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. 

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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 consolidated breach of contract cases are the 

parties’ cross motions for partial summary judgment and associated motions to strike. 

Defendant the United States (government) moves for partial summary judgment 

regarding certain issues arising under Counts I, II, and III of plaintiff Information 

Systems & Networks Corporation’s (ISN) complaint in case No. 13-988C. These counts 

involve the calculation of final indirect cost rates and allegedly unpaid costs and 
 2 

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 calculation of final indirect 

cost rates, only. 

For the reasons that follow, the government’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 ISN bar ISN’s claim for declaratory relief 

regarding the correct final indirect cost rates 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 Officer 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, based 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 significantly 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 to 
 3 

file a joint status report regarding what, if any, 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 conference with the parties to address next steps in 

this litigation. 

I. BACKGROUND

 These consolidated cases arise out of cost-reimbursement contracts entered in the 

1980s between ISN and various federal agencies. On December 14, 2004, ISN filed a 

Contract Disputes Act (CDA) claim with an administrative contracting 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 claims 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 objective) are distributed to specific contracts 

proportionally, using an indirect cost rate. Indirect cost rates are generally calculated as a 

percentage that expresses the ratios of different 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 rates). These rates are then used to calculate 

final contract payment to determine whether 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 resolution of how “cost of ownership, cost of bonuses, cost 

of pension, cost of ownership-equipment rental, and corporate and [bid and proposal] cost 

allocation” would be incorporated into the final indirect cost rates calculation for its 

contracts for FY 1985-1996. Def.’s App. 14. As noted above, ISN characterized these 

issues as “all outstanding contractual issues to establish final rates.” Id.

On February 9, 2005, the ACO issued a final decision on ISN’s final indirect cost 

rates claim, disallowing some costs and determining final fringe and overhead indirect 

cost rates applicable to “all Government flexibly price[d] contracts and subcontracts” for 

FY 1987-1995, as well as interim general and administrative (G&A) indirect cost rates 

for FY 1987-1995.1

 Id. at 18-24. 

On May 12, 2005, the ACO addressed ISN’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 established because those rates were the subject of 

pending litigation at the time. Def.’s App. 18. Specifically, ISN had challenged in this 

court the exclusion of ISN’s claimed Subchapter S state income taxes from ISN’s 

proposed G&A rates. On February 6, 2006, the Federal Circuit ruled in favor of the 

government, effectively disallowing ISN’s inclusion 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 that 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, 2005 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, the parties in case No. 06-99C entered into a settlement 

agreement. Def.’s App. 42. The settlement agreement recognized that ISN, in its 2004 

CDA claim, had requested “the resolution of final indirect cost rates.” Id. at 38. ISN 

agreed to settle its amended complaint so long as the government 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 rates, 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 agreement, 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. 06-99C, including but not limited to, any claims for costs, 

expenses, attorney fees, and damages of any sort, with the exception of claims for 

payment resulting from the Government’s calculation of final indirect cost rates 

that ISN might present to the agencies with which it contracted. 

 

2

 Of the nineteen contracts asserted in ISN’s 2004 CDA claim, the 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 incorrectly in Exhibit A to ISN’s claim and the ACO 

did not have authority over the 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 previously appropriately before the ACO in the 

May 2005 decision). 
 6 

Def.’s App. 40. Based on this agreement, case No. 06-99C was dismissed. The 

government provided ISN the indirect rates calculated in accordance with the settlement 

agreement in February 2011. No. 13-988C Compl. ¶ 29. 

 Meanwhile, on May 11, 2006, ISN filed a separate 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 over which the ACO had authority. This lawsuit was filed as 

case No. 06-387C, one of the 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 the resolution of case No. 06-99C. See 

Apr. 23, 2008 Minute Order. The stay was lifted when case No. 06-99C settled. As 

noted above, in February 2011 (during discovery in case No. 06-387C) the government 

provided ISN with the indirect cost rate calculations 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 own indirect cost rate calculations, adding and 

reallocating costs, as part of its claim for damages in case No. 06-387C. Id. ¶¶ 43-44. 

Case No. 06-387C was eventually scheduled to go to trial in November 2012. 

However, in motions in limine, the government argued that ISN’s claims for revised 

indirect cost rate calculations had not been presented to the contracting officer and 

therefore the court lacked jurisdiction over the claims under the CDA. See Mot. to 

Dismiss & Mot. in Limine, ECF No. 47. The parties then stipulated to the dismissal 
 7 

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 case No. 06-387C, on 

January 31, 2013, ISN filed a CDA claim before the DCMA raising twelve issues 

regarding seventeen contracts, including claimed adjustments to the final indirect cost 

rates that had been prepared by the government under the settlement agreement in case 

No. 06-99C. The new DCMA ACO, after determining 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 indirect 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, some 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 judgment 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. 
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cost rates for FY 1982-2000. Id. at 19. In addition to the costs agreed to in the No. 06-

99C settlement agreement, ISN seeks add into the indirect cost rate calculation “claimed 

and incurred allowable costs per the FAR [(Federal Acquisition Regulations)] for ‘Other 

Compensation.’” No. 13-988C Compl. at 19-20. ISN has also “utilized in its calculation 

a reversal [(re-allocation)] of [the] corporate 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 complaint 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’ cross 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 still remain under Counts I, II, and III. See Def.’s Mot. at 2 

n.1, ECF No. 282. In particular, the government contends that the court must still decide 

(1) “what are the valid indirect rates based on the Government’s counterclaim,” (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.
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of indirect cost rates for FY 1987-1995, arising under Count I of ISN’s complaint, are 

barred by the settlement agreement in case No. 06-99C. Def.’s Mot. at 9-21, ECF No. 

282. Second, the government argues that ISN’s claims for costs 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 government contends that ISN’s 

Count II and III claims for Contract No. N66604-87-D-0098 are barred because ISN 

previously adjudicated those claims before the Armed Services Board of Contract 

Appeals (ASBCA) and must return 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 submitted 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 agreements 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-Mot. 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 strike five declarations 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 contain opinions and conclusions 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 motion 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 government contends that ISN 

makes new arguments based upon extrinsic evidence – 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 government requests to file a surreply. Id. at 1. 

ISN opposes this motion, arguing that the documents were added in direct response to the 

government’s arguments, and that the government 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 the movant shows that there is no genuine 

dispute as to any material fact and 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 party bears the burden of demonstrating 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 genuine 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 fact without supporting evidence 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 Parma, LLC v. United States, 916 F.3d 

1006, 1011 (Fed. Cir. 2019) (quotation omitted). 

III. DISCUSSION 

 A. ISN’s Claims Regarding its Indirect Cost Rates for FY 1987-1995 are 

Barred by the Settlement Agreement in Case No. 06-99C. 

The parties each move for summary judgment regarding the effect of the No. 06-

99C settlement agreement on ISN’s indirect cost rate claims under Count I of the No. 13-

988C complaint. The government argues that ISN’s indirect cost rate claims for FY 
 12 

1987-1995 are barred under the doctrine of accord and satisfaction because, in the 

settlement agreement, ISN unambiguously released all claims for the calculation of 

indirect cost rates, known and unknown, for those years. Def.’s Mot. at 17-21. ISN 

contends that the unambiguous language of the settlement agreement and extrinsic 

evidence demonstrate that the settlement agreement left open the calculation of indirect 

cost rates and did not foreclose additional costs and reallocations 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 standards governing the interpretation of 

settlement agreements and the accord and satisfaction doctrine. Applying these 

standards, the court concludes that ISN’s claims 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 affirmative defense of accord and satisfaction, four 

elements must be present: “(1) proper subject 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 “accompanying 
 13 

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 competent to enter into the agreement and that 

there was valid consideration exchanged between the parties.6

 Rather, the parties’ 

dispute centers on whether the subject matter in Count 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 release. Determining whether an accord and satisfaction has 

occurred therefore requires the court to interpret 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 agreement satisfies the “competent parties” and 

“consideration” elements of the accord and satisfaction doctrine. As the government 

states, plaintiff’s counsel signed the settlement 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 consideration between the parties. As the government 

states, ISN compromised its position by forgoing its claims in exchange for the additional 

allowances listed in the settlement agreement. Id. at 18-19. 
 14 

ii. The legal standards governing contract interpretation. 

Contract interpretation begins with the 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 manner which gives reasonable meaning to all its 

parts and avoids conflict or surplusage of its provisions.” Gardiner, Kamya & Assocs., 

P.C. v. Jackson, 467 F.3d 1348, 1353 (Fed. 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 that leaves 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 extrinsic 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 extrinsic 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 within a “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 settlement agreement at issue here involves a 

release. “In interpreting the release, [the court 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 executing 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 extrinsic evidence.” MW Builders, 134 Fed. Cl. at 512. “Exceptions to 

releases of claims are strictly construed 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 are 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’ dispute regarding the No. 06-99C settlement 

agreement requires the court to determine, under 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 agreement, the parties stipulated that, on December 

14, 2004, ISN presented to the DCMA ACO “a claim requesting the resolution of final 
 16 

indirect cost rates.” Def.’s App. 38. The agreement 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 appropriate 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 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. 06-99C, including 

but not limited to, any claims for costs, expenses, attorney fees, and damages of 

any sort, with the exception of claims 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 paragraph 14 of the settlement 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 in or submitted to any other 

court, administrative agency, or legislative body, with the exception of claims for 

payment resulting from the Government’s calculation of final indirect rates that 

ISN might present to the agencies with which in contracted. 

Id. at 41. The parties signed the settlement agreement on October 25, 2010, id. at 42-43, 

and on November 1, 2010, the court dismissed ISN’s complaint.

 On January 31, 2013, however, ISN submitted a claim to the DCMA ACO stating 

that, “[i]n addition to the additional allowable costs stipulated and 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 ‘Other 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 originally 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 properly 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 because the former ACO had previously decided the claim. 

Id., Ex. B at 49. 

 On December 13, 2013, ISN filed 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 Count I, ISN claims that it is 

entitled to add “Other Compensation” to the 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-allocate 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 unallowable 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 the government that the claims in Count I – 

regarding what costs and allocations should be used to calculate final indirect cost rates 

for FY 1987-1995 – were resolved 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 calculating 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 “related 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 indirect 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. 06-99C 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 agreement itself. Pl.’s Cross-Mot. at 15-16. It is true that 

the No. 06-99C settlement agreement did not expressly establish the final indirect rates 
 19 

for FY 1987-1995. However, the court agrees with the government 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 “request[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 include the costs outlined in the settlement agreement “for 

purposes of calculating final indirect cost rates” 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 the 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 challenge, once again, the costs and allocations 

agreed to by the parties in the settlement agreement. Rather, the release exception states 

that ISN may make a claim for “payment” “resulting 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 for payment” under ISN’s contracts after the 

government calculates the final indirect rates in accordance with the settlement 
 20 

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 calculating the final indirect rates. 

The court also agrees with the government that ISN’s two other arguments 

challenging the scope of the settlement agreement are without merit. First, ISN argues 

that the February 9, 2005 ACO decision regarding final indirect 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 incorporated to explain the scope of the costs and 

allocations that were included in the settlement. Paragraph 8 of the settlement agreement 

specifically identifies the February 2005 decision and explains that the government 

would calculate the final indirect cost rate using the allowances described in paragraph 6 

of the settlement agreement and those “already 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” when 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 could have brought pertaining 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, Def.’s Resp. at 11-13, is undermined by ISN’s 

amended complaint in No. 06-99C and the plain terms of the settlement agreement. ISN 

expressly challenged the ACO’s decision with respect to “Corporate and B&P 
 21 

Allocations,” which were used to determine its final indirect rates, in its No. 06-99C 

amended complaint. Def.’s App. 32 (emphasis 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 agreement’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 settlement agreement and no subsequent 

government conduct precludes the accord and satisfaction 

defense. 

Because the court concludes that the plain 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 extrinsic evidence presented by ISN in support 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 plain language of a settlement agreement 

was sufficient to show a meeting of the minds for accord and satisfaction); Premier 
 22 

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 satisfaction 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 (Fed. Cir. 1993)). ISN argues in its filings that the 

government in this litigation has never before asserted that the settlement agreement 

prohibited ISN from making any claim about final indirect rates, suggesting that the 

parties did not intend to bar ISN’s indirect cost rate claims. Pl.’s Cross-Mot. at 10-11 

(contending that the government’s argument “contradicts 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 proceedings,[] there was no mention 

by defendant that ISN had released its right to calculate and present final indirect rates”). 

ISN’s reference to the government’s litigation conduct, however, does not 

demonstrate that the government conceded that ISN could assert its indirect cost rate 

claims. At most, the government acknowledged that ISN might have been able to 

challenge the indirect cost rates on the grounds that the rates were erroneously calculated 

under the terms of the settlement agreement, not that ISN could later add or reallocate 

indirect costs for purposes of establishing 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 government 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 that 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 that ISN was free to add and reallocate costs after ISN signed 

the settlement agreement, or that the government 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 rates for FY 1987-1995, which were resolved by 

the settlement agreement in case No. 06-99C. The court denies ISN’s cross motion for 

summary judgment on this issue. 

B. The Indirect Cost Rate Agreements for FY 1996-1998 Bar ISN’s 

Claims Regarding G&A Rates for Those Years. 

 The government has also moved for partial 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 release, 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 acknowledge the validity of ISN’s claims after 

the release. As such, ISN is bound by the terms of the release. 
 24 

its Chief Financial Officer Charles Bonuccelli, signed in 2002 binding G&A rate 

agreements for those years, and, therefore, ISN may not modify the G&A rates covered 

by those agreements. Def.’s Mot. at 45-50. ISN argues that Mr. Bonuccelli did not have 

authority to bind ISN to the rate agreements. Pl.’s Cross-Mot. at 46-50. The government 

responds that Mr. Bonuccelli had “apparent authority” to bind ISN, and that ISN’s failure 

to timely disavow the rate agreements demonstrates that Mr. Bonuccelli had apparent 

authority to sign them and that ISN ratified the agreements. Def.’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 parties when a third party reasonably believes the 

actor has authority to act on behalf of the principal 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 Restatement (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 favorable to the non-moving party, the facts 

establish that the principal acted in a manner that gave its agent the appearance of 

authority.” Id. at 1335. 

 The only dispute before the court regarding the validity of the FY 1996-1998 rate 

agreements is whether Mr. Bonuccelli had the authority to bind ISN. The court 

concludes that the undisputed facts establish that Mr. Bonuccelli had apparent authority 
 25 

to do so. Mr. Bonuccelli was ISN’s Chief Financial Officer and was responsible for the 

accounting and taxes for the company. Def.’s App. 913-14. In this role, Mr. Bonuccelli 

interfaced with DCAA to enter into auditor-determined rate agreements for FY 1996-

1998. See id. Specifically, Mr. Bonuccelli submitted to the DCAA incurred cost 

submissions, which were certified by Ms. Malkani, 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-determined rates). DCAA then sent the rate agreements 

accepting the proposed certified rates to Ms. Malkani. The rate agreements 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 position at ISN and the fact that the agreed-upon rates 

were already certified by Ms. Malkani, it was reasonable for the government to assume 

that Mr. Bonuccelli had the authority to sign the rate agreements 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 company 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 principal has manifested such 

assent to third parties.”). Mr. Bonuccelli’s pattern of signing other documents on behalf 

of ISN further supports the government’s reasonable belief that Mr. Bonuccelli was 
 26 

authorized to sign the FY 1996-1998 rate agreements. See Great Am., 738 F.3d at 1335

(holding that “the pattern of agents exceeding their authority with no objection from [the 

company] would lead a reasonable 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 authority 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 contended that Mr. Bonuccelli did not have binding contract authority for ISN, 

in the context of this litigation. Def.’s App. 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 costs 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 stating “[ISN] settled its 

indirect rates with the defendant for . . . 1996, 1997 and 1998”); Def.’s App. 31 (No. 06-

99C amended complaint stating “final indirect rates have been agreed to for FY 1996, 

1997, and 1998 pursuant 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 rates had been settled. No. 06-387C Am. 

Compl. ¶ 4, ECF No. 21. Taken together, ISN’s undisputed admissions and its failure to 

repudiate the 2002 rate agreements for nearly two decades demonstrate that the 
 27 

government reasonably believed that Mr. Bonuccelli had the 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 summary 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 “ratified by [ISN’s] president,” Ms. Malkani. 

Def.’s Reply App. 1286. ISN contends that this deposition testimony demonstrates that 

the government knew Mr. Bonuccelli did not have contracting authority for ISN. Pl.’s 

Cross-Mot. at 46. 

 

9

 Although the court has concluded that Mr. Bonuccelli had the apparent authority to bind 

ISN, the court also agrees with the government, Def.’s Resp. at 40, that it appears that 

ISN also ratified the rate agreements through 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 that 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 time 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 previously stated these rates had 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 insufficient to overcome 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 evidence 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 cost rate agreements, which were not

negotiated. Def.’s Resp. at 38; Def.’s Reply App. 1290-95 (ACO’s 2019 deposition 

testimony noting that he expected Ms. Malkani to approve negotiated rates, but that he 

assumed Mr. Bonuccelli “had the 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 added). In fact, the ACO specifically testified in 2008 that 

the 1996 rate agreement never “reached [his] level” because both parties agreed on the 

rates certified by Ms. Malkani. Id. In short, the 2008 ACO deposition testimony does 

not go to the question of whether Mr. Bonuccelli had the authority to sign the 2002 

auditor-determined rate agreements, where ISN and the government agreed on ISN’s 

rates. The 2008 deposition testimony provided by ISN thus does not create a disputed 

issue of material fact regarding the government’s understanding 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, the completion invoices 

did not expressly disavow Mr. Bonuccelli’s authority. 
 29 

 Finally, ISN makes the argument that because 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) (emphasis added), the government should have 

known that Mr. Bonuccelli had no authority to sign the rate agreements. Pl.’s Cross-Mot. 

at 47. However, ISN does not appear to dispute 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 granted by a regulation is not dispositive on summary judgment of 

whether the government could reasonably believe that an agent, like Mr. Bonuccelli, had 

the authority to sign the agreement. 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 had apparent authority to sign contracts even though the 

government’s invitation for bids required evidence of an agent’s authority). The 

provisions of the FAR cited by ISN thus do not demonstrate that the government 

unreasonably relied on Mr. Bonuccelli’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 for FY 1996-1998 covered by the 2002 rate 

agreements. 
 30 

C. ISN’s Motion to Strike is Deferred 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 regarding 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 Count 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 for partial summary judgment, see Def.’s Mot. at 2 n.1; infra 

n.4, and any other issues that remain regarding indirect cost rates. 

The court intends to turn to ISN’s remaining claims and the government’s 

counterclaim and defenses once all final indirect cost rates are determined. However, in 

the June 9, 2020 joint status report, the parties should also explain the effect of this 

opinion on the relief sought in Counts II and III of ISN’s complaint and the government’s 
 31 

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 conference to discuss next steps. 

 IT IS SO ORDERED. 

s/Nancy B. Firestone 

NANCY B. FIRESTONE 

Senior Judge