The issue before the court is whether Raytheon Co. was required to pay interest to the Government for a potential violation of Cost Accounting Standard 413 (“CAS 413”), 48 C.F.R. § 9904.413. The Government appeals from a decision of the Armed Services Board of Contract Appeals (“Board”), which held on summary judg
BACKGROUND
This appeal relates to certain contracts between Raytheon and the Government. 1 These contracts are subject to certain Cost Accounting Standards (“CAS”), which provide uniformity in how contractors measure, assign, and allocate costs to Government contracts. 2 See 48 C.F.R. § 9901.302(b). If the contractor does not follow the relevant CAS and consequently overcharges the Government, the contract price must be adjusted. To implement these adjustments, contracts subject to the CAS include a clause that provides:
[T]he Contractor, in connection with this contract, shall ... (5) [ajgree to an adjustment of the contract price or cost allowance, as appropriate, if the Contractor ... fails to comply with an applicable Cost Accounting Standard ... and such failure results in any increased costs paid by the United States. Such adjustment shall provide for recovery of the increased costs to the United States, together with interest thereon computed at the annual rate established under section 6621 of the Internal Revenue Code of 1986 (26 U.S.C. 6621) for such period, from the time the payment by the United States was made to the time the adjustment is effected....
48 C.F.R. § 52.230-2(a) (the “CAS clause”).
One type of cost that was allocable to the contracts at issue related to Ray-theon’s defined-benefit pension plans for its employees.
See 48 C.F.R. §
9904.412-40(d); 48 C.F.R. § 9904.413-40(c). Defined-benefit plans guarantee fixed payments to retired employees, leaving the company responsible for ensuring that sufficient funds will be available. Companies therefore must make assumptions regarding, inter alia, the amount of money they expect to pay in the future, and the expected performance of the investments held by their pension plans. Based on these assumptions, companies determine how much money to invest in the plan in a given period so that future liabilities will be met. Because these contributions to the pension fund are part of the cost of doing business with the contractor, in the case of cost-type contracts they are paid, in part, by the Government. 48 C.F.R. § 3.205 — 6(j);
see also Allegheny Teledyne, Inc. v. United States,
The CAS provide rules for the appropriate determination of pension costs alloca-ble to a particular business segment and to individual contracts within that segment.
See
48 C.F.R. § 9904.412-40(d); 48 C.F.R.
Here, Raytheon sold two of its business segments that had performed work on CAS-covered Government contracts. In 1998, Raytheon sold Montek Aerospace to Moog Inc., but retained all of the pension assets and actuarial liabilities. It is undisputed that this constituted a segment closing. Approximately two years later, Ray-theon informed the Government that it had calculated a pension surplus as of the date of the segment closing. The contracting officer asked Raytheon to calculate the Government’s share of the surplus (i.e., the segment closing adjustment). After several years of calculations, re-calculations, and disputes, Raytheon eventually agreed that the Government’s share was $487,305. On August 30, 2004, the Government then requested that Raytheon pay the adjustment. Because CAS 413-50(c)(12)(vii) refers to an adjustment in the period of the segment closing, the Government viewed the debt as due in 1998, and therefore also demanded simple interest on the amount due dating back to the initial segment closing. On September 21, 2004, Raytheon submitted a check for the segment closing adjustment, but refused to pay interest.
In 2000, Raytheon sold Raytheon Engineers and Constructors (“REC”) to Washington Group International, but retained the pension assets and liabilities. This sale also constituted a segment closing. Raytheon informed the Government that there was a pension surplus, and calculated the Government’s share at $4,935,197. The parties disputed the appropriate amount of this share for some time, and eventually settled on a Government share of $14,681,268. On August 31, 2004, the Government requested payment of the calculated adjustment, as well as simple interest on that amount dating back to the segment closing. On September 21, 2004, Raytheon submitted a check for the segment closing adjustment, but refused to pay interest.
The dispute here stems from Raytheon’s failure to pay interest on the amounts owed under CAS 413 — 50(c)(12) for the period between the segment closing and the date of payment. The contracting officer
Raytheon appealed to the Board, which initially granted summary judgment to the Government.
Raytheon Co.,
ASBCA No. 54907,
Raytheon petitioned for reconsideration, and the Board changed its decision.
Raytheon Co.,
ASBCA No. 54907,
was not based upon stipulated or undisputed facts but upon factual inferences drawn from a record that was not altogether clear on this point. An equally plausible factual inference was that appellant’s payments were in fact allocated to the relevant current cost accounting periods by virtue of prior period adjustments. The record was silent and unclear on the accounting treatment of these payments. Summary judgment should have been denied to allow for further record development.
Id. at 2. Rather than vacate its order, however, the Board granted summary judgment to Raytheon on the theory that the segment closing adjustment contemplated by CAS 413 “did not result from a CAS violation ... which is what the CAS statute and CAS clause require in order for appellant to be liable for a contract price adjustment and interest under these provisions.” Id. at 2 (emphasis altered). Without this “cause and effect relationship” between the CAS violation and the adjustment, the Board determined that the “interest provisions under the CAS statute and CAS clause have no application under the facts of this case. Accordingly, the government is not entitled to interest under the CAS statute and the CAS clause.” Id. at 3. The Government appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(10).
DISCUSSION
We review decisions of the Board as set out in 41 U.S.C. § 609(b). On questions of law, our review is de novo.
Reflectone, Inc. v. Dalton,
I
In general, a contractor must adjust the contract price to correct a CAS violation if (A) the Contractor fails to comply with an applicable Cost Accounting Standard, and (B) such failure results in any increased costs paid by the United States. 48 C.F.R. § 52.230-2(a)(5). The CAS-clause adjustment provides for the payment of interest, but otherwise limits the Government’s recovery to “the increased cost to the Government, in the aggregate, on the relevant contracts subject to the price adjustment.” Id.
A. CAS Noncompliance
On the undisputed facts, it is clear that Raytheon violated CAS 413. The Board stated that the existence of a CAS violation was unclear because the record did not reflect the accounting treatment used to allocate Raytheon’s segment closing adjustment. The accounting treatment, however, is not the relevant consideration. CAS 413 — 50(c)(12)(vii) provides, as noted above, that the segment closing adjustment must be allocated to the period in which the segment was closed. It further provides that contract prices must be “adjusted accordingly.” CAS 413-50(c)(12)(vii). The requirement that contract prices be “adjusted accordingly” indicates that, as the CAS Board’s promulgation comments state, “[u]nder this final rule, the [CAS 413-50(c)(12) ] adjustment is determined as a current period adjustment.” 60 Fed.Reg. 16534, 16539 (Mar. 30, 1995);
see also Allegheny Teledyne,
The conclusion that CAS 413 requires a current period adjustment (i.e., payment in the current period), rather than simply dictating the appropriate accounting treatment for the adjustment, is further supported by the treatment of an ongoing contractual relationship between the parties. Specifically, CAS 413 provides that “if the contractor continues to perform Government contracts, the contracting parties may negotiate an amortization schedule, including interest adjustments.” CAS 413-50(c)(12)(vii) (emphasis added). Thus, the rule explicitly requires interest in the event that the segment closing adjustment is credited to the Government over time. This requirement is inconsistent with Raytheon’s contention that CAS 413 requires only an accounting allocation to the current period, rather than payment in the current period, and demonstrates that the CAS Board intended for the adjustment to be due in the period of the segment closing.
The record here is clear that Raytheon closed its Montek segment in 1998, and its REC segment in 2000. It is equally clear
B. Increased Costs to the Government
The Board was incorrect in holding that Raytheon’s CAS violation did not cause the Government to pay increased costs. 7 Its mistake stems from its consideration of the wrong payments when it evaluated whether the Government had made overpayments resulting from a CAS violation, which the Board did in both its decisions. In its Original Decision, the Board stated that the existence of a pension surplus established that the Government had paid increased costs. Original Decision at 18. That is, the Board determined that when the Government paid its share of the pension costs for the now-closed segment, it had overpaid in the past. While it is true that the “overpay-ments” that occurred prior to the segment closing were not the result of a CAS violation, there are other payments from the Government to Raytheon that the Board should have considered. In particular, the Government appears to have had open contracts with Raytheon during the period in which the segments closed, and it made payments on those contracts that would have been lower if Raytheon had complied with CAS 413 by crediting those contracts.
The Government’s payments to Raytheon during the periods in which the segments were closed are the relevant payments for determining the applicability of CAS noncompliance interest. This court has held that, while CAS 413 looks to past contracts in measuring the amount of the required segment closing adjustment, the adjustment itself is implemented through contracts open during the period in which the segment is closed.
See Allegheny Teledyne,
Raytheon argues that we should consider only “relevant contracts impacted by the noncompliance,” which Raytheon appears to interpret as the contracts under which the pension costs were collected. Raytheon argues that these are the only contracts that should be considered because the CAS statute prohibits the Government from recovering more “than the increased cost (as defined by the Board) to the Government, in the aggregate, on the relevant contracts subject to the price adjustment.” 41 U.S.C. § 422(h)(3); see also 48 C.F.R. § 52.230-2(a)(5). Raytheon similarly argues that each contract to which pension costs were allocated must be separately analyzed. With respect to most CAS provisions, Raytheon would be correct that each affected contract would be considered individually. See 48 C.F.R. § 52.230-6(b)(3) (Feb.1995) (“Cost impact proposals submitted for failure to comply with an applicable CAS ... shall identify the cost impact on each separate CAS covered contract.”). However, as the Board correctly stated in its initial decision (and reaffirmed on reconsideration), CAS 413 is unusual:
The current period adjustment provided for under CAS 413, by its terms, represents an adjustment of previously-determined pension costs for the segment as a whole, and does not require an impact analysis of individual contracts within the segment. This adjustment is not contract specific, nor does it involve a cost adjustment of any individual contract.
Original Decision at 19; see also Final Decision at 2. Thus, while Raytheon is correct that interest is available only after identifying increased costs paid on a CAS contract, the relevant contract payments are those made in the period of the segment closing—and those were clearly “increased” by the failure to credit the segment closing adjustment in the period required by CAS 413.
II
On remand, consequently, the only issue remaining will be the appropriate calculation of interest. In its Original Decision, the Board determined that “interest owed the government for a CAS noncompliance is to be compounded daily.” Original Decision at 20. Raytheon argues that this is not the appropriate calculation, and that only simple interest is owed. The Board’s initial analysis was correct.
Congress has set out the appropriate interest rate calculation for CAS violations at 41 U.S.C. § 422(h)(4). That section provides:
The interest rate applicable to any contract price adjustment shall be the annual rate of interest established under section 6621 of title 26 for such period. Such interest shall accrue from the time payments of the increased costs were made to the contractor or subcontractor to the time the United States receivesfull compensation for the price adjustment.
Thus, the statute establishes the interest rate by reference to 26 U.S.C. § 6621. Relatedly, 26 U.S.C. § 6622(a) requires that:
In computing the amount of any interest required to be paid under this title or sections 1961(c)(1) or 2411 of title 28, United States Code, by the Secretary or by the taxpayer, or any other amount determined by reference to such amount of interest, such interest and such amount shall be compounded daily.
This court has held that statutes which require interest payments at the rate set out in § 6621 require compound interest.
See Canadian Fur Trappers Corp. v. United States,
In
Canadian Fur Trappers,
this court considered the appropriate methodology for calculating interest to be used in relation to 19 U.S.C. § 1677g.
Raytheon argues that § 6622 applies only when the rate in § 6621 is invoked by the tax code, or when a court awards post-judgment interest. Since § 422(h)(4) fits into neither category, Raytheon concludes that § 6622 does not apply. This argument is based on the language of § 6622, which applies to “interest required to be paid under this title [the tax code] or sections 1961(c)(1) or 2411 of title 28, United States Code [post-judgment interest] ... or any other amount determined by reference to such amount of interest.” Raytheon emphasizes that, if the language “any other amount determined by reference to such amount” is read to include § 6622’s compounding methodology in all cases where a statute references the rate in § 6621, there would be no reason to include specific reference to 28 U.S.C. §§ 1961(c)(1) and 2411. Raytheon therefore concludes that this construction is impermissible under the principle that courts should avoid an interpretation that renders statutory language superfluous.
See, e.g., United States v. Menasche,
A second, closely related, point is that § 6622 requires compounding for an “amount of any interest required to be paid under this title or [two sections] of title 28 ... or any other amount determined by reference to
such amount
of
Despite the appeal of Raytheon’s proposed interpretation of § 6622, our prior decision in Canadian Fur Trappers forecloses that view. Raytheon presents no argument for distinguishing that case, and we see no basis for doing so. A statutory reference to § 6621 located in title 19 is not meaningfully distinct from one located in title 41 so far as § 6622 is concerned. If 19 U.S.C. § 1677g requires compounding, as we have held, then § 422(h)(4) must as well.
Raytheon also relies on the Truth in Negotiations Act (“TINA”), Pub.L. No. 99-500, § 952, as evidence that § 6622 does not apply in all situations where an interest rate is determined by reference to § 6621. Raytheon notes that TINA refers to § 6621, and is implemented via the FAR as a simple interest requirement. 48 C.F.R. § 52.215-10(d) (“[T]he Contractor shall be liable to and shall pay the United States ... (1) [sjimple interest on the amount of such overpayment ... at the applicable underpayment rate ... prescribed by the Secretary of the Treasury under 26 U.S.C. 6621(a)(2)”). The obvious, critical distinction is that the FAR — and hence the relevant contracts — expressly refer to simple interest. 11 Here, in contrast, there is no such statement as to the type of interest, and the FAR implementation of the TINA provides no support for the notion that any federal agency has construed § 6622 differently than Canadian Fur Trappers. Indeed, contrasting the reference to simple interest in FAR § 52.215 — 10(d)(1) with the lack of such a reference in the CAS clause suggests that there is a corresponding distinction in the appropriate calculation methodologies to be used.
The CAS clause — which serves as the basis for the interest award — simply implements § 422(h)(4). See 48 C.F.R. § 52.230-2(a)(5). The CAS clause essentially mimics the statutory language, providing for an adjustment “together with interest thereon computed at the annual rate established under section 6621 of the Internal Revenue Code of 1986 (26 U.S.C. 6621).” The lack of any significant distinction between the CAS-clause and the statute it implements indicates that the regulation was intended to create the same interest liability contemplated by the statute — an interest liability that includes daily compounding. 12
CONCLUSION
For the foregoing reasons, we reverse the decision of the Board and hold that Raytheon is liable to the Government for compound interest under the CAS clause. We remand so that the Board may enter judgment for an amount of interest calculated in a manner consistent with this opinion.
REVERSED AND REMANDED
COSTS
No costs.
Notes
. As explained by the Board, the parties selected Contract No. DAAH01-96-C-0114, an open, CAS-covered contract between Ray-theon and the Government, as a “test” contract for purposes of establishing Board jurisdiction. The parties stipulate that the following clauses are included in that contract: FAR 52.230-2, Cost Accounting Standards (Aug. 1992); FAR 52.230-5, Administration of Cost Accounting Standards (Feb. 1995); and FAR 52.232-17, Interest (Jan. 1991).
. The CAS were promulgated by the CAS Board pursuant to its statutory authority under 41 U.S.C. § 422(f), (h). The CAS provisions can be found in the Code of Federal Regulations. CAS xyz corresponds to 48 C.F.R. § 9904.xyz.
. Allowability, in contrast, is determined by the relevant provisions of the FAR and the contract itself.
See Boeing N. Am., Inc. v. Roche,
. A "segment closing” occurs when “a segment has (i) been sold or ownership has been otherwise transferred, (ii) discontinued operations, or (iii) discontinued doing or actively seeking Government business under contracts subject to this Standard.” 48 C.F.R. § 9904.413-30(a)(20).
.This difference typically occurs because the assumptions regarding expected investment performance and anticipated liabilities made at the time of contribution do not match actual investment performance precisely.
. Raytheon conditionally appealed the Board's interest rate calculation on several grounds. We dismissed the appeal because there is no extant Board decision adverse to Raytheon.
Raytheon Co. v. Gates,
. "Increased costs shall be deemed to have resulted whenever the cost paid by the Government results from a change in a contractor's cost accounting practices or from failure to comply with applicable Cost Accounting Standards, and such cost is higher than it would have been had the practices not been changed or applicable Cost Accounting Standards complied with.” 48 C.F.R. § 9903.306(a).
. Raytheon argues that because the Government requested a check to cover Raytheon’s segment-closing adjustment obligation rather than requesting a direct adjustment of contract prices, no contract prices would have been adjusted regardless of the timing of payment, and hence there would have been no increased costs paid by the Government on any individual contract. There is, of course, no economic difference between a cash payment and a credit made in the same period. Moreover, CAS 413 is unusual in that it does not require an analysis of individual contracts, but rather, as discussed below, affects all of the contractor's CAS-covered contracts. Thus, there is no reason to treat the Government's apparent preference for a cash payment over a credit as a waiver of its right to seek interest under the CAS clause.
. Raytheon relies on a decision of the Eleventh Circuit that declined to apply § 6622's compounding methodology in calculating interest as set out in 29 U.S.C. § 1132(g).
Carriers Container Council, Inc. v. Mobile S.S. Assoc., Inc.,
. Although this may support the proposition that Canadian Fur Trappers was erroneously decided, this panel cannot reach the opposite result. We must follow the prior precedent of this court.
. Whether this FAR provision properly implements the relevant statutes is a separate question.
.This is not an improper reliance on parol evidence, as Raytheon contends. As noted above, “our task is 'to ascertain the [CAS Board's] intended meaning when it promulgated the CAS.’”
Allegheny Teledyne,