Lockheed Martin Aeronautics Company v. Secretary of the Air Force

Case: 22-1035 Document: 51 Page: 1 Filed: 04/25/2023
United States Court of Appeals
for the Federal Circuit
______________________
LOCKHEED MARTIN AERONAUTICS COMPANY,
Appellant
v.
SECRETARY OF THE AIR FORCE,
Appellee
______________________
2022-1035
______________________
Appeal from the Armed Services Board of Contract Ap-
peals in Nos. 62505, 62506, Administrative Judge J. Reid
Prouty, Administrative Judge Brian S. Smith, Administra-
tive Judge Craig S. Clarke, Administrative Judge James R.
Sweet, Administrative Judge Richard Shackleford.
______________________
Decided: April 25, 2023
______________________
SKYE MATHIESON, Crowell & Moring, LLP, Washing-
ton, DC, argued for appellant. Also represented by
STEPHEN JOHN MCBRADY.
AMANDA TANTUM, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for appellee. Also represented by BRIAN
M. BOYNTON, PATRICIA M. MCCARTHY; CHRISTOPHER JUDGE
HILBOR, JEFFREY PAUL HILDEBRANT, CARYL POTTER, III, Air
Force Commercial Litigation Field Support Center, United
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2 LOCKHEED MARTIN AERONAUTICS COMPANY v.
SECRETARY OF THE AIR FORCE
States Air Force, Joint Base Andrews, MD.
JASON NICHOLAS WORKMASTER, Miller & Chevalier
Chartered, Washington, DC, for amicus curiae National
Defense Industrial Association. Also represented by
ALEJANDRO LUIS SARRIA.
______________________
Before REYNA, MAYER, and HUGHES, Circuit Judges.
REYNA, Circuit Judge.
To expedite work on pressing government projects, the
government can issue what are called “letter contracts” or
“Undefinitized Contract Actions” (“UCAs”). UCAs allow
contractors to begin work before the parties have reached
a final agreement on contract terms, like price. The price
is expected to be converted into a firm price—or
“definitized”—in a timely manner.
This appeal involves two UCAs that the Air Force en-
tered into with Lockheed Martin for upgrades to F-16 air-
craft. Both UCAs include “definitization” clauses that
provide that if the parties are unable to reach agreement
on price by a certain time, the Contracting Officer or
“CO”—the government’s agent who can negotiate, execute,
modify, or terminate a contract on behalf of the govern-
ment—may determine a reasonable price. After several
years of negotiations, the Air Force and Lockheed Martin
were unable to agree on the price terms for the UCAs. The
CO assigned to each UCA unilaterally definitized their re-
spective UCA at a price of about $1 billion.
Lockheed Martin appealed directly to the Armed Ser-
vices Board of Contract Appeals (“ASBCA”) under the Con-
tract Disputes Act (“CDA”), asserting that the COs failed
to definitize at a reasonable price as required under the
UCAs. The government moved to dismiss, arguing that the
ASBCA lacked jurisdiction over the appeals because Lock-
heed Martin failed to submit a certified contractor claim to
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LOCKHEED MARTIN AERONAUTICS COMPANY v. 3
SECRETARY OF THE AIR FORCE
the COs requesting a final decision on its claims as re-
quired under the CDA. Lockheed Martin asserted that the
COs’ unilateral definitizations qualified as government
claims under the CDA, which a contractor can directly ap-
peal to the ASBCA without having to submit its own claim
to the COs. The ASBCA disagreed with Lockheed Martin
and dismissed the appeals for lack of jurisdiction.
Lockheed Martin appeals to this court, pressing the
same “government claim” argument here. For the reasons
below, we affirm the ASBCA’s dismissal.
BACKGROUND
A. The statutory and regulatory basis for UCAs
For much of the Nation’s history—stretching back to
the Revolutionary War—federal agencies relied on their
own distinct procurement and acquisition rules. See Fed-
eral Acquisition Regulation for Government Contracts:
Overview, Practical Law Practice Note Overview w-021-
9160 (2023 Westlaw) (“Government Contracts Overview”).
These rules were neither uniform nor transparent, creating
an unpredictable procurement process. Id. So in the late
1970s, Congress amended the Office of Federal Procure-
ment Policy Act (“OFPPA”) to authorize the Administrator
of the Office of Federal Procurement Policy to “issue policy
directives . . . for the purpose of promoting the development
and implementation of the uniform procurement system.”
Pub. L. No. 96-83, § 4(e), 93 Stat. 648 (1979). Under the
OFPPA, “the Administrator may prescribe Government-
wide procurement policies,” which “shall be implemented
in a single Government-wide procurement regulation
called the Federal Acquisition Regulation.” 41 U.S.C.
§ 1121(b).
The Federal Acquisition Regulation (“FAR”)—48
C.F.R. § 1.101 et seq.—provides the implementing regula-
tions for the OFPPA. The FAR applies to executive agen-
cies (like the Department of Defense) and their components
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4 LOCKHEED MARTIN AERONAUTICS COMPANY v.
SECRETARY OF THE AIR FORCE
or sub-agencies (like the Air Force). See Government Con-
tracts Overview. The OFPPA also authorizes agencies to
implement additional procurement regulations in order “to
satisfy the specific and unique needs of the agency.” 41
U.S.C. § 1303(a)(2). The Department of Defense’s addi-
tions to the FAR are set forth in the Defense Federal Ac-
quisition Regulation Supplement (“DFARS”), 48 C.F.R.
§ 201.101 et seq.
Relevant here, the FAR and the DFARS contemplate
the government entering into UCAs. See 48 C.F.R.
§ 16.603; id. § 216.603. The government does so when it
needs a contractor to begin performing work right away on
urgent projects. See John Cibinic & Ralph C. Nash, Uni-
lateral Definitization of a Letter Contract: Whose Claim?,
35 Nash & Cibinic Rep. NL ¶ 60 (2021). “Because they al-
low work to be started without establishing a firm price,
they are expected to be converted into firm contracts
(definitized) in a timely manner.” Id. As the DFARS ex-
plains, a “[c]ontract action means an action which results
in a contract”; a UCA “means any contract action for which
the contract terms, specifications, or price are not agreed
upon before performance is begun under the action”; and
“[d]efinitization means the agreement on, or determination
of, contract terms, specifications, and price, which converts
the undefinitized contract action to a definitive contract.”
48 C.F.R. § 217.7401. The specific process for definitization
in government contracts is set forth in “Contract Definiti-
zation” clauses in 48 C.F.R. § 52.216-25 (FAR) and 48
C.F.R. § 252.217-7027 (DFARS).
B. The Air Force and Lockheed Martin UCAs
Around 2015 and 2016, the Air Force entered into two
UCAs with Lockheed Martin for upgrades to F-16 aircraft:
the 2015 Singapore contract (J.A. 56; J.A. 2013 ¶¶ 16–17);
and the 2016 Korea contract (J.A. 1345; J.A. 2013–2014
¶¶ 18–19). The Singapore contract includes the FAR
definitization clause and the Korea contract includes the
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SECRETARY OF THE AIR FORCE
DFARS definitization clause. See J.A. 101, 48 C.F.R.
§ 52.216-25 (Singapore contract); J.A. 1388, 48 C.F.R.
§ 252.217-7027 (Korea contract).
For purposes of this appeal, the definitization clauses
are identical in all material respects. Both require Lock-
heed Martin to “begin promptly negotiating with the [CO]
the terms of a definitive contract that will include (1) all
clauses required by the [FAR] on the date of execution of
the letter contract, (2) all clauses required by law on the
date of execution of the definitive contract, and (3) any
other mutually agreeable clauses, terms, and conditions,”
and to submit a proposal including pricing data supporting
its proposal. 48 C.F.R. § 52.216-25(a); see also id.§ 252.217-7027(a).
The clauses further provide a “schedule for definitizing
th[e] contract.” Id. § 52.216-25(b); see also id. § 252.217-
7027(b).
Subparagraph (c) then states:
If agreement on a definitive contract to supersede
this letter contract is not reached by the target date
in [the schedule] . . . the [CO] may, with the ap-
proval of the head of the contracting activity, deter-
mine a reasonable price or fee in accordance with
subpart 15.4 and part 31 of the FAR, subject to
Contractor appeal as provided in the Disputes
clause.
Id. § 52.216-25(c); see also id. § 252.217-7027(c). Subpara-
graph (c) further states: “In any event, the Contractor shall
proceed with completion of the contract.” Id. § 52.216-
25(c); see also id. § 252.217-7027(c).
After several years of offers and counteroffers, the par-
ties were unable to agree on contract prices. Eventually,
the COs definitized their respective UCAs at a price of
roughly $1 billion. J.A. 639–640; J.A. 1673–1674.
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6 LOCKHEED MARTIN AERONAUTICS COMPANY v.
SECRETARY OF THE AIR FORCE
Lockheed Martin contends that when the COs exercised
their discretion to end negotiations and unilaterally estab-
lish a definitized contract price, they failed to comply with
the definitization clauses’ requirement to determine a “rea-
sonable price” in accordance with subpart 15.4 and part 31
of the FAR. J.A. 2027–2030. Lockheed Martin appealed
directly to the ASBCA, asking it to declare that the COs’
definitizations were inconsistent with the regulations re-
quiring a reasonable price and to remand to the COs, di-
recting them to provide Lockheed Martin with reasonable
prices. J.A. 2009–2032. Lockheed Martin brought its ap-
peals before the ASBCA under the CDA.
C. The CDA
Like the OFPPA amendments, the CDA was enacted
during the government procurement reform of the late
1970s. Contract Disputes Act of 1978, Pub. L. No. 95-563,
92 Stat. 2383. 1 The CDA is designed “to provide a fair, bal-
anced, and comprehensive statutory system of legal and
administrative remedies in resolving government contract
claims.” Winter v. FloorPro, Inc., 570 F.3d 1367, 1369 (Fed.
Cir. 2009) (cleaned up). It recognizes two types of “claims”:
those brought by the government against a contractor (gov-
ernment claims) and those brought by a contractor against
the government (contractor claims). United States v. Am.
States Ins. Co., 252 F.3d 1268, 1272 (11th Cir. 2001).
As for contractor claims, “[e]ach claim by a contractor
against the Federal Government relating to a contract
shall be submitted to the contracting officer for a decision”;
shall “be in writing”; and, for claims of more than $100,000,
shall be certified. 41 U.S.C. §§ 7103(a)(1)–(2), (b)(1). As for
1 Initially codified at 41 U.S.C. §§ 601–613 (1982),
Congress reorganized the CDA in 2011, and it is now found
at 41 U.S.C. §§ 7101–7109 (2012). Act of Jan. 4, 2011, Pub.
L. No. 111-350, § 2, 124 Stat. 3677, 3816–26.
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LOCKHEED MARTIN AERONAUTICS COMPANY v. 7
SECRETARY OF THE AIR FORCE
government claims, “[e]ach claim by the Federal Govern-
ment against a contractor relating to a contract shall be the
subject of a written decision by the contracting officer.” Id.§ 7103(a)(3). Once the CO issues a final decision on a con-
tractor claim, the contractor can then appeal to the appro-
priate board of contract appeals. Id. § 7104(a). 2 In
contrast, a contractor may appeal a government claim di-
rectly to the appropriate board of contract appeals without
submitting a contractor claim to the CO. Garrett v. Gen.
Elec. Co., 987 F.2d 747, 749 (Fed. Cir. 1993). In all events,
for a board of contract appeals to have jurisdiction under
the CDA, there must be a CO decision on a claim.
But it is not always clear whether a claim has been
made and, if so, which party made it. John Cibinic, Jr. et
al., Administration of Government Contracts 1182 (5th ed.
