.2d 1572,
1579 (Fed. Cir. 1992)).
Factors articulated in Scott Timber aid in assessing whether a “new claim” has
been asserted by LMA in its motions. For example, even if appellant “may have posed
slightly different legal theories” during litigation, the Board has jurisdiction where (as
here) its “claim is essentially the same as presented to the CO.” Scott Timber,
333 F.3d at 1366. The court held that it “kn[e]w of no requirement in the [CDA] that a
‘claim’ must be submitted in any particular form or use any particular wording,” as
long as “the contractor submit[ted] in writing to the [CO] a clear and unequivocal
statement that gives the [CO] adequate notice of the basis and amount of the claim.”
Id., 333 F.3d at 1365 (citing Contract Cleaning Maint., Inc. v. United States, 811 F.2d
586, 592 (Fed. Cir. 1987)) (underlining added).
The Board has held that “[t]he introduction of additional facts which do not
alter the nature of the original claim . . . or the assertion of a new legal theory of
22
recovery, when based upon the same operative facts as included in the original claim,
do not constitute new claims.” Penna Group, LLC, ASBCA No. 61640 et al., 21-1
BCA ¶ 37,917 at 184,150 (citing Trepte Constr. Co., ASBCA No. 38555, 90-1 BCA
¶ 22,595 at 113,385-86). These decisions are consistent with Lee’s Ford Dock v. Sec’y
of the Army, 865 F.3d 1361 (Fed. Cir. 2017), which guides us in ascertaining whether
there is a materially different claim over which we lack jurisdiction. If we are required
to “focus on a different or unrelated set of operative facts” (id. at 1369) (quoting
Placeway Constr. Corp. v. United States, 920 F.2d 903, 907 (Fed. Cir. 1990)), then a
new claim has arisen. However, if we must only “review the same or related
evidence” that was in the underlying claim in adjudicating an appeal, “then only one
claim exists” (Placeway, 920 F.2d at 907). The “operative” facts need not be identical,
but there must be a common basis:
Suits involve the same claim (or “cause of action”) when
they “‘aris[e] from the same transaction,’” United States v.
Tohono O’odham Nation, 563 U.S. 307, 316, 131 S.Ct.
1723, 179 L.Ed. 2d 723 (2011) (quoting Kremer v.
Chemical Constr. Corp., 456 U.S. 461, 482 n.22 (1982)),
or involve a “common nucleus of operative facts.”
RESTATEMENT (SECOND) OF JUDGMENTS § 24, Comment b
(1982).
Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140 S.Ct. 1589,
1595 (2020) (alterations in original).
LMA’s appeal and its cross-motions all cite its October 15, 2018 claim, seek
relief under the contract’s H106 and Changes clauses, and request the same monetary
remedy (see, e.g., SOF ¶¶ 19-28; complaint ¶¶ 3-5, 24-30, 44-57, 90-94, 122-28,
130-56; app. opp’n and mot., passim). Among other things, the claim advises the CO
that Lockheed Martin seeks recovery for the impact of multiple changes to the contract
that occurred when the government approved an MDR. The claim also notes the
periodic induction of various aircraft (including those in Lot 5), which were then
inspected to assess the extent of repairs needed (see, e.g., R4, tab 2 passim, especially
at 3, 5-6, 11-16). These assertions are common to LMA’s claim and its 2nd through 6th
motions.
Lockheed Martin has met its underlying burden of proving jurisdiction (see, e.g.,
SOF ¶¶ 1, 3, 5, 8, 10, 12, 14-29 regarding the contract, appellant’s performance, the
information provided in the claim, and the CO’s refusal to render a COFD; see also app.
opp’n and mot., passim, which presents these cross-motions; see especially at 20-38).
See also Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)
and United Healthcare Partners, ASBCA No. 58123, 13 BCA ¶ 35,277 at 173,156 (the
proponent of the appeal bears the burden of establishing the tribunal’s jurisdiction).
23
Conclusion
Although LMA’s claim cites the “measured mile” legal theory and not the
“continuing claim doctrine” (see, e.g., R4, tab 2 at 22-25), the operative facts in its 2nd
through 6th cross-motions pertain to Lockheed Martin’s October 15, 2018 claim and
are essentially the same. In the claim, appellant notified the government of the basis
for its demand (id., passim). In defending against the government’s motion for
summary judgment for untimeliness, LMA sought the same remedy and relied upon
the same operative facts (i.e., the government’s successive approvals of multiple
MDRs requiring the contractor to perform additional O&A work) as well as the serial
induction of aircraft followed by an inspection to determine how much work needed to
be done. Appellant provided adequate information to establish the Board’s jurisdiction
over MDRs approved on or after October 15, 2012 and over its 2nd through 6th cross-
motions.
We conclude that LMA’s claim remains properly before the Board, and that
appellant did not impermissibly change its claim (or raise a new one) by its assertions
concerning MDRs in its 2nd cross-motion. Nor did Lockheed Martin assert a new
claim in its arguments regarding the continuing claim doctrine in its 3rd through 6th
cross-motions. Akin to the contractor in Scott Timber, LMA’s “claims in this case
[did] not ‘subvert the statutory purpose of requiring contractors first to submit their
claims to the [CO]’ to allow the CO to receive and pass judgment on the contractor’s
entire claim” (see Scott Timber, 333 F.3d at 1366) (citing Croman v. United States,
44 Fed. Cl. 796, 801-02 (1999)).
IV. Appellant’s 1st Cross-Motion for Summary Judgment: “The 15 Oct. 2018
Claim Is Timely Because All Claimed Impacts Arose After Lockheed
Martin’s Release of Claims in [Modification No.] P00178, Dated 6
Nov. 2012” 17
Appellant says in its 1st cross-motion that, “even assuming (solely) for the
purposes of this Cross-Motion that all or some part of Lockheed Martin’s claim could
first have accrued earlier, the entirety of [its] claim would still be timely.” LMA
maintains that its “certified claim [took] pains to explain that it sought recovery only
for issues after the [Modification No.] P00178 release and detailed the manner in
which it excluded any earlier issues.” (App. opp’n and mot. at 10, 12)
The contractor argues that the release in Modification No. P00178 “cut[] off the
Government’s legal liability for past issues, which as a matter of law ‘re-started’ any
accrual period for Lockheed Martin’s claim” (app. opp’n and mot. at 10). LMA relies
upon the retrospective nature of its release in that modification, 18 which (with
17
App. opp’n and mot. at 10 (emphasis omitted).
18
The release is quoted in SOF ¶ 6.
24
exceptions not relevant to this motion) applies to “all C-5 RERP Production Schedule
impacts” through November 6, 2012, “the date of this Supplemental Agreement
execution” (id. at 12).
LMA relies upon Electric Boat Corp., ASBCA No. 58672, 19-1 BCA ¶ 37,233,
aff’d, Electric Boat Corp. v. Navy, 958 F.3d 1372 (Fed. Cir. 2020) and Kellogg Brown
& Root Servs., Inc., ASBCA No. 58175, 15-1 BCA ¶ 35,988, aff’d on recon.,
15-1 BCA ¶ 36,075 (KBR 19) as the bases for this motion. It cites these decisions for
the proposition that “[e]ven for circumstances in which a contractor knows of a change
and has incurred some resultant injury [a] CDA claim does not accrue until the
Government becomes legally liable for the suffered injury.” (App. opp’n and mot.
at 13) (emphasis in original)
Lockheed Martin contends that, consistent with the ASBCA’s decision in KBR,
“an event extinguishing existing claims (even if only temporarily) effectively ‘re-starts’
the accrual period.” It says that in KBR, the claim was deemed timely where the
contractor “took a superseding-intervening action to cut-off liability” for its billing
noncompliance but later “rescinded its previously-provided credit.” (App. opp’n and
mot. at 13) (emphasis omitted) Appellant alleges that KBR “dealt with the issue of
claim accrual starting, being temporarily extinguished, and then beginning anew (i.e.,
‘re-starting’) well after when the injury originally occurred” (id. at 13). LMA points to
the contractor’s rescission of the modification in KBR as an “intervening contractual
event that had extinguished liability” (id. at 15). It asserts that KBR demonstrated that
“an action terminating liability, even if only temporarily, has the effect of re-starting the
start date for the claim-accrual analysis” (id. at 17-18). Lockheed Martin maintains that
in KBR, the “government’s claim was found timely because it was within six years of
when liability re-started, despite being filed significantly more than six years after the
claim originally accrued” (id. at 13).
Appellant argues that the Federal Circuit’s decision in Electric Boat also
supports the proposition that a claim does not accrue where “the parties’ contractual
actions” delayed government liability (id. at 16) (emphasis in original). In that case,
OSHA published a regulation in December 2004 that resulted in additional compliance
costs to the contractor. The parties modified the contract by adopting a clause that
postponed by two years “making the Government potentially liable for costs in
connection with ‘changes in federal law.’” LMA says that the Federal Circuit’s
decision in Electric Boat used a two-step analysis of claim accrual which recognized
that claim accrual did not begin despite knowledge and injury where the contract
modification “shifted the CDA-cognizable date of claim accrual” to a later time.
(App. opp’n and mot. at 16) Appellant maintains that “KBR is consistent with the
Federal Circuit’s recent decision in Electric Boat,” and says that in the latter, “the
19
Unless specified otherwise, references to the ASBCA’s decision in KBR are to its
decision at 15-1 BCA ¶ 35,988.
25
Court explained that mere monetary ‘injury’ and ‘knowledge of a potential claim do
not – without legal liability for the injury – cause a claim to accrue.” (Id. at 15)
(emphasis in original)
The government rejects appellant’s “nonsensical legal concept of accrual date
‘re-start’ of a released claim.” The government says this supposed legal theory “is
solely LMA’s creation, and not the Board’s ruling in KBR nor in any other case.
Released claims don’t restart, they end.” The government further distinguishes KBR
on the basis that “[t]here was no bilateral release of existing claims at issue” in that
case. (Gov’t reply at 4)
Decision on Appellant’s 1st Cross-Motion for Summary Judgment
Lockheed Martin’s 1st cross-motion takes an original approach in arguing that
the holdings in KBR and Electric Boat (the latter litigation as decided by both the
ASBCA and the Federal Circuit) dictate that the post-Modification No. P00178 portion
of its claim is timely, even if the Board finds that LMA’s claim accrued prior to
October 15, 2012. We disagree with appellant’s analysis and reliance upon these
decisions. Appellant’s overly-broad characterization of this November 6, 2012
modification as an “intervening contractual event that had extinguished liability”
(as defined in these decisions) that has the effect of “re-starting” the statutory claim
accrual date relies upon a novel legal theory that is insufficiently supported. Neither
the KBR nor the Electric Boat rulings warrant a determination that LMA is entitled to
judgment on its 1st cross-motion as a matter of law, as those decisions can be factually
and legally distinguished from the instant appeal.
