558 F.2d 994 | Ct. Cl. | 1977
delivered the opinion of the court:
This appeal under the Wunderlich Act, 41 U.S.C. §§ 321, 322 (1970), before the court on defendant’s request for review of Trial Judge Francis C. Browne’s opinion filed June 28, 1976, raises two questions of interpretation of the so-called Truth in Negotiations Act, 10 U.S.C. § 2306(f) (1970) (hereinafter the Act). The Armed Services Board of Contract Appeals (the board) agreed with the contracting officer that the contract in issue was "overpriced,” due to insufficient cost information disclosure to the Government by the contractor, though it lowered the amount of the refund to the Government ordered by the contracting officer, concluding that $8,050 was due from the contractor.
Plaintiff is the successor in interest to Giannini Controls Corporation, the original party to the contract in issue. Its problems giving rise to this litigation can be traced back to July 1966, when the Navy apparently ran short of time in making a procurement. On July 26, 1966, Giannini received an urgent telephone call from a Navy procurement negotiator, asking it to ready a quotation "before the end of the week” for delivery of 29 air data computers. Giannini was the sole source supplier of these computers, known as the 560T27-1, which were used in the flight control system of the Navy’s C2-A aircraft. The contractor complied with the quotation request, the very next day offering the Navy a unit purchase price of approximately $20,000, even though a much longer period of time, from 4 to 6 weeks, would normally be allowed for assembly of the cost data and the resulting formulation of the asking price.
As required by the Act, Giannini also submitted to the Navy certain information it possessed on the cost of each of the some 500 component parts that comprised the 560T27-1 computer. Since Giannini’s prospective sale would culminate in a "negotiated prime contract” with a military department "where the price is expected to exceed $100,000,” the Act specifies that "[p]rior to award” of the contract the contractor must "submit cost or pricing data” and "certify that, to the best of his knowledge and belief, the cost or pricing data he submitted was accurate, complete and current * * *.”
No attempt was made by Giannini to update the 1965 BOM given the Government, to reflect the firm’s component cost experience in the 11 months intervening the BOM and the 560T27-1 quotation. This was not undertaken simply because, as indicated earlier, up to 6 weeks would usually be needed to ascertain the most recent purchase costs, not then recorded on the purchase history cards, and compile all the cost data from the cards into an itemized materials cost estimate. The urgency of the prospective procurement did not allow for such delay. Therefore, the negotiators for Giannini and the Navy worked from the 1-year-old BOM, agreeing to make judgmental adjustments to account for the age of the cost information as well as the fact that the quantity of computers slated for procurement, 29, differed from the quantities for which costs were projected in the BOM, 6, 12, and 18. The Government’s negotiator pressed for a 4-percent reduction in the direct material cost proposed by Giannini (roughly $7,900 of the $20,000 unit price), to
The negotiated computer sale contract was executed on September 19 and proceeded to completion. The contractor experienced no further difficulties on its account until 1970, when it was selected for audit. As a result of two audits conducted that year, and a failure to resolve differences held by the contractor and the Navy over the information that the audits disclosed, the contracting officer for the computer sale contract issued a final decision on December 8, 1970, determining that the contract had been "overpriced” by $14,158 and that a refund was due the Government in that amount. The overpricing was said to stem from the excess of the 1965 BOM costs over the lower costs shown to exist on purchase history cards at the time of the price negotiations, for 15 high dollar value computer components. Giannini was thus implicitly held to have violated the requirements of the Act and the implementing contract clause, for failure to furnish the purchase history cards to the Government’s negotiator. The contractor timely appealed to the board, which disagreed in part with the contracting officer and lowered the refund amount to $8,050.
Plaintiff attacks the board’s decision on two grounds. First, it disputes the relevance and reasonable availability, and therefore the legal requirement, of disclosing the purchase history cards as they existed when negotiations commenced. On the point of relevance, plaintiff cites Lockheed Aircraft Corp. v. United States, 193 Ct. Cl. 86, 432 F. 2d 801 (1970), for the proposition that the Act’s disclosure requirements are not met by the furnishing of data in undigested form, meaning the purchase history cards rather than an updated BOM. In Lockheed, raw purchase history data in a Kardex file was furnished to the Government’s negotiators. This court held that such disclosure was not sufficient to inform the negotiators of the component prices, and thus inadequate to comply with the Act’s strictures. It is clear from the opinion that the Kardex file presented information to the negotiators that was, in the court’s view, so difficult to isolate and to understand as to be, in essence, worthless. Plaintiff derives from this the notion that the purchase history cards, which it deems equally useless in the form in which they existed during negotiations, need not have been shown to the Government’s negotiator, since requiring the contractor to do so would have been to ask for a futile act. It concludes that the cards thus fall outside the Act’s required disclosure.
