Leidos, Inc., f/k/a Science Applications International Corporation ( 2014 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
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Leidos, Inc., f/k/a Science Applications ) ASBCA No. 59076International Corporation )
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Under Contract No. W56HZV-05-C-0724 )
APPEARANCES FOR THE APPELLANT: Karen L. Manos, Esq.
Melissa L. Farrar, Esq.
Gibson, Dunn & Crutcher LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq.
DCMA Chief Trial Attorney
Robert L. Duecaster, Esq.
Trial Attorney
Defense Contract Management Agency
Manassas, VA
OPINION BY ADMINISTRATIVE JUDGE MELNICK
ON BOARD JURISDICTION AND THE GOVERNMENT'S REQUEST TO
SUBSTITUTE THE REPRESENTATIVE CONTRACT
In this appeal from a government claim, the government seeks reimbursement
from Leidos, Inc., f/k/a Science Applications International Corporation (Leidos) of costs
Leidos misallocated to its CAS-covered contracts. The corporate administrative
contracting officer's (CACO) decision failed to properly identify a representative contract
between Leidos and the government. Accordingly, the government seeks to substitute a
proper representative contract. Leidos takes no position on the government's request.
However, without moving to dismiss the appeal, Leidos suggests the Board may not
possess jurisdiction due the government's failure to identify a contract with Leidos. We
grant the government's request to substitute.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On 6 November 2013, a CACO of the Defense Contract Management Agency
issued a final decision to Science Applications International Corporation (now known as
Leidos, Inc.) (R4, tab 10). In summary, the decision alleged that Leidos had failed to
comply with Cost Accounting Standard (CAS) 403, which, according to the decision,
requires the company's home office expenses to be allocated based on the beneficial or
causal relationship between supporting and receiving activities. The decision alleged that
Leidos had failed to allocate legal expenses of a contract awarded by the Greek
government directly to the segment, Company 6, that caused and/or benefitted from the
expenses. Instead, Leidos allocated the costs through a corporate home office indirect
cost pool, Company 9, to all segments in that pool's base. (Id.)
2. On 28 June 2012, Leidos had previously responded to a CACO determination
of its CAS noncompliance regarding the Greek contract with a statement that its acts
affected fiscal years 2006 through 20 I 0 (R4, tab 9). The CACO subsequently concluded
that fiscal years 2011 and 2012 were also affected. However, after Leidos made certain
revisions to it submissions, the CACO determined there were no cost impacts associated
with fiscal years 2006 and 2008, and only an estimated cost impact for fiscal year 2009.
(R4, tab I 0 at 229)
3. On 28 June 2012, Leidos also submitted a general dollar magnitude (GDM)
proposal describing the cost impact of its CAS noncompliance on its CAS-covered
contracts. Leidos explained that it had readjusted its allocation of the Greek contract legal
costs, removing them from the Company 9 cost allocations for fiscal years 2006 and 20 I 0
and including them in the allocations for Company 6. But, Leidos insisted that its original
misallocations had never affected fixed-price contracts because the legal costs at issue
were not included in forward pricing rates. (R4, tab 9) Nevertheless, the CACO's final
decision estimated a total cost that included CAS-covered, flexibly-priced and fixed-price
contracts. With interest, the decision demanded $7,243,489. The decision identified
subcontract CRN 161581 (under Contract No. W56HZV-05-C-0724) as a representative
contract affected by the noncompliance. (R4, tab I 0 at 229-30)
4. On 16 December 2013, Leidos appealed the CACO's decision to this Board. In
its 21 January 2014 complaint, Leidos conceded that the Greek contract costs should have
been allocated to Company 6 (comp I. if 5). Leidos also agreed with the government as to
the amount of increased costs the government paid on Leidos' CAS-covered, flexibly-priced
contracts because ofLeidos' misallocation, and represented that Leidos would reimburse the
government for that amount (id.). However, Leidos denied that its misallocation had any
cost effect on its CAS-covered, fixed-price contracts because the Greek contract costs were
not included in its forward pricing rates (compl. if 6). Significantly, Leidos also noted that
Contract No. W56HZV-05-C-0724, which the CACO's final decision had identified as the
representative contract, had not been awarded to it (comp I. if 7).
5. As part of its 21 February 2014 answer to the complaint, the government
included a motion to substitute the representative contract. The motion admitted that
Contract No. W56HZV-05-C-0724 was not between the government and Leidos. The
government requested that Contract No. W9113M-08-D-0004 be substituted into the
appeal's caption as the representative contract, indicating that contract is between the
government and Leidos. (Answer at 6)
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6. Leidos' response to the government's motion does not take a position on the
government's request. It does, however, opine that a claim must cite an appropriate
contract or be dismissed for lack of jurisdiction, and it then asserts that we are always
obligated to determine whether we posses jurisdiction. Leidos does not, however, request
that the appeal be dismissed for lack of jurisdiction.
DECISION
We are satisfied we possess jurisdiction over this appeal. Here, the government
claims reimbursement from Leidos because Leidos misallocated costs to its CAS-covered
contracts. However, the one "representative contract" identified by the decision is not
between the government and Leidos. We recently addressed this very situation in
The Boeing Company, ASBCA No. 58587, 14-1 BCA ii 35,470. There, the government
made the same mistake in a final decision seeking reimbursement from Boeing of
corporate procurement costs allegedly misallocated to CAS-covered contracts. Boeing
sought dismissal of its appeal from the decision for lack of jurisdiction, because the
representative contract cited by the decision was not between Boeing and the
government. In denying Boeing's motion, we recognized that, under the Contract
Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, a government claim must be "against a
contractor relating to a contract." 41 U.S.C. § 7103(a)(3). However, though the CDA
requires a claim to relate to a contract, it need not specifically identify a contract by
number. In Boeing, the government's claim did not relate to a single contract, but to the
propriety of costs Boeing charged to all of its defense contracts subject to the CAS.
There was no suggestion Boeing had failed to identify the applicable contracts to which
the decision related, which was confirmed by Boeing's communications about its cost
allocations to its contracts and by its GDMs. Given that the claim related to contracts
with Boeing, and Boeing either knew or could identify the contracts to which it related,
the claim was valid despite the fact that the particular "representative contract" cited by
the government had not been with Boeing.
There is no relevant difference between Boeing and the record presented here. Like
Boeing, here, the government asserts a claim relating to multiple CAS-covered contracts with
Leidos for reimbursement of misallocated costs (SOF ii 1). Like Boeing, before the decision
was issued, Leidos provided the government with a GDM describing the cost impact of its
misallocations upon those contracts, with no indication either then or now it could not
identify them (SOF ii 3). Indeed, as the complaint explains, Leidos essentially concedes
liability upon the portion of the CACO decision relating to flexibly-priced contracts and
represents that it will pay that part of the claim (SOF ii 4). The complaint observes that the
dispute now centers upon whether Leidos' acts have affected its fixed-price contracts. Leidos
represents that its calculation of forward pricing rates excluded the Greek contract at issue,
and therefore its CAS noncompliance did not impact those contracts (compl. ii 45). It is clear
from its statements Leidos knows or can identify what contracts the claim relates to.
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Like Boeing, this claim relates to contracts with Leidos. Like Boeing, Leidos
either knows or can identify the contracts to which the claim relates. Accordingly, under
Boeing, the claim is valid despite the fact that the one "representative contract" cited by
the decision is not with Leidos.
Leidos does not deny that Contract No. W9113M-08-D-0004 is between it and the
government. Nor does it oppose substituting it as the representative contract for this
appeal. Accordingly, we grant the government's motion to do so.
CONCLUSION
The Board possesses jurisdiction over the appeal. The government's motion to
substitute Contract No. W9113M-08-D-0004 is granted. From now on, the appeal's
caption shall contain that contract number.
Dated: 6 June 2014
`` MARK A. MELNICK
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
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RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
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I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 59076, Appeal ofLeidos,
Inc., f/k/a Science Applications International Corporation, rendered in conformance with
the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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