ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
Raytheon Company ) 
) 
Under Contract No. W31 P4Q-04-C-0020 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 57743, 57798, 58280 
Karen L. Manos, Esq. 
John W.F. Chesley, Esq. 
Gibson, Dunn & Crutcher LLP 
Washington, DC . 
E. Michael Chiaparas, Esq. 
DCMA Chief Trial Attorney 
Stephen R. Dooley, Esq. 
Senior Trial Attorney 
Alexander M. Healy, Esq. 
Kathleen P. Malone, Esq. 
Trial Attorneys 
Defense Contract Management Agency 
Boston, MA 
OPINION BY ADMINISTRATIVE JUDGE SCOTT 
Raytheon Company has appealed under the Contract Disputes Act, 41 U.S.C. 
§§ 7101-7109 (CDA), from three final decisions of Defense Contract Management 
Agency (DCMA) contracting officers (COs). The appeals are consolidated for 
disposition. In the decision at issue in ASBCA No. 57443, DCMA's corporate 
administrative CO (CACO) demanded the return of alleged government payments of 
allegedly expressly unallowable costs. He assessed penalties and interest against 
Raytheon for including the costs in its corporate incurred cost rate proposal for 2004 
(2004 Corporate Proposal). In the other decisions, at issue in ASBCA Nos. 57798 and 
58280, DCMA's divisional administrative CO (DACO) assessed penalties and interest 
against Raytheon for including alleged expressly unallowable costs in the incurred cost 
rate proposals of its Integrated Defense Systems (IDS) business segment for 2004 and 
2005. In addition to cost allowability questions, ASBCA No. 57743 focuses upon Federal 
Acquisition Regulation (FAR) 42.709-5(c)'s penalty waiver provisions. In ASBCA 
Nos. 57798 and 58280, Raytheon does not raise penalty waiver; it advocates that the costs 
at issue were not expressly unallowable and thus were not subject to penalties. 

The Board held a 10-day hearing on entitlement 1 in Boston, Massachusetts. 
Thereafter the Board denied Raytheon's motion to strike certain of the CACO's 
testimony and related evidence and granted the government's motion to strike certain 
materials proffered by Raytheon in support of its motion. Raytheon Company, ASBCA 
No. 57743 et al., 16-1 BCA, 36,335 (Raytheon I). 
FINDINGS OF FACT 
The Contract and Relevant FAR Provisions 
1. Raytheon, an international high technology company, maintains its Corporate 
Office at its Waltham, Massachusetts headquarters, as it did in calendar years (CYs) 2004 
and 2005. It provides systems and solutions for defense, homeland security and other 
government markets. (Supp. R4, tab 244 at 261 O; tr. 3/46; 2nd amend. comp I. and answer 
, 9; gov't proposed findings offact 2 (GPFF), 1) Contract No. W31P4Q-04-C-0020, in the 
amount of$134,439,577.46, between Raytheon and the U.S. Army Aviation and Missile 
Command, which the parties ultimately agreed would serve as the representative contract 
in these appeals, was effective on 30 January 2004. The contract identified itself as a 
Labor-Hour, Time-and-Materials, Services and Research and Development contract. 
Performance of all travel, other direct costs, and material efforts was on a Cost-Plus-Fixed­
Fee basis, subject to the FAR 52.216-7, ALLOWABLE COST AND PAYMENT (DEC 2002) 
clause, which the contract incorporated by reference. DCMA administered the contract, 
which was for engineering services associated with the Patriot Weapon System. The 
contract also incorporated by reference the FAR 52.230-2, COST ACCOUNTING STANDARDS 
[CAS] (APR 1998); and FAR 52.242-3, PENAL TIES FOR UNALLOWABLE COSTS (MAY 2001) 
clauses. (Supp. R4, tab 392 at 1-3, 136, 173-74) FAR Part 31 contains cost principles and 
procedures concerning the allowance of costs under the contract. See FAR 31.000. 
1 The parties included proposed fact findings that essentially pertain to disputed 
quantum issues, including Raytheon's contention that "any penalties upheld by 
the Board must be reduced by the amount associated with subcontracts or 
contracts closed using the quick-closeout procedure" (app. reply hr. at 33). At 
least one of the issues - whether Raytheon was paid for the costs upon which the 
government has assessed penalties and interest - bears upon entitlement as well 
as quantum. These appeals involve government claims and it has the burden of 
proof on payment. Alaska Aerospace Corp., ASBCA No. 59794, 16-1 BCA 
, 36,498 at 177 ,842. However, the current record is insufficient for the Board to 
decide that question, which the government apparently considered to be part of a 
quantum determination (e.g., gov't reply br. at 37-38). Because the payment 
issue is so closely intertwined with quantum, the Board reserves it and the other 
quantum issues for any quantum proceedings. 
2 Unless otherwise indicated, all cited proposed findings of fact are undisputed. 
2 

2. Among others addressed below, the following relevant statutory and FAR 
provisions were in effect at the time of Raytheon's contract award and indirect cost rate 
proposals in question and remain substantially the same: 
Title 10 U.S.C. § 2324, Allowable costs under defense contracts, provides that: 
(a) Indirect Cost That Violates a FAR Cost Principle.­
The head of an agency shall require that a covered contract 
provide that if the contractor submits to the agency a 
proposal for settlement of indirect costs incurred by the 
contractor for any period after such costs have been accrued 
and ifthat proposal includes the submission of a cost which 
is unallowable because the cost violates a cost principle in 
the [FAR] or applicable agency supplement to the [FAR], 
the cost shall be disallowed. 
(b) Penalty for Violation of cost principle.-
(1) If the head of the agency determines that a cost 
submitted by a contractor in its proposal for settlement 
is expressly unallowable under a cost principle 
referred to in subsection (a) that defines the 
allowability of specific selected costs, the head of the 
agency shall assess a penalty against the contractor in 
an amount equal to-
(A) the amount of the disallowed cost allocated to 
covered contracts for which a proposal for 
settlement of indirect costs has been submitted; 
plus 
(B) interest...to compensate the United States for the 
use of any funds which a contractor has been 
paid in excess of the amount to which the 
contractor was entitled. 
(2) If the head of the agency determines that a proposal 
for settlement for indirect costs submitted by a 
contractor includes a cost determined to be 
unallowable in the case of such contractor before the 
submission of such proposal, the head of the agency 
shall assess a penalty against the contractor in an 
amount equal to two times the amount of the 
3 

disallowed cost allocated to covered contracts for 
which a proposal for settlement of indirect costs has 
been submitted. 
( c) Waiver of Penalty .-The [FAR] shall provide for a 
penalty under subsection (b) to be waived in the case of 
a contractor's proposal for settlement of indirect costs 
when-
(3) The contractor demonstrates, to the [CO's] 
satisfaction, 
that-
(A) it has established appropriate policies and 
personnel training and an internal control and 
review system that provide assurances that 
unallowable costs subject to penalties are 
precluded from being included in the contractor's 
proposal for settlement of indirect costs; and 
(B) the unallowable costs subject to the penalty 
were inadvertently incorporated into the proposal. 
(Italicized emphasis added) 
The Allowable Cost and Payment clause provides that "[f]inal annual indirect 
cost rates and the appropriate bases shall be established in accordance with Subpart 42. 7 
of the [FAR] in effect for the period covered by the indirect cost rate proposal." 
FAR 52.216- 7( d)( 1) (emphasis added). The proposal is due within the six-month period 
following expiration of each of the contractor's fiscal years. FAR 52.216-7(d)(2)(i). 
The Penalties for Unallowable Costs clause provides that: 
(b) Contractors which include unallowable indirect 
costs in a proposal may be subject to penalties. The 
penalties are prescribed in 10 U.S.C. 2324 or 41 U.S.C. 256, 
as applicable, which is implemented in Section 42.709 of the 
[FAR]. 
( c) The Contractor shall not include in any proposal 
any cost that is unallowable, as defined in Subpart 2.1 of the 
FAR, or an executive agency supplement to the FAR. 
4 

(d) If the [CO] determines that a cost submitted by 
the Contractor in its proposal is expressly unallowable under 
a cost principle in the FAR, or an executive agency 
supplement to the FAR, that defines the allowability of 
specific selected costs, the Contractor shall be assessed a 
penalty equal to-
( 1) The amount of the disallowed cost allocated to 
this contract; plus 
(2) Simple interest. .. 
(e) If the [CO] determines that a cost submitted by 
the Contractor in its proposal includes a cost previously 
determined to be unallowable for that Contractor, then the 
Contractor will be assessed a penalty in an amount equal to 
two times the amount of the disallowed cost allocated to this 
contract. 
(g) Pursuant to the criteria in FAR 42.709-5, the 
[CO] may waive the penalties in paragraph (d) or (e) of this 
clause. 
FAR 52.242-3 (Emphasis added). 
FAR 31.001, Definitions, states in part that: 
"Compensation for personal services" means all 
remuneration paid currently or accrued, in whatever form 
and whether paid immediately or deferred, for services 
rendered by employees to the 
contractor. 
"Directly associated cost" means any cost which is 
generated solely as the result of the incurrence of another 
cost, and which would not have been incurred had the other 
cost not been incurred. 
5 

"Expressly unallowable cost" means a particular item 
or type of cost which, under the express provisions of an 
applicable law, regulation, or contract, is specifically named 
and stated to be unallowable. 
The CAS contains the same definition of "expressly unallowable cost." 48 C.F .R. 
§ 9904.405-30(a)(2). The CAS Board "used the word "expressly' in the broad dictionary 
sense-that which is in direct or unmistakable terms." CAS 405 (Accounting for 
Unallowable Costs), Preamble A, Item 3, 38 Fed. Reg. 24195 (Sept. 6, 1973). 
FAR 3 1.109 Advance agreements, states in part: 
(a) The extent of allowability of the costs covered in 
this part applies broadly to many accounting systems in 
varying contract situations. Thus, the reasonableness, the 
allocability and the allowability under the specific cost 
principles at Subparts 31.2, 31.3, 31.6, and 31.7 of certain 
costs may be difficult to determine. To avoid possible 
subsequent disallowance or dispute based on 
unreasonableness, unallocability, or unallowability under the 
specific cost principles at Subparts 31.2, 31.3, 31.6, and 
31.7, [COs] and contractors should seek advance agreement 
on the treatment of special or unusual costs .... 
(b) Advance agreements may be negotiated either 
before or during a contract but should be negotiated before 
incurrence of the costs involved. The agreements must be in 
writing, executed by both contracting parties, and 
incorporated into applicable current and future contracts .... 
( c) The [CO] is not authorized by this 3 1.109 to 
agree to a treatment of costs inconsistent with this part. 
FAR 31.201-6, Accounting for unallowable costs, provides that: 
(a) Costs that are expressly unallowable or mutually 
agreed to be unallowable, including mutually agreed to 
be unallowable directly associated costs, shall be 
identified and excluded from any billing, claim, or 
proposal applicable to a Government contract. A 
6 

directly associated cost is any cost which is generated 
solely as a result of incurring another cost, and which 
would not have been incurred had the other cost not been 
incurred. When an unallowable cost is incurred, its 
directly associated costs are also unallowable. 
[Emphasis added] 
FAR 31.205-6, Compensation for personal services, provides in part: 
(a) General. Compensation for personal services is 
allowable subject to the following general criteria and 
additional requirements contained in other parts of this cost 
principle. 
(5) Costs that are unallowable under other 
paragraphs of this Subpart 31.2 are not allowable under this 
subsection 31.205-6 solely on the basis that they constitute 
compensation for personal services. 
(p)(2)(i) [As used in this paragraph] Compensation 
means the total amount of wages, salary, bonuses, deferred 
compensation ... and employer contributions to defined 
contribution pension plans ... for the fiscal year, whether paid, 
earned, or otherwise accruing. 
FAR 42.709, Scope, as in effect in 2004 at the time of contract award, applied to 
contracts such as Raytheon's at issue, i.e., contracts in excess of $500,000, except 
fixed-price contracts without cost incentives or any firm-fixed-price contracts for the 
purchase of commercial items. 3 It provided that: 
(a) This section implements 10 U.S.C. 2324(a) 
through 
(d) and 41 U.S.C. 256(a) through (d). It covers the 
3 The regulation in effect when Raytheon submitted its 2004 Corporate Proposal in 
2005 was substantially the 
same except that it applied to contracts in excess of 
$550,000. The current regulation applies to contracts in excess of $750,000. 
7 

assessment of penalties against contractors which include 
unallowable indirect costs in-
( 1) Final indirect cost rate proposals. 
FAR 42.709-1, General, provides that: 
(a) The following penalties apply to contracts 
covered by this section: 
(1) If the indirect cost is expressly unallowable 
under a cost principle in the FAR, or an executive agency 
supplement to the FAR, that defines the allowability of 
specific selected costs, the penalty is equal to-
(i) The amount of the disallowed costs allocated to 
contracts that are subject to this section for which an indirect 
cost proposal has been submitted; plus 
(ii) Interest on the paid portion, if any, of the 
disallowance. 
(2) If the indirect cost was determined to be 
unallowable for that contractor before proposal submission, 
the penalty is two times the amount in paragraph (a)(l)(i) of 
this section. 
( c) It is not necessary for unallowable costs to have 
been paid to the contractor in order to assess a penalty. 
(Emphasis added) 
FAR 42.709-2, Responsibilities, provides that: 
(a) The cognizant [CO] is responsible for-
(1) Determining whether the penalties in 42.709-l(a) 
should be assessed; 
8 

(2) Determining whether such penalties should be 
waived pursuant to 42.709-5 .... 
(b) The contract auditor, in the review and/or the 
determination of final indirect cost proposals for contracts 
subject to this section, is responsible for-
(1) Recommending to the [CO] which costs may be 
unallowable and subject to the penalties in 42.709-l(a); 
(2) Providing rationale and supporting 
documentation for any recommendation .... 
FAR 42.709-3, Assessing the penalty, provides that: 
Unless a waiver is granted pursuant to 42. 709-5, the 
cognizant [CO] shall-
(a) Assess the penalty in 42.709-l(a)(l), when the 
submitted cost is expressly unallowable under a cost 
principle in the FAR or an executive agency supplement that 
defines the allowability of specific selected costs; or 
(b) Assess the penalty in 42.709-l(a)(2), when the 
submitted cost was determined to be unallowable for that 
contractor prior to submission of the proposal. Prior 
determinations of unallowability may be evidenced by-
(I) A DCAA [Defense Contract Audit Agency] 
Form 1, Notice of Contract Costs Suspended and/or 
Disapproved ... or any similar notice which the contractor 
elected not to appeal and was not withdrawn by the 
cognizant Government agency; 
(2) A contracting officer final decision [COFD] which was not 
appealed; 
(3) A prior ... Board of Contract Appeals or court 
decision involving the contractor, which upheld the cost 
disallowance; or 
9 

( 4) A determination or agreement of unallowability 
under 31.201-6. 
( c) Issue a final decision ... which includes a demand 
for payment of any penalty assessed under paragraph (a) or 
(b) of this section. 
FAR 42.709-4, Computing interest, describes how interest is to be computed on 
any paid portion of a disallowed cost. 
FAR 42.709-5, Waiver of the penalty, provides that: 
The cognizant [CO] shall waive the penalties at 
42.709-l(a) when-
(a) The contractor withdraws the proposal 
[pre-audit] .... 
(b) The amount of the unallowable costs under the 
proposal which are subject to the penalty is $10,000 or 
less ... ; or 
( c) The contractor demonstrates, to the cognizant 
[CO's] satisfaction, that-
( 1) It has established policies and personnel training 
and an internal control and review system that provide 
assurance that unallowable costs subject to penalties are 
precluded from being included in the contractor's final 
indirect cost rate proposals (e.g., the types of controls 
required for satisfactory participation in the Department of 
Defense sponsored self-governance programs, specific 
accounting controls over indirect costs, compliance tests 
which demonstrate that the controls are effective, and 
Government audits which have not disclosed recurring 
instances of expressly unallowable costs); and 
(2) The unallowable costs subject to the penalty were 
inadvertently incorporated into the proposal; i.e., their 
inclusion resulted from an unintentional error, 
notwithstanding the exercise of due care. 
10 

ASBCA No. 57743 
Background 
3. At all relevant times, Raytheon accumulated Corporate Office costs at the 
corporate level and allocated 
them to business segments for inclusion in their indirect 
cost rates applied to government contracts (supp. R4, tab 271 at 2958-64; app. supp. R4, 
tab 635; tr. 3/52-55; GPFF ii 2). Raytheon's Corporate Office had an Administration 
and Services Division (A&S) (GPFF ii 3), which provided financial services to 
corporate headquarters and corporate functional areas, including, inter alia, Finance, 
Business Development (mostly located in Washington, DC, hereafter sometimes 
"Washington Office''), Contracts, and Internal Audit. The A&S Controller's Office 
was under the ·Finance function. In 2004-05 a budgets staff, consisting of a senior 
manager, four budget analysts, and support staff (hereafter "Budgets Group"), was part 
of that Controller's Office. Additional budget analysts were "embedded" in some of 
the functional areas. A&S reported to the Corporate ControllerNice President of 
Accounting. (Tr. 3/47-49, 73-74, 80-81, 4/21, 23, 5/21, 71138, 222; ex. A-6) The 
Budgets Group's primary responsibilities were to help prepare and monitor each 
Corporate Office function's annual budget forecast and prepare the annual Corporate 
indirect cost proposal (tr. 3/49, 52, 79; GPFF ii 7). 
4. At all relevant times Raytheon Corporate maintained a Corporate Government 
Accounting Office, which reported to the A&S Controller, and whose primary 
responsibilities were to oversee a government contract compliance program at 
Raytheon's segments and to provide guidance regarding application of the FAR and the 
CAS. (Tr. 3/111, 114-15, 4/60, 5/15-17, 20, 26; ex. A-6; GPFF ii 14) 
5. Raytheon has an extensive library covering compliance with government contract 
laws and regulations, including those at issue (supp. R4, tabs 100, 154 at 2087, ii 1.1; app. 
supp. R4, tabs 503, 508, 514, 520, 590, 614, 700 at 4193-94; tr. 5/93-94, 183-85, 7 /141,. 
143-45, 147, 158; GPFF ii 16; undisputed app. proposed findings of fact (APFF) ii 9) 
6. Raytheon's Government Contract Compliance Policy applied to all of its 
organizations doing business with the government. It provided that all segments, 
including IDS, were required to "maintain adequate internal controls necessary to 
ensure compliance with" the FAR and the CAS, and that the "Raytheon Corporate 
Office" was covered by the policy for applicable compliance program areas. (Supp. R4, 
tab 154 at 2087, ii 5 .1) Among guidelines for an effective compliance program, the 
policy provided that each segment have a documented procedure for preparing and 
submitting the final indirect cost rate proposal; its processes for screening and scrubbing 
for unallowable costs were adequate; and it have procedures to identify and segregate 
unallowable costs and directly associated costs such that they were excluded from 
billings to the government (id. at 2089, iii! 7.1.1, 7.1.2). 
11 

7. Raytheon's Corporate Government Accounting Office also developed a 
detailed handbook to guide its personnel, at Corporate and throughout its business 
segments, including IDS, in the preparation of incurred cost proposals. For example, . 
Raytheon's "GUIDELINES-ACCOUNTING FOR SELECTED COSTS IN 
ACCORDANCE WITH FAR PART 31" (FAR Part 31 Guidelines), revision 1, was 
issued in June 2003. The handbook has been updated about annually. (App. supp. R4, 
tab 526, see also supp. R4, tab 158; app. supp. R4, tabs 578, 631; tr. 1/203-04, 21122, 
5/18-19, 124-26, 154-56, 206-07, 7/158-59; GPFF ii 15; APFF ii 10) 
8. Annually, Raytheon's Corporate Office prepares a final indirect cost proposal 
(sometimes "Corporate Proposal"), certifies it, and submits it to the government. The 
Budgets Group typically initiates preparation of a Corporate Proposal for one fiscal year 
in January of the next fiscal year. (See supp. R4, tab 271at2901, 2967; app. supp. R4, 
tab 635; tr. 3/52-53, 79, 83; GPFF ii 26) 
9. Raytheon submitted its certified CY 2002 Corporate Proposal to the 
government on 5 June 2003. In its 21November2003 audit report, DCAA questioned 
some corporate aircraft costs, including $2,880 for alleged "public relations" use, which 
it found to be expressly unallowable and subject to a "level l" penalty under 
FAR 42.709-l(a)(l) (see finding 2). Aircraft fractional lease costs were not at issue. 
DCAA also questioned and recommended a level 1 penalty regarding certain consultant 
costs, said to be for mergers and acquisitions (M&A) planning. Raytheon disagrees that 
the costs were expressly unallowable and contends that the 2002 Corporate Proposal is 
not in question in this appeal. (Supp. R4, tab 125 at 1629-30, 1649, 1651, 1653, 1658, 
1659, 1672, 1689; see GPFF iii! 28-30, GPFF ii 31 with app. add.) 
10. Raytheon submitted its CY 2003 Corporate Proposal to the government on 
1 June 2004. In its 28 February 2005 audit report, DCAA questioned executive and 
aircraft fractional lease costs. It concluded that Raytheon had not withdrawn 60 percent 
of its aircraft fractional lease management fees, contrary to an advance agreement with 
the government, and recommended a "level 2" penalty under FAR 42.709-l(a)(2) (see 
finding 2). DCAA also questioned and recommended a level 1 penalty regarding 
lobbying costs. DCAA stated that, of $3,774,833 Raytheon reported in lobbying costs 
on its 2003 consolidated tax return, DCAA was not able to verify that Raytheon 
withdrew $1,470,996 of the costs from its 2003 Corporate Proposal. Raytheon 
disagreed with DCAA' s reconciliation method and that the costs were properly 
questioned. In this appeal, Raytheon asserts that the 2003 Corporate Proposal is not 
relevant. (Supp. R4, tab 244 at 2550-51, 2575, 2579-80, 2596-98, 2602, 2620; see 
GPFF iii\ 32-35, GPFF iJ 36 with app. add.) 
12 

Raytheon's 2004 Corporate Proposal 
11. Charles Vilandre became Raytheon's A&S Senior Manager of the Budgets 
Group in 2004. By that time he had been working at Raytheon in finance-related roles for 
more than 20 years. (Tr. 3/46-47, 4/12; ex. A-1; GPFF if 8) Before assuming his Senior 
Manager position, Mr. Vilandre had worked with his manager and Corporate Government 
Accounting on FAR issues. He also took a formal class on the FAR and one on the CAS. 
(Tr. 3/137-38) Prior to the 2004 Corporate Proposal, at issue, Mr. Vilandre took a course 
on understanding allowable and unallowable expenses. He had also received a Guidelines 
on Unallowable Costs booklet prepared by the Corporate Government Accounting Office. 
The 2004 Corporate Proposal was the first such proposal upon which Mr. Vilandre had 
worked, but the A&S Budget Group working for him had at least several years' 
experience in preparing corporate proposals. Mr. Vilandre worked closely with his 
manager and Corporate Government Accounting on the 2004 Corporate Proposal, which 
included $2.4 billion in indirect corporate office costs. (Supp. R4, tab 271 at 2901; 
tr. 4/17-19, 23-24) 
12. Raytheon's Corporate Government Accounting Office, primarily 
James Pflaumer, a former senior auditor at DCAA, who was a manager of Raytheon 
Corporate Accounting from 1999-2004 and, as of October 2005, was the manager of 
IDS Government Accounting. communicated informally with the Budgets Group. He 
typically did not discuss cost allowability with the Corporate functions. The Budgets 
Group relied upon Mr. Pflaumer's advice. (Tr. 3/111-14, 118-19, 121-22, 4/22, 25-26, 
60, 5/6, 20, 27, 34-35, 69, 87-88, 106, 152, 10/135-36; see GPFF if 21) Mr. Pflaumer 
was responsible for reviewing the draft CY 2004 Corporate Proposal prepared by the 
Budgets Group in the A&S Controller's Office. As part of the draft CY 2004 Proposal, 
the Budgets Group analysts prepared "schedules" that identified the amount of various 
costs that Raytheon would withdraw from its proposal. (Tr. 5/27-28; GPFF if 22) 
13. Raytheon Corporate prepared its CY 2004 indirect cost proposal between 
January and May 2005. Raytheon's Chief Financial Officer (CFO) and Corporate 
Controller, Biggs Porter, reviewed the proposal with the A&S Division Controller and 
the Budgets Group manager and, on 31 May 2005 Mr. Porter certified: 
This is to certify that I have reviewed this proposal to 
establish final indirect cost rates and to the best of my 
knowledge and belief: 
( 1) All costs included in this Corporate 2004 Overhead Cost 
Submission (Sections 1-9) proposal to establish final 
indirect cost rates for 2004 are allowable in accordance with 
the cost principles of the [FAR] and its supplements 
13 

applicable to the contracts to which the final indirect cost 
rates apply; and 
(2) This proposal does not include any costs which are 
expressly unallowable under applicable cost principles of 
the FAR or its supplements. 
(App. supp. R4, tab 635 at 3029) The review and certification took between a half hour 
and an hour. Raytheon submitted its proposal to the government on or about 2 June 
2005. (Supp. R4, tab 271 at 2901, tr. 3/52-53, 60-61, 127-28; GPFF ii, 27, 39) 
14. In its 27 April 2006 audit report, DCAA stated that, for CY 2004, Raytheon's 
accounting system and related internal controls were "adequate for accumulating, 
reporting and billing costs on Government contracts," which was DCAA' s highest rating 
(supp. R4, tab 271 at 2903; tr. 8/49-50). However, the auditors concluded that 
Raytheon's proposal contained expressly unallowable costs that were subject to a "level· 
I" penalty under FAR 42.709-l(a)(l), including, inter alia, costs to design and build an 
M&A Support Center Application, aircraft fractional lease costs, and lobbying and 
political activity costs (hereafter usually "lobbying" costs), addressed below (id. at 2938, 
2941, 2946). Raytheon disagrees that the costs were expressly unallowable. 
15. Rodger Christiansen, a DCMA cost analyst, was the government's principal 
negotiator for Raytheon's CY 2004 Corporate Proposal. He provided recommendations 
to then CACO Daniel Dowd concerning the final disposition of the proposal and 
testified in his deposition that he drafted the COFD at issue. Neither party called 
Mr. Christiansen as a witness. (Tr. 6/202, 204, 211-12, 215-17, 247-48, 7/64-66; see 
GPFF iii! 42-43; gov't opp'n to app. mot. to strike at 17) 
16. On 26 May 2011 CACO Dowd issued a COFD determining that Raytheon 
had included $1,410, 792 in expressly unallowable costs in its 2004 Corporate Proposal. 
The costs included, among several others: 
Outside Legal (Indra/ITECH) -- $53,944 
Recruitment (Recruiting Reminder 
Items) -- $33,456 
Washington Office (Lobbying Withdrawal) -- $224,925 
Rental Equipment (Corporate Aircraft) -- $399,832 
Outside Services (T.A.B. Associates) -- $98,769 
Outside Services (Genesee) -- $215,613 
Outside Services (Icent LLC Database) -- $200,000 
(Supp. R4, tab 306 at 3444; APFF, 42) Based upon the percentage of Raytheon's 
cost-type government contracts, provided by Raytheon, the COFD demanded that 
Raytheon pay the government $574, 192 in allegedly unallowable costs, $574, 192 in level 
14 

1 penalties under FAR 42. 709-1 (a)(l ), and $183, 748 in interest, for a total of $1,332, 132 
(supp. R4, tab 306 at 3442; see tr. 5/164, 6/27, 218, 222-23; GPFF iii! 45-46). 
17. By letter to CACO Dowd dated 26 June 2011, John G. Panetta, Raytheon's 
Senior Director of Government Accounting at its corporate headquarters (tr. 5/157), 
responded to the COFD, stating in part: 
As part of the normal process for submission, audit and 
negotiation of disputed items the Company historically has 
been able to come to a mutual agreement with the DCMA 
regarding the value of adjustments necessary to close out 
prior years . 
. . . [ I]t appears that your final decision did not take into 
consideration the appropriateness of assessing or not 
assessing a penalty and applied a blanket penalty on all 
costs. In the most recent year for which we have closed out 
(2001) penalties were not imposed. 
(Supp. R4, tab 308 at 3446) Mr. Panetta added that the COFD's payment demand was 
"significantly overstated" (id.). He included a payment of$833,114, based upon 
negotiations, and included "payment for the unallowable costs [CACO Dowd] sustained 
or previously agreed to be withdrawn including simple interest, as well as items 
[Raytheon] considered potentially subject to penalty'' (id. at 3447). However, Mr. Panetta 
stated that Raytheon disagreed that other cost categories should have been questioned or 
subject to penalties. He noted that Raytheon intended to dispute many cost items in the 
COFD that it had previously agreed to withdraw and which were included in its payment. 
18. On 19 August 2011 Raytheon appealed to the Board from the COFD. The 
Board docketed the appeal as ASBCA No. 57743. The notice of appeal mentioned the 
total $1,332,132 amount assessed in the COFD and did not exclude any of the cost 
elements cited by the CACO. However, prior to the hearing Raytheon agreed to 
withdraw the following of its 2004 Corporate costs. without conceding that they were 
unallowable, and the government withdrew its associated penalty claims: Indra, Genesee, 
and Recruiting (Reminder Items). The government also withdrew its claim regarding 
T.A.B. Associates. (Tr. 9/23-24, 72-74; ex. A-28) The remaining costs at issue in 
ASBCA No. 57743 are corporate aircraft costs, including aircraft fractional lease costs 
and costs pertaining to Raytheon's Challenger 604 aircraft; Washington Office lobbying 
and political activity costs; and corporate consultant costs to design and build an M&A 
database (supp. R4, tab 271 at 2900-01. 2923-24, 2938, 2941, 2946, 2950; app. supp. R4, 
tab 635; see GPFFs iii! 38-40, GPFF ~ 41 with app. add.; ex. A-28; tr. 9/22-24). 
15 

I. Aircraft Costs 
19. Raytheon agreed voluntarily to withdraw the aircraft costs at issue and not to 
dispute a determination that they are unallowable. However, it disputes that they are 
expressly unallowable and asserts that, even if they are deemed to be expressly 
unallowable, a waiver of penalties pursuant to FAR 42.709-5 was warranted. Raytheon 
alleges that it included the costs inadvertently, despite its exercise of due care. (App. 
pre-hearing hr. at 63; see tr. 5/162) 
A. Raytheon's Aircraft Fractional Lease Costs 
20. FAR 31.205-46, Travel costs, governs costs of using corporate-leased 
aircraft. It provided in part when Raytheon's contract was effective in January 2004 
and when it entered into an Advance Agreement in December 2003 (below): 4 
( d) Airfare costs in excess of the lowest customary 
standard, coach, or equivalent airfare offered during normal 
business hours are unallowable except when such 
accommodations require circuitous routing, require travel 
during unreasonable hours, excessively prolong travel, result 
in increased cost that would offset transportation savings, 
are not reasonably adequate for the physical or medical 
needs of the traveler, or are not reasonably available to meet 
mission requirements. However, in order for airfare costs in 
excess of the above standard airfare to be allowable, the 
applicable condition(s) set forth above must be documented 
and justified. 
( e )(1) "Cost of travel by contractor-owned, -leased, 
or -chartered aircraft," as used in this paragraph, includes 
the cost of lease, charter, operation (including personnel), 
maintenance, depreciation, insurance, and other related 
costs. 
(2) The costs of travel by contractor-owned, -leased, 
or -chartered aircraft, are limited to the standard airfare 
described in paragraph (d) of this subsection for the flight 
destination unless travel by such aircraft is specifically 
required by contract specification, term, or condition, or a 
higher amount is approved by the [CO]. A higher amount 
4 Although numbered differently, FAR 31.205-46 contained similar provisions at the 
time Raytheon submitted its 2004 Corporate 
Proposal. 
16 

may be agreed to when one or more of the circumstances 
for justifying higher than standard airfare listed in 
paragraph ( d) of this subsection are applicable, or when an 
advance agreement under subparagraph ( e )(3) of this 
subsection has been executed. In all cases, travel by 
contractor-owned, -leased, or -chartered aircraft must be 
fully documented and justified .... 
(3) Where an advance agreement is proposed (see 
[FAR] 31.109 [role and requirements of advance 
agreements]), consideration may be given to the following: 
[cost, availability, convenience, flexibility, and efficiency 
factors]. 
21. During 2003 and 2004, Raytheon maintained one corporate-owned aircraft­
a Hawker; one leased aircraft-a Challenger; and it participated in an aircraft fractional 
lease program, which gave it the right to a fraction of the usage of a pool of private 
aircraft shared with other fractional lessees. This allowed Raytheon access to aircraft 
and crew on an as needed basis without the full costs, manpower and administrative 
tasks attendant to aircraft ownership. (See supp. R4, tab 128 at 1728-29, i! A.; 
tr. 3/166-68; 4/115; GPFF iii! 59-60) Raytheon does not contend that its use of aircraft 
fractional leases was required by contract. 
22. On 11 December 2003, then CACO John McGrath issued to Raytheon a 
"[COFD]/Demand Letter- Penalties for Unallowable Costs (CY 1999)," which 
assessed $875,212 in penalties and interest on certain costs determined to be expressly 
unallowable. The CACO assessed level 2 penalties on the cost of Raytheon's private 
aircraft pursuant to FAR 42.709-l(a)(2). The parties agree that the government 
penalized Raytheon for failing to remove the cost of using private aircraft from its 
CY 1999 incurred cost proposal in excess of an agreed-upon limit. Raytheon did not 
appeal this COFD, and it paid the penalties assessed on the private aircraft 
costs. (Supp. 
R4, tab 127 at 1723-25; tr. 5/64-66, 170-72; see GPFF i! 58) Raytheon disputes the 
relevance of the 1999 costs to this appeal. 
23. In December 2003 CACO McGrath and Raytheon executed an Advance 
Agreement on the Allowability of Aircraft Fractional Lease Costs (December 2003 
Advance Agreement). It provided in part: 
I. PURPOSE: 
17 

The specific requirements regarding the recovery of 
aircraft fractional lease costs are set forth in FAR 
3 l.205-46(e). These requirements form the basis for 
the terms and conditions of this Advance Agreement 
which authorizes the recovery of travel costs in excess 
of standard commercial airfares. Pursuant to the 
criteria established under FAR 31.205-46( e )(3 ), the 
Defense Corporate Executive (DCE) has determined 
that the benefits of the aircraft fractional lease (e.g. 
timesavings, more effective use of personnel, increased 
security) outweigh any additional travel costs that may 
occur from such use. Additionally, this Advance 
Agreement is also issued to enable the parties to 
streamline the negotiation process, for the settlement of 
Raytheon's final overhead/incurred cost claims, by 
providing a mutually agreed upon procedure for 
proposing, evaluating, and negotiating the associated 
aircraft fractional lease costs. 
II. TERMS AND CONDITIONS: 
(a) Aircraft Fractional Lease and Associated 
Costs 
This Advance Agreement is applicable for all the 
costs associated with an aircraft fractional lease 
(including rental payments, management fees, 
hourly rates, fuel, and other fees and related 
expenses) .... 
C. Recoverable Aircraft Fractional Lease Costs 
Total aircraft fractional lease costs will be reduced for 
all "unallowable/unallocable trips" which Raytheon will 
voluntarily withdraw for the purpose of overhead 
recovery. The balance of the aircraft fractional lease 
costs will be classified as allowable expenses subject to 
the application of a sixty percent ( 60%) disallowance 
factor. This disallowance factor is applicable to all 
aircraft fractional lease expenses as described [above]. 
18 

The remaining forty percent ( 40%) will be considered 
recoverable aircraft fractional lease costs subject to the 
results of an "unallowable/unallocable trips" review [by 
DCAA] as part of its audit of the Company's annual 
final overhead rate/incurred cost claim. 
(Supp. R4, tab 128 at 1728-29; see tr. 31167-68; GPFF ,, 62-68) The December 2003 
Advance Agreement 
and its 60% "disallowance factor" applied to aircraft fractional 
lease costs incurred by Raytheon from 1 January 2003 through 31 December 2005 and 
to aircraft fractional lease costs paid by the Raytheon Corporate Office from July 2002 
to December 2002 (supp. R4, tab 128 at 1730). The Budgets Group's Senior Manager, 
Mr. Vilandre, acknowledged that Raytheon was required under the agreement to 
withdraw aircraft fractional lease costs from its Corporate Proposal that exceeded the 
40% recovery rate (tr. 31171, 173, 175; GPFF, 69). 
24. On 1 June 2004 Raytheon submitted its 2003 Corporate Proposal, which 
contained costs associated with its CY 2003 aircraft fractional lease, including 
management fees of $559,037, to which it did not apply the then applicable 60% 
disallowance factor of $335,422, contrary to the December 2003 Advance Agreement. 
DCAA's 28 February 2005 audit report on the proposal states that the parties agreed 
that the questioned costs of $335,422 were unallowable. DCAA recommended a level 2 
penalty. The report states that DCAA discussed its audit results with Mr. Vilandre; he 
concurred with DCAA's questioning of the $335,422 in aircraft fractional lease 
management fees; and DCAA provided him with a copy of its draft report in a final exit 
conference on 13 December 2004. He received the final report shortly after 
28 February 2005. (Supp. R4, tab 244 at 2550-51, 2555, 2579-81; tr. 3/178, 180; see 
GPFF ,, 70-72) CACO Dowd never assessed DCAA's recommended penalties for 
Raytheon's FY 2002 or 2003 costs. He deemed it too late to do so after he became 
CACO in December 2006. (Tr. 6/205, 212-14) 
25. Kathleen Giovannini, a Consulting Budget Analyst in Mr. Vilandre's 
Budgets Group, who had served as a budget analyst for 38 years, was responsible for 
executive aircraft and M&A cost 
collections and withdrawals in Raytheon's corporate 
proposals. She had performed executive aircraft expense withdrawals since the 1990's, 
but the aircraft fractional lease arrangement was new to her and to Raytheon. 
(Tr. 3/178, 187, 41106-07, 115, 134-37, 141) 
26. A new Chief Executive Officer, William Swanson, had taken over at 
Raytheon in July 2003 and had brought his fractional leased aircraft with him from 
Raytheon's Electronic Systems business segment. In late 2003 or early 2004, 
Ken Eldridge, Raytheon's A&S Division Controller (tr. 4/21), created a cost center for 
the aircraft to which Flight Operations assigned all of the costs regarding who was being 
charged for usage, etc. Ms. Giovannini, who was then responsible for the cost center, 
19 

would gather those costs. However, at the time, and into 2004 when she prepared her 
portion of the 2004 Corporate Proposal (below), she was unaware that there were 
aircraft fractional lease management fees and lease expenses that were going to other 
executive cost centers that had nothing to do with the aircraft. The aircraft fractional 
leasing company issued three separate invoices per month-one for usage costs, one for 
management costs and one for lease fees. Ms. Giovannini withdrew 60% of the costs 
on the usage invoices, which included hourly charges, fuel costs, facilities fees, 
catering, and landing charges and appeared to her to include all fractional lease costs. 
She was not aware at the time that there were also lease and management fees. Every 
other aircraft cost center with which she had worked had consolidated costs in one 
monthly invoice. The 60% disallowance factor was not applied to the lease and 
management fees but Ms. Giovannini testified 
credibly that Raytheon did not knowingly 
fail to do so. (Tr. 3/179, 186, 193, 196-98, 41120, 125-26, 130-31, 142-43) 
27. Mr. Vilandre did not recall whether he had provided a copy of DCAA's 
audit report for 2003 to Ms. Giovannini but he stated that he remembered discussing the 
2003 problem with her and the need to correct it (tr. 3/180-82). He elaborated: 
{Tr. 3/182-83) 
A I would have discussed it with [Ms. Giovannini]; I 
wasn't there when the 2003 overhead proposal. was 
prepared or submitted. So, I told her about the issue and 
we talked about that we needed to have 
the issue fixed 
going forward. And we thought we did fix it in 2004. 
Q Why did you think you had fixed it for 2004? 
A Because the costs came to us in 2003 from a 
business. They followed the CEO when he came from 
the business to become the CEO of Raytheon. And we 
didn't allocate the costs for the fractional program in 
2003; they were allocated by the executive aircraft 
center, which is not what we normally do. 
And we didn't have a cost center for this cost in 
2003, so it didn't have its own department. We opened 
the department for our cost center in 2004 and we 
thought that the costs were 
being collected there. 
28. On or about 15 February 2005 Raytheon and CACO McGrath entered into 
an Advance Agreement on the Allowability of Aircraft Fractional Lease Costs 
(February 2005 Advance Agreement). The agreement, effective from 1 January 2004 
20 

through 31 December 2005, superseded its predecessor. It contained the same 
provisions quoted above (finding 23 ), except it increased the disallowance factor from 
60 to 66%. Mr. Pflaumer of Corporate Government Accounting sent the agreement on 
16 February 2005 to Controller Eldridge for review, distribution and compliance. 
Mr. Vilandre received a copy before he completed Raytheon's incurred cost submission 
for 2004. (Supp. R4, tab 243 at 2546, 2548-49; tr. 31177; see GPFF ,, 75-83) 
29. Under the February 2005 Advance Agreement, as in the December 2003 
Advance Agreement, Raytheon was first to reduce total aircraft fractional lease costs for 
all unallowable and unallocable trips, which Raytheon would voluntarily withdraw for 
the purpose of overhead recovery. The balance of the aircraft fractional lease costs 
would be classified as allowable subject to the application of the new 66% disallowance 
factor, which applied to all aircraft fractional lease expenses, including inter alia, rental 
payments and management fees. (Supp. R4, tab 243 at 2547-48) 
30. Raytheon's 2004 Corporate Proposal, submitted on 2 June 2005, contained 
costs associated with its CY 2004 aircraft fractional lease, including lease or usage costs 
and fixed management fees. Raytheon did not apply any disallowance factor to the 
management fees. For the usage costs, it applied a disallowance factor but did not use 
the 66% factor called for by the February 2005 Advance Agreement. (Supp. R4, 
tab 271at2941-42, tab 350; tr. 3/185, 4/116, 120; GPFF ,-r, 83-90) 
31. Ms. Giovannini began work on her executive aircraft withdrawals for 
Raytheon's 2004 Corporate Proposal in about mid to late January 2005 and probably 
completed it in February 2005. She was aware in 2004 that Raytheon had a fractional 
lease agreement for an aircraft and she was aware in 2005, when she prepared an "[A&S] 
Division, 2004 Overhead Submission, Executive Aircraft Withdrawals-Summary," that 
Raytheon had an Advance Agreement with the government concerning aircraft fractional 
lease costs (Supp. R4, tab 350; tr. 41116-17) Ms. 'Giovannini was not sure when she saw 
or read the Advance Agreement, who gave it to her or when, or whether she had received 
the February 2005 Advance Agreement before she completed her 2004 cost submission 
(tr. 4/119). She kept copies of the Advance Agreements pertinent to the aircraft for 
which she was responsible for withdrawing costs (tr. 4/117-18, 121-22). 
32. Ms. Giovannini believed that she received a copy of the 28 February 2005 
audit report for 2003 but she did not know when. She also believed that, in 2004 and 
2005, Mr. Eldridge or Mr. Vilandre would have received DCAA's audit reports on 
Raytheon's indirect cost proposals. Thereafter 
she received a copy of the portions 
relevant to her work. She did not believe she received the audit report findings for 2003 
before she had completed all of her calculations for 2004 because she would not 
knowingly have made DCAA 's cited error concerning Raytheon's failure to comply 
with the 2003 Advance Agreement's 60% withdrawal factor. She testified that 
Mr. Vilandre did not tell her about the audit finding for 2003 before she had completed 
21 

her work for 2004. She believed that, if she had known about it, she would have 
reviewed her withdrawal submission and corrected it herself or with Mr. Vilandre. (Tr. 
4/120-22) The government contends that Mr. Vilandre was not credible (gov't reply br. 
at 17). While neither Mr. Vilandre nor Ms. Giovannini was certain about timeframes 
and their testimony occasionally suffered from speculation about what he or she "would 
have" done, the Board nonetheless found Mr. Vilandre to be a credible witness. 
33. For her portion of Raytheon's CY 2004 Corporate Proposal, Ms. Giovannini 
relied upon an aircraft fractional lease invoice sent to her from Raytheon's Flight 
Operations center. The invoice listed, by user, the flight location and costs. She applied 
the disallowance factor to all of the costs that were on the invoice and looked at each 
flight to determine cost allowability. She believed that all of the costs were on the 
invoice because that was all she received. She was not aware at that timeframe that there 
were also lease and management fees to consider. {Tr. 41130-32) Because the 
28 February 2005 audit report on Raytheon's 2003 Corporate Proposal noted the 
omission of the lease and management fees (finding 10), this suggests that 
Ms. Giovannini did not have her portion of the report at the time of her submission for 
2004 or that she overlooked this aspect of the report. Her ignorance of the lease and 
management fees also suggests that Mr. Vilandre's intended correction of the 2003 
problem occurred 
after she submitted her portion of Raytheon's 2004 Corporate Proposal. 
34. Based upon the forgoing, we find that Ms. Giovannini's receipt of the portion of 
the 28 February 2005 audit report relevant to her work likely occurred after her submission 
of her material for Raytheon's 2004 Corporate Proposal, which she believed was in 
February 2005. In any case, similarly to Mr. Vilandre, Ms. Giovannini testified: 
(Tr. 41122) 
Q So, you don't believe you learned of the audit 
finding on 2003 until after the 2004 proposal had been 
submitted? 
A Correct. And even if I had, we're talking about 
2003. 2003. We believed in 2004, when we created a cost 
center for the fractional, that everything was taken care of. 
35. Regarding his review of Ms. Giovannini's "[A&S] Division, 2004 Overhead 
Submission, Executive Aircraft Withdrawals - Summary" (supp. R4, tab 350), 
Mr. Pflaumer testified: 
22 

Q Can you tell from this schedule, Mr. Ptlaumer, 
whether the management fees for the fractional lease aircraft 
have been captured? 
A Not specifically. 
Q For purposes of your review of this schedule, did 
you assume that Ms. Giovannini had taken the necessary 
steps to apply the disallowance factor to all of the fractional 
lease costs? 
A In general. or are you still talking about the 
management fees? 
Q All of the costs, the management fees, the usage 
fees, the other fees? 
A The assumption would be that, yes, on the top of -
where it has the disallowance factor, that that would have 
been applied to all of the appropriate costs. 
(Tr. 5/68-69; see GPFF ~ 23) 
36. In its 27 April 2006 audit report on Raytheon's 2004 Corporate Proposal 
DCAA questioned $399,832 in aircraft costs. It found them to be expressly unallowable 
and subject to a level 1 penalty. Of the $399,832, $336,892 were said to be unallowable 
aircraft fractional lease costs and management fees that had not been reduced by the 
60% disallowance factor set in the 2003 Advance Agreement. · DCAA erroneously did 
not cite the then applicable 66% disallowance factor set in the 2005 Advance 
Agreement. The parties agree that if it had done so, unallowable aircraft fractional 
lease management fees would have totaled $350,567 and unallowable aircraft fractional 
lease usage costs would have totaled $45,360. (Supp. R4, tab 271at2941; GPFF 
'if'il 86-91) Mr. Vilandre acknowledged that the problem of Raytheon's not applying the 
agreed upon disallowance factor was the one that had occurred in 2003 (tr. 3/185). 
37. In his 26 May 2011 COFD on Raytheon's 2004 Corporate Proposal, the 
CACO assessed level 1 penalties on Raytheon's proposed aircraft fractional lease costs 
totaling $399,832, consistent with DCAA's 2006 audit report. There has been no 
COFD claiming an increased amount based upon the 66% disallowance factor, but the 
government claims the increased amount ($350,567 in unallowable aircraft fractional 
lease management fees plus $45,360 in aircraft fractional lease usage costs) in this 
appeal. (Supp. R4, tab 306 at 3444 (Rental Equipment), see tab 271 at 2941; see, e.g., 
tr. 3/211; GPFF 'if~ 86, 88, GPFF 'if 91 and app. adds.; gov't br. at 85) 
23 

38. In his 26 June 2011 letter to CACO Dowd regarding his final decision, 
Mr. Panetta advised: 
Rental Equipment ($399.832) - [Raytheon] disagrees with 
the application of a level one penalty as these costs are not 
expressly unallowable under a cost principle in the FAR. 
Furthermore, [Raytheon] views this scenario as warranting a 
waiver of penalty under 42.709-5(c). [Raytheon's] failure to 
reduce fractional aircraft costs by the agreed to unallowable 
factor was an oversight and was inadvertently incorporated 
into the 2004 incurred cost claim notwithstanding the 
exercise of due care at that time. To guard against the 
problem recurring, the Company subsequently established 
policies, training, and revised practices designed to ensure 
these costs are properly withdrawn in future claims. As 
evidence that this process is working as intended, in the last 
6 incurred cost claims (2005-2010) these costs have been 
properly withdrawn. 
(Supp. R4, tab 308 at 344 7-48) 
39. When Mr. Vilandre received DCAA's audit report in 2005 covering the 
2003 Corporate Proposal he did not inquire of the business segment that had handled the 
aircraft fractional lease costs previously to try to determine what all of the costs were. 
He did not ask the Executive Aircraft Group to provide him with all of the invoices 
from Flight Operations for the aircraft fractional lease so that he would know what all of 
the costs were. (Tr. 3/198-99) There is also no evidence that Ms. Giovannini, the key 
aircraft cost accumulator for purposes of Raytheon's corporate proposals, made any 
such inquiries. There is no evidence that she asked at any time, even after learning of 
the errors in the 2003 Corporate Proposal concerning the lease and management fees 
portion of the aircraft fractional lease costs, about the nature and extent of those costs 
and how and where they were recorded at Raytheon. Although Raytheon made 
different mistakes in 2003 and 2004 concerning 
its aircraft fractional lease costs, in both 
years it failed to apply the disallowance factors set in the applicable Advance 
Agreements and to withdraw the resulting aircraft fractional lease costs in dispute from 
its Corporate Proposals for 2003 and 2004 (tr. 3/185; GPFF ~ 95 and app. add.). We 
find that Raytheon· s aircraft fractional lease cost withdrawal errors were inadvertent 
(see, e.g., finding 26), but we do not make an ultimate finding concerning due care 
because we conclude (below) that the aircraft fractional lease costs were not expressly 
unallowable under a FAR cost principle or agency FAR Supplement and, thus, were not 
subject to penalty or issues pertaining to penalty waiver. 
24 

