ASBCA 59117

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Binghamton Simulator Company ) ASBCA No. 59117 ) Under Contract No. W900KK-09-D-0323 ) APPEARANCE FOR THE APPELLANT: Albert J. Millus, Jr., Esq. Hinman, Howard & Kattell, LLP Binghamton, NY APPEARANCE FOR LEIDOS, INC., Louis D. Victorino, Esq. f/k/a SCIENCE APPLICATIONS Sheppard Mullin Richter & Hampton LLP INTERNATIONAL CORPORATION: Washington, DC APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Cameron R. Edlefsen, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE BOARD'S JURISDICTION Subcontractor Binghamton Simulator Company (BSC) attempts to appeal directly from a contracting officer's decision issued to the prime contractor, Leidos, Inc., f/k/a Science Applications International Corporation (Leidos ). 1 Leidos does not sponsor BSC's appeal. Accordingly, we dismiss the appeal for lack of jurisdiction. STATEMENT OF FACTS (SOF) FOR THE PURPOSE OF DETERMINING JURISDICTION 1. The United States Army, through its Program Executive Office for Simulation, Training and Instrumentation (Army or government), awarded Contract No. W900KK-09-D-0323 (the contract), an indefinite delivery/indefinite quantity delivery order contract, to Science Applications International Corporation (now known as Leidos, Inc.) (R4, tab 1). The contract called for "procurement and/or services support of training and testing simulators, simulations, systems/devices, instrumentation systems, telecommunications systems, experimentation, targets, 1 This appeal was originally docketed in Science Applications International Corporation's name, prior to the Board being informed that it did not sponsor the appeal. gaming, advanced simulation concepts, and open architecture, and common part and component solutions" (R4, tab 1 at 109). 2. The contract is subject to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, and includes a standard Disputes clause, FAR 52.233-1, DISPUTES (JUL 2002)-ALTERNATE I (DEC 1991) (R4, tab 1at97). The contract also includes DFARS 252.227-7014, RIGHTS IN NONCOMMERCIAL COMPUTER SOFTWARE AND NONCOMMERCIAL COMPUTER SOFTWARE DOCUMENTATION (JUN 1995); and DF ARS 252.227-7019, VALIDATION OF ASSERTED RESTRICTIONS - COMPUTER SOFTWARE (JUN 1995) (R4, tab 1 at 98-99). 3. Three delivery orders issued under the contract are relevant to this appeal, all of which involve the Non-Rated Crew Member Manned Module (NCM3), a component of the Aviation Combined Arms Tactical Trainer (AVCA TT) (R4, tab 2 at 180, 274, tab 3 at 554, 610, tab 4 at 686, 792). The AVCATT is an advanced helicopter simulator, a "virtual simulation training system designed to provide aviation the capability to conduct realistic, high intensity, task-loaded collective and combined arms training exercises and mission rehearsals." The NCM3 is a "functional crew station position for the current.. .and future inventory of Army lift helicopters," providing simulation training for "individual, crew, and collective tasks associated with door gunnery and crew coordination." (R4, tab 2 at 278, tab 3 at 612, tab 4 at 794) BSC was Leidos' subcontractor for the NCM3 effort and provided, among other things, software programs to simulate "sling load operation" and "hoist operation" (R4, tab 2 at 370). 4. The first relevant delivery order, Delivery Order No. 000316 (D0003), was issued on 27 January 2010 (R4, tab 2 at 179). Following the issuance ofD0003, a dispute arose regarding the government's rights to use and distribute BSC's "sling loads" and "hoist" software programs. The government asserted that it had government purpose rights (see DFARS 252.227-7014(b)(l l)), while BSC maintained that the government only had Small Business Innovation Research (SBIR) rights (see DFARS 252.227-7018). (Notice of appeal, attach. B) 5. The second delivery order, Delivery Order No. 000503 (D0005), was issued on 18 May 2012 (R4, tab 3 at 553). The third, Delivery Order No. 000905 (D0009), was issued on 25 September 2012 (R4, tab 4 at 685). 6. In November 2012, BSC challenged the government's asserted rights to the "sling loads" and "hoist" programs (Bd. corr. ltr. dtd. 28 February 2014 at 2; Bd. corr. ltr. dtd. 27 March 2014, attach. 1).