BAE Systems Tactical Vehicle Systems LP ( 2016 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
BAE Systems Tactical Vehicle Systems LP ) ASBCA Nos. 59491, 60433
)
Under Contract No. W56HZV-08-C-0460 )
APPEARANCES FOR THE APPELLANT: David Z. Bodenheimer, Esq.
Brian Tully McLaughlin, Esq.
Skye Mathieson, Esq.
Crowell & Moring LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
CPT Harry M. Parent III, JA
Robert B. Neill, Esq.
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN ON THE
GOVERNMENT'S MOTION TO DISMISS APPEALS AS MOOT
Appellant, BAE Systems Tactical Vehicle Systems LP (BAE TVS) appealed
from a contracting officer's final decision claiming that BAE TVS provided defective
cost or pricing data in 2008 negotiations to definitize a contract award for tactical
vehicles and seeking the amount of$56,386,953, net of accepted offsets (ASBCA
No. 59491). BAE TVS also appealed from the contracting officer's deemed denial of
its revised offset proposal (ASBCA No. 60433). On 25 July 2016, the Board denied the
government's motion for an indefinite stay of proceedings pending resolution of a related
False Claims Act case filed in federal district court for the Eastern District of Michigan.
BAE Systems Tactical Vehicle Systems LP, ASBCA Nos. 59491, 60433, 16-1 BCA
ii 36,450. Familiarity with that decision is presumed.
On 17 November 2016 the contracting officer unequivocally rescinded her final
decision finding defective pricing, in its entirety, and disclaimed any intention on the part
of the government to issue a new final decision. Thereafter, the government filed the
pending motion seeking to have both appeals dismissed as moot. Appellant does not
oppose the government's motion.
DECISION
Where a contracting officer unequivocally rescinds a government claim and the
final decision asserting that claim, with no evidence that the action was taken in bad faith,
there is no longer any claim before the Board to adjudicate. The government's voluntary
action moots the appeal, leaving the Board without jurisdiction to entertain the appeal
further. Combat Support Associates, ASBCA Nos. 58945, 58946, 16-1BCA,-i36,288 at
176,973, and cases cited therein.
Here, the contracting officer unequivocally rescinded the final decision asserting
the government claim that is the subject of these appeals, stating expressly:
The government claim asserted in references (a) and
(b) [PCO 11 June 2014 Demand letter, Final Decision, and
DCAA Audit Report dated 15 July 2014] and the Final
Decision in reference (b) are hereby unequivocally and
entirely rescinded. The Government has no intention of
issuing a new Final Decision from those references.
(Gov't mot. to dismiss, ex. 1) Thus, the government has voluntarily provided the
relief sought in these appeals and there is no suggestion that the rescission is in bad faith.
Additionally, offsets are allowed to the extent of overstatements only, Cutler-Hammer,
Inc. v. United States, 416 F.2d 1306, 1312 (Ct. Cl. 1969), thus the offsets raised in
ASBCA No. 60433 are mooted as well by the rescission of the final decision.
For the reasons above, the appeals are dismissed as moot. Dismissal of an appeal
as moot after rescission of a government claim is not a determination on the merits.
Combat Support Associates, 16-1BCA,-i36,288 at 176,973; Lasmer Industries, Inc.,
ASBCA No. 56411, 10-2 BCA ,-i 34,491 at 170, 123.
Dated: 5 December 2016
. / ;":!~
LYN~LLJVAN
Administrative Judge
Armed Services Board
of Contract Appeals
(Signatures continued)
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I concur I concur
``./¢-~ RJC~EFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 59491, 60433, Appeals of
BAE Systems Tactical Vehicle Systems LP, rendered in conformance with the Board's
Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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