ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of

-- DynCorp International LLC Under Contract No. FA8617-12-C-6208 APPEARANCES FORTHE APPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 61274

Gregory S. Jacobs, Esq. Erin L. Felix, Esq.

Polsinelli PC Washington, DC Jeffrey P. Hildebrant, Esq.

AirForce Deputy ChiefTrial Attorney Jason R. Smith, Esq. Lt Col Byron Shibata, USAF

Trial Attorneys OPINION BYADMINISTRATIVE JUDGE SWEET ONTHE GOVERNMENT'S MOTION FORPARTIAL SUMMARYJUDGMENT Appellant DynCorp International LLC (DI) appeals the deemed denial ofits request for an equitable adjustment. The governmenthas moved for partial summary judgment, arguing that our decision in 

### DynCorpInternational, LLC, ASBCANo. 59244,

17-1 BCA 1 36,653 

### (DynCorp I) issued underthe above-captioned contractprecludes the re-litigation ofsome issues in this appeal underthe doctrine ofcollateral estoppel. Familiarity with the facts of

### DynCorp I is presumed. The motion is denied. STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION 1. The T-6A/B is an aircraft used by the United States AirForce (USAF) and the United States Navy for pilot training. 

### It is stationed at multiple sites aroundthe United States. (Compl. 14) 2. On 27 December2010, the USAF issued Solicitation No. FA8617-ll-R-6208 (6208 RFP) for the new Joint Primary Aircraft Training System (JPATS) T-6A/B Contractor Operated and MaintainedBase Supply (COMBS) (R4, tab 199-200). The 6208 RFP contained numerous contract line item numbers (CLINs), including the 3XXX CLINs. The 3XXXCLINs were for all maintenance, repairs, overhauls and replenishments/replacements ofthe T-6A/B at various sites. The 6208 RFP indicated that the government would pay on a fixed-rate cost perflight hour (CPFH) basis for a variable number offlight hours. (Id. at 55-81) CPFHpricing differed among the various sites dueto several factors, including the number ofaircraft, total projected flight hours, and aircraft age (compl., 10). 3. Accordingto DI, offerors required historical information regardingthe consumption ofaircraftparts and components at each site in orderto propose site-specific CPFHprices (app. opp'n, ex. 1,,4). As a result, the USAF provided historical consumption data in the bidder's library (R4, tabs 2-45). DI alleges that the information in the bidder's library was inaccurate for the first quarter of2010 because parts for the T-6B from the Whiting Field site were incorrectly coded as being issued from the Pensacola site (compl., 26; app. opp'n, ex. 1,,6). 4. DI submitted a proposal. It alleges that, due to the error in the bidder's library, its proposedpricing for the Whiting Field site was lowerthan it would have been hadthe USAF provided the correct data (app. opp'n, ex. 1,,7). 5. The USAF awarded Contract No. FA8617-12-C-6208 (COMBS contract) to DI basedupon the 6208 RFP (R4, tab 73). 6. Afterperformance began, DI alleges it discovered the error in the bidder's library (compl.,26-34; app. opp'n, ex. 1,,6). 7. DI filed a claim on 12 May 2015. The contracting officer did not issue a decision on that claim, such that it is deemed denied. This appeal followed. (CompI. at I) 8. The complaint alleges in the factual background sectionthat "DI was forced to rely solely on the veracity and completeness ofthe consumption dataprovided by the USAF" (compl., 22). The factual background section also quotes Di's proposal as statingthat "[p]ricing ofCLINs 3X00-3XIO assumes the data provided is 

### both complete and correct" (id., 25) (emphasis in original). 9. The complaintthen alleges two counts (compl. at 1-2). I0. As Count I, the complaint alleges that there was a constructive change entitling DI to an equitable adjustment "dueto the USAF's providing inaccurate consumption data" (compI. at 1-2). In support ofCount I, the complaint alleges that "DI did as directed and developed its CPFHpricing in the only logical manner-with reliance on the accuracy and completeness ofthe data provided" 

### (id., 48). Count I continues that, "[u]tilizingthe faulty data, DI applied the consumption data for B-model aircraft to Pensacola, causing Di's CPFH for Whiting to be lowerthan it would have been had the properconsumption data been applied" 

### (id., 49). Count I concludes that "[t]he USAF's provision offaulty data constitutes a constructive change to the Contract" 

### (id. , 50). 11. As Count II, the complaint seeks reformation based upon a mutual mistake "regardingthe accuracy ofthe consumption data" (compl. at 2). Count II alleges that

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### "DI expressly informed the Government ofDI'sbeliefthatthe consumption data provided in the Bidder's Library, upon which DI based its CPFH pricing, was both complete and accurate" (id.~ 

### 53). Count II continues that, "had DI been aware ofthe mistakes in these data, it could have requested corrected data and adjusted its CPFH proposal accordingly" (id.~ 

### 55). Count II also alleges that "[n]eitherthe RFP nor the Contractput the risk ofa mistake in the consumption data in the Bidder's Library on DI. Notably, the USAF did not use any language to disclaim responsibility for the completeness or accuracy ofthe data in the Bidder's Library." (Id.~ 

### 56) Count II concludes that "[t]he Contractprice should be reformed to reflect what DI would have proposed ifthe Bidder's Library data had been accurate" (id.~ 

### 57). DECISION The government seeks partial summaryjudgmenton the issue regarding DI's alleged mistake and reliance on the completeness ofthe usage/consumption data in the bidder's library. Based on the language ofDi's complaint, the government contends that issue can be interpreted as including the completeness issue, which 

### DynCorp I precluded under collateral estoppel. (Gov't mot. at 7) DI replies in opposition to the government's motion that the matter upon which estoppel is sought is irrelevant to the instant appeal, and that DI is making different arguments in this case (app. opp'n at 1). 

### I. The Standardsfor SummaryJudgment Summaryjudgmentwill be granted ifa moving party has shown that there are no genuine issues ofmaterial fact, and it is entitled tojudgment as a matter oflaw. 

### Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A non-movant seeking to defeat summary judgmentby suggesting conflicting facts must set forth specific facts showing that there is a genuine issue for trial. 

### Anderson v. 

### LibertyLobby, Inc., 477 U.S. 242,248 (1986). Thus, ifthe non-moving party carries the burden ofproofat trial for elements ofits case and fails to provide suchproof, the moving party is entitled to summaryjudgment. 

### DairylandPower Coop. v. 

### UnitedStates, 16 F.3d 1197, 1202 (Fed. Cir. 1994). In deciding summaryjudgmentmotions, we do not resolve controversies, weigh evidence, or make credibility determinations. 

### LibertyLobby, 477 U.S. at 255. Moreover, we draw all reasonable inferences in favor ofthe non-movant. 

### Id. II. CollateralEstoppel Collateral estoppel does not apply in this appeal. In order to establish that collateral estoppel precludes the relitigation ofan issue already decided in another case, a proponent must showthat: (1) the issue is identical to one decided in the prior proceeding; (2) the issue was actually litigated; (3) resolution ofthe issue was essential to the finaljudgment in the priorproceedings; and (4) the party defending against preclusion had a full and fair opportunity to litigate the issue in the priorproceeding. 

### LagunaHermosa Corp. v. UnitedStates, 671 F.3d 1284, 1288 (Fed. Cir. 2012).

3The issue here is not identical to the one decided in DynCorp I-anotherappeal arising out ofthe COMBS contract. In DynCorp I, we held that "DI had actual knowledge that the [consumption] data was incomplete and that DI made a business decision to submit a proposal despite the risk.'' 17-1 BCA, 36,653 at 178,498 (emphasis added). While the complaint in this appeal makes passing reference to the consumption data's completeness, the data's completeness is not a significant issue in this appeal (SOF ,, 8-10). Rather, reading the complaint as a whole reveals that the operative issue for both the constructive change and mutual mistake claims is the data's alleged inaccuracy-whichthe government concedes is distinct from the issue ofthe data's completeness (id.; gov't mot. at 6-7).* We see no reason to strain to read a claim about the data's completeness into this appeal, only to preclude such a straw-man claim under collateral estoppel. That is particularly true given Di's binding disavowal ofany such claim. As DI states in its opposition to the summaryjudgment motion, "arguments regarding the completeness ofgovernment-provided data

...are not at issue in the presentAppeal" (app. opp'n at 1 ). Because the data's completeness is not an issue in this appeal, the issue in this appeal is not identical to the issue ofthe data's completeness that we decided in DynCorp I. As such, the governmenthas failed to meet the first prong ofthe LagunaHermosa case. Therefore, collateral estoppel does not apply in this appeal. CONCLUSION The motion for partial summaryjudgment is denied. Dated: 20 March 2018

(Signatures continued) JAMES R. SWEET Administrative Judge Armed Services Board ofContract Appeals

* The government does not seek to preclude litigation on the issue ofwhetherthe data was inaccurate, which it concedes is an issue in this appeal. However, the government contendsthat, based onthe language ofthe complaint, the issue of mistake and reliance onthe accuracy ofthe data can be interpreted as including the completeness issue. (Gov't mot. at 6-7)

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### I concur

RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContract Appeals I concur

OWEN C. WILSON Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 61274, Appeal of DynCorp International LLC, rendered in conformance with the Board's Charter. Dated:

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### JEFFREY D. GARDIN Recorder, Armed Services Board ofContractAppeals