United Launch Services, LLC
Docket: ASBCA 56850, ASBCA 57542, ASBCA 57661
Decision date: 2013-11-21

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of--
United Launch Services, LLC 
Under Contract No. F04701-98-D-0002 
APPEARANCES FOR THE APPELLANT: 
) 
) 
) 
) 
) 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 56850, 57542, 57661, 
Carl Nichols, Esq. 
Todd Steggerda, Esq. 
Steven Lehotsky, Esq. 
Charles Speth, Esq. 
Wilmer Cutler Pickering Hale and Dorr LLP 
Washington, DC 
Col Jennifer L. Martin, USAF 
Air Force Chief Trial Attorney 
Jeffrey P. Hildebrant, Esq. 
Jeffrey M. Lowry, Esq. 
Erika L. Whelan Retta, Esq. 
Alexis J. Bernstein, Esq. 
Anna C. Kurtz, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE WILSON 
ON THE GOVERNMENT'S MOTIONS FOR SUMMARY JUDGMENT 
This appeal arises from the denial of a claim filed with the contracting officer 
(CO) for increased costs associated with satellite launch services. The United States Air 
Force (Air Force or government) has moved for summary judgment to deny Counts I, 
III 1, and IV, and "a portion of Count II" of the complaint filed in the above-captioned 
appeals. 
2 
United Launch Services, LLC (ULS or appellant) opposes the motions. For 
the reasons stated below, the motions are granted in part with regard to Count II, and the 
remainder of the motions are denied. 
1 The government also moved to dismiss Count III of appellant's complaint for lack of 
jurisdiction, contending that ULS 's claim upon which the appeal was based 
(ASBCA No. 56850) did not allege a mutual mistake of fact. ULS filed a 
protective claim and appeal (ASBCA No. 57542) to protect its ability to pursue a 
claim based on mutual mistake. By Order dated 14 March 2013, the Board 
deferred ruling on the motion until a decision on the merits has been reached. 
2 Although the government styled its filings as motions for partial summary judgment, we 
interpret them as full motions for summary judgment on all counts. 

STATEMENT OF FACTS CSOF) FOR PURPOSES OF THE MOTIONS 
TheRFP 
1. On 19 June 1998, the Air Force issued Request for Proposals (RFP) 
No. F04701-97-R-0008 for Development and Initial Launch Services under the Evolved 
Expendable Launch Vehicle (EEL V) program. The RFP described the purpose of the 
EEL V Program as follows: "The primary requirement of the EEL V program is to 
execute the government portion (DoD and NASA) of the National Mission Model at 
lower recurring costs than those of current expendable systems. The program should 
also maintain or improve reliability, capability, and operability." (R4, tab 24 at 4) 
2. The RFP contemplated award of two separate contracts to two offerors. One 
contract was a Development Agreement under Other Transactions authority to partially 
fund the completion of the contractor's development of an EEL V launch capability. The 
other contract, referred to as the Initial Launch Services (ILS) Contract, was to procure 
an initial set of EEL V launch services. (R4, tab 21 at 3) 
3. The purpose of the ILS Contract was to acquire launch services for all of 
the launches identified in the government portion of the National Mission Model in 
FY02-FY05. The anticipated period of performance started in FY98 and ended in 
FY05. A contractor's 
actual period of performance would depend on the number and 
type oflaunches awarded to that contractor. (R4, tab 21 at 3) The number and type of 
launches awarded to a particular contractor was to be made on a best value basis (id. at 
7). Also, the contract was to be awarded utilizing the commercial items 
procedures set forth under FAR Part 12 (R4, tab 26 at 8). 
4. Annex 2 of the RFP contained the government portion of the National Mission 
Model (NMM), which showed the anticipated government EEL V launches during the 
period 2001-2020. The government portion of the NMM model was set out in total and 
was also broken out into Mission Model A and Mission Model B. In total, 183 
government EEL V missions were shown on the complete mission model, which was the 
sum of the missions shown on Mission Model A and Mission Model B. (R4, tab 23) 
We find that there were no commercial EEL V missions shown on the complete mission 
model, on Mission Model A, or on Mission Model B. 
5. The RFP instructed offerors to propose fixed prices for each contract line item 
number (CLIN) for each launch service (mission) in FY02-FY05 (R4, tab 21 at 25). 
Offerors were to submit proposed prices by mission and year on Attachment 6 to the 
Model Contract, in accordance with Annex 9 (R4, tab 21 at 28, tabs 25, 26 at 43). 
2 

6. The RFP required offerors to "provide a file (COMM.PDF) which 
summarizes impacts of the Offeror's commercial launch capture on the Offeror's ability 
to execute 
the Government's EELV launch service requirements" (R4, tab 21 at 21). 
7. The RFP required offerors to submit a Life Cycle Cost Estimate (LCCE) for the 
Offeror's EEL V system. The LCCE was to reflect the life cycle costs for all of the 
launches identified in Mission Model A and Mission Model B, provided in the RFP. 
Offerors were instructed to update the LCCE they had submitted during the predecessor 
contract, which was referred to as the Pre-Engineering and Manufacturing 
Development (Pre-EMD) contract. An offeror that did not show at least a 25% 
reduction from the Launch Cost Baseline (LCB) provided in the RFP would not receive 
a Development agreement. (R4, tab 21 at 20) 
8. The Pre-EMD RFP required offerors who had participated in that earlier phase 
of the EEL V procurement to base their LCCE on the government portion of the NMM 
and to "[a]ssume a commercial capture of 12 launch vehicles per year (6 Delta class and 
6 Atlas class), except for FYO 1, where you shall assume a commercial capture of 6 
launch vehicles (3 Delta class and 3 Atlas class)'' (R4, tab 18 at 5). 
9. Boeing submitted its initial proposal in response to the ILS RFP on 20 July 
1998 (R4, tabs 29-40). Boeing proposed fixed-prices for launch services in Attachment 
6 to the Model 
Contract, as instructed by the RFP (R4, tab 40). 
10. Boeing submitted an updated LCCE for the EEL V program with its proposal 
(R4, tab 30 at 6-7). The proposal stated that Boeing's assumptions about its capture of 
the government and commercial launch markets for pricing ILS launch services were 
different than the assumptions incorporated into the LCCE as follows: "The LCCE 
pricing is based on the quantities and vehicle types required by the government's EEL V 
NMMa and NMMb as provided in the request for proposal (RFP), Annex 2. The ILS 
prices found in ILS ATCH6 ORDERS.DOC are different than the LCCE prices and 
reflect our competitive analysis for the ILS period of performance and Boeing 
commercial assumptions." (R4, tab 31 at 9) 
11. In its LCCE, Boeing assumed 234 total commercial medium EEL V launches 
for each of"National Mission Model A" and "National Mission Model B." Boeing 
assumed 6 launches for 2001 and 12 launches per year for 2002-2020 under each mission 
model. (R4, tab 30 at 6-7) 
12. Boeing's proposal did not quantify the assumptions it made about its projected 
capture of commercial launches in its proposed pricing for ILS launches. However, 
Boeing's proposal stated that commercial sales during the ILS program would lower 
government ILS costs (i.e., Boeing's prices), as follows: "Commercial market capture 
and resulting high production and flight rates will contribute to significantly lowering Air 
3 

Force launch services costs throughout the EELV's service life"·(R4, tab 29 at 13). 
Boeing's proposal also indicated that, in its decision to invest in the EELV program, 
Boeing had made its own favorable projection of the commercial market and its capture 
thereof: "Our projected commercial capture plan, combined with the EELV program, 
justified a significant Boeing investment in the EEL V /Delta IV program to provide 
substantial production and launch infrastructure" (R4, tab 36 at 5). 
13. Following a government "Downselect Design Review" (DDR) during the 
Pre-EMD phase of the procurement, Boeing opted not to develop a dedicated launch 
vehicle for small payloads. Boeing's proposal stated that its rationale for this decision 
was based, in part, on Boeing's assumption that "by the year 2004, the share of the 
projected [commercial] launch market for Delta IV will average 24 launches per year. 
(R4, tab 35 at 15) 
14. On 5 October 1 998, Boeing submitted its Best and Final Offer (BAFO) that 
provided 
updated prices (R4, tab 47). 
The Contract 
15. On 16 October 1998, the government awarded to Boeing Contract 
No. F04701-98-D-0002 (Contract) (R4, tab 50). The 
Contract incorporated the prices 
Boeing submitted in its BAFO (R4, tab 58). The Contract awarded 19 launches to 
Boeing, including the following missions: National Reconnaissance Organization 
(NROL) A/B-1, Wideband Gap Filler (WGS or WGF), Global Positioning System (GPS) 
IIF-1, GPS IIF-5, and GPS IIF-9 (R4, tab 50 at 36-37). 
16. The contract contained the following clauses and provisions in pertinent part: 
52.212-4 CONTRACT TERMS AND CONDITIONS­
COMMERCIAL ITEMS (APR 1998) THIS CLAUSE MAY 
BE TAILORED IN ACCORDANCE WITH FAR 12.302(b) 
(c) Changes/Modifications. Changes in the terms and 
conditions of this Contract may be made only by written 
agreement of the parties. Either Party shall have the right to 
request changes within the general scope of this Contract. 
Any such requests for changes must be made in writing and 
signed by an authorized representative of the requesting 
Party. Within forty-five ( 45) days of receipt of a change 
request, the receiving Party shall provide notification to the 
requesting Party of the cost, schedule, or other terms effected 
4 

by the requested change. If any such change causes an 
increase or decrease in the cost of, or time required for, or 
both, the performance of this Contract, or otherwise affects 
any other provision of this Contract, an equitable adjustment 
shall be negotiated in good faith between the Parties .... 
(d) Disputes. This Contract is subject to the Contract 
Disputes Act of 1978.... Failure of the Parties to this Contract 
to reach agreement on any request for equitable adjustment, 
claim, appeal or action arising under or relating to this 
Contract shall be a dispute to be resolved in accordance with 
the clause at FAR 52.233-1, Disputes, which is incorporated 
herein by reference. The Contractor shall proceed diligently 
with performance of this Contract, pending final resolution of 
any dispute arising under the Contract. 
(R4, tab 50 at 19-20) We find that the contract does not specifically define the term 
"equitable adjustment." 
(6) THE FOLLOWING ADDITIONAL SPECIAL 
CONTRACT REQUIREMENTS CSCR) ARE APPLICABLE 
TO THIS CONTRACT: 
SCR.l REQUIREMENTS 
(b) Delivery or performance shall be made only as 
authorized by orders issued in accordance with the following: 
(1) The Procuring Contracting Officer (PCO) 
shall 
issue orders when requesting the Contractor to furnish 
any launch services under this Contract.. .. 
(2) All orders are subject to the terms and 
conditions of this Contract. In the event of conflict between 
an order and this Contract, the Contract shall control. 
(4) Prior to placing an order, the PCO shall 
verify the recurring standard launch service Attachment 6 
5 

price in accordance with SCR. 19, entitled Most Favored 
Customer. 
(d) The Government reserves the right to substitute a 
payload for an ordered launch service. Before modifying the 
related order to affect the substitution, the PCO shall consult 
with the Contractor performing the launch service 
and request 
a proposal that provides information regarding any additional 
costs, impacts to the launch schedule, and other relevant 
factors. If the Government decides to proceed with the 
substitution, the proposal will serve as the basis for an 
equitable adjustment, if any, and the related order will be 
modified in accordance with the Changes/Modifications 
clause of this Contract. 
(e) No equitable adjustment will be allowed for 
recurring standard launch services (CLIN 0100) for the 
substituted payload so long as the substitution remains within 
the same payload class as defined below. Equitable 
adjustments for substitutions outside the same vehicle class, 
mission unique services and mission integration costs 
incurred to date at the time of payload substitution and launch 
schedule will be mutually agreed upon .... 
Vehicle class Payloads 
Small GPS, TSX, SBIRS-LEO, DMSP, SBR/MTI 
Medium DSCS, SBIRS-GEO, Mission AlB, 
ADV EHF, Wideband Gap Filler 
Heavy DSP, Mission C 
(R4, tab 50 at 34, 35) With regard to the GPS payloads, the contract specified that the 
direct to orbit payload would weigh 2,675 lbs (R4, tab 51 at 8). 
The NROL AlB-I Missions 
17. By letter dated 5 November 1999, the government informed Boeing (through 
its wholly owned subsidiary, Delta Launch Services, Inc.) that it was contemplating 
modifying the A/B-1 mission launch services to accommodate a heavier payload (Decl. 
of Steven P. Lehotsky (Lehotsky decl.), ex. 51). The government, by letter dated 5 July 
2000, invited Boeing to submit a revised statement of work and cost proposal "to modify 
6 

your EEL V Initial Launch Service (ILS) contract for anticipated changes to the Mission 
A/B-llaunch service" (Lehotsky decl., ex. 53). 
18. The record indicates that Boeing submitted a proposal dated 10 July 2000, 
which provided cost information and terms for "a Delta IV Medium (4,2) in place of the 
Medium ( 4,0) [launch vehicle] as specified in the original ILS Contract" due 
to the 
increased payload weight (Lehotsky decl., ex. 54). 
19. The parties entered negotiations and on 18 September 2000, executed 
Modification No. P00008 which increased the prices for the A/B-1 missions, and 
contained the following language: 
b. If Boeing is not able to meet the mission requirements, 
delivering a maximum spacecraft weight of9,415lbs .... 
Boeing will provide an alternative launch service within 
the EELV family at no additional cost to the 
Government. ... 
g. In consideration of these contract modifications and 
associated equitable adjustments agreed to herein, the 
Contractor releases the Government from any and all 
liability under this contract for further equitable 
adjustments attributable to these modifications. 
(R4, tab 61 at 2, 3, 43) 
The WGS Missions 
20. By letter dated 16 May 2001, the government informed Boeing that the WGS 
payload weight (originally estimated at 11,000 lbs. due 
to the fact that it was still under 
development in June of 1998) had increased to 12,500 lbs. Boeing was asked to provide 
firm prices for the "three (3) WGS" missions under the respective CLINs. (R4, tab 62) 
21. On 7 June 2001, Boeing submitted its proposal, upgrading the launch vehicle 
from a Delta IV Medium to a Delta IV M+ (4,2) (R4, tab 63). Subsequently, on 
1 November 2001, the government revised its 16 May 2001 request as follows: 
2. Since that original request and your proposal submittal 
(reference a), the WGS requirement has changed. The 
Contractor should now assume a 13,200 lbs. SV and include a 
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2% performance margin, for a total design mass-to-orbit 
capability of 13,464lbs .... 
Accordingly, Boeing was asked to revise its previous proposal in light of the new 
information. (R4, tab 64) By letter dated 16 November 2001, Boeing complied with the 
government's request and proposed that the mission would require a Delta IV M+ (5,4) 
instead of Delta IV M+ (4,2) (R4, tab 65). 
22. The record indicates that the parties continued negotiations and on 29 October 
2002 executed Modification No. P00032, which included the increases for the WGF 
missions (Lehotsky decl., ex. 79). 
The GPS Missions 
23. By email dated 30 September 2003, the CO forwarded Delivery Order (DO) 
0083 and Modification No. P00056. DO 0083 read as follows: "The purpose of this 
delivery order is to establish CLIN 0103 for GPS-IIF-1 Mission which is being issued as 
a 
bilateral agreement due to the late CLIN 0103 start date for 
GPS-IIF-1." Modification 
No. P00056 made changes to 
the contract pursuant to DO 0083 by increasing the GPS IIF 
CLIN 0103 price due to the aforementioned delays. The CO advised Boeing that if it 
agreed with the DO and modification, it should sign the documents and return them via 
facsimile. (R4, tab 85) 
24. On the same day, Boeing replied by letter that although DO 0083 reflected a 
price adjustment based on launch delays, it did not reflect "the launch service price 
adjustment resulting from GPS IIF-1 Payload growth." Boeing further noted: 
(R4, tab 86) 
Based on paragraph 3 .1.1.1 of [the System Performance 
Requirement Document, Attachment 1 of the contract], our 
contractual requirement for GPS IIF-1, is a payload lift off 
weight of2,675 lbs. Currently IRS 007 Revision 
003 ... requires a lift-offweight of 3,578lbs resulting in 
payload weight growth of 903 lbs. 
In order to accommodate this increased weight, the GPSIIF-1 
spacecraft will need to be lifted on a Delta IV Medium 
vehicle. It is our recommendation that the parties defer from 
signing Delivery Order 0083 until a mutually acceptable price 
adjustment can be established as a result of the payload class 
change. 
8 