A. Kellogg Brown & Root Servs., Inc., ASBCA No. 58175, 15-1 BCA ¶ 35,988Does Not Support LMA’s 1st Cross-Motion for Summary Judgment
As part of the factually-convoluted dispute that underlies ASBCA No. 58175,
the government asserted a claim for $11,483,487 against KBR for failing to follow
ACO guidance regarding billing for dining services. Although the contractor initially
credited the government with the amount it was overpaid due to its noncompliance,
KBR later rescinded that action. The jurisdictional issue in KBR turned upon when the
government knew or should have known of its claim for its mistaken overpayment to
the contractor in light of the revocation. KBR, 15-1 BCA ¶ 35,988 at 175,815-23.
As in previous decisions, the Board in KBR “applied a ‘knew or should have
known’ of the claim test interchangeably with a ‘concealed or inherently unknowable’
test, stating that the test includes an intrinsic reasonableness component.” KBR,
15-1 BCA ¶ 35,988 at 175,824 (citing Holmes v. United States, 657 F.3d 1303, 1317-18,
1320 (Fed. Cir. 2011)); Raytheon Co., Space & Airborne Sys., ASBCA No. 57801 et al.,
13 BCA ¶ 35,319 at 173,376; Raytheon Missile Sys., ASBCA No. 58011, 13 BCA
26¶ 35,241 at 173,017. In ASBCA No. 58175, the Board found that KBR’s actions
delayed the date when the government reasonably knew or should have known that it
had a claim for overpayment (KBR, 15-1 BCA at 175,824).
We take exception to Lockheed Martin’s assertions that “KBR was analogous to
the instant appeal,” and that “KBR stands for the legal proposition that claim accrual
starts anew after a contractual event cuts off the Government’s legal liability for an
alleged injury or injuries” (app. reply at 11). These assertions provide only a partial
explanation for the Board’s holding in KBR that the claim accrual date was extended.
LMA neglected to add that KBR turned on the finding that the contractor’s rescission
of its credit for overpayment, and the manner in which it did so, prevented the
government from knowing (or having reason to know) of the basis for its claim. The
Board in KBR applied the “concealed or inherently unknowable” standard that was
discussed in Holmes in determining that KBR’s conduct prevented the government
from knowing the basis of its claim until a later time. KBR, 15-1 BCA at 175,824.
While we agree in principle that KBR shows that the parties’ actions can affect
the date of claim accrual, that does not end the inquiry into whether and how that
decision applies here. Its impact, if any, is tied to the underlying facts of that decision
and the instant appeal. To comport with KBR, Lockheed Martin must prove more than
that it signed a retrospective release of claims in Modification No. P00178 in order to
extend its claim accrual date: LMA must show how doing so reasonably led it to meet
the “‘concealed or inherently unknowable’ test” applied in KBR (see, e.g., KBR,
15-1 BCA at 175,824). LMA did not do so, and has not proven that KBR supports its
1st cross-motion, as it must to merit favorable judgment (see, e.g., Celotex, 477 U.S.
at 324; also FED. R. CIV. P. 56(a)).
B. Neither Electric Boat Corp., ASBCA No. 58672, 19-1 BCA ¶ 37,233 Nor
Electric Boat Corp. v. Navy, 958 F.3d 1372 (Fed. Cir. 2020) Supports
LMA’s 1st Cross-Motion for Summary Judgment
Lockheed Martin contends that its claim for “[p]ost release injuries (which are
the sole basis of the certified claim currently under appeal) began running after the
[Modification No.] P00178 release” (app. reply at 10-11) (emphasis in original). It
says that the “Federal Circuit’s decision [in Electric Boat] stood for the proposition
that the Prime Contractor’s claim does not begin to accrue – regardless of contractor
knowledge and injury – until the Government first becomes legally liable for such
injuries” (id. at 8) (citing Electric Boat, 958 F.3d at 1376).
As with the discussion regarding KBR (supra), appellant does not make its case
that the holdings in Electric Boat allow Lockheed Martin to “re-start” its claim after
signing a retrospective release of claims. Appellant again fails to tell the full story, or
sufficiently link the facts at hand to those of Electric Boat. The court and Board
agreed in their respective Electric Boat decisions that the claim accrual date there
27
began two years after the effective date of the OSHA regulation because the parties
contractually agreed to this interregnum. They did not agree to a claim “re-start,” but
to a specific and intentionally-established accrual date. LMA has not shown how the
circumstances of Electric Boat entitle it to judgment or that the post-release portion of
its O&A claim “re-started” because it was not included in Modification No. P00178. 20
Conclusion
FED. R. CIV. P. 56(a) requires that a movant prove two things to obtain
summary judgment: it must first “show[] that there is no genuine dispute as to any
material fact” and second, that it is “entitled to judgment as a matter of law.” There is
neither sufficient evidence nor convincing argument to warrant summary judgment on
Lockheed Martin’s 1st cross-motion as framed, or for the Board to adopt appellant’s
proposed legal theory that its claim “re-started” following Modification No. P00178
“as a matter of law.” Among other things, appellant did not sufficiently align the facts
of its appeal with the legal justification urged. LMA’s legal rationale is further
unavailing for the proposition that “even if” its claim (or portions thereof) accrued
prior to October 15, 2012, its claim is still timely “in full or in part” based upon the
decisions it cites (app. opp’n and mot. at 10). 21
We conclude appellant failed to support its argument that KBR and/or the Electric
Boat decisions stand for the proposition that Modification No. P00178 “re-started”
LMA’s claim or established a different accrual date than that contemplated by the CDA
or the FAR. Appellant did not meet its duty as movant of proving that it is entitled to
judgment as a matter of law; see, e.g., Mingus Constructors, Inc., 812 F.2d at 1390 and
FED. R. CIV. P. 56(a). We deny appellant’s 1st cross-motion for summary judgment.
