ASBCA 61691

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: Wayne A. Keup, Esq. Wayne A. Keup, PLLC Washington, DC 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 This appeal involves a government claim for the return of an alleged overpayment of $804,979. Appellant, Doubleshot, Inc. (Doubleshot) has moved for summary judgment, contending that the claim is barred by the statute of limitations. We deny the motion. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION This appeal arises out of four contracts administered by the Defense Contract Management Agency (DCMA): 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 (295) dated March 22, 2007 (R4, tab 2); Office of Naval Research Contract No. N00014-07-C-0386 (386) dated June 13, 2007 (R4, tab 5); and Office of Naval Research Contract No. N00014-08-C-0497 (497) dated September 11, 2008 (R4, tab 11).  All of the contracts were at least in part cost-plus-fixed-fee, meaning that they listed an amount for estimated costs plus a fixed fee, and incorporated by reference Federal Acquisition Regulation (FAR) clause 52.216-7, ALLOWABLE COST AND PAYMENT (DEC 2002) (R4, tab 1 at 3, 18; tab 2 at 6, 16; tab 5 at 3, 7, 12; tab 11 at 3, 8, 13). FAR 52.216-7 contains a number of provisions that establish a process for contractor billings based on interim rates with the subsequent establishment of final rates: (a) Invoicing. (1) The Government will make payments to the Contractor when requested as work progresses, but (except for small business concerns) not more often than once every 2 weeks. . . . .... (d) Final indirect cost rates. (1) Final annual indirect cost rates and the appropriate bases shall be established in accordance with subpart 42.7 of the Federal Acquisition Regulation (FAR) . . . (2)(i) The Contractor shall submit an adequate final indirect cost rate proposal to the Contracting Officer . . . and auditor within the 6–month period following the expiration of each of its fiscal years. .... (e) Billing rates. Until final annual indirect cost rates are established for any period, the Government shall reimburse the Contractor at billing rates established by the Contracting Officer . . . subject to adjustment when the final rates are established. .... (g) Audit. At any time or times before final payment, the Contracting Officer may have the Contractor’s invoices or vouchers and statements of cost audited. Any payment may be 2  (1) reduced by amounts found by the Contracting Officer not to constitute allowable costs or (2) adjusted for prior overpayments or underpayments. The contracts also contained FAR 52.215-2, AUDIT AND RECORDS - NEGOTIATION (JUN 1999), or alternate III of this clause (R4, tab 1 at 18, tab 2 at 16, tab 5 at 11, tab 11 at 12). This clause provides: (b) Examination of costs. If this is a cost-reimbursement . . . contract . . .