Symetrics Industries, LLC
Docket: ASBCA 59297
Decision date: 2007-08-30

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Symetrics Industries , LLC ) 
) 
Under Contract No. W58RGZ-07-C-0204 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 59297 
David Z. Bodenheimer , Esq. 
Jason C. Lynch, 
Esq. 
Crowell & Moring LLP 
Washington, DC 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
Robert B. Neill , Esq. 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
INTRODUCTION 
Appellant timely 
appeals from a contracting officer's final decision claiming 
$121,824 plus interest accrued from the date of payment, for alleged defective pricing 
under a contract for modem units. The parties have elected to waive a hearing and 
submit their cases upon the record pursuant to Board Rule 11. We sustain the appeal. 
FINDINGS OF FACT 
On 30 August 2007, the Department of the Army awarded a letter contract, 
Contract No. W58RGZ-07-C-0204, to appellant, Symetrics Industries , LLC, for the 
production of295 Improved Data Modem (IDM) 304 units, (Joint Statement of 
Stipulated Facts (stip. 6)). Symetrics submitted a firm-fixed-price proposal (FFP) to 
procuring contracting officer (PCO) Hanford Jones on 7 December 2007 (stip. 9). 
PCO Jones negotiated the contract price on behalf of the Army, with the assistance of 
contract specialist Johnny Coleman (stip. 43). The Defense Contract Audit Agency 
(DCAA) assisted PCO Jones in the evaluation of the price proposal by conducting an 
audit of the proposal (see stip. 14). DCAA Auditor Sherry Hepfuer conducted that 
audit (stip. 14). 
Earlier , on 12 July 2007, the Defense Contract Management Agency (DCMA) 
had approved an overhead rate of 179.20% and a General and Administrative (G&A) 
rate of 25.60% for Symetrics's contractor fiscal year (CFY) 2007 (stip. 45). On 

7 January 2008, Symetrics submitted a Forward Pricing Rate Proposal (FPRP) to 
DCMA (stip. 47). On 23 January 2008, Symetrics submitted to PCO Jones a revised 
price proposal for the 295 IDM 304 units (stip. 13). The price proposal identified a 
direct labor overhead rate of 182.45% for CFY 2008, a direct labor overhead rate of 
186.47% for CFY 2009, and G&A rates of 18.24% for CFY 2008 and CFY 2009 (id.). 
On 4 February 2008, DCAA informed Symetrics that DCAA had been 
requested to audit the FPRP, and that DCAA had to complete the audit by 24 February 
2008, "for [the price] proposal being audited by Sherry Hepfner " (stip. 51). On 
7 February 2008, Symetrics sent DCAA the FPRP (stip. 54). The FPRP proposed 
overhead rates of 170 .3 8% and G&A rates of 17 .13 % for CFY 2008 and CFY 2009 
(stip. 54), lower than the rates identified in the price proposal (stip. 13). 
DCAA Auditor Hepfner audited Symetrics's price proposal for the 295 IDM 
304 units (stip. 14). By 21February2008, Auditor Hepfner was aware of the 
7 February 2008 FPRP, was aware that the FPRP contained new overhead and G&A 
rates (new, at least, since the approval of the CFY 2007 rates) (see stip. 27), and was 
aware that the FPRP would likely lead to lower forward pricing rates (stips. 26, 27; 
gov't br. at 13). Indeed, on 21February2008, Auditor Hepfner wrote to 
ACO Gilmore: 
We are currently auditing the subject proposal for a 
quantity of 295 Improved Data Modem [IDM] 304. This is 
to advise you that on February 7, 2008, Symetrics 
submitted a new Forward Pricing Rate Proposal (FPRP), 
for CFY s 2008 and 2009. Symetrics priced the proposal 
with the new 
Overhead and General and Administrative 
(G&A rates). We have not audited the FPRP. Therefore , 
we recommend that a clause be included in the FFP 
contract, which will provide for a downward only 
adjustment for any savings that may result from the 
adjustment of the proposed rates after completion of our 
audit of the Symetrics FPRP for CFYs 2008 and 2009, 
direct labor and 
indirect rates and factors. 
(Stip. 27) According to the government, that statement "plainly documents 
Ms. Hepfner's mistaken belief at the time that the IDM 304 'proposal' that she was 
then auditing was priced using [Symetrics 's] newly updated overhead and G&A rates" 
(gov't reply at 9). 
Similar to Auditor Hepfner 's message to ACO Gilmore, on 25 February 2008, 
DCAA issued an audit report (Auditor Hepfner is listed as a primary contact for the 
report 
(R4, tab 22 at 11)) on the price proposal that noted that: 
2 

On February 7, 2008, Symetrics submitted a new Forward 
Pricing Rate Proposal (FPRP), for CFY s 2008 and 2009. 
Symetrics priced this proposal with the new overhead 
(OH) and G&A rates. Therefore, ... we recommend that a 
clause be included in the FFP contract, which will provide 
for a downward only adjustment for any savings that may 
result from the adjustment of the proposed rates after 
completion of our audit of the Symetrics FPRP for CFYs 
2008 and 2009 , direct labor and indirect rates and factors. 
(Stips. 28, 29) DCAA's report identified rates of 182.45% for CFY 2008 and 186.47% 
for CFY 2009 , and G&A rates of 18.24% for CFY 2008 and CFY 2009 (R4, tab 22 at 6). 
On 27 March 2008, the day that negotiations to definitize the contract price 
commenced (stip. 37), Symetrics submitted its final price proposal revision to the PCO 
(stip. 33). Like the 23 January 2008 price proposal and the DCAA audit report, the 
27 March 2008 price proposal identified direct labor overhead rates of 182.45% for 
CFY 2008 and 186.47% for CFY 2009, and G&A rates of 18.24% for CFY 2008 and 
CFY 2009 (stips. 13, 33; R4, tab 22 at 6). Also on 27 March 2008, PCO Jones and 
Contract Specialist Coleman memorialized their prenegotiation object"ive (R4, tab 34 
at 1). Their prenegotiation memorandum expressly references both the 7 February 
2008 FPRP and the DCAA audit report regarding overhead and G&A, but identifies 
the overhead and G&A rates that appear in the price proposal (R4, tab 34 at 7). The 
prenegotiation memorandum reflects that PCO Jones and Contract Specialist Coleman 
erroneously believed that the price proposal used the FPRP rates: 
The contractor proposed the CFY 2008 and CFY 2009 OH 
and G&A rates recently submitted in its FP RP, dated 
February 7, 2008 . 
. . . DCAA compared the proposed indirect rates to the FPRP 
(as shown in the table below. [sic] DCAA also compared 
actual CFY 2007 OH and G&A rates ... to the indirect rates 
in the contractor's current FPRP and calculated the 
percent increases. No significant variances were noted in 
the evaluation. The results of the analysis of the 
contractor's proposed CFY 2008 to CFY 2009 indirect 
rates 
are presented in the table below. 
3 

(R4, tab 34 at 7) (Emphasis added) The table referenced in the quotation depicts the 
higher overhead and G&A rates for CFY 2008 and CFY 2009 that appear in the price 
proposal, not the 
lower rates for those years that appear in the FPRP (compare R4, 
tab 34 at 7 with stip. 54). 
Four days later, on 1 April 2008, the parties agreed to a price of $7,284,435 for 
the 295 IDM 304 units (stip. 39). As of that date, Symetrics had not revised its price 
proposal to reflect the FPRP overhead and G&A rates, nor had it transmitted those 
rates directly to PCO Jones or Contract Specialist Coleman (stips. 41, 43). On 2 April 
2008, Symetrics certified in a Certificate of Current Cost or Pricing data that: 
(Stip. 40) 
[T]he cost or pricing data ... submitted ... to 
the Contracting 
Officer or to 
the Contracting Officer's representative in 
support of Contract No. W58RGZ-07-C-0204 are accurate, 
complete, and 
current as of 01 April 2008. This 
certification includes the 
cost or pricing data supporting 
any advance agreements and forward pricing rate 
agreements between the offeror and the Government that 
are part of the proposal. 
On 15 May 2008, the parties entered into Modification No. PZ0007, 
definitizing the $7,284,435 price for the 295 IDM units (stip. 44). On 26 February 
2014, by then Contracting Officer Coleman issued a contracting officer's final 
decision demanding payment of $121,824 in "excess cost," plus interest (stip. 63). 
This appeal timely 
followed on 27 May 2014. 
DECISION 
The government contends that Symetrics 
violated the Truth in Negotiations Act 
(TINA), 10 U.S.C. § 2306(a), by failing to provide directly to PCO Jones or Contract 
Specialist Coleman the overhead and G&A rates that it submitted to DCAA in its 
FPRP. The government has the burden of proving that its personnel who participated 
in the proposal evaluation or the negotiation of the contract were not clearly advised of 
the relevant cost or pricing data and that they lacked actual knowledge thereof. 
Whittaker Corp. (Straightline Manufacturing Division), ASBCA No. 17267, 
74-2 BCA if 10,938 at 52,077. Here, the government does not meet that burden. 
As their prenegotiation memorandum expressly memorializes, PCO Jones and 
Contract Specialist Coleman negotiated the contract price knowing of the 7 February 
2008 FPRP and relying upon what they understood were the FPRP-proposed rates. 
DCAA Auditor Hepfner evaluated the price proposal with the same knowledge and 
4 

understanding. Although the three evidently (at least ultimately) misunderstood what 
rates the FPRP proposed, the government points to no evidence that Symetrics 
misrepresented the contents of the FPRP , and all PCO Jones, Contract Specialist 
Coleman , and Auditor Hepfner had to do to confirm their understanding and discover 
their mistake (see gov't reply at 9) was to double-check (or, perhaps , check in the first 
place) what rates the FPRP actually proposed against their stated understanding. In 
view of the foregoing , we find that the government was aware or should have been 
aware of the FPRP-proposed rates; this being so, the government has not proven that 
Symetrics did not disclose the FPRP rates within the meaning of the Truth in 
Negotiations Act. Cf FMC Corp., ASBCA No. 30069, 87-1BCAiJ19 ,544 at 98,759 
(no TINA violation proven where confractor' s data certification referenced its rate 
revision submission, which PCO could have, but did not, check). 
Because the government has not proven a TINA violation , we need not address 
the government's contention that Federal Acquisition Regulation (FAR) clause 
52.215-10 , PRICE REDUCTION FOR DEFECTIVE CERTIFIED COST OR PRICING DATA 
(OCT 1997), or FAR 52.215-11, PRICE REDUCTION FOR DEFECTIVE CERTIFIED COST 
OR PRICING DATA-MODIFICATIONS (OCT 1997), should be read into the contract 
pursuant to the Christian doctrine. 
Explaining that "[i]n its specific pricing proposal for the 295 IDM 304 data 
modems at issue here, as of the parties' agreement on price, April 1, 2008, Symetrics 
did not transmit to PCO Hanford Jones the updated indirect proposal submission for 
CFYs 2008 and 2009," the government contends that "it was Symetrics ' failure to 
follow the requirement set 
out in FAR 15.407-3(a) to ' identify the latest cost pricing 
data already submitted in accordance with the [forward pricing rate] agreement ' in its 
specific pricing proposal for definitization of its letter contract for 295 IDM 304 data 
modems that resulted in Symetrics' failure to meaningfully disclose 
to the contracting 
officer the cost or pricing data at issue in this appeal " (gov 't mot. at 11 ). 
FAR 15.407-3(a) provides: 
When certified cost or pricing data are required, offerors 
are required to describe any forward pricing rate 
agreements (FPRAs) in each specific pricing proposal to 
which the rates apply and to identify the latest cost or 
pricing data already submitted in accordance with the 
FPRA. All data submitted in connection with the FPRA , 
updated as necessary, form a part of the total data that the 
offeror certifies to be accurate , complete, and current at the 
time of agreement on price for an initial contract or for a 
contract modification. 
5 

The government's argument does not persuade us that Symetrics violated TINA 
by not identifying the FPRP rates in its price proposal. We have said in the context of 
TINA that: 
Disclosure is not confined to a formal , written submission. 
Instead the contractor ' s disclosure obligation is fulfilled if 
the Government obtains the data in question in some other 
manner or had knowledge. It must be meaningful, 
regardless of the form it takes. Whether there has been 
meaningful disclosure depends upon application of a ·'rule 
of reason " to the particular circumstances of [J each case. 
Appeal of Alliant Techsystems, inc., ASBCA Nos. 51280 , 47626 , 00-2 BCA ii 31,042 
at 153,298-99 (internal citations and alterations omitted). The government cites no 
judicial or Board authority that FAR 15.407-3(a) governs a TINA disclosure , even 
though the regulation dates to 1997. 62 Fed. Reg. 51 ,224, 51 ,249-50 (Sept. 30, 1997). 
(McDonnell Douglas Helicopter Systems, ASBCA No. 50341 , 99-2 BCA ii 30,546, 
which the government cites immediately after if not in support of this argument (gov't 
mot. at 12), does not address FAR 15.407-3.) On the facts of this case , where the 
government personnel (including the contracting officer) who evaluated the price 
proposal were all aware of the FPRP and expressly purported to rely upon it for rate 
information in their evaluation of the price proposal , we are satisfied that the FPRP 
rates at issue in this appeal were meaningfully disclosed to the government. 
CONCLUSION 
For all these reasons , we sustain the appeal. 
Dated : 13 August 2015 
(Signatures continued) 
6 
~~ 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

I concur 
Administrati ve Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
RJC ~CKLEFORD 
Administrative Judge 
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 No. 59297. Appeal of 
Symetrics Industries , LLC , rendered in conformance with the Board's Charter. 
Dated: 
7 
JEFFREY D. GARDIN 
Recorder , Armed Services 
Board of Contract Appeals