United Launch Services, LLC
Docket: ASBCA 56850, ASBCA 57542, ASBCA 57661
Decision date: 2016-06-29

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 J. Nichols, Esq. 
Charles C. Speth, Esq. 
Wilmer Hale 
Washington, DC 
Col Matthew J. Mulbarger, USAF 
Air Force Chief Trial Attorney 
Jeffrey P. Hildebrant, Esq. 
Jeffrey M. Lowry, Esq. 
Erika L. Whelan Retta, Esq. 
Alexis J. Bernstein, Esq. 
Anna F. Kurtz, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE WILSON 
These appeals arise from the denial/deemed denial of claims filed with the 
contracting officer (CO) for increased costs associated with satellite launch services. 
United Launch Services, LLC (ULS or appellant) 1 contends under Count I of its complaint 
that it is entitled to an equitable adjustment pursuant to the Changes clause of the Initial 
Launch Services (ILS) contract resulting from the increased weight of the satellite 
payloads. The United States Air Force (Air Force or government) counters, inter alia, that 
the weight increase did not constitute a change to the contract, as the satellite could have 
been placed into the desired orbit utilizing the originally-contemplated rocket; and the 
claim was barred under 
a previously issued modification under the contract. 
1 As will be seen, the name of the business entity entering into a contract with the United 
States Air Force, performing that contract 
and filing a claim under that contract 
changed several times during the events we discuss herein. While we recognize 
those name changes as they occur, we note initially that what ended as ULS began 
as a contract awarded to McDonnell Douglas Commercial Delta, Inc., a 
wholly-owned subsidiary of McDonnell Douglas Corporation, a wholly owned 
subsidiary of the Boeing Company (Boeing). 

Count II of appellant's complaint (alleging breach of contract) was denied via 
summary judgment. See United Launch Services, LLC, ASBCA No. 56850 et al., 14-1 
BCA if 35,511. Familiarity with the facts of our prior decision is presumed. The 
government also moved to dismiss Count III (mutual mistake) 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 
with the CO and subsequent appeal with the Board (ASBCA No. 57542) to secure its 
ability to pursue a claim based on mutual 
mistake. Count IV requests that the Board grant 
entitlement due to the "grossly inadequate estimates of the commercial market that resulted 
in an unconscionable price for launch services." The government also asserts the 
affirmative defenses2 of release, accord and satisfaction, and estoppel. The Board 
conducted a three-week hearing on entitlement and that is only what we decide. Both 
parties have submitted pre- and post-trial briefs and replies. 
FINDINGS OF FACT 
Request for Proposal (RFP) 
1. On 19 June 1998, the Air Force issued RFP No. F04701-97-R-0008 for 
Development and Initial Launch Services under the Evolved Expendable Launch Vehicle 
(EELV) program (R4, tab 20, see also tabs 21-28). 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)3 
2. The RFP contemplated award of two separate but simultaneous contracts to two 
offerors. One contract was to be 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 ILS contract, was to procure an 
initial set of EEL V launch services utilizing the commercial items procedures contained in 
FAR Part 12. (R4, tab 19 at 18, tab 21at3) 
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 would start in FY98 and end in FY05. 
A contractor's actual period of performance would depend on the number and type of 
launches awarded to that contractor. (R4, tab 21 at 3) The number and type of launches 
2 The government also initially pled a fourth affirmative defense contending that the 
claims were barred by the six-year statute of limitations. However, the government 
subsequently withdrew that defense. (ASBCA No. 56850, Bd. corr. file) 
3 References to page numbers are to the consecutively-numbered pages within each tab. 
2 

awarded to a particular contractor was to be made on a best value basis (id. at 7). Also, the 
ILS 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 at 3-8) 
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, tab 25 at 3-8, tab 26 at 43). 
Additionally, Annex 11 provided at note 2: "SPRD [Systems Performance Requirements 
Document] to allow delivery to transfer orbit (4,725 lbs to 55 degrees) with spin 
stabilization or to final orbit (2,675 lbs at 10,998 nmi circular orbit at 55 degree inclination) 
at EELV ktr's option" (R4, tab 27 at 8). 
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 21at21). 
7. The RFP required offerors to submit a Life Cycle Cost Estimate (LCCE) for the 
Offeror's EELV 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 3, 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 FYOl, 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). 
3 

I 0. On 20 July 1998 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 6-8) 
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 Force 
launch services costs throughout the EEL V's service life" (R4, tab 29 at 13). Boeing's 
proposal also indicated that, in its decision to invest in the EEL V program, Boeing had 
made its own favorable projection of the commercial market and its capture thereof: "Our 
projected commercial capture plan, combined with the EEL V program, justified a 
significant Boeing investment in the EELV/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 1998, Boeing submitted its Best and Final Offer (BAFO) that 
provided updated prices (R4, tab 47). 
4 

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 
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 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) 
5 

(6) THE FOLLOWING ADDITIONAL SPECIAL 
CONTRACT REQUIREMENTS (SCR) 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 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 
6 

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 A/B, ADV 
EHF, Wideband Gap 
Filler 
Heavy DSP, Mission C 
(R4, tab 50 at 34-35) With regard to the GPS payloads, Table I of the unclassified 
government missions delineated in the contract specified that the direct to orbit4 payload 
would weigh 2,675 lbs (R4, tab 51 at 8). 
I 7. The contract also included: 
3. KEY SYSTEM REQUIREMENTS 
3 .1 Capabilities Required 
3 .1.1 Performance 
EEL V shall have the ability to accurately deliver the 
government portion of the NMM missions to required orbit(s). 
The mission masses and required orbits are defined in Table 
1 .... 
3.1.1.1 Performance (Mass-to-Orbit)*. 
The threshold requirement is to deliver the required mass to the 
desired orbit of the payloads indicated in Table 1.. .. 
4 The difference between a "transfer orbit" and a final or "direct orbit" is when the launch 
vehicle places the satellite in an initial transfer orbit, the satellite is responsible for 
moving from that orbit to its final orbit, thus the satellite needs fuel to make that 
happen. This is different from a direct orbit, where the launch vehicle takes the 
satellite directly to its final orbit. Thus, the difference in launch weight is due to the 
additional fuel needed. (Tr. 1/148) 
7 

