ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )

)

Alloy Surfaces Company, Inc. ) ASBCA No. 59625

)

Under Contract No. W15QKN-04-D-1002-0014 )

APPEARANCES FOR THE APPELLANT: David Z. Bodenheimer, Esq.

Jason M. Crawford, Esq.

Jason C. Lynch, Esq.

 Crowell & Moring LLP

 Washington, DC

APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq.

 Army Chief Trial Attorney

Harry M. Parent III, Esq.

Robert B. Neill, Esq.

 Trial Attorneys

OPINION BY ADMINISTRATIVE JUDGE WOODROW 

This appeal involves a dispute as to the pricing of a delivery order (DO) for the 

manufacture of M211 infrared countermeasure decoy flares. Appellant Alloy Surfaces 

Company, Inc. (Alloy or appellant) held an Indefinite Quantity/Indefinite Delivery 

(IDIQ) contract with the United States Army (Army or government) for the 

procurement of M211 Infrared Countermeasure Decoys, which are fired from 

helicopters to avoid heat-seeking rounds. The Army awarded the contract in January 

2004. In April 2006, the government requested a proposal for a substantial quantity of 

additional M211s to be procured under DO 0014 (DO 14).

During 2006, appellant was in the process of automating certain manufacturing 

processes and bringing two additional plants on-line. By early September 2006, Alloy 

completed DO 13, utilizing its automated manufacturing processes at its original plant. 

Appellant submitted its proposal for DO 14 in April 2006. Its proposal did not 

contain any material and labor usage data related to DO 13; rather, it contained similar 

data from earlier jobs which were produced without the automated processes utilized 

in DO 13. In August 2006, the government and appellant began negotiations on the 

proposal which ultimately led to Modification No. P00025 and DO 14. 

The government contends that it relied on defective material and usage rates 

when it negotiated the price for DO 14 and that it agreed to a higher price than it 

would have if it had access to the DO 13 data. On July 24, 2014, the contracting 

officer (CO) issued a Contracting Officer’s Final Decision (COFD) asserting that 
2

appellant provided defective cost or pricing data to the Army during the negotiation 

leading to the award of DO 14. The Army seeks $15,920,212 plus interest. This 

appeal followed. Both entitlement and quantum are before us.

We hold that job cost sheets prepared by Alloy during the production of DO 13

were management tools that contained both factual and judgmental information, but 

did not possess the requisite degree of certainty necessary for providing certified cost 

data to the government. In particular, at the time of price agreement on September 25, 

2006, the reports were not sufficiently certain to be certified as “cost and pricing data” 

pursuant to the Truth in Negotiations Act, 10 U.S.C. § 2306a. 

Finally, we hold that the Army fully was aware of the effect of automation on 

the pricing for the flares, but chose instead to rely on manufacturing data from earlier, 

non-automated jobs. As the Army acknowledged during its negotiations, the pricing 

of the non-automated jobs best reflected a compromise between the increased 

efficiency of automation and the inefficiency of increasing production. We conclude 

that having the data from DO 13 would not have shed light on the anticipated

inefficiencies of qualifying new plants, installing new equipment, and hiring new 

workers, and, ultimately, would not have changed the price the government negotiated 

with Alloy. We sustain the appeal.

FINDINGS OF FACT

I. Prior Contract History

1. On July 7, 1999, the Army awarded Contract No. DAAE30-99-C-1084 (the 

1999 contract) to Alloy for the production of a quantity of 6,800 M211 decoy flares 

(R4, tab 60 at 3; answer at 38).

2. The Army issued Modification No. P00041 under the 1999 contract with an 

effective date of March 28, 2003 (answer at 3). Modification No. P00041 is also 

known as Job No. 1516 (R4, tab 80 at 8; tr. 1/84-85).

3. In August 2005, Alloy completed delivery of 120,553 M211 decoy flares 

under Modification No. P00041 (Job 1516) (R4, tab 80 at 8).

II. The Base Contract

4. On January 23, 2004, the Army awarded Indefinite Quantity/Indefinite 

Delivery (IDIQ) Contract No. W15QKN-04-D-1002 (the 2004 contract) to Alloy for 

the procurement of 700,000 M211 Infrared Countermeasure Decoys (decoys, flares, 
3

M211s, or M211 decoys), with a maximum value of $25,914,000 (R4, tab 1 at 3, 10,

tab 74 at 5-6). Subsequent contract modifications progressively increased the 

maximum ceiling price to $200,548,507.00 (R4, tab 74 at 3).

5. Infrared countermeasure flares, or decoys, are devices used to protect 

helicopters from heat-seeking missiles. The M211 decoy consists of a metal case 

that’s nominally an inch square and eight inches long, filled with between 2,500 and 

3,000 thin metal foils that have a special coating on them that reacts in the air to 

perform their countermeasure work to decoy heat-seeking missiles. (Tr. 1/179).

6. The 2004 contract incorporated Federal Acquisition Regulation (FAR) 

clauses 52.215-10, PRICE REDUCTION FOR DEFECTIVE COST OR PRICING

DATA (OCT 1997), and 52.215-11, PRICE REDUCTION FOR DEFECTIVE COST 

OR PRICING DATA – MODIFICATIONS (OCT 1997) (R4, tab 1 at 35). According 

to FAR § 15.407-l(b)(l), “[t]he clauses give the Government the right to a price 

adjustment for defects in certified cost or pricing data submitted by the contractor, a 

prospective subcontractor, or an actual subcontractor.” FAR § 15.407-1(b)(1).

A. Previous Delivery Orders for M211 Decoy Flares 

7. Prior to the award of DO 14 at issue in this appeal, the Army issued other 

delivery orders to Alloy for M211 decoy flares under the 2004 contract (answer ¶ 8).

These delivery orders included:

• Delivery Order 1 on February 5, 2004 (R4, tab 2).

• Delivery Order 6 on June 17, 2005 (R4, tab 25).

• Delivery Order 7 on October 10, 2005 (R4, tab 30).

• Delivery Order 8 on November 23, 2005 (R4, tab 34).

• Delivery Order 11 on January 26, 2006 (R4, tab 44).

• Delivery Order 13 on May 16, 2006 (R4, tab 52).

8. Alloy assigned job numbers relating to the work under both Modification 

No. P00041 (1999 contract) and the above delivery orders (2004 contract at issue):

Army Contract Reference Alloy Job No. 

Modification No. P00041 Job No. 1516 

Delivery Order 1 Job No. 1528 
4

Delivery Order 6 Job No. 1573-1 

Job No. 1573-2 

Delivery Order 7 Job No. 1596 

Delivery Order 8 Job No. 1601 

Delivery Order 11 Job No. 1611 

Delivery Order 13 Job No. 1626 

(Compl. ¶ 8)

9. Army CO Sandra LaBell signed and awarded DO Nos. 6, 7, 8, 11, and 13 (R4, 

tabs 25, 30, 34, 44, and 52).

10. The Army knew that DO Nos. 6, 7, 8, 11, and 13 had been produced in 

Plant 1. In its cost proposal for DO 14, Alloy stated that it would add substantial 

amounts of equipment, including expanding Plant 2, starting production at Plant 3, 

and hiring 234 new employees. (Tr. 1/178; R4, tab 50 at 3; app. supp. R4, tab 2; 

tr. 1/61-62)

1. Delivery Order 13 Introduces More Efficient Manufacturing Processes

11. On May 16, 2006, the government placed DO 13 against the contract (R4, 

tab 52). 

12. DO 13 called for the fabrication, test, and delivery of 33,379 M211 decoys

in two lots, with a portion to be used for lot testing (R4, tab 52 at 5, tab 96 at 7).

13. DO 13 was produced in Plant 1, but, unlike previous delivery orders, Alloy 

manufactured DO 13 using all-new automated processes (tr. 2/180; R4, tab 96 at 8-9). 

The Army was aware that DO 13 was produced in Plant 1 (tr. 3/45-46).