2016) (“In some cases it is difficult to distinguish between
government and contractor claims.”). The sole issue in this
appeal is whether the COs’ definitizations were govern-
ment claims under the CDA.
D. The ASBCA dismisses for lack of jurisdiction
In response to Lockheed Martin’s appeals to the
ASBCA, the government moved to dismiss for lack of juris-
diction, arguing that, because Lockheed Martin never sub-
mitted a written certified contractor claim to the COs
requesting a final decision, there was no jurisdiction over
its appeals. Appellee’s Resp. Br. 6. And indeed, the record
shows that, after the COs definitized the prices, Lockheed
Martin did not challenge the definitizations before the COs
or submit contractor claims under the CDA. In response to
the government’s motion, Lockheed Martin recognized that
it needed a CO final decision for the ASBCA to have juris-
diction, but it argued that the CO’s definitization decision
2 The contractor can also instead bring an action in
the Court of Federal Claims. 41 U.S.C. § 7104(b).
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8 LOCKHEED MARTIN AERONAUTICS COMPANY v.
SECRETARY OF THE AIR FORCE
was a final decision on a government claim against Lock-
heed Martin which may be directly appealed. J.A. 4.
The ASBCA granted the government’s motion and dis-
missed the appeals for lack of jurisdiction. Lockheed Mar-
tin Aeronautics Co., ASBCA Nos. 62505, 62506, 21-1 BCA
¶ 63 GC ¶ 215, 2021 WL 2912101 (J.A. 1–25). In doing so,
the ASBCA framed the issue as follows: “[W]hether a uni-
lateral contract definitization action by a [CO] constitutes
a government claim that may be directly appealed to the
[ASBCA] by the contractor (as happened here), or whether
it is an act of contract administration, subject to a claim by
the contractor, but not a direct appeal.” J.A. 1. The ASBCA
majority concluded—over Administrative Judge Clarke’s
dissent—that it had already addressed this issue in Bell
Helicopter Textron, ASBCA No. 35950, 88-2 BCA ¶ 20,656,
1988 WL 44376, aff’d on mot. for recon., 88-3 BCA ¶ 21,048,
1988 WL 83993, and that it was bound by that decision. Id.On grounds that the ASBCA must follow its own precedent,
the majority held that “a unilateral contract definitization
does not constitute a government claim and may not be di-
rectly appealed to” the ASBCA. J.A. 2. As in Bell Helicop-
ter, it concluded, the “CO’s decisions challenged here . . .
established the contract price in accordance with the con-
tracts’ terms, and are thus not government claims.” J.A. 4.
Lockheed Martin appeals the dismissal to this court un-
der 41 U.S.C. § 7107(a)(1)(A). We have jurisdiction under
28 U.S.C. § 1295(a)(10).
STANDARD OF REVIEW
We review the ASBCA’s decisions on questions of law,
including jurisdiction, de novo. Triple Canopy, Inc. v. Sec’y
of Air Force, 14 F.4th 1332, 1337–38 (Fed. Cir. 2021); Place-
way Constr. Corp. v. United States, 920 F.2d 903, 906 (Fed.
Cir. 1990). Interpretation of a government contract and of
applicable procurement regulations are questions of law
subject to de novo review. Triple Canopy, 14 F.4th at 1338.
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DISCUSSION
We hold that the COs’ definitizations of the contracts
here were not government claims and that, as a result,
Lockheed Martin has not shown that the ASBCA erred in
dismissing its appeals for lack of jurisdiction.
Although the classification of a claim as a government
claim can affect jurisdiction and more, 3 the CDA offers
minimal guidance on what constitutes one. Indeed, the
“only guidance” that Congress has provided on the “defini-
tion of a government claim” comes from § 7103(a)(3),
Malone v. United States, 849 F.2d 1441, 1443 (Fed. Cir.