3 .1.1.2 Performance Margin 
Performance margin is the amount of additional performance 
capability a vehicle has above the required mission need at the 
time of launch. EEL V shall have a threshold performance 
margin of7% [for a] MLV [(medium launch vehicle)] and 2% 
for the [heavy lift vehicle] over the KPP [(key performance 
parameters)] for mass to orbit listed in Table 1 above. The 
Government intends to reserve 5% of the ML V performance 
margin as useable payload mass growth capability for 
government payloads.[] 
3 .1.1.3 Flight Performance Reserve 
EELV performance shall provide a [3 sigma] (99.865%) 
assurance of the vehicle fully meeting mass to orbit 
requirements (including performance margin capabilities) while 
considering possible uncertainties in EEL V and environmental 
parameters such as propellant loading, Isp, and atmospheric 
density. 
4. SYSTEM OBJECTIVES 
This section contains capabilities beyond the minimum system 
requirements contained in section three 
the Government has 
identified as beneficial. The system is not required to meet 
these objectives. However, if the system exceeds minimum 
requirements, these objectives are available to be used by the 
contractor in conducting system trades. 
(R4, tab 51 at 7-8, 13) We find that the contract did not specify a particular rocket/launch 
vehicle to be used with each payload and only required the contractor to put the designated 
satellite into the desired orbit. However, appellant informed the government that it 
intended to use a Delta IV Medium as the launch vehicle for the GPS missions. In 
responding to a clarification during the solicitation phase, appellant stated: 
As part of Boeing's DDR changes, GPS was remanifested on a 
Delta IV Medium. The Delta IV Medium launch vehicle 
provided more performance to accommodate increases in 
spacecraft weight and avoided modifications to the spin table 
due to increases in SV moments of inertia. This additional 
performance capability allows for the direct injection method 
8 

for orbit insertion instead of delivering the spacecraft to a 
transfer orbit.. .. 
(R4, tab 42) We further find that the prices contained in the contract also demonstrate that 
they were priced in accordance with payload size (R4, tab 37 at 31-32, tab 58 at table 1.1; 
tr. 8/53). 
The NROL AIB-1 Missions 
18. 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 (app. 
supp. R4, tab 113; tr. 2/103-04). The government, by letter dated 5 July 2000, invited 
Boeing to submit a revised statement of work and cost proposal to modify its EEL V ILS 
contract for anticipated changes to the Mission A/B-1 launch service (tr. 2/105). 
19. The record indicates that Boeing submitted a proposal dated 10 July 2000 
(supp. R4, tab 45) and a subsequent revised proposal dated 26 July 2000, which provided 
cost information and terms for a Delta IV Medium (4,2)5 in place of the Medium (4,0) 
(launch vehicle) as specified in the original ILS contract due to the increased payload 
weight (see R4, tabs 59, 60). 
20. 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 of9,415 lbs ... 
Boeing will provide an alternative launch service within 
the EEL V family at no additional cost to the 
Government. ... 
g. In consideration of these contract modifications and 
associated equitable adjustments agreed to herein, the 
5 A Delta IV M+ ( 4,2) is a launch vehicle with a common booster core to the Delta IV 
Medium (4,0) but adds two smaller solid rocket boosters (GEM 60s) (supp. R4, tab 
207 at 107). However, they 
are different launch vehicles as the ( 4,2) has a thicker 
skin as "the aerodynamic loads on the rocket, and especially the common booster 
core, are significantly higher"; you cannot switch back and forth (tr. 3/71-72, 6/27). 
9 

Contractor releases the Government from any and all 
liability under this contract for further equitable 
adjustments attributable to these modifications. 
Thus, the negotiated price increase under the contract to launch this mission on a Delta IV 
+ (4,2) instead of a Delta IV (4,0) was [REDACTED] million. (R4, tab 61at2-3, 43) 
The WGS Missions 
21. 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 based upon the 
increase in SV weight. (R4, tab 62) 
22. 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 
1November2001, 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 
2% performance margin, for a total design mass-to-orbit 
capability of 13,464 lbs .... 
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). 
23. The record indicates that the parties continued negotiations and on 29 October 
2002 executed Modification No. P00032, which included the increases for the WGF 
(Wideband Gap Filler) missions (R4, tab 75; supp. R4, tab 76). 
The GPS Missions 
24. 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-1 CLIN 0103 price due to the aforementioned delays. The CO advised Boeing that if it 
10 

agreed with the DO and modification, it should sign the documents and return them via 
facsimile. (R4, tab 85) 
25. 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 the 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 of 2,675 lbs. Currently IRS 007 Revision 003 ... requires 
a lift-off weight of 3,578 lbs 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. 
26. 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). 
27. On 16 October 2003, the parties executed Modification No. P00057, which 
deleted seven launch services. This modification also contained a release in 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 EELV 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" (OT A), 
Group 2, Proposal No. D4-02-019; 
(5) Any Contractor REA or claim arising under or relating 
to the DSCS-2 launch service; and 
11 

(6) Any and all other Contractor REAs or 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 [ 16 October 
2003] in a total amount not to exceed $20 million. 
(R4, tab 90 at 1, 4-5) 
28. 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) 
29. By email dated 23 December 2003, the government forwarded a copy of 
DO 0086 ( GPS IIF-1 launch services) which included a release of claims for Boeing to 
review (R4, tab 96). By letter dated 15 January 2004, Boeing replied in part as follows: 
As indicated in the referenced letter, the current Space Vehicle 
(SV) launch weight for the GPS IIF-1 mission is 3758 lbs. This 
weight represents approximately, a 40% increase to the 
contractual SV weight of 2675 lbs presently indicated in the 
System Performance Requirements Document (SPRD) 
contained in the subject contract. The 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. 
Please insert the following language ... "exceptfor price 
increases due to Boeing Launch Services for any changes in 
Vehicle Class caused by an increase in the satellite weight or 
vehicle performance in support of: GPSIIF-01, GPS IIF-05, 
GPS IIF-09, and GPS IIF-10 satellites". 
(R4, tab 98 at 3) 
30. 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). The weight increase was due to a government-driven modernization program (tr. 
3/102). The record reflects that in response to this confirmation, Boeing conducted an 
12 

analysis to determine the proper vehicle to launch the heavier payload. The analysis 
showed that flying a Southeast trajectory (from Cape Canaveral, Florida)/ascending node 
mission on a Medium ( 4,0) would result in a negative performance margin of more than 
[REDACTED] (app. supp. ex. 593; tr. 3/112-25). A Northeast trajectory takes the launch 
vehicle over the more populated areas of Europe, which is more efficient than flying a 
Southeast trajectory which is a longer flight that steers clear of the Bahamas and crosses 
the southern tip of Africa and stays mostly over the oceanic portions of the Earth 
(tr. 3/130). The analysis demonstrated that utilizing a Northeast trajectory/descending 
node yielded an assured lift capability of [REDACTED], which was more than the satellite 
vehicle weight of 3,758 lbs. However, the positive performance margin was only 
[REDACTED], which did not include mission equipment (tr. 3/129). Also, Boeing advised 
the Air Force that flying this trajectory would require a waiver from the Range 
Commander, the commanding officer of the Logistics Group of the 45th Space Command 
at the Eastern Launch and Test Range who was the final decision authority for all launches, 
which could possibly delay the launch (tr. 31170-71 ). 
31. Boeing responded, by letter dated 5 March 2004, reiterating its position that the 
new weight of 3,758 lbs 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) 
32. On 13 April 2004, Boeing recommended that a Delta IV M+ (4,2) launch 
vehicle be used to meet GPS IIF mission objectives with the stated payload mass of 
3,758 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). 
33. The CO responded, by email dated 14 April 2004, 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) 
34. By letter dated 28 April 2004, 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) The record also contains a briefing that Boeing 
prepared analyzing the data regarding using the Medium ( 4,0) rocket to complete the 
mission and discussing options. The briefing 
presented a conclusion that flying the GPS 
13 

IIF mission with a 3,758 pound satellite vehicle on a Medium (4,0) resulted in an 
unacceptable risk because: ( 1) proper performance margins cannot be provided for a 
standard southeast launch; (2) a northeast launch would require increased interaction with 
the Range; and (3) a northeast launch is limited to descending node6 only, thereby 
decreasing launch availability and not in compliance with the contract terms of unlimited 
launch availability. Additionally, the briefing also showed that Boeing believed that a 
launch on a Medium ( 4,2) was the "right technical answer" as the more-powerful rocket 
had sufficient performance margins, eliminated the risk of schedule impact, and allowed 
satisfaction of additional requirements (mission equipment, space flight instrumentation, 
liftoff instrumentation (tr. 3/173) and upper stage requirements). (App. supp. ex. 330 at 
16) 
35. On 3 May 2004, Boeing responded to the CO's 28 April 2004 letter 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 
6 Descending node is when the first crossing of the equator occurs from north to south 
after obtaining a park orbit; ascending node is when the first crossing of the 
equatorial plane occurs from south to north (supp. R4, tab 196 at 20). Based on the 
propellant used and the ability for the vehicle to coast you can gain capability by 
selecting descending node over ascending node (see tr. 6/52-53). 
14 

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 has 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 
weight increase. The satellite has now grown beyond the 
weight and margin specified in the contract. 
Entitlement 
It's 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. For example, at the time the contract was entered 
into, the market dictated that small satellite launches sell for 
less than medium weight satellite launches. Even though both 
sides knew that Boeing would not have a "small" launch 
vehicle, Boeing agreed 
to a different price range for launching 
small satellites than for launching a medium satellite . 
.. .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. 
Quantum 
Because this is a commercial contract, it is not appropriate to 
calculate the value of the equitable adjustment on the basis of 
the incremental cost created by a change. Instead, Boeing is 
entitled to a fair and reasonable price for such a launch service. 
15 

(R4, tab 120 at 1-2) 
36. 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). 
3 7. By letter dated 14 June 2004 to Lt Gen Brian Arnold, Commander Space 
Missile Systems Center, appellant advised the government that "the Delta IV Medium 
launch vehicle represents an unacceptable level of mission risk for this mission; therefore 
we are proposing the Delta IV M+ (4,2) launch vehicle for the GPS IIF mission." 
Appellant stated that it reached this recommendation due to the following reasons: 
(R4, tab 125) 
• With the current spacecraft mass, we have negative 
performance margins flying a Delta IV ( 4,0) to our 
assured performance margins, except if we: 
o Fly over Europe which increases our risk with 
range safety and 
o Do not meet the Space Command requirement to 
be able to launch 365 days a year and 
o Accept much less than our standard EEL V 
performance margins at the 
start of a mission 
([REDACTED] Vs. 7%) and 
o Not fly instrumentation for mission assurance as 
is normally done and not have the capability to 
meet the Space Command Policy for upper-stage 
disposal 
38. On 16 June 2004, the government briefed Lt Gen Arnold. The briefing set out 
the issue as "mass to orbit capability of the Delta IV (4,0) launch vehicle for GPS II-F 
satellite decreasing below nominal mission confidence level" and importantly "funds for 
upgrade to Delta IV (4,2) not available." Several requirements trade-offs were listed in order 
of the highest gain in performance, including, inter alia, removing certain mission assurance 
hardware and flying a Northeast trajectory. The recommendation from the government was 
to launch on a ( 4,0) with a negative performance margin and use the trade-offs to gain 
performance which increased the margin to [REDACTED] while recognizing that 
a Range Safety waiver might be needed (due to a rise in the expected casualty rate - Ee by 
flying over populated areas) and such approval could not happen until after the launch was 
ordered, as well as future performance degradation. (App. supp. ex. 349 at 12) 
16 

39. By letter dated 15 June 2004, Boeing submitted an REA for the GPS IIF 
mission due to the "Change/Increase in Payload Mass." The letter stated further: 
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. 
(R4, tab 126) The REA did not mention mutual mistake with regard to pricing the 
launches under the contract or as a theory of recovery. 
40. The CO forwarded DO 0086 to Boeing for review and signature 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 3,758 lbs. Boeing was requested to sign the delivery order by 30 June 
2004. (R4, tab 129) 
41. Boeing responded, by letter dated 9 July 2004, indicating that it executed 
DO 0086, conditioned upon certain deletions being made from the aforementioned 
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) 
42. 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. 
43. By letter dated 7 March 2005, the CO forwarded a second version of DO 0086 
and Modification No. P00075 for Boeing's signature. The revised 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: 
17 

(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. 
44. 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 dated 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 intend[ ed] 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) The record does not contain 
any 
evidence that the CO attempted to assert the previous release language from Modification 
No. P00057 as a bar to entitlement. 
45. Through letters dated 15 and 18 March 2005, Boeing informed the government 
that it had signed DO 0086, but using a Delta 
IV Medium ( 4,0) launch vehicle represented 
an "unacceptable level of mission risk to The Contractor based on the 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 144-45) 
46. By letter dated 1 April 2005, 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). 
47. The government responded, by letter dated 5 April 2005, 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). 
48. 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: 
18 

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 re-pricing 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. 
(R4, tab 150) This REA, just as the one previously submitted on 15 June 2004, also did 
not mention 
mutual mistake with regard to pricing the launches under the contract or as 
theory of recovery. 
49. The record further reflects that the parties continued to negotiate while 
preparing for the upcoming GPS mission. On 19 June 2006, the parties executed a 
Memorandum of Understanding (MOU) whereby they agreed to enter into a subsequent 
contract which became EEL V Launch Capability Contract (ELC) FA88l6-06-C-OOO1. 
The MOU and resultant contract, which are part of the record in these appeals, read as 
follows in pertinent part: 
6. ILS Contract Requirements 
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-1/5/9/10 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. 
19 

(R4, tab 160 at 5) 
b. Boeing will not be bound by the price in the ILS 
contract for the SBIRS GE0-3 mission. 
50. 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). 
51. Appellant ULS became the successor in interest to Boeing under the contract as 
of 1 December 2006 (compl. and answer i!i! 68, 69). 
52. By letter dated 18 January 2007, government counsel responded to Boeing's 
19 August 2005 REA, declining it and Boeing's request for non-binding mediation. The 
government, for the first time, based the denial on the previous release language contained 
in Modification No. P00057, in which the parties mutually agreed to release each other 
from claims, etc., arising under or relating to the EELV program from October 1998 
through 16 October 2003. As the GPS IIF 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) 
53. 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), which was issued on 18 March 2005. Thus, Boeing contended that the release 
was inapplicable 
to the REA and remained open to the dispute resolution process. (R4, tab 
169) 
54. 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). 
55. 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) 
20 

56. The parties communicated back and forth throughout the month of September 
2007 with no resolution to the GPS IIF-5 mission (R4, tabs 176-77). 
57. 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. POOI 18. 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 of 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. POO 118, with Boeing reserving its right to pursue a claim for additional 
costs in connection with the delivery order (R4, tab 181 at 2, tab 182 at 3). 
58. On 23 December 2008, ULS submitted a certified claim that adjusts the contract 
price by [REDACTED] million for the GPS IIF-1 and GPS IIF-5 launches based on 
Boeing's actual performance costs (R4, tab 183; compl. i!il 4, 76). 
59. By letter to ULS dated 16 March 2009, the Air Force CO issued a final decision 
denying the claim (R4, tab 185). 
60. By letter dated 12 June 2009, appellant timely filed its notice of appeal with the 
Board. That appeal was docketed as ASBCA No. 56850. The complaint alleged four 
counts: (I) changes; (II) breach of contract; (III) mutual mistake regarding the commercial 
demand for EEL V launch services; and (IV) unconscionably low prices. The government 
raised the following affirmative defenses: (I) accord and satisfaction; (II) release; and (III) 
estoppel. (ASBCA No. 56850, Bd. corr. file) 
61. On 25 September 2009, the Air Force issued DO 0112 for the launch of GPS 
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 
21 

contract terms or authorize any equitable adjustment." Finally, the CO stated the 
following: 
(R4, tab 188) 
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. 
62. 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 9 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 (supp. R4, tab 207). 
63. 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 (deemed denial). The Board 
docketed the appeal as ASBCA No. 57542. 
64. 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 of GPS 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 April 2011, the CO denied the claim. On 22 June 2011, ULS 
filed a timely appeal with the Board, which was docketed 
as ASBCA No. 57661. The 
"protective" appeal was consolidated with ASBCA Nos. 56850 and 57542 and, as such, the 
Board incorporated the pleadings into the new appeal. (ASBCA No. 57661, Bd. corr. file) 
The Hearing 
65. Both parties testified that generally, neither party would launch a mission 
greater than a low risk. Specifically, appellant's Chief Operating Officer testified that 
"Low risk is elevated above the baseline. But we consider it acceptable. We fly missions 
with rockets that have low-risk items.... Medium is the next elevation of risk, and it is the 
elevation at which we will not fly a mission." (Tr. 3/139) Additionally, Lt Gen Arnold 
testified that "we would not launch a primary payload, read that as an operational payload, 
at greater than a low risk" (tr. 8/156). 
22 

Expert TestimonyZ 
66. Appellant offered the expert testimony of Lawrence J. Ross, former director of 
NASA's Glenn Research Center. Mr. Ross was admitted as an expert in launch vehicle 
system development and management without objection (tr. 6/23). He concluded the 
following: 
o In the face of the 40% increase in spacecraft weight, the 
Delta 
IV (4,0) was no longer suitable for the GPS-IIF 
m1ss1on. 
o There were no acceptable measures that would 
sufficiently improve the performance capability of the 
( 4,0) that would render it suitable for the mission. 
o The Air Force's recommended mission and vehicle 
changes failed to comply with the ILS Contract's 
requirements, and they created significant technical and 
programmatic risk. 
o Boeing's decision to launch the GPS-IIF satellites on the 
Delta IV ( 4,2) was the correct one and is consistent with 
prudent program management standards in the launch 
industry. 
(App. supp. ex. 481) He added that although both parties believed that a waiver from the 
Range was necessary to fly a Northeast trajectory using a ( 4,0), he opined that it was highly 
unlikely that a waiver would have been granted due to the availability of a safer alternative 
(i.e. use the ( 4,2) on a safer Southeast trajectory). Finally, and possibly most importantly, 
he stated that "launch vehicles never fly exactly as you expect them to or as you predict 
them to" (tr. 6/31). The Delta IV system had only flown three times, he noted, "twice in a 
configuration that was originally anticipated for GPS IIF and one launch in a configuration 
with the solid rocket motors [(4,2)]. So, the Delta IV would be considered an immature 
vehicle with unknown risks and still-to-be-proven reliability." (Tr. 6/48) In the event that 
the waiver would not have been granted, he added that it would occur close to the projected 
launch date and to reintegrate the mission on a 
( 4,2) would prove costly and disruptive not 
only to the GPS customers but the entire Delta IV EEL V program as a whole. Thus, 
Mr. Ross concluded: 
7 Appellant also offered the expert testimony of Mr. Avram Tucker (forensic accountant), 
who opined, inter alia, that the pricing of the previous NROL-22 and WGS 
missions were not limited to incremental costs. While this report ( app. supp. ex. 
492) and subsequent testimony is interesting, it does not aid the Board in reaching 
the ultimate decision below. 
23 

The changes that the Air Force analyzed and presented 
to General Arnold did not rectify that shortfall and did not 
comply with the requirements of the contract, and in some way 
each of them added significant technical and programmatic 
risk. And I think that Boeing's decision to make the 
assignment of a ( 4,2) vehicle to the GPS IIF satellites was 
indeed the 
correct one. It was consistent with prudent program 
management standards in the launch industry. 
(Tr. 6/63-64) We find this testimony credible. 
67. The government offered Manuel A. Landa, of the Aerospace Corporation as an 
expert in launch vehicle performance analysis and mission plan verification. As appellant 
interposed no objection, Mr. Landa was admitted as an expert in the above-mentioned 
areas (tr. 12/113). Mr. Landa was an Aerospace employee and was part of the team that 
completed the original evaluation of the performance capability of the ( 4,0) with regard to 
the GPS satellites in 2004. Additionally, he was asked to reevaluate the analysis that was 
done in 2004 for purposes of the hearing in the above-captioned appeals and prepare a 
report (tr. 12/115). Mr. Landa opined that the (4,0) configuration had adequate 
performance to deliver the GPS IIF satellite into the 
desired orbit if flown on a Northeast 
trajectory. The Ee values were within the wing commander's waiver authorization limits, 
if required and the trade-offs presented no significant risks, thus concluding that launching 
a (4,0) on a Northeast trajectory presented a low risk. (Supp. R4, tab 202) We find this 
testimony not as persuasive as Mr. Ross' in light of the other testimony and evidence 
contained in the record that demonstrate that launching the increased payload on a ( 4,0) 
rocket configuration on a Northeast trajectory was not a low risk. 
68. The government also offered the expert report of Roger De Vivo, as a "technical 
expert in all aspects of flight safety analysis of launch operation at the Eastern Range 
including, Range Safety policy and requirements to obtain flight plan approval and waivers 
for launch." He opined that "waivers would have been required to the range safety 
requirement that the 
collective mission risk should be no greater than 30 in a million for the 
GPS IIF-1 and IIF-5 missions and that it was extremely likely that these waivers would 
have been approved." (Supp. R4, tab 196 at 7-8) We find this report useful, but limited to 
the projected approval/disapproval of the launch waiver, thus somewhat helpful in 
determining the reasonableness of appellant's actions, but not helpful to resolve the issue 
of the existence of a change under the contract. Moreover, Mr. De Vivo did not testify at 
the hearing, leaving the Board to interpret his report as submitted. 
69. Appellant also presented expert testimony from Brig Gen J. Gregory Pavlovich 
(USAF, Ret.), the former Commanding Officer of the Logistics Group of the 45th Space 
Wing at the Eastern Launch and Test Range (Eastern Range) from 1996 through 1998. As 
the former Commanding Officer, Brig Gen Pavlovich was the final decision authority for all 
24 

launches (tr. 5/165). Upon completion of voir dire, Brig Gen Pavlovich was admitted, 
without objection, as an expert in range safety criteria and public safety waivers at the 
Eastern Range (tr. 51167). He explained the launch approval process as a "two plus years" 
campaign that would include all of the stakeholders working closely together to ensure that 
they are complying with the applicable mandatory regulations, specifically Eastern and 
Western Range 127-1(EWR127-1) Range Safety Requirements (see app. supp. ex. 302). 
He opined that "you should never plan a launch ... knowing that you're going to need to 
apply for a waiver," because a "waiver, by its definition, is non-compliance with the 
regulation." Moreover, he added, there is no guarantee that a waiver will be granted. 
(Tr. 5/171) He further added that a waiver would be needed to launch on a Northeast 
trajectory due to the fact that the Ee rates were above the acceptable level of risk to the 
public of 30 x I o-6 (or 30 casualties per 1 million people living in a populated area) as the 
casualty rate was listed in EWR 127-1, Section 1.4.1 (tr. 51176). Specifically the Aerospace 
analysis of 106 x 10-6 and 41 x l0-6 and the Range Safety analysis showed a rate of 49.7 to 
73.7 x l0-6. Waivers, according to Brig Gen Pavlovich should only be granted under 
extremely rare and compelling circumstances, citing EWR 127-1 at Section 1.6.5.2.3. He 
added that deviations and waivers, under the applicable regulations found at EWR 127-1 at 
1.6.5.2. and 2.5.6. are used when the mission objectives of the Range user cannot otherwise 
be achieved and because of the importance of safety, a program plan is not approved simply 
as a matter of convenience to the Range user if a "safer reasonable alternative exist[s]." 
(Tr. 51187) We find this testimony extremely helpful in determining the risks associated 
with launching the GPS IIF satellites using the (4,0) configuration. 
70. Both parties filed pre- and post-trial briefs and replies. However, the 
government did not address the affirmative defense of accord and satisfaction in any of its 
briefs. Only entitlement is before the Board. 
DECISION 
Appellant's complaint alleges the following: 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 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 counters that appellant failed to meet its burden of proving that 
there was a constructive change; specifically that the provisions cited are not applicable to 
the dispute at bar; appellant's own analysis demonstrated that a Delta IV (4,0) Medium was 
acceptable and that the requirement could be met without a change in performance; and 
that witness testimony showed that the decision to use a Delta IV + ( 4,2) Medium was 
25 

driven by financial considerations. In the alternative, the government contends that any 
equitable adjustment should be calculated on the incremental price of the work and not a 
complete re-pricing of the work. The government also believes that the release contained 
in Modification No. P00057 bars appellant's claims. Also, the government argues that 
appellant is estopped from asserting claims based on weight because it relied to its 
detriment on representations that the performance margin was available for payload weight 
growth. Finally, the government avers that appellant is not entitled to reformation of the 
contract due to mutual mistake or unconscionability. Appellant replies in opposition 
challenging the government's position as well as the estoppel issue, which it contends was 
first advanced in its brief to the Board. 
Count I-Change/Equitable Adjustment 
Appellant contends in its complaint and subsequent briefs 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). Further, as the payloads were no 
longer considered "small," they had to be launched using a different and more expensive 
vehicle, thus necessitating a change to the contract price for launch services (app. hr. at 3). 
The government counters that appellant failed to meet its burden of proving that the change 
in payload weight was a constructive change to the contract. Moreover, the government 
contends that there was no change to the contract in relation to the weight of the GPS IIF 
payload because appellant proposed that its Delta 
IV Medium rocket could carry the 
satellite at a weight even greater than the weight at issue and the contract expressly 
permitted the Air Force to increase the payload weight up to the capability of the rocket 
appellant proposed. (Gov't hr. at 2) 
Although the subject matter of these appeals involve all sorts of technical jargon 
regarding rocketry and rocket science, range waivers, etc., the answer to this dispute lies in 
something far less complicated - the contract itself. The parties contracted for launch 
services in order to place certain payloads into their respective orbits under a commercial 
items contract. The payloads were categorized by size. The government did not procure a 
specific rocket to meet that requirement, although appellant informed the government that 
it would use the ( 4,0) to accomplish the mission for the small payload. The contract 
pricing was consistent with this approach. (Finding 17) The record reflects, and the 
parties agree that the payload weight for the GPS mission grew from the original 
requirement to the actual launch weight due to a government-driven modernization 
program (finding 30). As the contract put the GPS mission in the "small" category for lift 
vehicles, the 40% weight increase moved the payload up into the medium class. Thus, the 
government's action increasing the payload weight equated to a change to the contract. 
The next question that follows is whether such a change is compensable under the 
terms contract. We conclude in the affirmative. The evidence provided by appellant 
26 

showed its prices were based on payload class and most importantly, the contract classified 
payloads by size (finding 17). As the weight of the GPS satellite increased, the payload 
moved into a new class, from small to medium. The government does not dispute that the 
satellite increased in weight, it merely argues that appellant was required to launch up to 
the full payload capacity of the (4,0) it proposed ([REDACTED]) based on its 
interpretation of Section 4.0 of the SPRD which would entitle the Air Force to use margin 
for payload weight growth over the contract "threshold" amount of 2,675 pounds (gov't br. 
at 47-8). This argument misses the mark. Section 4 is entitled "System Objectives" and 
clearly states that "the system is not required to meet these objectives." Thus by the plain 
language of this provision, the government's arguments fail. 
The record further demonstrates that the Delta IV + ( 4,2) was the reasonable 
alternative based on the change (increased weight), regardless of the government's belief 
that appellant was trying to recapture its losses under the contract (assured lift capability 
was below the weight of the GPS IIF-1 payload). Appellant reasonably concluded, based 
on the technical analysis provided in the record that the more powerful Delta 
IV + ( 4,2) 
was the correct decision (finding 46). The government's contention in its brief that 
appellant preempted the process by unilaterally deciding to launch on the ( 4,2) is somewhat 
compelling. However, this argument ignores the fact that (a) the original weight of the 
satellite increased, and most importantly, (b) the government ordered the launch, thereby 
necessitating the commencement of the launch process. Appellant was now faced with a 
dilemma, start the multi-year process of preparing to launch with known performance 
issues and risk failure; or go with a safer/lower risk alternative that met the performance 
requirements of the contract at a higher price. For the government to argue that appellant 
basically took the option of failure away by taking unilateral action is not persuasive. The 
risks were real enough that both sides concluded, prior to the claim being filed, that a 
waiver from the Range would have been necessary. Appellant's actions were reasonable 
given the changed circumstances and we are not persuaded by the government's arguments 
to the contrary. 
Moreover, we cannot ignore the dangers involved in the nature of the services 
procured under this contract. As the record reflects through the testimony at the hearing 
from both sides, safety is always paramount. In the event of a failure, the risk includes not 
only damage to a multi-million dollar asset and possible programmatic delays, but also the 
possibility of expected casualties (i.e. human deaths). Thus, the multiple analyses of the 
numbers relating to performance margins and expected casualty rates further demonstrate 
that the parties would not risk a launch if those rates were too high or margins too thin to 
safely proceed with the mission. Moreover, there was a safer alternative-the Medium 
(4,2); the only problem was that it cost more and the parties could not agree on how to 
price those costs associated with the change. As the parties both indicated that they would 
not launch a mission higher than a low risk (finding 65) we conclude that appellant's 
position was reasonable. The issue of whether or not a waiver was required or obtainable 
does not change our view. 
27 

With regard to what appellant is allowed to recover due to this change, the 
government still contends that recovery is limited under the Changes clause to a price 
increase based on the cost of performing the changed work only (gov't hr. at 60). Even 
though we covered this argument in our earlier decision and this decision only decides 
entitlement, the government goes even further to argue that the parties' conduct 
during the 
negotiation of the previous two missions (NROL and WGS) showed that they intended that 
the contractor would be compensated based on its increased costs to perform the changes, 
plus profit (gov't br. at 63). However, the government would like the Board to find that the 
plain language in the contract does not 
exist as well as its previous actions with regard to 
the other missions that experienced payload weight growth. As we said in our previous 
summary judgment decision in these same appeals: 
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 
28 

this context and therefore appellant's course of performance 
evidence to be relevant. See Id. (recognizing that evidence of 
course of performance is relevant to interpret an ambiguous 
contract). 
United Launch Services, 14-1BCAii35,511at174,067. Thus we have already considered 
and rejected the government's arguments with regard to the limitation of recovery under 
the contract. Once the government changed the contract, the basis for negotiation opened 
up and the commercial value of the changed launch services became a reasonable factor in 
determining the final agreement between the parties. 
Counts III and IV 
With regard to Count III of appellant's complaint (mutual mistake about the 
commercial demand for EELV launch services) and Count IV (unconscionably low prices), 
we need not reach a decision on these counts as well as the government's motion to strike 
Count III because appellant has prevailed on Count I. Accordingly, ASBCA No. 57661 is 
rendered moot. 
Affirmative Defenses 
Accord and Satisfaction 
Although initially plead as an affirmative defense in its answer, the government did 
not address this defense in its post-trial briefs (finding 70). Accordingly, we consider the 
government to have abandoned this issue. See States Roofing Corp., ASBCA No. 54860 et 
al., 10-1 BCA ii 34,356 at 169,664 .(failure to address release of claims contention in its 
post-hearing brief equated to abandonment of the issue). 
Modification No. P00057 Release Language 
In interpreting a release, general principles of contract interpretation apply. Optex 
Systems, Inc., ASBCA No. 58220, 14-1BCAii35,801 (citing Information Systems 
& Networks Corp. v. United States, 68 Fed. Cl. 336, 341 (2005)). "[T]he inquiry regarding 
releases should focus on the intent of the parties at the time the release is executed and this 
intent should be sought from the whole and every part of the instrument." Futuronics 
Corp., ASBCA No. 29324, 85-2 BCA ii 18,137 at 91,045. If the provisions of a release are 
"clear and unambiguous, they must be given their plain and ordinary meaning." Bell BC! 
Co. v. United States, 570 F.3d 1337, 1341 (Fed. Cir. 2009) (citations omitted). 
Conversely, if the words defining the scope of the release are ambiguous in their 
application to a contractor's claim, courts and boards will ascertain the parties' intent by 
examining the parties' conduct leading up to the modification. R.P. Richards Constr. Co. 
29 

v. United States, 51 Fed. Cl. 116, 122 (2001) (additional evidence can be considered when 
there is ambiguity in the terms of the agreement); Chantilly Constr. Corp., ASBCA 
No. 24138, 81-1BCAii14,863 at 73,397 (modifications' scope did not include 
contractor's claims for delay and impact costs where such costs were not considered by the 
parties during negotiations leading up to the modifications). 
The government contends that the release language in Modification No. P00057 is 
not ambiguous and the subject claims are covered by the release because the event that 
formed the basis of the claims occurred prior to 16 October 2003 (gov't hr. at 74).8 
Appellant counters that because the government had not ordered the GPS IIF missions and 
had not formally notified appellant of the new weight as of the date of Modification 
No. P00057, the release, by its own terms, does not apply. We agree. 
As a general matter, we find it difficult to conclude that the release would cover the 
subject claims that arose from an order that was clearly placed outside the date specified in 
the release. Although there is evidence that the possibility of a dispute arising out of the 
emails occurring in the background as early as 30 September 2003 (finding 25), the official 
confirmation/notice of the satellite weight was 29 January 2004 (finding 30) more than 
3 months after the date covered by the release. The parties' conduct after issuance of the 
order emboldens our opinion. When the first version DO 0086 was sent over for review on 
28 June 2004, more than 7 months after Modification No. P00057, appellant immediately 
noted the release language and requested its removal (finding 41). The CO' s conduct 
revealed that she thought that the potential for a claim was still a viable option, and 
attempted to protect the government from future claims arising out of the mission. The 
record reflects that the parties had a spirited back-and-forth on the issue with the 
government ultimately removing the language and indicated that it would consider any 
supported request for equitable adjustment that Boeing submits (finding 43). At no time 
prior to 18 January 2007 did the government raise the issue of release with regard to claims 
for increased costs due to weight (finding 52). We conclude that the governments release 
language argument is without merit. 
8 Maj Gen Susan Mashiko, the Air Force officer who later became the system director for 
the EELV program at the time Modification No. P00057 was executed, testified 
"My intent was for the language to be as broad as possible and to encompass 
everything" (tr. 8/86). However, she later testified that she could not recall if she 
told the negotiating team that the release should cover the GPS IIF missions 
(tr. 8/135). Additionally, Lt Gen Arnold, testified with regard to the parties' intent 
to bar a future REA under Modification No. P00057, "It wouldn't have been our 
intent because it wasn't an issue" (tr. 8/264). 
30 

Estoppel 
The government contends that appellant is estopped from asserting a claim for the 
weight growth because the Air Force relied to its detriment on Boeing's representations 
that the performance margin was available for payload weight growth and that it could 
launch on a Northeast ascending node trajectory (gov't br. at 58). Specifically, the 
government argues that appellant's conduct "in proposing a [REDACTED] lift capability, 
producing a study that confirmed a [REDACTED] lift capability, and then approving a 
not-to-exceed weight of 3758 pounds, based on a northeast ascending node trajectory," 
induced the Air Force to approve a GPS IIF Modernization program above the SPRD 
threshold weight, but well within the launch capability of the (4,0) (id. at 59). 
Appellant counters at the outset, that the government did not plead its current theory 
of estoppel (the government's answer addressed entitlement based on the change in 
payload class while the current defense as briefed focuses on entitlement based on the need 
to use the Delta (4,2)) as an affirmative defense (app. reply br. at 25). However, the 
government's answer reads in relevant part: 
2. Appellant represented to the Air Force that it would 
launch the GPSIIF space vehicle on a medium launch vehicle. 
3. Appellant represented to the Air Force that the extra 
performance capability of a medium launch vehicle was 
available for the Air Force to accommodate increases in the 
space vehicle weight. 
(Answer at 55) Thus, as demonstrated above, appellant's contention is not well founded. 
Appellant further alleges with regard to the merits of the government's estoppel 
defense that it did not mislead the government because the document that the Air Force 
relied upon to base its argument, the Interface Requirements Specification (IRS), had 
nothing to do with the launch services to be provided to the Air Force. In fact, the IRS was 
"a GPS Program Office document between the GPS Program Office and the GPS satellite 
contractor," not the launch vehicle contractor (Boeing Launch Services/ULS) or the EEL V 
SPO PCO (the government), "and it did not specify launch requirements for purposes of 
the ILS Contract" (app. reply br. at 25). 
Equitable estoppel is an affirmative defense. See Foote Mineral Co. v. United States, 
654 F.2d 81, 86 (Ct. Cl. 1981). As the party raising the defense, the government bears the 
burden of proof. See United Technologies Corp., Pratt & Whitney, ASBCA No. 47416 et al., 
06-1 BCA ii 33,289 at 165,050. Equitable estoppel requires: "(l) misleading conduct, which 
may include not only statements and actions but silence and inaction, leading another to 
reasonably infer that rights will not be asserted against it; (2) reliance upon this conduct; and 
31 

(3) due to this reliance, material prejudice if the delayed assertion of such rights is permitted." 
Mabus v. General Dynamics C4 Sys. Inc., 633 F.3d 1356, 1359 (citing Lincoln Logs Ltd. v. 
Lincoln Pre-Cut Log Homes, Inc., 971 F.2d 732, 734 (Fed. Cir. 1992)). 
The government argues that appellant proposed a ( 4,0) rocket with the launch 
capability of [REDACTED], and the government believed that it could use that margin for 
payload weight growth. Specifically, the government contends that appellant performed 
studies which determined that the (4,0) could 
launch a GPS IIF of [REDACTED] on a 
Northeast trajectory. Appellant's conduct in proposing a [REDACTED] lift capability, 
producing a study that confirmed a [REDACTED] lift capability, and then approving a 
not-to-exceed weight of 3,758 pounds, the government avers, induced the government to 
approve a GPS modernization program above the SPRD threshold weight but well within 
the launch capability of the (4,0). Thus, the government concludes that appellant's 
misleading conduct prejudiced the government by "creating a putative liability of 
[REDACTED] million without giving the Air Force an opportunity to evaluate whether it 
would agree to be so obligated." (Gov't br. at 59-60) 
The government's arguments are not persuasive when weighed against the record in 
these appeals. First, the document that the government bases its argument on, the IRS, was 
not between the Air Force and appellant (i.e. Boeing Launch Systems or ULS), but 
between the GPS program office and the GPS satellite contractor. The contract that is the 
subject of these appeals is the launch services contract. During the formation phase as the 
acquisition strategy was derived, the record demonstrates that there was extensive 
"give-and-take" with regard to the terms and conditions of the resultant commercial items 
contract. (R4, tabs 20, 21; app. supp. ex. 52) At no time during the solicitation 
phase 
could we conclude that appellant's actions were misleading. In fact, during the drafting 
stage, Boeing treated the government like a commercial customer, and as such forwarded a 
copy of its commercial launch service agreement, which included an "Alternative Launch 
Vehicle" clause which would have allowed the customer (here, the government) to 
pre-negotiate prices based on launch vehicles (app. supp. ex. 8 
at 23; tr. 2/55-57). The 
government ultimately rejected this clause (tr. 2/56). The contract, awarded under the 
commercial items provisions of FAR Part 12, was to deliver a mass (small satellite 
weighing 2,675 pounds) into the desired orbit. How this was to be accomplished was up to 
the contractor, as the contract did not require a certain launch vehicle. Thus, under the 
contract, the government cannot say that it was misled by appellant's decision to use a 
rocket with certain capabilities because there was no contractual requirement for Boeing to 
provide a 
vehicle with a performance capability of [REDACTED]. Accordingly, as the 
government cannot meet the first prong of the aforementioned Mabus test, the remainder of 
the government's contentions also fail. 
32 

CONCLUSION 
For the reasons set 
out above, ASBCA Nos. 56850 and 57542 are sustained and 
ASBCA No. 57661 is dismissed as moot. The matters are remanded to the parties for 
negotiation of quantum consistent with this decision. 
Dated: 29 June 2016 
I concur 
MARK N. STEMPLER 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
OWEN C. WILSON 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
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 Nos. 56850, 57542, 57661, Appeals of 
United Launch Services, LLC, rendered in conformance with the Board's Charter. 
Dated: 
33 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals