ASBCA 59561

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Bell Helicopter Textron Inc. and ) ASBCA No. 59561 The Boeing Company ) ) Under Contract Nos. NOOO 19-96-C-0054 ) NOOO 19-99-C- l 090 ) N00019-05-C-0002 ) NOOO 19-06-C-0292 ) NOOO 19-07-C-OOO 1 ) APPEARANCES FOR THE APPELLANT: Justin M. Ganderson, Esq Frederic M. Levy, Esq. Covington & Burling LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Richard A. Gallivan, Esq. Assistant Director David L. Koman, Esq. Senior Trial Attorney OPINION BY ADMINISTRATIVE JUDGE O'CONNELL ON DEEMED GOVERNMENT MOTION TO DISMISS FOR LACK OF JURISDICTION The Board requested briefing in response to an affirmative defense in which the government challenged the Board's jurisdiction. In its brief, the government questions the authority of the person who certified the claim and contends that the appeal should have been brought by "Bell Boeing Joint Project Office" and not by the two entities listed above. We have treated the government's brief as a motion to dismiss for lack of jurisdiction. For the reasons set forth below, we deny the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION The Contracts 1. This appeal involves five contracts to fabricate Multi-Purpose, Vertical (MV)-22 Osprey aircraft (and on some contracts the Air Force variant, the Cargo) as follows: Contractor Contract No. 7 June 1996 Bell-Boeing Joint Program Office N00019-96-C-0054 (Contract 0054) (R4, tab 1 at 3) 31 March 1999 Bell-Boeing Joint Program Office N00019-99-C-1090 (Contract 1090) (R4, tab 6 at 578) 24 January 2005 Bell Boeing Joint Project Office N00019-05-C-0002 (Contract 0002) (R4, tab 15 at 1165) 28 December 2005 Bell Boeing Joint Project Office N00019-06-C-0292 (Contract 0292) (R4, tab 32 at 2432) 2 April 2007 Bell Boeing Joint Project Office N00019-07-C-0001 (Contract 0001) (R4, tab 59 at 3058) The Bell-Boeing Business Relationship 2. On 18 December 1995 (about six months before execution of the first of the five contracts at issue), Bell Helicopter Textron Inc. (Bell Helicopter) and The Boeing Company, Defense & Space Group (Boeing), (collectively Bell Boeing) entered into a joint venture agreement for the V-22 program (gov't br., ex. 2). The agreement stated that the parties had entered into a teaming agreement back in 1982 with respect to the JVX program, which is now known as the V-22 program (id. at 1). The teaming agreement had been amended several times over the years (id.). 3. Paragraph F of the "RECITALS" section of the joint venture agreement stated that the parties had characterized their relationship under the teaming agreement as a partnership for federal income tax purposes and had agreed to continue to do so (gov't br., ex. 2 at 1). 4. Article three of the joint venture agreement, "INTERESTS OF JOINT VENTURE PARTIES," provided that work would be performed on V-22 contracts so as to maintain an "equal (50/50) division of work" and that the parties would share 2 equally all aspects of joint venture activity, including profits and losses (gov't br., ex. 2 at 4). 5. Article 14 of the agreement, "CONTRACTING AUTHORITY," provided that all proposals should state that the award of any V-22 contract should be to the "Bell-Boeing Tiltrotor Team" (gov't br., ex. 2 at 33).