# In the United States Court of Federal Claims

Nos. 06-387C & 13-988C CONSOLIDATED (Filed: May 26, 2020)

INFORMATION SYSTEMS & NETWORKS CORPORATION, Plaintiff,

v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Accord and Satisfaction; Release; Apparent Authority; Ratification; Final Indirect Cost Rates

Norman Singer , Bethesda, MD, for plaintiff. Sheryl Floyd , United States Department of Justice, Civil Division, Washington, DC, with whom were Joseph H. Hunt , Assistant Attorney General, Robert E. Kirschman, Jr. , Director, and Kenneth M. Dintzer , Deputy Director, for defendant.
OPINION
FIRESTONE , Senior Judge. Pending before the court in these conso lidated breach of contract cases are the parties’ cross motions for partial summary j udgment and associated motions to strike. Defendant the United States (government ) moves for partial summary judgment regarding certain issues arising under Coun ts I, II, and III of plaintiff Information Systems & Networks Corporation’s (ISN) comp laint in case No. 13-988C. These counts involve the calculation of final indirect cost rates and allegedly unpaid costs and2 improperly withheld amounts associated with the seventeen contracts between ISN and the government that are at issue. ISN cross moves for partial summary judgment regarding certain issues arising under Count I, involving the calculati on of final indirect cost rates, only. For the reasons that follow, the gove rnment’s motion for partial summary judgment is GRANTED IN PART and DEFERRED IN PART , and ISN’s cross motion is DENIED . In addition, ISN’s motion to strike is DEFERRED , and the government’s motion to strike or to file a surreply is DENIED AS MOOT

. In this opinion, the court holds that the unambiguous terms of an earlier settlement agreement between the United States and IS N bar ISN’s claim for declaratory relief regarding the correct final indirect cost rate s for fiscal years (FY) 1987-1995. The court also finds that, as ISN concedes, ISN’s claims regarding the correct final indirect cost rates for FY 1982 are governed by an earlier indirect cost rate agreement. The court also holds that final rate agreements between ISN and the Defense Contract Audit Agency (DCAA) signed by ISN’s Chief Financial Offi cer in 2002 bar ISN’s claims regarding the correct final general and administrative rates covered by those agreements. The court defers ruling on the remainder of the government’s partial summary judgment motion. This is because, base d on the filings made thus far in these consolidated cases, the court has concluded that determining the final indirect cost rates for all of the years in question will significa ntly narrow the parties’ dispute regarding Counts I, II, and III of the complaint and the government’s counterclaim. As ordered in more detail at the conclusion of this opinion, the parties by June 9, 2020 are required to3 file a joint status report regarding what, if an y, indirect cost rate issues remain with a proposal for resolving those indirect cost rate issues. After receiving the joint status report, the court will schedule a status conferen ce with the parties to address next steps in this litigation.
I. BACKGROUND These consolidated cases arise out of co st-reimbursement contracts entered in the 1980s between ISN and various federal agenci es. On December 14, 2004, ISN filed a Contract Disputes Act (CDA) claim with an administrative contract ing officer (ACO) at the Defense Contract Management Agency (DCMA). See Def.’s App. 11-17, ECF No. 282-2 through ECF No. 282-9 (CDA claim certified by Roma Malkani, President and Chief Executive Officer of ISN ). In the 2004 CDA claim, ISN raised seven claims supporting its contention that it was owed money on the nineteen contracts then at issue. See id. at 11. As relevant here, one of ISN’s seven clai ms was for “final determination of all outstanding contractual issues to establish final [indirect cost] rates.” Id. at 14. ISN sought “the issuance of final rate approvals for FY 1985-1996.” Id. Indirect costs (costs not associated with a specific cost objectiv e) are distributed to specific contracts proportionally, using an indirect cost rate. Indi rect cost rates are generally calculated as a percentage that expresses the ratios of differe nt types of indirect expenses (i.e., fringe, overhead, or general and administrative costs) incurred by the contractor in a certain period of time to direct labor costs or some other base. See id. at 12-13 (ISN CDA claim describing indirect cost rates); see also Data Comput. Corp. v. United States , 80 Fed. Cl.4 606, 608 (2008) (describing indirect cost rate s). These rates are then used to calculate final contract payment to determine whethe r the government owes additional money to the contractor. May 7, 2020 Tr. 15-18, ECF No. 301 (describing payment process). ISN in its 2004 CDA claim sought re solution of how “cost of owners hip, cost of bonuses, cost of pension, cost of ownershi p-equipment rental, and corporat e and [bid and proposal] cost allocation” would be incorporat ed into the final indirect co st rates calculation for its contracts for FY 1985-1996. Def.’s App. 14. As noted above, IS N characterized these issues as “all outstanding contractual issues to establish final rates.” Id. On February 9, 2005, the AC O issued a final decision on ISN’s final indirect cost rates claim, disallowing some costs and de termining final fringe and overhead indirect cost rates applicable to “all Government flex ibly price[d] contracts and subcontracts” for FY 1987-1995, as well as interim general an d administrative (G&A) indirect cost rates for FY 1987-1995. 1 Id. at 18-24. On May 12, 2005, the ACO addressed IS N’s remaining six claims, involving allegedly unpaid contract amounts, costs over contract ceilings, lost profits and unabsorbed overhead, interest, and attorneys’ fees. Pl.’s App. 68, ECF No. 283-1. In this

1 Final G&A rates could not be establishe d because those rates were the subject of pending litigation at the time. Def.’s App. 18 . Specifically, ISN ha d challenged in this court the exclusion of ISN’s claimed Subc hapter S state income taxes from ISN’s proposed G&A rates. On February 6, 2006, the Federal Circuit ru led in favor of the government, effectively disallowing ISN’s incl usion of its owner’s personal state income taxes in the G&A pool. See Info. Sys. & Networks Corp. v. United States , 437 F.3d 1173, 1177-78 (Fed. Cir. 2006).5 decision, the ACO determined th at for eleven contracts over which he had authority, the government had overpaid ISN by a total of $280,241. 2 Id. at 70. ISN challenged the ACO’s February 9, 200 5 decision regarding indirect cost rates in this court in case No. 06 -99C. ISN claimed that the disallowed costs and the rates were “unjustified and unreasonable.” Def.’s App. 34 (No. 06-99C Am. Compl. ¶¶ 22- 23). On October 25, 2010, th e parties in case No. 06-99C entered into a settlement agreement. Def.’s App. 42. The settlement agreement recognized th at ISN, in its 2004 CDA claim, had requested “the resolutio n of final indirect cost rates.” Id. at 38. ISN agreed to settle its amended complaint so long as the gove rnment incorporated certain allowances for office rent and equipment rent in ISN’s final indirect cost rates for FY
1987-1995. Id. at 39-42. The government agreed to incorporate those allowances “for purposes of calculating final indirect cost ra tes, in addition to the allowances already allowed pursuant to the contracting officer’s February 9, 2005 final decision.” Id. at 39. Under the terms of the settlement agreem ent, ISN also agreed to release: all claims, known or unknown , including all claims for monetary and declaratory relief, against the United States . . . arising out of, set forth, related to, or otherwise involved in Case No. 06-9 9C, including but not limited to, any claims for costs, expenses, attorney fees, and damages of an y sort, with the exce ption of claims for payment resulting from the Government’s calc ulation of final indirect cost rates that ISN might present to the ag encies with which it contracted.

2 Of the nineteen contracts asserted in IS N’s 2004 CDA claim, th e ACO determined he had authority or delegated authority over twelve . Pl.’s App. 68. It was later determined that one of these twelve was listed incorrec tly in Exhibit A to IS N’s claim and the ACO did not have authority over th e correct contract. The other eleven ISN contracts were included in the ACO’s May 12, 2005 final decision. See No. 13-988C Compl., Ex. B at 48-51 (discussing the eleven contracts previo usly appropriately before the ACO in the May 2005 decision).6 Def.’s App. 40. Based on th is agreement, case No. 06 -99C was dismissed. The government provided ISN the indirect rates ca lculated in accordance with the settlement agreement in February 2011. No. 13-988C Compl. ¶ 29. Meanwhile, on May 11, 2006, ISN filed a se parate action in this court challenging the ACO’s May 12, 2005 final decision, which held that ISN owed the government $280,241 for the contracts ove r which the ACO had authority. This lawsuit was filed as case No. 06-387C, one of th e consolidated actions here . The government filed a counterclaim, seeking the payment of the $280,241. See Answer & Counterclaim at 15,
ECF No. 10. Case No. 06-387C was stayed pending th e resolution of case No. 06-99C. See Apr. 23, 2008 Minute Order. The stay was li fted when case No. 06-99C settled. As noted above, in February 2011 (during disc overy in case No. 06-387C) the government provided ISN with the indirect cost rate ca lculations it prepared in accordance with the settlement. No. 13-988C Compl. ¶ 29. According to ISN, these calculations contained errors, and as a result, ISN conducted its ow n indirect cost rate calculations, adding and reallocating costs, as part of its clai m for damages in case No. 06-387C. Id. ¶¶ 43-44.
Case No. 06-387C was eventu ally scheduled to go to trial in November 2012. However, in motions in limine, the governme nt argued that ISN’s claims for revised indirect cost rate calculati ons had not been presented to the contracting officer and therefore the court lacked jurisdic tion over the claims under the CDA. See Mot. to Dismiss & Mot. in Limine, EC F No. 47. The parties then stipulated to the dismissal7 without prejudice of ISN’s claims. See Stipulations, ECF Nos. 62 , 66. The government’s counterclaim, however, was not dismissed and remains pending. See July 30, 2015 Order at 4, ECF No. 131. Following the stipulated dismissal of ISN’s claims in cas e No. 06-387C, on January 31, 2013, ISN filed a CDA claim be fore the DCMA raising twelve issues regarding seventeen contracts, including clai med adjustments to the final indirect cost rates that had been preparedby the government under the settlement agreement in case No. 06-99C. The new DCMA ACO, after dete rmining that she only had authority over eleven of the seventeen contracts, issued a final decision denying the claims on May 20,
2013. 3 See No. 13-988C Compl., Ex. B at 48-51. The new ACO determined that for the claims already decided by the prior ACO, including the indi rect cost rate claims, “it would be inappropriate for me to issue any final decision concerning them, and I do not do so.” Id. at 49. On December 13, 2013, ISN challenged the ACO’s May 20 , 2013 decision in this court in case No. 13-988C, which was then consolidated with case No. 06-387C (the government’s counterclaim). As relevant here, in Count I of the complaint in case No. 13-988C, ISN seeks a declaratory judgment that ISN properly calculated its final indirect

3 For the other six contracts, ISN delivered or attempted to deliver its claims to the relevant contracting officers. Some claims were denied, so me did not receive a response, and others were returned to ISN. See No. 13-988C Compl. at 5-6. The government has sought partial summary judgmen t regarding ISN’s claims under some of those contracts, but the court does not address the government ’s arguments regarding those contracts in this decision.8 cost rates for FY 1982-2000. Id. at 19. In addition to the co sts agreed to in the No. 06- 99C settlement agreement, ISN seeks add into th e indirect cost rate calculation “claimed and incurred allowable costs per the FAR [(Fed eral Acquisition Regula tions)] for ‘Other Compensation.’” No. 13-988C Co mpl. at 19-20. ISN has also “utilized in its calculation a reversal [(re-allocation)] of [the] corporat e allocations” originally set forth in the ACO’s February 9, 2005 decision. Id. at 20. ISN estimates that with these adjustments to the indirect rates the government owes ISN at least $3.7 million. Id. at 21. In Count II of the complain t in case No. 13-988C, ISN seeks to recover money allegedly owed for unpaid invoices for direct labor and indirect costs, in the amount of $7 million. In Count III, ISN seeks to recover offsets which ISN claims were mistakenly taken by the government together with other withheld amounts, in the amount of $475,000 plus interest. See No. 13-988C Compl. at 21-22. The calculations in Count II and Count III of ISN’s complaint use ISN’s revised final indirect cost rates. See id. ¶ 58. Now before the court are the parties’ cr oss motions for partial summary judgment regarding certain issues arising under Counts I, II, and III of the No. 13-988C complaint. In its motion for partial summary judgment, the government seeks summary judgment on six issues. 4 First, the government argues that ISN’s claims relating to the determination

4 The government acknowledges that even if its motion for partial summary judgment is granted in full, certain issues st ill remain under Counts I, II, and III. See Def.’s Mot. at 2 n.1, ECF No. 282. In particul ar, the government contends that the court must still decide (1) “what are the valid indirect rates based on the Government’s c ounterclaim,” (2) “the indirect rates for fiscal years (FY) 1983 and 1999-2000,” (3) “the G&A rates for FYs 1985 and 1986,” and (4) “the overhead and fringe rates for FYs 1996-1998.” Id.9 of indirect cost rates for FY 1987-1995, arising under Coun t I of ISN’s complaint, are barred by the settlement agreement in case No. 06-99C. Def.’s Mo t. at 9-21, ECF No. 282. Second, the government ar gues that ISN’s claims for co sts and offsets arising under Counts II and III of ISN’s complaint for two contracts – Contract No. DTFA01-85-Y01018 and Contract No. MDA908-83-G-1504 – are barred by releases ISN signed in connection with those contracts. Id. at 21-25. Third, the gove rnment contends that ISN’s Count II and III claims for Contract No. N6 6604-87-D-0098 are barred because ISN previously adjudicated those claims before the Armed Services Board of Contract Appeals (ASBCA) and must retu rn to the ASBCA to resolve any remaining claims under that contract. Id. at 25-30. Fourth, the government argues that this court lacks jurisdiction over ISN’s Count II and III claims for Contract No. 50SBNB5C3513 because ISN failed to establish that its claim was subm itted to a contracting officer for a decision, a prerequisite to bringing suit in this court. Id. at 30-34. Fifth, the government asserts that ISN’s Count II and III claims relating to NASA Contract Nos. NAS5-27486 and NASW-4164 are barred by laches. Id. at 34-43. Finally, the government argues that ISN entered into G&A rate agreem ents for FY 1996 and FY 1997 -1998 that bar ISN’s Count I claims for those fiscal years. 5 Id. at 43-50. ISN has cross moved for partial summary judgment only on ISN’s argument that its final indirect cost rate claims for FY 1987-1995 are not barred by the settlement

5 ISN concedes that its claims for FY 1982 rates are barred by an indirect cost rate agreement. Pl.’s Cross-Mot. at 5, ECF No . 283 (“ISN does not dispute that the final indirect rate agreement for 1982 is binding . . . .”).10 agreement in case No. 06-99C. Pl.’s Cross-Mo t. at 6-19, ECF No. 283. ISN opposes the government’s partial summary judgment motion, contending that the government has not met its burden to show that summary disposition is warranted. Id. at 19-50. ISN has also filed a motion to stri ke five declarati ons submitted by the government in support of its motion for partial summary judgment regarding service of
Contract No. 50SBNB5C3513 and the NASA contracts that the government argues are barred by laches. Pl.’s Mot. to Strike at 1-2, ECF No. 284. ISN generally argues that the declarations are improper because they cont ain opinions and conc lusions not based on personal knowledge. Id. The government opposes ISN’s motion to strike, arguing that each declaration is admissible. Def.’s Resp. to Pl.’s Mot. to Strike at 1, ECF No. 289. Lastly, the government has filed a motion to strike certain portions of ISN’s reply in support of its cross moti on for partial summary judgment on the issue of whether the settlement agreement in case No. 06-99C bars ISN’s indirect cost rate claims for FY 1987-1995. Def.’s Mot. to Strike at 1, ECF No. 293. The governme nt contends that ISN makes new arguments based upon extrinsic ev idence – including a declaration of ISN’s counsel and other new documents – to which the government has not had a chance to respond. Id. at 1-2. Alternatively, the govern ment requests to file a surreply. Id. at 1. ISN opposes this motion, arguing that the docu ments were added in direct response to the government’s arguments, and that the govern ment has failed to demonstrate that it is entitled to a surreply. Pl.’s Resp. to Def.’s Mot. to Strike at 4-10, ECF No. 294.11 II. LEGAL STANDARD Summary judgment is appropriate “if th e movant shows that there is no genuine dispute as to any material factand the movant is entitled to judgment as a matter of law.” RCFC 56(a); see, e.g. , Mingus Constructors, Inc. v. United States , 812 F.2d 1387, 1390 (Fed. Cir. 1987). The moving pa rty bears the burden of demons trating that “there is an absence of evidence to support the nonmoving party’s case.” Sweats Fashions, Inc. v. Pannill Knitting Co., Inc. , 833 F.2d 1560, 1563 (Fed. Cir. 1987) (quotation omitted). If the moving party makes such a showing, the burden shifts to the nonmoving party to demonstrate by presenting evidence that a ge nuine dispute regarding a material fact exists. See, e.g. , Wavetronix LLC v. EIS Elec. Integrated Sys. , 573 F.3d 1343, 1354 (Fed. Cir. 2009). “[O]nce a moving party satisfies its initial burden, mere allegations of a genuine issue of material fa ct without supporting eviden ce will not prevent entry of summary judgment.” Republic Sav. Bank, F.S.B. v. United States , 584 F.3d 1369, 1374 (Fed. Cir. 2009). “Contract interpretation is a question of law generally amenable to summary judgment.” Premier Office Complex of Pa rma, LLC v. United States , 916 F.3d 1006, 1011 (Fed. Cir. 2 019) (quotation omitted).
III. DISCUSSION A. ISN’s Claims Regarding its Indire ct Cost Rates for FY 1987-1995 are Barred by the Settlem ent Agreement in Case No. 06-99C. The parties each move for su mmary judgment regarding th e effect of the No. 06- 99C settlement agreement on ISN’s indirect co st rate claims under Count I of the No. 13- 988C complaint. The government argues thatISN’s indirect cost rate claims for FY12 1987-1995 are barred under the doctrine of accord and satisfaction because, in the settlement agreement, ISN unam biguously released all clai ms for the calculation of indirect cost rates, known a nd unknown, for those years. Def.’s Mot. at 17-21. ISN contends that the unambiguo us language of the settlem ent agreement and extrinsic evidence demonstrate that the settlement agreement left open the calculation of indirect cost rates and did not foreclos e additional costs and realloca tions not expressly addressed in case No. 06-99C. Pl.’s Cross-Mot. at 9-19; May 7, 2020 Tr. 25-26. The court first discusses the legal sta ndards governing the interpretation of settlement agreements and th e accord and satisfaction do ctrine. Applying these standards, the court concludes that ISN’s cl aims are barred under the plain terms of the No. 06-99C settlement agreement.
i. Legal standards governing accord and satisfaction. Accord and satisfaction refers to the “discharge [of a claim] by the rendering of some performance different from that which was claimed as due and the acceptance of such substituted performance by the claimant as full satisfaction of his claim.” Brock & Blevins Co. v. United States , 343 F.2d 951, 955 (Ct. Cl . 1965) (quoting 6 Corbin, Contracts § 1276 (1962)); see also Meridian Eng’g Co. v. United States , 144 Fed. Cl. 667, 671 (2019). To establish the affirmativ e defense of accord an d satisfaction, four elements must be present: “(1) proper subjec t matter; (2) competent parties; (3) a meeting of the minds of the parties; and (4) consideration.” Holland v. United States , 621 F.3d 1366, 1382 (Fed. Cir. 2010) (quoting O’Connor v. United States , 308 F.3d 1233, 1240 (Fed. Cir. 2002)). A meeting of the minds occurs where there are “accompanying13 expressions sufficient to make the [claimant] understand, or to make it unreasonable for him not to understand, that the performance is offered to him as full satisfaction of his claim and not otherwise.” Holland , 621 F.3d at 1382 (quoting Chesapeake & Potomac Tel. Co. of Va. v. United States , 654 F.2d 711, 716 (1981)); see also Tamerlane, Ltd. v. United States , 81 Fed. Cl. 752, 764 (2008). With regard to the No. 06- 99C settlement agreement, no dispute exists that the parties to the settlement agreement were comp etent to enter into th e agreement and that there was valid consideration exchanged between the parties. 6 Rather, the parties’ dispute centers on whether the subject matter inCount I of the No. 13-988C complaint is the same as that addressed by the No. 06- 99C settlement agreement and, relatedly, whether there was a meeting of the minds regarding the scope of the settlement agreement, including the rel ease. Determining whether anaccord and satisfaction has occurred therefore requires the court to inte rpret the terms of the No. 06-99C settlement agreement to establish what was resolved and released by ISN.

6 The court finds that the settlement agre ement satisfies the “competent parties” and “consideration” elements of the accord and satisfaction doctrine. As the government states, plaintiff’s counsel signed the settlem ent agreement on behalf of ISN, and the government’s counsel of record at the time signed the settlement agreement on behalf of the United States, as authorized by appropriate Department of Justice officials. Def.’s Mot. at 18. There was also valid considera tion between the parties. As the government states, ISN compromised its pos ition by forgoing its claims inexchange for the additional allowances listed in the settlement agreement. Id. at 18-19.14 ii. The legal standards governin g contract interpretation. Contract interpretation begins with th e plain language of the agreement. Langkamp v. United States , 943 F.3d 1346, 1349 (Fed. Cir. 2019). The court “must interpret a contract as a whole and in a mann er which gives reasonable meaning to all its parts and avoids conflict or surp lusage of its provisions.” Gardiner, Kamya & Assocs., P.C. v. Jackson , 467 F.3d 1348, 1353 (F ed. Cir. 2006) (internal corrections, quotation marks, and citation omitted). An “interpretation that gives meaning to all parts of the contract is to be preferred over one thatleaves a portion of the contract useless, inexplicable, void, or superfluous.” NVT Techs., Inc. v. United States , 370 F.3d 1153, 1159 (Fed. Cir. 2004). When the provisions of the contract are clear and unambiguous, “the court may not resort to extr insic evidence to interpret it.” Premier Office , 916 F.3d at 1011. “When the contractual language is unambiguous on its face, [the court’s] inquiry ends and the plain language of the [a]greement controls.” Id. (quotation omitted). The court will consider extr insic evidence if a contract is ambiguous, however, the parties’ “differing interpretations of a contract provision does not, standing alone, create an ambiguity.” Mata v. United States , 114 Fed. Cl. 736, 745 (2014). Rather, both interpretations must fall withina “zone of reasonableness.” Metric Constructors, Inc. v.
NASA , 169 F.3d 747, 751 (Fed. Cir. 1999); see also Premier Office , 916 F.3d at 1011. Moreover, “[t]o the extent that the contract terms are ambiguous, requiring weighing of external evidence, the matter is not amenable to summary resolution.” Beta Sys., Inc. v. United States , 838 F.2d 1179, 1183 (Fed. Cir. 1988).15 The court’s interpretation of the settleme nt agreement at issue here involves a release. “In interpreting the release, [the c ourt must] first ascertain whether its language clearly bars the asserted claim.” Dureiko v. United States , 209 F.3d 1345, 1356 (Fed. Cir. 2000). “[A]ny rights that the parties intended to reserve when exec uting a release must be expressly stated.” MW Builders, Inc. v. United States , 134 Fed. Cl. 469, 512 (2017) (citing Augustine Med., Inc. v. Progressive Dynamics, Inc. , 194 F.3d 1367, 1373 (Fed. Cir. 1999)). Where release language is “ unambiguous and susceptible only to one reasonable meaning, the court’s review is limited to the plain meaning without considering extrin sic evidence.” MW Builders , 134 Fed. Cl. at 512. “Exceptions to releases of claims are strictly cons trued against government contractors.” Gresham, Smith & Partners v. United States , 24 Cl. Ct. 796, 801 (1991); see also Dureiko , 209 F.3d at 1356 (noting exceptions to releases ar e strictly construed against contractors).
iii. The terms of the No. 06-99C settlement agreement and ISN’s current final indirect cost rate claims. As discussed above, the parties’ dis pute regarding the No. 06-99C settlement agreement requires the court to determine, unde r the terms of the agreement, what claims were resolved and released by ISN. The court must then determine whether any of ISN’s indirect cost rate claims now before the court were resolved and released under the settlement agreement. The court starts with the plain language of the agreement. Langkamp , 943 F.3d at 1349. In the No. 06-99C settlement agreemen t, the parties stipulated that, on December 14, 2004, ISN presented to th e DCMA ACO “a claim reques ting the resolution of final16 indirect cost rates.” Def.’s App. 38. The ag reement further states that the ACO issued a decision “disallowing certain claimed costs and setting forth his determination of indirect
cost rates.” Id. The parties stated that to settle the case, the government would include additional allowances in its final indirect rate calculation. Id. at 39. The settlement agreement states that “[t]he United States agrees that the allowances described in paragraph 6 will be allocated to the appropri ate indirect cost pools for purposes of calculating final indirect cost rates, in addition to the allowances already allowed pursuant to the contracting officer’s February 9, 2005 final decision.” Id. ISN then agreed to stipulate to the dismissal of its complaint. Id. at 40. In the release clause of the settlement agreement, ISN agrees to: release[], waive[], and abandon[] all cl aims, known or unkno wn, including all claims for monetary and declaratory relie f, against the United States . . . arising out of, set forth, related to, or otherwis e involved in Case No. 06-99C, including but not limited to, any claims for costs, expenses, attorney fees, and damages of any sort, with the exception of cl aims for payment resulting from the Government’s calculation of final indirect cost rates that ISN might present to the agencies with which it contracted. Id. Further, in paragr aph 14 of the settlem ent agreement, ISN: warrants and represents that no other action or suit with respect to the claims set forth in case No. 06-99C is pending or will be filed inor submitted to any other court, administrative agency, or legislativ e body, with the exce ption of claims for payment resulting from the Government’s calc ulation of final indirect rates that ISN might present to the agenci es with which in contracted. Id. at 41. The parties signed the settle ment agreement on October 25, 2010, id. at 42-43, and on November 1, 2010, the co urt dismissed ISN’s complaint. On January 31, 2013, however, ISN subm itted a claim to the DCMA ACO stating that, “[i]n addition to the add itional allowable costs stipulatedand agreed to in the [No.17 06-99C] Settlement Agreement, ISN has added to the relevant cost pools additional claimed costs adjusted per the FAR for ‘Oth er Compensation.’” No. 13-988C Compl., Ex. A at 42. ISN further stated that “[i]n addition, ISN utilized in its calculations a reversal of the corporate allocations origina lly set forth in the ACO’s Final Decision of February [9], [2005] for years 198[7]-1995.” Id. ISN sought the ACO’s agreement that its final indirect rates were “accurate and pr operly reflect the Final Rates that should be utilized on ISN’s final completion vouchers.” Id. On May 20, 2013, the ACO denied this claim for FY 1987-1995 b ecause the former ACO had previously decided the claim. Id. , Ex. B at 49. On December 13, 2013, ISN f iled in case No. 13-988C its eleven-count complaint, seeking, in Count I, declaratory judgment that its revised calculation of final indirect rates for FY 1982-2000 is just and proper. Specifically, in Co unt I, ISN claims that it is entitled to add “Other Compensation” to th e relevant cost pools and to reverse (reallocate) corporate allocations “originally set forth in the ACO’s Final Decision of February 9, 2005.” 7 No. 13-988C Compl. at 19-20. In other words, ISN seeks to add costs to its indirect rate pools, re-allocat e the costs among the indirect rates pools, and recalculate its final indirect cost rates for FY 1982-2000, including for the years previously addressed by the ACO’s February 9, 2005 decision, which was challenged in
case No. 06-99C.

7 The government also contends that ISN added back other unallo wable costs. Def.’s Mot. at 17 (citing No. 13-988C Compl. ¶ 52).18 iv. ISN released all claims relating to the determination of ISN’s FY 1987-1995 final indirect cost rates under the plain terms of the No. 06-99C settlement agreement. Upon consideration of the terms of the No. 06-99C settlement and the nature of ISN’s claims here, the court agrees with th e government that the claims in Count I – regarding what costs and allocati ons should be used to calculate final indirect cost rates for FY 1987-1995 – were reso lved and released by ISN in case No. 06-99C. The plain terms of the settlement agreement preclude ISN from making any claims for additional costs and re-allocations for purposes of calcula ting the final indirect cost rates for those years. By signing the No. 06- 99C settlement agreement, ISN broadly released all claims “known or unknown . . . arising out of, set forth, related to, or otherwise involved in Case No. 06-99C.” Def.’s App. 40. The additional costs ISN now seeks, and the reversal of the corporate allocations, are certainly “rel ated to” the claims involved in case No. 06- 99C, which challenged the ACO’s February 9, 2005 determination of ISN’s indirect rates for FY 1987-1995. ISN’s claims regarding i ndirect cost rates for those years are thus unambiguously barred under the terms of the release. See Holland , 621 F.3d at 1382-84; Info. Sys. & Networks Corp. v. United States , 68 Fed. Cl. 336, 346 (2005) (holding that claims were released under prior settlement agreement). ISN’s reading of the settlement agreement to the contrary is unreasonable. ISN first argues that case No. 06-9 9C involved only the “specific cost disallowances” made by the ACO, that ISN made “no claim for final indirect rates,” and that final rates were not resolved in the settlement ag reement itself. Pl.’s Cross-Mot. at 15-16. It is true that the No. 06-99C settlement agreem ent did not expressly establish the final indirect rates19 for FY 1987-1995. However, th e court agrees with the gove rnment that in case No. 06- 99C, ISN challenged the ACO’s disallowances of various costs and allocations in order to calculate ISN’s final indirect rates, and the settlement agreement resolved what would be included in that calculation. Def.’s Resp. at 6, 11. This is evident from the plain terms of the agreement. The parties agreed and stipulated that ISN’s underlying CDA claim “r equest[ed] the resolution of final indirect cost rates,” and that the ACO issued “final indirect cost rates.” Def.’s App. 38. The United States agreed to incl ude the costs outlined in th e settlement agreement “for purposes of calculating final indirect cost rate s” in addition to the costs already allowed under the ACO’s final decision. Id. at 39. Giving meaning to all parts of the settlement agreement, the parties plainly resolved how the FY 1987-1995 final indirect cost rates would be calculated. ISN’s contention that the settlement agreement left open ISN’s ability to later add new costs or to reallocate costs is unreasonable. ISN also argued at oral argument that th e exception to the settlement agreement’s release clause, which mentions the “calculation” of final indirect cost rates, encompasses its indirect cost rate claims. May 7, 2020 Tr. 26. However, the plain language of the exception does not give ISN the right to cha llenge, once again, the costs and allocations agreed to by the partie s in the settlement agreement. Ra ther, the release exception states that ISN may make a claim for “payment” “r esulting from the Government’s calculation of final indirect cost rates.” Def.’s App. 40 . The court agrees with the government that this language permits ISN to submit “claims fo r payment” under ISN’s contracts after the government calculates the final indirect rates in accordance with the settlement20 agreement. Def.’s Mot. at 20; Def.’s Resp. at 10. This exception does not permit ISN to add or reallocate costs for purposes of ca lculating the final indirect rates. The court also agrees with the government that ISN’s two other arguments challenging the scope of the settlement agreem ent are without merit. First, ISN argues that the February 9, 2005 AC O decision regarding final indi rect rates was not explicitly incorporated into the agreement. Pl.’s Cross-Mot. at 17-19; Pl.’s Reply at 19-22. However, as the government argues, Def.’s Resp. at 13-15, the February 2005 ACO decision did not need to be expressly incorpor ated to explain the scope of the costs and allocations that were included in the settlemen t. Paragraph 8 of the settlement agreement specifically identifies the February 2005 de cision and explains that the government would calculate the final indirect cost rate using the allowances de scribed in paragraph 6 of the settlement agreement and those “alr eady allowed pursuant to the contracting officer’s February 9, 2005 final decision.” Def.’s App. 39. The settlement agreement’s failure to use the term “incorporation” wh en referring to the ACO’s February 2005 decision does not undermine the government’s contention that the settlement agreement resolves all of the claims ISN brought or co uld have brought pertai ning to the calculation of final indirect cost rates for FY 1987-1995. Second, ISN’s argument that the settlement agreement only covers “costs” and not the “allocation” of costs to indirect cost pools also lacks merit. Pl.’s Cross-Mot. at 16-17. This contention, as the government argues, De f.’s Resp. at 11-13, is undermined by ISN’s amended complaint in No. 06-9 9C and the plain terms of the settlement agreement. ISN expressly challenged the ACO’s decision with respect to “Corporate and B&P21 Allocations ,” which were used to determine its fi nal indirect rates, in its No. 06-99C amended complaint. Def.’s App. 32 (emp hasis added). Moreover, the settlement agreement expressly states that “[t]he United States agrees that the allowances described in paragraph 6 will be allocated to the appropriate indirect cost pools for purposes of calculating final indirect cost rates.” Id. at 39 (emphasis added). The corporate allocations were directly addressed in case No . 06-99C and allocations were referenced in the settlement agreement. Under the agreem ent’s plain language, any challenges to allocations were also released. For all of these reasons, the court holds that ISN’s Count I claims for FY 1987- 1995 are unambiguously barred pursuant to the plain terms of the No. 06-99C settlement agreement.

v. The court does not consider the extrinsic evidence offered by ISN to interpret the settlemen t agreement and no subsequent government conduct precludes the accord and satisfaction defense. Because the court concludes that the plai n language of the settlement agreement unambiguously bars ISN’s Count I claims for FY 1987-1995, it is not necessary for the court to consider the extrinsi c evidence presented by ISN insupport of its interpretation of the settlement agreement. Jaynes v. United States , 75 Fed. Cl. 218, 234 (2007) (holding that in the context of the accord and satisfaction defense, the court will not consider extrinsic evidence if the language of the agreement at issue is plain); see also Holland , 621 F.3d at 1382-83 (finding that the pl ain language of a settlement agreement was sufficient to show a meeting of the minds for accord and satisfaction); Premier22 Office , 916 F.3d at 1011 (holding that where the terms of a contract are plain, the court will not look to extrinsic evidence to interpret the contract). However, the court notes that courts may “refuse to bar a claim based upon the defense of accord and satisfacti on where the parties continue to consider [a] claim after execution of a release” because this conduct is evidence that there was no meeting of the minds between the parties regarding the release. England v. Sherman R. Smoot Corp. , 388 F.3d 844, 849 (Fed. Cir. 2004) (quoting Cmty. Heating & Plumbing Co., Inc. v. Kelso , 987 F.2d 1575, 1581 (F ed. Cir. 1993)). ISN argues in its filings that the government in this litigation has never befo re asserted that th e settlement agreement prohibited ISN from making any claim about fi nal indirect rates, suggesting that the parties did not intend to bar ISN’s indirect co st rate claims. Pl.’s Cross-Mot. at 10-11 (contending that the government’s argument “c ontradicts the representations of defendant previously made to the Court”); Pl.’s Reply at 8-14 (arguing that throughout the “entire period of litigation leading up to the various pretrial procee dings,[] there was no mention by defendant that ISN had released its right to calculate and pres ent final indirect rates”). ISN’s reference to the government’s litigation conduct, however, does not demonstrate that the government conceded thatISN could assert its indirect cost rate claims. At most, the government acknowled ged that ISN might have been able to challenge the indirect cost rates on the grou nds that the rates were erroneously calculated under the terms of the settlement agreement, not that ISN could late r add or reallocate indirect costs for purposes of establis hing new final indirect cost rates. See Pl.’s Reply at 13-14; Def.’s Reply to Mots. in Limine at 5, ECF No. 61.23 Moreover, as ISN itself describes, the gove rnment consistently sought to bar ISN’s revised indirect cost rate claims based on res judicata under case No. 06-99C and on other jurisdictional grounds. See Pl.’s Reply at 8-14. Indeed, some of the litigation documents ISN relies on demonstrate th at the government did, in fact, consider ISN’s indirect cost rate claims to be barred by the No. 06-99C settlement agreement. See Aug. 13, 2012 Tr. 9, ECF No. 104 (government counsel stating that cost allowance issues were settled in Case No. 06-99C). In short, ISN has not identified any evidence to establish that the government agreed th at ISN was free to add and rea llocate costs after ISN signed the settlement agreement, or that the gove rnment accepted those changes as valid. 8 Based on the foregoing, the court grants the government’s motion for summary judgment with regard to the indirect cost ra tes for FY 1987-1995, wh ich were resolved by the settlement agreement in cas e No. 06-99C. The court de nies ISN’s cross motion for summary judgment on this issue. B. The Indirect Cost Rate Agreem ents for FY 1996 -1998 Bar ISN’s Claims Regarding G&A Rates for Those Years. The government has also moved for pa rtial summary judgment regarding ISN’s indirect cost rate claims for FY 1996-1998. According to the government, ISN, through

8 Likewise, under the defense of release, there are “special and limited circumstances” under which a claim may be prosecuted, despite the execution of a release. Mingus Constructors , 812 F.2d at 1395. These circumstances include mutual mistake, conduct of the parties acknowledging claims after a rele ase, obvious mistake or oversight, and fraud or duress. Id. ISN does not present any evidence of mistake, fraud, or duress. And as discussed above, the government did not ackn owledge the validity of ISN’s claims after the release. As such, ISN is bo und by the terms of the release.24 its Chief Financial Officer Charles Bonu ccelli, signed in 2 002 binding G&A rate agreements for those years, and, therefore, ISN may not modify the G&A rates covered by those agreements. Def.’s Mo t. at 45-50. ISN argues that Mr. Bonuccelli did not have authority to bind ISN to the ra te agreements. Pl.’s Cross-Mot. at 46-50. The government responds that Mr. Bonuccelli had “apparent auth ority” to bind ISN, and that ISN’s failure to timely disavow the rate agreements demo nstrates that Mr. Bo nuccelli had apparent authority to sign them and that ISN ratifie d the agreements. De f.’s Mot. at 47-49. Apparent authority is “the power held by an agent or other actor to affect a principal’s legal relations with third partie s when a third party reasonably believes the actor has authority to act on behalf of the pr incipal and that belief is traceable to the principal’s manifestations.” United States v. Great Am. Ins. Co. , 738 F.3d 1320, 1334 (Fed. Cir. 2013) (quoting Restat ement (Third) Of Agency § 1.03 (2006)). “[S]ilence may constitute a manifestation when, in light of all the circumstances, a reasonable person would express dissent to the inference that other persons will draw from silence. Failure then to express dissent will be taken as a manifestation of affirmance.” Id. (quoting Restatement (Third) Of Agency § 1.03 cmt. b). “[S]ummary judgment on this issue is appropriate if, viewed in the light most fa vorable to the non-moving party, the facts establish that the principal acted in a manne r that gave its agent the appearance of authority.” Id. at 1335. The only dispute before the court regardin g the validity of the FY 1996-1998 rate agreements is whether Mr. Bonuccelli had th e authority to bind ISN. The court concludes that the undisputed facts establis h that Mr. Bonuccelli ha d apparent authority25 to do so. Mr. Bonuccelli was ISN’s Chief Fi nancial Officer and was responsible for the accounting and taxes for the company. Def.’s App. 913-14. In th is role, Mr. Bonuccelli interfaced with DCAA to ente r into auditor-determined ra te agreements for FY 1996-
1998. See id. Specifically, Mr. Bonuccelli submitte d to the DCAA incurred cost submissions, which were certified by Ms. Ma lkani, president of ISN, proposing final G&A rates for FY 1996-1998. Id. at 920, 996, 1041, 1064, 1091, 1131; see 48 C.F.R. § 42.705-2 (governing auditor-det ermined rates). DCAA then sent the rate agreements accepting the proposed certified rates to Ms. Malk ani. The rate agreem ents were returned to DCAA signed by Mr. Bonuccelli. Id. at 1039, 1177. Mr. Bonuccelli had also signed other documents on behalf of ISN. Def.’s Reply App. 1292. Based on Mr. Bonuccelli’s positi on at ISN and the fact th at the agreed-upon rates were already certified by Ms. Malkani, it was reasonable for the government to assume that Mr. Bonuccelli had the au thority to sign the rate ag reements and bind ISN. See Am. Anchor & Chain Corp. v. United States , 331 F.2d 860, 861 (Ct. Cl. 1964) (holding work manager had apparent authority to bind comp any to contracts without prior authorization from company’s vice president by virtue of management position and failure of company to repudiate contracts); Restatement (Third) of Agency, § 1.03 cmt. b (“If the principal places a person in a position or office with specific functions or responsibilities, from which third parties will infer that the principal assents to acts by the person requisite to fulfilling the specific functions or responsibilities, the prin cipal has manifested such assent to third parties.”). Mr. Bonuccelli’s pattern of signing othe r documents on behalf of ISN further supports the government’s reasonable belief that Mr. Bonuccelli was26 authorized to sign the FY 1 996-1998 rate agreements. See Great Am. , 738 F.3d at 1335 (holding that “the pattern of agents exceedi ng their authority with no objection from [the company] would lead a reasona ble person in the government ’s position to believe that such acts were authorized”). ISN’s seventeen years of silence after the agreements were signed also affirms Mr. Bonuccelli’s apparent auth ority to sign them. See Great Am. , 738 F.3d at 1334 (noting that a principal’s inaction creates apparent authority). It was not until 2019 that ISN expressly contende d that Mr. Bonuccelli did not have binding contract authority for ISN, in the context of this litigation. Def.’s A pp. 849-50 (ISN’s response to the defendant’s first request for admissions). In fact, ISN in other related cases – case No. 98-663C (regarding the inclusion of state income tax co sts in indirect rates) and case No. 06-99C – represented that its rates for FYs 1996-1998 had been settled under the 2002 agreements. Def.’s App. 1213 (ISN’s post-trial brief in case No. 98-663C statin g “[ISN] settled its indirect rates with the defendant for . . . 199 6, 1997 and 1998”); Def.’s App. 31 (No. 06- 99C amended complaint stating “final indirect rates have been agre ed to for FY 1996, 1997, and 1998 pursuan t to agreements dated September 3, 2002”). Moreover, in its now-dismissed amended complaint in case No. 06-387 – one of the consolidated actions here – ISN stated that its 1996 and 1997 ra tes had been settled. No. 06-387C Am. Compl. ¶ 4, ECF No. 21. Take n together, ISN’s undisputed admissions and its failure to repudiate the 2002 rate agreements for nearly two decades demonstrate that the27 government reasonably believed that Mr. Bonuccelli had th e apparent authority to bind ISN to the rate agreements. 9 ISN points to only two specific pieces of evidence to demonstrate that Mr. Bonuccelli did not have apparent authority to bind ISN. However, neither creates a disputed issue sufficient to overcome summ ary judgment in the government’s favor. First, ISN quotes a passage from the 2008 deposition of the DCMA ACO who issued the 2005 decisions challenged by ISN in case Nos. 06-99C and 06 -387C. In that deposition testimony, the ACO stated that he believed indirect rates negotiated between the ACO and Mr. Bonuccelli would have to be “ratif ied by [ISN’s] president,” Ms. Malkani. Def.’s Reply App. 1286. ISN contends that this deposition testimony demonstrates that the government knew Mr. Bonucce lli did not have contracting authority for ISN. Pl.’s
Cross-Mot. at 46.

9 Although the court has concluded that Mr. B onuccelli had the apparent authority to bind ISN, the court also agrees w ith the government, Def.’s Resp. at 40, that it appears that ISN also ratified the rate agreements throu gh its undisputed admissions and more than a decade of silence regarding the validity of the agreements. See id. (citing cases); see also Am. Anchor , 331 F.2d at 864 (holding th at contractor ratified agreements by not objecting for several months); Restatement (Third) of Agency § 4.01 cmt. f (2006) (“Delay in expressing an objection to an unauthorized act may result in ratification, depending on the length of time that elapses between the tim e the principal learns of the unauthorized act and the time the principal manifests an objection.”). ISN does not expressly argue that the elements of ratification have not been met. See Pl.’s Cross-Mot. at 45-50. ISN also does not dispute that at least a decade had passed before it challenged the FY 1996- 1998 G&A rates or that it prev iously stated these rates ha d been settled by the prior agreements. See id. Rather, ISN makes the conclusory argument that it had no “duty to disavow” the agreements. Id. at 48. This statement is in sufficient to ov ercome summary judgment on this issue. See Republic Sav. Bank , 584 F.3d at 1374 (holding that mere allegations of a genuine issue of material fact without eviden ce is insufficient).28 However, the government in response presents the ACO’s 2019 deposition testimony, which demonstrates that the ACO in 2008 was referring to indirect rate negotiations , not the FY 1996-1998 indirect co st rate agreements, which were not negotiated. Def.’s Resp. at 38; Def.’s Reply App. 1290-95 (A CO’s 2019 deposition testimony noting that he expect ed Ms. Malkani to approve negotiated rates, but that he assumed Mr. Bonuccelli “had th e ability to bind the company” ). This is confirmed by a closer reading of the ACO’s 2008 deposition testimony, which states, in response to a line of questioning regarding “ negotiating . . . various indirect rate issues,” that the ACO understood that any agreements would have to be “ratified by the president.” Def.’s Reply App. 1286 (emphasis adde d). In fact, the ACO specifically testified in 2008 that the 1996 rate agreement neve r “reached [his] level” because both parties agreed on the rates certified by Ms. Malkani. Id. In short, the 2008 AC O deposition testimony does not go to the question of wh ether Mr. Bonuccelli had the au thority to sign the 2002 auditor-determined rate agr eements, where ISN and the go vernment agreed on ISN’s rates. The 2008 deposition testimony provid ed by ISN thus does not create a disputed issue of material fact regarding the go vernment’s understandi ng of Mr. Bonuccelli’s authority to sign those agreements. Second, ISN argues that it disclaimed the 2002 final indirect rate agreements in 2012, when ISN submitted completion invoices for payment on its various contracts that used ISN’s revised indirect rates. Pl.’s Cross-Mot. at 46-47. However, as the government discussed at oral argument, May 7, 2020 Tr. 32-33, th e completion invoices did not expressly disavow M r. Bonuccelli’s authority.29 Finally, ISN makes the argument that be cause the regulations governing the 2002 rate agreements state that “the agreement shall be signed by the contractor and the auditor,” 48 C.F.R. § 42-705-2(b)(iii) (em phasis added), the government should have known that Mr. Bonuccelli had no authority to sign the rate ag reements. Pl.’s Cross-Mot. at 47. However, ISN does not appear to di spute that the agreement could be signed by “anyone authorized by the contractor.” Id. at 48. In addition, even if this regulation limited Mr. Bonuccelli’s authority to sign the rate agreements, the Federal Circuit has held that the authority grante d by a regulation is not dispos itive on summary judgment of whether the government could reasonably believe that an agent, like Mr. Bonuccelli, had the authority to sign the agreem ent. Rather, “[t]he central premise of apparent authority is that legally effective authority can in fact go beyond an expressly stated grant of actual authority.” Great Am. , 738 F.3d at 1334; see also Am. Anchor , 331 F.2d at 863-64 (holding that a manager ha d apparent authority to si gn contracts even though the government’s invitation for bids required evidence of an agen t’s authority). The provisions of the FAR cited by ISN thus do not demonstrate that the government unreasonably relied on Mr. Bonuc celli’s apparent authority to sign the rate agreements. For these reasons, the court grants the government’s motion for summary judgment with regard to the G&A rates fo r FY 1996-1998 covere d by the 2002 rate agreements.30 C. ISN’s Motion to Strike is Deferr ed and the Government’s Motion to Strike is Denied as Moot. In light of the foregoing, the court defers ISN’s motion to strike declarations relied on by the government in its motion for partial summary judgment for issues not addressed in this decision. The government ’s motion to strike declarations addressing extrinsic evidence of the parties’ intent re garding the No. 06-99C settlement agreement, or, in the alternative, to file a surreply is denied as moot.
IV. CONCLUSION For the foregoing reasons, the government ’s motion for partial summary judgment is GRANTED IN PART and DEFERRED IN PART

. ISN’s cross motion for partial summary judgment is DENIED . ISN’s motion to strike is DEFERRED , and the government’s motion to strike is DENIED AS MOOT

. In addition, the parties are directed to file a joint status report regarding what indirect cost rate issues for FY 1982-2000 under Co unt I or the government’s counterclaim remain for trial and a proposal for further proceedings on the indirect cost rate issues only by June 9, 2020 . The parties should discuss the issues identified by the government in its motion fo r partial summary judgment, see Def.’s Mot. at 2 n.1; infra n.4, and any other issues that remainregarding indirect cost rates. The court intends to turn to ISN’s re maining claims and the government’s counterclaim and defenses once all final indire ct cost rates are determined. However, in the June 9, 2020 joint status report, the par ties should also explain the effect of this opinion on the relief sought in Counts II a nd III of ISN’s complaint and the government’s31 counterclaim, including each party’s position regarding whether or not the government owes ISN any money for each contract at issue. See Def.’s Mot. at 2 n.1. Thereafter, the court will schedule a status conf erence to discuss next steps.
IT IS SO ORDERED. s/Nancy B. Firestone NANCY B. FIRESTONE Senior Judge