8. Raytheon's Challenger 604 Aircraft Costs 
40. The second relevant aircraft cost at issue in DCAA's 27 April 2006 audit 
report on Raytheon's 2004 Corporate Proposal and in CACO Dowd's 26 May 2011 
COFD involved the $62,940 balance of the $399.832 in aircraft costs DCAA found to 
be unallowable and subject to a level 1 penalty. That balance pertained to Raytheon's 
costs to lease a private aircraft. the Challenger 604. As DCAA described it: 
The remaining $62.940 represents the difference 
between Hawker and Challenger aircraft advance 
agreements. The 62 percent disallowance contained in the 
Hawker aircraft advance agreement was also used to 
develop the claimed amounts for the Challenger aircraft due 
to the lack of a Challenger advance agreement. An advance 
agreement was subsequently agreed to for the Challenger 
aircraft that contained a 66 percent disallowance factor. The 
$62,940 adjustment represents the application of the 
additional disallowance contained in the Challenger advance 
agreement. 
(Supp. R4, tab 271 at 2941) 
41. On 1 April 2004 Raytheon entered into a lease for the Challenger aircraft, 
which entered service on 29 April 2004. It was used exclusively by Raytheon. By letter 
to CACO McGrath dated 23 March 2005. Raytheon sent a proposed Advance Agreement 
to authorize the recovery of travel costs in excess of standard commercial airfares, as 
with its aircraft fractional lease and its company-owned Hawker aircraft. It proposed a 
35% recovery rate, or 65% disallowance factor. (App. supp. R4, tab 629; supp. R4, 
tab 248 at 2663; tr. 3/213; GPFF ~ 108) 
42. On 20 April 2005 DCAA issued an audit report on Raytheon's Advance 
Agreement proposal. DCAA concluded that Raytheon's assumption of an 80% 
executive productivity rate during flight was excessive and unreasonable. DCAA 
applied a 50% productivity rate and arrived at an overall 32% recovery rate, or 68% 
disallowance factor. (Supp. R4, tab 248 at 2660, 2663) 
43. By the time of its 2 June 2005 2004 Corporate Proposal, although it was 
negotiating 
with DCMA, Raytheon did not yet have an Advance Agreement with the 
government concerning the Challenger aircraft. Ms. Giovannini prepared the 2004 
recoverability analysis for the Challenger 604 aircraft in January and February 2005. In 
consultation with Mr. Vilandre, as a "placeholder·· rate. she used the same 38% 
recoverability rate. or 62% disallowance factor, contained in Raytheon's Advance 
Agreement covering the Hawker aircraft it owned, deeming that to be solid precedent. 
25 

Raytheon planned to "true-up" to the rate to which the parties ultimately agreed. 
(Tr. 3/214, 216-18, 221, 5177-78 (Ptlaumer dep. testimony); GPFF ~ 114 with app. add.) 
44. In October 2005 Raytheon and CACO McGrath executed an Advance 
Agreement on the Allowability of Raytheon Challenger Aircraft Costs which required 
Raytheon to apply a 66% disallowance factor to its Challenger costs after deducting 
unallowable/unallocable trips, resulting in a 34% recovery rate. The agreement applied to 
costs from 1 January 2004 through 31 December 2005. Raytheon represents that, during 
final indirect cost rate negotiations, it agreed to withdraw the difference between its 
"placeholder" recovery rate and the recovery rate specified in the October 2005 Advance 
Agreement. It does not challenge the unallowability determination for what it states to be 
$78,949, but it disputes the government's penalty assessment. (Supp. R4, tab 260; 
tr. 3/223-24, 6/235-36; GPFF ~~ 116-17; APFF ~ 54; app. br. at 50, discussing GPFF ~ 118) 
II. Lobbying Costs 
45. FAR 
31.205-22, Lobbying and political activity costs, provides in 
subparagraph (a) that "f c ]osts associated with the following activities are unallowable:" 
The list includes certain lobbying and political activities, which are subject to 
exceptions covered in subparagraph (b ). Subparagraph ( c) states: 
When a contractor seeks reimbursement for indirect costs, 
total lobbying costs shall be separately identified in the 
indirect cost rate proposal, and thereafter treated as other 
unallowable activity costs. 
46. FAR 31.201-6( e )(2) provides that: 
Salary expenses of employees who participate in activities 
that generate unallowable costs shall be treated as directly 
associated costs to the extent of the time spent on the 
proscribed activity, provided the costs are material in 
accordance with subparagraph ( e )( 1) above (except when 
such salary expenses are, themselves, unallowable ). The 
time spent in proscribed activities should be compared to 
total time spent on company activities to determine if the 
costs are material. [Emphasis added] 
47. Raytheon's General Policy and Procedure No. 23-3045-110, 
"IDENTIFYING AND REPORTING LOBBYING ACTIVITY COSTS," effective 
13 December 1984, provides at~ 5 .1.2, Associated Lobbying Activity Costs, that: 
26 

a. The lobbying activity costs defined above [under 
~ 5 .1.1, describing unallowable lobbying activity 
costs] include the applicable portions of salaries of 
employees and fees of individuals or firms engaged 
in lobbying activity on behalf of Raytheon .... 
(Supp. R4, tab I 00 at I 00 I) Mr. Vilandre identified labor costs as costs associated with 
Raytheon's employees performing unallowable lobbying activities and opined that, 
under FAR 3 l .205-22(a), those labor costs are unallowable. Mr. Vilandre also 
acknowledged that, in the above policy, Raytheon identifies salary as a cost associated 
with unallowable lobbying activity. (Tr. 3/63-64, 66) Raytheon's Company Policy 
No. 6-RP, "Overhead and G&A Rates for Accounting and Provisional Billing Purposes 
(Excluding Unallowable Costs)," effective 26 June 2002, provides at~ 6.2 that: 
Unallowable costs are to be identified, accounted for 
separately, and excluded from recoverable accounts for 
determining final recoverable rates. Unallowable costs are 
expressly unallowable costs, costs which are agreed with the 
government [COs] to be unallowable costs, and directly 
associated costs. Examples of expressly unallowable costs 
include .. .lobbying .... 
(Supp. R4, tab 111 at 1233) Messrs. Vilandre and Panetta acknowledged that this 
policy states that lobbying is an expressly unallowable cost (tr. 3/67, 51162). 
48. Raytheon's lobbying activities are concentrated at its Washington Office, 
where its employees record the time they spend on lobbying. Raytheon has an 
embedded "Finance Department" there, which it describes as a "Corporate A&S Budget 
Analyst," primarily responsible for assessing cost allowability. (Supp. R4, tab 352 at 
5188-89; tr. 4/59-60, 5/87, 6/131-32, 200; undisputed portion of APFF ~ 61) 
49. In 2004, to withdraw its unallowable 
lobbying costs, Raytheon made a 
"good faith estimate" of the hours its Washington Office employees spent on covered 
lobbying activities, based upon the Lobbying Disclosure Act of 1995, 2 U.S.C. § 1601 
et seq. (2004 ), which in 2004 required that companies engaged in _lobbying report to 
Congress "a good faith estimate of the total expenses that the [company] and its 
employees incurred in connection with lobbying activities during the semiannual filing 
period," and stated that estimates over $10,000 were to be "rounded to the nearest 
$20,000," 2 U.S.C. §§ 1604(b)(4) and (c)(l). 5 For purposes of these appeals, the 
government does not challenge Raytheon's methodology. (Tr. 7/253-54, 8/34; 
undisputed portion of APFF ~ 61) To create a disallowance factor for withdrawing 
5 Section 1604 was amended in 2007 but the amendments are immaterial to this decision. 
27 

unallowable lobbying costs from its 2004 Corporate Proposal, Raytheon calculated a 
ratio. The numerator was the total annual disallowed lobbying hours based upon 
timesheets. The denominator-1,880 labor base hours for each employee included in 
the numerator-was based upon a standard 2,080-hour work year per lobbyist ( 40 hours 
per week times 52 weeks), minus paid time off (holiday and vacation). (Supp. R4, 
tab 271at15571, tab 361; tr. 4/70-74, 78) 
50. Ms. Donna Ferrero, a Consulting Budget Analyst in Mr. Vilandre's Budgets 
Group at Raytheon's Controller's Office (see supp. R4, tab 271at15571), was responsible 
for developing the disallowance factor used to withdraw lobbying costs from Raytheon's 
2004 Corporate Proposal. She first became responsible for that task when she prepared 
the lobbying withdrawal for the 2001 Corporate Proposal. She did not have written 
instructions. She met with her predecessor and her supervisor, who explained the purpose 
of, and the steps required to calculate, the disallowance factor. (Tr. 4/52, 57-58) 
51. To calculate the lobbying _disallowance factor for 2004, Ms. Ferrero reviewed 
her prior year's spreadsheet; talked to Greg Reynolds, a supervisor in her department who 
assembled Raytheon's lobbying disclosure reports to Congress; and talked to individuals 
in the Washington Office. She first reviewed a report by Mr. Reynolds. Judy Pauletich, a 
legislative research analyst at the Washington Office (supp. R4, tab 271at15571), 
provided the lobbying information to him through time sheets and cover memoranda. He 
sent a copy of his report of lobbying activities for 2004 to Ms. Ferrero and others at 
Raytheon on 1 February 2005. It did not include the time sheets and Ms. Ferrero did not 
see them in making her lobbying withdrawal calculations for the 2004 Corporate Proposal. 
(Supp. R4, tabs 148, 242; tr. 4/65-69, 82; APFF ~ 64) 
52. On 1 July 2004 Ms. Pauletich sent "Lobbying Reports" (timesheets) to 
Mr. Reynolds. The cover memorandum noted that a Mr. Hickey's employment had 
terminated on 23 April 2004 and a Ms. Norton's had terminated on 11 June 2004. It stated 
that, as Ms. Pauletich received missing reports, she would fax them to Mr. Reynolds. Later 
in July 2004, she sent Lobbying Reports to him for four individuals. On or about 
1 November 2004 and 31 January 2005, respectively, Ms. Pauletich sent Third and Fourth 
Quarter Lobbying Reports to Mr. Reynolds. In the Fourth Quarter report the period 
covered for most of the listed employees was October through December 2004, but for a 
Mr. Lynn it was October through November 2004 and for a Ms. Donalty it was November 
2004. The report noted that Ms. Donalty had been hired on 8 November 2004. (Supp. R4, 
tab 148 at 1988, tabs 149-50, 194, 241; tr. 4/67) Mr. Reynolds' lobbying report, used by 
Ms. Ferrero, did not include Ms. Pauletich's notes about employees' work terminations and 
hiring (supp. R4, tab 242). The significance of the fact that three Washington Office 
employees had worked for only part of 2004 was that they "were not to receive a full 
year's .. .labor base allocation" (APFF ~ 64 ). 
28 

53. Ms. Ferrero's second step in computing the lobbying disallowance factor was to 
look at a spreadsheet in Mr. Reynolds' report and the hours listed for the named 
individuals. If anyone had a zero balance she would consult with Mr. Reynolds to 
determine the reason. Next she would calculate the disallowance factor based upon the 
foregoing ratio. Mr. Hickey and Ms. Norton were shown with a zero balance for the 
second half of 2004. Ms. Ferrero highlighted their names and consulted with the 
Washington Office, who informed her that they had both left the company. (Supp. R4, 
tabs 245, 361 at 418; tr. 4/70-72) She intended to reduce the denominator in the ratio used 
for lobbying withdrawals with respect to them, as she had in similar situations for all 
previous years she had worked on this task, but she stated "for some reason, this year in 
2004 I missed it" (tr. 4/73). Ms. Ferrero did not notice that Mr. Reynolds' spreadsheet also 
showed zero hours for the first half of 2004 for Ms. Donalty and Mr. Lynn. She 
subsequently learned that Mr. Lynn had lobbying hours in the first half of 2004. She did 
not know why they were not reported. (Supp. R4, tab 242 at 2544; tr. 4174-77) 
54. In addition to the proration errors, Ms. Ferrero's 
disallowance factor 
calculations erroneously included hours for work by CEO Swanson. He should not 
have been included because his labor hours were withdrawn elsewhere. The effect of 
including his hours in the lobbying schedule, when a minimal amount of his time was 
spent on unallowable lobbying, was that this understated the percent oftime that the 
Washington Office as a whole was working on unallowable cost matters. (Supp. R4, 
tab 361; tr. 4/79-83, 99) Ms. Ferrero did not make this error in her submittals for 2003 
and 2005, but it was something she "missed in 2004" (tr. 4/80). 
55. The lobbying disallowance factor calculated by Ms. Ferrero was 19%. From the 
total costs of its Congressional Relations Cost Center (apparently also referred to as 
Governmental Cost Center, Government Relations Department, or Business Development 
Group) Raytheon subtracted all expenses coded as unallowable, leaving a recoverable 
amount, to which it applied the 19%, resulting in the amount it would withdraw from its 
overhead proposal. (Supp. R4, tab 271at15571, tab 362 at6083; tr. 3/231, 4/72, 78-79, 83) 
56. In its 27 April 2006 audit report DCAA questioned $242,655 in lobbying 
and political activity 
costs incurred by Raytheon's Congressional Relations Cost Center 
and included in Raytheon's 2004 Corporate Proposal. DCAA found that Raytheon did 
not have time logs for three lobbyists who were engaged in political activities, totaling 
518 disallowed lobbying hours, and consequently it did not withdraw the 
related costs 
from its incurred costs. Also, time logs from six other lobbyists were not accounted for 
correctly due to time log misinterpretations, omissions and math errors, resulting in 501 
disallowed lobbying hours. Lastly, Raytheon understated its voluntary withdrawal by 
including a full year of hours in its base of total available hours for three lobbyists who 
were employed for only part of a year. DCAA found the costs to be expressly 
unallowable under FAR 31.205-22 and subject to a level 1 penalty. (Supp. R4, tab 271 
at 15548, 15570-72; ex. A-18) 
29 

57. By email to DCAA of 13 December 2007, Mr. Vilandre stated in part: 
After reviewing the calculations provided by DCAA relative 
to the lobbying costs noted resulting from missing time 
sheets for three employees, time sheets for six employees 
that were not accounted for correctly, and the adjustment in 
hours for three employees who worked for less than a full 
year, we agree that the CY 2004 lobbying withdrawal was 
understated by $242,655. 
(Supp. R4, tab 290 at 3198) 
58. Ms. Ferrero always tried to do her best but she realized she had made some 
errors. After DCAA's audit report on the 2004 Corporate Proposal, Mr. Vilandre and 
Ms. Ferrero 
improved the methodology by which Raytheon's lobbying withdrawal was 
prepared. Instead of relying upon and matching Raytheon's Congressional lobbying 
reports, Ms. Ferrero received the timecards from Raytheon's Business Development 
Group and reviewed them herself. (Tr. 3/232, 4/83, 89) 
59. During negotiations regarding the 2004 Corporate Proposal, Raytheon 
proposed a new calculation ofunallowable lobbying costs at $224,925, which DCAA 
and DCMA accepted and was the amount stated by CACO Dowd in his 26 May 2011 
COFD (see R4, tab 306 at 3444; tr. 6/119-21; GPFF iJ 141; finding 16). 
60. In his 26 June 2011 letter to CACO Dowd, Mr. Panetta advised: 
Washington Office ($224,925) - [Raytheon] disagrees with 
the application of a level one penalty as these costs are not 
expressly unallowable under a cost principle in the FAR. 
Our disagreement with the DCAA centers around the 
adequacy of the supporting documentation for our lobbying 
withdrawal and that alone does not make the costs expressly 
unallowable. Although we have agreed to withdraw a 
portion of the Washington Office costs, we did not agree to 
withdraw them on the basis of their being expressly 
unallowable and therefore subject to penalty. 
(Supp. R4, tab 308 at 3448) 
61. During his litigation preparation, James Higgins, a DCAA auditor who had 
audited Raytheon's 2004 lobbying withdrawal proposal (tr. 6/50-51 ), discovered that he 
had made or might have made errors in questioning the original $242,655 in lobbying 
30 

costs. First, at the time of Mr. Higgins' audit he was missing a timesheet for 102 hours of 
Ms. Donalty's time in December 2004 and he questioned that amount. He later received 
the timesheet and added the 102 hours into his calculations, without considering that it 
was possibly the same I 02 hours already included by Raytheon but previously 
unsupported. It might not have been correct to add those hours back in. (Tr. 6/105-06, 
120-21, 169) Raytheon did not attempt to show at the hearing that it had included 
Ms. Donalty's hours in its original lobbying calculation. Secondly, Mr. Higgins 
acknowledged that he mistakenly questioned 32 hours of weekend time that should not 
have been treated as unallowable (tr. 61168-69). Lastly, Mr. Higgins acknowledged that 
Raytheon withdraws unallowable costs in other schedules before computing its lobbying 
withdrawal and that, because he did not audit the other schedules, he could not testify 
conclusively that 252 lobbyist hours included in his calculation of Raytheon's alleged 
underwithdrawals were not withdrawn elsewhere, hypothetically resulting in double 
counting. (Supp. R4, tab 363; tr. 61154-65) He did not think that had occurred, however, 
because DCAA examined the hours that make up an individual's payroll and, if Raytheon 
prepared its financial statements according to generally accepted accounting principles, 
salaries would not have been included in Raytheon's cost elements referred to by the 
government, described as "other" (tr. 6/63-64 ). Raytheon did not offer evidence that 
DCAA had double counted 252 hours. 
62. Raytheon disputes the amount of unallowable lobbying costs, but does not 
contest the government's unallowability conclusions in general. While it agreed to 
withdraw the costs, it disputes that any portion was expressly unallowable. It further 
contends that the unallowable costs were included in its 2004 Corporate 
Proposal 
inadvertently, despite its exercise of due care, and the CACO erred in not granting it a 
penalty waiver. (APFF if 60; undisputed portion ofGPFF if 119, GPFF ifif 120-22) 
Icent Database Costs 
63. FAR 31.205-12, Economic planning costs, provides in part: 
(a) This category includes costs of generalized 
long-range management planning that is concerned with the 
future overall development of the contractor's business and 
that may take into account the eventual possibility of 
economic dislocations or fundamental alterations in those 
markets in which the contractor currently does business. 
Economic planning costs do not include organization or 
reorganization costs covered by 31.205-27. 
(b) Economic planning costs are allowable as 
indirect costs to be properly allocated. [Emphasis added] 
31 

64. FAR 31.205-27. Organization costs. provides in part that: 
(a) Except as provided in paragraph (b) of this 
subsection [inapplicable]. expenditures in connection with-
( 1) planning or executing the organization or 
reorganization of the corporate structure of a business, 
including mergers and acquisitions, ... (3) raising capital (net 
worth plus long-term liabilities). are unallowable. Such 
expenditures include but are not limited to incorporation 
fees and costs of attorneys, accountants. brokers, promoters 
and organizers, management consultants and investment 
counselors, whether or not employees of the contractor. 
Unallowable ·'reorganization'' costs include the cost of any 
change in the contractor's financial structure, excluding 
administrative costs of short-term borrowings for working 
capital, resulting in alterations in the rights and interests of 
security holders. whether or not additional capital is raised. 
[Emphasis addedl 
65. FAR 31.205-38, Selling costs. provides in part: 
(a) ··selling·· is a generic term encompassing all 
efforts to market the contractor's products or services, some 
of which are covered specifically in other subsections of 
31.205. Selling activity includes the following broad 
categories: 
( 4) Market planning. 
(b) .. . Market planning involves market research and 
analysis and generalized management planning concerned 
with development of the contractor's business. The 
allowability of long-range market planning costs is 
controlled by the provisions of 31. 205-12. Other market 
planning costs are allowable to the extent that they are 
reasonable and not in excess of the limitations of 
subparagraph (c)(2) of this subsection. [Emphasis added] 
32 

66. Raytheon's 2004 Corporate Proposal included $200,000 paid to !cent, LLC. 
In its 27 April 2006 audit report DCAA stated that the payments were "to design and 
build a [M&A] Support Center Application intended to harmonize [M&A] activity" 
(supp. R4, tab 271 at 2938). DCAA questioned the costs as expressly unallowable 
M&A costs, subject to a level 1 penalty. CACO Dowd claimed those costs, plus a level 
I penalty and interest, in his 26 May 2011 COFD (supp. R4, tab 306). 
67. By letter of 29 October 2003 to Charles A. Stott, then Raytheon's Vice 
President of Corporate Development (tr. 4/157), lcent President James Joyce described 
the "deliverables and associated business terms" for a joint Raytheon and !cent IT 
project to "design and build a [M&A] Support Center Application" that: 
I. Will permit the sharing of data and analysis across 
Raytheon. 
2. Will create a common fact base for [M&A] activity. 
3. Will decrease the [amount of] time and resources 
required to complete screening and analysis of [M&A] 
candidates. 
4. Will harmonize [M&A] activities across Raytheon. 
5. Will improve the [M&A] process cycle time and 
communications. 
(Supp. R4, tab 124 at 1625) Mr. Joyce named Raytheon's "Corporate Business 
Development, the Business Unit [M&A] people and Corporate Development" as the 
"primary users of the [M&A] Resource center" (id. at 1626). The M&A database was 
to have a "design required to support fast-paced deal activity" (id. at 1627). 
68. Raytheon's Corporate Development department was responsible for working 
with its business units in strategic development and growth opportunities, including 
strategic analysis of a business' capabilities to market its products and services to the 
government and function in government work. Where there were gaps in business' 
capabilities, Corporate Development would work with them to determine the right ways 
to fill the gaps, either through, inter alia, internal investment, research and 
development, licensing of intellectual property (IP), partnerships or acquisitions. This 
process was known as "gap analysis" (tr. 4/247). Working with Raytheon's businesses 
on M&A and divestitures was not Corporate Development's primary role but was part 
of its work to find strategic growth initiatives. (Tr. 4/246-4 7) 
33 

69. Year to year, in withdrawing unallowable M&A costs, Ms. Giovannini 
withdrew the majority of Corporate Development's hours. In CY 2004 Raytheon 
determined that over 8,000 hours of the 6 professional employees working in Corporate 
Development were unallowable organizational costs under FAR 31.205-27. (Supp. R4, 
tab 390; tr. 41148; GPFF ~ 157) 
70. At some point, Mr. Stott gave approval for Icent to begin to design and build an 
M&A database (tr. 4/161, 165; GPFF ~ 165). David Scanio, ajunior associate within 
Corporate Development, was Raytheon's primary coordinator with Icent. He prepared a 
PowerPoint presentation entitled "M&A Resource Center." dated 23 September 2003, 
which he sent to Raytheon personnel. including Mr. Stott. on 3 October 2003. It 
memorialized the intent of the M&A Database project. (Supp. R4, tab 122 at 1611; 
tr. 4/163-64, 219; GPFF ~ 166) Mr. Scanio's presentation described the M&A Resource 
Center as "[ flacilitat[ing] and streamlin[ing] all M&A processes and interactions company 
wide" (supp. R4. tab 122 at 1621 ). The presentation included the following Summary: 
(Id. at 1623) 
• Keep the hopper full...Robust opportunity pipeline 
• Have the ability to act quickly on attractive 
candidates 
• Use M&A to achieve better then [sic] average growth 
• Need multiple small to mid-size deals to move the 
needle 
• Use the M&A Resource Center to establish a 
predictable pattern of deals, a solid process and 
robust opportunity pipeline 
• Improve the acquisition process and achieve our 
desired objectives 
71. Icent's draft document for Corporate Development dated 16 January 2004-
Functional Requirements Specification and Preliminary Design - Draft (Specifications 
Document)-set forth the basic requirements for the M&A database (supp. R4, tab 131 
at 1755). The Specifications Document described its purpose in part as follows: 
Raytheon has retained [Icent] to assist in developing a more 
efficient enterprise M&A strategy and process, with the 
34 

(Id. at 176 l) 
specific goal of helping Raytheon to decrease the amount of 
time and effort required to identify and evaluate strategic 
M&A opportunities while increasing the value of these 
activities. 
72. The Specifications Document described three business processes "at the 
heart of' the M&A database: the accumulation of market and gap analysis; the 
acquisition process; and the divestiture process (supp. R4, tab 131 at 1764). Regarding 
market analysis, the Specifications Document stated in part: 
Market analysis is performed by individual business units. 
In many cases, the information captured in the database 
during this phase is pulled directly from business unit 
strategic plans and other work products generated during the 
normal course of business. In all cases (and in a distinction 
from the other processes outlined in this document), this 
information is not target or candidate specific. Instead, the 
information captured here relates more broadly to market 
segments, trends, and business unit strategies. The 
functionality to support this accumulation is most similar to 
that of a modern library. 
(Id.) (Emphasis added) 
73. Regarding the acquisition process, the Specifications Document stated in part: 
In addition to performing market analysis, business units 
will also create gap analysis documents on an annual basis. 
Each of these gap analyses will be related to specific 
markets .... 
With the candidate identification phase, the focus of the 
M&A process shifts from a market-centric view to one which 
is oriented around specific acquisition candidates. This 
phase of the process moving forward happens on a 
continuous basis, as well, as opposed to the annual and 
quarterly cycles associated with the market assessment and 
gap analysis phases. 
35 

The candidate identification phase begins with the creation 
of a candidate master document, which both fits the 
company into a standard set of taxonomies (including 
market, gap, and value information) as well as captures 
limited qualitative information about the targeted company. 
An additional checkbox field here will allow an early 
indication of whether a particular company is in play, or if 
its interest in being acquired will have to be determined 
separately. 
(Supp. R4, tab 131 at 1766) (Italicized emphasis added) 
74. Among other things addressing M&A activities and "targets," the 
Specifications Document referred to: a person or team ''responsible for moving the 
candidate forward through the process;" "contact information for relevant individuals 
associated with the deal;" M&A Committee review meetings "regarding specific 
targets;" and a "qualified target company" (supp. R4, tab 131 at 1766-68). The 
document contemplated re-use of existing application technology, including from 
Raytheon's IP Center database (id. at 1773, 1789). 
75. Mr. Stott described the !cent project as designed to help Raytheon's 
businesses "understand the [IP] content that they had within their divisions" (tr. 4/161). 
He acknowledged that the intent was that there would be some use of the database in a 
transaction (tr. 4/231). 
76. Ultimately Raytheon terminated !cent's design and build of the M&A 
Application prior to completion for lack of support (tr. 4/212; GPFF ii 172). 
77. !cent submitted an invoice dated 10 January 2003 (in context, should have 
been 2004) in the amount of $100,000 for "December professional fees for the [M&A] 
Resource Center," and an invoice dated 10 March 2004 in the amount of $100,000 for 
"February professional fees for the [M&A] Resource Center." Mr. Stott approved 
payment on 16 January 2004 and 17 March 2004, respectively. (Supp. R4, tabs 115, 139) 
78. In Mr. Stott's view the $200,000 in costs were allowable. He agreed with 
the allegation in Raytheon's second amended complaint that "[a]ll of the costs 
associated with !cent's work for Raytheon in CY 2004 were in support of economic 
planning that occurred far in advance of any unallowable [M&A] acquisition planning 
or activity" (supp. R4, tab 325, ii 92; tr. 4/229, 241-43). He reasoned that, while 
Raytheon's Corporate Development personnel were intended to be some of the primary 
users of the !cent database, the costs were incurred in developing a tool; they were not 
associated with any specific transaction; and !cent's work involved strategy, data 
36 

collection, inventory warehousing and the like (tr. 4/230-31, 242). The database "never 
saw the light of day" and "never got used" (tr. 4/243). 
79. Joseph Danaher, a Budgets manager for Raytheon's Corporate 
Administrative Services, who, at the time, had twenty years' experience in finance and 
government accounting matters, and relevant training and course development 
experience, was responsible for preparing the "outside services" withdrawal schedule 
for Raytheon's 2004 Corporate Proposal. During Mr. Danaher's confer and review 
process, the Icent invoices were flagged three or four times. Mr. Pflaumer, then of 
Raytheon's Government Accounting Group, had flagged them for further review. 
Mr. Danaher reviewed Raytheon's Guidelines concerning unallowable costs and 
concluded that the costs were allowable because they were not for a specific M&A 
activity. Mr. Pflaumer agreed. Mr. Danaher did not speak to anyone from Corporate 
Development. (Tr. 8/6-9, 13-15, 17; ex. A-26) 
80. Raytheon's FAR Part 31 Guidelines, as of 31 August 2004, Revision No. 2, 
provided concerning Acquisition, Merger, Divestiture and Other "Organization" Costs: 
Unallowable acquisition costs commence with the 
submission of an indicative offer. Unallowable divestiture 
costs commence when the decision to "go to market" with 
the offering materials is made. Commencement of 
unallowable merger costs should be discussed with business 
segment or Corporate Counsel. These unallowable costs 
end at the completion of the final balance sheet adjustment 
for the transaction. The unallowable cost categorizations 
are applicable to both Business and Corporate personnel. 
(Supp. R4, tab 158 at 2116) The Guidelines leave it indefinite as to whether these costs 
should be claimed. 
81. Raytheon's FAR Part 31 Guidelines further state that the following 
Acquisition, Merger, Divestiture and Other "Organization" Costs are to be claimed: 
A general review of other companies as part of marketing 
strategy or strategic planning activities (e.g. economic 
planning) including preliminary discussions and advice about 
the advisability of [M&A] prior to identification of a specific 
opportunity. This also includes technical review, review of 
structure, facilities and modes of operation. 
(Supp. R4, tab 158 at 2117) (Emphasis added) 
37 

82. Raytheon's Company Policy No. 121-RP, dated 2 November 2004, entitled 
"Mergers and Acquisitions," states in part: 
Relating to costs associated with [M&A ], all Businesses 
must establish and maintain adequate internal controls 
necessary to ensure compliance with applicable [FAR] and 
[CAS] Board rules and regulations. Organizational costs 
associated with [M&A} are generally unallowable. 
Unallowable acquisition costs commence with the 
submission of an indicative offer. These unallowable costs 
for [M&A J end at the completion of the final balance sheet 
adjustment for the transaction. 
(Supp. R4, tab 196 at 2288., 5.7) (Emphasis added) 
83. According to Mr. Stott, at one point Raytheon tried to establish identifying 
targets as one of its organizational objectives but was not '"able to use that as a good 
objective for the organization'' (tr. 4/184). He acknowledged that the database to be 
developed by Icent was to be for Raytheon's use in tracking that information, but he 
denied that it was "specific targeted information" (tr. 41184-85). 
84. Regarding M&A and divestitures costs, Paul Bailey, Raytheon's Director of 
Corporate Development (tr. 4/245). agreed with government counsel's characterization 
that "Raytheon puts a line in the sand on what's 
unallowable and what's allowable with 
respect to corporate development business'' (tr. 4/257). Mr. Bailey's Corporate 
Development office worked with Raytheon's Government Accounting personnel to 
establish what Mr. Bailey described as "the bright line test" (tr. 4/257-58). 
Non-Waiver of Penalties 
85. Negotiations on Raytheon's 2004 Corporate Proposal were completed in 
2008-09 (tr. 6/217). No penalties had been assessed on Raytheon's Corporate Proposals 
for 2001, 2002, or 2003 (ex. A-12). Penalties were not raised by either party in the 
negotiations for 2004 (tr. 5/165, 169, 6/218). CACO Dowd agreed with Raytheon that, 
under FAR 42.709-5, a CO is obligated to consider waiving penalties prior to assessing 
them, whether or not the contractor requests a waiver (tr. 7 /58). 
86. The 26 May 2011 COFD, assessing penalties against Raytheon, was issued 
about five days before the six-year anniversary of Raytheon's submission of its 2004 
Corporate Proposal. CACO Dowd stated that, due to "statute of limitations concerns," 
he "needed to move out and issue a penalty determination before the government would 
lose its rights to a recoupment of money ... [for] the penalties" (tr. 6/218). 
38 

87. Regarding penalties, CACO Dowd believed he needed to "consider 
everything out there," including matters raised in audit reports issued after 2004 and 
events that post-dated Raytheon's CY 2004 incurred cost submission (tr. 7/50, 117). 
Mr. Christiansen, DCMA's chief negotiator with Raytheon, who apparently was 
involved in drafting the COFD (finding 15), testified in his deposition that alleged CAS 
405 noncompliances, which apparently occurred after Raytheon submitted its 2004 
Corporate Proposal, were considered in assessing the penalties in the COFD. See 
Raytheon I, 16-1 BCA ii 36,33 5 at 177, 143. In interrogatory responses concerning this 
appeal the government named factors upon which it alleged CACO Dowd relied in 
declining to waive penalties. At first it listed matters occurring in 2006 and thereafter. 
In supplemental responses the government cited two 2011 COFDs by CACO Dowd 
stated to cover matters occurring since 2002 and 2004 (see finding 88; Raytheon I). 
CACO Dowd did not remember whether he had contributed to the interrogatory 
responses (tr. 7 /21 ). 
88. On 10 January 2011, CACO Dowd had issued a COFD based upon a DCAA 
24 September 2007 CAS 405 audit report concerning incentive compensation in 
connection with alleged expressly unallowable activity during CYs 2002-2005 (supp. 
R4, tab 285 at 3154-55). Further, while a CAS 415 (Accounting for the Cost of 
Deferred Compensation) audit had been "dispositioned" (tr. 6/256, 263), the 
government's concerns later evolved into CAS 405 matters addressed in a 2 June 2011 
COFD on dividend equivalents, which was based upon a 17 July 2008 audit report 
covering 1 January 2004 through 31 December 2006 (ex. G-3; tr. 6/255-57, 263-64). 
CACO Dowd considered these two alleged CAS noncompliance matters in reaching his 
26 May 2011 final decision on the 2004 Corporate Proposal because they were both 
being addressed at about the same time he issued that decision and they reflected 
problems DCMA perceived Raytheon had with its internal controls (tr. 7 /19). 
89. According to CACO 
Dowd, Raytheon's payment to the government for 
dividend equivalent issues had demonstrated to him that the company had conceded a 
problem. However, Raytheon did not make such a payment until 5 July 2011, after his 
26 May 2011 decision. On cross-examination CACO Dowd acknowledged that he did 
not know prior to the payment whether Raytheon would pay or not and the payment 
could not have influenced his decision. (Tr. 6/252, 7 /27, 40-41; ex. A-20) 
90. Additionally, CACO Dowd stated that he was influenced by issues affecting 
Raytheon's indirect costs and ODC (other 
direct costs) systems raised in audits issued 
from 2008 through 20 I 0 that reported upon alleged matters that occurred in 2006 and 
later. He believed they were relevant on the ground that they showed Raytheon was not 
"scrubbing out all the unallowable dollars" in its incurred cost submissions (tr. 7 /51) 
and that there was a "good chance" that the issues addressed had existed in earlier time 
frames as well (tr. 7 /52). (App. supp. R4, tab 701 at 4227-28; tr. 7 /50-51) See 
Raytheon I, 16-1BCAii36,335 at 177,144. 
39 

91. Regarding waiver, CACO Dowd testified: 
Q 
Can you tell me, Mr. Dowd, in considering whether 
Raytheon could satisfy you that the [waiver criteria in 
FAR 42.709-5(c)(l)] are met, what factors did you 
consider? 
A First of all, I considered each of the ten-odd costs 
right there, that I penalized them ... whether they met the 
criteria per the FAR .... 
Secondly, we had two [CAS] 405 noncompliances 
out there that we were addressing, the first one being 
it was 
for dividend [equivalents]. You know Raytheon conceded 
that and ultimately paid the government...for dividend 
equivalents. I believe it started roughly in the 2006 time 
frame forward and I want to say that it was for the 2004 to 
2006 long-term [performance] plan I believe is how 
Raytheon identifies it. 
But anyway, I issued a demand letter to them for 
those dividend equivalents and Raytheon paid them. So, 
that concerned me. 
We have another CAS 405 that issued in the same 
time frame for what I called incentive compensation. It was 
Raytheon pulled out the labor and some fringe costs for this 
unallowable activity that they pulled out of their incurred 
cost submission but they didn't pull out the associated 
incentive compensation associated with that. 
(Tr. 6/252-53) (Emphasis added) At this point Raytheon moved to strike 
CACO Dowd's testimony as inconsistent with alleged judicial admissions by the 
government in discovery. On 
29 March 2016 the Board denied that motion and granted 
the government's cross motion to strike excerpts from an unrelated Court of Federal 
Claims proceeding proffered by appellant. Raytheon I. 
92. Regardless of CACO Dowd's reliance upon some matters that occurred after 
Raytheon's submission of its 2004 Corporate Proposal, he recalled specific 
contemporaneous costs in the proposal that concerned him, including aircraft fractional 
40 

lease costs, in particular. Other costs, including lobbying costs, also concerned him. 
Along with the aircraft costs, lobbying costs were "significant issues" to him (tr. 7 /48). 6 
In view of our disposition of the aircraft cost issue, below, we do not make further 
findings regarding it. Concerning lobbying costs, CACO Dowd recalled 
that: 
The other costs that concerned me was [sic] the 
lobbying and political activity cost. In 2004, Raytheon -
there was over 1,000 hours that Raytheon didn't account for. 
I think 
that was [attributed] to some missing time sheets, 
some errors and things of that nature. And again, in my 
mind, if they had the adequate oversight in place, that 
probably should have been caught right there . 
. . . [T]hey all were a determining factor in my mind 
that Raytheon did not meet (c)(l) and (c)(2) ... they didn't 
exercise due care right there .... 
(Tr. 7 /49-50) Although CACO Dowd did not mention the penalty waiver question in 
his 26 May 2011 final decision, and the evidence concerning waiver is not strong, we 
find that CACO Dowd testified credibly that he considered contemporaneous costs and 
penalty 
waiver before he issued his final decision (supp. R4, tab 306; tr. 6/251, 7/58). 
Expert Evidence 
93. Darrell J. Oyer was admitted without objection as an expert in: 
[G]overnment contract accounting including, specifically, 
contractors' policies, procedures, personnel training, and 
internal control and review systems for providing assurance 
that unallowable costs are excluded from final indirect cost 
rate proposals, or more generally, internal controls for 
segregating unallowable costs. 
(Tr. 10/17) The government did not proffer any expert evidence. Mr. Oyer's 
25 January 2013 expert report summarizes his opinion: 
Raytheon had an exceptional internal control system in 
place during the preparation of the 2004 and 2005 indirect 
cost proposals, as evidenced by ( 1) extensive and well 
6 A third issue, pertaining to an individual's consultant costs (tr. 7/49), was settled. 
41 

prepared policies, procedures, practices and internal controls 
required by the DCAA ... , (2) highly qualified and trained 
staff that exceeded DCAA requirements ... , (3) an Industry 
best practice and DCAA-compliant process involving above 
average staffing for the identification and elimination of 
unallowable costs from indirect cost submissions ... , 
( 4) DCAA conclusions that the systems directly involved in 
the elimination of unallowable costs from indirect cost 
submissions were adequate throughout 2004 and 2005 and 
these conclusions are inconsistent with the decision not to 
waive penalties ... , (5) conclusive factual data that establish 
that (a) Raytheon improved its process for removing 
potentially unallowable costs from its submissions from 
200 I to 2004/2005 and (b) Raytheon successfully removed a 
much greater percentage of potentially unallowable costs 
than most contractors ... and (6) the aggressive 
self-governance steps taken to assure compliance with 
government accounting rules and advancement of Industry 
best practices .... 
(App. supp. R4, tab 700 at 4203-04) 
94. Mr. Oyer opined that Raytheon had multiple-tiered policies and procedures 
for finding unallowable costs, which was unusual in the industry; it had an exceptional 
internal controls system to segregate and exclude unallowable costs; the qualifications, 
experience and training of Raytheon's personnel were unusually high; and Raytheon's 
practices were among the best in the industry (tr. I 0/22-23, 25-30, 43, 52, 105, 167). In 
Mr. Oyer's view an established practice is an acceptable control as well as written 
policy. Raytheon had both. He saw no evidence that any lack of written guidance 
caused a problem. (Tr. I 0/88, 96-98) 
95. Mr. Oyer acknowledged that 
"subsequently reported" expressly unallowable 
costs in Raytheon's 2004 Corporate Proposal could affect his opinion as to whether it 
had effective internal controls, depending upon whether the inclusion was inadvertent or 
due to a disagreement as to whether a cost was expressly unallowable, or due to an 
internal control deficiency or some other cause (tr. 10/65). Mr. Oyer did not 
examine 
whether an alleged CAS 405 noncompliance cited in the 2 June 2011 COFD related to 
Raytheon's internal controls. He had no knowledge of the underlying facts or what 
Raytheon's position was with respect to those costs. (Tr. 10170-72) Mr. Oyer did not 
focus upon the question raised in FAR 42.709-5(c)(l) of whether government audits 
disclosed recurring instances of expressly unallowable costs (except to state that 
Raytheon had improved its process for cost removal) or upon the question raised in 
42 

FAR 42.709-5(c)(2) of whether Raytheon had exercised due care regarding its inclusion 
of the costs at issue in its 2004 Corporate Proposal. 
DISCUSSION 
Preliminary Matter - Jurisdiction Over All Appeals 
Although Raytheon does not oppose designation of the captioned contract as the 
representative contract in these appeals, the government's proposed switch to this 
contract from one originally named by Raytheon in its notices of appeal prompted 
Raytheon to suggest for the first time that the Board's jurisdiction to consider the 
government's claims is in question. We treat this as a motion to dismiss for lack of 
jurisdiction. Raytheon contends that, for jurisdictional purposes, the government's 
claims had to identify the contracts or test contract under which the disputes arose and 
that they failed to do so. (Bd. corr. file, app. 5 July 2016 ltr.) The cases Raytheon cites 
for this proposition are inapposite. Moreover, while the CDA requires that a claim 
relate to a contract, it does not require specific identification of a contract by number. 
The Boeing Company, ASBCA No. 58587, 14-1BCA~35,470; accord Leidos, Inc., 
ASBCA No. 59076, 14-1BCA~35,621 (in each case Board granted government's 
request to substitute representative contract when its claim named contract to which 
appellant was not a party); see 41 U.S.C. § 7105(e)(l)(A) (ASBCA has jurisdiction to 
decide appeals from various department and agency COFDs "relative to a contract" 
made by department or agency); see also 41 U.S.C. § 7103 (covering claims and 
COFDs "relating to a contract"). 
Here, the COFD 
in ASBCA No. 57743 mentions "applying the appropriate contract 
percentage" in penalty assessment and the Interest clause in the "applicable contracts," 
although it does not specify contract numbers (supp. R4, tab 306 at 3442). The audit 
report upon which the COFD is based notes that "affected contracts" are identified in 
Raytheon's indirect cost rate proposals (supp. R4, tab 271 at 2905). The Board has not 
been directed to any evidence that Raytheon has ever claimed ignorance about the 
contracts involved. The COFDs in ASBCA Nos. 57798 and 58280 each enclose a list of 
the "Covered Contracts" (supp. R4, tab 315 at 3521-28, tab 323 at 3689-95). 
It is apparent from the COFDs and associated audit reports that the government's 
claims relate to contracts with Raytheon and that the Board has jurisdiction to 
entertain 
these appeals. We deny Raytheon's motion to dismiss. 
43 

Burdens of Proof 
Burden to Prove Costs Expressly Unallowable and Subject to Penalty 
The government acknowledges that the CO's decision that a cost is expressly 
unallowable and subject to penalty is subject to the Board's de novo review under the 
CDA (gov't br. at 5). See 41 U.S.C. § 7103(e); Wilner v. United States. 24 F.3d 1397. 
1401-02 (Fed. Cir. 1994) (en bane); that it bears the burden to prove that costs are 
expressly unallowable; and that .. the bar is high'' (gov't br. at 2). The government also 
bears the burden of proof that a penalty assessment was warranted. 
In General Dynamics Corp., ASBCA No. 49372. 02-2BCAi!31.888 at 157,570, 
rev 'din part on other grounds, Rumsfeld v. General Dynamics Corp .. 365 F.3d 1380 
(Fed. Cir. 2004), the Board described the government's burden to show that costs are 
expressly unallowable and subject to penalty: 
The FAR and CAS definitions of "expressly unallowable·· 
point to the need to examine the particular principle 
involved in light of the surrounding circumstances. 
Moreover, since Congress adopted the •·expressly 
unallowable'" standard to make it clear that a penalty should 
not be assessed where there were reasonable differences of 
opinion about the allowability of costs. we think the 
Government must show that it was unreasonable under all 
the circumstances for a person in the contractor's position 
to conclude that the costs were allowable. The scope of the 
inquiry will vary with the clarity and complexity of the 
particular cost principle and the circumstances involved. 
[Emphasis added] 
Burden to Prove Abuse of Discretion Concerning Non-Waiver of Penalties 
The potential waiver of a penalty, and the burden of proof to be applied regarding 
the legitimacy of a non-waiver by a CO, were not at issue in General Dynamics. The 
government urges that a CO is afforded "unencumbered discretion" under 10 U.S.C . ..., .... 
§ 2324(c)(3) and FAR 42.709-5(c) whether to waive a penalty because the statute and 
regulation provide that a contractor must demonstrate to the "[CO's] satisfaction" that it 
meets the criteria for waiver (see gov't reply br. at 103). The government contends that it 
is Raytheon's burden to prove that the CACO abused his discretion and acted arbitrarily 
or capriciously when he did not grant penalty waivers and that, even if Raytheon were to 
establish that the CACO did not apply the waiver criteria correctly, Raytheon is required 
to shmv that it was prejudiced by the regulatory violation. 
44 

Raytheon disputes that a CO has unfettered discretion regarding waiver. It asserts 
that the term "shall" used in 10 U.S.C. § 2324(c) concerning the grant of a penalty waiver 
and at the outset of the FAR 42.709-5 waiver provision denotes the imperative that the 
CO must grant a penalty waiver under certain conditions, citing 
FAR 2.101 ("[s]hall 
means the imperative") and Fiber Materials, Inc., ASBCA No. 53616, 07-1 BCA 
ii 33,563 at 166,259 (although Penalties for Unallowable Costs clause states that the CO 
"may" waive penalties pursuant to criteria in FAR 42.709-5, that regulation provides that 
CO "shall" waive penalties under certain conditions 7). Thus, the CO's discretion is 
limited. Moreover, while the CO's satisfaction is an element of his analysis, it is subject 
to an abuse of discretion or arbitrary or capricious standard. 
Raytheon contends that the CACO's alleged determination that Raytheon did not 
meet the penalty waiver criteria to his satisfaction is a mixed question of law and fact 
his interpretation of the regulatory requirements necessary to meet the criteria is 
reviewed de nova: his factual determination as to whether Raytheon met the criteria is 
subject to the arbitrary and capricious standard~ and the government bears the burden to 
prove that the CACO "appropriately decided not to waive the penalties" 
(app. br. at 2). 
Raytheon alleges that the waiver determination is intertwined with the government's 
penalty claims and the government thus bears the burden of proof on both. While 
Raytheon agrees with the government that the CO's violation of the waiver regulation 
must be prejudicial to Raytheon in order for it to prevail (app. reply br. at 15), it asserts 
that such a violation is obviously prejudicial in the current circumstances. 
In fact. the proper balance is that, once the government meets its burden to show 
that costs were expressly unallowable, Raytheon bears the burden to prove that the CO's 
determination not to waive the penalty was an arbitrary and capricious abuse of 
discretion. See United States Fidelity & Guaranty Co. v. United States, 676 F.2d 622, 
628 (Ct. Cl. 1982) (surety bore high burden of proof to show CO arbitrarily and 
capriciously abused discretion in failing to withhold progress payment). This is akin to 
the shifting burdens of proof in a government claim for a default termination. The 
government bears the burden to prove the termination justified: if it does, the burden 
shifts to contractor to show, among other potential mitigating factors, that the CO's 
default decision was an arbitrary or capricious abuse of the CO's discretion. Lisbon 
Contractors, Inc. v. United States. 828 F .2d 759, 765 (Fed. Cir. 1987); Shubhada 
Industries, Inc., ASBCA No. 54016, 08-1BCAil33,733 at 167.017. The degree of 
proof required to show that the CO abused his discretion is related to the amount of 
discretion afforded to the CO by statute and regulation. Keco Industries, Inc. v. United 
States, 492 F.2d 1200, 1204 (Ct. Cl. 1974) (the greater the discretion, the greater the 
contractor·s burden): see, e.g., US Fidelity & Guaranty, 676 F .2d at 630-31. 
7 The Board in Fiber Materials was addressing the regulation's $10,000 penalty threshold, 
which the Board clarified in Thomas Associates, Inc., ASBCA No. 57126, 11-2 
BCA ii 34,858 at 171,477. 
45 

In determining whether a CO's decision is arbitrary or capricious or an abuse of 
discretion we consider ( 1) whether there is evidence of subjective bad faith on the part 
of the CO; (2) whether the CO had a reasonable, contract-related basis for the decision; 
(3) the amount of discretion given to the CO; and (4) whether there was a proven 
violation of a statute or regulation. US. Fidelity & Guaranty, 676 F.2d at 630; 
Raytheon Company, Space & Airborne Systems. ASBCA No. 58068, 16-1 BCA 
~ 36,484 at 177,773; see also Campbell Plastics Engineering & Mfg., Inc. v. Brownlee, 
389 F.3d 1243, 1250 (Fed. Cir. 2004): McDonnell Douglas Corp. v. United States, 182 
F.3d 1319, 1326 (Fed. Cir. 1999); Keco Industries, 492 F.2d at 1204. There is no need 
for each of the four factors to be present in order to establish arbitrary and capricious 
action by the CO. Prineville Sawmill Co. v. United States, 859 F.2d 905, 911 (Fed. Cir. 
1988). For example, proof of the fourth factor might be enough to show that the CO's 
conduct was arbitrary and capricious. US. Fidelity & Guaranty, 676 F.2d at 630. 
However, the regulatory violation must 
have been prejudicial. Todd Construction, L.P. 
v. United States, 656 F.3d 1306, 1316 (Fed. Cir. 2011); Raytheon Company. Space & 
AirborneSystems.ASBCANo. 57801eta/.,15-1BCA~36,024at175,957. 
The Board's scope of review of alleged arbitrary and capricious action is narrow 
and we are not to substitute our judgment for that of the agency. However, the agency 
must have examined the relevant data and be able to articulate a satisfactory explanation 
for its action, including a rational connection between the facts and the action. Motor 
Vehicle Manufacturers Ass 'n of the United States. Inc. v. State Farm Mutual 
Automobile Insurance Co., 463 U.S. 29, 43 (1983). 
ASBCA No. 57743 Discussion 
Aircraft Fractional Lease Costs 
The Parties' Contentions 
The government alleges that, contrary to FAR 3 1.205-46, Travel costs, and to 
Raytheon's February 2005 Advance Agreement with the government (finding 28), 
Raytheon's 2004 Corporate Proposal included $350,567 in management and lease fees 
and $45,360 in usage fees under a fractional lease agreement involving its shared lease 
of a private aircraft. There is no dispute that Raytheon's use of its fractional lease 
aircraft was not required by contract. Further, under the Advance Agreement, Raytheon 
had agreed to "disallow" 66% of its management fees but it did not exclude any of 
them, and it had agreed to "disallow" 66% of its usage fees but it excluded only 60% of 
them (gov't br. at 73-74). The government concludes that the fractional lease fees were 
"specifically named and stated" to be unallowable under FAR 31.205-46 and the 
Advance Agreement, and therefore are "expressly unallowable" and subject to penalty. 
(Gov't br. at 73-74) 
46 