14. In particular, the manufacturing process for DO 13 included the use of 

auto-loaders, the one-step bake, and the auto epoxy processes. When combined, these 

processes produce efficiencies in labor usage and material usage. (R4, tab 96 at 8-9)

15. Pursuant to the Production Prove-Out Contract No. W15QKN-04-1002, 

the Army reviewed and approved each step of the automated production process used 
5

to manufacture M211 decoys in Plant 1. (R4, tab 60 at 3; tr. 1/136; app. supp. R4, 

tabs 13-24).

2. Delivery Order 14 Required Substantial Production Ramp-Up

16. To increase the volume and rate of M211 production, the Army initiated 

two interrelated procurement actions. First, it negotiated Modification No. P00025 to 

raise the quantity ceiling and establish prices for issuing DO 14. Second, it supported

a Production Prove-Out effort to increase Alloy’s M211 production capacity and rate

(R4, tab 60 at 3). 

17. As explained in the Army’s August 9, 2006 Business Clearance 

Memorandum, these procurement actions were necessary to support the increase in 

production quantity to support Operation Iraqi Freedom, and Operation Enduring 

Freedom, and the Global War on Terrorism (R4, tab 60 at 3).

18. DO 14 required the largest production ramp-up for delivering M211 decoy 

flares under either the 1999 contract or the 2004 Contract (answer at 43; tr. 1/63, 

2/202-03).

19. At the time of the Army’s request for a price proposal for DO 14, in April 

2006, Alloy was producing M211 units against the IDIQ contract at a rate of 25,000 –

35,000 units per month, of which the referenced DO Nos. 6, 7, 8, 11, and 13 were 

included. The Army’s request in April 2006 required Alloy to dramatically increase 

output, tripling Alloy’s output to 80,000 units per month. (R4, tab 78 at 1; tr. 2/210-11)

20. Alloy explained, in its April 18, 2006 proposal, that “2006 is a major 

ramp-up year for ASC” and it was “ramping-up from 37,000 units/month to 80,000 

units/month” (R4, tab 50 at 3). The Army’s witnesses did not challenge this assertion 

(tr. 1/58, 2/70).

21. In order to meet the Army’s increased demand for decoy flares, Alloy

opened two additional plants for the manufacture of decoy flares, known as Plants 2 

and 3 (tr. 4/10-11, 37). In total, Alloy would have three plants and approximately 

240-250 employees involved in decoy flare production (tr. 4/37).

22. For the ramp-up for DO 14, Alloy advised the Army that it would need to 

“add substantial amounts of equipment and will be hiring 234 new employees, most of 

who will be working on this effort” (R4, tab 50 at 3).

 
6

23. The ramp-up effort was necessary in order to be able to produce at the 

levels needed for DO 14 within the time frames required by the Army (tr. 2/67, 103).

24. DO 14, when awarded, would use the same type of automated equipment 

used on DO 13 (R4, tab 96 at 2).

25. On March 30, 2006, Alloy’s Chief Financial Officer (CFO), Larry D’Andrea, 

sent an email to the CO stating that: “the pricing for the M211s are extremely complex 

due to the manufacturing from 3 plants (two of which are new for M211s production) and 

due to incorporation of ramp-up assumptions” (app. supp. R4, tab 2).

26. According to Mike Mignogna, Alloy’s Vice President of Operations, the 

ramp-up associated with DO 14 would require Alloy to obtain permitting and expand 

M211 operations to two new plants; pass first article testing; qualify and install new 

equipment; and hire and train new employees (tr. 4/64-66).

27. Before Alloy could use a new piece of equipment it had to be qualified: 

“[t]he Army required qualifications, which – on every piece of equipment, so we had 

to actually qualify, write a report, get the approval and, you know, it was a big 

process.” (Tr. 4/66) 

28. The Army knew that DO 14 would require new employees (R4, tab 50 at 3). 

3. The Army Required Prior Notice and Approval before Adding New 

Equipment or Processes for M211 Production

29. Pursuant to the First Article Clause, Alloy was required to give prior notice 

and obtain Army approval before adding new equipment or processes for M211 

production (app. supp. R4, tab 16 at 1; tr. 4/66).

30. During the DO 14 negotiations, the Army, including the CO, knew 

which automation equipment had been qualified and approved for M211 production

(tr. 1/136; 2/102).

31. The Army understood that Alloy would be ramping-up from 37,000 units 

a month to 80,000 units a month, based upon their involvement in the Production 

Prove - Out Proposal and contract (tr. 1/58-59, 2/69-70).

32. As the person who signed off on the qualification reports for the M211 

production equipment, CO LaBell was aware that Alloy would be adding substantial 

amounts of new equipment to Plant 2 and Plant 3 for this production proposal (tr. 1/59-60).
7

B. Negotiations for Delivery Order 14

1. Key Government Personnel and Technical Team’s Role

33. Key individuals involved in the government’s negotiation of DO 14 (R4, 

tabs 73-74), included Ms. LaBell, the procuring CO, and Mr. David M. Dreifus, 

engineer.

34. Ms. LaBell is an Associate Director at Army Contracting Command –

Picatinny Arsenal, New Jersey. Ms. LaBell’s 37-year career in acquisition at 

Picatinny includes approximately eight years as a CO; she was the CO at the time of 

the negotiation at issue in this appeal. (Tr. 1/21-23) 

35. Ms. LaBell first became involved with appellant’s contract in 2004, when 

she became a contracting officer and issued delivery orders against the original contract 

(tr. 1/25). She communicated with appellant’s employees Larry D’Andrea and 

Karen Justman regarding those delivery orders (tr. 1/25).

36. Mr. Dreifus is an engineer currently employed by the Army’s Armaments 

Research, Development and Engineering Center at Picatinny Arsenal in New Jersey 

(tr. 1/166-67). 

37. Mr. Dreifus was involved in a number of roles on appellant’s M211 

infrared countermeasure decoy contract (tr. 1/171-72). Mr. Dreifus was involved in 

first article testing, lot acceptance testing, and qualification testing of appellant’s 

production equipment as appellant did production ramp-up and production capability 

ramp-up (tr. 1/172). 

38. Mr. Dreifus also was involved in supporting the contract negotiations 

resulting in Modification No. P00025 and DO 14 (tr. 2/20-21). 

2. Alloy’s April 2006 Price Proposal 

39. On April 18, 2006, Alloy submitted its cost proposal, which identified the 

different materials needed for each unit of M211 production. Similarly, the proposal 

identified what types of labor operations would be required and how many hours 

(or fractions of an hour) would be needed for each M211 labor operation. (R4, tab 50 

at 8-15; tr. 1/199)

40. In its April 18, 2006 proposal, Alloy explained that “2006 is a major 

ramp-up year for ASC” and it was “ramping-up from 37,000 units/month to 80,000 
8

units/month[.]” Alloy further explained that it “will add substantial amounts of 

equipment and will be hiring 234 new employees, most of who will be working on this 

effort.” (R4, tab 50 at 3) 

41. The CO understood that Alloy would be ramping-up from 37,000 units a 

month to 80,000 units a month (tr. 1/58). She had this understanding based upon her 

oversight of the Production Prove-Out proposal and contract and her awareness of the 

status of the ramp-up operation (tr. 1/58, 2/70).

42. Alloy produced decoy flares for DO Nos. 6, 7, 8, 11, and 13 in Plant No. 1

(tr. 2/178, 3/52).

43. Alloy produced decoy flares for DO 14 in Plant Nos. 2 and 3, rather than 

Plant No. 1 (R4, tab 78 at 2; tr. 1/122).

44. Appellant’s April 18, 2006 proposal incorporated a 10 percent factor for a 

negative learning curve, essentially asserting appellant’s increased automation would, 

at least initially, yield diminished returns due to a need to hire and train personnel. 

That 10 percent negative learning curve factor came from appellant’s Vice President of 

Operations, Mike Mignogna, working with his team. (Tr. 4/38, 90) The 10 percent 

learning curve factor took into consideration all the inefficiencies with new employees, 

new equipment, and new plants that would be needed for the contract (tr. 4/38).

45. CO LaBell “agreed that they [Alloy] would be hiring new employees to 

ramp-up.” (Tr. 1/61-62) Mr. Dreifus understood that it was going to take a lot of new 

employees working on the M211 production to handle the ramp-up associated with 

DO 14 (tr. 2/72).

46. Both CO LaBell and Mr. Dreifus agreed that, in their experience, new 

employees are generally less efficient than existing employees (tr. 1/62, 2/73).

3. Army’s Initial Technical Evaluation

47. Prior to negotiations, the Army contracting office asked Army engineers 

David Dreifus, Franki Fong, and Adrian Nitu-Solomon (the “technical team”) to 

perform a technical evaluation of Alloy’s April 18, 2006 cost proposal including the 

quantities of material, types of material, quantities of labor, and types of labor that 

Alloy had proposed (R4, tab 60; tr. 1/185-86, 193-94). 
9

48. On May 17, 2006, the Army technical team submitted to CO LaBell its 

“Technical Evaluation to Cost Proposal Regarding Contract W15QKN-04-D-1002 

for delivery quantities of 450k to 950k, Revision 1-2” (R4, tab 60 at 39; answer at 6).

49. Mr. Dreifus did much of the drafting of the technical evaluation 

memorandum, and agreed with technical evaluation findings set forth in the report 

(tr. 2/75).

50. Mr. Dreifus understood that CO LaBell and contract specialist, Ms. Robertson 

would be relying upon the Army’s technical evaluation and he tried to make sure that the 

evaluation was done as well as he could (tr. 2/75-76). 

51. In developing the technical evaluation, the Army technical team relied 

upon the following sources of information: (i) technical requirements; (ii) testing and 

inspection requirements; (iii) direct observation; (iv) production and delivery rates and 

schedules; (v) historical information about previously submitted proposals for M211 

production; and (vi) engineering estimates (R4, tab 60 at 39; tr. 1/197-98, 2/76-77).

52. Within the initial technical evaluation, the Army technical team addressed 

all of the direct labor and direct material usage rates proposed by Alloy and evaluated 

whether the proposed rates were reasonable or unreasonable (R4, tab 60 at 41-49; 

tr. 1/199).

53. Where the technical team found a proposed rate unreasonable, the technical 

team took technical exception to the proposed rate, meaning that they disagreed with 

the rate Alloy had proposed (tr. 1/30-31; 1/199).

54. For labor usage, the Army developed its independent technical labor usage 

factor of 0.8062 hours per unit for a quantity range of 700,000-749,999 units (answer

at 11; R4, tab 60 at 28; tr. 3/22-23). For a quantity of 750,000 flares, the Army 

developed an independent labor usage factor of 0.8064 hours/unit (R4, tab 60 at 28; 

tr. 3/23; app. supp. R4, tab 35). These estimates were based on the Army’s own 

independent evaluation and judgment for producing M211 flares (answer at 11).

55. In its Initial Technical Evaluation, the Army prepared independent labor 

usage factors for all labor operations, including for the recoil, dry/bake, and 

slit/chop/load automated operations (R4, tab 60 at 30-31, 47-48). 
10

4. Business Clearance Memorandum

56. On August 10, 2006, CO LaBell and Ms. Robertson, signed the Business 

Clearance Memorandum (BCM) for negotiating increased quantities of M211 decoy 

flares under the 2004 contract (R4, tab 60 at 2).

57. CO LaBell confirmed that the BCM used the same material and labor 

usage factors as those found in the Army’s initial technical evaluation (R4, tab 60 

at 6-9, 29-32, 41-42, 47-48;tr. 1/29-30). 

58. The Army based its pre-negotiation positions upon labor and material usage 

factors reflected in the BCM and supported by the Army technical evaluation (R4, 

tab 60 at 6-9, 29-32, 41-42, 47-48; tr. 1/26-27). 

59. For its pre-negotiation positions, the Army developed overall labor usage 

values based upon specific quantity ranges: 

• 0.8062 labor hours for quantity range of 700,000 – 749,999 units. 

• 0.8064 labor hours for quantity range of 750,000 – 799,999 units 

(Answer at 11; tr. 1/153, 155; R4, tab 60 at 28)

60. For its pre-negotiation position, the Army prepared its labor usage estimate 

based upon its own independent evaluation and judgment (answer at 11).

5. Price Negotiations

61. Negotiations for Modification P00025 and DO 14 spanned the period of 

August 16 through September 25, 2006 (app. supp. R4, tab 6; answer at 7; R4, tab 71 

at 3).

62. According to CO LaBell, everything discussed within the negotiation is 

captured in the Price Negotiation Memorandum (PNM) (R4, tab 71), which she drafted 

along with Ms. Robertson (tr. 1/32-33).

63. Additionally, the BCM, dated August 9, 2006, contains the government’s 

pre-negotiation strategy and its initial technical evaluation (R4, tab 60). 

64. On August 16, 2006, Ms. Robertson initiated negotiations by sending a 

letter to appellant and taking exception to appellant’s proposed labor usage rates (app. 

supp. R4, tab 6; answer at 7).
11

65. That same day, Alloy responded by faxing a two-page breakdown of actual 

material and labor usage rates from two completed delivery orders, Alloy Job #1516 

under the 1999 contract, which was completed in August 2005, and Alloy Job #1528 

under the 2004 contract, which was completed in February 2006 (hereinafter referred 

to as Jobs 1516 and 1528) (app. supp. R4, tab 4). The August 16, 2006 fax set forth 

material usage data and labor usage data for Jobs 1516 and 1528, and included a 

weighted average of Jobs 1516 and 1528 for labor usage of 0.96444 hours/unit (app. 

supp. R4, tab 4).

66. Knowing that the learning curve involved some risk for appellant, Alloy 

built inefficiencies into its direct costs for its proposal (tr. 4/40).

67. On August 18, 2006, the Army took exception to Alloy’s use of Jobs 1516 

and 1528 as bases for proposed costs and identified specific labor operations where 

Alloy had gained greater efficiencies (app. supp. R4, tab 7; R4, tab 104). Specifically, 

the government argued that the labor usage rates should be lower due to increased 

process efficiency and improvements which had been introduced into the 

manufacturing process after the completion of DO 0001 (R4, tab 71 at 13).

68. The 10 percent negative learning curve became a point of discussion 

during negotiations. CO LaBell testified that Alloy’s proposal originally contained 

a 10 percent risk factor, in addition to a higher proposed usage rate, and that during 

negotiations the parties agreed to remove the 10 percent risk factor in exchange for 

utilizing a weighted average of the job cost and data for Jobs 1516 and 1528 

(tr. 1/159-160). 

69. Mr. Dreifus participated in telephonic discussions with Alloy personnel 

during the negotiations. Mr. Dreifus testified that the parties discussed actual direct 

materials and labor usage rates for Alloy’s M211 production in negotiations. 

(Tr. 2/25-26)

70. Mr. Dreifus testified that the government technical evaluators had concerns 

about the suitability of the actual usage rates that Alloy provided in negotiations 

because the government evaluators believed that the actuals for jobs 1516 and 1528 

were not representative of the more automated state of Alloy’s current production 

process (tr. 2/27-28).

71. On September 22, 2006, the Army technical team issued its final technical 

evaluation (R4, tab 69).
12

72. The PNM incorporated the Final Technical Evaluation’s finding that 

“Some inefficiency may occur due to additional production rate ramp-up” (R4, tab 71 

at 6-7, 13-17, tab 69 at 5-7, 14-19).

73. Regarding ramp-up inefficiency, the PNM stated: “The Government 

acknowledged that some inefficiency could occur due to additional production rate 

ramp-up” (R4, tab 71 at 13-16). 

74. CO LaBell, who signed off on the PNM, testified:

Q. When you signed off on the price negotiation 

memorandum, is it correct that you were signing off as the 

contracting officer representing the Government?

A. Yes, I was. Yes.

Q. When you signed off on the statement, the Government 

acknowledges that some inefficiency could occur due to 

additional production rate ramp-up, you were signing in 

your capacity as the contracting officer, correct?

A. Yes.

Q. You made this acknowledgement for at least four 

categories or material usage factors, steel, tantalum, liquid 

caustic, and aluminum, correct?

A. Correct.

Q. You also made this acknowledgement for every 

category of labor usage, except for test support, correct?

A. Correct.

(Tr. 1/105-06; 1/116-17)

75. On September 25, 2006, the parties finalized their price negotiations for 

additional M211 flares (answer at 12). 

76. The Army knew that its independent labor usage factors in its Initial 

Technical Evaluation were lower than what the Army negotiated for these factors. 
13

M211 Labor Operations Negotiated Labor Usage Technical Evaluation 

Labor Usage

Recoil 0.04773 0.04314

Dry/Bake 0.14705 0.07874

Slit/Chop/Load 0.35000 0.22232

(R4, tab 71 at 14-15, tab 60 at 30-31; tr. 2/155-157)

77. Compared with the negotiated labor usage value (0.9704), the Army’s 

known and disclosed labor usage value (0.73008) was about 24 percent lower than the 

negotiated value (tr. 3/66-69; app. supp. R4, tab 35).

6. The DO 13 Job Cost Report

78. In its COFD, the Army contended that Alloy had a duty to submit 

Work-in-Process (WIP) sheets during negotiations. Specifically, the Army contended 

that Alloy had a duty to provide the September 2006 job cost report for DO 13 to the 

Army during the price negotiations. (R4, tab 96 at 3-4, 9) 

79. In the top left corner, the September 2006 job cost report for DO 13 (DO 13 

WIP sheet) bore a date of September 24, 2006, which was a Sunday. This date 

identified the “month-end close date” or “cutoff period.” (Tr. 4/22; app. supp. R4, 

tab 30) The Army does not contest that September 24, 2006 represented the cutoff 

date after which Alloy conducted a physical inventory count and reconciliation 

(tr. 3/60, 4/27-28; gov’t br. at 29-30). 

80. In the bottom right corner of the DO 13 WIP sheet, the date of Friday, 

September 29, 2006, appears (app. supp. R4, tab 30). This date is when the DO 13 

WIP sheet became available to Alloy’s management (tr. 4/22-23). Once the WIP sheet 

became available to Alloy’s management, it was then verified through the 

reconciliation process (tr. 4/23). Appellant, typically closed its books on the last 

Sunday of the month (tr. 4/26; app. supp. R4, tab 30). Each month, appellant 

conducted a full reconciliation of its reports (tr. 4/26), to include a review of labor 

timesheets (tr. 4/27-28).

81. Mr. D’Andrea testified that the job cost reports show “standards as well as 

our actuals that are captured for the month and contract to date. It also gives an 

estimate to complete.” (Tr. 4/21) He further explained that Alloy took significant 

steps to verify the data to the extent possible:
14

Before we even close the books, we do an analysis, a 

summary of our results for the month. Then also we do a 

pro forma forecast to the end of the year in which you have 

to look at issues to complete your contracts, backlog, fills, 

forecasts, then what your profits are, and then attach [sic]. 

So, yes, we reviewed that.” 

(Tr. 4/25-26) According to Mr. D’Andrea, the whole purpose of the forecasts was to 

see if appellant was going to meet its budget, and sometimes to look ahead to the next 

fiscal year (tr. 4/26).

82. Alloy followed the practice of not furnishing WIP sheets because, prior to 

job completion and accounting reconciliation, the WIP report included judgmental 

information (tr. 4/14). At times, Mr. D’Andrea had seen substantial “variations” 

between the WIP data before doing reconciliation and after issuing the final report:

I’d like to explain the WIP process and why WIP sheets 

are judgmental and aberrant. And at times, the WIP sheets 

when they’re finalized could be very close to actuals. You 

don’t have broad variations, but mostly we have seen 

larger variations and we got burnt and [sic] on many 

occasions.

(Tr. 4/15) 

83. Mr. D’Andrea further explained why the WIP process involved judgment 

and variations, including the need to develop estimates for “equivalent units” prior to 

completing production and conducting the final inventory count (tr. 4/15-19; R4,

tab 79 at 2, 11-14).

84. Mr. D’Andrea explained that considerable judgment was involved in 

allocating both labor and material to particular jobs. For example, several different 

types of metal are combined into a slurry which is used to manufacture M211 flares for 

the Air Force, Navy, and Army. The raw metals used in the slurry must be allocated to 

each job consistently. Similarly, labor hours must be allocated to separate jobs, even 

though individual workers are not charging their time to each separate job. The 

allocation is done by someone in the production department. The production department 

develops a usage rate for both material and labor, on a per unit basis, by dividing the 

allocated material and labor by the number of units produced. (Tr. 4/16-19) 
15

85. WIP data for labor usage for different jobs exhibited significant volatility, 

showing variances of between 33 and 500 percent in labor usage for the same month 

on the same production line (R4, tab 81 at 5).

86. As the Alloy official responsible for signing the Certificate of Current Cost 

or Pricing Data, Mr. D’Andrea did not believe the WIP sheets to be sufficiently 

accurate to certify until after the job had been completed and the accounting data had 

been reconciled (tr. 4/18-19). 

7. Whether the Army Requested the DO 13 Job Cost Report

87. CO LaBell testified that Alloy did not provide any material and labor usage 

rate data for DO 13 during the price negotiations for DO 14 (tr. 1/38-39). She stated 

that the government requested this data during negotiations (tr. 1/39), but Alloy stated 

that it would not disclose the data because it was WIP data, and a DD 250 had not 

been developed and submitted (tr. 1/40 (LaBell), 4/30 (D’Andrea).

88. During the course of Modification No. P00025 and DO 14 negotiations, the 

Army knew that Alloy had an established practice of not providing WIP sheets prior to 

completion of the job (app. supp. R4, tab 9, tab 12 at 4-5).

89. On direct examination, CO LaBell initially testified that the Army had 

requested WIP sheets for Delivery Order 13 during the negotiations for Modification 

No. P00025 and DO 14 (tr. 1/39). On cross examination, CO LaBell acknowledged 

that she never told Alloy that she needed the WIP sheets to award DO 14, nor that 

lack of WIP sheets would make the delivery order un-awardable (tr. 1/149). She 

also admitted that there was no written record for any Army request for WIP sheets 

(tr. 1/144), and, if a request had been made, it would have been in the contract files 

and documented in the PNM (tr. 1/144-45). 

90. The PNM does not mention any Army request for data for DO Nos. 6, 7, 8, 

11, or 13 (R4, tab 71).
16

C. Decision to Rely on Job 1516 and 1528 Data

91. Regarding the job cost spreadsheets at R4, tab 75 (tr. 1/43-49), CO LaBell 

testified the government did not have access to that data during negotiations and that 

“[t]his is the documentation we would have liked to have during negotiations.” (Tr. 1/48)

92. CO LaBell acknowledged the government was under a time constraint to 

procure M211 decoys, explaining that there were two wars ongoing at the time and 

“time constraints just had to do with trying to get the flares to the soldiers.” (Tr. 1/162)

93. When asked whether she had any options other than entering into the 

contract with the prices included in Mod. P00025, Ms. LaBell testified she could have 

awarded an undefinitized contract action (UCA), although she did not think that would 

have gained the government anything (tr. 1/49). She has issued UCAs many times, is 

familiar with the process, and has in the past obtained approval for such actions 

(tr. 1/150).

94. When asked about how DO 13 would have been used in negotiations, 

CO LaBell initially stated:

It would have been a been a lower price to the 

Government, based on the information that we received 

from PO 41 and Delivery Order 1, it would have been a 

lower unit price.

(Tr. 1/44-45)

95. CO LaBell testified that Army Contracts would have referred the DO 13 

data to the Army technical team, but did not say what the Army would have done:

We would look at this, but we also would refer to 

technical. With this spreadsheet, it talks about the usage 

rate for the decoys, and then it talks about the actuals for 

the month. Then it also talks about the WIP, work in 

process. We would look at the various columns, and then 

we would discuss this with technical.

(Tr. 1/48; gov’t br. at 32)
17

96. CO LaBell testified she signed Modification P00025 relying upon the 

certificate of current cost or pricing data, and on the assumption the government would 

be able to recover any defective pricing costs later:

Q: You signed the Modification P00025 relying on upon 

the certificate current costs and pricing data, on the 

assumption that you would be able to recover any defective 

pricing cost later, correct?

A: Correct. 

(Tr. 1/151-52) 

97. CO LaBell testified that the government used a weighted average as 

opposed to just the lower numbers on Job 1528 because the government “had to look 

at items and the experience that we experienced. For example, labor, as well as 

material, it depended on what we were experiencing at that time.” (Tr. 1/160-61)

98. In 2006, soon after award of DO 14, CO LaBell was promoted out of her 

contracting officer position (tr. 1/51), and by 2012, CO LaBell was Associate Director 

at ACC Picatinny, and Ms. Heather Gandy had assumed the role of contracting officer 

on appellant’s contract (tr. 1/443).

99. Mr. Dreifus testified that, “in the end there was a decision to go and use 

the actual 1516 and 1528 [data]. Because Alloy was unable or unwilling to provide 

any more recent and relevant information, despite our requests for it.” (Tr. 2/31)

100. Mr. Dreifus testified that the government technical evaluators’ concerns 

with the information that Alloy had provided are recorded in the final technical 

evaluation report. 

101. For example, the government still took exception to the appellant’s 

proposed usage rate for steel and believed that it should be lower and without any 

additional percentage. Mr. Dreifus stated in his hearing testimony that this was based 

on the appellant being more effective and efficient with new automated equipment. 

(Tr. 2/31-32)

102. Mr. Dreifus explained in his testimony that, in the end, the parties agreed 

not to incorporate appellant’s proposed 10 percent negative learning curve. Instead, 

the parties decided to use the appellant’s actuals from jobs 1516 and 1528 as the basis 

for the negotiated agreement (tr. 2/33-34, 4/38-40).
18

103. Mr. Dreifus explained that comments in the government’s final technical 

evaluation that “some inefficiency may occur due to additional production rate 

ramp-up” were included in the technical evaluation report to try to capture statements 

by the appellant that it had concerns about production ramp-up (tr. 2/34-35). 

104. Mr. Dreifus testified that the government did not attempt to quantify or to 

ask the appellant to quantify the inefficiency that may occur due to production rate 

ramp-up, because the appellant already had included a 10 percent negative learning 

curve as an attempt to account for the anticipated inefficiency, and because appellant 

already had a separate contract to compensate for its ramp-up activities (tr. 2/35-36). 

105. For individual labor operations for Job 1528, the Army knew during 

negotiations that automation in Plant 1 had resulted in labor usage factors lower than 

those for Job 1528 disclosed in the August 16 fax. On August 18, 2006, the Army 

stated that “efficiencies” had already been gained over the “supplied actuals.” (App. 

supp. R4, tab 7; tr. 1/86-91, 2/116-23)

106. For each labor operation for Job 1528 (except test support), the PNM and 

Final Technical Evaluation stated that labor usage would be lower than the actual 

usage hours under Job 1528 (R4, tab 71 at 13-17, tab 69 at 14-19).

107. On August 16, 2006, Alloy disclosed to the Army actual labor and 

material usage factors for Jobs 1528 and 1516 (app. supp. R4, tab 4). The PNM 

acknowledged receipt of this data: “Alloy submitted sheets which represented 

‘actuals’” for Jobs 1516 and 1528” (R4, tab 71 at 6-8, 13-16). 

108. For individual labor operations for Job 1528, the Army knew during 

negotiations that automation in Plant 1 had resulted in labor usage factors lower than 

those for Job 1528 disclosed in the August 16 fax. On August 18, 2006, the Army 

stated that “efficiencies” had already been gained over the “supplied actuals.” (App. 

supp. R4, tab 7; tr. 1/86-91, 2/116-23)

109. For each labor operation for Job 1528 (except test support), the PNM and 

Final Technical Evaluation stated that labor usage would be lower than the actual 

usage hours under Job 1528 (R4, tab 71 at 13-17 [labor usage “lower than that 

provided under DO 0001”], tab 69 at 14-19 [same]). The Army acknowledged that 

this meant that labor usage would be lower than the factors in the August 16, 2006 fax, 

due to increased process efficiency and improvement (tr. 1/109-111). 
19

110. For material usage (steel, tantalum, liquid caustic, and aluminum), the 

PNM and Final Technical Evaluation stated that material usage would be lower than 

the actual usage hours under Job 1528 (R4, tab 71 at 6-8, tab 69 at 5-7). Mr. Dreifus

stated that this meant that material usage would be lower than the factors in the 

August 16, 2006 fax (tr. 1/100, 2/126-127). 

111. Mr. Dreifus testified that, although he provided a technical 

recommendation, the CO decided to use a weighted average of actual usage rates per 

decoy from the appellant’s Jobs 1516 and 1528 data (tr. 2/36-37).

112. The Army technical team disagreed with the Army decision “made by 

someone else” within the Army to use the weighted average of Jobs 1516 and 1528:

Q. So when you say a decision was made, you’re saying 

that the decision was not made by you, Franki Fong, or 

Adrian Nitu- Solomon to use the weighted average. That 

decision was made by someone else, is that right?

A. Yes. We had concerns about using those as predictors 

for the future.

(Tr. 2/113) 

113. However, Mr. Dreifus did not explain how the Army technical team 

would have used the DO 13 data (tr. 2/121, 127).

D. Certification of Cost or Pricing Data and Award of DO 14

114. By letter dated September 26, 2006, Mr. D’Andrea, Alloy’s CFO, certified 

that the cost or pricing data submitted for DO 14 was, to the best of his knowledge and 

belief, “accurate, complete, and current as of Monday September 25, 2006” (R4, 

tab 72).

115. On September 27, 2006, the Army awarded DO 14 to appellant in the 

amount of $57,037,602 for the procurement of 700,000 M211 decoys (R4, tab 74).

116. On Friday, September 29, 2006, the September job cost report for DO 13 

was available to appellant’s management. Mr. D’Andrea, who was responsible for 

negotiations on appellant’s behalf, also was responsible for providing the monthly 

report to appellant’s management. (Tr. 4/25)
20

117. Within the DO 13 labor usage data for August and September 2006, the 

only change in actual hours per unit across the two months was that “production 

support” increased from 0.0006 hours per unit in August 2006 to 0.0007 hours per unit 

in September 2006 (R4, tab 75 at 1-2). This corresponds to the 4.5 actual hours of 

labor for production support noted on the September 2006 report (R4, tab 75 at 2).

III. DCAA Audit

118. On June 21, 2011, DCAA initiated fact-finding for a post-award defective 

pricing audit relating to Modification No. P00025 and DO 14 (answer at 40; R4, 

tabs 76-77).

119. By letter dated July 1, 2011, Alloy responded to DCAA’s inquiry and 

denied defective pricing (R4, tab 78).

120. In September 2011, DCAA issued a draft post-award audit report 

asserting defective pricing relating to DO 14 (answer at 14-15).

121. On October 18, 2011, Alloy submitted a written response to the DCAA 

draft audit and disputed the defective pricing allegations (R4, tab 79). 

122. On February 10, 2012, DCAA issued its final audit report alleging 

defective pricing relating to DO 14 (R4, tab 80). 

123. On March 12, 2012, Alloy submitted a supplemental response to DCAA’s 

audit and again denied defective pricing (R4, tab 81).

124. On August 8, 2012, the Army issued its Pre-Negotiation Objective and 

alleged defective pricing based upon DCAA’s audit report issued in February 2012

(R4, tab 82).

125. On November 26, 2012, Alloy first received DCAA’s February 2012 

audit report (R4, tabs 84-85).

126. On July 22, 2013, the Army revised its defective pricing position, relying 

solely upon DO 13, rather than the DCAA audit position (that used DO Nos. 6, 7, 8, 

11, and 13) (R4, tab 88). 
21

IV. CO’s Final Decision Asserting Government Defective Pricing Claim

127. On July 24, 2014, after reviewing the DCAA Audit Report, Ms. Gandy 

issued a COFD asserting defective pricing and demanding a repayment of 

$15,920,212, plus interest (R4, tab 96).

128. The COFD sought a price adjustment of $15,920,212, more than the 

$12,572,283 price-adjustment recommended in the DCAA audit. The COFD explained 

that the Army did not disagree with the DCAA’s findings, but calculated its own price 

adjustment based solely on data from DO 13 (R4, tab 96 at 2). DCAA, in contrast, 

used a weighted average of five delivery orders to calculate its recommended price 

adjustment. DCAA subsequently concurred with the Army’s approach, reasoning that 

the Army’s approach “incorporates the effect of all efficiencies gained just prior to the 

award of DO 14.” (R4, tab 91 at 1)

129. The COFD asserted that the overstated material cost per decoy was 

calculated to be $1.16 for materials (steel, tantalum, liquid caustic, and aluminum); 

and the overstated labor hour usage per decoy was calculated to be .36, which is .97 

hours negotiated less .61 post award audit computed, utilizing the DO 13 actual data 

(R4, tab 96 at 9-10).

DECISION

I. Standard of Review for Defective Pricing Claims

The Truth in Negotiations Act (TINA), 10 U.S.C. § 2306a, requires contractors

who must submit cost or pricing data “to certify that, to the best of . . . [their]

knowledge and belief, the cost or pricing data submitted was accurate, complete and 

current.” 10 U.S.C. § 2306a(a)(2). In addition, TINA requires that any contractual 

arrangement under which such certification is required “shall contain a provision that 

the price of the contract . . . shall be adjusted to exclude any significant amount by 

which it may be determined . . . that such price was increased because the contractor . .

. submitted defective cost or pricing data.... 10 U.S.C. § 2306a(e)(1)(A)-(B). In other 

words, the government will be awarded a contract price adjustment when the 

government proves that a contractor furnished defective cost or pricing data and “the 

[g]overnment relied on the overstated costs to its detriment.” Singer Co., Librascope 

Div. v. United States, 576 F.2d 905, 914 (Ct. Cl. 1978).

The government has the burden of proof in a defective pricing claim. As a 

general matter, this entails proving three elements by a preponderance of the evidence. 

First, the government must establish that the information at issue is “cost or pricing 
22

data” within the meaning of TINA. Second, the government must show that the cost 

or pricing data was either not disclosed or not meaningfully disclosed to a proper 

government representative. Third, it must demonstrate detrimental reliance on the 

defective data. United States v. United Technologies Corp., 51 F. Supp. 167 (1999) 

(discussing three elements and burden of proof); also Wynne v. United Technologies 

Corp., 463 F.3d 1261, 1264 (Fed. Cir. 2006) (discussing detrimental reliance). In that 

regard, it is aided by a presumption that the non-disclosure of data resulted in an 

overstatement of the price of the contract. Sylvania Elec. Prods., Inc. v. United States, 

479 F.2d 1342, 1349 (Ct. Cl. 1973). If that presumption of causation is rebutted, 

however, the government only can prevail “upon proof that it relied upon the defective 

data to its detriment in agreeing to the contract price.” Wynne, 463 F.3d at 1263. See

Lockheed Martin Aeronautics Co., ASBCA No. 56547, 13 BCA ¶ 35,220 at 172,815

(holding that presumption is rebuttable and not a substitute for specific proof 

establishing the amount of such damages). 

II. The 2006 Job Cost Reports for DO 13 Are Not “Cost or Pricing Data” 

Pursuant to TINA

Pursuant to TINA, the term “cost or pricing data” means “all facts that, as of the 

date of agreement on the price of a contract . . . a prudent buyer or seller would 

reasonably expect to affect price negotiations significantly. Such term does not 

include information that is judgmental, but does include the factual information from 

which a judgment was derived.” 10 U.S.C. § 2306a(h)(1).

The government contends that the June 2006 and August 2006 monthly job cost 

reports from DO 13 constitute “cost or pricing data” as that term is defined in TINA 

and its implementing regulations (gov’t br. at 45-49). According to the government, 

Alloy’s internal job cost reports contain verifiable factual data related to prior 

produced lots and some elements of estimation, such as estimated material usage 

rates which Alloy contends could not be finalized until the end of an entire production 

run (gov’t br. at 45). The government relies on Texas Instruments, Inc., ASBCA 

No. 23678, 87-3 BCA ¶ 20,195, for the proposition that the job cost reports, including 

both narrative and statistical data, constitutes “cost or pricing data” pursuant to TINA. 

Specifically, Texas Instruments held that the data contained in similar job cost reports 

were “facts which could reasonably be expected to contribute to sound estimates of 

future costs and were, therefore, cost or pricing data.” Texas Instruments, 87-3 BCA 

¶ 20,195 at 102,277-78.

Alloy disputes this conclusion, contending that the data from DO 13 was “work 

in process” (WIP) data and the Army knew that it was Alloy’s practice to not provide 

WIP data prior to completion of a job (app. br. at 66; findings 82, 88). Alloy did not 
23

disclose its WIP data, because, prior to job completion and accounting reconciliation, 

the WIP reports included a significant amount of judgmental information relating to 

the accuracy of the data (findings 82-84; app. br. at 67). According to Alloy’s CFO, 

Mr. D’Andrea, there previously have been substantial variations between the WIP 

reports and final reports. According to him, generating the WIP reports requires 

significant judgment, including the need to develop estimates for “equivalent units” 

prior to completing production and conducting the final inventory count (finding 84 ).

Mr. D’Andrea elaborated on this point during his hearing testimony, explaining 

that considerable judgment was involved in allocating both labor and material to 

particular jobs. For example, several different types of metal are combined into a 

slurry which is used to manufacture M211 flares for the Air Force, Navy, and Army. 

The raw metals used in the slurry must be allocated to each job consistently. In the 

same way, labor hours must be allocated to separate jobs, even though individual 

workers are not charging their time to each separate job. The allocation is done by 

someone in the production department. (Finding 84) Ultimately, as the Alloy official 

responsible for signing the Certificate of Current Cost or Pricing Data, Mr. D’Andrea 

did not believe the WIP sheets to be sufficiently accurate to certify until after the job 

had been completed and the accounting data had been reconciled (finding 86).

There is no dispute that the job cost reports from DO 13 contained factual data 

as well as estimated labor and material usage rates (finding 81). The government 

contends that the estimates of labor and material usage rates were accurate, based on a 

comparison of August and September 2006 job cost reports from DO 13 Lot 2 (gov’t

br. at 30-31). In August 2006, production was nearly complete on DO 13 Lot 2. By 

September, production was complete. The only difference between the reports was 

4.5 hours of labor for packaging, a difference of only 0.0001 labor hours in the 

estimated labor usage rate, with no changes from the estimated to actual labor hours 

recorded for Alloy’s manufacturing process steps. According to the government, this 

makes the job cost reports sufficiently accurate to constitute “cost or pricing data” 

pursuant to TINA. (Gov’t br. at 31, 38) 

Despite the relative accuracy of the estimates in the September and October 

2006 job cost reports, we cannot conclude that the reports are “cost and pricing” data 

as that term is defined in TINA. While it may be true that the WIP data in the reports 

were substantially close to the actual data from the DO 13 Lot 2 production, the 

relative accuracy was due to the fact that the reports were generated near the end of the 

production run. It makes sense that the estimates of “equivalent units” in the reports 

would become more accurate toward the end of a production run, when actual 

production figures are close to being final. Although the estimates in the job cost 

reports may become more accurate as the end of a production run approaches, it is 
24

impossible to point to a time along the continuum where the estimates become 

accurate enough to possess the requisite degree of certainty necessary for providing 

certified cost and data to the government.

Moreover, WIP data from other jobs that were in production at the time of 

negotiations demonstrate the unreliability of the WIP data (finding 85). Alloy’s 

estimates of “equivalent units” – from which labor and material usage factors are 

derived – are based on subjective judgments about how many actual units will be 

produced at the end of the production run. These judgments cannot be verified until 

the end of the production run. (Finding 82) That the WIP data from DO 13 turned out 

to be reasonably close to the actual data from the completed job does not change the 

fact that the job cost reports were based on estimates of “equivalent units,” and not on 

the actual number of complete units produced. 

The estimated “equivalent units” found in the job cost reports are a fundamental 

part of the reports. Specifically, they are the denominator of the fraction used to 

calculate both labor and material usage factors. (Findings 83-84) Unlike the reports in 

Texas Instruments, which included verifiable factual data alongside estimates, Alloy’s 

job cost reports set forth usage factors that are calculated using estimates. Thus, 

Alloy’s job cost reports are fundamentally different from the reports in Texas 

Instruments. 

We find this case to be more similar to Aerojet Ordnance Tennessee, ASBCA 

No. 36089, 95-2 BCA ¶ 27,922 at 139,444-45 (no reliance on internal operating 

controls certifying proposals to the government). WIP sheets, like the Internal 

Operating Controls (IOC) reports in Aerojet, are management tools based on an 

individual manager’s judgment, not a cost accounting process relying on precision. In 

Aerojet, we concluded that, although the data in IOC reports may be accurate for 

management purposes and may even be close to accounting reports, the IOC reports do 

not possess the requisite degree of certainty necessary for providing certified cost and 

data to the government. Id.

∗

 By the same token, Alloy’s WIP sheets are management 

tools and do not possess the requisite degree of certainty necessary for providing 

certified cost and data to the government.

 

∗ We acknowledge that the Board’s discussion of IOC in Aerojet is dicta, because the 

Board ultimately based its holding on the conclusion that the government did 

not demonstrate that the parties would have relied on the IOC reports in 

negotiating the price. However, we agree with the analysis in Aerojet. 
25

III. The WIP Sheets for DO 13 Were Not Finalized Until After the Parties 

Agreed to the Price for DO 14 

We next analyze whether there was effective disclosure of the 2006 job cost 

reports to the government during the price negotiations. We conclude that the raw 

data from DO 13 were available by the end of price negotiations for DO 14, but that 

the data were not in a form that Alloy reasonably could certify as “cost and pricing 

data” pursuant to TINA.

The disclosure obligation is satisfied if the contractor clearly advised the 

government personnel who participated in the contract negotiations of the relevant cost 

or pricing data. Texas Instruments., 87-3 BCA ¶ 20,195 at 102,266 (citing Sylvania 

Elec. Prods., Inc., ASBCA No. 13622, 70-2 BCA ¶ 8387, aff’d, 479 F.2d 1342 (Ct. Cl. 

1973)). Alternatively, the disclosure obligation can be satisfied if the government 

personnel possessed actual knowledge of the relevant cost or pricing data. Texas 

Instruments, 87-3 BCA ¶ 20,195 at 102,266 (citing Muncie Gear Works, Inc., ASBCA 

No. 18184, 75-1 BCA ¶ 11,380 and Norris Industries, Inc., ASBCA No. 15442, 74-1 

BCA ¶ 10,482).

Here, the government contends that appellant had access to the data contained 

in the September 2006 report prior to the price agreement, but did not finalize the 

report until afterwards (gov’t br. at 49-50). Citing Aerojet Solid Propulsion Co., 

ASBCA Nos. 44568, 46057, 00-1 BCA ¶ 30,855 at 152,326, the government asks us 

to infer that Mr. D’Andrea, as the person who was responsible both for finalizing the 

September WIP report and for negotiating the price for DO 14, possessed knowledge 

of relevant cost and pricing data and withheld that data from the government during 

price negotiations. See also Arral Indus., Inc., ASBCA Nos. 41493, 41494, 96-1 

BCA ¶ 28,030 at 139,945 (data is reasonably available, and subject to disclosure, if 

contractor’s personnel at a management level are aware of its existence) (citing 

Aerojet-General Corp., ASBCA No. 12264, 69-1 BCA ¶ 7,664 at 35,583, modified on 

recon., 70-1 BCA ¶ 8,140)).

In response, Alloy acknowledges that it made a business decision not to 

produce its WIP reports from DO 13 (finding 82). It further contends – and the Army 

admits – that the Army was aware of Alloy’s policy of not furnishing WIP sheets 

(finding 88). Nonetheless, Alloy contends that it was not obligated to disclose the 

September 2006 job cost report, because that report was not finalized until after the 

parties reached agreement on the price of DO 14 (app. br. at 79-80).

Alloy’s normal practice is to establish a “cutoff date” for assembling data for 

each WIP sheet. After this date, Alloy takes a final physical inventory, reviews labor 
26

timesheets, and reconciles the work-in-process data with the actual number of units 

produced and labor hours logged. Alloy then finalizes the job cost report for the 

delivery order. In this situation, the cutoff date was Sunday, September 24, 2006, and 

Alloy’s management completed its reconciliation and finalized the report on Friday, 

September 29, 2006 (finding 116). The Army does not contest this timeline, and there 

is nothing in the documentary evidence or hearing testimony suggesting that the job 

cost report could have been finalized more quickly, or that Alloy’s management 

delayed reconciling the report while DO 14 price negotiations were ongoing. 

We agree that Alloy possessed some of the relevant data from DO 13 in 

sufficient time to disclose it to the government’s negotiators. However, as we 

discussed in connection with the WIP reports from DO 13, at the time of price 

agreement on September 25, 2006, the information in the WIP reports did not possess 

the necessary degree of certainty to certify the reports as “cost and pricing data” 

pursuant to TINA. 

IV. Reliance 

We turn next to the question of the government’s reliance. To prove that it 

relied on inaccurate or noncurrent cost or pricing data, the government is aided in 

meeting its burden by a rebuttable presumption that a “natural and probable 

consequence” of the nondisclosure was an increase in the contract price. Sylvania, 

479 F.2d at 1349. The appellant must then show that the defective data was not relied 

upon or that the undisclosed data would not have been relied upon even if there had 

been a complete disclosure. Id.; see Aerojet Ordnance Tennessee, 95-2 BCA ¶ 27,922 

at 139,436. The government, nevertheless, retains the ultimate burden of showing a 

causal connection between the undisclosed or defective data and an overstated contract 

price. Universal Restoration, Inc. v. United States, 798 F.2d 1400, 1403-04 (Fed. Cir. 

1986); Grumman Aerospace Corp., ASBCA No. 27476, 86-3 BCA ¶ 19,091 at 96,494.

In this appeal, the government is entitled to a presumption that Alloy’s failure 

to disclose the DO 13 data resulted in an overstatement of the price of DO 14. Alloy, 

in turn, must overcome the presumption of reliance by demonstrating that the 

government did not rely on the DO 13 data, or that having the data from DO 13 would 

not have changed the price. 

As we set forth in more detail below, we conclude that the Army has not met its 

burden of demonstrating that having the final job cost report from DO 13 would have 

changed its decision to rely on the weighted average of the data from Jobs 1516 and 

1528. The Army used the data from Jobs 1516 and 1528 in setting the price for DO 14

with full knowledge of other data showing greater efficiency, because the Army 
27

believed that the weighted average of the data from Jobs 1516 and 1528 best 

represented the likely performance of Plants 2 and 3 as they ramped up to meet the 

production rate necessary for DO 14. Moreover, the Army’s rejection of Alloy’s 

proposed 10 percent inefficiency adjustment reflected the Army’s conclusion that 

some degree of ramp-up inefficiency already was captured in Alloy’s price proposal. 

(Findings 68, 104).

DO 14, when awarded, would use the same type of automated equipment used 

on DO 13 (finding 24). Prudent buyers and sellers would reasonably expect the labor 

usage efficiency realized from DO 13 to significantly affect price negotiations in 

future orders. However, DO 14 would require Alloy to bring online two new 

manufacturing plants, including hiring and training new employees to operate the 

newly automated equipment (findings 22, 24). It is reasonable to conclude that 

starting up manufacturing at two new plants would create inefficiencies. It also is 

reasonable to conclude that the Army was aware of both the efficiencies of 

automation, and the inefficiencies of ramping-up production. Given these competing 

factors, the Army chose to rely on actual data from the previous delivery order. 

A. The Parties’ Contentions

Alloy contends that the Army had knowledge of at least three sets of labor 

usage factors lower than the weighted average usage hours it agreed to in its price 

negotiation (app. br. at 109). Alloy further contends that the Army knew that the 

negotiated usage factors were higher than most recent usage factors from Plant 1 (app. 

br. at 110). 

In addition, the Army prepared its own independent government cost estimate 

and relied, in part, on it to establish Alloy’s proposed prices as being fair and 

reasonable (app. br. at 97). Reliance on an independent government cost estimate 

rebuts reliance on allegedly defective price data. Luzon Stevedoring Corp., ASBCA 

No. 14851, 71-1 BCA ¶ 8745 at 40,607.

According to Alloy, these facts undercut the Army’s argument that it relied on 

the data from Jobs 1516 and 1528 to its detriment. Alloy contends that the Army 

accepted the Jobs 1516 and 1528 data, even though it was aware of other data showing 

greater efficiency, because the Army believed that the weighted average of the data 

from Jobs 1516 and 1528 best represented the likely performance of Plants 2 and 3 as 

they ramped up to meet the production rate necessary for DO 14. In support, Alloy 

points to multiple identical statements in the Final Technical Evaluation (and 

incorporated into the PNM) stating that the Army “acknowledged some inefficiency 
28

could occur due to additional production rate ramp-up.” (App. br. at 119-125; 

findings 72-74, 102, 104)

There are two ways to understand the sentences in the PNM. The first

interpretation, as Alloy suggests, is to conclude that the Army was aware that the 

actual data was not representative, but accepted it as the best available indication of 

how the production rate ramp-up would affect prices going forward. Alternatively, the 

Army responds that it included the statement in the PNM in order to capture Alloy’s

stated concerns about ramp-up, not the Army’s own judgment about ramp-up 

inefficiency. (Finding 103)

We believe Alloy’s understanding of the statement is correct. The statement in 

the PNM means exactly what it says: that the Army agreed to the price in part because 

of the inefficiency that could occur due to additional production rate ramp-up. Indeed, 

the notion that ramp-up inefficiency was a factor in the Army’s pricing deliberations is 

consistent with the documentary evidence and hearing testimony. 

B. The Army Has Not Demonstrated That Having the DO 13 Data Would Have 

Changed the Negotiated Price

In order to prove reliance, the Army must provide specific information about 

how it would have used the DO 13 data in negotiations. The Army cannot rely on 

speculation about how it would have used the data or how having the data would have 

affected negotiations. McDonnell Douglas Helicopter Sys., ASBCA No. 50447 et al., 

00-2 BCA ¶ 31,082 at 153,465 (rejecting testimony of government witnesses that 

disclosure would have reduced price as conclusory and nonspecific); Rosemount, Inc., 

ASBCA No. 37520, 95-2 BCA ¶ 27,770 at 138,456 (government offered no evidence 

or testimony as to how disclosure of data would have affected negotiations).

Here, the Army has not demonstrated that having the DO 13 data would have 

changed the negotiated price. The Army was aware of the effect of automation on 

labor and material usage factors, based on its oversight of the production prove-out of 

the automation machinery at Plant 1. (Findings 31, 67, 101) Indeed, this knowledge 

was the basis of the technical team’s questioning of the Job 1516 and 1528 prices 

(findings 68, 98). Having the DO 13 data, therefore, merely would have reinforced the 

technical team’s conclusions about the effect of automation. The Army’s knowledge 

of the effect of automation undermines the causal connection between the allegedly 

undisclosed data and an overstated contract price. See McDonnell Douglas Helicopter 

Sys., 00-2 BCA ¶ 31,082 at 153,469 (holding that government possessed knowledge of 

a lower price sufficiently close in time to facilitate negotiation of a lower price than 

that agreed to by the Army).
29

Moreover, because the DO 13 data was from Plant 1, the data would not have 

shed any light on the inefficiencies associated with starting and ramping-up production 

at the two new manufacturing plants. Although the Army could quantify the projected 

efficiency resulting from the increased use of automation, it was forced to speculate 

about the effect of ramping-up production at two new plants. Indeed, the fundamental 

problem with the government’s position is that the DO 13 data sheds no light on the 

actual effect of ramp-up inefficiency on manufacturing in Plants 2 and 3. 

The government does not dispute that it was aware of lower usage data from 

prior orders, but contended it did not rely on this data in its negotiations. Ultimately, 

the government was aware that the data from Jobs 1516 and 1528 was not the best –

both because it did not reflect the latest automation and because it did not reflect the 

effects of rapidly ramping-up production – but it decided that the weighted average of 

the Jobs 1516 and 1528 data was the best it could do under the circumstances. Thus, 

the Army concluded that the weighted average of the Jobs 1516 and 1528 data 

represented the best compromise between automation efficiency and ramp-up 

inefficiency. (Findings 99, 102, 111) 

An additional factor undercutting the Army’s reliance was its awareness during 

negotiations that Alloy had failed first article testing (FAT) during the production 

prove-out of Plant 2. Because the Army knew that Alloy was having difficulty 

demonstrating that Plant 2 was ready for full-scale production, it was reasonable for 

the Army to believe that there would be some inefficiency associated with the 

assumption of full-scale manufacturing at the new plants. This knowledge was 

consistent with the Army’s decision to adopt pricing that attempted to balance 

automation efficiency with the inefficiency of increased production.

Additionally, the evidence does not conclusively demonstrate that the 

government specifically asked Alloy to produce the data from DO 13 during price 

negotiations. We cannot conclude that the government was harmed by not having the 

DO 13 data, when it cannot demonstrate that it asked for the DO 13 data during 

negotiations. Although CO LaBell testified on direct examination that the Army had 

requested WIP sheets for DO 13 during the negotiations, on cross examination, 

CO LaBell acknowledged that she never told Alloy that she needed the DO 13 WIP 

sheets to award DO 14, nor is there any written record of an Army request for the 

DO 13 WIP sheets. (Finding 89)

Although CO LaBell said that the DO 13 data would have resulted in a lower 

price, her testimony during the hearing was non-specific (findings 93-97). According 

to the Army, having the DO 13 data “would have impacted the [CO’s] willingness to 

agree to higher usage rates based on ramp-up inefficiencies[.]” (Reply br. at 4) This 
30

argument is based on speculation. During the hearing testimony, none of the Army’s 

witnesses provided any specific examples of how it would have used the DO 13 data, 

or specifically how the information would have changed the prices it agreed to during 

negotiations (findings 93-97, 111-113). The government fails adequately to answer 

the question of whether negotiators would have acted differently if they had been in 

possession of the undisclosed DO 13 job reports. Accordingly, we conclude that the 

Army has not proven that the price would have changed if it had DO 13 data in its 

possession during price negotiations. 

C. Defective Pricing Clause is Not a Vehicle for Repricing a Contract Deemed 

to be Unreasonably Priced

As we have held in Luzon Stevedoring Corp., 71-1 BCA ¶ 8745 at 40,604, the 

defective pricing clause is not a vehicle for repricing a contract which is deemed 

unreasonably high-priced. The clause does not provide a procedure for re-pricing a 

contract after award. Id.

That is precisely what the CO did here, as she admitted, stating that she agreed 

to a price in the absence of the DO 13 data, believing she could recoup any difference 

with a defective pricing claim after the fact:

Q: You signed the Modification PO 25 relying on upon the 

certificate current costs and pricing data, on the assumption 

that you would be able to recover any defective pricing 

cost later, correct?

A: Correct. 

(Finding 96) 

We conclude that the government has failed to meet its burden of proving that 

having the data from DO 13 during negotiations would have changed the pricing for 

DO 14.

V. Damages

Because we have concluded that the government is not entitled to a contract 

price adjustment, we need not reach the issue of quantum.
31

CONCLUSION

For these reasons, the appeal is sustained.

Dated: April 9, 2020

KENNETH D. WOODROW

Administrative Judge

Armed Services Board

of Contract Appeals

I concur I concur

RICHARD SHACKLEFORD

Administrative Judge

Acting Chairman

Armed Services Board

of Contract Appeals

OWEN C. WILSON

Administrative Judge

Vice Chairman

Armed Services Board

of Contract Appeals

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

Armed Services Board of Contract Appeals in ASBCA No. 59625, Appeal of Alloy 

Surfaces Company, Inc., rendered in conformance with the Board’s Charter.

Dated: April 9, 2020

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals