ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of --

DynCorp International LLC 

Under Contract No. FA8617-12-C-6208 

APPEARANCES FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 61274 

Gregory S. Jacobs, Esq. 

Erin L. Felix, Esq. 

Polsinelli PC 

Washington, DC 

Jeffrey P. Hildebrant, Esq. 

Air Force Deputy Chief Trial Attorney 

Jason R. Smith, Esq. 

Lt Col Byron Shibata, USAF 

Trial Attorneys 

OPINION BY ADMINISTRATIVE JUDGE SWEET ON THE 

GOVERNMENT'S MOTION FOR PARTIAL SUMMARY JUDGMENT 

Appellant DynCorp International LLC (DI) appeals the deemed denial of its 

request for an equitable adjustment. The government has moved for partial summary 

judgment, arguing that our decision in DynCorp International, LLC, ASBCA No. 59244, 

17-1 BCA 1 36,653 (DynCorp I) issued under the above-captioned contract precludes 

the re-litigation of some issues in this appeal under the doctrine of collateral estoppel. 

Familiarity with the facts of DynCorp I is presumed. The motion is denied. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. The T-6A/B is an aircraft used by the United States Air Force (USAF) and 

the United States Navy for pilot training. It is stationed at multiple sites around the 

United States. (Compl. 14) 

2. On 27 December 2010, the USAF issued Solicitation No. FA8617-l l-R-6208 (6208 

RFP) for the new Joint Primary Aircraft Training System (JPATS) T-6A/B 

Contractor Operated and Maintained Base Supply (COMBS) (R4, tab 199-200). The 6208 

RFP contained numerous contract line item numbers (CLINs), including the 3XXX 

CLINs. The 3XXX CLINs were for all maintenance, repairs, overhauls and 

replenishments/replacements of the T-6A/B at various sites. The 6208 RFP indicated that 

the government would pay on a fixed-rate cost per flight hour (CPFH) basis for a variable 

number of flight hours. (Id. at 55-81) CPFH pricing differed among the various sites due 
to several factors, including the number of aircraft, total projected flight hours, and aircraft 

age (compl., 10). 

3. According to DI, offerors required historical information regarding the 

consumption of aircraft parts and components at each site in order to propose 

site-specific CPFH prices (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 of 2010 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 proposed pricing for the Whiting Field site was lower than it would have 

been had the 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 based upon the 6208 RFP (R4, tab 73). 

6. After performance 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. (Comp I. at I) 

8. The complaint alleges in the factual background section that "DI was forced 

to rely solely on the veracity and completeness of the consumption data provided by 

the USAF" (compl., 22). The factual background section also quotes Di's proposal 

as stating that "[p]ricing of CLINs 3X00-3XIO assumes the data provided is both 

complete and correct" (id., 25) (emphasis in original). 

9. The complaint then alleges two counts (compl. at 1-2). 

I 0. As Count I, the complaint alleges that there was a constructive change 

entitling DI to an equitable adjustment "due to the USAF's providing inaccurate 

consumption data" ( comp I. at 1-2). In support of Count I, the complaint alleges that 

"DI did as directed and developed its CPFH pricing in the only logical manner-with 

reliance on the accuracy and completeness of the data provided" (id., 48). Count I 

continues that, "[ u ]tilizing the faulty data, DI applied the consumption data for B-model 

aircraft to Pensacola, causing Di's CPFH for Whiting to be lower than it would have 

been had the proper consumption data been applied" (id., 49). Count I concludes that 

"[t]he USAF's provision of faulty data constitutes a constructive change to the 

Contract" (id. , 50). 

11. As Count II, the complaint seeks reformation based upon a mutual mistake 

"regarding the accuracy of the consumption data" (compl. at 2). Count II alleges that 

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"DI expressly informed the Government of DI's belief that the 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 of the 

mistakes in these data, it could have requested corrected data and adjusted its CPFH 

proposal accordingly" (id.~ 55). Count II also alleges that "[n]either the RFP nor the 

Contract put the risk of a 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 of the data in the Bidder's Library." (Id.~ 56) Count II 

concludes that "[t]he Contract price should be reformed to reflect what DI would have 

proposed if the Bidder's Library data had been accurate" (id.~ 57). 

DECISION 

The government seeks partial summary judgment on the issue regarding DI's 

alleged mistake and reliance on the completeness of the usage/consumption data in the 

bidder's library. Based on the language of Di'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 Standards for Summary Judgment 

Summary judgment will be granted if a moving party has shown that there are no 

genuine issues of material fact, and it is entitled to judgment as a matter of law. Celotex 

Corp. v. Catrett, 477 U.S. 317, 322 (1986). A non-movant seeking to defeat summary 

judgment by suggesting conflicting facts must set forth specific facts showing that there 

is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). 

Thus, if the non-moving party carries the burden of proof at trial for elements of its case 

and fails to provide such proof, the moving party is entitled to summary judgment. 

Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994). In 

deciding summary judgment motions, we do not resolve controversies, weigh evidence, 

or make credibility determinations. Liberty Lobby, 477 U.S. at 255. Moreover, we 

draw all reasonable inferences in favor of the non-movant. Id. 

II. Collateral Estoppel 

Collateral estoppel does not apply in this appeal. In order to establish that 

collateral estoppel precludes the relitigation of an issue already decided in another 

case, a proponent must show that: ( 1) the issue is identical to one decided in the prior 

proceeding; (2) the issue was actually litigated; (3) resolution of the issue was essential 

to the final judgment in the prior proceedings; and ( 4) the party defending against 

preclusion had a full and fair opportunity to litigate the issue in the prior proceeding. 

Laguna Hermosa Corp. v. United States, 671 F.3d 1284, 1288 (Fed. Cir. 2012). 

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The issue here is not identical to the one decided in DynCorp I-another appeal 

arising out of the 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-which the government concedes is distinct from the issue 

of the 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 of any such claim. As DI states in its 

opposition to the summary judgment motion, "arguments regarding the completeness 

of government-provided data ... are not at issue in the present Appeal" (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 of the data's completeness that we decided in DynCorp I. 

As such, the government has failed to meet the first prong of the Laguna Hermosa 

case. Therefore, collateral estoppel does not apply in this appeal. 

CONCLUSION 

The motion for partial summary judgment is denied. 

Dated: 20 March 2018 

(Signatures continued) 

JAMES R. SWEET 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

* The government does not seek to preclude litigation on the issue of whether the data 

was inaccurate, which it concedes is an issue in this appeal. However, the 

government contends that, based on the language of the complaint, the issue of 

mistake and reliance on the accuracy of the 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 

of Contract Appeals 

I concur 

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. 61274, Appeal of 

DynCorp International LLC, rendered in conformance with the Board's Charter. 

Dated: 

5 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals