ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Symetrics Industries, LLC ) 

) 

Under Contract No. W58RGZ-07-C-0204 ) 

APPEARANCES FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 59297 

David Z. Bodenheimer, Esq. 

Jason C. Lynch, Esq. 

Crowell & Moring LLP 

Washington, DC 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

Robert B. Neill, Esq. 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 

INTRODUCTION 

Appellant timely appeals from a contracting officer's final decision claiming 

$121,824 plus interest accrued from the date of payment, for alleged defective pricing 

under a contract for modem units. The parties have elected to waive a hearing and 

submit their cases upon the record pursuant to Board Rule 11. We sustain the appeal. 

FINDINGS OF FACT 

On 30 August 2007, the Department of the Army awarded a letter contract, 

Contract No. W58RGZ-07-C-0204, to appellant, Symetrics Industries, LLC, for the 

production of295 Improved Data Modem (IDM) 304 units, (Joint Statement of 

Stipulated Facts (stip. 6)). Symetrics submitted a firm-fixed-price proposal (FFP) to 

procuring contracting officer (PCO) Hanford Jones on 7 December 2007 (stip. 9). 

PCO Jones negotiated the contract price on behalf of the Army, with the assistance of 

contract specialist Johnny Coleman (stip. 43). The Defense Contract Audit Agency 

(DCAA) assisted PCO Jones in the evaluation of the price proposal by conducting an 

audit of the proposal (see stip. 14). DCAA Auditor Sherry Hepfuer conducted that 

audit (stip. 14). 

Earlier, on 12 July 2007, the Defense Contract Management Agency (DCMA) 

had approved an overhead rate of 179.20% and a General and Administrative (G&A) 

rate of 25.60% for Symetrics's contractor fiscal year (CFY) 2007 (stip. 45). On 
7 January 2008, Symetrics submitted a Forward Pricing Rate Proposal (FPRP) to 

DCMA (stip. 47). On 23 January 2008, Symetrics submitted to PCO Jones a revised 

price proposal for the 295 IDM 304 units (stip. 13). The price proposal identified a 

direct labor overhead rate of 182.45% for CFY 2008, a direct labor overhead rate of 

186.47% for CFY 2009, and G&A rates of 18.24% for CFY 2008 and CFY 2009 (id.). 

On 4 February 2008, DCAA informed Symetrics that DCAA had been 

requested to audit the FPRP, and that DCAA had to complete the audit by 24 February 

2008, "for [the price] proposal being audited by Sherry Hepfner" (stip. 51 ). On 

7 February 2008, Symetrics sent DCAA the FPRP (stip. 54). The FPRP proposed 

overhead rates of 170 .3 8% and G&A rates of 17 .13 % for CFY 2008 and CFY 2009 

(stip. 54), lower than the rates identified in the price proposal (stip. 13). 

DCAA Auditor Hepfner audited Symetrics's price proposal for the 295 IDM 

304 units (stip. 14). By 21February2008, Auditor Hepfner was aware of the 

7 February 2008 FPRP, was aware that the FPRP contained new overhead and G&A 

rates (new, at least, since the approval of the CFY 2007 rates) (see stip. 27), and was 

aware that the FPRP would likely lead to lower forward pricing rates (stips. 26, 27; 

gov't br. at 13). Indeed, on 21February2008, Auditor Hepfner wrote to 

ACO Gilmore: 

We are currently auditing the subject proposal for a 

quantity of 295 Improved Data Modem [IDM] 304. This is 

to advise you that on February 7, 2008, Symetrics 

submitted a new Forward Pricing Rate Proposal (FPRP), 

for CFY s 2008 and 2009. Symetrics priced the proposal 

with the new Overhead and General and Administrative 

(G&A rates). We have not audited the FPRP. Therefore, 

we recommend that a clause be included in the FFP 

contract, which will provide for a downward only 

adjustment for any savings that may result from the 

adjustment of the proposed rates after completion of our 

audit of the Symetrics FPRP for CFYs 2008 and 2009, 

direct labor and indirect rates and factors. 

(Stip. 27) According to the government, that statement "plainly documents 

Ms. Hepfner's mistaken belief at the time that the IDM 304 'proposal' that she was 

then auditing was priced using [Symetrics's] newly updated overhead and G&A rates" 

(gov't reply at 9). 

Similar to Auditor Hepfner's message to ACO Gilmore, on 25 February 2008, 

DCAA issued an audit report (Auditor Hepfner is listed as a primary contact for the 

report (R4, tab 22 at 11)) on the price proposal that noted that: 

2 
On February 7, 2008, Symetrics submitted a new Forward 

Pricing Rate Proposal (FPRP), for CFY s 2008 and 2009. 

