ASBCA 60314

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) ABB Enterprise Software, Inc., f/k/a Ventyx) ASBCA No. 60314 ) Under Contract No. NOOl 74-05-C-0038 ) APPEARANCE FOR THE APPELLANT: Jeanne A. Anderson, Esq. Washington, DC APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Henry Karp, Esq. Senior Trial Attorney DECISION BY ADMINISTRATIVE JUDGE KINNER ON THE GOVERNMENT'S MOTION TO AMEND ANSWER The government moves to amend its previously filed answer to include an affirmative defense of equitable estoppel. The motion was filed 7 October 2016. Appellant filed its opposition 17 October and the government replied 20 October. Appellant argues that the Navy's delay in bringing this motion is unjustified. Appellant believes it would be prejudiced because adding the theory of equitable estoppel to the case would necessitate new discovery when the parties have already completed substantial written discovery. For the reasons stated below we grant the government's motion but provide appellant the opportunity to establish the schedule for completion of discovery. Background ABB Enterprise Software, Inc., f/k/a Ventyx (ABB) appeals the denial of its claim that the Navy breached the parties' Master Software License Agreement for Navy use of purchased software (compl. iii! 3, 10-11, 13). ABB filed its complaint 6 November 2015. The Navy filed its answer to the complaint 7 December 2015. The answer asserted three affirmative defenses (answer at 24, ii~ 1-3). First, the Navy alleged that the Board does not possess jurisdiction to consider the appeal. Second, the Navy asserted that its project manager who signed the license agreement and an assignment agreement with appellant does not possess authority to bind the Navy to those agreements. Third, the Navy argues appellant's claim was not filed within the Contract Disputes Act (CDA) statute of limitations, 41 U.S.C. § 7103(a)(4)(A).  To pursue its first affirmative defense the Navy filed a motion to dismiss 29 January 2016. In its motion, the Navy argued that ABB's claim is not cognizable under the CDA because it did not arise under a contract (gov't mot. to dismiss at 9-10). ABB's claim is based upon an allegation that the Navy breached the parties' Master Software License Agreement, but that agreement is not referenced or incorporated into the contract through which the Navy purchased the software and licenses. The Board rejected the Navy's analysis in a 29 June 2016 decision that confirmed that we possess jurisdiction to entertain this appeal. The Board concluded that the software license agreement that provides terms for the Navy's use of ABB software sufficiently relates to the parties' contract for purchase of that software and the licenses to make it subject to the CDA, 41 U.S.C. §§ 7101-7109, and Board jurisdiction. About three months after the Board's decision the government filed its motion to amend its December 2015 answer. According to the government, its motion should be granted because discovery is not complete and it will cause no prejudice to the appellant (gov't mot. at 1). It argues that there is no evidence that the motion is filed in bad faith (id.). The Navy also asserts that adequate grounds exist to support an affirmative defense of equitable estoppel based on its history of procuring software from ABB. ABB 's corporate predecessor, Tech-Assist, Inc., sold its proprietary software for installation on Navy ships and at Navy installations from 1995-2008 (gov't mot. at 3). Tech-Assist was acquired by Ventyx, Inc., in 2008 and became appellant, ABB, in 2015 (compl. ~ 5). Before Tech-Assist was owned by Ventyx, in 2005 it executed a Master Software License Agreement with the Navy that supplied the terms and conditions for government use of the software at a specific number oflocations on a specific number of servers (compl. ~~ 31-32; gov't mot. at 2). In 2011, while acting as Ventyx, appellant investigated the number of software installations and informed the Navy that its use of the software on two servers on aircraft carriers while paying for only one installation is not authorized by the Master Software License Agreement (compl. ~ 49; gov't mot. at 3). The Navy responded to appellant in a 2012 letter that it had been the company's prior practice to assign a single license number to a carrier even when the software was installed on two servers on that ship (compl.