ASBCA 62249

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of - ) ) Lockheed Martin Aeronautics Company ) ASBCA Nos. 62249, 62727 ) Under Contract No. N00019-02-C-3002 ) APPEARANCES FOR THE APPELLANT: John E. McCarthy, Jr., Esq. Nicole J. Owren-Wiest, Esq. Jonathan M. Baker, Esq. Yuan Zhou, Esq. Crowell & Moring LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney David M. Ruddy, Esq. Thomas G. Radtke, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE WITWER ON RESPONDENT’S MOTION FOR SUMMARY JUDGMENT These appeals involve a dispute over the scope of the government’s license rights in nine items of noncommercial computer software that are part of the verification simulation software for the F-35 Joint Strike Fighter program. Appellant, Lockheed Martin Aeronautics Company (LM Aero or Lockheed), asserts that respondent, the Department of the Navy (Navy), is entitled to specifically negotiated license rights in the software. The Navy counters that it is entitled to government purpose rights. The Navy moves for summary judgment in ASBCA No. 62249, contending that LM Aero has failed to meet its burden to justify its asserted restrictions. More specifically, the Navy contends that LM Aero cannot meet its burden to show that the software items are “developed,” as that term is defined in the applicable software license rights clause. LM Aero opposes the Navy’s motion on the grounds that there are material facts in dispute related to whether the software items are developed by LM Aero. In support of its opposition, LM Aero relies upon several declarations submitted by the individuals responsible for developing and testing the software in dispute. The Navy argues that the Board should afford these declarations no weight because they are not accompanied by contemporaneous, corroborating evidence. The Navy urges the Board to depart from the “garden variety” standard of review for summary judgment and, instead, to adopt a heightened standard of review. Thus, the central question presented by the Navy’s motion is the quantum and character of evidence necessary to establish a genuine dispute of material fact. After consideration of the parties’ respective positions, we decline to impose the heightened standard of review suggested by the Navy. Instead, applying the well-established standard of review for a motion for summary judgment, we conclude that there is a genuine dispute as to whether the nine software items are developed. We further conclude that, even were we to find that the software in question is not developed, the Navy has failed to establish that it is entitled to judgment as a matter of law. Thus, we deny the Navy’s motion for summary judgment. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION The following facts are undisputed or uncontroverted, unless stated otherwise. I. The Contract In October 2001, the Navy’s F-35 Joint Strike Fighter Program Office (JPO) awarded Contract No. N00019-02-C-3002 to LM Aero for the development of the F-35 Joint Strike Fighter (JSF) Air System (R4, tab 20 at 002783; GSUMF ¶ 1; app. opp’n at 7). 1 The JSF Air System is “a family of multi-role aircraft, and autonomic logistic elements” (app. supp. R4, tab 1 at A_000009). Relevant here, the contract identified various methodologies for verification of the air system requirements, including verification by modeling and simulation (R4, tab 20 at 003947-49; tab 32 at 024936; app. supp. R4, tab 1 at A_000213-15; compl. ¶ 69). 2 The dispute before us involves certain items of the verification simulation (VSim) software. The VSim software is a simulation model used to test F-35 aircraft design in a simulated environment without having to fly the aircraft. (ASGIMF ¶ 3; GASUMF ¶ 3) The nine items of noncommercial computer software in dispute are: CORE, FusionTech, AlgTech, LM Aero Containers, SimAudio, LabSys_Base, Fifth Generation Simulation Interface (FSI), FSI Test Models, and FSI API documentation (R4, tab 11 at 0001541; compl. ¶ 26; GSUMF ¶ 16). 1 “GSUMF” refers to the Government’s Statement of Undisputed Facts dated October 30, 2020. “ASGIMF” refers to Appellant’s Statement of Genuine Issues of Material Fact dated February 12, 2021.