Sufi Network Services, Inc. v. United States , 785 F.3d 585 ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
SUFI NETWORK SERVICES, INC.,
Plaintiff-Cross-Appellant
v.
UNITED STATES,
Defendant-Appellant
______________________
2014-5032, 2014-5033
______________________
Appeals from the United States Court of Federal
Claims in No. 1:11-cv-00453-TCW, Judge Thomas C.
Wheeler.
______________________
Decided: April 24, 2015
______________________
BRIAN TULLY MCLAUGHLIN, Crowell & Moring, LLP,
Washington, DC, argued for plaintiff-cross-appellant.
Also represented by FREDERICK W. CLAYBROOK, JR.
DOUGLAS T. HOFFMAN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellant. Also
represented by STUART F. DELERY, ROBERT E. KIRSCHMAN,
JR., STEVEN J. GILLINGHAM.
______________________
Before LOURIE, REYNA, and TARANTO, Circuit Judges.
2 SUFI NETWORK SERVICES, INC. v. US
REYNA, Circuit Judge.
The Air Force Nonappropriated Funds Purchasing Of-
fice (“Air Force”) materially breached a contract with
SUFI Network Services, Inc. (“SUFI”). SUFI submitted
claims to the Air Force contracting officer and appealed
denied claims to the Armed Services Board of Contract
Appeals (“Board”). SUFI succeeded on several of its claims
and subsequently submitted a claim for attorney fees to
the contracting officer. The contracting officer did not
respond to SUFI’s attorney fees claim for more than six
months. As a result, SUFI bypassed the Board and sued
in the Court of Federal Claims. The trial court awarded
attorney fees with interest but denied SUFI’s request for
overhead and lost profit. The government challenges the
trial court’s award on the basis that the trial court lacked
jurisdiction. SUFI cross-appeals for overhead and lost
profit. For the reasons that follow, we affirm in part,
vacate in part, and remand.
BACKGROUND
In 1996, SUFI contracted with the Air Force to install
and operate telephone systems in lodging facilities on Air
Force bases in Germany. 1 SUFI furnished the necessary
supplies, including cabling, wiring, telephone equipment,
and other materials, at no cost to the Air Force. In ex-
change, the Air Force agreed that guests would make long
distance calls exclusively through SUFI’s network.
Shortly after the parties entered into the contract, the
Air Force broke its promise of exclusivity. Dispute first
arose when the Air Force refused to disable free commu-
nal phones that guests were using to avoid SUFI’s long-
1 SUFI Network Servs., Inc. v. United States, 755
F.3d 1305, 1309–11 (Fed. Cir. 2014) (“SUFI I”) contains a
full description of the facts giving rise to this dispute. We
include only facts necessary for this opinion.
SUFI NETWORK SERVICES, INC. v. US 3
distance charges. The dispute intensified when the Air
Force ordered SUFI to allow guests to access SUFI’s
network by using calling cards from competing long
distance service providers. SUFI initiated administrative
proceedings at the Board, alleging that the Air Force
materially breached the contract.
In 2004, the Board found that the Air Force was in
material breach and that SUFI was entitled to cancel the
contract. SUFI cancelled the contract, and the parties
entered into a Partial Settlement Agreement in 2005. The
parties agreed that the Air Force would pay SUFI $1.2
million for its network and $1.075 million for good will.
The parties also agreed that SUFI reserved the right to
pursue additional monetary claims arising from the Air
Force’s material breach. Should SUFI succeed on addi-
tional claims, the Air Force agreed to pay SUFI interest
from the date the Air Force received the claim, or the date
SUFI “actually incurred” damages, whichever date is
earlier. J.A. 1980. Thereafter, SUFI submitted claims to
the contracting officer pursuant to the contract’s disputes
clause.
The disputes clause requires that the contracting of-
ficer decide “any dispute or claim concerning [the] con-
tract.” Id. at 748. The contracting officer must resolve the
dispute or claim and “state his decision in writing.” Id.
Once the contracting officer’s decision is received, any
appeal to the Board must be made within 90 days. Id. If
no appeal is made, the contracting officer’s decision is
final. Id.
SUFI submitted 28 claims, totaling over $131 million.
