ASBCA 59903

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Innoventor, Inc. ) ASBCA No. 59903 ) Under Contract No. FA8224-l l-C-0043 ) APPEARANCES FOR THE APPELLANT: Darrell W. Cook, Esq. Stephen W. Davis, Esq. Darrell W. Cook & Associates Dallas, TX APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attorney Christopher S. Cole, Esq. Lt Col Kevin P. Stiens, USAF Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE SWEET ON THE PARTIES' MOTIONS FOR PARTIAL SUMMARY JUDGMENT This is an appeal of a contracting officer's final decision (COFD) rejecting the claim of appellant Innoventor, Inc. (Innoventor) asserting that it was entitled to an equitable adjustment due to defective specifications, undisclosed information, a constructive change, and technical impossibility. Innoventor and the government have cross-moved for partial summary judgment on the constructive change theory only. We grant the government's motion and deny Innoventor's cross-motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS I. The Contract 1. On 19 April 2011, the United States Air Force issued Solicitation No. F A8224-l l-R-0027 for the general design and performance requirements to design and build the replacement for a Dynamic Brake Test Stand (DBTS) (R4, tab 4 at 4). As set forth in the solicitation, the DBTS was intended to be capable of testing the latest version of seven different components of such brake assemblies. These components are referred to as Units Under Test (or UUTs). (R4, tab 1 at 15) 2. During the bidding process, one contractor inquired whether the Air Force would provide drawings of the legacy DBTS that the solicited DBTS would replace. The Air Force responded, "No, this is a design and manufacture effort for a new product. The Government does not have access to any of the drawings" of the legacy DBTS. (Supp. R4, tab 54 at 3) 1 3. In response to the solicitation, Innoventor submitted a proposal. In its proposal, Innoventor asserted that it had experience delivering test stands to replace legacy test stands. (R4, tab 7 at 12-15) 4. On 28 July 2011, the Air Force awarded Contract No. FA8224-11-C-0043 (contract 0043) to Innoventor. Contract 0043 was a $357,628 fixed-price contract. (R4, tab 1 at I) 5. Contract 0043 's purchase specification (PS) required that the DBTS "shall be capable of accurately testing" UUTs in accordance with various technical orders (TOs ), which provided test protocols and requirements for testing the UUTs (R4, tab 1 at 7-8, 15, tabs lb-Id). One ofthe TOs with which the PS required the DBTS to comply was TO 33A2-2-51-1 (R4, tab 1 at 7). 6. TO 33A2-2-51-1 provided instructions for the operation of pressure circuits of the DBTS. In describing that operation, the TO cautioned to "Monitor 33D STATIC TEST PRESSURE gauge (2) closely while making pressure adjustments. Pressure will increase sharply and may result in damage to the item being tested." (App. resp., ex. 8 at 686, 689) 7. The PS required that the new DBTS's accuracy and functionality be the same as-or better than-the legacy DBTS's accuracy and functionality by stating that the primary requirement is that the DBTS "shall be designed to combine the functionality of the current Dynamic Brake Test Stand (see TO 33A2-2-40-1) with increased accuracy, reliability, and automation and hydraulic testing (see TO 16Al-17-4-3, Section 7.2.2) as specified herein" (R4, tab 1 at 9). The PS required "uniform functionality and accuracy" between the new DBTS and the legacy DBTS (R4, tab 2 at 16). 8. The PS required that the new DBTS undergo and pass testing. The PS stated that: 4.3 Final Machine Review: At least one month prior to the approved shipping date from the manufacture facility to the destination, a final machine build inspection review at the manufacture facility will be conducted. The review 1 It appears that the contractor posed the question during a 27 April 2011 site visit, and that the answer was provided to the attendees (supp. R4, tab 54).