Lockheed Martin Services, Inc. ( 2016 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
Lockheed Martin Services, Inc. ) ASBCA Nos. 58028, 58794
)
Under Contract No. MDA220-01-D-0002 )
APPEARANCE FOR THE APPELLANT: Joseph J. Dyer, Esq.
Seyfarth Shaw, LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Regina M. DelaRosa, Esq.
April M. Beck, Esq.
Trial Attorneys
Defense Finance & Accounting Service
Indianapolis, IN
OPINION BY ADMINISTRATIVE JUDGE CLARKE ON THE GOVERNMENT'S
MOTION FOR RECONSIDERATION
The Defense Finance & Accounting Service (DF AS) timely moves for reconsideration
of our 8 December 2015 decision in Lockheed Martin Services, Inc., ASBCA Nos. 58028,
58794, 16-1BCA~36,187, wherein we sustained Lockheed Martin Services, Inc.'s (LMSI's)
appeals. The appeals involved LMSI's claim for payment for a license fee related to DFAS'
use ofLMSI developed software in performance of the Military Retired and Annuitant Pay
Operations contract. We awarded LMSI $1,140,462.56. We deny the motion.
Reconsideration
We discussed the standard for reconsideration in DODS, Inc., ASBCA No. 57667,
13 BCA ~ 35,203 at 172,711, stating that "[t]o prevail on reconsideration, the moving party
must generally establish that the underlying decision contained mistakes in our findings of facts
or errors of law or that newly discovered evidence warrants vacating our decision."
DISCUSSION
DF AS first contends that the Board made a mistake of fact, "Respondent respectfully
offers that the Board mistakenly found DRAS and MIRORS to be the same system, when
they are two different systems" (gov't mot. at 1). DFAS points to Finding 5 of the decision
as evidence of this mistake. In Finding 5 we stated, "Prior to Contract 0002 DF AS
performed the DRAS function itself using government-owned hardware and software known
collectively as the Mail Imaging Routing and Optical Reporting System, 'MIRORS. "'
DF AS contends that "MIRORS is a separate system that was used to scan incoming mail and
route it to the technicians" (gov't mot. at 2-3). We agree that Finding 5 confuses the roles of
MIRORS and DRAS. However, LMSI points out that MIRORS is not a "different" or
"separate" system, MIRORS is part ofDRAS (app. resp. at 5). We agree that MIRORS
works in conjunction with DRAS; this is made abundantly clear in contract section J.4.6.,
"LIST OF PROPERTIES, FACILITIES, MATERIALS AND SERVICES OFFERED BY
THE GOVERNMENT," that lists Government Furnished Property (GFP) and identifies
MIRORS and the DRAS Automated Information System (AIS) as GFP (Lockheed Martin,
16-1 BCA if 36,187 at 176,552, 559; R4, DVD-A, tab C-0002 at PDF 109-110; gov't mot. at
6). In any event, even accepting DF AS' argument that we confused DRAS with MIRO RS in
Finding 5, a mistake of fact, DF AS fails to persuasively explain how our confusion affects
the Board's contract interpretation, a question oflaw. This also holds true for DFAS' other
arguments on pages 2 and 3 of its motion. This particular mistake of fact is a harmless
mischaracterization that does not warrant modifying our decision.
Next DF AS contends that the Board erred in finding that MIRO RS was not
Government-Furnished Equipment (GFE) (gov't mot. at 4-9). The underpinning for this
argument is twofold. First the mistake of fact discussed above and second, that "there was a
meeting of the minds between the parties to the contract that MIRORS was GFE" (gov't
mot. at 4 ). There was no consideration of this second argument in our decision because it
was not raised by DFAS previously. Normally we might determine that having failed to
raise the "meeting of the minds" argument previously, it is too late to raise it now. Avant
Assessment, LLC. ASBCA No. 58867. 15-1BCAif36.137 at 176.386 ('"Motions for
reconsideration do not afford litigants the opportunity to take a ·second bite at the apple· or
to advance arguments that properly should have been presented in an earlier proceeding.").
However, we agree with DFAS that since the Board's decision was based on logic neither
party argued in their briefs (gov't reply br. at if 1) we should exercise discretion and
consider DF AS' argument. DFAS' "meeting of the minds" argument primarily relies upon
inferences from documents in the record (gov't hr. at 4-5; gov't reply hr. at if 5). Not only is
there no direct evidence of this "meeting of the minds," LMSI contests it in its responses
(app. resp. at 7; app. sur-resp. at 3). Even ifthere were some evidence of a "meeting of the
minds," it would be extrinsic evidence. As we stated above, contract section J.4.6., "LIST
OF PROPERTIES, FACILITIES, MATERIALS AND SERVICES OFFERED BY THE
GOVERNMENT," identifies MIRORS as GFP. Lockheed Martin, 16-1BCAif36,187 at
176,552, 559; R4, DVD-A, tab C-0002 at PDF 109-110; gov't hr. at 6). Section J.4.6. is
clear and unambiguous. Therefore, even if extrinsic evidence existed, it would be
inadmissible. Teg-Paradigm Environmental, Inc. v. US., 465 F.3d 1329 at 1338 (Fed. Cir.
2006) (When the contract's language is unambiguous it must be given its "plain and
ordinary" meaning and the court may not look to extrinsic evidence to interpret its
provisions.). We included the alternative interpretation in our decision only to show that the
other clauses in the contract were consistent with Section J.4.6. Lockheed Martin, 16-1 BCA
if 36,187 at 176,559-560. We have considered DFAS' arguments in its motion and reply
and find them unpersuasive; MIRORS is not GFE.
2
In pages 9 to 12 of its motion, DFAS makes an alternative argument assuming that
MIRORS is not GFE. DFAS supports this argument with its initial position that MIRORS is
not DRAS. Based on this contention, DF AS argues that section H-8 and PWS 8.0 do not
apply to MIRORS (gov't mot. at 9). We dealt with this earlier; MIRORS works in
conjunction with DRAS and these clauses apply to MIRORS. Even if they didn't, the clear
and unambiguous identification ofMIRORS as GFP ends the discussion.
Finally, DFAS contends that the Board made errors in its calculation of quantum
(gov't mot. at 13). DFAS relies on the DCAA audit that we considered in our decision.
Lockheed Martin, 16-1 BCA iJ 36, 187 at 176,562. DFAS presents no new evidence to
persuade us that our decision was in error. As we explained in our decision, we were satisfied
that LMSI incurred unrecovered costs to develop RAPID that exceeded the $1,140,462.56
unpaid difference between the $2.6 million cap and the amount paid by Modification
No. P00089. Id.CONCLUSION
For the reasons stated above, DFAS' motion for reconsideration is denied.
Dated: 25 April 2016
Administr ive Judge
Armed Services Board
of Contract Appeals
I concur I concur
/~p $~-- -{;i?s~
MARK N. STEMPLER ~ rucJARDSHACTuFoRD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
3
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. 58028, 58794, Appeals of
Lockheed Martin Services, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
4