1988), modified, 857 F.2d 787 (Fed. Cir. 1988), 4 which
states: “Each claim by the Federal Government against a
contractor relating to a contract shall be the subject of a
3 For instance, if a CO decision is considered a gov-
ernment claim, a dissatisfied contractor must appeal it to
the appropriate board of contract appeals within the CDA’s
90-day window or bring an action on it in the Court of Fed-
eral Claims within the 12-month window. 41 U.S.C.
§§ 7104(a) & (b). By contrast, a contractor generally has
six years to decide whether to submit a contractor claim to
the CO. Id. § 7103(a)(4)(A). The classification of the claim
can also play a role in determining which party bears the
burden of proof on the merits of the claim. See Lisbon Con-
tractors, Inc. v. United States, 828 F.2d 759, 763–64 (Fed.
Cir. 1987) (relying on the board of contract appeals’ prac-
tice of treating termination for default as a government
claim to hold that the government bears the burden to
prove default).
4 The Malone court analyzed the language under
§ 7103(a)’s predecessor, § 605(a), which, for our purposes
here, is nearly identical to § 7103(a)’s language.
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10 LOCKHEED MARTIN AERONAUTICS COMPANY v.
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written decision by the contracting officer,” 41 U.S.C.
§ 7103(a)(3).
Because the CDA does not specifically define the term
“claim,” “this court looks for guidance to its implementing
regulations.” H.L. Smith, Inc. v. Dalton, 49 F.3d 1563,
1564 (Fed. Cir. 1995); see also Garrett, 987 F.2d at 749. The
FAR—the “applicable regulation,” Garrett, 987 F.2d at
749—defines a “claim” as a “written demand or written as-
sertion by one of the contracting parties seeking, as a mat-
ter of right, the payment of money in a sum certain, the
adjustment or interpretation of contract terms, or other re-
lief arising under or relating to this contract.” 48 C.F.R.
§ 2.101; see also id. § 52.233-1(c) (government contract dis-
putes clause defining a claim). We have held that “the
phrase ‘as a matter of right’ in the regulatory definition of
a ‘claim’ requires . . . that the [party] specifically assert en-
titlement to the relief sought”—“[t]hat is, the claim must
be a demand for something due or believed to be due.” Al-
liant Techsystems, Inc. v. United States, 178 F.3d 1260,
1265 (Fed. Cir. 1999); see also Reflectone, Inc. v. Dalton, 60
F.3d 1572, 1576 (Fed. Cir. 1995) (en banc) (explaining that
“the FAR requires a ‘claim’ to be a written demand seeking
a sum certain (or other contract relief) as a matter of right,”
which “is consistent with the ordinary meaning of the term
‘claim’: ‘a demand for something due or believed to be due’”
(citation omitted)).
We hold that the COs’ decisions to definitize the con-
tract prices here were not government claims because they
were not demands or assertions by the government seeking
relief against Lockheed Martin. When the COs definitized
the contract prices, they were simply following the agreed
upon procedures for determining the final contract price.
See 48 C.F.R. § 52.216-25(c); id. § 252.217-7027(c). The
COs were not making a demand or an assertion seeking
entitlement to “something due or believed to be due.” Al-
liant, 178 F.3d at 1265. Nor did the completion of the
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definitization process result in the government seeking re-
lief against Lockheed Martin.
That the COs’ definitizations were not government
claims becomes even more clear when we compare the COs’
definitizations of the contract prices here to the COs’ ac-
tions in cases in which we have found government claims.
In Garrett, for instance, the Navy contracted for jet engines
and accepted them. 987 F.2d at 748. The Navy later de-
termined that there were defects in the engines, and the
CO issued a decision revoking acceptance and directing GE
to correct the defects at no cost to the government. Id. at
748–49. GE appealed to the ASBCA, which determined
that it had jurisdiction. On appeal to this court, we ana-
lyzed whether the Navy’s directives under the contract’s in-
spection clause were appealable CDA claims. Id. at 749.
We determined that the inspection clause of the contract
gave the government the right to seek certain remedies. Id.The government opted to pursue a non-monetary remedy—
directing the contractor to correct or replace the defective
engines—which we held to be non-monetary “other relief”
within the FAR’s third category of “claims.” Id. Because
the government had directed GE to provide that relief, it
had asserted a government claim. Id. The CO’s decision
thus amounted to a demand targeted at GE seeking to have
GE correct or replace allegedly defective engines at no cost
to the government.
In Placeway, the Coast Guard contracted with Place-
way to build residential housing. 920 F.2d at 905. “The
CO decided that the contract price balance due would not
be ‘released’ because Placeway had failed to complete the
contract ‘in a timely manner[.]’” Id. We held that the CO’s
decision was a government claim. Id. at 906. Specifically,
we “characterized” the government claim as a claim di-
rected at Placeway “seeking incidental and consequential
damages for Placeway’s alleged breach of the contract, in
particular, failure to complete performance on the date set
in the contract.” Id. at 906 n.1.
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12 LOCKHEED MARTIN AERONAUTICS COMPANY v.
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And in Malone, the Air Force awarded Malone a con-
tract to paint and refurbish houses. 849 F.2d at 1442. Af-
ter disputes arose over Malone’s performance, the CO
terminated the contract for default. Id. at 1443. Malone
appealed directly to the ASBCA. Id. On appeal to this
court, we rejected the government’s argument that the
ASBCA lacked jurisdiction. Id. at 1443–44. We explained
that case law supported that a government decision to ter-
minate a contractor for default is a government claim. Id.
at 1443. That “position,” we explained, followed directly
from the CDA’s language: “The government issues [the de-
fault termination] by CO decision, and it is both adverse to
the contractor and relates to the contract because it in-
volves a determination that the contractor has failed to ful-
fill its contractual duties.” Id. And as one of the cases that
the Malone court relied on explained, id., a CO’s default
termination amounts to an “assertion” directed at a con-
tractor seeking “to stop the contractor’s performance of the
contract,” Reedom, ASBCA No. 30226, 85-1 B.C.A. (CCH)
¶ 17879, 1985 WL 16514 (describing default terminations).
Simply stated, the COs’ actions in Garrett, Placeway,
and Malone clearly amounted to a demand or an assertion
seeking relief against the contractor based on the contrac-
tor’s performance under the contract. The COs’ definitiza-
tions here, by contrast, do not amount to demands or
assertions seeking relief against Lockheed Martin based on
Lockheed Martin’s performance under the contract. Ra-
ther, as the ASBCA aptly characterized the definitization
action in Bell Helicopter: The COs here “did no more than
establish the contract price in accordance with the terms
of” the definitization clauses and “merely perform[ed] the
duty prescribed by the contract when the parties failed to
reach agreement on a price.” 88-2 BCA at ¶ 20,656.
Lockheed Martin’s various attempts to characterize
the COs’ definitizations as demands or assertions that seek
relief are unpersuasive. According to Lockheed Martin, by
inserting new prices into the contracts, the COs made an
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“adjustment” “of contract terms” within the FAR’s second
category of “claims.” Appellant’s Reply Br. 12. But even
assuming that the COs’ actions were demands or asser-
tions against Lockheed Martin, we do not think that the
COs’ establishment of prices where none existed before can
be legitimately characterized as an adjustment of contract
terms.
Lockheed Martin also argues that, by unilaterally
definitizing the prices, the government sought “other re-
lief” within the FAR’s third category of “claims” in the form
of “impos[ing] prices and demand[ing] performance.” Ap-
pellant’s Reply Br. 12–13. But the COs’ “imposing prices”
is permitted under the definitization clauses and cannot be
characterized as the government seeking something due or
believed to be due from Lockheed Martin. Nor do we think
that the COs’ definitizations can be accurately construed
as a “demand” seeking something due in the form of “per-
formance.” Indeed, the government had no reason to make
that demand: The definitization clauses themselves ex-
pressly require Lockheed Martin to “proceed with comple-
tion of the contract” after the COs definitize the price, 48
C.F.R. § 52.216-25(c); id. § 252.217-7027(c), and Lockheed
Martin did not suggest that it would refuse to do so.
Only one party here is making a demand or an asser-
tion seeking relief: Lockheed Martin. Lockheed Martin as-
serts that the government failed to set a “reasonable price”
as required by the contracts and seeks relief against the
government—namely, that the COs comply with the
definitization clauses and set a reasonable price. J.A. 2028,
2030. And Lockheed Martin can seek that relief by submit-
ting a traditional contractor claim. 5
5 Lockheed Martin reveals in its Opening Brief that
it has already “submitted certified [contractor] claims to
the Air Force regarding these two contracts.” Appellant’s
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14 LOCKHEED MARTIN AERONAUTICS COMPANY v.
SECRETARY OF THE AIR FORCE
That, in fact, is precisely what the contractors did in
two cases Lockheed Martin relies on in support of its “gov-
ernment claims” position—Todd Construction, L.P. v.
United States, 656 F.3d 1306 (Fed. Cir. 2011), and Alliant,
178 F.3d 1260. In those cases, we did not treat the govern-
ment’s underlying actions as government claims; we
treated the contractor’s responses to the government’s ac-
tions as contractor claims. See Todd Constr., 656 F.3d at
1311 (explaining that the dispute was whether Todd’s re-
quested relief in response to the government’s performance
evaluations “‘relat[ed] to the contract’” and was thus a
“‘claim’ under the CDA”); Alliant, 178 F.3d at 1265 (ex-
plaining that Alliant’s letter to the CO was “a written de-
mand seeking adjustment or interpretation of a contract
term”). Similarly, here, the COs’ definitizations are not
government claims. Rather, Lockheed Martin’s responses
to the COs’ definitizations are potentially contractor
claims.
Finally, we disagree with Lockheed Martin that the
phrase “subject to Contractor appeal” in the definitization
clauses means that the definitizations in this case are gov-
ernment claims. Appellant’s Br. 26–29. The definitization
clauses state that “the [CO] may . . . determine a reasona-
ble price . . ., subject to Contractor appeal as provided in the
Disputes clause.” 48 C.F.R. § 52.216-25(c) (emphasis
added). According to Lockheed Martin, “subject to Contrac-
tor appeal” must mean that the UCAs contemplate the ex-
istence of an underlying government claim that can be
directly appealed. After all, Lockheed Martin says, you
cannot have an “appeal” without an underlying “claim.”
Br. 39 n.25. Its counsel confirmed this at oral argument,
explaining that Lockheed Martin has submitted contractor
claims to the COs; that the COs have denied those claims;
and that those claims have been appealed to the ASBCA.
See Oral Arg. at 0:43–2:03.
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But even if “appeal” necessarily meant that there was
an underlying “claim,” as Lockheed Martin contends, Lock-
heed Martin’s argument would fail. That is because it is
based on a flawed premise: that the underlying claim
would be a government claim. If anything, the underlying
claims on which the COs made their definitization deci-
sions here would be contractor—not government—claims
(for example, a Lockheed Martin demand for more money).
Cf. James M. Ellett Constr. Co. v. United States, 93 F.3d
1537, 1544–45 (Fed. Cir. 1996) (analyzing the applicable
FAR clause’s statement that the contractor has a “right of
appeal” from a CO’s unilateral decision and determining
that there was an appealable CO decision on a contractor
claim). The phrase “subject to Contractor appeal” in the
definitization clauses thus does not support Lockheed Mar-
tin’s assertion that the definitizations are government
claims.
We have considered Lockheed Martin’s other argu-
ments and find them unpersuasive.
CONCLUSION
We hold that the COs’ definitizations of the contract
prices were not government claims because they were not
demands or assertions by the government seeking relief
against Lockheed Martin. We therefore affirm the
ASBCA’s judgment dismissing Lockheed Martin’s appeals
for lack of jurisdiction.
AFFIRMED
COSTS
No costs.