20
We address the point at which liability attaches in § V, infra.
21
Lockheed Martin explained this motion was made in concert with its other
cross-motions, particularly those that deal with application of the
continuing claim doctrine (app. opp’n and mot. at 10). See the decisions
on LMA’s remaining cross-motions in §§ VI-VII, infra.
28
V. Appellant’s 2nd Cross-Motion for Summary Judgment: “Each MDR
Represents an Underlying Basis for Recovery Under the Contract, Each
with a Separate Claim Accrual Date; All Claims for Impacts Associated
with MDRs After 15 Oct. 2012 Are Timely as a Matter of Law” 22
In Lockheed Martin’s 2nd cross-motion, appellant argues that its claim accrued
when the government incurred liability by authorizing MDRs for additional O&A
work. LMA maintains that its claim is timely “because [it] involves separate changes
each with its own claim accrual date” that occurred after October 15, 2012. (App.
opp’n and mot. at 7, 22-25). 23
A. Requirements for the Accrual of a Claim
The CDA requires at 41 U.S.C. § 7103(a)(4)(A) that a claim be filed within six
years of accrual (“Each claim by a contractor against the Federal Government relating
to a contract and each claim by the Federal Government against a contractor relating to
a contract shall be submitted within 6 years after the accrual of the claim”). Although
this is not a jurisdictional requirement (Sikorsky Aircraft Corp. v. United States,
773 F.3d 1315, 1322 (Fed. Cir. 2014)), a claimant’s failure to comply with this statute
of limitations results in the claim being time-barred (Envtl. Safety Consultants, Inc.,
ASBCA No. 58343, 14-1 BCA ¶ 35,681 at 174,666).
Although the CDA does not define “accrual,” FAR 33.201 provides in relevant
part:
Accrual of a claim means the date when all events, that fix
the alleged liability of either the Government or the
contractor and permit assertion of the claim, were known
or should have been known. For liability to be fixed, some
injury must have occurred. However, monetary damages
need not have been incurred.
22
App. mot. at 20.
23
The government asserted that appellant’s 2nd cross-motion “is not an alleged
‘continuing claim,’” but a “new, MDR-by-MDR alleged ‘impact’ claim” and
that the Board lacks jurisdiction because this claim was never presented to a CO
for a decision (gov’t reply at 7 n.1). We analyzed and rejected this argument in
§III.B, supra and do not consider it further here.
29
B. The Parties’ Positions
The parties take different approaches regarding just what a claimant must know
for a claim to accrue; both focus upon the requirement in FAR 33.201 that accrual
takes place when “all events, that fix the alleged liability” are “known or should have
[been] known.” We rejected the government’s emphasis on the latter phrase in its
motion for summary judgment (see § II, supra), not because it is inappropriate (as it
clearly is necessary), but because there were triable facts regarding when Lockheed
Martin’s claim was known or should have been known that precluded judgment for the
government. In its 2nd cross- motion, appellant emphasizes the former requirement of
“liability” for fixing the accrual date.
While Lockheed Martin does not deny that it raised concerns over what it
regarded as excessive O&A work in its February 24, 2011 correspondence and in the
September 2012 meetings, it gives special attention in this motion to the provision in
FAR 33.201 regarding “liability” as a criterion for claim accrual. In short, LMA
argues that it could not have “known” it had a claim until the government authorized
the additional O&A work by approving multiple MDRs and as a result became
“liable” for the impacts of that effort. Appellant maintains that its “claim does not
have a single accrual date but, instead, has a series of separate accrual dates
corresponding to each of the underlying MDRs that Lockheed Martin was ultimately
required to perform.” (App. opp’n and mot. at 24)
Decision on Appellant’s 2nd Cross-Motion for Summary Judgment
Ascertaining claim accrual is a fact-intensive inquiry that is done on a case-by-
case basis. Our “[p]recedent elaborates that whether and when a CDA claim accrued
is determined in accordance with the FAR, the conditions of the contract, and the facts
of the particular case.” Kellogg Brown & Root Servs., Inc. v. Murphy, 823 F.3d 622,
626 (Fed. Cir. 2016) (further citations omitted).
A. Appellant Was Required to Perform O&A Work When the Government
Approved the MDRs and Not Before: It Was Then That Liability Attached
Contract clause H106 controls how the parties handled MDRs ordered on or
before April 28, 2013. Once the contractor identified a “legacy discrepancy that
requires repair,” it had to “prepare and submit a work request.” Lockheed Martin
became obligated to perform the O&A work when the MDR was approved by the
“ACO or his/her authorized representative.” The government then became liable for
increased costs and was required to “make an equitable adjustment in the contract
prices, the delivery schedule, or both” for each approved MDR that “causes an
increase or decrease in the cost of, or the time required for, performance of any part of
work under [the] contract.” (SOF ¶ 12; see also SOF ¶¶ 9, 11, 13)
30
Because the contract provides that each approved MDR that adversely impacted
the contractor’s cost or schedule furnished a separate and identifiable basis for a
request for an equitable adjustment under the H106 and Changes clauses, LMA’s
O&A claim does not have a single date of accrual. Rather, the claim has multiple
accrual dates that correspond to the government-approved MDRs which ordered the
contractor to perform the extra work. Provided these MDR approvals fall within the
statutory period, the Board has jurisdiction over a claim that has a single cause of
action (here, the requirement for allegedly excessive O&A work) but is based upon
separate and distinct events that took place at different times. See, e.g., Ariadne Fin.
Servs. Pty. Ltd. v. United States, 133 F.3d 874, 879 (Fed. Cir. 1998) (“the continuing
claims doctrine operates to save later arising claims even if the statute of limitations
has lapsed for earlier events” where there is “a series of distinct events – each of which
gives rise to a separate cause of action”).
B. Lockheed Martin’s Claim Accrued with the Government’s
Approval of MDRs on or after October 15, 2012
We find that Lockheed Martin’s claim accrued each time the government
approved MDRs that required additional O&A hours, and the contractor undertook
performance that caused it to incur additional costs and/or delay; see Gray Personnel,
ASBCA No. 54652, 06-2 BCA ¶ 33,378 at 165,476. Liability was then fixed pursuant
to FAR 33.201, and the government’s approvals of a series of MDRs obligating LMA
to perform further O&A work defined the point (or points) at which LMA knew or
should have known its claim accrued.
Under the circumstances in this appeal, it is not enough that contract history
shows that Lockheed Martin was aware of the potential (or even the likelihood) that
the C-5 aircraft to be refurbished could need more O&A work than it allegedly
anticipated (see, e.g., SOF ¶¶ 6, 9, 12, 22-25, 27, 35-36). For its claim to accrue, the
contractor had to have been “injured,” i.e., ordered by the government to perform the
additional work so that liability attached and a claim came into being (see, e.g.,
Electric Boat, 958 F.3d at 1375-76). Lockheed Martin had no claim and the
government had no liability to LMA until the MDRs were approved, because “for
liability to be fixed, some injury must [first] have occurred.” Electric Boat, 958 F.3d
at 1376. Once that happened, the CDA’s statute of limitations began to run, even
though appellant had not incurred the total costs of the work; see Gray Personnel,
06-2 BCA at 165,476.
31
Conclusion
We grant Lockheed Martin’s 2nd cross-motion for summary judgment and find
that its claim is timely. 24
VI. Appellant’s 3rd Cross-Motion for Summary Judgment: “Lockheed
Martin’s Claims Are Timely as a Matter of Law Under the Continuing
Claims Doctrine Because the Underlying O&A Work Was Ordered After
15 Oct. 2012” 25
Lockheed Martin’s 3rd cross-motion argues that its “claims are timely as a matter
of law under the continuing claims doctrine because the underlying O&A work was
ordered after 15 Oct. 2012” (app. opp’n and mot. at 26). This legal argument is integral to
appellant’s 3rd through 6th cross-motions, as it asserts in each of these that “if these
changes were viewed as a single change event, the claim would still be timely (in full or in
part) in accordance with the ‘Continuing Claims Doctrine 26’ (Cross-Motions #3-6)” (id.
at 10). This argument builds upon certain facts urged in appellant’s 2nd cross-motion,
with which we have agreed. These include that the government’s approval of MDRs
calling for further O&A work established separate claim events, and that any portion of
the claim that occurred within the CDA’s 6-year statute of limitations is timely (see § V,
supra).
Appellant emphasizes prior Board decisions that deal with the continuing claim
doctrine, and analogizes contract actions in those opinions to the government’s
approval of MDRs in the instant appeal (app. opp’n and mot. at 26-30). For example,
in Certified Constr. Co. of Ky., ASBCA No. 58782, 14-1 BCA ¶ 35,662, the Board
found that the contractor’s claim did not accrue until publication of a monthly price
index that determined whether it was owed an adjustment under the contract (id. at
174,571). Appellant likens the contractor’s obligation to pay an increased price in
Certified Constr. to LMA’s obligation to perform additional work after the
government approved an MDR: “Until the Government approved performance of the
work associated with a particular MDR, Lockheed Martin could not know the O&A
repairs it was actually required to perform.” As a result, “the Government’s liability
24
Although §§ V-VI of this decision speak to “claim accrual” and appellant’s 3rd
cross-motion focuses on events on October 15, 2012 or thereafter, we note that
Lockheed Martin has agreed that Modification No. P00178 released all claims
on or before November 6, 2012, even if these were within the accrual period.
See, e.g., app. opp’n and mot. at 10-11; see also SOF ¶¶ 6-7, 28.
25
App. opp’n and mot. at 26.
26
It should be noted that the continuing claim doctrine and appellant’s cases cited in
its cross motion pre-date the Federal Circuit’s decision in Sikorsky. Thus, our
decision will relate to whether appellant’s claim is time barred pursuant to the
statute.
32
for the O&A work (and the impacts that flowed from the work) also could not possibly
have been fixed until that MDR was ordered/approved.” (App. opp’n and mot. at-28;
see also 26-30)
Lockheed Martin also compares its factual situation to that of Gray Personnel
(app. opp’n and mot. at 28-30). In the latter appeal, the Board held that the claim did
not accrue until “performance was required”; we determined that the continuing claims
doctrine applied after the government issued a series of delivery orders that effectively
changed the contract (Gray Personnel, 06-2 BCA ¶ 33,378 at 165,477). Appellant
contends “a similar rationale” was used in DynCorp Int’l LLC, ASBCA No. 56078, 09-
2 BCA ¶ 34,290, in which the Board determined that a continuing claim accrued when
the government exercised contract options. According to LMA, “[t]he rationale in
Gray Personnel and DynCorp applies with equal force in the instant appeal,” because
the Board has accepted the doctrine “based on events without which there could have
been no Government liability for impacts to the later time periods (i.e., orders or option
periods).” It maintains that, similarly, “no O&A performance was required of
Lockheed Martin without the Government’s approval of an MDR and no liability could
have fixed but for the Government’s direction.” (App. opp’n and mot. at 29-30)
In addition to overall objections that Lockheed Martin failed to demonstrate
undisputed material facts (see generally gov’t reply, passim, and gov’t opp’n, passim),
the government opposed appellant’s 3rd through 6th cross-motions by contending the
contractor improperly asserted a “new” claim and denying there was a “continuing
claim” that would “save ‘distinct’ parts of its certified claim from being time-barred by
the CDA” (gov’t reply at 5; see also 6-9). We have considered and rejected the
government’s “new claim” argument in § III.B, supra. We address the government’s
assertions that LMA has not met its burden of proof with respect to establishing
application of the continuing claim doctrine (see gov’t reply at 5-7) in detail below.
Decision on Appellant’s 3rd Cross-Motion for Summary Judgment
We grant Lockheed Martin’s 3rd cross-motion for summary judgment, and find
that each relevant MDR approved by the government on or after October 15, 2012
qualifies as a separate and distinct claim event pursuant to the continuing claim
doctrine. The government failed to established triable facts, or to overcome
appellant’s legal argument.
A. Lack of Appellate Precedent Does Not Impede the Board’s Jurisdiction
We begin with the government’s assertion that appellant “does not cite any
Federal Circuit decision applying the ‘continuing claim doctrine” (see gov’t reply at 5).
To the extent the government intends to argue that any paucity of such decisions by
our appellate court is a problem, we disagree that this impedes our jurisdiction or
33
authority to decide this motion (or other matters that rely on the continuing claims
doctrine).
Although it is always valuable to have precedent beforehand from our appellate
tribunals, which are the United States Court of Appeals for the Federal Circuit and the
United States Supreme Court, the government cites no authority for the proposition
that it is necessary that the Board await such rulings (see gov’t reply at 5-6) before
deciding matters that are properly before us. This is particularly the case where - as
here - the ASBCA has a robust line of precedent on the issue. See, e.g., Gray
Personnel, 06-2 BCA ¶ 33,378; ASFA Int’l Constr. Indus. and Trade, Inc., ASBCA
No. 57880, 14-1 BCA ¶ 35,736; DynCorp, 09-2 BCA ¶ 34,290; and related decisions.
As the Board has observed, “Although the continuing claim doctrine found its genesis
in pay cases, it potentially applies to contract cases as well. See, e.g., Aktiebolaget
Bofors v. United States, 153 F. Supp. 397 (Ct. Cl. 1957).” Gray Personnel, 06-2 BCA
at 165,477; see also DynCorp, 09-2 BCA at 169,407 (The Board “believe[s] the claim
is subject to the continuing claim doctrine which we have determined to have
application to government contract cases.”)
We find no merit to the government’s suggestion that the ASBCA is required to
await appellate precedent before deciding a matter within our jurisdiction, particularly
where we apply a legal theory that has been accepted by the Federal Circuit (and its
predecessor forum) in multiple factual situations.
B. The Government Errs Regarding the Standard Proof for the Continuing
Claim Doctrine
Although the government asserts that appellant failed to prove it had a
continuing claim, the former’s argument is based upon an incorrect interpretation of
Lockheed Martin’s burden of proof under this doctrine.
1. The Continuing Claim Doctrine Does Not Require “Specifically Identifiable
‘Damages’” for Each Claim Event
According to the government, the Board’s decision in Gray Personnel
articulated the requirement of “specifically identifiable ‘damages’ to the contractor
from each distinct ‘change,’ that could be found included in the certified claim on
appeal to the Board under the CDA” (gov’t reply at 6) (underlining added). However,
the government does not accurately cite the standard of proof set forth in Gray
Personnel, which was the first decision to rely upon the continuing claim doctrine in a
CDA appeal before the Board. The ASBCA found the continuing claim doctrine was
appropriately invoked for claims that are “inherently susceptible to being broken down
into a series of independent and distinct events or wrongs, each having its own
associated damages.” Gray Personnel, 06-2 BCA at 165,477 citing Brown Park
Estates-Fairfield Dev. Co. v. United States, 127 F.3d 1449, 1456 (Fed. Cir. 1997),
34
which in turn cited Friedman v. United States, 310 F.2d 381, 384 (1962).
The government’s assertion that each continuing claim event or wrong must
have “specifically identifiable damages” differs from the requirement of “associated
damages” that is set forth in Gray Personnel. The government does not cite any other
decision or authority to support this assertion. Insofar as the government’s contentions
here, our determination that LMA’s claim arose from multiple events is not defeated
even if appellant “cannot even identify a single hour of the 428,482 claimed
‘production hours’ allegedly caused by any identifiable MDR and the number of O&A
hours related thereto” (gov’t reply at 7) (emphasis omitted).
We decline to adopt the government’s heightened and unsupported standard for
damages under the continuing claim doctrine. Although not clearly labeled as such,
this argument appears to be an effort by the government to preclude (or at least make
far more difficult) LMA’s reliance on the measured mile legal theory.
2. The Continuing Claim Doctrine Does Not Require a “Wrong” or
“Unilateral” Government Action
Among the governments other criticisms of Lockheed Martin’s reliance on the
continuing claim doctrine is the suggestion that a “wrong” is necessary for that
doctrine to apply. Additionally, the government maintains that the “events” or
“wrongs” in Gray Personnel and DynCorp involved “unilateral” government action
(gov’t reply at 5-6) (underlining added by the government). If the government
intended to say that these ASBCA decisions somehow stand for the proposition that
“unilateral” government action is necessary for the continuing claim doctrine to apply,
this argument was inadequately developed.
The government is not required to have committed a “wrong” under the
doctrine, although that might have been the case. As the courts and Board repeatedly
have said, either an “event” or a “wrong” may form the basis for a continuing claim;
see, e.g., Gray Personnel, 06-2 BCA at 165,477 (citing Aktiebolaget Bofors v. United
States, 153 F. Supp. 397 (Ct. Cl. 1957)) (underlining added).
In the instant appeal, the facts as alleged by both parties show neither a
“wrong” nor a “unilateral government” action (see, e.g., gov’t mot., passim; app.
opp’n and mot., passim). The contract between Lockheed Martin and the government
anticipated there could be changes that might entitle LMA to an equitable adjustment
for additional “over and above” work if the government deemed the work necessary;
see, e.g., SOF ¶¶ 3, 9, 11-13 regarding the H106 clause and the contract’s two
“changes” clauses. The government’s compliance with provisions to authorize
additional work by approving MDRs was a contractually-permissible “event” and not
a “wrong” that might or might not entitle the contractor to recovery.
35
3. The Concept Underlying the Continuing Claim Doctrine
The concept of a continuing claim was developed for those situations in which
the claim is susceptible to being broken down into a series of discrete events, each
with its own accrual date. Qualified claim events within the statutory period survive,
even if those which arose prior to that point do not. Continuing claims, which arise
from multiple, related events (also “wrongs”), can be distinguished from those that are
rooted in a single event. In the latter, jurisdiction exists even if the resulting harm
continues so long as that single event occurred within the statutory period. The
“continuing claim” legal theory did not originate with the Board, but arose from
substantial appellate precedent which we follow.
As the ASBCA has explained:
Under the “continuing claim” doctrine, portions of the
claim within the statutory limitation period can survive
although the statute of limitations has lapsed for earlier
events. Ariadne Financial Servs. Pty. Ltd. v. United States,
133 F.3d 874, 879 (Fed. Cir. 1998). For [a party’s] claim
to be a continuing claim, the claim “must be inherently
susceptible to being broken down into a series of
independent and distinct events or wrongs, each having its
own associated damages.” Furthermore, “a claim based
upon a single distinct event, which may have continued ill
effects later on, is not a continuing claim.” Gray
Personnel, 06-2 BCA ¶ 33,378 at 165,476-77 (citing
Brown Park Estates-Fairfield Development v. United
States, 127 F.3d 1449, 1456 (Fed. Cir. 1997)).
ASFA, 14-1 BCA ¶ 35,736 at 174,909 (underlining added).
One-time claim events that cause a “single harm,” even though the ill effects
may recur, do not meet the test for a continuing claim. In Brown Park Estates, which
is relied upon in Gray Personnel (see 06-2 BCA at 165,476-77), the court gave the
example of a military retiree who elected not to participate in a survivor benefit plan
and whose widow was not given certain benefits she would otherwise have received.
Even though the widow, whom the government failed to inform regarding her
husband’s choice, was adversely affected as a consequence and argued there was a
continuing claim, the court disagreed. It determined there was only “one alleged
wrong by the government, which accrued all at once at one point in time, even though
it may have had later adverse effects.” The disappointed widow’s claim would have
been timely had it been brought within the requisite period from her husband’s
election, but it was not. Brown Park Estates, 127 F.3d at 1456-57 (citing Hart v.
United States, 910 F.2d 815, 816 (Fed. Cir. 1990)).
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Conclusion
As appellant has established there were no disputed material facts, and that
favorable judgment is warranted on the grounds presented, we sustain LMA’s 3rd
cross-motion for summary judgment. Lockheed Martin’s claim is timely to the extent
that it is based upon MDRs that the government approved on or after October 15,
2012. We agree that the continuing claim doctrine applies; the government’s
inexactitude regarding the contractor’s burden of proof was unhelpful, and we decline
to adopt the requirements urged.