SUFI Network Servs., Inc., ASBCA No. 55306, 09–1 BCA
¶ 34,018 at 168,217 (Nov. 21, 2008). The contracting
officer failed to issue a decision for more than six months,
and SUFI appealed to the Board. Id. The Board docketed
SUFI’s appeal as a “deemed denial,” id., but before it
decided SUFI’s claims, the contracting officer issued a
4 SUFI NETWORK SERVICES, INC. v. US
final decision denying all of SUFI’s claims except one. Id.
at 168,219 ¶ 9. Thereafter, the Board found in SUFI’s
favor on 22 of the 28 claims. 2
SUFI requested that the Board award expenses in-
curred in connection with preparing and submitting the
claims to the contracting officer. The Board awarded
SUFI certain claim preparation and non-legal consultant
expenses. Id. at 168,289–91. SUFI’s brief to the Board
also discussed attorney fees incurred in connection with
its successful claim preparation efforts. Id. at 168,289. At
the time, however, SUFI was unable to identify a specific
amount of attorney fees because SUFI and its attorneys
had agreed to a contingency fee arrangement sometime in
2004. As a result, the Board declined to decide whether
SUFI was entitled to attorney fees. Id.
On December 29, 2010, SUFI submitted to the con-
tracting officer a formal claim for attorney fees and re-
quested a decision within 60 days. More than six months
passed without a decision by the contracting officer. On
July 7, 2011, after numerous inquiries from SUFI about
the status of the claim, Air Force counsel informed SUFI
that SUFI could consider its claim “deemed denied.”
The next day, SUFI sued the Air Force in the trial
court, seeking attorney fees and expenses incurred as part
of its successful claim preparation efforts, along with
interest on those fees and expenses. The government
moved to dismiss, arguing that because SUFI did not
appeal to the Board, SUFI failed to exhaust the contrac-
tual remedy required by the disputes clause. The trial
court denied the motion, concluding that SUFI was ex-
2 SUFI sought review of the amount awarded by the
Board in the trial court. Although SUFI prevailed before
the trial court, we recently vacated much of that decision.
See SUFI I, 755 F.3d at 1323–24.
SUFI NETWORK SERVICES, INC. v. US 5
cused from performance under the disputes clause be-
cause the contracting officer’s delay rendered the contrac-
tual remedy inadequate and unavailable and constituted
material breach of the disputes clause. SUFI Network
Servs., Inc. v. United States, 102 Fed. Cl. 656, 661–62
(2012) (“SUFI CFC I”). The trial court then granted
summary judgment in SUFI’s favor on the issue of liabil-
ity for attorney fees and expenses. SUFI Network Servs.,
Inc. v. United States, 105 Fed. Cl. 184, 192–195 (2012)
(“SUFI CFC II”). The case proceeded to trial on the ques-
tion of fees and liability for interest.
After trial, the court determined the proper amount of
damages and interest. First, the trial court determined
that SUFI’s attorney fee calculations were reasonable and
awarded $697,702.50 in fees and $25,486.81 in expenses.
SUFI Network Servs., Inc. v. United States, 113 Fed. Cl.
140, 147–48 (2013) (“SUFI CFC III”). Second, the trial
court held that under the Partial Settlement Agreement,
SUFI was entitled to interest on attorney fees and ex-
penses starting from the date SUFI’s attorneys began the
claim preparation work. Id. at 148. The court determined
that SUFI was not entitled to overhead and lost profit
incurred in connection with its claim preparation efforts.
Id. at 149. The government appealed, and SUFI cross-
appealed. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
DISCUSSION
We review the trial court’s legal conclusions de novo
and its factual findings for clear error. Ind. Mich. Power
Co. v. United States, 422 F.3d 1369, 1373 (Fed. Cir. 2005).
Contract interpretation and interpretation of a settlement
agreement are questions of law that we review de novo.
Augustine Med., Inc. v. Progressive Dynamics, Inc., 194
F.3d 1367, 1370 (Fed. Cir. 1999).
An initial question concerns the trial court’s jurisdic-
tion, given that SUFI bypassed the Board and brought
6 SUFI NETWORK SERVICES, INC. v. US
suit directly in the trial court. This question depends in
part on whether this dispute is governed by the Contract
Disputes Act (CDA). The parties agree that it is not.
Accordingly, this case falls within the trial court’s Tucker
Act jurisdiction. See Slattery v. United States, 635 F.3d
1298, 1321 (Fed. Cir. 2011) (en banc) (“[T]he jurisdictional
foundation of the Tucker Act is not limited by the appro-
priation status of the agency’s funds or the source of funds
by which any judgment may be paid.”). We apply the
common law to this dispute, and not the CDA.
I. Exhaustion
The trial court excused SUFI from exhausting the
contractual remedy under the disputes clause based on
two theories. SUFI CFC I, 102 Fed. Cl. at 661–62. First,
the contracting officer’s failure to issue a final decision
within a reasonable time rendered the contractual remedy
inadequate and unavailable. Id. Second, the contracting
officer materially breached the disputes clause, which
excused SUFI from further performance under the clause.
Id. at 662.
According to the government, the trial court incorrect-
ly presumed that SUFI lacked adequate recourse absent a
final decision by the contracting officer. The government
contends SUFI could have appealed directly to the Board
under Board rules promulgated as part of the Federal
Acquisition Regulation (FAR) System. 3 The government
highlights that SUFI had already used this recourse when
it appealed to the Board without first receiving the con-
tracting officer’s decision on SUFI’s original breach
claims.
SUFI responds that precedent supports the trial
court’s conclusion. SUFI argues that our predecessor
3 Federal Acquisition Regulations are codified in Ti-
tle 48 of the Code of Federal Regulations.
SUFI NETWORK SERVICES, INC. v. US 7
court has held that a contracting officer’s delay or refusal
to render a timely decision excuses a party from exhaust-
ing its contractual remedy. See, e.g., N.Y. Shipbuilding
Corp. v. United States, 385 F.2d 427, 435 (Ct. Cl. 1967);
Oliver-Finnie Co. v. United States, 279 F.2d 498, 503 (Ct.
Cl. 1960); Se. Oil Fla., Inc. v. United States, 115 F. Supp.
198, 201 (Ct. Cl. 1953). SUFI also argues this Court’s
precedent is consistent with our predecessor’s. See, e.g.,
New Valley Corp. v. United States, 119 F.3d 1576, 1581–
82 (Fed. Cir. 1997) (finding contractor exhausted disputes
clause by attempting, unsuccessfully, to obtain a timely
decision from a contracting officer).
We affirm the trial court and hold that the contracting
officer’s delay rendered the contractual remedy inade-
quate and unavailable. 4 A contractual remedy is a gov-
ernment contractor’s exclusive remedy unless there is
“some clear evidence that the appeal procedure is inade-
quate or unavailable.” United States v. Joseph A. Holpuch
Co., 328 U.S. 234, 240 (1946). If a contractor ignores a
contractual remedy altogether, the contractor’s failure to
exhaust the remedy will not be excused. United States v.
Anthony Grace & Sons, Inc., 384 U.S. 424, 427 (1966);
Joseph A. Holpuch, 328 U.S. at 239; United States v.
Blair, 321 U.S. 730, 735 (1944). When a contracting
officer “so clearly reveals an unwillingness to act,” howev-
er, a contractual remedy may become inadequate or
unavailable. Anthony Grace & Sons, 384 U.S. at 430.
In this case, the contracting officer’s unwillingness to
render a decision for more than six months denied SUFI
access to the Board, rendering SUFI’s contractual remedy
4 The parties agree that the disputes clause sur-
vived the government’s original material breach. See
Appellant’s Br. 9 (arguing that SUFI was required to
comply with disputes clause); Cross-Appellant’s Br. 13
(arguing that disputes clause applies to breaches).
8 SUFI NETWORK SERVICES, INC. v. US
inadequate and unavailable. This was affirmed by Air
Force counsel’s advice that SUFI could consider the
attorney fees claim deemed denied. By its terms, the
disputes clause does not provide a way in which SUFI can
reach the Board without first obtaining a decision from
the contracting officer. See J.A. 748. SUFI may appeal to
the Board only after receipt of the contracting officer’s
“decision in writing.” Id. The contracting officer’s failure
to issue a written decision prevented SUFI from obtaining
a Board decision, hence, the contracting officer prevented
SUFI from accessing the courts. See N.Y. Shipbuilding,
385 F.2d at 437 (“No proper initial decision has been
rendered administratively, there is nothing from which to
appeal, and there is nothing for the appeal board to
consider.”).
The fact that the government eventually informed
SUFI that it could deem its claim denied does not change
our analysis, even if we were to determine that the gov-
ernment’s deemed denial constituted a written decision by
the contracting officer. By the time the government sent
SUFI the deemed denial notice, the contractual remedy
had been rendered inadequate and unavailable, giving
SUFI the option to sue in the trial court. The trial court
did not err in deciding that the contracting officer’s delay
rendered the contractual remedy inadequate and unavail-
able. Nor does the Board’s discretionary authority under
48 C.F.R. Ch. 2 App. A to review an appeal where the
contracting officer fails to issue a decision in “a reasonable
time” relieve the government of its independent obligation
to timely respond to SUFI’s claim.
II. Attorney Fees
SUFI’s contract incorporates by reference two of the
FAR’s standard changes clauses: a supplies changes
clause and a services changes clause. If the contract is for
supplies, the contracting officer may make an equitable
adjustment for changes in “[d]rawings, designs, or specifi-
SUFI NETWORK SERVICES, INC. v. US 9
cations,” methods of “shipment or packing,” and “[p]lace of
delivery.” FAR § 52.243–1. If the contract is for services
and if “no supplies are to be furnished,” a contracting
officer may make an equitable adjustment for changes in
the “[d]escription of services to be performed,” the “[t]ime
of performance,” and the “[p]lace of performance.” FAR
§ 52.243–1 Alternate I.
The trial court concluded that SUFI’s attorney fees,
incurred in negotiating its breach claims with the con-
tracting officer, are recoverable under the contract’s
changes clause and are allowed by the FAR as contract
administration costs. SUFI CFC II, 105 Fed. Cl. at 192–
95 (citing Bill Strong Enters., Inc. v. Shannon, 49 F.3d
1541, 1549–50 (Fed. Cir. 1995)). Recognizing that the
FAR does not apply to nonappropriated funds contracts,
see FAR §§ 1.104, 2.101, the trial court grounded its
conclusion in common law, finding that SUFI’s attorney
fees are recoverable as a foreseeable consequence of the
government’s breach. SUFI CFC II, 105 Fed. Cl. at 195.
The government interprets the trial court’s holding as
awarding attorney fees only under the changes clause.
According to the government, attorney fees are not recov-
erable under the changes clause because neither the
supplies changes clause nor the services changes clause
would permit the contracting officer to make an equitable
adjustment to account for attorney fees incurred as part of
SUFI’s claim preparation efforts. The government, how-
ever, fails to address whether attorney fees are recovera-
ble under the common law.
SUFI argues that attorney fees are recoverable under
the services changes clause because the government’s
breach triggered SUFI’s negotiations with the contracting
officer. SUFI contends those negotiations qualify as a
change in “services to be performed” under the services
changes clause. Alternatively, SUFI argues that attorney
fees were foreseeable under the common law because the
10 SUFI NETWORK SERVICES, INC. v. US
disputes clause required SUFI to resolve breach claims by
negotiating with the contracting officer.
We affirm the trial court’s ruling that SUFI is entitled
to attorney fees under common law. Under common law,
damages for breach of contract are awarded to place the
wronged party in the position it would have been in had
the contract been fully performed. Mass. Bay Transp.
Auth. v. United States, 129 F.3d 1226, 1232 (Fed. Cir.
1997) (“MTBA”). The government does not dispute that
pre-litigation attorney fees under a claim-preparation
provision like the one here can be compensable under
common law principles.
The government argues that the trial court’s award
should be vacated because the trial court erred in mixing
two distinct theories of recovery, the changes clause and
the FAR, and common law. We disagree. Although the
trial court addressed the changes clause, it clarified that
the attorney fees award was based on common law. See
SUFI CFC III, 113 Fed. Cl. at 145 (explaining that attor-
ney fees were a “direct and foreseeable result” of the
government’s breach). The government failed to attack
the trial court’s award of attorney fees on the basis of
common law. Thus, we affirm the trial court’s award of
attorney fees.
III. Interest
The trial court also awarded interest on attorney fees
from the date SUFI’s attorneys undertook the claim
preparation work. Id. at 148. Under the Partial Settle-
ment Agreement, the Air Force agreed to pay SUFI inter-
est on any amount recovered by a judgment “from the
earlier of (i) the date of receipt of the claim, or (ii) the date
damages are actually incurred, until payment.” J.A. 1980.
The trial court determined that fees are incurred “either
when they are paid or when there is an ‘express or im-
plied agreement that the fee award will be paid over to
the legal representative.’” SUFI CFC III, 113 F. Cl. at 148
SUFI NETWORK SERVICES, INC. v. US 11
(internal quotation mark omitted) (quoting United Parti-
tion Sys., Inc. v. United States, 95 Fed. Cl. 42, 53 (2010)
(quoting Phillips v. Gen. Servs. Admin., 924 F.2d 1577,
1583 (Fed. Cir. 1991) (per curiam))).
The government argues that SUFI’s contingency fee
arrangement means that attorney fees were not “actually
incurred” on the date the attorneys did the work because
there was no obligation to pay the attorneys on that date.
Thus, the government contends that the earliest date of
interest accrual would be December 29, 2010, the date
SUFI submitted its claim for fees and expenses to the
contracting officer. The government also argues that the
cases relied on by the trial court are limited to attorney
fees under the Equal Access to Justice Act (EAJA). We
cannot rely, the government insists, on interpretation of
statutory language that is unrelated to the Partial Set-
tlement Agreement.
SUFI counters that SUFI incurred an obligation to
pay attorney fees at the moment the attorneys worked on
SUFI’s matter. SUFI also relies, as the trial court did, on
cases interpreting the word “incurred” in the EAJA and
other fee shifting statutes.
We agree with the government that SUFI did not “ac-
tually incur” attorney fees on the date SUFI’s attorneys
did the work. Contract interpretation starts with the
language of the contract. Coast Fed. Bank, FSB v. United
States, 323 F.3d 1035, 1038 (Fed. Cir. 2003). Terms must
be given their plain meaning if the language of the con-
tract is clear and unambiguous. Id. The word “incur”
means to suffer “a liability or expense.” See Black’s Law
Dictionary 771 (7th ed. 1999). Because the contract was
between SUFI and the Air Force, SUFI, and not SUFI’s
attorneys, must have “actually incurred” attorney fees on
the date SUFI’s attorneys did the work. SUFI admits that
it received no legal bills after the contingency fee ar-
rangement was put into place. SUFI’s attorneys could not
12 SUFI NETWORK SERVICES, INC. v. US
have demanded payment from SUFI on the dates the
work was done because the contingency, i.e., recovery
from the government, had not yet occurred. Thus, SUFI
suffered no liability or cost when SUFI’s attorneys did the
work.
The case law relied on by the trial court is not persua-
sive. Those cases involve only whether attorney fees can
be incurred under the EAJA, not when they are incurred.
See United Partition Sys., Inc. v. United States, 95 Fed.
Cl. 42, 53 (2010); Phillips v. Gen. Servs. Admin., 924 F.2d
1577, 1583 (Fed. Cir. 1991) (per curiam).
SUFI argues that the attorney fees award is not based
on fees actually incurred after the contingency. Rather,
the award is based on a lodestar calculation involving
hours worked, making the date those hours were worked
relevant. We disagree. The lodestar analysis only deter-
mines the amount of attorney fees sought. Had SUFI lost
its case, no attorney fees would have been owed to the
attorneys, even though the attorneys performed the work.
In either case, it cannot be said that SUFI bore the finan-
cial cost of interest as it was never deprived of the use of
monies paid to the lawyers; there were no such payments.
See, e.g., LMI-La Metalli Industriale, S.p.A. v. United
States, 912 F.2d 455, 460–61 (Fed. Cir. 1990) (“The time
value of money is not an arbitrary fiction, but must corre-
spond to a dollar figure reasonably calculated to account
for such value during the gap period between delivery
and payment.”). We therefore vacate the trial court’s
award of interest and remand with instructions that the
trial court calculate interest consistent with this opinion.
IV. Standard Rates
The trial court calculated attorney fees based on
SUFI’s attorneys’ standard rates that were in place when
SUFI’s attorneys did the claim preparation work. SUFI
CFC III, 113 Fed. Cl. at 145–47. The trial court concluded
that SUFI’s attorneys’ standard rates were reasonable on
SUFI NETWORK SERVICES, INC. v. US 13
the basis of (i) testimony as to rates typically charged by
SUFI’s attorneys during the relevant time period, (ii) an
expert report that compared SUFI’s attorneys’ rates to
rates charged by a leading law firm during the same time
period, (iii) and evidence of market conditions that existed
at the time. Id. at 147.
The government argues that the trial court should
have based its fee award on the rates SUFI actually paid
its attorneys before the contingency arrangement was in
place, and not the standard rates. The government rea-
sons that SUFI did not produce at trial its other fee
agreement that was in place prior to the contingency fee
agreement. As a result, the government argues that SUFI
did not meet its burden of proving that the standard rates
were reasonable. SUFI responds that the evidence sup-
ports the trial court’s conclusion because the government
failed to challenge the standard rate evidence at trial or
on appeal.
We find no clear error in the trial court’s award of fees
based on SUFI’s attorneys’ standard rates. The trial court
calculated SUFI’s attorney fees award using the lodestar
method, which involves multiplying the number of hours
by an hourly rate. See, e.g., Perdue v. Kenny A. ex rel.
Winn, 559 U.S. 542, 546 (2010). Both the number of hours
and the hourly rate must be reasonable, and a party
seeking a fee award has the burden of proving reasona-
bleness. Blum v. Stenson, 465 U.S. 886, 897 (1984). An
hourly rate is reasonable if it is “in line with those pre-
vailing in the community for similar services by lawyers
of reasonably comparable skill, experience and reputa-
tion.” Id. at 896 n.11. The trial court heard evidence
suggesting that SUFI’s attorneys’ standard rates were
reasonable and in line with those prevailing in the com-
munity.
The government cites no authority that a party can-
not prove the reasonableness of its standard rates when
14 SUFI NETWORK SERVICES, INC. v. US
there is evidence the party paid a different rate at an
earlier, unrelated time. In addition, the government
introduced testimony suggesting that the prior rates were
similar to the standard rates used by the trial court to
calculate the attorney fees award. We affirm the trial
court’s attorney fees calculation.
V. SUFI’s Cross-Appeal
The trial court denied SUFI’s request for overhead
costs and lost profits it incurred pursuing its claim for
attorney fees on the grounds that the FAR provides that
the government “will not pay excessive pass-through
charges,” FAR § 52.215-23(b), which are generally defined
as a contractor’s “indirect costs or profit” resulting from
work performed by a subcontractor with “negligible value”
added by the contractor, id. § 52.215-23(a). SUFI CFC III,
113 Fed. Cl. at 148–49. The trial court determined that
SUFI added negligible value to the claim preparation
work done by SUFI’s attorneys, hence, SUFI’s overhead
and profit constituted excessive pass-through charges.
SUFI CFC III, 113 Fed. Cl. at 149.
SUFI argues that the trial court erred in applying the
FAR because the FAR does not apply. SUFI contends that
under applicable common law, overhead and lost profit
are recoverable. The government responds that SUFI’s
overhead costs and lost profits are unreasonable damages
and thus unrecoverable under common law for the same
reason that excessive pass-through charges are not al-
lowed under the FAR.
We agree with SUFI that the trial court erred in ap-
plying the FAR. The FAR does not apply to SUFI’s non-
appropriated funds contract. See FAR §§ 1.104, 2.101.
Under applicable common law, damages for breach of
contract should place the wronged party in as good a
position as it would have been had the breaching party
fully performed. MTBA, 129 F.3d at 1232–33. If a party
SUFI NETWORK SERVICES, INC. v. US 15
shows that work was done solely because of a breach, that
party is entitled to prove the cost of that work, including
“both direct and indirect costs.” Energy Nw. v. United
States, 641 F.3d 1300, 1309 (Fed. Cir. 2011).
Contrary to the government’s contention, the common
law and the FAR are not synonymous in this instance.
The common law, unlike the FAR, does not require the
party seeking overhead and profit to prove that it added
more than negligible value to the work. See Energy Nw.,
641 F.3d at 1309. Nor would the parties have contemplat-
ed that FAR § 52.215-23 would limit overhead and profit
recovery. The parties entered the contract in 1996. Legis-
lation prohibiting excessive pass-through charges was not
passed until 2007. John Warner National Defense Author-
ization Act for Fiscal Year 2007, Pub. L. No. 109-364,
§ 852(b) (codified at 10 U.S.C. § 2324 note). The final
version of FAR § 53.215-23 did not issue until December
2010. See 75 Fed. Reg. 77,745 (Dec. 13, 2010). Thus, we
vacate the trial court’s denial of overhead and profit and
remand with instructions that the trial court apply law
consistent with this opinion.
CONCLUSION
For these reasons, we affirm-in-part, vacate-in-part,
and remand.
AFFIRMED IN PART, VACATED IN PART, and
REMANDED
COSTS
No costs.