ASBCA 63112

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Doubleshot, Inc. ) ASBCA No. 61691 ) Under Contract No. N6835-06-C-0416 et al. ) APPEARANCE FOR THE APPELLANT: Mr. Alan Shulman CEO APPEARANCES FOR THE GOVERNMENT: Arthur M. Taylor, Esq. DCMA Chief Trial Attorney Srikanti Schaffner, Esq. Trial Attorney Defense Contract Management Agency Carson, CA OPINION BY ADMINISTRATIVE JUDGE O’CONNELL ON APPELLANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT Appellant, Doubleshot, Inc. (Doubleshot), has filed a motion for partial summary judgment contending that it is entitled to judgment as a matter of law on the government’s claim to the extent that it is based on (1) missing or unsigned time cards and (2) disallowed independent research and development and bid and proposal costs. The Board grants Doubleshot’s motion with respect to time cards but denies it with respect to independent research and development and bid and proposal costs. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION The following facts are undisputed or uncontroverted, except as noted below with respect to the date Doubleshot produced its general ledger. The government has not disputed any of Doubleshot’s proposed material facts not in dispute (AMF). This is Doubleshot’s second motion for summary judgment. Doubleshot, Inc., ASBCA No. 61691, 20-1 BCA ¶ 37,677 (Doubleshot I) recon. denied, 20-1 BCA ¶ 37,741. We restate the facts only to the extent necessary in this opinion.  1. As related in Doubleshot I, the parties entered into the following four contracts: Naval Air Warfare Center Contract No. N68335-06-C-0416 (the 416 contract) dated September 14, 2006 (R4, tab 1); U.S. Army Tank-automotive and Armaments Command (TACOM) Contract No. W56HZV-07-C-0295 (the 295 contract) dated March 22, 2007 (R4, tab 2); Office of Naval Research Contract No. N00014-07-C-0386 (the 386 contract) dated June 13, 2007 (R4, tab 5); and Office of Naval Research Contract No. N00014-08-C-0497 (the 497 contract) dated September 11, 2008 (R4, tab 11). Doubleshot I, 20-1 BCA ¶ 37,677 at 182,902. 2. The contracts were all at least in part cost-plus-fixed-fee and incorporated Federal Acquisition Regulation (FAR) clause 52.216-7, ALLOWABLE COST AND PAYMENT (DEC 2002) and FAR 52.215-2, AUDIT AND RECORDS – NEGOTIATION (JUN 1999) (AMF ¶ 2; R4, tab 1 at 18; tab 2 at 16; tab 5 at 12; tab 11 at 12-13 1). The 416 contract incorporated DFARS 252.215-7002 COST ESTIMATING SYSTEM REQUIREMENTS (OCT 1998) 2 (R4, tab 1 at 19). (The 295 contract incorporated DFARS 252.242-7004, MATERIAL MANAGEMENT AND ACCOUNTING SYSTEM (NOV 2005) (R4, tab 2 at 17). Time Cards – Missing and Unsigned 3. The larger of the two issues in the government’s claim relates to Doubleshot’s time cards. The following events are relevant to the contentions raised in Doubleshot’s motion. 4. On January 28, 2010, the Defense Contract Audit Agency (DCAA) visited Doubleshot’s office and conducted an examination of Doubleshot’s accounting system. As described in Doubleshot I, DCAA found the accounting system to be “non-existent.” Doubleshot I, 20-1 BCA ¶ 37,677 at 182,903. DCAA detailed the issues it had identified in what it called a “Flash Report” that it issued more than 15 months later, on April 29, 2011. Id. (citing R4, tab 25 at 3). 1 R4 citations are to the .pdf page of the electronic file. 2 Both the 386 and 497 contracts incorporate this clause, but then state that the clause is only applicable if the contract was awarded based on certified cost or pricing data, which is not the case for either contract (R4, tab 5 at 16, tab 11 at 17) 2  5. By the time these events had occurred, the relevant Doubleshot fiscal years (FYs) had ended. Doubleshot FY 2009 ended on February 28, 2009. Doubleshot FY 2010 ended on February 28, 2010. Doubleshot failed to submit final indirect cost rate proposals (ICRPs) within six months of each of those dates as required by the Allowable Cost and Payment clause, FAR 52.216-7(d)(2)(i). Id. at 182,904; (AMF ¶ 5) Ultimately, Doubleshot submitted revised ICRPs for both FY 2009 and FY 2010 on September 25, 2013 (R4, tab 28 at 25, tab 29 at 31). 6. More than two years later, on November 30, 2015, DCAA notified Doubleshot that it would conduct an audit of its FY 2009 and 2010 proposals (AMF ¶ 6).