Sparton DeLeon Springs, LLC
Docket: ASBCA 60416
Decision date: 2016-12-28

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Sparton DeLeon Springs, LLC ) 
) 
Under Contract Nos. N00164-0l-D-0027 ) 
NOO 167-04-D-0024 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 60416 
Nicole J. Owren-Wiest, Esq. 
Gary S. Ward, Esq. 
Wiley Rein LLP 
Washington, DC 
E. Michael Chiaparas, Esq. 
DCMA Chief Trial Attorney 
Gregory T. Allen, Esq. 
Trial Attorney 
Defense Contract Management Agency 
Chantilly, VA 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
ON APPELLANT'S MOTION FOR JUDGMENT ON THE PLEADINGS, AND 
ALTERNATIVELY FOR SUMMARY JUDGMENT 
Appellant, Sparton DeLeon Springs, LLC (Sparton), timely appeals from a 
26 October 2015 contracting officer's final decision demanding the reimbursement of an 
alleged overpayment of certain direct costs. Appellant requests judgment on the pleadings, 
or summary judgment that the government's claim is time-barred. The appeal is governed 
by the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
The following is not in dispute. In 2001, Sparton's predecessor, Sparton Electronics 
Florida, Inc. (SEFI), and the government entered into Contract No. N00164-01-D-0027 
(Contract 27) for research and development related to sonobuoys (answer at 2, ~ 4). By 2005, 
the government had issued Delivery Orders 4, 8, 14, 15, and 16 to Contract 27 (id. at 2-3, 
~~ 5-9). In 2004, SEFI and the government entered into Contract No. N00167-04-D-0024 
(Contract 24) for engineering and technical services related to repair and maintenance of 
submarine acoustics (id. at 3 ~ 10). By 2006, the government had issued Delivery Orders 2 
and 3 to Contract 24 (id. at 4, ~~ 11-12). 
Contract 27 incorporated by reference Federal Acquisition Regulation (FAR) clause 
52.216- 7' ALLOWABLE COST AND PAYMENT (MAR 2000); Contract 24 incorporated by reference 

the December 2002 version of the same clause (answer at 4,, 13). Both versions provide the 
following: 
(g) Audit. At any time or times before final payment, the 
Contracting Officer may have the Contractor's invoices or 
vouchers and statements of cost audited. Any payment may be-
( 1) Reduced by amounts found by the Contracting Officer 
not to constitute allowable costs; or 
(2) Adjusted for prior overpayments or underpayments. 
By 10 January 2007, the government had paid interim vouchers that SEFI had 
submitted that included breakdowns of certain intra-company "Jackson Engineering Support 
Costs" (Jackson costs) that SEFI allegedly incurred at its Jackson, Michigan plant, and that are 
the subject of this appeal (gov't resp. at 4,, 1, at 6,, 6, at 8, ,, 12-13). On 5 March 2007, 
Sparton submitted to the government its final indirect cost rate proposal for its fiscal year 2006 
(FY 06); on 29 January 2008, Sparton submitted its final indirect cost rate proposal for its 
fiscal year 2007 (FY 07) (id. at 8-9,, 14). Both proposals included a "Schedule I," which the 
government also calls a "Cumulative Allowable Cost Worksheet-('CACWS')" (id. at 9,, 15, 
at 11,, 20, at 14-15,, 27). In neither proposal (more specifically, in neither Schedule I) did 
Sparton include the Jackson costs (id. at 9,, 15). 
During subsequent Defense Contract Audit Agency (DCAA) audits of the indirect 
cost rate proposals, Sparton submitted revisions of those proposals (gov't resp. at 10,, 17). 
Sparton submitted the revision of the FY 06 proposal on 25 August 2011, and the revision 
of the FY 07 proposal on 30 July 2013 (answer at 4-5, ,, 14-15). The revised proposals did 
not include the Jackson costs (gov't resp. at 10, , 17). In September 2013, DCAA issued 
audit reports on those indirect cost rate proposals, noting that the proposals did not include 
the Jackson costs (answer at 5-6, ,, 16-17). 
The parties eventually executed final indirect cost rate agreements for FY 06 and 
FY 07, and Sparton provided updated Schedule I forms reflecting the agreed-upon rates 
(gov't resp. at 10-11, ,, 19-20). On 2 April 2014, Sparton provided an updated Schedule I 
for FY 06; on 23 May 2014, it provided an updated Schedule I for FY 07 (answer at 6,, 19; · 
gov't resp. at 15, , 30). The updated Schedule I forms did not include the Jackson costs (see 
gov't resp. at 11, ,, 20-21 ). 
On 12 August 2014, the contracting officer requested that Sparton submit final 
vouchers and supporting documentation for Delivery Orders 2 and 3 to contract 24, and 4, 8, 
14, 15, and 16 to contract 27 (answer at 6-7,, 20; gov't resp. at 15,, 31). 1 Sparton 
1 In its complaint, the government alleges that the contracting officer requested the final 
vouchers on 12 August 2016 (compl. at 5,, 20). Sparton answered that the request 
2 

responded by submitting the final vouchers, and "other documents" (answer at 6-7, ~ 20), on 
a date not identified by either party. The final vouchers included the previously invoiced and 
paid Jackson costs (see gov't resp. at 12, ~ 22; answer at 7, ~ 21). 
On 26 October 2015, the contracting officer issued a final decision 
demanding that 
Sparton repay $577,415.36, and stating: 
On August 26, 2014, after agreeing on final indirect rate costs, I 
requested final vouchers and supporting documentation, 
including the required Cumulative Allowable Cost Worksheet. 
After reviewing the final voucher submission, I noticed certain 
costs that were not included in SEFI 's Incurred Cost proposals 
for CFY 2006 or CFY 2007. These additional costs were 
supposedly payments made to your former Jackson, Michigan 
facility that closed in 2006. I contacted your company for 
information that would establish that these additional costs are 
allowable. To date, despite repeated requests, your company 
has not provided information that establishes these additional 
costs were actually incurred or paid by SEFI. You have 
provided only a spreadsheet showing that the Government paid 
SEFI. There is no proof whatever that SEFI was billed for work, 
or more importantly, that SEFI paid these costs in connection 
with any Government contract. [Emphasis added] 
(Gov't resp. at 13-14, ~ 25 (citing R4, tab 36 at 954))2 Sparton timely appealed on 
14 January 2016, and the government filed a complaint alleging that Sparton had been 
overpaid because the Jackson costs "were insufficiently supported" (comp I. at 6, ~ 22; gov't 
resp. at 14, ~ 26). 
was made on 12 August 2014 (answer at 7, ~ 20). In its response to the motion for 
summary judgment, the government states that the request was made on 12 April 
2014 (gov't resp. at 24); later in the same document, it states that the request was 
made on 12 August 2014 (gov't resp. at 15, ~ 31), consistent with Sparton's answer to 
the complaint (answer at 6-7, ~ 20). 
2 In its Statement of Undisputed Material Facts, Spartan states that the contracting officer 
issued the final decision "[m]ore than a year later," without providing the date of 
issuance or any reference from which the year of issuance may be deduced (app. mot. 
8, ~ 25). However, in support of that assertion, Sparton cites page 954 of tab 36 of the 
Rule 4 file; that page bears the date 26 October 2015. The government does not 
dispute the assertion, which we take as agreement that on 26 October 2015, the 
contracting officer issued the final decision claiming the overpayment. 
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DECISION ON THE MOTION FOR SUMMARY JUDGMENT 
Summary judgment shall be granted ifthe movant shows that there is no genuine 
dispute as to any material fact and the movant is entitled to judgment as a matter of law. 
Great America Construction Co., ASBCA Nos. 60437, 60501, 16-1BCA,36,460 at 
177,677. Under the CDA, the government must bring a contract claim against a contractor 
within six years after 
the accrual of the claim. See 41 U.S.C. § 7103(a)(4){A). A claim 
accrues on "the date when all events, that fix the alleged liability of either the Government or 
the contractor and permit assertion of the claim, were known or should have been known." 
FAR 33.201. A movant has the burden to prove that a claim is time-barred. Supreme 
Foodservice GmbH, ASBCA No. 57884 et al., 16-1BCA,36,426 at 177,582. 
There is no dispute that the contracting officer claimed the $577,415.36 
overpayment on 26 October 2015; consequently, to be timely, that claim must not have 
accrued earlier than 26 October 2009. The government contends that it was not put on 
notice of its overpayment claim until Sparton submitted its final vouchers in response to 
the contracting officer's 2014 request, because although the final vouchers included the 
already-paid Jackson costs, those costs were not included in the updated Schedule I forms 
of Sparton's revised final indirect rate cost proposals (see gov't resp. at 23-24). But there 
is no genuine dispute that the government knew or should have known of that discrepancy 
no later than 29 January 2008. 
First, there is no genuine dispute 
that the government knew or should have known of 
the Jackson costs as early as 10 January 2007, by when it paid those costs pursuant to the 
interim vouchers that, even according to the government's brief, included information 
related to the Jackson costs (gov't resp. at 24). Second, there is no genuine dispute that the 
government knew or should have known by 29 January 2008 that Sparton had not included 
the Jackson costs in its indirect cost rate proposals, because that is the date by when Spartan 
first submitted the indirect cost rate proposals, each of which included a Schedule I that did 
not include the Jackson costs. There is no assertion that the revisions to the indirect cost rate 
proposals, the updates to the Schedule I forms, or the submission of the final vouchers 
change that basic picture. Consequently, there is no genuine dispute that the government's 
claim accrued no later than 29 January 2008, when all events that fix the alleged liability of 
Sparton in this case, and permit assertion of the government's overpayment claim, were 
known or should have been known by the government. Because the overpayment claim 
accrued before 26 October 2009, it is untimely, and barred. 
Looked at another way, the government's overpayment claim is based upon the 
contention that Jackson costs were "insufficiently supported" (see compl. at 6,, 22), and 
that, according to the contracting officer, there is no proof that Sparton's predecessor paid 
those costs in connection with any government contract. However, if that is true, it was no 
less so on 10 January 2007, by when the government paid those costs pursuant to the interim 
vouchers. Again, there is no dispute that the interim vouchers included information related 
to the Jackson costs (gov't resp. at 24); as Sparton contends {app. mot. at 15; gov't reply at 3, 
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8), any insufficiency of support for those costs would have been as evident from the interim 
vouchers as from the final vouchers provided in response to the contracting officer's 2014 
request. In other words, if (as the contracting officer found) there was "no proof whatever" 
for the costs in 2014 and 2015, there cannot have been any less support for the same costs in 
2007. At least, the government provides no indication otherwise. Indeed, the government 
says that the interim vouchers "included accounting information related to the cost of labor 
provided by its Jackson, Michigan facility," but that "[t]his information did not contain the 
basis for the reported labor costs reflected in Sparton's accounting system, such as certified 
time cards" (gov't resp. at 24). If it is the case that the interim vouchers lacked support such 
as certified time cards, the government knew or should have known that no later than 
10 January 2007, by when it paid those interim vouchers. Consequently, even from the 
perspective of whether the Jackson costs are "insufficiently supported," there is no genuine 
issue that the government knew or should have known of its overpayment claim by 
10 January 2007, again, more than six years before the 2015 assertion of the claim. For all 
these reasons, Sparton is entitled to judgment as a matter of law. 
Without expressly arguing that FAR clause 52.216-7(g) trumps the CDA's six-year 
statute of limitations, the government invokes that clause, 3 contending that it "allows the 
contracting officer to adjust any prior overpayments" (gov't opp. at 24-25). The government 
continues that when the government paid Sparton's interim vouchers, it had not yet 
audited 
Sparton's costs, and that: 
(id. at 25) 
Clearly the Government did not know, nor should it have known, 
of its claim for the lack of supporting documentation for these 
costs at the time Sparton first submitted these vouchers. If that 
were the case, the allowable cost and payment clause giving the 
Government the right to audit a contractor's costs prior to final 
payment would be superfluous. 
If the government means that FAR clause 52.216-7(g) provides more than six years 
after accrual to assert an overpayment claim as long as final payment has not been made, we 
are not persuaded. Of course, the CDA' s six-year statute of limitations is no longer 
jurisdictional. See Combat Support Associates, ASBCA No. 58945, 15-1BCA,35,923 
at 175,590. Because a party may waive an affirmative defense, 5 C. Wright & A. Miller, 
Federal Practice and Procedure§ 1278 at 644-45 (3d ed. 2004), the six-year statute of 
limitations does not bar us from entertaining a claim that is asserted after the expiration of 
the limitations period where a non-claimant does not raise the statute of limitations as an 
affirmative defense. In addition, parties to a government contract may voluntarily waive 
certain rights, even certain statutory rights. See Minesen Co. v. McHugh, 671 F.3d 1332, 
1339-40 (Fed. Cir. 2012) (citing Burnside-Ott Aviation Training Center v. Dalton, 107 F.3d 
3 The government miscites the clause as FAR 31.216- 7(g) (gov't opp. at 24 ). 
5 

854 (Fed. Cir. 1997)). However, we are not persuaded that FAR clause 52.216-7(g) limits 
the applicability or availability of the CDA' s six-year statute of limitations in appeals from 
government overpayment claims; that clause does not even address the statute of limitations. 
Cf Minesen, 671 F.3d at 1343 (where contract provided that "[d]ecisions of the Armed 
Services Board of Contract Appeals are final and not subject to further appeal," government 
contractor waived CDA right to court of appeals reviews). And although the government 
says that when it paid the interim vouchers it had not yet audited them (gov't resp. at 25), 
delay by a contracting party assessing the information available to it does not suspend the 
accrual of its claim. Raytheon Missile Systems, ASBCA No. 58011, 13 BCA ~ 35,241 
at 173,018. Once a party is on notice that it has a potential claim, the statute of limitations 
starts to run. See Kellogg Brown & Root Services, Inc., ASBCA No. 58175, 15-1 BCA 
~ 35,988 at 175,824. 
The government also says that Public Warehousing Company, K.S.C., ASBCA 
No. 59020, 16-1BCA~36,366, precludes summary judgment (gov't resp. at 26-27). We 
disagree. There, we denied summary judgment on the government's affirmative defense 
that the CDA's six-year statute of limitations barred an appellant's claim for interest 
penalties pursuant to the Prompt Payment Act, 31 U.S.C. §§ 3901-3907, because the 
government had not introduced "invoice-specific facts"; that is, the government had 
"fail[ ed] to establish the facts regarding the date of the specific invoices for which it seeks 
summary judgment, the amount of such invoices, or the date such invoices were paid, 
precluding an assessment of when the government's alleged liability with regard to any 
particular invoice was fixed." 16-1BCA~36,366 at 177,263, 177,271. Here, however, it· 
is undisputed that: ( 1) Sparton submitted vouchers for costs that allegedly lacked support 
for those costs; (2) the government paid those costs no later than 10 January 2007; (3) by 
29 January 2008, Sparton submitted Schedule I forms that do not include those costs; and 
( 4) the government asserted its overpayment claim for the reimbursement of those costs on 
26 October 2015. That demonstrates that there is no genuine issue that the government 
knew or should have known of its overpayment claim no later than 29 January 2008, which 
is more than seven years prior to the assertion of that claim on 26 October 2015. Summary 
judgment, therefore, is not precluded. 
The government also contends that summary judgment is inappropriate because there has 
been no discovery in this appeal, and so "the Government has not had an opportunity to 
determine whether [the] interim vouchers contained the necessary supporting documentation" 
(gov't resp. at 26). We disagree that summary judgment is inappropriate here. Whether the 
interim vouchers contained the necessary supporting documentation is something that the 
government should be able to substantiate on its own, without having to conduct discovery; at 
least, the government provides no indication why that is not the case.4 Cf Avant Assessment, 
4 In any event, if the interim vouchers did not contain the necessary supporting 
documentation to support the payment of the Jackson costs, that would presumably 
only confirm that the overpayment claim accrued no later than the payment of those 
6 

LLC, ASBCA No. 58866, 16-1BCA~36,511 (government should have been able to 
substantiate, without discovery, claim that contractor failed to meet delivery schedule). 
CONCLUSION 
The motion for summary judgment is granted. Accordingly, the motion for judgment 
on the pleadings is denied as moot, and the appeal is sustained. 
Dated: 28 December 2016 
I concur 
#~&r 
'MARK N. STE~~ 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
~~ 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
RICHARD SHACKLEFORD 
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. 60416, Appeal of Sparton DeLeon 
Springs, LLC, rendered in conformance with the Board's Charter. 
Dated: 
JEFFREYD. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals 
costs; if they did contain the necessary supporting documentation, presumably that 
would be fatal to the overpayment claim on its merits. 
7