BAE Systems Land & Armaments Inc.
Docket: ASBCA 59374
Decision date: 2014-11-18

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
BAE Systems Land & Armaments Inc. 
Under Contract No. W56HZV-07-C-0660 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
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ASBCA No. 59374 
Barbara A. Duncombe, Esq. 
Suzanne Sumner, Esq. 
Taft 
Stettinius & Hollister LLP 
Dayton, OH 
John G. Horan, Esq. 
Justin M. Ganderson, Esq. 
McKenna Long & Aldridge LLP 
Washington, DC 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
CPT Tyler L. Davidson, JA 
Robert B. Neill, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE NEWSOM 
ON APPELLANT'S MOTION TO COMPEL THE GOVERNMENT 
TO FILE A COMPLAINT 
Before the Board is appellant's motion to compel the government to file the 
complaint in this appeal. The government opposes. For the reasons explained below, 
the Board grants appellant's motion. The government is directed to file the complaint 
no later than 30 days following the date of this decision. 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
This dispute arises from the government's award of Contract No. W56HZV-07-C-0660 
(contract) to BAE Systems Land & Armaments Inc. (BAE Systems or appellant). The contract 
was a firm-fixed-price contract to produce parts for a military vehicle. (R4, tab 1) BAE 
Systems subcontracted with Ibis Tek, LLC, for a portion of the work (app. supp. R4, tab 47). 
The contract required submission of subcontractor cost or pricing data and contained clauses 
for price reductions if the data were defective (R4, tab 1 at 1, 17). 

I 
The Defense Contract Audit Agency (DCAA) audited appellant's cost or pricing 
data and concluded that the subcontractor's cost or pricing data were defective, i.e., 
were not current, accurate, or complete as required by the Truth in Negotiations Act, 
10 U.S.C. § 2306a. DCAA recommended a price reduction (R4, tab 3 at 1-2). On 
14 May 2013, the contracting officer issued a "Defective Pricing Demand Letter" 
seeking debt recoupment for the alleged defective pricing identified in the DCAA audit 
reports. The letter did not state that it was a contracting officer's final decision, nor did 
it include contractor appeal rights. (R4, tab 22) On 30 July 2013, BAE Systems 
submitted a certified claim "challeng[ing] the Government's price adjustment and 
demand ... for alleged defective pricing" (R4, tab 29 at 1 ). On 24 March 2014, the 
contracting officer issued a final decision denying the claim (R4, tab 44 at 1, 4 ). 
BAE Systems filed this appeal from that final decision on or about 20 June 2014 
and now requests that the Board compel the government to file the complaint. Arguing 
that its claim is a defense to the government's allegations of defective pricing, appellant 
asserts that the "proceedings will benefit" from greater efficiency if the government 
files the initial pleading and presents the factual and legal underpinnings for its 
allegations of defective pricing. (App. mot. at 5-6) The government acknowledges that 
Board proceedings may be facilitated if the government filed a complaint with regard to 
its defective pricing contentions. It asserts, however, that this appeal also includes a 
contractor claim, and advises that 
"appellant is in a far better position to provide the 
underlying basis of its own claim" (gov't opp'n at 3). 
DECISION 
Under the unique procedural requirements of the Contract Disputes Act (CDA), 
all claims, whether contractor or government claims, must be the subject of a 
contracting officer's final decision. 41 U.S.C. § 7103. The contractor, however, is the 
only party who may initiate proceedings at the Board, 41 U.S.C. § 7104, and Board 
Rule 6(a) requires the appellant to file the complaint in an appeal. If the contractor 
appeals from a final decision on a government claim, the contractor typically presents in 
the complaint enough information about the government claim to form a sufficient 
predicate for its response. 
In appropriate cases, the Board may exercise its discretion to direct the 
government to file the complaint, if doing so will facilitate efficient resolution of the 
appeal. Beechcraft Def Co., ASBCA No. 59173, 14-1BCAii35,592; LGT Corp., 
ASBCA No. 44066, 93-3 BCA ii 26, 184. Such situations can arise if relevant 
information concerning the basis for the claim resides with the government, and not the 
appellant. In Beechcraft, for example, the contractor appealed from a government 
claim alleging that the contractor was noncompliant with the Cost Accounting 
Standards (CAS). Observing that the government bears the burden to prove a CAS 
violation and the government was "fully conversant with its own claim," the Board found 
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that the proceedings would benefit from the government setting forth, in an initial 
pleading, the facts and rationale for its determination of CAS noncompliance. 14-1 BCA 
if 35,592 at 174,395; see also, e.g., RO. VlB. SrL, ASBCA No. 56198, 09-1 BCA 
if 34,068 (ordering government to file initial pleading in appeal from default termination); 
Hughes Aircraft Co., ASBCA No. 46321, 94-2 BCA if 26,801 (ordering government to 
file complaint in appeal involving allegations of defective pricing). We do not always 
direct the government to file a complaint in appeals from government claims. Where, for 
example, the contractor uniquely possessed relevant information about the claim and 
proceedings would not have been aided by the government filing the initial pleading, we 
declined to order the government to file the complaint. See General Dynamics Corp., 
ASBCA No. 49339, 96-1 BCA if 28,244. 
This motion presents a twist on Beechcraft, in that the contractor is appealing 
from the denial of a contractor claim, not a government claim, and yet still seeks an 
order compelling the government to file the complaint. Appellant argues that its claim 
"relates to the Government's defective pricing claim" for which the government bears 
the burden of proof, the government is in the best position to set forth the facts and legal 
arguments to support its defective pricing allegations, and the "proceedings will benefit" 
from greater efficiency 
(app. mot. at 4-5). 
We agree. Appellant's claim appears to be a defense against the government's 
allegations of defective pricing, not a separate claim for contract adjustment (R4, tab 29 
at 11, Conclusion). Indeed, the Board and the parties are in this unusual posture 
because the government did not issue a final decision finding defective pricing except in 
response to the contractor's claim. Moreover, the contracting officer's final decision 
does not explain in any depth why it rejected the contractor's arguments, except with 
occasional summary remarks (R4, tab 44 ). In these particular circumstances, 
proceedings would be more efficient if the Board could start with a government 
articulation of the basis for its determination of defective pricing, rather than appellant's 
speculation about the basis for the government's assertions. 
Both the government defective pricing allegations and the contractor's claim 
appear to spring from the same set of operative facts. This should alleviate the 
government's concern about having to articulate the underlying basis for the 
contractor's claim (app. mot. at 3). In any event, the government should only assert the 
underlying basis for its defective pricing allegations and is not required to plead the 
contractor's defenses. The appellant should do that in its answer. 
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CONCLUSION 
The Board grants appellant's motion to compel the government to file the 
complaint in this appeal. The government is directed to file the complaint no later than 
30 days following the date of this order. The government should assert the underlying 
basis for its defective pricing allegations. Appellant's answer shall be due 30 days after 
receipt of the government's complaint. 
Dated: 18 November 2014 
I concur 
~~# 
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. 59374, Appeal of BAE 
Systems Land & Armaments Inc., rendered in conformance with the Board's Charter. 
Dated: 
4 
JEFFREYD. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals