ASBCA 61274

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) DynCorp International LLC ) ASBCA No. 61274 ) Under Contract No. FA8617-12-C-6208 ) APPEARANCES FOR THE APPELLANT: Gregory S. Jacobs, Esq. Erin L. Felix, Esq. Polsinelli PC Washington, DC APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attorney Jason R. Smith, Esq. Lt Col Byron G. Shibata, USAF Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE SWEET This appeal requires us to decide who should bear the cost of a latent error in an enormous third-party data-set provided by the government to prospective offerors to allow them to develop their pricing-which the government aptly characterizes as "a needle in a hay field" (tr. 1/23). The Board conducted a two-day hearing on entitlement. For the reasons stated below, we hold that the government should bear that cost because there was a mutual mistake that th~ data-set was accurate. FINDINGS OF FACT I. Background 1. The T-6 Texan II is a training aircraft used at multiple military bases (R4, tab 203 at 1). The T-6 aircraft comes in ~o model configurations-the T-6A, and the T-6B (tr. 1/40-41, 1/107). 2. During the relevanttime, Naval Air Station Pensacola (Pensacola) only fielded T-6A aircraft. Conversely; nearby Naval Air Station Whiting Field (Whiting Field) only· fielded T-6B aircraft. (Tr. 1/43)  11 Solicitation, Offer, and Award 3. The government issued Request for Proposals FA8617-11-R-6208 for Contractor Operated and Maintained Base Supply (COMBS) Services for T-6 aircraft at various bases, including Pensacola and Whiting Field (COMBS II RFP) (R4, tab 202). The COMBS II RFP was to ensure that parts were available on-site when needed to maintain the T-6 aircraft (tr. 1/40). The solicitation provided estimates of flight hours, which showed a projected increase in flight hours at Whiting Field (R4, tab 176 at 35). 4. The COMBS II RFP contained seven Contract Line Item (CLIN) series. Relevant to this appeal is the 3:XXX CLIN series, which involved firm fixed pricing based upon a fixed Cost Per Flight Hour (CPFH) rate at each base (R4, tab 202 at 55-81). Pursuant to that pricing structure, the amount paid would be determined by multiplying the agreed-upon fixed CPFH rate for the base by the variable number of hours flown at that base (tr. 1/41-42). 5. As the government conceded, potential offerors needed historic parts usage data 1 froqi the COMBS I incumbent contract for the T-6 aircraft to calculate their CPFHs (tr. 1/234, 2/8-9, 2/25-26; R4, tab 204 at 46). Therefore, the government provided potential offerors-via a Bidder's Library-Contract Data Requirement List (CDRL) A002 Reports (Usage Reports), which the incumbent subcontractor L3 Vertex (L3) had created to capture historic usage date (tr. 2/25-27; supp. R4, tab 7). In total, the provided Usage Reports contained hundreds of thousands of rows of data (R4, tabs 19-28, 30-32, 35, 41-44). The Usage Reports did not contain a disclaimer as to their.accuracy (R4, tabs 19-28, 30-32, 35, 41-44). Nor is there an indication in the COMBS II RFP that potential offerors assumed the risk of any errors in the usage data (id.; R4, tab 202). 6. The First Quarter (Ql) 2010 Usage Report contained 18,930 rows of data, including the following entries for the following parts (Disputed Parts): 2 Part# Base Material Description Aircraft Issue Date 100-602571-000 428 Multifunctional Display Unit N166014 01/08/10 4420.,000 428 Audio Management Unit · Ni'66010 01/27/10 4420-000 428 Audio Management Unit N166012 02/02/10 100-602579-000 428 Video and Transfer Recorder N166014 02/04/10 Unit 100-602571-000 428 Multifunctional Display Unit Nl66013 02/08/10 066-01143-2101 428 Transponder, Mode-S (MST- Nl66013 02/09/10 67A) 1 Parts usage-or consumption-describes how frequently a part fails (tr.