25. In a subsequent letter, also dated 30 September 2003 which references a 
teleconference between Boeing and the government, Boeing informed the government 
that it "has signed the subject modifications with the condition, that Boeing is entitled to 
an equitable adjustment to CLINs 0100,0101,0103 and 0102 should the payload weight 
grow beyond the lift capability specified in the subject contract" (R4, tab 87). 
26. On 16 October 2003, the parties executed Modification No. P00057, which 
deleted seven launch services. This modification also contained a release which the 
parties agreed to "mutually release each other from any and all other potential 
claims ... arising under or relating to events that have occurred through the date of this 
agreement under the EEL V contract." This modification also agreed that the above 
release did not extend to the following: 
(4) The Contractor's Request for Equitable Adjustment 
(REA) under the "Other Transaction Agreement" (OTA), 
Group 2, Proposal No. D4-02-019; 
( 5) Any Contractor REA or claim arising under or relating 
to the DSCS-2 launch service; and 
(6) Any and all other Contractor REAsor claims (in 
addition to those set forth in subparagraphs (4)- (5) of this 
paragraph) arising under or relating to the EEL V program 
from October 1998 through the date of this Modification in a 
total amount not to exceed $20 million. 
(R4, tab 90 at 1, 4-5) 
27. By letter dated 27 October 2003, Boeing advised the government that it had 
been informed that the government was intending to order GPS IIF-1 launch services. 
Boeing 
requested that the government "provide the current launch weight for the GPS 
IIF-1 payload, so that Boeing can plan integration activities accordingly." (R4, tab 91) 
28. By email dated 23 December 2003, the government forwarded a copy of DO 
0086 (GPS IIF-1 launch services) for Boeing to review (R4, tab 96). By letter dated 
15 January 2004, Boeing replied as follows: 
As indicated in the 
referenced letter, the current Space 
Vehicle (SV) launch weight for the GPS IIF-1 mission is 
3758lbs. This weight represents approximately, a 40% 
increase to the contractual SV weight of2675 lbs presently 
indicated in the System Performance Requirements 
Document (SPRD) contained in the subject contract. The 
9 

change in SV weight represents a material change to our 
contract requirements that will result in a "Class of Vehicle 
Change/L V Class Upgrade and an equitable adjustment, in 
accordance with the Changes/Modifications clause of the ILS 
contract. BLS requests that the Government confirm the 
Space Vehicle weight so we can proceed with our proposal 
for an equitable adjustment as required. 
(R4, tab 98 at 3) 
29. On 29 January 2004, Boeing received written confirmation of the payload 
weight for GPS IIF-1 (3,758 lbs.), as previously requested on 27 October 2003 (R4, 
tab 100). 
30. Boeing responded, by letter dated 5 March 2004, reiterating its position that 
the new weight of3,758lbs. represented a 40% increase to the contractual weight of the 
GPS IIF-1 payload and, as such, represented "a material change to the contract that 
requires concurrence by Boeing in accordance with the [Changes] clause." Boeing also 
stated that it would "prepare a proposal to modify the price for the launch that, once its 
[sic] agreed upon by the parties, can be included in a contract modification to implement 
the proposed change to the satellite weight." (R4, tab 100 at 2) 
31. On 13 April2004, Boeing recommended that a Delta IV M+ (4,2) launch 
vehicle be used to meet GPS IIF mission objectives with the stated payload mass of3,758 
lbs. and 
indicated that it would provide a firm proposal by 30 April 2004 "utilizing 
current pricing, for GPS IIF missions IIF-1, IIF-5, 
IIF-9, and IIF-10" (R4, tab 114). 
32. The CO responded, by email dated 14 April2004, informing Boeing that it 
should not prepare a proposal to re-price the four GPS missions, as the program office 
was unclear regarding the price "to add two GEM-60 engines to satisfy a performance 
problem." Boeing replied that the parties should meet to discuss their contractual 
concerns and such discussions should include the parties' legal representatives. 
(R4, tab 115) 
33. By letter dated 28 April2004, the CO reiterated her position from the 
previous email that Boeing should not prepare a proposal to re-price the four GPS 
missions. The letter also indicated that technical discussions were ongoing and the CO 
expected further meetings would be held in order to reach a technical solution. Once the 
technical solution was agreed upon, the CO advised that the parties can continue 
contractual discussion regarding the mission. (R4, tab 118) 
10 

34. On 3 May 2004, Boeing responded to the CO's 28 April2004letter stating: 
Although we understand that GPS IIF technical discussions 
are on-going, we feel it is important to provide you with our 
contract position as it relates to ordering missions assigned to 
the contract, specifically GPS IIF Missions. 
Procedure for Ordering the Launch 
As indicated by reference (c), the Air Force has adopted a 
process of ordering launches by contract modification, rather 
than using the ordering procedure set forth in Part II, 
paragraph ( 
1 ), page 2 of the contract. Contract modifications 
require both parties' approval, and up to this point the Air 
Force has insisted that the contract modification include a 
waiver of all claims. Boeing was not able to sign the Air 
Force's proposed contract modification (reference c) because 
the Air Force insisted that Boeing waive its right to equitable 
adjustment for the weight growth. 
There are two ways to address this situation. One would be 
for the 
Air Force to issue a unilateral order for the launch. 
Ordering a launch is not, by itself, a contract modification 
because the contract contemplates such orders. SCR.3 (a) 
states simply that a Launch Service is ordered by issuance of 
an order from the Air Force. 
The other approach, if the Air Force prefers to use the 
contract modification method of ordering launches, would be 
to avoid the use of a waiver to exclude the claim for weight 
growth. 
Equitable Adjustment 
Boeing has prepared and is ready to submit a request for 
equitable adjustment based on the reference (b) letter. 
Reference (b) formally notifies Boeing that the GPS IIF 
satellite weight had increased and 
is now 40% over the 
contractually-specified 2675 lbs. The Air Force notice of this 
weight increase is a change to the contract, as the contract 
specifies the weight of the satellite with a margin of permitted 
11 

(R4, tab 120) 
weight increase. The satellite has now grown beyond the 
weight and margin specified in the contract. 
Entitlement 
It is important to understand that the contract is a FAR Part 
12 commercial contract, not a FAR Part 15 contract. The 
prices in the contract were determined commercially, and not 
on the basis of cost.. .. 
.. .It is Boeing's position ... that if the GPS IIF satellite had 
been known to weigh in the medium range at the time the 
contract was signed, the price for the launch would have been 
higher than it is now. 
35. By letter dated 19 May 2004, the CO advised Boeing that the program office 
was not in a position to order the GPS IIF mission (R4, tab 124). 
36. By letter dated 15 June 2004, Boeing submitted a REA for the GPS IIF 
mission due to the "Change/Increase in Payload Mass." The letter stated further: 
(R4, tab 126) 
We consider the increase in payload mass to be a change to 
our contract requirements, and therefore we interpret the 
[29 January 2004 payload weight confirmation letter] to be a 
request to modify our contract. As mentioned above, we are 
pleased to submit our proposal based on your request during 
the ... meeting. We also consider the submittal of this proposal 
to be a requirement under the changes clause. 
37. The CO forwarded DO 0086 to Boeing attached to a letter dated 28 June 
2004. That letter advised that the "System Performance Requirements Document 
(SPRD), Attachment 2, Revision 2, will be modified by a separate contract modification 
for this mission only" and will include that the GPS IIF-1 spacecraft weight will not 
exceed 3,758lbs. Boeing was requested to sign the delivery order by 30 June 2004. 
(R4, tab 129) 
38. Boeing responded, by letter dated 9 July 2004, indicating that it executed 
DO 0086, conditioned upon certain deletions being made from the aforementioned 
12 

delivery order. Its basis for conditionally executing the order was, inter alia, to reserve 
its rights to an equitable adjustment due to the increase in satellite weight. Boeing also 
advised that it intended to satisfy the GPS IIF launch service mission using the Delta IV 
M+ ( 4,2) Launch Vehicle due to the increase in payload weight, and had conducted 
"numerous trades and have concluded that the use of the Delta IV Medium ( 4,0) Launch 
Vehicle represents an unacceptable level of risk to The Boeing Company." (R4, tab 132) 
39. The parties continued to discuss the GPS IIF mission's technical requirements 
and contractual implications of the increased payload weight (R4, tab 138 at 2-4). The 
record reflects that throughout the months of August and September of 2004, the Air 
Force held numerous briefings on solutions to the mission problems (R4, tabs 137-39, 
141). The parties were unable to reach an agreement on the 15 June 2004 REA. 
40. By letter dated 7 March 2005, the CO forwarded DO 0086 and Modification 
No. P00075 for Boeing's signature. The delivery order did not include a price increase 
for the mission, as the Air Force maintained that the smaller launch 
vehicle (4,0) met the 
mission requirements. In addition to removing the release of claims provision from the 
previous version of DO 0086 and setting the required launch date as "no later than 
31 Aug 05" the CO stated the following: 
(R4, tab 142) 
For the Government to properly evaluate your Request for 
Equitable Adjustment, you must submit evidence to support 
the need for a change in vehicle from a medium to a medium 
plus. Further, you must submit sufficiently detailed evidence 
of the actual cost increase caused by the growth in space 
vehicle weight. 
41. The parties met to discuss the DO and Modification No. P00075 on 9 March 
2005. The outcome of that meeting was memorialized in a letter date 11 March 2005, 
wherein the CO provided the revised 
DO 0086 and advised Boeing that it would not issue 
Modification No. P00075. The government, however, expected the mission "to be 
launched on a medium launch vehicle and intends to coordinate a mission specification 
consistent with the 
requirements of a medium launch vehicle." The CO reiterated her 
request that Boeing provide detailed evidence to support its REA and "any request for 
equitable adjustment must be accomplished in accordance with the Changes clause 
(Part III 52.212-4(c)) and certified in accordance with DFARS 252.243-7002 Requests 
for Equitable Adjustment (MAR 1998)." (R4, tab 143) 
42. Through letters dated 15 and 18 March 2005, Boeing informed the 
government 
that it had signed DO 0086, but using a Delta IV Medium launch vehicle 
represented an "unacceptable level of mission risk to The Contractor based on the 
13 

increased weight." Therefore, Boeing advised that it would use a "Delta IV +(4,2) launch 
vehicle for the GPS IIF Mission" and submit an REA. (R4, tabs 144, 145) 
43. By letter dated 1 April2005, Boeing requested that the government coordinate 
with the Space Vehicle Contractor (SVC) that it intended to utilize the more powerful 
launch vehicle (Medium+ (4,2)) to fulfill the mission (R4, tab 147). 
44. The government responded, by letter dated 5 April2005, and reported that it 
relayed the requested information to the SVC, but the government still intended to 
coordinate the mission with a medium launch vehicle (R4, tab 148). 
45. By letter dated 19 August 2005, Boeing submitted a certified REA for payload 
increases for the following missions: GPS IIF-1, GPS IIF-5, GPS IIF-9, GPS IIF-10 and 
SBIRS-GEO). The letter advised the following: 
(R4, tab 150) 
As a 
result of increases beyond the contractual baseline for 
the launch service, the contractor hereby revises the launch 
service price from [REDACTED] Million to [REDACTED] 
Million for a net increase to contract price of [REDACTED] 
Million. We are also providing an estimate for the other three 
GPS missions and one SBIRS-GEO mission, in the event that 
the satellite weight exceeds the contractual specified weight 
at the time these missions are ordered. 
The pricing methodology is consistent with the repricing of 
the NROL-22 and WGS missions similarly resulting from 
payload increases. In these previous cases the resulting 
decision to utilize the next higher payload class required a 
complete re-price of the larger launch vehicle and we 
continue to base our revised pricing on this accepted 
approach. 
46. The record further reflects that the parties continued to negotiate while 
preparing for the upcoming GPS mission. On 16 June 2006, the parties executed a 
Memorandum of Understanding (MOU) whereby they agreed to enter into a contract 
(EEL V Launch Capability 
Contract (ELC) F A8816-06-C-OOO 1 ). The MOU and resultant 
contract read as follows in pertinent part: 
14 

6. ILS Contract Requirements 
(R4, tab 160 at 5) 
a. The parties agree that Boeing's Requests for 
Equitable Adjustments (REAs) for GPS IIF-1, GPS 
IIF-5, GPS IIF-9 and GPS IIF-10 will be removed 
from this contract negotiation and promptly 
addressed in a manner consistent with the 
requirements of the contract. The next GPS IIF 
mission will not be ordered before the REAs for 
GPS IIF-115/9/10 are resolved. Nonetheless, 
Boeing will include the appropriate consideration 
for GPS IIF-115/9/10 in the credit/consideration 
provided to the Government under this Contract. 
These values must be agreed upon by the parties. 
b. Boeing will not be bound by the price in the ILS 
contract for the SBIRS GE0-3 mission. 
47. By letter dated 15 September 2006, Boeing proposed non-binding mediation 
to settle the REA for increased payload weight for the GPS and SBIRS-GEO missions 
(R4, tab 164). 
48. Appellant ULS became the successor in interest to Boeing under the Contract 
as of 1 December 2006 (gov't mot., attach. 1; compl. and answer ,-r,-r 68, 69). 
49. By letter dated 18 January 2007, the government counsel responded to 
Boeing's 19 August 2005 REA, declining it and Boeing's request for non-binding 
mediation. The government based the denial on the release language contained in 
Modification No. P00057, which the parties mutually agreed to release 
each other from 
claims, etc., arising under or relating to the EEL V program from October 1998 through 
16 October 2003. As the GPS FII satellite weight growth issues that spurred the REA 
occurred prior to 16 October 2003, the government concluded that the REA lacked merit. 
(R4, tab 168) 
50. Boeing responded through counsel, by letter dated 12 February 2007, 
disagreeing with the government's position. Boeing argued that the weight issues arose 
after 16 October 2003 as well as the issuance of the delivery order for the GPS missions 
(DO 0086). Thus, Boeing contended that the release was inapplicable to the REA and 
remained open to the dispute resolution process. (R4, tab 169) 
15 

51. By letter dated 17 August 2007, the CO advised Boeing that its 19 August 
2005 REA was denied in its entirety (R4, tab 171 ). Boeing responded, by letter dated 
6 September 2007, disagreeing with the decision and vowed to file a certified claim "in 
the near future" (R4, tab 173 ). 
52. On 17 September 2007, Boeing informed the government that it had received 
the proposed delivery order and modification relating to the GPS IIF-5 mission and could 
not execute the proposed contract documents in their current form, as they did not 
preserve Boeing's REA/claims. The letter also alerted the government to the joint 
venture agreement between Boeing and Lockheed Martin that spawned the United 
Launch Alliance (ULA). As the ILS contract had yet to be formally novated, Boeing 
would remain the contractor and ULA would be Boeing's subcontractor. (R4, tab 175) 
53. The parties communicated back and forth throughout the month of September 
2007 with no resolution to the GPS IIF-5 mission (R4, tabs 176, 177). 
54. By letter dated 8 October 2008, ULS, an authorized agent under limited power 
of attorney for Boeing Launch Services, notified the CO that it would accept the order for 
GPS IIF-5 mission (DO 0111) and Modification No. P00118. ULS added: 
[W]e had hope that the issues involving the payload increase 
on the GPS missions would be resolved prior to the issuance 
of this order. Since we have been unable to identified [sic] a 
mutually acceptable closure resolution, we will accept this 
order and commence work on GPS IIF-5 prior to final 
resolution of these disputed GPS orders. Our acceptance of 
this order will not constitute a waiver or any of our rights 
under this contract or the ELC contract pending final the [sic] 
resolution of this matter. 
(R4, tab 179) Accordingly, on 22 October 2008, the parties executed DO 0111 and 
Modification No. P00118, with Boeing reserving its right to pursue a claim for additional 
costs in connection with the delivery order (R4, tabs 181 at 2, 182 at 3). We find that the 
parties were at an impasse over the pricing for the GPS IIF-5 mission. 
55. On 23 December 2008, ULS submitted a certified claim in the amount of 
[REDACTED] million to the Air Force to re-price the GPS IIF-1 and GPS IIF-5 / 
launches in their entirety, based on Boeing's actual performance costs (R4, tab 183; 
compl. ~~ 4, 76). We find that the claim was submitted pursuant to the Disputes clause 
of the contract. 
56. By letter to ULS dated 16 March 2009, the Air Force CO issued a final 
decision denying the claim (R4, tab 185). 
16 

57. By letter dated 12 June 2009, appellant filed its notice of appeal with the 
Board. That appeal was docketed as ASBCA No. 56850. 
58. On 25 September 2009, the Air Force issued DO 0112 for the launch ofGPS 
IIF-9 (R4, tab 186) and Modification No. P00138 (R4, tab 187). The accompanying 
letter from the CO indicated that both documents were "fully executed by the contracting 
officer" and the government expected the mission to be flown on a medium launch 
vehicle. The 
CO stated further that "you may voluntarily choose to design a mission 
specification which exceeds those parameters ... as long as it meets the ultimate 
performance 
goals of safely delivering the satellite to the desired orbit." Review of 
mission specifications, the CO cautioned, "does not constitute direction or consent by the 
Government to change the contract terms or authorize any equitable adjustment." 
Finally, the CO stated the following: 
4. The Government has never acknowledged any GPS IIF 
mission delivery order under this contract, including this one, 
has required a change of contract terms which would support 
. a claim 
for additional costs and the Government does not 
waive any defenses to any claim that might be submitted. 
(R4, tab 188) 
59. By letter dated 28 October 2009, ULS reiterated its position on executing the 
mission with the heavier payload and notified the CO that it intended to proceed with the 
launch under the Disputes clause (R4, tab 190). On 10 September 2010, appellant 
submitted a certified claim in the amount of [REDACTED] million to the government to 
re-price the GPS IIF-9 launch based on appellant's actual performance costs (R4, tab 
207). 
60. Appellant filed a notice of appeal with the Board dated 2 March 2011, citing 
the CO's failure to issue a final decision within a reasonable time. The Board docketed 
the appeal as ASBCA No. 57542. 
61. Appellant also submitted a claim dated 3 March 2011 in the amount of 
[REDACTED] million to the CO "solely to protect [ULS's] ability to pursue a claim 
based on mutual mistake relating to the launch ofGPS IIF-1 [[REDACTED] million] and 
GPS IIF-5 [[REDACTED] million] payloads under the ILS Contract's Disputes clause 
and the CDA." By letter dated 29 April2011, the CO denied the claim. (ASBCA No. 
57661, Bd. corr. file) 
62. By letter dated 22 June 2011, ULS filed an appeal with the Board, which was 
docketed as ASBCA No. 57661. 
17 

DECISION 
Summary judgment is appropriate when there is no genuine issue of material fact 
and the movant is entitled to judgment as a matter of law. Mingus Constructors, Inc. v. 
United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987); Lockheed Martin Aircraft 
Center, ASBCA No. 55164, 08-1 BCA ,-r 33,832 at 167,445. There is a genuine issue of 
material fact if the evidence is such that a reasonable fact finder could find in favor of the 
nonmovant. We do not resolve factual disputes but determine whether there is a genuine 
issue of material fact. The moving party must show that there is no such issue while the 
nonmovant must counter with facts showing that there is one. !d. 
Appellant's complaint alleges the following under each count: Count I- appellant 
alleges that it is entitled to an equitable adjustment pursuant to the Changes clause of the 
ILS contract resulting from the increased weight of the GPS IIF payloads which is 
measured by its cost to launch those payloads; Count II - appellant contends that it is 
entitled to an equitable adjustment, measured by the current launch costs, based on the 
government's alleged breach of contract resulting from the government's failure to issue 
delivery orders for the launch of the GPS IIF missions on a basis consistent with the 
requirements of the ILS and the ELC contracts; Count III - appellant is entitled to relief 
based upon a mutual mistake regarding the number of launches to be expected in pricing 
the ILS contract; and Count IV- appellant is entitled to relief based upon a constructive 
change to the contract resulting from "grossly inadequate estimates of the commercial 
market that resulted in an unconscionable price for launch services in the ILS contract." 
The government moves for summary judgment on appellant's specific 
counts in its 
complaint as follows: Count I- the only "equitable adjustment" to which appellant may 
be entitled must be based on appellant's increased performance costs resulting from the 
change (incremental costs vs. open-priced item); and Count II- the Changes clause does 
not require agreement on the equitable adjustment amount, and appellant waived material 
breach damages by performing. The government also moved for summary judgment on 
Count III (mutual mistake) contending that there was no mistake because it did not 
concern a "fact" under the mutual mistake doctrine and was not a belief mutually held by 
appellant's predecessor in interest (Boeing) and the government, and the contract 
allocated the risk of such a mistake to Boeing; and Count IV (Boeing's proposed prices 
were not unconscionably low). 
Appellant counters as follows: Count I- summary judgment is inappropriate 
because the government's arguments relate to quantum and the hearing in the matter will 
deal with entitlement only, thus the motion is premature; Count II - issues relating to 
causation of a material breach of contract presents questions of fact and is therefore 
inappropriate for resolution on summary judgment; Count III under the mutual mistake 
doctrine, there are genuine issues of material fact regarding the parties' beliefs about 
commercial demand for launch services; and Count IV -the record contains sufficient 
18 

evidence to raise issues of disputed fact regarding appellant's claim that the prices in 
CLIN 0100 are unconscionably low. 
Count! 
Appellant contends in its complaint that it is entitled to an equitable adjustment 
pursuant to the Changes clause of the ILS contract resulting from the increased weight of 
the GPS IIF payloads, which is appropriately measured by the existing commercial 
market for launch services (compl. at 53). The government moves for summary 
judgment arguing, inter alia, that the Changes clause unambiguously provides that 
appellant's exclusive remedy for a change is an equitable adjustment consisting of the 
cost of the additional work caused by the change plus profit (gov't br. at 8). The term 
"equitable adjustment", the government alleges, is a term of art in government contracts 
meaning the cost of the additional work plus a reasonable profit (id. at 9). 
Although the term "equitable adjustment" has been considered a term of art, that 
conclusion arises from its use in non-commercial items contracts where the government 
has a right to direct a unilateral change. In that context, the term is generally limited to 
requiring those "corrective measures utilized to keep a contractor whole when the 
Government modifies a contract." Pacific Architects & Engineers, Inc. v. United States, 
491 F.2d 734, 739 (Ct. Cl. 1974). However, this customary understanding of the term 
need not be followed in the event of a significant change in context. General Builders 
Supply Co. v. United States, 409 F.2d 246, 249-50 (Ct. Cl. 1969). The Changes clause in 
this commercial items contract dictates that it can only be changed with the agreement of 
the parties. It requires the parties to negotiate an equitable adjustment in the event they 
agree upon a change causing an increase or decrease in contract costs, performance time, 
or that otherwise affects any other contract provision, but it does not define the 
limitations of the equitable adjustment. The government cites no authority defining the 
term in this context. 
Appellant has produced evidence that the parties negotiated equitable adjustments 
under this contract based upon changed market conditions, and not merely upon changed 
costs, showing the term was intended to permit such action. The government contends 
that we must ignore this evidence, relying upon the Parole Evidence Rule. That rule bars 
the use of extrinsic evidence to interpret an integrated agreement containing terms that 
are clear and unambiguous. Barron Bancshares, Inc. v. United States, 366 F.3d 1360, 
1375 (Fed. Cir. 2004). We find the term to be undefined and unclear in this context and 
therefore appellant's course of performance evidence to be relevant. See !d. (recognizing 
that evidence of course of performance is relevant to interpret an ambiguous contract). A 
genuine issue of fact exists regarding the parties' intent as to the meaning of the term 
"equitable adjustment" in this contract, dictating that we deny the government's motion 
with regard to Count I of appellant's complaint. 
19 

Count II 
Appellant alleges that the government breached the ELC and ILS contracts by 
failing to issue delivery orders for the launch of the GPS IIF payloads on a basis 
consistent with the requirements of the ILS and ELC contracts (compl. at 55). Because 
the parties did not reach agree:rpent on equitable adjustments to the contract price for the 
increased payloads in the GPS missions prior to performance, appellant contends that the 
issuance of the delivery orders breached the ordering limitation in the ELC contract 
which states that the 
Air Force would not order the next GPS IIF mission until the REAs 
had been resolved. Thus, because the Air Force "breached the ordering limitation in the 
ELC Contract, a contract that was interdependent with the ILS Contract," appellant avers 
that the Air Force is liable for the "reasonable value" of the launch services actually 
ordered with respect to the GPS IIF-5 mission. (Compl. ~~ 108-09) 
The government moves for summary judgment with regard to Count II, 
contending 
that the Changes clause did not require a bilateral agreement on the equitable 
adjustment amount. Rather, the government contends that once the contractor agrees to 
perform the work, the contractor is required by the Disputes clause to continue to perform 
the changed work even if the parties dispute the amount of the equitable adjustment for 
the change. (Gov't br. at 17) Appellant counters that the government's position is 
contradicted by the plain terms of the agreement (i.e., it permits changes to the contract 
only by written agreement of the parties). Appellant argues that if the parties were unable 
to reach an agreement on the amount of the price adjustment for the heavier payloads, the 
government was free to hold Boeing to the parties' original bargain (i.e., launch the 
payload or substitute payload at the contractual weight). Thus, according to appellant, 
the government breached the contract when it directed Boeing to perform the changed 
scope of work absent a bilateral agreement on the consideration owed for performing the 
change. (App. br. at 54, 55) We disagree. 
The record does not support appellant's contention that the government breached 
the contract by directing Boeing to perform the changed work absent a bilateral 
agreement on the change. The evidence shows that the parties were at an impasse over 
the pricing of the GPS IIF missions due to the heavier payloads. Boeing and ULS agreed 
to proceed with the changed work, while reserving 
their rights to pursue an equitable 
adjustment/claim. (SOF ~~ 42, 54, 59) As the parties were unable to reach an equitable 
adjustment for such prices, the Disputes clause, which specifically incorporated the full 
FAR clause (52.233-1), gave appellant the process to seek resolution (i.e., file a claim) 
and directed that the contractor must continue performance. This action preserved 
appellant's rights while ensuring that the price dispute did not hamper the government's 
operations. Thus, the government's conduct did not equate to a breach of contract. 
Appellant's arguments to the contrary are not legally tenable. 
20 

Counts III and IV 
With regard to the government's motion to deny Count III of appellant's 
complaint (mutual mistake about the commercial demand for EELV launch services) and 
Count IV (unconscionably low prices) both relate to reformation of the contract and 
contain fact-intensive issues that, based on the current record, are unable to be resolved 
by summary judgment. Cooley Constructors, Inc., ASBCA No. 57404, 11-2 BCA 
~ 34,855 at 171,457. Accordingly, the government's motion with regard to Counts III 
and IV is denied. 
CONCLUSION 
For the reasons set out above, the government's motion for summary judgment is 
granted in part with regard to Count II of appellant's complaint relating to breach of 
contract, the remainder of the government's motions are denied. 
Dated: 21 November 2013 
I concur 
MARK N. STEMPLER 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
21 
OWEN C. WILSON 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
MARK A. MELNICK 
Administrative Judge 
Acting Vice Chairman 
Armed Services Board 
of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 56850, 57542, 57661, 
Appeals of United Launch Services, LLC, rendered in conformance with the Board's 
Charter. 
Dated: 
22 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals