ASBCA 59258

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Raytheon Missile Systems Company ) ASBCA No. 59258 ) Under Contract No. NOOO 19-04-C-0569 ) APPEARANCES FOR THE APPELLANT: Robert M. Moore, Esq. Robert D. Windus, Esq. Jason C. Constantine, Esq. Moore & Lee, LLP McLean, VA Sharon S. Jones, Esq. Counsel APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney James T. DeLanoy, Esq. Senior Trial Attorney Taylor Ferrell, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE CLARKE This is the quantum phase of Raytheon Missile Systems Company, ASBCA No. 57594, 13 BCA ~ 35,264, recon. denied, 13 BCA ~ 35,321, wherein the Board sustained Raytheon's appeal in part. We have jurisdiction pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. Raytheon is entitled to $2,390,784 plus CDA interest. · Objections The parties elected to submit the quantum case under Board Rule 11 on the record. Both parties filed objections to various affidavits/declarations and documents. The Navy objects to affidavits from Mr. Blume and Mr. Torres arguing that the affidavits violate the best evidence rule. With respect to Mr. Blume the Navy seems to fault his testimony because he did not observe the fueling of each missile (Bd. corr. file, gov't obj. dtd. 21August2014 at 1). With respect to Mr. Torres the Navy complains that Raytheon is improperly presenting "expert testimony under the guise oflay testimony" (id. at 5). We have considered these and the other arguments made by the Navy and reject them. Raytheon presents a list of objections to Ms. Caccivio's and Mr. Grams' declarations. We considered each basis presented for the objections and deny the objections. Board Rule 11 specifically provides that "[a]ffidavits, declarations, depositions, admissions, answers to interrogatories, and stipulations may be employed in addition to the Rule 4 file if moved and accepted into evidence ... to be made part of the record." By agreeing to a Board Rule 11 submission, each party is entitled to submit affidavits/declarations in place of the live testimony that would have been available had the parties elected a hearing. In a Board Rule 11 submission each party has the opportunity to deal with aspects of these substitutes for live testimony by taking depositions and submitting transcripts or through rebutting affidavits/declarations or documents. The parties' objections to each other's affidavits/declarations are denied. The Navy objects to "annotated" DESC invoices for JP-I 0 at Rule 4, tab 17, 1 and appellant's supplemental Rule 4, tabs 166 and 169. 2 We will deal with the Navy's objection to appellant's supplemental Rule 4, tabs 166 and 169 later in this decision. Raytheon objects to an extensive variety of documents. We considered Raytheon's objections and deny them. DISCUSSION The Entitlement Decision Familiarity with our entitlement decision is assumed. Generally, the case involved the government's $11.00/gallon increase in JP-10 cruise missile jet fuel to finance building a storage facility (Defense Fuel Support Point or DFSP), stocking it with JP-10, and covering losses on other commodities. We concluded that Raytheon had not assumed the risk of an increase in fuel cost for financing the DFSP and stocking it. In our entitlement decision we sustained Raytheon's appeal as it related to that part of the $11.00 increased price that was allocated to building the DFSP and purchasing fuel to stock it. We denied the appeal as it related to that part of the price increase used to offset losses on other Defense Energy Support Center (DESC) commodities. Raytheon, 13 BCA ~ 35,264 at 173,117-18. Therefore, it is Raytheon's burden to prove its damages by proving how many gallons of fuel it purchased at the $25.00 rate and loaded into Contract No.