ASBCA 58636

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Teledyne Brown Engineering, Inc. ) ASBCA No. 58636 ) Under Contract No. W911SR-04-D-0011 ) APPEARANCES FOR THE APPELLANT: Jon D. Levin, Esq. William R. Lunsford, Esq. Maynard, Cooper & Gale, P.C. Huntsville, AL APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Ahsan M. Nasar, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE YOUNGER ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT AND APPELLANT'S MOTION TO STRIKE This deemed denial appeal concerns a claim by Teledyne Brown Engineering, Inc. (Teledyne) to a greater fixed fee under an indefinite delivery/indefinite quantity cost-plus-fixed-fee contract. The government has moved for summary judgment, contending that Teledyne is not entitled to the full fixed fee because only approximately one-half the total cost ceiling contemplated by the contract was reached. Hence, the government maintains, Teledyne is only entitled to the percentage ofthe fee corresponding to the percentage of funding actually allocated to the contract. Teledyne opposes the motion, arguing chiefly that it performed all work required and is entitled to the entire fixed fee. Teledyne has also moved to strike the government's motion for summary judgment as noncompliant with FED. R. CIV. P. 56. We deny the motion for summary judgment and dismiss the motion to strike as moot. STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS 1. By date of 13 July 2004, the U.S. Army Contracting Command, Aberdeen Proving Ground (Army or government) awarded Teledyne Contract No. W911SR-04-D-0011 (the contract) as a multiple award task order contract to provide the Edgewood Chemical Biological Center Engineering Directorate with engineering, development, technical management, and administrative support (R4, tab 1 at P 1, P 5, P21). 2. The contract provided for the negotiation of task orders on a cost-plus-fixed-fee basis "when the uncertainties of performing a work statement are such that the cost of performance cannot be estimated with sufficient confidence" (R4, tab 1 at P3). The contract incorporated by reference FAR 52.232-22, LIMITATION OF FUNDS (APR 1984) (id. at P20). The contract also contained section B, paragraph B.4, PROFIT OR FEE CEILING, which provided that "[t]he Fee or Profit will be negotiated and obligated under individual Task Orders" (id. at P4 ). 3. By date of 4 December 2009, the Army issued, and Teledyne accepted, Task Order 0009 on a cost-plus-fixed-fee basis to provide advanced design and manufacturing division support (R4, tab 3 at 1-2). The Task Order does not state whether it is either a completion form task order under FAR 16.306(d)(l) or a term form task order under FAR 16.306(d)(2). 4. In section C, paragraph 3.0 of Task Order 0009, REQUIREMENTS, the Army set forth the work to be performed. Paragraph 3.3 provided that "[t]he contractor shall design, engineer, prototype, [and] assist with the preparation of and/or modify [Computer Aided Design] models/drawings for complex systems and components in support of a wide variety of engineering development projects." (R4, tab 3 at 3) Paragraph 3.5 provided that Teledyne would: [P]rovide support with the fabrication, design and development, operations, testing and fielding of systems and equipment to assist the research community. Because the Government cannot accurately predict the types of projects (i.e., the specific specialties required and their level of effort), the contractor shall provide coverage for all technical specialties and capabilities as indicated in each labor category described below. Staffing in all labor categories will not be required at task initiation; however, it is anticipated that work load over the period of performance will use the specialties identified. (R4, tab 3, at 4) Paragraph 3.5 then contained a table organized by labor category, historical number of hours, and proposed hours for this task (id.) 5. Task Order 0009 was to be incrementally funded. As originally issued, it provided for a maximum cost of$6,094,332, and a fixed fee of$487,547, for a total maximum cost and fee of$6,581,879 (R4, tab 3 at 2). 6.