Ensign-Bickford Aerospace & Defense Company
ASBCA No. 57929
| A.S.B.C.A. | Oct 20, 2016Background
- Ensign‑Bickford Aerospace & Defense (EBA&D) manufactured MK 154 dual shock‑tube detonators under two Navy contracts; the contracts incorporated a Technical Data Package (TDP) and required a First Article Test (FAT) and Lot Acceptance Testing (LAT) under Plans A/B.
- The FAT samples were produced at 375 feet per minute (fpm) extrusion rate and were accepted by the Navy in 2007.
- EBA&D later increased shock‑tube extrusion to 600 fpm, performed validation testing and Plan A LATs; lots 11–14 (produced at 600 fpm) passed contract tests and functioned but many Temperature & Humidity (T&H) function samples exhibited "venting" (breaches/splits) during detonation.
- The Navy contracting officer disapproved LAT reports for lots 11–14, citing venting/"violent ruptures," and asserted the 375 fpm FAT baseline was frozen under configuration‑control clauses. EBA&D continued production at risk and sought FA determination later.
- EBA&D submitted a certified claim (~$911,293) alleging improper rejection; the Board heard entitlement and sustained EBA&D's appeal, finding the government failed to meet its burden to justify rejection.
Issues
| Issue | EBA&D's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the FAT fixes an extra‑contractual, binding "baseline" standard that forbids characteristics not expressly in the TDP (e.g., venting) | FAT cannot add requirements not in the TDP; contract governs and venting is not prohibited | FAT acceptance freezes a configuration baseline; characteristics observed in the FAT set the yardstick for acceptance | Rejected govt's broad view; FAT does not expand contract specs to create unstated new prohibitions |
| Whether the FAT showed no venting (so lots 11–14 deviate) | Some EBA&D personnel believed venting occurred at FAT; FAT record is ambiguous | COTR and QAR testified FAT showed no venting and would have been recorded | Fact is in equipoise; gov't failed to prove FAT lacked venting by preponderance |
| Whether venting (or louder/"violent" ruptures) is a valid contractual basis to reject lots 11–14 | Venting is common in shock tube function, not prohibited by TDP, and earlier accepted lots also showed vents | Venting frequency and severity in lots 11–14 was unprecedented and raised performance/safety concerns, justifying rejection | Government failed to cite contract language, industry standard, or reliable expert proof making venting a proper basis for rejection; rejection unjustified |
| Whether the CO reasonably rejected lots (safety/customer confidence) | Safety concerns must be grounded in contract or reliable technical evidence; absence of such means rejection is a compensable change | Safety and loss of customer confidence made rejection reasonable and prudent | Government did not produce sufficiently reliable technical evidence or expert proof to show a reasonable safety risk; CO's rejection was not proven reasonable |
Key Cases Cited
- Southwest Welding & Manufacturing Co. v. United States, 413 F.2d 1167 (Ct. Cl. 1969) (burden on government to prove rejected work fails to meet specifications)
- Andersen Consulting v. United States & Computer Sciences Corp., 959 F.2d 929 (Fed. Cir. 1992) (subjective, unexpressed party intent irrelevant to contract interpretation)
- ITT Arctic Services, Inc. v. United States, 524 F.2d 680 (Ct. Cl. 1975) (courts will not consider subjective unexpressed intent in interpreting contracts)
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (trial judge must ensure expert testimony is scientifically valid and relevant)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping applies to all expert testimony)
- Ashland Oil, Inc. v. Delta Resins & Refractories, 776 F.2d 281 (Fed. Cir. 1985) (distinguishing lay opinion and expert testimony and the need for reliable foundation)