ASBCA 59173

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Beechcraft Defense Company ) ASBCA No. 59173 ) Under Contract No. FA8617-07-D-6151 ) APPEARANCES FOR THE APPELLANT: Jerald S. Howe, Jr., Esq. James J. McCullough, Esq. Samuel W. Jack, Esq. Fried, Frank, Harris, Shriver & Jacobson LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq. DCMA Chief Trial Attorney Robert L. Duecaster, Esq. Trial Attorney Defense Contract Management Agency Manassas, VA OPINION BY ADMINISTRATIVE JUDGE STEMPLER ON APPELLANT'S MOTION TO DIRECT THE GOVERNMENT TO FILE THE COMPLAINT This matter comes before the Board on appellant's motion for an Order requiring the government to file the complaint in this appeal. STATEMENT OFF ACTS FOR PURPOSES OF THE MOTION 1. On 12 December 2013 a Defense Contract Management Agency (DCMA) contracting officer (CO) issued a final decision 1 to Beechcraft Defense Company (BDC or appellant) alleging that BDC was noncompliant with CAS 402 from 2006 until present. The final decision asserted a government claim for $5,861,755.00 inclusive of interest to the date of the decision. The decision referenced five documents: (1) a Defense Contract Audit Agency (DCAA) audit report dated 1April2009; (2) an Administrative Contracting Officer's (ACO) Determination of Noncompliance letter dated 3 April 2009; (3) appellant's General Dollar Magnitude Proposal dated 4 June 2009; (4) a DCAA audit report dated 15 August 2011; and (5) appellant's letter dated 31 October 2011 in rebuttal to the 15 August 2011 audit report. The decision chose Contract No. FA8617-07-D-6151 as a representative contract. 1 All references are to documents in the Board's correspondence file.  2. By letter dated 21February2014, BDC filed a Notice of Appeal from the CO's 12 December 2013 final decision and the Board docketed the appeal on 24 February 2014. 3. Relying on LGT Corporation, ASBCA No. 44066, 93-3 BCA ii 26,184, on 6 March 2014 appellant filed the instant motion arguing that since the appeal involved a government claim, the government was in a better position to file the complaint and that the proceeding would be facilitated by the government's filing of the initial pleading setting forth the full rationale for the assertion of its claim. 4. By Order dated 11March2014, the Board ordered the government to respond to the motion, and stayed the proceeding pending resolution of the motion. 5. On 25 March 2014, the government responded to the motion recognizing that the appeal involved a government claim, but objecting to filing the initial pleading and asserting that "[a]ppellant is in the best position to assert the facts that would establish a compliant [with CAS 402] accounting practice." The government alleged that there had been no showing that the proceeding would be facilitated by its filing the initial pleading. The government also disagreed that LGT was controlling and instead referred the Board to General Dynamics Corporation, ASBCA No. 49339, 96-1BCAii28,244. 6.