There are two answers to plaintiffs reasoning. First, the equation of the Kardex file in Lockheed with the purchase history cards in this case is wholly unwarranted in light of the board’s own fact-finding, at least for all that is explained in the papers before us. Though the trial judge agrees with plaintiffs point, nothing in his opinion takes issue with the facts as explicitly found by the board. The
The second answer to plaintiffs relevance contention is that the Lockheed decision does not absolve a contractor from disclosure of whatever information he possesses, simply because there is not sufficient time, as in this case, to create a formal, updated BOM. Lockheed pronounced the data submission in that case inadequate in view of the fact that there had been time to assemble the component price information in a more readily usable form than the Kardex file, though the contractor did not do so. Such time, it is true, was not present in Lockheed before the pre-contract auditors reviewed the contractor’s cost data, but it did exist thereafter, and it is evident from the court’s thinking that a BOM compilation during the time that was available would have been useful in finalizing the pricing arrangements. Where, however, there was not time enough to prepare a BOM, in light of the urgency of the procurement, Lockheed does not say that less accessible but nonetheless useful price information need not be disclosed. To say otherwise would be to eliminate the Act effectively from operation precisely when it is needed the most, when information is difficult to come by. The rule in Lockheed is that the best price data must be furnished, not that data in less than prime form, because of time or other constraints,
In addition to its contention that the purchase history cards were irrelevant, which we reject, plaintiff argues that the cards were not readily available to it for disclosure to the Government, and thereby excepted from the Act’s requirements. Plaintiff asserts that a regulation implementing the statute, ASPR 3-807.3(e), 32 C.F.R. § 3.807-3(e) (1966), requires only that "all facts reasonably available to the contractor up to the time of agreement on price and which might reasonably be expected to affect the price negotiations” be disclosed, and that the cards were not reasonably available because it would have taken too long a period to retrieve them. Assuming the regulation to mean that data not reasonably retrievable before the end of price negotiations need not be furnished to the Government, we still cannot agree that plaintiff is relieved of the duty to disclose the cards. The contention that the time required to pull and assemble the cards for use was greater than the negotiation period would allow plainly will not square with the facts found by the board. "Here, appellant [plaintiff] had a purchase history card system in effect and the raw or unevaluated data in question were readily retrievable therefrom. * * * [I]t would have been feasible for appellant, within the time that was then available, to pull the 500 purchase history cards from its files, reproduce them, and disclose the reproductions to the Government’s negotiator for use in the negotiations.” 74-1 BCA at 50,290. Plaintiff has shown us nothing to indicate that this finding of the board was in error, and absent such a showing, plaintiff will not be heard to ask the court to assume facts contradicted by the board’s opinion. Jefferson Constr. Co. v. United States, 176 Ct. Cl. 1363, 1369, 364 F. 2d 420, 424 (1966), cert. denied, 386 U.S. 914 (1967). The contention regarding reasonable availability of the cards is without merit.
The second ground on which the board’s result is attacked lies in the provision of the statute and the
We think that the trial judge’s analogies cannot be permitted to control interpretation of the "significant sums” provision. The requirement of "significance” in the sum to be refunded should be read, we think, in the spirit of Sperry Flight Sys. Div. v. United States, 212 Ct. Cl. 329, 548 F. 2d 915 (1977), keeping in mind that the Act in which the requirement appears was drawn for the benefit of the Government, to curb an abuse in procurement, rather than for that of the contractor. The exemption of significant sums appears in the context of a statute designed to limit a contractor’s right to obtain or keep the full contract price where part of that price was generated in circumstances of cost data nondisclosure to the Government’s negotiator. The prime thrust of the statute is to remove the contrac
The trial judge’s objective of stopping the Government from incurring litigation expenses in excess of the amount sought to be recovered, though well-intentioned, is not attainable. As defendant points out in its brief, the contracting officer and board ordering the refund can never know in advance what the total litigation costs to the Government may be, for they cannot even know whether the contractor will challenge their decisions. Further, as defendant says, the cost of litigation in a case such as this is similar to the cost of prosecuting a tax case where no new law is being established. The objective in the latter action is not to come out ahead financially, but rather to encourage voluntary compliance with later collection attempts and in any event to discourage open, knowing violations of the revenue laws. Surely the Government may be conceded the right to enforce its procurement laws in the same fashion, however costly such enforcement may be.
Presumably as a precaution against our refusal to follow the trial judge’s result, plaintiff raised several other arguments in its brief on the Government’s appeal from the trial judge’s ruling. The arguments are directed essentially to the board’s asserted lack of jurisdiction to consider the claims that plaintiff itself brought to the board. Though we suspect that these arguments are frivolous, we will not rule on their merits, for our mere suspicion regarding their validity is far outweighed by our certainty that they were raised out of time. Under Court of Claims Rules 166(e) and 54(b), plaintiff had no more than 30 days (time extensions aside) to file its exceptions to the trial judge’s opinion from the time that the latter was announced. Plaintiff failed to come within this time limit, for it waited until the filing of its brief in response to the Government’s, well beyond the 30-day period, to raise the jurisdictional arguments for the first time. No adequate explanation has been offered in justification for this delay. We therefore deem plaintiffs final arguments untimely and decline to address them. There is an additional reason, however, for refusing this jurisdictional challenge at this time — plaintiff did not suggest these jurisdictional defects to the board, for all that we have been shown, and thus may not now raise them to this court. General Dynamics Corp. v. United States, post at 607; H. R. Henderson & Co. v. United States, 169 Ct. Cl. 228 (1965); sec also William F. Klingensmith, Inc. v. United States, 205 Ct. Cl. 651, 505 F. 2d 1257 (1974).
Conrac Corp., ASBCA No. 15964 (contract No. N00383-67-C-0551), 74-1 BCA fl 10,605 (Apr. 11, 1974).
"(f) A prime contractor or any subcontractor shall be required to submit cost or pricing data under the circumstances listed below, and shall be required to certify that, to the best of his knowledge and belief, the cost or pricing data he submitted was accurate, complete and current—
"(1) Prior to the award of any negotiated prime contract under this title where the price is expected to exceed $100,000;
"Any prime contract or change or modification thereto under which such certificate is required shall contain a provision that the price to the Government, including profit or fee, shall be adjusted to exclude any significant sums by which it may be determined by the head of the agency that such price was increased because the contractor or any subcontractor required to furnish such a certificate, furnished cost or pricing data which, as of a date agreed upon between the parties (which date shall be as close to the date of agreement on the negotiated price as is practicable), was inaccurate, incomplete, or noncurrent: Provided, That the requirements of this
"For the purpose of evaluating the accuracy, completeness, and currency of cost or pricing data required to be submitted by this subsection, any authorized representative of the head of the agency who is an employee of the United States Government shall have the right, until the expiration of three years after final payment under the contract or subcontract, to examine all books, records, documents, and other data of the contractor or subcontractor related to the negotiation, pricing, or performance of the contract or subcontract.”
The specifications of the 560T1-2A computer (previously procured) and the 560T27-1 computer (the subject of the current negotiations) differed only in that two amplifiers and two modules of the 560T1-2A specifications were to be omitted and "dummy” items were to be substituted in the 560T27-1 computer to complete the electrical circuits.
The board adjusted the claimed overpricing of $14,158 downward to the "round” figure of $10,000 and then, by taking into account a negotiated factor, attrition, general and administrative costs, and profit, arrived at a net overpricing figure of $8,050. Since plaintiff has already paid this sum, plus interest, in the amount of $9,765 to the Government, it seeks recovery of the latter figure.
See note 2, supra.
Defendant also counters plaintiffs contention regarding the escape of overpriced amounts from refund in contracts of less than $100,000, arguing that the exemption is permissive only and that cost data disclosure requirements may contractually be imposed upon any contractor, even one whose contract is for less than $100,000.
As to the merits of plaintiff’s argument, curiously cast as a "jurisdictional” one and in any event out of time, that the Government’s negotiator had somehow agreed to restrict the mandatory cost data disclosure to the 1965 BOM, we think that the response of the board was entirely adequate. It said: "Moreover, even if the parties