Lockheed Martin Aeronautics Company
ASBCA No. 62505, 62506
| A.S.B.C.A. | Jun 24, 2021Background
- Two undefinitized F-16 upgrade contracts (Foreign Military Sales) awarded to Lockheed Martin (LM); each contained a "not to exceed" amount and clauses permitting the CO to unilaterally definitize price if parties failed to agree.
- LM submitted definitization proposals; after years the parties did not agree and the contracting officer (CO) unilaterally set final prices by modification in February 2020.
- LM did not present a claim to the CO; instead it filed direct appeals to the Armed Services Board of Contract Appeals (ASBCA) in May 2020 challenging the unilateral definitizations.
- The Air Force moved to dismiss for lack of jurisdiction, arguing LM failed to exhaust the Contract Disputes Act (CDA) administrative process (i.e., file a CO claim). The government relied principally on Bell Helicopter Textron (ASBCA precedent) that a unilateral definitization is not a government claim.
- The ASBCA majority concluded Bell Helicopter remains binding and dismissed for lack of jurisdiction; Judge Clarke dissented, arguing subsequent case law ("other relief") and practice effectively make unilateral definitization a government claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a CO's unilateral contract definitization is a "government claim" appealable directly to the Board | LM: Definitization is a CO final decision constituting a government claim under the Disputes clause (including the "other relief" category); thus LM may appeal directly | Gov: Bell Helicopter controls — unilateral definitization merely establishes the contract price under the contract and is contract administration, not a government claim; contractor must present a claim to the CO first | Majority: Dismissed for lack of jurisdiction; unilateral definitization is not a government claim under binding Bell Helicopter |
| Whether later authority (General Electric/Garrett, Todd Construction) has effectively overruled Bell Helicopter | LM: Subsequent Federal Circuit and ASBCA decisions broadened "claim" (esp. "other relief") so Bell is no longer sound | Gov: Those cases did not address or overrule Bell; they are distinguishable and do not change Bell's core reasoning | Majority: Those authorities did not abrogate Bell; they do not compel treating definitization as a government claim |
| Whether analogies (terminations, CAS findings, data‑rights, unilateral indirect‑rate determinations) require treating definitization as a claim | LM: Similar non‑monetary government actions have been treated as claims; definitization should be analogous | Gov: Distinguishable — many analogous rulings involve taking money or property or directing additional performance, unlike routine price setting under a contract clause | Majority: Analogs are not dispositive; key differences mean they don't overturn Bell |
| Whether the Board may depart from Bell Helicopter absent a higher‑court overruling or SDG action | LM: Board should treat Bell as superseded by later law and practice | Gov: Precedent binds; only SDG or Federal Circuit can overrule Board precedent | Majority: The Board must follow Bell unless authoritatively overruled; it declines to do so here |
Key Cases Cited
- Garrett v. General Elec. Co., 987 F.2d 747 (Fed. Cir. 1993) (affirms that certain non‑monetary CO directives can be "other relief" constituting a government claim)
- Todd Construction v. United States, 656 F.3d 1306 (Fed. Cir. 2011) (broad reading of "relating to" language; CDA jurisdiction extends to claims connected to contract performance)
- Alliant Techsystems, Inc. v. United States, 178 F.3d 1260 (Fed. Cir. 1999) (non‑monetary claims can provide jurisdictional basis)
- Malone d/b/a Precision Cabinet Co. v. United States, 849 F.2d 1441 (Fed. Cir. 1988) (termination for default is a government claim)
- L‑3 Communications Integrated Sys. L.P. v. United States, 132 Fed. Cl. 325 (Ct. Fed. Cl. 2017) (contractor required to present a certified claim to the CO where monetary losses were alleged from unilateral definitization)
- Lighting Control Ballast, LLC v. Phillips Elecs. N. Am. Corp., 744 F.3d 1272 (Fed. Cir. 2014) (discussion of when earlier precedent may be treated as overruled)