Symetrics priced this proposal with the new overhead 

(OH) and G&A rates. Therefore, ... we recommend that a 

clause be included in the FFP contract, which will provide 

for a downward only adjustment for any savings that may 

result from the adjustment of the proposed rates after 

completion of our audit of the Symetrics FPRP for CFYs 

2008 and 2009, direct labor and indirect rates and factors. 

(Stips. 28, 29) DCAA's report identified rates of 182.45% for CFY 2008 and 186.47% 

for CFY 2009, and G&A rates of 18.24% for CFY 2008 and CFY 2009 (R4, tab 22 at 6). 

On 27 March 2008, the day that negotiations to definitize the contract price 

commenced (stip. 37), Symetrics submitted its final price proposal revision to the PCO 

(stip. 33). Like the 23 January 2008 price proposal and the DCAA audit report, the 

27 March 2008 price proposal identified direct labor overhead rates of 182.45% for 

CFY 2008 and 186.47% for CFY 2009, and G&A rates of 18.24% for CFY 2008 and 

CFY 2009 (stips. 13, 33; R4, tab 22 at 6). Also on 27 March 2008, PCO Jones and 

Contract Specialist Coleman memorialized their prenegotiation object"ive (R4, tab 34 

at 1). Their prenegotiation memorandum expressly references both the 7 February 

2008 FPRP and the DCAA audit report regarding overhead and G&A, but identifies 

the overhead and G&A rates that appear in the price proposal (R4, tab 34 at 7). The 

prenegotiation memorandum reflects that PCO Jones and Contract Specialist Coleman 

erroneously believed that the price proposal used the FPRP rates: 

The contractor proposed the CFY 2008 and CFY 2009 OH 

and G&A rates recently submitted in its FP RP, dated 

February 7, 2008 . 

. . . DCAA compared the proposed indirect rates to the FPRP 

(as shown in the table below. [sic] DCAA also compared 

actual CFY 2007 OH and G&A rates ... to the indirect rates 

in the contractor's current FPRP and calculated the 

percent increases. No significant variances were noted in 

the evaluation. The results of the analysis of the 

contractor's proposed CFY 2008 to CFY 2009 indirect 

rates are presented in the table below. 

3 
(R4, tab 34 at 7) (Emphasis added) The table referenced in the quotation depicts the 

higher overhead and G&A rates for CFY 2008 and CFY 2009 that appear in the price 

proposal, not the lower rates for those years that appear in the FPRP (compare R4, 

tab 34 at 7 with stip. 54). 

Four days later, on 1 April 2008, the parties agreed to a price of $7,284,435 for 

the 295 IDM 304 units (stip. 39). As of that date, Symetrics had not revised its price 

proposal to reflect the FPRP overhead and G&A rates, nor had it transmitted those 

rates directly to PCO Jones or Contract Specialist Coleman (stips. 41, 43). On 2 April 

2008, Symetrics certified in a Certificate of Current Cost or Pricing data that: 

(Stip. 40) 

[T]he cost or pricing data ... submitted ... to the Contracting 

Officer or to the Contracting Officer's representative in 

support of Contract No. W58RGZ-07-C-0204 are accurate, 

complete, and current as of 01 April 2008. This 

certification includes the cost or pricing data supporting 

any advance agreements and forward pricing rate 

agreements between the offeror and the Government that 

are part of the proposal. 

On 15 May 2008, the parties entered into Modification No. PZ0007, 

definitizing the $7,284,435 price for the 295 IDM units (stip. 44). On 26 February 

2014, by then Contracting Officer Coleman issued a contracting officer's final 

decision demanding payment of $121,824 in "excess cost," plus interest (stip. 63). 

This appeal timely followed on 27 May 2014. 

DECISION 

The government contends that Symetrics violated the Truth in Negotiations Act 

(TINA), 10 U.S.C. § 2306(a), by failing to provide directly to PCO Jones or Contract 

Specialist Coleman the overhead and G&A rates that it submitted to DCAA in its 

FPRP. The government has the burden of proving that its personnel who participated 

in the proposal evaluation or the negotiation of the contract were not clearly advised of 

the relevant cost or pricing data and that they lacked actual knowledge thereof. 

Whittaker Corp. (Straightline Manufacturing Division), ASBCA No. 17267, 

74-2 BCA if 10,938 at 52,077. Here, the government does not meet that burden. 