Raytheon counters that the fractional lease aircraft costs are not expressly 
unallowable and subject to penalty. The government misinterpreted FAR 31.205-46, 
which does not identify specific corporate aircraft costs as unallowable and contains 
certain allowances for travel at rates above standard coach airfare. In any event, under 
Board precedent, the costs are not expressly unallowable (app. br. at 123 (citing Fiber 
Materials, 07-1 BCA ~ 33,563 at 166,256)). Also, the COFD covering corporate costs 
for 2004 asserted a claim for penalties under FAR 42.709-(a)(l), which prescribes 
penalties for indirect costs that are "expressly unallowable under a cost principle in the 
FAR, or an executive agency supplement to the FAR." FAR 42.709-(a)(l) plainly does 
not cover costs alleged to be expressly unallowable under the December 2003 Advance 
Agreement (finding 23) or the February 2005 Advance Agreement. In any case, the 
aircraft fractional lease costs are not "specifically named and stated to be unallowable" 
under either agreement. 
Lastly concerning aircraft fractional lease costs, Raytheon contends that the 
government attempted to raise two new claims that the Board does not have jurisdiction 
to consider because CACO Dowd did not include them in his COFD regarding 2004 
corporate costs. The first putative new claim was the government's statement that 
DCAA found that fractional lease costs were subject to a "double penalty" (gov't br. at 
77), which suggested to Raytheon that the government now seeks level 2 penalties 
regarding the fractional lease costs in question. Raytheon states that DCAA's penalty 
conclusion is irrelevant because the COFD stated a claim for single penalties under 
FAR 42.709-l(a)(l) and not a claim for double penalties under FAR 42.709-l(a)(2). The 
government did not respond to Raytheon's contentions in this regard, which Raytheon 
considers to be an abandonment of "any hint that it is seeking 'double penalties"' (app. 
reply br. at 5 n. l ). The Board concurs and will not address this matter further. 
The second alleged new claim is that Raytheon failed to apply the 66% 
disallowance factor specified in the February 2005 Advance Agreement, resulting in the 
government's current stated claim for $350,567 in management and lease fees and 
$45,360 in usage fees. However, the COFD disallowed and asserted penalties on 
fractional lease aircraft costs of $336,892 based upon Raytheon's failure to apply the 
60% disallowance factor contained in the December 2003 Advance Agreement. We 
treat this as a motion to dismiss the government's fractional aircraft lease claims to the 
extent they are based upon the 2005 Advance Agreement and have increased the 
government's claims. 
The government disputes that its current reliance upon the February 2005 Advance 
Agreement is a new claim and contends that its adjusted claim is based upon the same 
operative facts upon which the COFD was based. Other 
than their disallowance factors, 
the December 2003 and February 2005 Advance Agreements are virtually identical. The 
government asserts that the only thing that has changed from its original claim is that it 
47 

discovered during litigation that it had used the 60% disallowance factor from the 
December 2003 Advance Agreement when it should have used the February 2005 
Advance Agreement's increased 66% factor. While this resulted in a minor monetary 
increase, it did not alter the nature of the original claim and the Board has jurisdiction 
over the increased claim. 
Rulings 
Jurisdiction 
We address the jurisdictional issue first. Claims are deemed to be separate for 
CDA purposes '"if they either request different remedies (whether monetary or 
non-monetary) or assert grounds that are materially different from each other either 
factually or legally." K-Con Building Systems, Inc. v. United States, 778 F.3d 1000, 
1005 (Fed. Cir. 2015). The "different remedies component" is not so rigid a standard as 
to preclude all adjustments in amounts based upon matters developed in litigation. Id. at 
1006. An increase (or reduction) on appeal in the amount claimed does not constitute a 
new claim under the CDA as long as the nature of the claim and basic operative facts 
are essentially the same. Todd Pacific Shipyards Corp., ASBCA No. 55126, 06-2 BCA 
~ 33,421 at 165,687; see also Tecom, Inc. v. United States, 732 F.2d 935, 937-38 (Fed. 
Cir. 1984); Exe/is, Inc., ASBCA No. 60131, 16-1 BCA ~ 36,485 at 177,779-80; Trepte 
Construction Co., ASBCA No. 38555, 90-1 BCA ~ 22,595 at 113,385. 
In this case the government has not requested a different remedy or asserted 
grounds for recovery in its adjusted claim that are materially different from its original 
claim. The essential nature and operative facts of the government's claim are that, in its 
2004 Corporate 
Proposal, Raytheon neglected to use the disallowance factor regarding 
aircraft fractional lease costs that was established in its February 2005 Advance 
Agreement with the government, which was effective from 1 January 2004 through 
31 December 2005. The COFD erroneously cited the December 2003 Advance 
Agreement. The 2005 agreement was substantially the same as the 2003 agreement, 
except for a 
6 percentage point increase in the disallowance factor. The government 
corrected its error at the hearing. (See finding 36) Under the circumstances, the nature 
of the government's claim was the same and the operative facts were essentially the 
same. The claim was not tantamount to a new CDA claim and we have jurisdiction to 
consider it. We deny Raytheon's motion to dismiss. 
Aircraft Fractional Lease Costs Are Not Expressly Unallowable 
In his 26 May 2011 COFD, CACO Dowd assessed level 1 penalties against 
Raytheon under FAR 42.709-l(a)(l) for including allegedly expressly unallowable 
fractional aircraft lease costs in its 2004 Corporate proposal (finding 16). That FAR 
provision applies to indirect costs that are "expressly unallowable ttnder a cost principle 
48 

in the FAR, or an executive agency supplement to the FAR, that defines the allowability 
of specific selected costs" (finding 2). 
FAR 31.001 defines an "expressly unallowable" cost as "a particular item or type 
of cost which, under the express provisions of an applicable law, regulation, or contract, 
is specifically named and stated to be unallowable" (finding 2). The CAS definition is 
the same, and the CAS Board noted that "expressly" unallowable meant unallowable in 
direct or unmistakable terms (id.). No law or regulation specifically names aircraft 
fractional lease costs and states that they are unallowable. FAR 31.205-46 (2003) 
covers, inter alia, the costs of travel by contractor-leased aircraft. FAR 31.205-46( d) 
(2003) contemplates circumstances when airfare costs in excess of the lowest customary 
standard, coach, or equivalent airfare could be allowable, and FAR 3 l .205-46(e)(2) 
(2003) gives the CO discretion to approve higher costs, including via an advance 
agreement or otherwise. (Finding 20) Thus, aircraft fractional lease costs are not 
expressly unallowable under FAR 31.205-46. See Fiber Materials, 07-1 BCA ,-i 33,563 
at 166,256. 
Moreover, the lease costs were not specifically named and stated to be 
unallowable under the parties' February 2005 Advance Agreement at issue. Raytheon 
was first to reduce total aircraft fractional lease costs by "all unallowable" and 
unallocable trips, which it would voluntarily withdraw. The balance of the lease costs 
were to be classified as "allowable," subject to the application of a 66% disallowance 
factor. (Finding 29) This is a negotiated percentage of potentially otherwise allowable 
costs that Raytheon agreed not to include in its proposal. 
Even if 66% of the balance of the aircraft fractional lease costs were deemed to be 
specifically stated to be unallowable, and therefore expressly unallowable under the 
Advance Agreement contract and the definition of "expressly unallowable" in 
FAR 31.001 and the CAS, they were not subject to a penalty assessment. The statutory 
and regulatory structures do not impose penalties upon all expressly unallowable costs. 
Title 10 U.S.C. § 2324(b) provides for penalties when a contractor includes in its 
proposal a cost that is "expressly unallowable under a cost principle referred to in 
subsection (a) that defines the allowability of specific selected costs" (finding 2). 
Subsection (a) of the statute refers to the FAR or an applicable agency supplement to the 
FAR, not to a contract (id.). Consistently, as noted above, FAR 42.709-l(a)(l) describes 
the penalties if an indirect cost is expressly unallowable under a FAR cost principle or 
executive agency FAR supplement. Similarly, FAR 42.709-3(a) requires a level one 
penalty assessment under FAR 42.709-l(a)(l), absent a 
waiver, "when the submitted cost 
is expressly unallowable under a cost principle in the FAR or an executive agency 
supplement that defines the allowability of specific selected costs" (id.). Thus, the 
pertinent statute and penalty regulations. are unambiguous. We construe them in 
accordance with their plain language and do not insert additional words or phrases to alter 
an otherwise plain and clear meaning. Tesoro Hawaii Corporation v. United States, 405 
49 

F.3d 1339, 1346-47 (Fed. Cir. 2005); Raytheon Company, ASBCA No. 57576 et al., 15-1 
BCA ~ 36,043 at 176,050 (referred to by Raytheon and herein as "the CAS 405 
Decision"). The statute and penalty regulations do not include within their scope costs 
that are expressly unallowable under a contract. 
Because Raytheon's aircraft fractional lease costs were not subject to the penalty 
improperly assessed by the CACO under FAR 42.709:-l(a)(l), Raytheon's appeal is 
sustained in this regard. 
Challenger 604 Aircraft Costs 
The Parties' Contentions 
The government alleges that, during 2004, Raytheon's second leased aircraft, the 
Challenger 604, was used only by its CEO and that Raytheon included $62,940, or 
38% 
of its costs for this aircraft in its 2004 Corporate Proposal that were expressly 
unallowable under FAR 31.205-46. It notes that use of the Challenger 604 was not 
required by contract; Raytheon did not have the CO' s approval to charge more than 
standard a~rfare but did so nonetheless; it included more than it had contemporaneously 
proposed as a recoverable factor; and it included more than the 34% to which the parties 
had eventually agreed under their October 2005 Advance Agreement (finding 44). 
While Raytheon has agreed to withdraw the Challenger 604 costs at issue, and 
would not dispute a determination that they are unallowable (app. pre-hearing br. at 63), 
it disputes that they are expressly unallowable, for the same reasons it advanced 
regarding the aircraft fractional lease costs. It also asserts that the October 2005 
Advance Agreement was signed several months after Raytheon submitted its 2004 
Corporate Proposal on about 2 June 2005 (finding 13) and costs cannot become 
expressly unallowable and subject to penalties retroactively. Raytheon states that it 
reasonably used the recoverability factor negotiated for its Hawker aircraft as a 
placeholder for its Challenger 604 costs with the understanding that it would agree to 
withdraw any difference ultimately negotiated for the Challenger 604, consistent with 
its past practice of post-submittal negotiations. 
Ruling 
In his 26 May 2011 COFD, CACO Dowd assessed level 1 penalties against 
Raytheon under FAR 42.709-l(a)(l) for including allegedly expressly unallowable 
Challenger 604 lease costs in its 2004 Corporate Proposal (finding 16). Those lease 
costs are covered by FAR 31.205-46 (finding 20). They are not expressly unallowable 
under a FAR cost principle or executive agency FAR supplement. For the reasons 
given above regarding Raytheon's aircraft fractional lease costs, regardless of whether 
50 

the Challenger 604 costs were expressly unallowable under the October 2005 Advance 
Agreement, which we need not decide, they were not subject to penalty. 
Because Raytheon's Challenger 604 lease costs were not subject to the penalty 
improperly assessed by the CACO under FAR 42.709-l(a)(l ), Raytheon's appeal is 
sustained in this regard. 
Lobbying Costs 
The Parties· Contentions 
In his 26 May 2011 COFD, CACO Dowd assessed level 1 penalties against 
Raytheon under FAR 42. 709-1 ( a)(l) for including allegedly expressly unallowable 
lobbying costs in its 2004 Corporate Proposal (finding 16). The government asserts that 
costs associated with lobbying activities, such as the labor costs of employees 
performing those activities, are clearly expressly unallowable under FAR 31.205-22 and 
under Raytheon's own corporate policies (see finding 4 7). 
Raytheon agrees that it included unallowable lobbying expenses in its proposal, 
albeit inadvertently, but it disagrees that the costs were expressly unallowable. It 
contends that FAR 31.205-22 does not make all costs associated with lobbying activities 
unallowable but rather only those associated with specifically enumerated lobbying 
costs, subject to exceptions. Although Raytheon states that there is no evidence that any 
of the costs at issue were for any of the enumerated activities, it acknowledges that it 
intended to withdraw them but inadvertently failed to do so. Raytheon's Washington 
Office engaged in both allowable and unallowable activities and Raytheon was using a 
ratio to withdraw a portion of the office's total compensation costs in accordance with 
FAR 3 l .201-6(e)(2) (see finding 49). 
Raytheon alleges that '·the compensation costs ·of employees who sometimes engage 
in unallowable lobbying activities are directly associated costs, not expressly unallowable 
costs" (app. br. at 130). It notes that some cost principles, such as FAR 31.205-6, 
Compensation for personal services, specifically name certain compensation as 
unallowable, but FAR 31.205-22 does not mention compensation or salary. Raytheon 
alleges that only expressly unallowable costs, not directly associated costs, are subject to 
penalties under FAR 42.709-l(a)(l) (app. br. at 131). It further contends that the math 
errors that contributed to its failure to withdraw all of the costs it intended to withdraw are 
the type of inadvertent errors contemplated by FAR 42.709-5(c)(2). Additionally, Raytheon 
asserts that the government's monetary claim is significantly overstated due to errors by 
DCAA. Finally, Raytheon asserts that the CACO abused his discretion in failing to waive 
the level one penalties assessed. particularly because Raytheon's lobbying withdrawal errors 
resulted from simple human error, not from a failure in Raytheon's internal controls. 
51 

In support of their positions, both parties rely upon the CAS 405 Decision, which 
decided appellant's appeals from the CACO's 10 January 2011 and 2 June 2011 decisions 
(finding 88), and another appeal. In the CAS 405 Decision the government contended, 
inter alia, that Raytheon had not excluded from its cost submissions bonus and incentive 
compensation (BAIC) costs for individuals who engaged in activities that generated 
unallowable costs under various FAR cost principles, including lobbying covered by 
FAR 31.205-22, which rendered the BAIC costs expressly unallowable. It also contended 
that Raytheon had failed to exclude the costs of stock awards to employees under its long 
term performance plan (LTPP) that were expressly unallowable under FAR 3 l .205-(6)(i). 
In the instant appeals, the BAIC and L TPP costs have been referred to respectively as 
"dividend equivalents" and "incentive compensation" (app. sur-sur reply at 2). 
In relevant part, the Board granted summary judgment to appellant that BAIC 
costs were not expressly unallowable under FAR 31.205-22 and other cost principles; 
the government had not established a violation of CAS 405; and it was not entitled to 
impose penalties. The Board distinguished BAIC from salary and fringe benefits­
different types of compensation. The Board noted that, while portions of salary and 
fringe benefits were specifically stated to be unallowable under FAR 31.205-1, Public 
relations and advertising costs, and those forms of compensation were defined and 
addressed separately in other cost principles, neither BAIC nor compensation cost was 
specifically named and stated to be unallowable under FAR 31.205-22 and the other 
cost principles at issue, nor identified as unallowable in any direct or unmistakable 
terms. In response to the government's allegation that Raytheon apparently had treated 
its BAIC costs from its lobbying cost center as mutually agreed unallowable directly 
associated costs, the Board stated: 
Raytheon's treatment of these costs, for whatever reason, 
cannot negate the clear language of CAS 405 and the 
implementing regulations that guide us in determining 
whether costs are expressly unallowable under a cost 
principle. 
CAS 405 Decision, 15-1 BCA ~ 36,043 at 176,050. 
Regarding costs that are unallowable public relations and advertising costs under 
FAR 31.205-1 ( f)( 1 ), as further defined in FAR 31.205-1 ( c ), the Board stated in part: 
We must presume that the FAR framers' choice of 
language when addressing unallowable labor cost under this 
cost principle was knowing and deliberate. With respect to 
the terms they did use - "salaries" and "fringe benefits" -
the government has not shown that BAIC cost is equivalent 
to, or subsumed under either. 
52 

However, these BAIC costs may be unallowable on 
another basis, that is, as a "directly associated cost" 
(DAC) 
to unallowable salary cost. See FAR 31.201-6( a) (when 
unallowable cost incurred, its DAC also 
unallowable) ... Under this provision, a DAC is a cost 
"generated solely as a result" of another cost and "would not 
have been incurred had the other cost not been incurred." 
CAS 405 Decision, 15-1 BCA ii 36,043 at 176,051-52. The Board concluded that a 
material factual dispute as to whether BAIC met the directly associated cost 
requirements precluded summary judgment for either party. 
However, the Board granted summary judgment to the government that the 
BAIC costs of those engaged in lobbying activities, while not expressly unallowable, 
were unallowable under FAR 3 l .205-22(a). The Board stated that it was "self-evident 
that a basic element of a contractor's lobbying costs is the compensation paid to those 
who perform lobbying activities." CAS 405 Decision, 15-1 BCA ii 36,043 at 176,052. 
The Board also determined, in relevant part, that appellant's Total Shareholder 
Return "share award costs" under its L TPP program constituted compensation costs that 
were expressly unallowable under FAR 3 l .205-6(i) and it granted summary judgment to 
the government on entitlement on those claims as expressed in the 2 June 2011 COFD 
and in a 12 May 2012 COFD. CAS 405 Decision, 15-1BCAii36,043 at 176,055. 
In the current appeal, the government does not address the fact that the Board found 
that appellant's BAIC costs were not expressly unallowable and it alleges that the CAS 405 
Decision supports CACO Dowd's non-waiver of the penalties he assessed against Raytheon: 
The Board's Opinion upholds significant portions of 
CACO Dowd's January 10, 2011 and June 2, 2011 Final 
Decisions. In fact, the Board's Opinion confirms the 
"correctness" of CACO Dowd's determinations that 
Raytheon violated CAS 405 for its repeated inclusion of 
certain "expressly unallowable" costs in its incurred cost 
proposals since FY 2002 and FY 2004, respectively. As a 
result, the Board's Opinion affords another independent, 
reasonable basis for Mr. Dowd to conclude that 
Raytheon failed to meet the criteria of FAR 42. 709-5( c ), 
and is, therefore, dispositive over the fact that CACO Dowd 
did not abuse his discretion by refusing to waive penalties. 
(Gov't sur-reply at 2-3) 
53 

Raytheon describes the CAS 405 Decision as holding that the compensation 
costs of Raytheon's Washington Office employees are not expressly unallowable and it 
posits that '"(t]his conclusively precludes the Government from seeking penalties for 
Washington Office compensation costs in these appeals'' (app. sur-sur reply at 1). 
Raytheon contends that the Board's holding "clearly applies to the 'salary' costs at issue 
in this case" (id. at 3 ). Raytheon also notes that, contrary to the government's 
contention here, the Board in its CAS 405 Decision refuted the significance of 
Raytheon's internal policies in interpreting CAS 405 and its implementing regulations. 
Raytheon also alleges that, differing from its prior position, the government does 
not argue in its sur-reply that CACO Dowd considered the facts at issue in the CAS 405 
Decision when he assessed, and did not waive, penalties in the instant appeals, but 
rather now argues only that the decision corroborates his determinations. Raytheon 
states that any evidence to the contrary must be struck from the record. In effect it 
renews its prior motion to strike, which the Board denied in Raytheon I. 8 
Ruling 
Salary Costs Associated with Raytheon's 
Unallowable Lobbying Activities are Expressly Unallowable 
As noted, FAR 31.001 provides in relevant part that an expressly unallowable 
cost is a particular item or type of cost which, under the express provisions of an 
applicable regulation, is specifically named and stated to be unallowable (finding 2). 
Costs associated with certain named lobbying activities are stated to be unallowable 
under FAR 31.205-22 (finding 45). Therefore, they are expressly unallowable. 
Each party overstates the Board's holdings in its CAS 405 Decision, which is not 
dispositive of either party's positions. There, the Board stated that neither BAIC nor 
compensation cost was specifically named and stated to be unallowable under 
FAR 31.205-22. and thus those costs were not expressly unallowable. The Board 
distinguished BAIC costs from salary costs, covered in other regulations, although both are 
types of compensation. The Board stated that it was obvious that compensation costs of 
those engaged in the listed lobbying activities were unallowable under FAR 3 l .205-22(a). 
CAS 405 Decision, 15-1 BCA ~ 36,043 at 176,052. 
Indeed. it would be unreasonable under all the circumstances for Raytheon to 
conclude that the salary costs of its employees engaging in the listed lobbying activities 
were allowable. See General Dynamics Corp., 02-2 BCA ~ 31,888 at 157,570. The 
lobbying cost principle would carry little weight if salaries were not covered. Although 
8 We deny this renewed motion in view of our disposition of this appeal. 
54 

not dispositive, as noted in the CAS 405 Decision, Raytheon's own internal policy and 
regulatory interpretation conclude that the lobbying salary costs are not allowable. 
(Finding 4 7) Raytheon alleges. without persuasive citation on point, that directly 
associated costs differ from expressly unallowable costs and cannot be subject to 
penalties (app. hr. at 131 ). However, the FAR specifically names salary expenses, 
which it treats as directly associated costs, as unallowable under certain circumstances. 
We construe FAR 31.201-6 as a whole. See General Dynamics Corp., ASBCA 
No. 31359, 92-1 BCA ~ 24,698 at 123.255, recon. granted in part on other grounds, 
92-2 BCA ~ 24,922. FAR 31.201-6( e )(2) states that .. salary expenses of employees who 
participate in activities that generate unallowable costs shall be treated as directly 
associated costs to the extent of the time spent on the proscribed activity, provided the 
costs are material'' (emphasis added) (finding 46). Under FAR 3 l.201-6(a), "[w]hen an 
unallowable cost is incurred, its directly associated costs are also unallowable" 
(emphasis added) (finding 2 ). Thus, material salary expenses of employees who engage 
in activities that generate unallowable lobbying costs are named and stated to be 
unallowable under the combination of FAR 3 l.201-6(a) and FAR 3 l.201-6(e)(2). 
Therefore, those salary costs are expressly unallowable as defined in FAR 31.001 and 
subject to penalty under FAR 42.709-l(a)(l) (finding 2). We address below whether 
the assessed penalty concerning lobbying costs should have been waived. 
Icent Database Costs 
The Parties· Contentions 
The government alleges that Raytheon's 2004 Corporate Proposal included 
$200,000 paid to lcent to design a database concerning M&A and divestitures, as 
established by Icenf s agreement with Raytheon and lcent' s specifications. The 
government asserts that those costs are expressly unallowable under FAR 3 l.205-27(a)(l) 
(finding 64) and that Raytheon's corporate policies and the balance of hearing testimony 
by Raytheon personnel, including its former Director of Corporate Government 
Accounting, recognize that M&A and divestiture costs are expressly unallowable. 
Raytheon counters that the Icent database was intended for multiple purposes. some 
of which would generate unallm\ahle costs and some of which would not such as 
economic planning and market planning. the costs of which are allmvable under 
FAR 31.205-12 and 31.205-38( b )( 4) (findings 63, 65 ). respectively. Raytheon also notes 
that the database \\as never used because the project was never completed. Therefore, the 
database was never used for a transaction covered by FAR 31.205-27(a). Lastly, 
Raytheon alleges that the line het\veen allowable planning costs and unallowable 
organization costs is widely recognized to he unclear and that the overlapping regulations 
create a continuum such that it is reasonable to treat costs as allowable until the CO has 
determined that they are not allowable or an actual M&A target has been identified. Thus. 
such costs could not be ··expressly unallowable" or subject to penalties. 
55 

Ruling 
Under FAR 31.205-12 costs of "generalized long-range management planning 
that is concerned with the future overall development of the contractor's business" are 
allowable but the regulation excludes organization and reorganization costs covered by 
FAR 31.205-27 (finding 
63). FAR 31.205-38 states that market planning involves 
market research and analysis and generalized management planning concerned with the 
contractor's business development; the allowability of long-range market planning costs 
is controlled by FAR 31.205-12; and other market planning costs are allowable to the 
extent that they are reasonable and not in excess of certain limitations (finding 65). 
FAR 31.205-27 provides in relevant part that "expenditures in connection with" 
planning "the organization or reorganization" of a business' corporate structure, 
"including mergers and acquisitions," are unallowable (finding 64). The regulation 
does not clearly limit its coverage to costs of targeting a specific merger or acquisition. 
Although it mentions "the" organization or reorganization of a business, in the singular, 
it also refers to costs in connection with mergers and acquisitions broadly, in the plural, 
not to "a" merger and acquisition. 
Thus, the distinction bet\veen allowable economic planning costs under 
FAR 31.205-12 and unallowable organization costs under FAR 31.205-27 is unclear. 
The regulations themselves do not draw a defined line between the two. However, 
reading the regulations together, including with FAR 31.205-38, the intent appears to 
be that costs in connection with actually planning the organization or reorganization of 
a business, such as by a specific merger or acquisition, are unallowable whereas 
generalized long-range management planning costs are allowable. A learned treatise, 
in discussing the interplay between organization costs under FAR 31.205-27 and 
economic planning costs under FAR 31.205-12, supports this analysis: 
[C]are should be taken to distinguish between the costs of 
planning an organizational change, the costs of which are 
unallowable, and the costs of generalized long range 
planning. Under FAR 31.205-12, Economic Planning Costs, 
the costs of surveying various business opportunities, 
making demographic and economic studies, and evaluating 
potential markets or firms for mergers or acquisitions would 
be allowable. Conversely, once a target has been identified, 
the costs of planning or executing organizational changes 
would be unallowable. 
(Ex. A-21 (JOHN CIBINIC, JR. & RALPH C. NASH JR., COST-REIMBURSEMENT 
CONTRACTING at 943 (3d ed. 2004)) 
56 

!cent's proposed database was intended to be used both for general planning and 
specific M&A purposes when ultimately configured (see findings 67, 70-75). However, 
Raytheon terminated !cent's design and build of its M&A application. It was never 
completed or used in connection with any M&A target. (Findings 76, 78) Therefore, 
the costs at issue are properly categorized as allowable economic and market planning 
costs. They were not expressly unallowable and subject to penalty, which the CACO 
assessed improperly. Raytheon's appeal is sustained in this regard. 
Waiver of Penalties Pursuant to FAR 42.709-S(c) 
The Parties' Contentions 
The government alleges that CACO Dowd was afforded considerable discretion in 
deciding not to waive penalties, subject to review only as to whether his determination 
was arbitrary and capricious or an abuse of discretion. It asserts that he properly 
considered the following: the nature and amount of the expressly unallowable costs in 
Raytheon's proposal, including alleged recurring instances of expressly unallowable 
costs, such as aircraft fractional lease costs and the consulting costs of a Mr. Mofford (not 
at issue in these appeals); the two recurring CAS 405 noncompliances involving 
Raytheon Corporate's compensation costs addressed in the CAS 405 Decision that 
occurred "at least since" 2004 (gov't br. at 120) and several years thereafter; and 
numerous internal control deficiencies identified by DCAA after 2004 in Raytheon 
Corporate's business systems, including its Indirect/ODC system. The government 
contends that CACO Dowd considered that two DCAA audits in the CYs 2004 and 2005 
timeframe of Raytheon's Indirect/ODC system found it to be adequate with no significant 
deficiencies. However, he did not deem those findings to be dispositive because, by the 
time of his June 20 I I COFD (finding 88), he had more information available to him. 
The government also contends that, while he was not aware of it at the time, 
CACO Dowd's determination not to waive penalties is supported by the fact that 
Raytheon did not follow its own internal government contract compliance policy, which 
called for written procedures concerning indirect cost proposals that were not in place, 
regardless of Raytheon's claim that the policy did not apply to the Budgets Group that 
prepared the 2004 Corporate Proposal. The government further contends that 
CACO Dowd's determination not to waive penalties is validated by Raytheon's failure 
to exercise due care when it included corporate aircraft and lobbying costs in the 2004 
Corporate Proposal. The government also urges the Board to disregard Mr. Oyer's 
expert opinion, which it contends is unreliable and of no value to the Board. 
Raytheon responds that it met both of the criteria for waiver of penalties under 
FAR 42.709-S(c) (addressed below) and that CACO Dowd was thus required under the 
regulation to waive them. His determination that Raytheon did not meet these criteria to 
his satisfaction is a mixed question of law and fact; the Board reviews his regulatory 
57 

interpretation of the waiver requirements de nova; and his factual determination as to 
whether Raytheon met the criteria is subject to an arbitrary and capricious standard. 
Raytheon contends, inter alia, that CACO Dowd's alleged determination that it did not 
meet FAR 42.709-5(c)(l rs waiver criteria was arbitrary and capricious. In the context of 
the overall amount of costs contained in the 2004 Corporate Proposal, the fact that the 
$1.4 million in alleged expressly unallowable cost items exceeded FAR 42.709-5(b)'s 
$ l 0,000 penalty threshold had no rational bearing upon waiver considerations. 
Additionally, alleged deficiencies that occurred after Raytheon certified its proposal were 
not a rational basis for declining waiver. The evidence adduced at the hearing, and expert 
Oyer's opinion. established that Raytheon satisfied the waiver criteria. 
Raytheon further alleges that CACO Dowd's determination that it did not meet 
FAR 42.709-5(c)(2)'s waiver criteria was also arbitrary and capricious. The record 
demonstrates that Raytheon ·s inclusion of aircraft fractional lease costs and lobbying 
costs in its 2004 Corporate Proposal resulted from unintentional error, notwithstanding 
the exercise of due care. 
Ruling 
Preliminarily, we have not relied upon Mr. Oyer's opinions. While he bolstered 
Raytheon's contention that it has unusually good internal controls, he did not focus 
upon the question raised in FAR 42. 709-5( c )(1) of whether government audits disclosed 
recurring instances of expressly unallowable costs or upon the question raised in 
FAR 42. 709-5( c )(2) of whether Raytheon had exercised due care regarding its inclusion 
of the costs at issue in its 2004 Corporate Proposal (finding 95). In any event, the Board 
does not require expert guidance concerning those questions, which are the Board's 
province to decide. 
We have held that Raytheon's aircraft fractional lease, Challenger aircraft, and 
lcent database costs were not expressly unallowable and were not subject to the 
penalties assessed by the CACO. Thus, the only costs at issue with regard to the waiver 
of penalties are the expressly unallowable salary costs, to the extent they are material, of 
employees who engaged in activities that generated unallowable lobbying costs. 
There are several lobbying cost errors or omissions at issue. Raytheon did not 
provide written instructions to Ms. Ferrero, the budget analyst responsible for calculating 
a lobbying cost disallowance factor used to withdraw lobbying costs from the 2004 
Corporate Proposal. She relied upon her prior year's spreadsheet and conversations with 
Mr. Reynolds, a supervisor in her office who assembled lobbying disclosure reports to 
Congress, and with 
Raytheon's Washington Office personnel. That office provided 
information and timesheets to Mr. Reynolds; Ms. Ferrero did not receive them. She 
reviewed Mr. Reynolds' report of lobbying activities for 2004, but it did not include 
timesheets or notifications from the Washington Office to him about missing time sheets 
58 

and certain employee terminations and hiring, resulting in shortened employment periods 
for various employees that affected her labor base allocations. A spreadsheet in 
Mr. Reynolds' report showed a zero balance of hours for certain employees. The 
Washington Office advised Ms. Ferrero that they had left the company. She intended to 
adjust her lobbying withdrawal ratio but did not do so. Further, she did not notice that 
Mr. Reynolds' spreadsheet showed zero hours for the first half of 2004 for two 
employees, one of whom had lobbying hours. She did not know why they were not 
reported. In addition to her proration errors, Ms. Ferrero's disallowance factor 
calculations erroneously included hours for work by Raytheon's CEO Swanson, which 
had been withdrawn elsewhere. The effect was to understate the percentage of time the 
Washington Office was working on unallowable cost matters. (Findings 50-54) 
DCAA found that Raytheon did not have time logs for 3 lobbyists, amounting to 
518 disallowed lobbying hours that had not been _withdrawn plus time logs for 6 other 
lobbyists had not been accounted for correctly due to misinterpretations, omissions and 
math errors, resulting in 501 disallowed lobbying hours. Lastly, Raytheon had 
understated its cost withdrawal by including a year of hours in its calculation base for 3 
lobbyists who were employed for only a part of a year. Although the amount is now in 
dispute, Raytheon initially agreed with DCAA that its CY 2004 lobbying cost withdrawal 
was understated by $242,655, which was adjusted during negotiations to $224,925. 
(Findings 56, 57, 59, see finding 92) 
In relevant part, FAR 42.709-5(c), which implements IO U.S.C. § 2324(c), 
provides that the CO shall waive penalties when the contractor demonstrates "to the 
cognizant [CO 's] satisfaction" that: 
(1) It has established policies and personnel training 
and an internal control and review system that provide 
assurance that unallowable costs subject to penalties are 
precluded from being included in the contractor's final 
indirect cost rate proposals (e.g., the types of controls 
required for satisfactory participation in the Department 
of Defense sponsored self-governance programs, specific 
accounting controls over indirect costs, compliance tests 
which demonstrate that the controls are effective, and 
Government audits which have not disclosed recurring 
instances of expressly unallowable costs); and 
(2) The unallowable costs subject to the penalty were 
inadvertently incorporated into the proposal; i.e., their 
inclusion resulted from an unintentional error, 
notwithstanding the exercise of due care. [Emphasis 
added] 
59 

We do not need to address whether the "Government audits which have not 
disclosed recurring instances of expressly unallowable costs" provision of 
FAR 42.709-5(c)(l) refers only to audits covering periods that are contemporaneous 
with that covered by a contractor's indirect cost proposal and/or only to the same type 
of costs.9 In this case, although CACO Dowd described various matters, including 
audits, that he relied upon in not issuing any penalty waivers (findings 87-91), he also 
named lobbying cost errors in the 2004 Corporate Proposal that he considered to be 
significant and specifically concerned him. He determined that the errors evidenced 
that Raytheon had not exercised proper oversight, amounting to a lack of due care. 
Thus, Raytheon had not demonstrated to his satisfaction that a penalty waiver was 
warranted under FAR 42.709-5(c)(2). (Finding 92) 
As stated, Raytheon's burden to prove that CACO 
Dowd abused his discretion or 
acted arbitrarily or capriciously in deciding not to waive the lobbying cost penalty he 
assessed is heavy. The Board's scope of review of the CACO"s discretionary 
determination is narrow and we are not to substitute our judgment for his. Raytheon did 
not establish any of the four factors that can show arbitrary and capricious action by a 
CO: subjective bad faith; lack of a reasonable, contract-related basis for the co·s 
decision; overreaching the discretion accorded the CO; and the CO's violation of a 
statute or regulation. To the contrary, the record reflects that CACO Dowd examined 
relevant data concerning the lobbying costs and that he articulated a satisfactory 
explanation for his decision not to waive the penalty. 
Raytheon's appeal is denied in this regard. Quantum issues (see, e.g., 
findings 61, 62) are remanded to the parties for resolution. 
Raytheon's appeal in ASBCA No. 57743 is sustained in part and denied in part 
as set forth above. 
ASBCA Nos. 57798. 58280 
FINDINGS OF FACT 
96. On 31 August 2005. IDS submitted its 2004 proposal (IDS Proposal). which 
contained $1.06 billion in indirect IDS office costs. On 11 August 2006 it submitted its 
2005 IDS Proposal, which included $1. l billion in indirect IDS office costs. (App. 
supp. R4. tabs 645-56) ASBCA Nos. 57798 and 58280 pertain to the govemmenfs 
contention that Raytheon included consultant costs in its 2004 and 2005 IDS Proposals 
9 For example, finding 10 addresses a different 2003 lobbying cost dispute cited in a 
2005 audit report. Other audits address other cost issues. 
60 

that were expressly unallowable under FAR 31.205-33, Professional and consultant 
service costs, which provides in part: 
(a) Definition. "'Professional and consultant 
services'· ... means those services rendered by persons who 
are members of a particular profession or possess a special 
skill and who are not officers or employees of the 
contractor. Examples include those services acquired by 
contractors or subcontractors in order to enhance their legal. 
economic, financial, or technical positions. Professional and 
consultant services are generally acquired to obtain 
information, advice, opinions. alternatives. conclusions, 
recommendations, training or direct assistance, such as 
studies, analyses. evaluations. liaison with Government 
officials, or other forms of representation. 
(b) Costs of professional and consultant services are 
allowable subject to this paragraph and paragraphs (c) 
through (/)of this subsection when reasonable in relation 
to the services rendered and when not contingent upon 
recovery of the costs from the Government (but see 
31.205-30 and 31.205-4 7). [Emphasis added] 
( d) In determining the allowability of costs 
(including retainer fees) in a particular case, no single factor 
or any special combination of factors is necessarily 
detenninative. However. the [CO] shall consider the 
following factors, among others: 
( l) The nature and scope of the service rendered in 
relation to the service required. 
(2) The necessity of contracting for the service, 
considering the contractor's capabilities in the particular 
area. 
61 

(6) Whether the service can be performed more 
economically by employment rather than by contracting. 
(7) The qualifications of the individual or concern 
rendering the service and the customary fee charged .... 
(8) Adequacy of the contractual agreement for the 
service (e.g., description of the service, estimate of time 
required, rate of compensation, termination provisions). 
(e) Retainer fees, to be allowable, must be supported 
by evidence that-
( 1 ) The services covered by the retainer agreement 
are necessary and customary; 
(2) The level of past services justifies the amount of 
the retainer fees (if no services were rendered, fees are not 
automatically unallowable ); 
(3) The retainer fee is reasonable in comparison with 
maintaining an in-house capability to perform the covered 
services, when factors such as cost and level of expertise are 
considered; and 
(4) The actual services performed are documented in 
accordance with paragraph (t) of this subsection. 
(f) Fees for services rendered are allowable only 
when supported b.v evidence of the nature and scope of the 
service furnished (See also 31.205-JB(c)). However, 
retainer agreements generally are not based on specific 
statements of work. Evidence necessary to determine that 
work perfonned is proper and does not violate law or 
regulation shall include-
(1) Details of all agreements (e.g., work 
requirements, rate of compensation, and nature and amount 
of other expenses, if any) with the individuals or 
organizations providing the services and details of actual 
services performed: 
62 

(2) Invoices or billings submitted by consultants, 
including sufficient detail as to the time expended and 
nature of the actual services provided: and 
(3) Consultants' work products and related 
documents. such as trip reports indicating persons visited 
and subjects discussed. minutes of meetings, and collateral 
memoranda and reports. [Emphasis added] 
97. At all relevant times. Raytheon's Corporate Policy No. 71-0009-110, 
"CONSULTANTS; RETENTION OF," effective 13 January 1995. governed its 
retention of U.S. consultants (supp. R4. tab 101at1004; 2nd amended compl. ~ 8L 
GPFF ~ 206 ). According to David Powers. a Manager of Government Accounting at 
Raytheon IDS since 2004 (tr. l/167-68), the policy was '·woefully outdated" (tr. 11207). 
Much of it had been updated in practice and it was not necessarily how Raytheon did 
things in 2004. although no superseding policy has been issued (tr. 11207-08). 
98. The 
consultant policy states: "Where a physical work product. .. is produced 
due to the consultant's services. the person supervising the consultant's activity [the 
consultant's sponsor] is to retain copies of the work product as support for the services 
provided" (supp. R4, tab 101 at l 006, ~ 2.6; GPFF ~ 208). To engage a consultant, a 
Purchase Order [PO] Requisition, Consultant Request. Summary of Qualifications for 
Prospective Consultant. and a Consulting Agreement were to be prepared. The 
Procurement Manager was to retain the PO requisition until the agreement was 
approved. (Supp. R4, tab I 0 I at I 008, ~ 6.1.1) The policy appended a sample 
consultant's agreement and provided that: .. Consulting Agreements are to utilize the 
terminology indicated in Form 10-3332. Some sections ofFonn 10-3332 may be 
modified or omitted in appropriate circumstances.'' (Id., ,-; 6.1. l b, see tab 10 I at 1014) 
99. A 
9 May 2002 Memorandum for Regional Directors (MRD), DCAA, on the 
subject of "Audit Guidance on Documentation Requirements Under FAR 31.205-33([)" 
addressed a 
3 1 March 1989 report by the Defense Acquisition Regulations Council Cost 
Committee, the drafters of the regulation (supp. R4. tab 109; see APFF ~ 80). The 
MRD noted that the Committee had commented in connection with the proposed rule, 
said to be substantially the same as the final FAR language, that all three categories of 
evidence cited in the provision were required to support consultant costs. The 
Committee stated: 
In order to effectively evaluate the propriety or legality of 
consultant activities, one has to check the agreement, the 
billings and the output and compare them against each other 
to ensure that, for instance, the billings make sense in light 
of the output received. If substantial funds have been paid 
63 

to a consultant and yet there is little or no evidence of work 
having been performed by him, then that may be an 
indication that the funds are being provided and employed 
for suspect purposes (e.g., bribes). It is necessary for 
Government personnel to look at each of these areas in 
order to determine that funds are not being spent on 
questionable activities: the extent is to be determined on a 
case-by-case bas is. 
(Supp. R4, tab 109 at 1199-1200) (Other italics & bold omitted) 
100. The MRD reported that the Committee further commented: 
The Government is merely asking to review the data that any 
reasonable business already has. The oral nature of some 
work in this area apparently causes concern among the 
contracting fraternity. Aside from the fact that most. people 
\Vho are billing for, in effect their time, are scrupulous about 
documenting their time for billing purposes. it apparently 
needs to be reiterated that the Government is looking for 
evidence of the reasonableness and legitimacy of the costs 
involved, not documentation of every word uttered. For 
example. if a person l'vas hired to provide a training session, 
then the contract, the bill and some evidence - which it 
should be noted could be oral testimony of one of the 
students - that the class was in fact given could be sufficient 
to meet the Government's needs. Allowability of costs has 
always depended on the contractor being able to demonstrate 
reasonableness and legitimacy of the costs being submitted; 
this draft revision merely provides some guidance and 
clarification in this apparently troublesome area. 
(Supp. R4, tab 109 at 1201) (Other italics omitted) 
IO t. The MRD concluded: 
The contractor must support all consultant costs with 
evidence from each of the three categories listed in 
FAR 3 l .205-33(f). Although auditors may not substitute 
their auditor judgment for the explicit requirements of the 
cost principle, auditor judgment remains important for 
determining if the evidence provided in each categ01y is 
adequate. In order to make a well-reasoned audit opinion 
64 

on consultant costs, auditors must have sufficient and 
relevant evidence to determine the nature and scope of the 
consultant work actually perfonned. By specific 
requirement of the cost principle, auditors should not make a 
determination on the allowability of consultant costs without 
evidence from all three categories, i.e., (l) evidence of what 
work is to be performed, (2) evidence supporting the 
invoice, and (3) evidence of what work was actually 
performed. For example, the auditor may not use evidence 
from category 1 to allow the consultant cost in the absence 
of evidence from the other categories. 
Regarding the issue of whether the consultant's work 
product is always an absolute requirement for cost 
allowability, we believe that the third category of evidence is 
intended to require evidential matter in support of what work 
the consultant actually perfonned (in contrast to what work 
is planned to be perfonned in category one). Although a 
work product usually satisfies this requirement, other 
evidence may also suffice. Therefore, if the auditor has 
sufficient evidence demonstrating the nature and scope 
of the consultant work actually performed, the 
FAR 31.205-33(f)(3) requirements are met even ifthe actual 
work product (e.g. an attorney's advice to the contractor) is 
not provided. If the nature and scope of the actual.work 
performed cannot be determined and the contractor refuses 
to provide the work product, the auditor should question the 
costs as unallowable under FAR 3 l .205-33(f). However, the 
auditor should not insist on a ivork product if other evidence 
provided is sufficient to determine the nature and scope of 
the actual work performed by the consultant. 
(Supp. R4, tab 109 at 1201-02) (Emphasis added) The MRD stated that. if a contractor 
failed to provide supporting evidence required by FAR 3 l .205-33(t), the auditor should 
recommend a penalty under FAR 42. 709 (id.). 
102. A 19 December 2013 MRD. on the subject of "'Audit Alert on Professional 
and Consultant Service Costs (FAR 31.205-33) and Purchased Labor," issued after the 
IDS audits and COFDs in question here, states in part: 
FAR 3 
l .205-33(t) contains three documentation 
requirements to ensure that professional and consultant 
service costs can be determined allowable: ( 1) details of 
65 

all agreements; (2) invoices or billings: and (3) consultant 
work product and related documents. Auditor judgment 
is critically important in determining whether the totality 
of the evidence demonstrates the nature and scope of the 
services provided .... The type of evidence satisfying the 
documentation requirements will vary significantly based 
on the type of consulting effort and from contractor to 
contractor. 
(App. supp. R4, tab 703 at 43 l 8) (Emphasis added) Regarding the third requirement. 
the MRD states that .. [e]xplanation of what the consultant accomplished for the fees 
paid - this could be information on the invoice, a drawing, a power point presentation. 
or some other evidence of the service provided'" (id. at 4319) (emphasis added). The 
MRD continues: 
The claimed costs are unallowable without evidence of an 
agreement, an invoice, and what work the consultant 
actually performed. It is important to clarify that the audit 
team is looking for evidence to satisfy these three areas and 
not a specific set of documents. Therefore. auditor 
judgment will be the determining factor on the type and 
sufficiency of evidence required to satisfy these 
requirements. 
The contractor may provide evidence created when 
the contractor incurred the cost as well as evidence from a 
later period.... As an example of evidence from a later 
period. the contractor may facilitate a meeting between the 
consultant and the audit team to obtain documentation 
(oral/written) from the consultant regarding what effort they 
[sic] performed. 
(Id.) (Emphasis added) Responses to "'FREQUENTLY ASKED QUESTIONS'' included 
with the MRD indicate that ··contemporaneous" evidence and evidence "'from a later 
period" (app. supp. R4, tab 703 at 4323 (answer 5)), including meetings and oral 
interviews, can potentially yield sufficient evidence of work product (id. at 4323-24, 
answers 5-7). 
103. Anthony D'Adamo, a former DCAA auditor who joined DCMA, preceded 
Matthew Grzyb, who issued the COFDs at issue, as the DACO at IDS (tr. 1/41-43 ). In 
Mr. D'Adamo's experience, at DCAA and DCMA: 
66 

[C]onsulting costs had always been an issue at Raytheon 
Company. Always been a finding within the DCAA reports. 
And then subsequent when I came to DCMA, the issues of 
consulting costs and documentation requirements was still 
there. 
(Tr. l/51; GPFF ~ 210) 
104. On 10 April 1997 Herbert Homer. the DCMA Raytheon CACO at the time. 
sent a "Determination of Noncompliance/Notice of Cost Unallowability" regarding 
•·consultant Service Costs" to Raytheon ·s Executive Vice-President/CFO (supp. R4, 
tab 103; GPFF ~ 211) The letter was critical of Raytheon's failure to maintain current 
consultant agreements. Mr. Homer concluded: 
I have concluded that Raytheon is in noncompliance with 
the provisions of [FAR 31.205-33 and Raytheon• s General 
Policy and Procedure 71-0009-110]. Therefore. beginning 
with the submission of the Company's CY 1996 final 
overhead rate/ incurred cost claim, any consultant service 
costs that are not supported by a fully executed consultant 
service agreement will be disallowed for cost recovery 
purposes. Furthermore. any such disallowed costs will be 
considered "expressly unallowable'' under the applicable 
cost principle and. therefore, will be subject to a penalty 
assessment in accordance with requirements of DF ARS 
231.7002 (Penalties for Unallowable Costs). 
(Supp. R4, tab 103 at 1026) Raytheon contends that this letter and others cited 
immediately below are irrelevant to these appeals. 
105. On 4 December 1998, DCAA's resident auditor at Raytheon Corporate"s 
Resident Office wrote to CACO Homer concerning DCAA's audit of Raytheon's CY 
1996 consultants. She stated that DCAA had found Raytheon to be in '"non-compliance·· 
with FAR 31.205-33 and Raytheon's own policies and procedures related to obtaining 
consulting agreements and providing work product and that, in DCAA's opinion, 
Raytheon did not have the proper internal controls in place to assure that the objectives 
stated in its Policy and Procedure 71-0009-110 were met. She concluded: 
We consider Raytheon's inability to follow their own 
procedures relative to consultant costs to be significant in 
view of the materiality of the types of charges incurred by the 
company from 1994 through 1997. Accordingly, based on 
67 

the foregoing information, we believe that Raytheon's 
classification. approval process and not maintaining 
meaningful consultant agreements and work products to be a 
severe internal control weakness that requires immediate 
attention and corrective action by the company's top 
management. 
(Supp. R4, tab 105 at I 044) CACO Homer provided a copy of this letter to Raytheon 
on or before 31 December 1998 (supp. R4, tab 106 at 1045, ref. c; GPFF ~ 214 ). 
106. During negotiations relating to Raytheon's CY 1996 incurred cost 
proposal, on 31 December 1998, CACO Homer sent a second "Determination of 
Noncompliance/Notice of Cost Unallowability'" letter to Raytheon's executive vice 
president/CFO (supp. R4, tab I 06; GPFF ~ 215). CACO Homer asserted that 
Raytheon had not yet fully comp! ied with his 10 April 1997 letter. including the 
specified FAR requirements and Raytheon's own consultant policy, and there were 
numerous instances in Raytheon's CY 1996 final overhead rate/incurred cost claim 
when it had not supported its claimed consultant services costs with "either a current 
consultant agreement and/or adequate work product"' (supp. R4, tab 106 at l 046 ). 
CACO Homer stated that his letter was to reiterate the FAR requirements for 
consultant services costs and to ••reaffirm the Governmenf s rights relative to the 
assessment of penalties for unallowable costs'" (id.). CACO Homer warned, similarly 
to his 10 April 1997 letter: 
[B ]eginning with the submission of Raytheon's CY 1997 
final overhead rate/incurred cost claim, any consultant 
services costs that are not supported by a current (fully 
executed) consultant services agreement and adequate work 
product will be disallowed for Government recovery 
purposes. Additionally, any such disallowed costs will be 
considered to be "expressly unallowable" under the 
applicable cost principle and. therefore. will be subject to a 
penalty assessment in accordance with the requirements of 
the Defense FAR Supplement 231.7002 (Penalties for 
Unallowable Costs). 
(Id.) The 31 December 1998 letter stated that it appeared that Raytheon had initiated 
proper control procedures to ensure its future compliance with the FAR and Raytheon· s 
policy (id.). CACO Homer concluded that Raytheon should ••scrub its CY 1997 
consultant services costs very carefully to be absolutely sure that each and every 
proposed/claimed consultant is supported by a current (fully executed) consultant 
agreement and adequate \vork product" (id. at 104 7). 
68 

107. Raytheon's FAR Part 31 Guidelines are used throughout the company, 
including by IDS. Mr. Pflaumer had a substantial role in drafting them. Version 2 of 
the Guidelines. promulgated on 31 August 2004. was in force during the preparation of 
the 2004 Corporate proposal. (Supp. R4, tab 158: 2nd amended compl. il 37; tr. 1/204, 
21122, 5/18, 207) The Guidelines provide that .. [c]onsultant costs need to be supported 
by an executed Consultant Agreement and he evidenced by i,vork product. as applicable, 
in order to 'Claim, .. (supp. R4. tab 158 at 2131 ). The Guidelines' references to ··claim" 
and ''don't claim'· mean that Raytheon considers the given cost to be allowable or 
unallowable (or, e.g., unallocable or not advisable to claim for so~e "sensitive·' reason) 
(tr. 11204-05, 2/122-23, 7 /161 ). 
l 08. As part of a CY 2005 course on "Understanding Unallowable and 
Allowable Costs; Financial Planning and Analysis Curriculum, .. Raytheon personnel 
were given oral and written guidance regarding unallowable costs. including how to 
identify unallowable costs under FAR Part 31 (supp. R4, tab 351; tr. 21159-60; GPFF 
~ 222 ). In connection with consultant costs, during this course Raytheon employees 
were presented with an example when a DCAA audit "reveals that while copies of the 
[consultant" s] invoices were retained by the area receiving the services, there was no 
written or tangible work product. and the only version of the consultant agreement 
available was an unsigned draft copy" (supp. R4. tab 351 at 5030; see GPFF ,-J 223). 
The •·facilitator Notes·' stated: 
In this example. the costs are unallowable since the 
consultant's services related to [M&AJ activity, which is 
made unallowable by FAR 31.205-27. Organization Costs. 
However, even if the consultant's services were for an 
allowable activity. the government would most likely 
consider these costs unallowable. 
This is another area where there have been audit issues in 
the past. Specifically, DCAA has questioned costs where 
consulting agreements were not signed and where there was 
no evidence of work product. The FAR requires, among 
other things, that details of all agreements (including scope 
of work and rate of compensation), invoices with sufficient 
detail, and consultants· work products be available as 
evidence to determine whether the costs are allowable. 
The retention of consultants is covered by Raytheon policy 
000000025-RP and generally. adherence to Company policy 
will result in maximum cost recoverability. This case is 
another example of where audit issues arise as a result of 
inadequate compliance with Company policy. Failure to 
69 

adequately comply with Company policies will needlessly 
result in allowable costs being considered unallowable by 
the government. 
(Supp. R4, tab 351 at 5029: see GPFF ~ 224) 
109. Raytheon Air Defense and Naval Systems (ADNS) was the predecessor 
business segment to IDS. Raytheon ADNS became Raytheon IDS in or around 
CY 2003. (Tr. 1184-85, 104; GPFF ~ 226) In 2002 and 2003 DCAA issued audit 
reports on ADNS' incurred cost proposals for CY 2000 and 200 I, which detennined 
that the proposals contained expressly unallowable consulting costs, including for 
Stephen Stanvick. one of the consultants whose costs are at issue in these appeals. that 
were subject to a level 1 penalty. The first audit concluded that ADNS had not provided 
any support for Mr. Stanvick's costs. The second audit concluded that it had not 
provided a consultant agreement for him, as required by FAR 3 l .202-33(f). (Supp. R4 
tab 114 at 1366, tab 119 at 1542-43: tr. 1185-88) 
110. Thereafter IDS and DACO D' Adamo negotiated lump sum compromise 
settlements that reduced the amount of questioned costs and penalties recommended by 
DCAA as reflected in DACO D'Adamo's two COFDs, dated 1 July 2005. IDS did not 
agree that inadequately supported consultant costs were expressly unallowable. The 
decisions did not specify the costs at issue. (See supp. R4, tabs 253, 254, 279 at 3068, 
3077-78. 3083; app. supp. R4 tab 666 at 3517; tr. 1/88, 94-95. 140-41, 143-44) 
111. In 2004 IDS hired David Powers as a manager of government accounting. 
He had worked for two decades in government accounting roles at three other 
government contractors. Mr. Powers' major responsibilities included "scrubbing" 
unallowable costs from IDS' annual incurred cost proposals and supporting DCAA's 
audits. His scrubbing process typically started at the end of the calendar year, such that, 
in January 2005. he began to look at IDS' 2004 costs and in January 2006, he began to 
review the 2005 costs. (Tr. 11167-68. 171. 173, 2/87-89, 5/9: GPFF ~ 239 with app. 
add., GPFF ~ 240) 
112. Mr. Powers independently sampled certain cost elements, coded as allowable in 
IDS' booking system. that he considered to be "high-risk" (tr. l 1177). including lobbying 
and consulting costs, and attempted to remove any unallowable costs. His supervisor, 
Randall Kerr, performed a "cursory review at the end of the process" (tr. 11175), examining 
key findings. in preparation for their meeting with the IDS CFO to give him a basic 
summary of the cost determinations. Mr. Powers consulted with Mr. Kerr on any issues that 
required discussion. Mr. Kerr had never disagreed with Mr. Powers' conclusions. 
(Tr. 11172-79, 184. 191. 2/19. 89-90, 96: GPFF ~ 241 with app. add., GPFF ~ 242) 
70 

113. When Mr. Powers first joined IDS in 2004, there was an issue of 
insufficient documentation regarding engineering consultants. also referred to as 
technical consultants. and some of the business development consultants. One of his 
responsibilities was to correct this. To do so, and to correct an issue of consultants not 
receiving timely payment. Mr. Powers was tasked with performing the original coding 
of the allowability of the costs of IDS' technical consultants, including Mr. Stanvick, 
for CYs 2004 and 2005. (Tr. 11180, 182, 189. 217-18; GPFF iii! 244-46) 
114. In analyzing whether consultant costs were unallowable for CYs 2004 and 
2005, Mr. Powers was unaware that Raytheon did not appeal. and had paid, at least a 
portion of the consultant penalties assessed in DACO D' Adamo's 1 July 2005 COFDs 
(finding 110) and he was unaware of CACO Homer's 1997 and 1998 "Determination[ s] 
of Noncompliance/Notice of Cost Unallowability" regarding ··consultant Service 
Costs'" (findings 104. I 06). (Tr. 216-7; GPFF ~~ 248. ii 249, with app. add.) 
115. As part of his scrub of the 2004 IDS Proposal. Mr. Powers removed 
$90.000 of consulting costs as unallowable under FAR 31.205-33 because he could not 
locate a consulting agreement and/or invoices (tr. 11180. 198; GPFF ,-[,-[ 250-51 ). After 
Mr. PO\vers' scrub was complete, the final IDS proposal was brought to IDS" CFO. 
After a summary presentation by the Manager of Business Governance. the CFO 
certified that IDS was not submitting unallowable costs to the government for 
reimbursement. For CYs 2004 and 2005, the process took about 45 minutes to an hour. 
(App. supp. R4. tabs 644. 655; tr. 2/92-94, 155-58; GPFF ii 252) 
DCAA's 2002-2005 Audits of IDS 
116. For CYs 2002-2005 DCAA audited ADNS' and IDS' incurred cost 
proposals and opined that unallowable costs had been included in each one, including 
consultant costs said to be unsupported and expressly unallowable under FAR 31.205-
33. Raytheon does not agree that the consultant costs at issue in these appeals were 
expressly unallowable. (Supp. R4. tab 146 at 1929-31, tab 256 at 2707-09, tab 277 at 
3006-09. tab 278 at 3059. tab 284 at 3126-28; tr. 1/101-03; GPFF ii 253, with app. add.) 
117. On 30 June 2004 DCAA issued an audit report on ADNS' CY 2002 
incurred cost proposal. which determined that ADNS had included unallowable and 
expressly unallowable cost items in its CY 2002 incurred cost proposal, including 
expressly unallowable consulting costs for Mr. Stanvick and others. DCAA stated that 
the contractor had failed to provide consulting agreements and work product details as 
required by FAR 31.205-33( t) and opined that the expressly unallowable costs were 
subject to a level one penalty. (Supp. R4, tab 146 at 1929-30; tr. 11102-03) 
71 

I 18. As part of its audit evaluation of IDS' CYs 2003 and 2004 consulting costs, 
DCAA wrote to Mr. Powers on 15 November 2004 and 19 January 2006 respectively, 
asking for copies of or access to the following types of supporting documentation: 
1. Consultant agreements[.] 
2. Consultant's work products (reports, briefings, etc.) and 
billings. 
3. Correspondence between consultants and the contractor. 
4. Travel vouchers and trip reports. 
5. Internal audit reports providing coverage in this area. 
6. Any other documents. which provide evidence of the 
nature and scope of the services furnished and the 
reasonableness of the amounts. charged. 
7. Any data. reports, or listings supplied to CPAs. the SEC, 
or others of sensitive consultant costs. 
(Supp. R4, tab 214 at 2320-21, tab 265 at 2878-79; tr. 11266-69) 
119. On 3 August 2005 DCAA issued an audit report on IDS' CY 2003 proposal 
which reached the same conclusions as the 30 June 2004 audit report concerning consulting 
costs for Mr. Stan vi ck and 
others (supp. R4, tab 256 at 2707-08~ tr. 1/104-05: finding 117). 
120. On 25 August 2006 DCAA issued an audit report on IDS' CY 2004 proposal. 
DCAA 
questioned $52,979 of the consultant costs for the late Vice Admiral J. Guy Reynolds 
(Ret.) under FAR 3 l .205-33(f) due to failure to provide a defined work product. It also 
questioned $62, 142 of his costs as unreasonable under FAR 31.201-3 on the ground that he 
had made extravagant trips to Hawaii, Spain and Australia, including flying first class. 
Raytheon later withdrew certain first class airfare costs. (Supp. R4. tab 279 at 3081-82) 
DCAA questioned Mr. Stanvick's consulting costs on the ground that his invoices did not 
contain enough detail as to time expended and nature of the services rendered. DCAA 
determined that the costs for each of these consultants were expressly unallowable and 
subject to a level one penalty. (Supp. R4, tab 277 at 3006-08) 
12 I. On 9 August 2007 DCAA issued an audit report on IDS' CY 2005 proposal 
which questioned consultant costs for Mr. Stanvick and V ADM Reynolds under 
FAR 
31.205-33 and detern1ined that they were expressly unallowable and subject to a 
level one penalty (supp. R4, tab 284 at 3126-27). DCAA again found that Mr. Stanvick's 
invoiees did not contain enough detail as to time expended and nature of the services 
rendered. It questioned V ADM Reynolds· costs due to lack of work product and reported 
that all of his invoices contained the same description (below). (Id. at 3127) 
122. In the years following these audits, IDS and DCMA negotiated regarding 
IDS' CYs 2002-2005 incurred costs (tr. 1/101, 105-21, 2/99-101; GPFF ~ 264). During 
72 

the negotiations for CY 2005, IDS responded to DCMA's allegations that there was no 
work product for Mr. Stanvick by noting that he was on a retainer, which would be paid 
even if he performed no effort. Mr. Pflaumer cited Mr. Stanvick's Patriot Missile 
expertise as a reason for keeping him on retainer. After CY 2005 Raytheon decided to 
eliminate retainers and Mr. Stanvick was no longer a consultant. (Supp. R4, tab 279 at 
3082; ex. G-1 at 9682) During the negotiations with DCMA, IDS agreed to remove as 
unallowable certain costs. including all of the consultant costs currently at issue in these 
appeals (supp. R4, tab 279 at 3068; tr. 11108-09. 2/105; GPFF ~ 266). However, the 
parties were unable to reach agreement as to whether any of the costs were expressly 
unallowable and subject to penalties (supp. R4. tab 279 at 3068, tab 299 at 3342, 
tab 300 at 3352; tr. 1/111, 21106-08, 185; ex. G-1at9682; GPFF ~ 267). 
123. Shared notes dated 1 October 2006 of the parties' negotiations stated: 
Randy Kerr [IDS' Manager of Business Governance] 
asked if the questioned costs would be subject to penalty. 
He stated that the consultant costs are not expressly 
unallowable. Tony D' Adamo stated that the prior incurred 
costs negotiations had resulted in his decision that 
consultant costs not having an agreement or work product 
should be removed from the incurred cost submissions. 
Raytheon had agreed to the questioned costs at prior 
negotiations. 
(Supp. R4, tab 279 at 3068; tr. 11109-11; GPFF ~ 268) 
124. By letter to DACO D'Adamo dated 16 December 2009 regarding the 
CYs 2002-2005 negotiations and DCAA 's penalty recommendations, Mr. Kerr 
contended, inter alia. that consultant costs were not per se expressly unallowable but 
could be unallowable under certain circumstances. He requested that DACO D' Adamo 
refrain from assessing penalties on costs that were not expressly unallowable and that he 
waive certain penalties. (Supp. R4. tab 300) 
125. In September 20 l 0, more than six years after Mr. Stanvick' s 2004 
consulting agreement (below) was signed, Mr. Grzyb took over for Mr. D'Adamo as 
DACO for IDS. The parties' negotiations regarding IDS· 2004 and 2005 incurred cost 
submissions were already complete when Mr. Grzyb joined DCMA. Mr. D'Adamo 
assisted in his transition and served as his direct supervisor. (Tr. 11124-27, 165-66. 
2/179-84; GPFF ~ 272) DACO Grzyb determined that IDS did not meet the criteria for 
waiver under FAR 42. 709-5 and, in a memorandum for the file dated 29 August 2011 
concerning CY 2004 costs, he stated that the consultant costs at issue were expressly 
unallowable because IDS was unable to provide substantiating documentation (supp. 
73 

R4, tab 313 at 3485. 3489; tr. 2/225, 227). He issued a similar memorandum, dated 
17 July 2012. concerning IDs· CY 2005 costs (supp. R4, tab 322). 
126. No COFDs were issued for CY s 2002 and 2003 that asserted government 
claims for the types of costs at issue in these appeals (see tr. 2/195). 
127. DACO Grzyb issued a COFD dated 30 August 2011 asserting penalties and 
interest totaling $778,368 against IDS for including allegedly expressly unallowable 
costs in its CY 2004 incurred cost proposal. Of that amount. $588,094 was principal 
and $190,274 was interest. The decision stated that the $588,094 represented "'the 
portion of the disallowed costs allocable to covered contracts" and that the DACO had 
.. determined that Raytheon IDS has been paid for these expressly unallowable costs 
through interim billings." (Supp. R4, tab 315 at 3518-19) Regarding consulting costs, 
he determined that VADM Revnolds' 2004 costs, in the amount of $52.979, and 
~ 
Mr. Stanvick's 2004 costs, in the amount of $54,046, were "expressly unallowable'· as 
no work product was submitted. He cited FAR 3 
l .205-33(f) as the basis for his 
decision. (Supp. R4, tab 315 at 3517; tr. 2/231) 
128. DACO Grzyb issued another COFD, also dated 30 August 
2011, which 
determined that the same CY 2004 costs were "unallowable" and had to be removed 
from all provisional and final billings. This decision included an additional $10,000 of 
V ADM Reynolds· costs on the ground that his consultant travel costs for trips to 
Hawaii. Spain and Australia were unreasonable as they exceeded what a prudent 
business would pay. (Supp. R4, tab 316 at 3531) 
129. With respect to his COFD assessing penalties regarding CY 2004 costs, 
DACO Grzyb testified: 
Q So, when you were fonnulating your decision for 
CY 2004, did you consider 2002 and 2003? 
A Absolutely. Yes, I considered them. Again. like I 
said, I considered the whole picture of everything I had in 
front of me from 2000 through 2005, the audit reports. 
previous decisions that penalized similar costs. and where 
Raytheon had paid similar costs. You know. Stanvick, for 
instance. was penalized in, I think, 2000. 2001, and ... in 
every year after that as having 
costs. including in the 
incurred cost proposal. They were questioned and 
sustained. So, again, I used everything in order to try to 
make a full, overarching view of the position. 
74 

Q So, you mentioned Mr. Stanvick had costs in 2002 
and 2003. How specifically did [this] influence your 
decision in 2004? 
A Well, again, he had - again, in 2002, 2003, we 
really had, from what I remember, ... a significant lack of 
documentation. I don·t think he had anvthing. I don't think ,, .... 
we had agreements or invoices or work product. I think in 
2004 ... he didn't have work products, you know, inadequate 
invoices, and, you know, an agreement which was only 
issued halfway through the year. 
So. you know, again, it just ends up being a history of 
the same type of cost that we see over and over as being 
subject to penalty. 
(Tr. 2/196-97) 
130. By letter of 27 September 2011 to DACO Grzyb. referring to his decision 
regarding CY 2004 costs said to be expressly unallowable. Anthony F. O"Brien, IDS' 
Vice President of Finance and CFO, noted that IDS did not agree with the findings and 
application of penalties and interest. Nonetheless Raytheon paid $480, 159 of the 
$778.368 the DACO had demanded. covering penalties on various cost items. It did not 
pay penalties on consultant costs. disputed that it owed interest on penalties, and stated 
its intention to appeal. IDS disagreed that the government had paid the costs at issue: 
Relative to the application of interest, as provided in 
FAR 42. 709-1. interest is only applicable on the paid portion 
of the disallowance subject to penalty. To date, IDS has 
billed the US Government using only the approved billing 
rates established 
by the DCMA which included a decrement 
to reflect historically disallowed amounts as provided in 
FAR 42.704. The costs identified as expressly unallowable 
have not been billed to the US Government, therefore no 
interest would be applicable. 
(Supp. R4. tab 318 at 3570) 10 
10 IDS also contended that penalties on certain items must be waived because they were 
under 
$10,000 each. IDS has since abandoned this contention. (Supp. R4. 
tab 318 at 3570; tr. 21119-20: GPFF ~ 282) 
75 

13 l. On 30 September 20 l l Raytheon appealed to the Board from 
DACO Grzyb's 30 August 
2011 COFD asserting penalties and interest against IDS for 
including allegedly expressly unallowable costs in its CY 2004 incurred cost proposal. 
The Board docketed the appeal as ASBCA No. 57798. Raytheon did not appeal from 
DACO Grzyb's separate COFD of the same date. which determined that the same 
CY 2004 costs were unallowable (tr. 2/121, 231-32). The notice of appeal mentioned 
the total $778,368 amount assessed in the COFD and did not exclude any of the cost 
elements cited by the DACO. However, by the time of the hearing, it was apparent that 
only the matters addressed below are in dispute in ASBCA No. 57798. 
132. By COFD dated 19 July 2012, DACO Grzyb assessed penalties and interest 
against IDS totaling $633, 70L of which $486,65 7 \Vas penalty and $14 7 ,045 was interest, 
for the inclusion of various cost items in its CY 2005 incurred cost proposal said to be 
.. expressly unallowable" (supp. R4. tab 323 at 3683 ). This included allegedly unsupported 
consulting costs for Mr. Stanvick, VADM Reynolds, and Kissinger & Mclarty in the 
amounts of $72.000, $216.540, and $420,000, respectively. DACO Grzyb cited 
FAR 31.205-33 as the basis for his consulting cost decision. (Id. at 3684) The decision 
stated that the $486,657 represented "the portion of the disallowed costs allocable to 
covered contracts" and that the DACO had "determined that Raytheon IDS has been paid 
for these expressly unallowable costs through interim billings·· (id. at 3685-86). 
133. DACO Grzyb issued another COFD, also dated 19 July 2012, which 
determined 
that the same CY 2005 costs were "unallowable" and had to be removed 
from all provisional and final billings (supp. R4, tab 324 at 3699, 3701). 
134. By letter dated 14 August 2012 to DACO Grzyb. referring to his decision 
regarding CY 2005 costs said to be expressly unallowable, IDS' CFO O'Brien noted 
that it did not agree with the findings and application of penalties and interest. 
Nonetheless, Raytheon paid $242,589 of the $633,702 the DACO had demanded, 
covering penalties on various cost items. It did not pay penalties on consultant costs, 
disputed that it owed any interest on penalties, and stated its intention to appeal. For the 
same reasons quoted above regarding IDS' 2004 costs (finding 130). IDS disagreed that 
it had billed for, and the government had paid, the costs the government alleged to be 
expressly unallowable. (AS BC A No. 58280, R4, tab l 0) 
13 5. In the meantime. on 13 August 2012 Raytheon appealed to the Board from 
DACO Grzyb's 19 July 2012 COFD asserting penalties and interest against IDS for 
including allegedly expressly unallowable costs in its CY 2005 incurred cost proposal. 
The Board docketed the appeal as ASBCA No. 58280. Raytheon did not appeal from 
the DACO's separate COFD of the same date, which had claimed that the same costs 
were unallowable (tr. 2/120-21, 234 ). The notice of appeal mentioned the total 
$633,702 amount assessed in the COFD and did not exclude any of the cost elements 
76 

cited by the DACO. However, by the time of the hearing, it was apparent that only the 
matters addressed below are in dispute in ASBCA No. 58280. 
136. Raytheon's appeals from CACO Dowd's decisions assessing penalties 
against it covered the following consultant costs: 
J. Guy Reynolds, 2004 -- $52,979 
Stephen Stanvick. 2004 -- $54,046 
TJK Consultants Ltd., 2004 -- $18.000 
J. Guy Reynolds. 2005 -- $216,540 
Stephen Stanvick, 2005 -- $72,000 
Kissinger Mclarty Associates. lLC, 2005 -- $420,000 
(Supp. R4, tab 315 at 3517-18, tab 323 at 3684-85: APFF ~ 90) Raytheon did not contest 
various other costs identified in the decisions. 
13 7. Prior to the hearing Raytheon agreed to withdraw IDS' 2004 costs for 
V ADM Reynolds and TJK Consultants and its 2005 costs for Kissinger Mclarty 
Associates, without conceding that they were unallowable, and the government 
withdrew its associated penalty claims (tr. 9/23-24, 72-74; ex. A-28). 
Stephen Stanvick's Consulting Services 
138. Mr. Stanvick was for many years an IDS engineer, then program manager, 
and from 1980-85 served as chief engineer for the Patriot Missile Defense System. 
During the first Gulf War he gained international recognition for his successful efforts 
leading the IDS program that fielded the first battery of Patriot missiles to intercept 
enemy missiles in a combat setting. Mr. Stanvick became a vice president of Raytheon 
in 1993. (App. supp. R4, tab 506. see tab 522: tr. 8174-76, 79-81, 83, 87: APFF ~ 93) 
139. Mr. Stanvick retired from Raytheon in 1998 and worked as a consultant 
from 1998 through 2005. He was given a copy of Raytheon's consulting policy when 
he first starting working as a consultant. Mr. Stanvick"s memory was not strong on 
whether he signed any consulting agreements prior to 2004. He believed 
he signed 
some one-page agreements, beginning when he became a consultant in 1998, but the 
record does not contain any such agreements. (Tr. 8/81-82, 113, 117-18) 
140. At the end of June 2004. Raytheon and Mr. Stanvick entered into a written 
consulting agreement for the period l January 2004 through 31 December 2004. The 
Statement of Work provided in part: 
During the term of this agreement Consultant will be 
available to consult with Raytheon management in 
77 

connection with various IDS Programs and initiatives. His 
tasks will include but not be limited to: Red Teams, 
proposal reviews. reviews of briefings and technical 
analyses. writing and/or reviewing papers for outside 
publication, strategic planning, evaluation/assessment of win 
strategies. advice on new areas of technical concentration. or 
any other matters relating to the full scope of IDS products 
or services. Additionally, consultant may be requested to 
represent Raytheon on Association of the United States 
Anny (AUSA) issues. 
(Supp. R4, tab 145 at 1911) Mr. Stanvick was to be paid a retainer of $6,000 per 
month. plus expenses not to exceed $20,000. He was to comply with all Raytheon 
policies and all Federal regulations. The agreement provided that the '"Consultant shall 
submit invoices on a monthly basis, along with a detailed report describing the services 
performed" (id. at 1912). Mr. Stanvick was not paid. and Raytheon's government 
contracts were not charged, for his 2004 consulting services until after the 2004 
agreement was signed (tr. 2/78- 79, 8/101 ). In December 2004 the consulting agreement 
was amended to extend through 31 December 2005 (supp. R4 tab 233). 
141. As a consultant, Mr. Stanvick never lobbied Congress on behalf of 
Raytheon. The work described in his consultant's agreement reflected the work he 
performed as a consultant except that he did not write much. He presented his 
infonnation orally or in dictation to an assistant. He was getting paid to ·•stay alert" and 
to help Ra)1heon (tr. 8/96). Several missile engineers would call him and ask questions. 
Some of his non-classified work was by telephone and in-person contact. He provided 
and was available for technical assistance, guidance and training. He advised on what 
types of analysis and what types of tests should be performed. He led meetings and 
participated in ·'Red Team'' (a cast of people with a lot of experience (tr. 8/93)) review of 
bid and technical proposals and Cost and Operational Effectiveness Analyses, including 
handwritten mark-ups, which were destroyed because much of the data was classified. 
He consulted concerning the Strategic Defense Initiative and participated in drafting a 
white paper concerning Raytheon's missile capability. Mr. Stanvick had a top secret 
clearance with multiple "black" access programs at a higher classified level. His work on 
the Patriot Missile System was highly classified. Part of his consultant work was on 
missile deployment studies. His work on missile systems documents prepared by others 
was classified. "'[I]n Mr. Stanvick' s case, again, a lot of what he did was highly technical 
and classified information·· (tr. 11243). In most cases the nature of Mr. Stanvick's work 
did not generate a tangible work product. He did not send emails regarding his 
professional work; did not have a laptop from Raytheon: and his home computer was not 
cleared for classified work. Regarding consulting, he only used his computer to prepare 
his invoices. (Tr. 2/46, 74. 8/82, 89-99, 103-05, 110-11, 124, 127-30. 132-33, 139) 
78 

142. Raytheon stated in its amended response to interrogatory No. 19 in the 
government" s second set of interrogatories that: 
In 2005, Mr. Stanvick performed much less work for 
Raytheon for various reasons, including the demands of 
Operation Iraqi Freedom lessened. In the majority of 
months in 2005. Mr. Stanvick performed no work at all for 
Raytheon. 
(Supp. R4, tab 334 at 4374-75) Mr. Stanvick 
never saw this interrogatory response and 
was not asked to provide input to it. In his view ·•no work" was an overstatement. He 
\Vas slowly winding down his \Vork in 2005 as more individuals at Raytheon \Vere 
getting trained properly. (Tr. 81149-50) There is no evidence that Mr. Stanvick did not 
remain willing to perform. 
143. As Mr. Powers affirmed, under his consulting agreements 
Mr. Stanvick was 
entitled to be paid for simply being available to perform work. As a consultant on 
retainer he did not necessarily have to perfonn work on a monthly basis. During the 
entire period from 2004 through 2005 he remained available to perform work as 
required. Although he was asked to continue. Mr. Stanvick ceased formal consulting 
work after 2005 because he felt he had worked for Raytheon long enough; he believed a 
consultant's active life was limited; other personnel were handling the systems quite 
well; and he moved to Maine. Thereafter, he provided some advice without charge. 
(Tr. 11223, 8/97-98, 105-08, 139-40. 150) 
144. Some of Mr. Stanvick's invoices of record for 2004 contain a brief 
description of the services he rendered, including inter alia, telephonic conferences, a 
Patriot meeting, and a Taiwan radar system Red 
Team; others do not. The 2005 
invoices do not 
contain any descriptions of the work performed. The August 2004 and 
December 2005 invoices are missing from the record, but Mr. Stanvick would 
not have 
been paid had they not been submitted. He confirmed that he was paid for every month 
of 2004, but he was not asked about 2005. Mr. Stanvick acknowledged that he did not 
provide detailed reports with the invoices, as called for in his consulting agreements. 
Certain matters he worked on were not included in his invoices because of his adversity 
to writing and because some were classified. Although his October 2004 invoice 
includes attendance at an AUSA Soldier of the Year Award event, Raytheon coded the 
costs as unallm.vable and has not charged them to the government. (Supp. R4, tabs 152, 
234; tr. 2173. 8/101, 123-24, 133, 136-37) 
145. Mr. Stanvick's invoices were reviewed and approved for payment by his 
sponsor. Tim Carey, a Raytheon missile engineer and executive in the Patriot Program 
Office who was personally familiar with Mr. Stanvick's consulting services. or by 
Mr. Carey's designee. A ''sponsor·· is the individual who initiates the retention of a 
79 

consultant. With the noted exception (finding 144), Mr. Stanvick's 2004 and 2005 costs 
were coded as allowable. In determining that Mr. Stanvick's costs were allowable, 
Mr. Powers relied upon having a current, fully executed consulting agreement. POs. and 
the approved invoices. He received a summary of those documents from the centralized 
contract administrator. (Supp. R4. tabs 152. 234; app. supp. R4, tabs 575, 624: 
tr. 1/189. 220-21, 223-24, 228, 231-33. 2/44-45. 47-49. 52-54. 81108-110) 
146. Mr. Stanvick·s costs for CYs 2004 and 2005 total $126,046 (supp. R4, 
tab 315 at 3517 ($54,046 for 2004). tab 323 at 3684 ($72,000 for 2005); GPFF ~ 288). 
147. Mr. Powers provided DCAA with Mr. Stanvick's consulting agreements. 
POs, and his invoices. To Mr. Powers' knowledge. DCAA did not attempt to interview 
Mr. Stanvick or anyone in the Patriot Program Office to inquire about the nature of his 
work and there is no evidence that it did. (Tr. I /251-52. 2/55-56, 76) 
148. DACO Grzyb acknmvledged that DCAA questioned. and he assessed 
penalties, on Mr. Stanvick's fees only under FAR 31.205-33([}, for alleged lack of 
written work product, and not under FAR 31.205-33( e ). He also acknowledged that a 
retained consultant is entitled to be paid the amount of the retainer even if the consultant 
did not perfonn any work in a given month. (Tr. 315-7) 
149. During negotiations over IDS. 2004 and 2005 incurred cost submissions, IDS 
withdrew Mr. Stanvick's consulting costs. This was not an agreement that the costs were 
unallowable or expressly unallowable but was part of attempts to settle and close out the 
years in question. (See supp. R4, tab 279 at 3068: tr. 1/108-09. 142, 251, 2/102-03) 
IDS Consultant Vice Admiral J. Guv Reynolds 
150. Raytheon disputes the portion ofDACO Grzyb's 19 July 2012 COFD that 
assessed penalties and interest due to IDS' inclusion of $216,540 in allegedly expressly 
unallowable trip costs for V ADM Reynolds in its CY 2005 proposal. The government 
based its claim upon FAR 31.205-33([) and an alleged lack of work product. 
DACO Grzvb's COFD regarding CY 2004 costs had similarlv 
determined that .,, ......,, ~- .,, 
V ADM Reynolds. consulting costs for CY 2004 were expressly unallowable due to lack 
of work product, but the government withdrew this claim prior to the hearing. (Supp. 
R4. tab 323 at 3683-85; tr. 9/22, 24; GPFF ~ 106 with app. add.) 
151. V ADM Reynolds. who died prior to the hearing, was •·extremely well 
respected and also a legend in the submarine community'" (tr. 9/54 ). According to 
Michael Charley, VADM Reynolds' technical contact at IDS, who tasked him with his 
consulting assignments (tr. 9/10-11 ), IDS retained V ADM Reynolds as a consultant 
because: 
80 

Vice Admiral Reynolds was a very unique individual in that 
I believe he was the only naval officer, if not the only one, 
certainly one of the very few who held billets within the 
Navy at the level of admiral in the intel community, in the 
R&D community, and in the operational community. And 
because of that, he had an expertise and experience that is 
really second to none .... And of course as a business. you 
are interested in all of those areas . 
. . . We were in the submarine business. So, he had 
very specific program experience and knowledge and 
product experience and knowledge. So. he was a very 
value-added commodity for us. 
(Tr. 9/8-9) VADM Reynolds was not retained to, and did not, lobby Congress on behalf 
of Raytheon, although he did attempt to get U.S. Government work for Raytheon 
(tr. 9113-14, 63: see also supp. R4, tab 238 at 2493 (Tasking Statement)). 
152. In January 2005, via bilaterally executed PO, VADM Reynolds and 
Raytheon entered into the time-and-materials consulting agreement at issue, effective 
from 1 January 2005 to 31 December 2005 (supp. R4, tab 238 at 2489). The Statement 
of Work provided in part that V ADM Reynolds was to .. [a ]ssist in the identification of 
business opportunities with the US Government and its Allies for [IDS], and provide 
strategic planning 
for future core business areas as requested" (id. at 2493). The level 
of effort was to be eight days per month (id.) The labor rate was $1,600 per day or 
fraction thereof. With prior approval of the Raytheon sponsor, Raytheon was to 
reimburse V ADM Reynolds for reasonable domestic and international travel expenses 
to include. inter alia. economy or coach class airfare. (Id. at 2489) 
153. VADM Reynolds' 2005 consulting agreement listed information 
·•required by Raytheon Company and USG auditors for processing invoices," which 
included in part: the period of performance covered by the invoice; the program or 
task and person authorizing the task; expense statement with supporting 
documentation to substantiate the invoiced costs; and a "[ d]etailed report of 
Consultant activities, for period being invoiced, to include recommended action for 
Raytheon Company" (supp. R4, tab 238 at 2489-90). VADM Reynolds' Tasking 
Statement for 2005 provided, inter alia: 
Although Consultant will advise and inform appropriate IDS 
personnel of pertinent information as required and in a 
timely manner, Consultant will routinely provide. as a 
minimum, a monthly report of current activities. planned 
81 

projects, proposed initiatives and potential opportunities 
worthy of IDS pursuit and development[.] 
(Supp. R4. tab 238 at 2493) 
154. As part of Mr. Powers' "scrub, .. he reviewed VADM Reynolds' costs for 
2005 and decided to leave them coded as .. allowable." He '"probably .. was looking at a 
summary from the centralized contract administrator of what infonnation that office 
had. (Tr. II 195-97, 256. 2/22: G PFF ~ 313) 
155. DACO Grzyb's IDS COFD, covering CY 2005. assessed penalties on the 
costs included in all of V ADM Reynolds' invoices for 2005, which totaled $216,540 
(supp. R4, tab 323 at 3684 ). Each invoice described his services as: 
[S]upport to Raytheon for activity including strategic 
planning for ship programs. torpedo systems, mine counter­
measures, technology insertion, Tomahawk missile 
program. airborne ASW. international programs. meetings 
and travel as required. 
(Supp. R4, tab 264 at 2776, 2783, 2793, 2802. 2811, 2822, 2831, 2850, 2857, 2863, 
2877, 2869) They each stated that all work was performed for Mr. D.L. Smith (IDS' 
president) (tr. 9/15). Each listed support services as ""Business Development," 
··Program Support" and ·'Report Preparation" and billed for various days of support at 
$1.600 per day. (R4, tab 264 at 2778) Except for the February 2005 invoice, which 
billed for six days of support at $9,600. but reflected no travel or meetings and did not 
describe VADM 
Reynolds' work (id. at 2877), the invoices described the purpose of the 
travel for which VADM Reynolds was billing, as follows: Brazil for business 
development with the Brazilian Navy (id. at 2777); San Diego, California, for business 
development and program review at "EWC" (id. at 2784); Bonn, Germany, for business 
development conference (id. at 2787); Kiel, Germany, and Amsterdam for business 
development at '·RMC and in Amsterdam" (id. at 2794 ): San Diego for strategic 
dialogue at EWC and to meet with U.S. Government officials (id. at 2797): Athens. 
Greece. and Naples. Italy. for business development (id. at 2803); Newport, Rhode 
Island, for .. Active Sonar/ Mammal Meeting at NIC" (id. at 2806); Groton, Connecticut, 
to attend ··NDIA" conference (id. at 2812); Kiel and Hamburg, Germany, for business 
development (id. at 2816); Newport. Rhode Island, for "Strategic Dialogue at NIC" (id. 
at 2823); Newport for "Strategic Dialogue with NIC and Torpedoes at NUWC" (id. at 
2826); San Diego to attend "NDIA ASW Conference'' (id. at 2832); Newport for 
•·strategic Dialogue at NIS and NUWC'' (id. at 2836); Honolulu, HawaiL for "Calls 
with Commander Pacific Command, CINCPACFLT, Deputy CINCPACFLT, CSP, 
P-CSP & attend Submarine Conference" (id. at 2840): Amsterdam to attend "UDT 
[Undersea Defense Technology] Europe 
2005" (id. at 2851; see tr. 9/50); Hawaii to visit 
82 

··cPF. CSP and SDVT-1 ··(id. at 2858); Tucson, Arizona, for ·"Precision Strike SBA 
Meeting·· (id. at 2864 ( 12/04 expense billed in 2005)); Newport Rhode Island, for 
""Strategic Dialogue at NIS'' (id. at 2870): and Norfolk. Virginia. for discussions at Joint 
Forces Command (id. at 2873). VADM Reynolds certified the invoices, which were 
accompanied by detailed receipts (supp. R4, tab 264 ). 
156. Mr. Charley, who was credible, testified that VADM Reynolds prepared 
trip reports for every trip he took for Raytheon. including during 2005. Although there 
are examples of VADM Reynolds' reports for 2004 in the record (e.g., supp. R4. 
tab 272: app. supp. R4, tab 553) (no longer at issue because Raytheon withdrew his 
2004 costs and the government withdrew its penalty claim 
(finding 137)), there are none 
for 2005. VADM Reynolds' computer's hard drive crashed and he was unable to 
retrieve his reports. V ADM Reynolds asked Raytheon for assistance but Raytheon was 
not able to locate the reports for 2005. According to Mr. Charley, VADM Reynolds' 
2004 work product was typical of his work product for 2005. (Tr. 2/43, 9/35, 39, 42, 
45, 
48. 52-53; ex. G-1 at 9682, 9689) 
157. According to Mr. Charley. VADM Reynolds ·•generated a lot of written 
documentation. He was extremely organized and methodical." (Tr. 9/14) He "was very 
meticulous in filing trip reports, very detailed trip reports also" (tr. 9114-15). He 
communicated primarily by email with IDS president Smith and mostly spoke by 
telephone with Mr. Charley. His advice by email to Mr. Smith continued throughout 
2004 and 2005 and the 2004 emails 
were typical of those in 2005. (E.g., app. supp. R4, 
tab 543 (2004 emails); tr. 7/201, 9/15. 25, 32). Although Raytheon conducted a search, 
due to the fact that Messrs. Smith arid Charley are no longer with IDS, and due to 
Raytheon's standard computer recycling and electronic data retention. policies, emails 
pertaining to V ADM Reynolds from April 2004 through December 2005 are no longer 
available. It was not Mr. Charley's practice to retain emails or trip reports. In his 
position, he received 300 or 400 emails a day. He would retain the relevant infonnation 
in another manner. Due to a litigation hold in another matter Raytheon was able to 
retrieve numerous emails between Mr. Smith and V ADM Reynolds between January and 
March 2004 and approximately 776 such emails between November 2006 and August 
2009. (Tr. 7/201-06; 209-19. 9/60-62; ex. A-22 (notarized decl. of Woods K. Abbott) 
~il 7-10) We find that the emails of record evidence VADM Reynolds' regular contact 
with IDS and the nature of the work he was performing for IDS, even if they were not 
sent in 2005 (see. e.g .. app. supp. R4, tab 543 ). 
158. Mr. Charley never discussed V ADM Reynolds' work with DCAA or 
DCMA. DCAA never sought to interview anybody regarding VADM Reynolds' work 
but sought documentation of his work. (Tr. 2176-77, 9/57) DCAA's "'Negotiation 
Notes for CY 2005 IDS 4-10-2011 Meeting" state regarding VADM Reynolds' costs: 
83 

Raytheon argued that they have provided 2/3 of the 
required documents. Raytheon believes that this should be 
taken into consideration. The DACO stated that he is 
inclined to sustain the questioned costs due to a lack of work 
product. However. he did not make a final decision. 
(Ex. G-1 at 9702) 
159. Based upon all of the evidence, we find that Mr. Stanvick' s and 
V ADM Reynolds' consultant fees were reasonable. 
ASBCA Nos. 57798 and 58280 Discussion 
The Parties' Contentions 
The government contends that IDS included consultant costs in its incurred costs 
proposals for CYs 2004 and 2005 that were expressly unallowable under FAR 3 
l .205-33(t), 
which it asserts requires each of three forms of support: details of all agreements: invoices 
or billings; and work product and related documents. The government alleges that, for the 
tees of consultants on retainer to be allowable, the contractor must support them with the 
evidence listed in FAR 3 1.205-33( e ), which incorporates the documentation requirements of 
FAR 3 l .205-33(t). The government asserts that a long history of consulting costs 
challenged by DCAA and DCMA, including Raytheon's failure to appeal and its past 
payment of certain assessed penalties on consulting costs. establish that Raytheon could not 
reasonably have concluded that any unsupported consultant costs could be allowable; 
Raytheon's internal FAR Part 31 guidelines, corporate policy and training instructions were 
to the contrary. The government further contends that, for years, Raytheon did not obtain 
consultant agreements, purchase orders, invoices and/or work product regarding its 
consultants and often did not retain work product alleged to have been received. Moreover, 
Raytheon did not attempt to verify contemporaneously that it had supporting documentation 
before claiming the consultant costs at issue and belatedly first presented inadequate or 
unpersuasive evidence on the disputed costs at the hearing in these appeals. 
Specifically, regarding Mr. Stanvick, the government alleges that his costs are 
expressly unallowable for 2004 and 2005 because Raytheon failed to produce 
sufficiently detailed invoices or any work product and related documents associated 
with his services for CY s 2004 and 2005 or any support for his retainer fees. Regarding 
V ADM Reynolds, the government contends that his costs are expressly unallowable for 
2005 because Raytheon failed to produce any work product and related documents. 
Raytheon responds that the consultant costs that the government deems to be 
inadequately supported are not expressly unallowable. FAR 3 
l .205-33(t) does not require 
any documentation; it merely requires evidence of the nature and scope of the service 
84 

furnished, which can be in the form of oral testimony. Raytheon contends that the ·'long 
history·· of allegedly unsupported consulting costs cited by the government does not apply 
to these appeals because the circumstances are factually and legally distinguishable (app. 
br. at 155). There were lump sum settlements for CYs 2000 and 2001 and IDS did not 
agree that inadequately supported consultant costs were expressly unallowable. 
Raytheon states that DACO Grzyb disallowed and penalized Mr. Stanvick·s 
costs solely on the ground that they were inadequately supported and thus allegedly 
expressly unallowable under FAR 3 l.205-33(f). The government did not rest its claim 
on FAR 31.205-33( e ). Raytheon contends that the documentary and testimonial 
evidence it presented demonstrated the nature and scope of Mr. Stanvick·s services and 
that the work he performed was proper and did not violate law or regulation, \vhich is 
all that FAR 31.205-33(f) requires. Thus, Mr. Stanvick's costs were allowable and the 
government failed to meet its burden to prove that they were expressly unallowable. 
Similarly. Raytheon asserts that DACO Grzyb disallowed and penalized 
V ADM Reynolds· costs on the sole basis of lack of written work product. However, 
Raytheon presented documentary and testimonial evidence that demonstrated the nature 
and scope of VADM Reynolds· services and that the work he perfonned was proper and 
did not violate law or regulation. Thus, VADM Reynolds' costs were allowable and the 
government failed to meet its burden to prove that they were expressly unallowable. 
Ruling 
FAR 3 
l .205-33(b) opens with the premise that costs of consultant services are 
allowable when reasonable in relation to the services rendered, subject to exceptions. 
FAR 31.205-33(d) notes that, in detennining cost allowability, including retainer fees, 
•·no single factor or any combination of factors is necessarily determinative.'· Among 
other things. in assessing consultant cost allowability, a CO is to consider the 
qualifications of the consultant and the adequacy of the contractual agreement for the 
service. FAR 31.205-33( d)(7), (8). For consultants on retainer. such as Mr. Stanvick, 
there 
are some specific requirements, set forth in FAR 3 l.205-33(e). For example, 
retainer fees must be supported by evidence that the services are necessary and 
customary, reasonable, and documented in accordance with FAR 3 l .205-33(f). 
However, if no services are rendered, fees are not automatically unallowable. 
FAR 3 l .205-33(f) recognizes that retainer agreements generally are not based 
upon specific statements of work. Evidence necessary to determine that the work 
performed is proper and does not violate law or regulation is to include agreement 
details: invoices that show services performed; and work products and related 
documents. The drafters of FAR 31.205-33( f) were concerned that a consultant's 
billings made sense in light of the output received. If substantial funds had been paid 
but there was little or no evidence of the consultant's work, this might indicate that the 
85 

funds were employed for suspect purposes, such as bribes. The government was to 
determine that funds were not being spent on questionable activities. The drafters noted 
that the paramount concern was evidence of the reasonableness and legitimacy of the 
costs. not necessarily documentation. While the three sorts of evidence listed above 
\\·ere to be provided. auditor judgment was important and an auditor should not insist 
upon a work product if other evidence was sufficient to determine the nature and scope 
of the actual work performed by the consultant. (Findings 99-101) 
A 19 December 2013 MRD, albeit issued after the IDS audits and COFDs at 
issue, expresses similar themes. It states that auditor judgment is critically important in 
determining whether the totality of the evidence demonstrates the nature and scope of 
the consultant's services and that the type of evidence can vary significantly from case to 
case based upon the type of consulting effort. Information on an invoice or some other 
evidence of the service provided could suffice and a contractor may provide evidence 
created when the contractor incurred the cost as well as evidence from a later period. 
including through a meeting, to obtain oral or written documentation. (Finding 102) 
Here. the evidence establishes that both Mr. Stanvick and V ADM Reynolds were 
distinguished individuals with significant experience relevant to Raytheon's work on the 
Patriot Missile system, submarines, and otherwise (findings 13 8. 141. 151 ). and they 
clearly qualified as consultants under FAR 3 l .205-33(a). Both gentlemen had written 
consulting agreements for the periods at issue and their fees were reasonable 
(findings 140, 152, 159). There is no glimmer of evidence or concern that their 
consultant fees were employed for the suspect, illegitimate or illegal purposes of which 
the FAR 3 l.205-33(f) drafters were wary (finding 99). 
The COFDs at issue and the government have focused principally upon the work 
product requirements of FAR 3 l .205-33(f). cited in the COFD covering 2004 costs (the 
COFD for 2005 refers to FAR 31.205-33 in general) (findings 127. 132). Some of 
Mr. Stanvick's invoices contained a description of his services and others did not. 
Although he did not prepare written reports in support of his invoices, Mr. Stanvick's and 
Mr. Powers· credible testimony evidenced Mr. Stanvick's work product, some of which 
was written but most of which was oral, and his readiness to perform when called upon 
by Raytheon (findings 141. 143-45). Although Mr. Stanvick was winding down his work 
for Raytheon in 2005, there is no evidence that he did not remain willing to perform 
(finding 142 ). Indeed, FAR 31.205-33( e )(2) notes that, even if no services are rendered 
by a consultant on retainer, fees are not automatically unallowable (finding 96). 
The drafters of FAR 3 l.205-33(f) commented upon the importance of the exercise 
of judgment in evaluating whether work product requirements were met and that other 
than written evidence could establish the nature and scope of a consultant's services. 
Recently, the Board found consulting costs to be allowable when supported by other 
evidence, even if there was no written work product. Technology Systems, Inc., ASBCA 
86 

No. 59577, 17-1BCAir36,631at178.390. 178.392. In any case. much of Mr. Stanvick's 
work was classified and his work product 
could not be publicly disseminated or retained 
(findings 141. 144 ). This is comparable in part to an attorney's advice to his client, cited 
in DCAA 's 9 May 2002 MRD as an example of an occasion when there can be sufficient 
evidence of work performed, even if the actual work product is not provided. 
(Findings 99, 101, see also finding 102) 
Regarding the late VADM Reynolds. all but one of his invoices for 2005 
contained descriptions of his services (finding 155). Mr. Charley's credible testimony 
evidenced that V ADM Reynolds prepared trip reports for every trip he took for 
Raytheon in 2005. similar to his 2004 reports of record. although VADM Reynolds' 
computer had crashed and he no longer had the 2005 reports. Mr. Charley also testified 
credibly that V ADM Reynolds generated considerable written communications and that 
he was very meticulous in filing detailed trip reports. (Findings 156-57) 
Based upon the evidence adduced at the hearing, we determine that it was not 
unreasonable under the circumstances for Raytheon to conclude that Mr. Stanvick's 
consultant costs for 2004 and 2005 were allowable and that VADM Reynolds· 
consultant costs for 2005 were allowable. The government 
has not met its burden to 
prove that the consultant costs were expressly unallowable. 
We sustain Raytheon's appeals in ASBCA Nos. 57798 and 58280. 
DECISION SUMMARY 
( l) Prior to the hearing Raytheon agreed to withdraw the following of its 2004 
Corporate costs, without conceding that they were unallowable, and the government 
withdrew its associated penalty claims: Indra, Genesee, and Recruiting (Reminder 
Items). The government also withdrew its claim regarding T.A.B. Associates. 
(Finding 18) Prior to the hearing Raytheon also agreed to withdraw IDS' 2004 costs for 
V ADM Reynolds and TJK Consultants and its 2005 costs for Kissinger McLarty 
Associates, without conceding that they were unallowable, and the government 
withdrew its penalty claims regarding those costs (findings 137, 150). These matters 
are now moot and the associated portions of Raytheon's appeal are dismissed without 
prejudice. See Combat Support Associates, ASBCA Nos. 58945, 58946, 16-1 BCA 
ii 36,288 at 176,973. 
(2) Raytheon's motions to dismiss for lack of jurisdiction on the ground that the 
government did not originally identify the contracts or test contract under which the 
disputes arose and that it improperly revised and increased its fractional aircraft lease 
claims by relying upon the 2005 Advance Agreement are denied. 
(3) Raytheon's renewed motion to strike is denied. 
87 

(4) Raytheon's appeal in ASBCA No. 57743 from the government's claim for 
penalties and interest concerning aircraft fractional lease costs is sustained. 
(5) Raytheon·s appeal in ASBCA No. 57743 from the government's claim for 
penalties and interest concerning Challenger 604 aircraft costs is sustained. 
(6) Raytheon·s appeal in ASBCA No. 57743 from the government's claim for 
penalties and interest concerning Icent costs to design and build an M&A database is 
sustained. 
(7) Raytheon's appeal in ASBCA No. 57743 from the government's failure to 
waive penalties and interest assessed regarding lobbying costs is denied. 
(8) Raytheon·s appeals in ASBCA Nos. 57798 and 58280 from the government's 
assessment of penalties and interest regarding consulting costs are sustained. 
(9) Remaining quantum issues are remanded to the parties for resolution. If they 
are unable to resolve them they are to notify the Board. which will then conduct 
quantum proceedings. 
Dated: 17 April 2017 
I concur 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
88 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
DA YID D' ALESSANDRIS 
Administrative Judge 
Acting Vice Chairman 
Armed Services Board 
of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 57743, 57798, 58280, 
Appeals of Raytheon Company, rendered in conformance with the Board's Charter. 
Dated: 
89 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals