ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

BAE Systems Southeast Shipyards Mayport LLC ) 

) 

Under Contract No. N00024-1 O-C-4406 ) 

APPEARANCES FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 59876 

Robert E. Korroch, Esq. 

William A. Wozniak, Esq. 

Williams Mullen 

Norfolk, VA 

Ronald J. Borro, Esq. 

Navy Chief Trial Attorney 

Anthony K. Hicks, Esq. 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE WOODROW ON APPELLANT'S 

MOTIONS FOR SUMMARY JUDGMENT AND FOR STAY 

INTRODUCTION 

This appeal involves a dispute over the calculation of an award and incentive fee 

under a cost-plus award fee contract for maintenance and repair of CG 4 7 and DDG 51 

class ships at the Naval Station Mayport, in Jacksonville, Florida. 

On 10 April 2016, appellant, BAE Systems Southeast Shipyards Mayport LLC 

(BAE or appellant), filed a motion for summary judgment, contending that it is entitled to 

the full award and incentive fee determined during the sixth evaluation period under 

Contract No. N00024-1 O-C-4406. Appellant asserts that it is entitled to an award and 

incentive fee payment of $1,895,525.70 based on its composite rating of 84.6 percent for 

the sixth evaluation period. Appellant contends that the government improperly reduced 

that amount in Phase II of the evaluation period when the government concluded that 

appellant did not achieve the 40 percent rate for small business subcontractor utilization 

that the contract required for payment of the fee without deduction. On 22 July 2016, 

appellant filed a motion to stay pending its motion for summary judgment. 

The government opposes appellant's motion for summary judgment, arguing that 

there are genuine issues of material fact regarding the method of calculating the small 

business utilization percentage and regarding the specific costs appellant included in its 

calculation of the percentage. The government did not file a cross-motion for summary 
judgment, but instead set forth its own competing statement of undisputed facts within its 

opposition brief. The government further opposes appellant's motion for stay. 

We deny appellant's summary judgment motion as to the interpretation of the 

contract provision setting forth the small business utilization percentage and because 

genuine issues of material fact remain regarding the correct figures to be included in the 

calculation. We deny appellant's motion for a stay as moot. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 

1. The Department of the Navy, Southeast Regional Maintenance Center, 

Jacksonville, Florida (government), awarded Contract No. N00024-10-C-4406 to BAE on 

13 September 2010 (R4, tab 10). The contract is a cost-plus-award-fee contract for 

maintenance and repair of CG 4 7 and DDG 51 class ships (id. at 51 ). 

2. The contract provides for the payment of an award fee and an incentive fee. 

The purpose of the award fee is to encourage and reward superior performance in the 

management and technical areas of the contract. The purpose of the incentive fee is to 

encourage and reward cost control and completion of work on or before negotiated 

milestone completion dates. (R4, tab 10 at 34, 41) The contract provides that the award 

and incentive fees are evaluated in two distinct phases for each fee evaluation period (id. 

at 34). 

3. In Phase I, award and incentive fees are determined (R4, tab 10 at 34), while in 

Phase II, the total award and incentive fee calculated in Phase I is adjusted based on the 

contractor's performance in subcontracting to small businesses (id. at 44-46). The contract 

states that the contractor must subcontract at least 40 percent of the direct costs of the 

contract to small business concerns during each fee evaluation period (id. at 51, 128-29). 

4. The contract sets forth a formula by which the small business subcontracting 

percentage is calculated which is as follows: 

For the purposes of this contract, the small business 

subcontracting requirement is that the Prime Contractor 

subcontract to small businesses, either directly or indirectly, 

over the course of all scheduled availabilities and 

inter-availability work completed within an overall Fee 

Evaluation Period to the extent that subcontracting averages 

forty percent ( 40%) of direct costs related to production work 

for CLINs associated with scheduled availabilities and 

inter-availability work (i.e. Continuous Maintenance and 

Emergent Maintenance) completed within the evaluation 

2 
period, minus the cost of any directed subcontracts and 

execution planning efforts, not including indirect cost. 

(R4, tab 10 at 45) The contract provides that the 40 percent small business 

subcontracting requirement may be met at any subcontracting tier (id. at 128). If the 

contractor meets the 40 percent small business subcontracting requirement, the contractor 

receives 100 percent of the award and incentive fee determined in Phase I. If the 

contractor does not meet the 40 percent requirement, the contractor receives an adjusted 

percentage of the award and incentive fee determined in Phase I. (Id. at 46) The contract 

provides a table listing the percentage of Phase I award and incentive fee to be 

decremented based on the contractor's small business subcontracting percentage (id.). 

5. When the solicitation was issued, Earl Industries, and the offeror, asked the 

government whether services performed by Atlantic Marine Florida, LLC (AMF) 1 could 

be excluded from the small business subcontracting requirement, on the grounds that 

AMF owned the only certified dry-docking facility at the Jacksonville shipyard (R4, 

tab 2, attach. 1 at 2; gov't opp'n, ex. 2). The government responded in Amendment 

No. 0001 to the solicitation, which states '"the reason for the amendment is to: (1) change 

the date for proposal submission, (2) add and update clauses, and (3) answer offeror 

questions." Question and answer 4 in Amendment No. 0001 states, in relevant part: 

Question 4 ... Given that Atlantic Marine Florida (AMF), a 

large business, possesses the only certified dry-docking 

facility in the port capable of dry-docking these vessels, does 

the government consider the dry-docking services to be 

provided by AMF to be a directed subcontractor and, 

therefore, excluded from the small business subcontracting 

requirement? 

Answer 4: Atlantic Marine Florida is not considered a 

directed subcontractor. However, offerors will be allowed to 

exclude the use of the AMF dry-docking facility from the 

40% small business subcontracting requirement. 

(R4, tab 2, attach. 1 at 2) 

6. Award Fee Evaluation Period (AFEP) No. 6 considered appellant's 

performance during the period from 1 February 2013 through 31 July 2013 for all 

availabilities and from 1 April 2013 through 30 September 2013, for Inter-Availability 

Planning and Administration (R4, tab 20). On 29 October 2013, appellant submitted data 

1 Later named BAE Systems Shipyard Jacksonville (BAE SSYJ). 

3 
for AFEP 6 reflecting a small business utilization rate of 40.32 percent (app. mot., ex. 2; 

app. supp. R4, tab 11 at 1). On 30 October 2013, the government advised appellant of 

errors in appellant's calculation (R4, tab 16 at 6; app. supp. R4, tab 11 at 2). Appellant 

admitted that its submission contained errors relating to the double-counting of certain 

costs (app. mot. ii 31). 

7. On 30 October 2013, appellant submitted a revised calculation. Appellant 

made two significant changes in its revised calculations, both relating to the costs 

associated with work on the USS San Jacinto Gob number 7333045). First, it corrected 

double-counting errors in its original submission by reducing the small business cost 

from $2,317,580 to $1,184,726 (app. mot., exs. 2, 3). The $1,132,854 reduction was for 

costs associated with work that appellant subcontracted to AMF (gov't mot., ex. 9). 

Second, appellant reduced the direct contract cost from $3,906,131 to $503, 151. The 

difference of $3,402,980 also was for work appellant subcontracted to AMF. (App. supp. 

R4, tab 11 at 2). 

8. In calculating the small business utilization for the USS San Jacinto job, 

appellant excluded the $1,132,854 from the contract cost (the denominator in the 

formula) but left that amount in the small business cost (the numerator in the formula) 

(gov't mot., ex. 9). This adjustment resulted in a small business utilization percentage of 

235.46 percent for the USS San Jacinto job (id.). After these adjustments, appellant 

calculated its composite small business utilization percentage for all of the jobs included 

in AFEP 6 to be 44.68 percent (app. mot., ex. 3; R4, tab 17 at 1). In contrast, the 

government calculated appellant's composite small business utilization percentage to be 

25.96 percent (R4, tab 25, encl. 2). 

9. On 14 August 2014, the government issued Modification No. AOO 162. The 

modification resulted in a reduction of appellant's total award and incentive fee in the 

amount of$1,061,494. (R4, tab 26) On 18 November 2014, appellant submitted a 

certified claim for $1,061,494 (R4, tab 29). On 18 December 2014, the contracting 

officer issued a final decision (COFD) denying the claim (R4, tab 30). This timely 

appeal followed on 10 March 2015. 

DECISION 

Summary judgment shall be granted if the movant shows there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law. 

Avant Assessment, LLC, ASBCA No. 58867, 15-1BCAii36,067 at 176,129 (citing FED. 

R. CIV. P. 56(a)). To counter a motion for summary judgment, more than mere assertions 

are necessary. Conclusory assertions do not raise a genuine issue of fact. The nonmovant must submit, by affidavit or otherwise, specific evidence that could be offered at 

4 
trial. Failing to do so may result in the motion being granted. Thorington Electrical and 

Construction Co., ASBCA No. 56895, 10-2 BCA ~ 34,558 at 170,418. 

Contract interpretation begins with the plain language of the contract's provisions. 

LAI Services, Inc. v. Gates, 573 F.3d 1306, 1314 (Fed. Cir. 2009). Contract language is 

clear and unambiguous when there is only one reasonable interpretation consistent with 

the plain meaning. Id. 

We repeat the formula by which the small business subcontracting percentage is 

calculated: 

For the purposes of this contract, the small business 

subcontracting requirement is that the Prime Contractor 

subcontract to small businesses, either directly or indirectly, 

over the course of all scheduled availabilities and 

inter-availability work completed within an overall Fee 

Evaluation Period to the extent that subcontracting averages 

forty percent (40%) of direct costs related to production work 

for CLINs associated with scheduled availabilities and 

inter-availability work (i.e. Continuous Maintenance and 

Emergent Maintenance) completed within the evaluation 

period, minus the cost of any directed subcontracts and 

execution planning efforts, not including indirect costs. 

The contract further states the "forty percent ( 40%) subcontracting requirement may be 

met at any subcontracting tier." (SOF ~ 4) 

While this provision is densely worded, it does contain the necessary elements to 

determine the numerator and denominator of the small business utilization percentage. 

The formula may be paraphrased as follows: 

Numerator = total dollars subcontracted to small businesses 

(including direct and indirect costs at all subcontracting tiers) 

Denominator = direct costs of all production work (including 

total dollars subcontracted to small business) minus the cost 

of any directed subcontracts and execution planning efforts 

Because the numerator is a part of the denominator, the denominator necessarily includes 

all of the costs for the relevant contract line item numbers (CLINs), including the total 

dollars subcontracted to small businesses. In other words, the small business 

subcontracting costs are necessarily a subset of the total costs (i.e., the numerator is a 

subset of the denominator). 

5 
We tum now to the question of whether appellant may exclude from the 

calculation the costs associated with the use of the AMF dry-docking facility. This 

question turns on whether the government's answer to Question 4 in Amendment 

No. 0001 to the solicitation is incorporated into the contract as a matter oflaw. We 

conclude that it is. 

Solicitation Amendment No. 0001 states: "the reason for the amendment is to: 

( 1) change the date for the proposal submission, (2) add and update clauses, and 

(3) answer offerors questions." The government's answer to Question 4 stated that: 

"offerors will be allowed to exclude the use of the AMF dry-docking facility from the 

40% small business subcontracting requirement." (SOF if 5) 

Appellant contends that Question 4 was made part of the solicitation by 

Amendment No. 0001, and that the solicitation was, in tum, incorporated into the contract 

by operation oflaw (app. mot. at 10-11). Appellant relies on FAR 15.204-1, which sets 

forth a list of the component parts that must be included in the contract when following 

the uniform contract format. Appellant also contends that it relied on Amendment No. 

0001 when preparing its Small Business Subcontracting Plan and that the plan is 

incorporated into the contract by operation of FAR 52.219-9, Alt. II (app. mot. at 11). 

In response, the government contends that the solicitation is not part of the 

contract. According to the government, FAR 15 .204-1 describes the component parts of 

the uniform contract format, but does not expressly provide for the incorporation of those 

parts into the final contract (gov't opp'n. at 17-18). The government also argues that, 

although appellant's Small Business Subcontracting Plan is incorporated into the 

contract, the Plan does not contain any specific reference to the exclusion of the use of 

the AMF dry-docking facility from the small business subcontracting requirement (gov't 

opp'n. at 19). 

FAR 15 .204-1, Uniform Contract Format, sets forth a "uniform contract format" that 

facilitates preparation of solicitations and contracts. Pursuant to FAR 15 .204-1, contradting 

officers "shall prepare solicitations and resulting contracts using the uniform contract 

format." FAR 15.204-l(a). Accordingly, the following items all become part of a contract: 

( 1) the schedule (including the solicitation and contract forms, supplies or services and 

price/costs statement of work, specifications, special requirements); (2) the contract clauses; 

and (3) the list of documents, exhibits and other attachments. FAR 15 .204-1 (b ). 

The contract in this appeal follows the uniform contract format and specifically 

includes the solicitation in Section A of Part I of the Schedule (R4, tab 10 at 1 ). 

Although FAR 15 .204-1 does not state expressly that amendments to the solicitation are 

incorporated into the contract by reference, it is reasonable to conclude that amendments 

to the solicitation are included along with the solicitation. Moreover, the contract states 

6 
that the contractor shall perform the contract in accordance with its proposal submitted in 

response to Solicitation No. N00024-09-R-4412, providing further evidence that the 

solicitation is incorporated into the contract (R4, tab 10 at 87). 

This appeal is not like Enterprise Information Services, Inc. v. Dep 't of Homeland 

Security, CBCA No. 4671, 15-1BCA~36,010, in which the Civilian Board of Contract 

Appeals (CBCA) concluded that an information technology support contract expressly 

incorporated only select portions of the solicitation and did not include questions and 

answers set forth in the solicitation. Id. at 175,884. Here, in contrast, the contract 

expressly includes the entire solicitation in Part A of the contract (R4, tab 10 at 1 ). 

Moreover, CBCA's conclusion was dicta, because it held that the result would be the 

same even considering the solicitation and its amendments to be within the contract. Id. 

We conclude that it was reasonable for appellant to consider the solicitation - as 

amended - would be part of the contract and that the government would follow its answer 

concerning the calculation of the 40 percent small business subcontracting requirement. 

The government also challenges whether two statements from appellant's 

proposed Small Business Subcontracting Plan (R4, tab 19-2 at 1, 2) that referenced 

Amendment No. 0001 are incorporated into the contract (gov't opp'n at 18). Appellant 

contends that these statements demonstrate its reliance on Amendment No. 0001 (app. 

mot. at 11). We do not reach this issue, however, because we have determined that 

Amendment No. 0001 to the solicitation is a part of the contract as a matter oflaw. 

The government further argues that there is a genuine issue of material fact 

regarding the interpretation of an email from the contracting officer, Jose Marin, 

concerning whether the government consented to appellant's interpretation of the contract 

when it approved appellant's calculation of the small business utilization factor for 

AFEP 5 (gov't opp'n at 24-25). This dispute concerns the interpretation of Mr. Marin's 

email, not the fact that the email was sent, the facts surrounding the email, or the content 

of the email. Moreover, the interpretation of Mr. Marin's email concerns a prior 

evaluation period to the period at issue in this case. While extrinsic evidence of the 

parties' contemporaneous contract interpretation may be relevant in some circumstances, 

it is not necessary to consider in this case, because the plain language of the contract is 

unambiguous. Coast Federal Bank, FSB v. United States, 323 F.3d 1035, 1040 (Fed. Cir. 

2003); Certified Construction Company of Kentucky, LLC, ASBCA No. 58782, 15-1 

BCA ~ 36,068 at 176,133. 

In this case, the formula for calculating the small business utilization percentage 

must be considered together with the statements in solicitation Amendment No. 0001. 

Indeed, it is a core principle of contract interpretation that contract terms are interpreted 

and read as a whole, giving reasonable meaning to all of the contract's parts, and without 

leaving "'a portion of the contract useless, inexplicable, void, or superfluous." NVT 

7 
Technologies, Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004); Columbia 

State Bank (formerly Appeal of Castle-Rose, Inc.), ASBCA No. 59531, 16-1 BCA 

~ 36,399 at 177,454. Therefore, we conclude that the costs paid to AMF for the use of 

the dry-dock facility may be excluded from the small business calculation. 

Finally, we agree with the government that the language of Amendment No. 0001 

is permissive (gov't opp 'n at 20-21 ). The words "allowed to exclude" logically imply 

that the contractor may choose whether to include or exclude the costs associated with the 

use of the dry-dock facility from the small business utilization calculation. 

THE SMALL BUSINESS UTILIZATION 

CALCULATION FOR AFEP 6 

In its brief and in its answer to the complaint, the government makes two 

challenges to appellant's calculation of the small business utilization percentage. First, 

the government contends that appellant should have subtracted the AMF costs from both 

the numerator and denominator of the fraction (gov't opp'n at 21). Similarly, in its 

answer, the government argues that, if appellant is permitted to subtract the AMF costs 

from the contract cost in the denominator, it also must exclude from the numerator the 

corresponding costs of second-tier small business subcontractors who performed work for 

AMF (answer~ 41). The government also makes this argument in the COFD, where it 

states that the subcontracting dollars in the numerator must have a "direct correlation and 

be attributed to the 'direct costs related to production work"' as contained within the 

denominator (R4, tab 30 at 5). 

We agree. There is support for this notion in the government's answer to Question 4, 

which states that "offerors will be allowed to exclude the use of the AMF dry-docking 

facility from the 40% small business subcontracting requirement." Excluding the AMF costs 

from the "requirement" implies that the costs should be excluded from the entire calculation, 

not just from the denominator of the fraction. While it is true that the contract provides that 

the "forty percent ( 40%) subcontracting requirement may be met at any subcontracting tier" 

(R4, tab 10 at 128), it also is true that for a percentage to be accurate, both the numerator and 

denominator must include the same categories of costs. In a percentage, the numerator is a 

subset or portion of the denominator, meaning that it (numerator) represents a part of a 

whole. The numerator represents how many parts of the whole are being considered, while 

the denominator represents the total number of parts within the whole. It also means that the 

numerator cannot be greater than the denominator. See "Percentage," MerriamWebster.com, n.d. Web 20 December 2016 (defining "percentage" as a part of a whole 

expressed in hundredths). 

In this situation, if appellant elects to exclude the costs associated with the use of 

the AMF dry-dock facility, it must exclude them from the whole, including costs 

associated with second-tier small business subcontractors who performed work for AMF. 

8 
In other words, the costs for the use of the AMF dry-dock facility must be excluded from 

both the numerator and the denominator of the small business utilization fraction. 2 

Appellant's calculations for job no. 7333045 (for work on the USS San Jacinto) result in 

a small business utilization percentage of 235 percent (SOF 'if 8), a result which defies 

logic. A basic tenet of contract interpretation is that "[ w ]e must interpret the contract in a 

manner that gives meaning to all of its provisions and makes sense." Shell Oil Co. v. 

United States, 751F.3d1282, 1293 (Fed. Cir. 2014); ITT Defense Communications 

Division, ASBCA No. 44791, 98-1BCA'if29,590 at 146,703 (contract should be 

construed to avoid absurd results). 

Second, the government contends that appellant subtracted the wrong amount of 

the AMF costs. According to the government, appellant should have subtracted only the 

amount pertaining to the "use of [the AMF] dry-dock facility," not the entire amount of 

the AMF subcontract (gov't opp'n at 21). However, the government does not supply a 

different amount or question any of the particular invoices relied on by the appellant as 

support for its figure (app. supp. R4, tab 6 (AFEP 6 Spreadsheet)). Moreover, in the 

COFD, the government states that it is not requiring appellant to separate out the costs 

associated with the "use of the dry-dock facility," at least with respect to evaluation 

period six (R4, tab 30 at 1 ). The government makes no attempt to explain this apparent 

contradiction between the government's brief and the COFD. 

While the Rule 4 file contains a spreadsheet with cost data for evaluation period 

six (R4, tab 37 (AFEP 6 Spreadsheet)), we are unable to ascertain the precise amount 

paid to AMF for the use of the AMF dry-dock facility that is pertinent to the small 

business calculation. Although it appears that appellant excluded $1, 132,853 in costs 

paid to AMF from the denominator while failing to exclude the same amount from the 

numerator of the small business utilization fraction, we are unable to determine whether 

this amount is correct. In addition, on the record before us, we are unable to ascertain the 

effect of including the dry-dock costs paid to AMF in the equation, if appellant were to 

elect to do so. Therefore, because we cannot determine from the record before us the 

specific costs to include in the calculation of small business utilization percentage, and 

because appellant possesses the discretion whether to include the AMF dry-dock costs in 

its calculation, summary judgment is precluded. 

2 In the alternative, if appellant believes that including the costs paid to AMF for the use 

of the dry-dock facility would result in a more favorable small business 

percentage, it may do so by including all of the AMF direct costs in the 

denominator and the costs of the second-tier small business subcontractors who 

performed work for AMF in the numerator. 

9 
CONCLUSION 

We hold that the contract provision setting forth the calculation of the small 

business utilization percentage is unambiguous and that, if the contractor elects to 

exclude the costs associated with the use of the AMF dry-docking facility, those costs 

must be excluded from both the numerator and denominator of the small business 

utilization percentage. Accordingly, we grant summary judgment, in part, as to the 

interpretation of the contract and direct the parties to present evidence, either orally or in 

writing, as to the appropriate figures to input into the small business percentage formula. 

Finally, we deny appellant's motion for stay as moot. 

Dated: 13 July 2017 

I concur 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

0 

Administrative Judge 

Acting Vice Chairman 

Armed Services Board 

of Contract Appeals 

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

Armed Services Board of Contract Appeals in ASBCA No. 59876, Appeal of BAE 

Systems Southeast Shipyards Mayport LLC, rendered in conformance with the Board's 

Charter. 

Dated: 

10 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals