Lockheed Martin Aeronautics Company

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 ¶ 35,988

Does 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

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