The government’s approvals of a series of MDRs represent the type of single-
topic (i.e., authorization of additional O&A work) yet repeated and distinct events that
the continuing claim doctrine contemplates. Lockheed Martin could not have known
until the government gave these approvals whether it was required to perform O&A
work it considered beyond the scope of the contract, nor was the government liable for
any work the contractor undertook absent that direction.
VII. Lockheed Martin’s 4th through 6th Cross-Motion for Summary Judgment
Lockheed Martin’s 4th through 6th cross-motions for summary judgment are
offered to provide alternative bases for jurisdiction (app. opp’n and mot. at 7), just in
case “the Board were to disagree that the entirety of [its] claim is timely under the
Continuing Claims Doctrine on the basis of MDR orders (Cross-Motion #3)” (id.
at 31).
LMA’s 4th cross-motion (app. opp’n and mot. at 30-33) asserts that appellant
“could not identify the extent of the need for legacy repairs on a particular aircraft
before an aircraft was actually inducted” (id. at 30). It argues that “Lockheed Martin’s
claims for impacts associated with aircraft P-15 to P-27 – which were inducted after 15
October 2012 and within six years of Lockheed Martin’s 15 October 2018 claim – are
timely under the Continuing Claims Doctrine” (id. at 33). Appellant contends in its
5th cross-motion (id. at 33-35) that it’s “claims must be timely to the extent that they
relate to Lot 5 aircraft,” because that work was not authorized until after October 15,
2012. It says that “[u]ntil the Government exercised its options for Lot 5 O&A work
and for the Lot 5 install work,” each of which took place after October 15, 2012, “the
Government could have no liability and Lockheed Martin could have no claim” (id.
at 35). LMA’s 6th cross-motion (id. at 35-38) asserts its claim is timely because “the
Government exercised the option [of the] T&M O&A CLIN for Lot 5 on 20 December
2012 and awarded the CPFF O&A CLIN for Lots 3, 4, and 5 on 25 April 2013 – less
than six years before Lockheed Martin submitted its claim on 15 October 2018” (id.
at 37).
In this decision (see §§ V-VI, supra), we granted LMA’s 2nd and 3rd cross-motions,
and found that the contractor’s October 15, 2018 claim was timely filed. We found further:
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(1) under the continuing claim doctrine, appellant’s claim arose from separate and distinct
events that took place on or between October 15, 2012 and October 15, 2018; (2) these
events were the government’s approvals of a series of MDRs that required Lockheed Martin
to perform additional O&A work; (3) appellant’s claim accrued with each of these approved
MDRs, as the contractor neither knew nor could have known until then whether and what
further work was required by the government; (4) to the extent that LMA’s claim for
recovery is predicated on MDRs approved on or after October 15, 2012, it is within the
statutory period established by the CDA; and (5) appellant’s awareness prior to October 15,
2012 that the aircraft were requiring additional O&A repair work did not cause it to “know”
(or mean that it “should have known”) that its October 15, 2018 claim accrued more than
six years before it was submitted to the CO.
We have agreed with Lockheed Martin that its claim is “inherently susceptible
to being broken down into a series of independent and distinct events or wrongs” (see
Gray Personnel, 06-2 BCA at 165,477). Because we find that the “distinct events”
that comprise the claim are the MDRs that were approved by the government on or
after October 15, 2012, it is unnecessary that we decide Lockheed’s alternative 4th
through 6th cross-motions and we decline to do so.
We regard these motions as informative to the extent that appellant established
material facts relating to relevant contract actions. For example, in findings relevant to
its 4th cross-motion, LMA established that aircraft P-12 though P-27, which are the
subject of its claim, were inducted after October 15, 2012 and were not the subject of
MDRs prior to that date (see, e.g., SOF ¶¶ 14-17; see also app. opp’n and mot. at 30-
33; gov’t opp’n at 16, 23). Appellant’s 5th cross-motion similarly shows that the Lot 5
option was not exercised until after October 15, 2012 (see SOF ¶¶ 10-11; see also app.
opp’n and mot. at 33-35; gov’t opp’n at 17). In like vein, undisputed material facts
from Lockheed Martin’s 6th cross-motion demonstrate that “the Government
exercised the option T&M O&A CLIN for Lot 5 on 20 December 2012 and awarded
the CPFF O&A CLIN for Lots 3, 4, and 5 on 25 April 2013,” which is “less than six
years before Lockheed Martin submitted its claim on 15 October 2018” (see app.
opp’n and mot. at 35; also gov’t opp’n at 17-19, 23 and SOF ¶¶ 10-11).
CONCLUSION REGARDING THE PARTIES’ CROSS-MOTIONS
FOR SUMMARY JUDGMENT
The Board has considered all arguments advanced by the parties, whether
discussed in detail or not. The government’s motion for summary judgment is denied,
as is appellant’s 1st cross-motion for summary judgment. We grant Lockheed
Martin’s 2nd and 3rd cross-motions and find that its claim is timely to the extent that it
is based upon MDRs approved on or after October 15, 2012. It is unnecessary that the
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Board decide appellant’s 4th through 6th cross-motions, which were stated as
alternative bases for summary judgment in the event that its prior motions were
denied.
Dated: April 13, 2022
REBA PAGE
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD OWEN C. WILSON
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 62209, Appeal of
Lockheed Martin Aeronautics Company, rendered in conformance with the Board’s
Charter.
Dated: April 13, 2022
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
39