As their prenegotiation memorandum expressly memorializes, PCO Jones and 

Contract Specialist Coleman negotiated the contract price knowing of the 7 February 

2008 FPRP and relying upon what they understood were the FPRP-proposed rates. 

DCAA Auditor Hepfner evaluated the price proposal with the same knowledge and 

4 
understanding. Although the three evidently (at least ultimately) misunderstood what 

rates the FPRP proposed, the government points to no evidence that Symetrics 

misrepresented the contents of the FPRP, and all PCO Jones, Contract Specialist 

Coleman, and Auditor Hepfner had to do to confirm their understanding and discover 

their mistake (see gov't reply at 9) was to double-check (or, perhaps, check in the first 

place) what rates the FPRP actually proposed against their stated understanding. In 

view of the foregoing, we find that the government was aware or should have been 

aware of the FPRP-proposed rates; this being so, the government has not proven that 

Symetrics did not disclose the FPRP rates within the meaning of the Truth in 

Negotiations Act. Cf FMC Corp., ASBCA No. 30069, 87-1BCAiJ19,544 at 98,759 

(no TINA violation proven where confractor' s data certification referenced its rate 

revision submission, which PCO could have, but did not, check). 

Because the government has not proven a TINA violation, we need not address 

the government's contention that Federal Acquisition Regulation (FAR) clause 

52.215-10, PRICE REDUCTION FOR DEFECTIVE CERTIFIED COST OR PRICING DATA 

(OCT 1997), or FAR 52.215-11, PRICE REDUCTION FOR DEFECTIVE CERTIFIED COST 

OR PRICING DATA-MODIFICATIONS (OCT 1997), should be read into the contract 

pursuant to the Christian doctrine. 

Explaining that " [i]n its specific pricing proposal for the 295 IDM 304 data 

modems at issue here, as of the parties' agreement on price, April 1, 2008, Symetrics 

did not transmit to PCO Hanford Jones the updated indirect proposal submission for 

CFYs 2008 and 2009," the government contends that "it was Symetrics' failure to 

follow the requirement set out in FAR 15.407-3(a) to 'identify the latest cost pricing 

data already submitted in accordance with the [forward pricing rate] agreement' in its 

specific pricing proposal for definitization of its letter contract for 295 IDM 304 data 

modems that resulted in Symetrics' failure to meaningfully disclose to the contracting 

officer the cost or pricing data at issue in this appeal" (gov't mot. at 11 ). 

FAR 15.407-3(a) provides: 

When certified cost or pricing data are required, offerors 

are required to describe any forward pricing rate 

agreements (FPRAs) in each specific pricing proposal to 

which the rates apply and to identify the latest cost or 

pricing data already submitted in accordance with the 

FPRA. All data submitted in connection with the FPRA, 

updated as necessary, form a part of the total data that the 

offeror certifies to be accurate, complete, and current at the 

time of agreement on price for an initial contract or for a 

contract modification. 

5 
The government's argument does not persuade us that Symetrics violated TINA 

by not identifying the FPRP rates in its price proposal. We have said in the context of 

TINA that: 

Disclosure is not confined to a formal, written submission. 

Instead the contractor's disclosure obligation is fulfilled if 

the Government obtains the data in question in some other 

manner or had knowledge. It must be meaningful, 

regardless of the form it takes. Whether there has been 

meaningful disclosure depends upon application of a ·'rule 

of reason" to the particular circumstances of [J each case. 

Appeal of Alliant Techsystems, inc., ASBCA Nos. 51280, 47626, 00-2 BCA ii 31 ,042 

at 153,298-99 (internal citations and alterations omitted). The government cites no 

judicial or Board authority that FAR 15.407-3(a) governs a TINA disclosure, even 

though the regulation dates to 1997. 62 Fed. Reg. 51 ,224, 51 ,249-50 (Sept. 30, 1997). 

(McDonnell Douglas Helicopter Systems, ASBCA No. 50341 , 99-2 BCA ii 30,546, 

which the government cites immediately after if not in support of this argument (gov't 

mot. at 12), does not address FAR 15.407-3.) On the facts of this case, where the 

government personnel (including the contracting officer) who evaluated the price 

proposal were all aware of the FPRP and expressly purported to rely upon it for rate 

information in their evaluation of the price proposal, we are satisfied that the FPRP 

rates at issue in this appeal were meaningfully disclosed to the government. 

CONCLUSION 

For all these reasons, we sustain the appeal. 

Dated: 13 August 2015 

(Signatures continued) 

6 

~~ Administrative Judge 

Armed Services Board 

of Contract Appeals 
I concur 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

I concur 

RJC CKLEFORD Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA No. 59297. Appeal of 

Symetrics Industries, LLC, rendered in conformance with the Board's Charter. 

Dated: 

7 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals