ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of --

BAE Systems Land & Armaments Inc. 

Under Contract No. W56HZV-07-C-0660 

APPEARANCES FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

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ASBCA No. 59374 

Barbara A. Duncombe, Esq. 

Suzanne Sumner, Esq. 

Taft Stettinius & Hollister LLP 

Dayton, OH 

John G. Horan, Esq. 

Justin M. Ganderson, Esq. 

McKenna Long & Aldridge LLP 

Washington, DC 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

CPT Tyler L. Davidson, JA 

Robert B. Neill, Esq. 

Trial Attorneys 

OPINION BY ADMINISTRATIVE JUDGE NEWSOM 

ON APPELLANT'S MOTION TO COMPEL THE GOVERNMENT 

TO FILE A COMPLAINT 

Before the Board is appellant's motion to compel the government to file the 

complaint in this appeal. The government opposes. For the reasons explained below, 

the Board grants appellant's motion. The government is directed to file the complaint 

no later than 30 days following the date of this decision. 

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 

This dispute arises from the government's award of Contract No. W56HZV-07-C-0660 

(contract) to BAE Systems Land & Armaments Inc. (BAE Systems or appellant). The contract 

was a firm-fixed-price contract to produce parts for a military vehicle. (R4, tab 1) BAE 

Systems subcontracted with Ibis Tek, LLC, for a portion of the work (app. supp. R4, tab 47). 

The contract required submission of subcontractor cost or pricing data and contained clauses 

for price reductions if the data were defective (R4, tab 1 at 1, 17). 
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The Defense Contract Audit Agency (DCAA) audited appellant's cost or pricing 

data and concluded that the subcontractor's cost or pricing data were defective, i.e., 

were not current, accurate, or complete as required by the Truth in Negotiations Act, 

10 U.S.C. § 2306a. DCAA recommended a price reduction (R4, tab 3 at 1-2). On 

14 May 2013, the contracting officer issued a "Defective Pricing Demand Letter" 

seeking debt recoupment for the alleged defective pricing identified in the DCAA audit 

reports. The letter did not state that it was a contracting officer's final decision, nor did 

it include contractor appeal rights. (R4, tab 22) On 30 July 2013, BAE Systems 

submitted a certified claim "challeng[ing] the Government's price adjustment and 

demand ... for alleged defective pricing" (R4, tab 29 at 1 ). On 24 March 2014, the 

contracting officer issued a final decision denying the claim (R4, tab 44 at 1, 4 ). 

BAE Systems filed this appeal from that final decision on or about 20 June 2014 

and now requests that the Board compel the government to file the complaint. Arguing 

that its claim is a defense to the government's allegations of defective pricing, appellant 

asserts that the "proceedings will benefit" from greater efficiency if the government 

files the initial pleading and presents the factual and legal underpinnings for its 

allegations of defective pricing. (App. mot. at 5-6) The government acknowledges that 

Board proceedings may be facilitated if the government filed a complaint with regard to 

its defective pricing contentions. It asserts, however, that this appeal also includes a 

contractor claim, and advises that "appellant is in a far better position to provide the 

underlying basis of its own claim" (gov't opp'n at 3). 

DECISION 

Under the unique procedural requirements of the Contract Disputes Act (CDA), 

all claims, whether contractor or government claims, must be the subject of a 

contracting officer's final decision. 41 U.S.C. § 7103. The contractor, however, is the 

only party who may initiate proceedings at the Board, 41 U.S.C. § 7104, and Board 

Rule 6(a) requires the appellant to file the complaint in an appeal. If the contractor 

appeals from a final decision on a government claim, the contractor typically presents in 

the complaint enough information about the government claim to form a sufficient 

predicate for its response. 

In appropriate cases, the Board may exercise its discretion to direct the 

government to file the complaint, if doing so will facilitate efficient resolution of the 

appeal. Beechcraft Def Co., ASBCA No. 59173, 14-1BCAii35,592; LGT Corp., 

ASBCA No. 44066, 93-3 BCA ii 26, 184. Such situations can arise if relevant 

information concerning the basis for the claim resides with the government, and not the 

appellant. In Beechcraft, for example, the contractor appealed from a government 

claim alleging that the contractor was noncompliant with the Cost Accounting 

Standards (CAS). Observing that the government bears the burden to prove a CAS 

violation and the government was "fully conversant with its own claim," the Board found 

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that the proceedings would benefit from the government setting forth, in an initial 

pleading, the facts and rationale for its determination of CAS noncompliance. 14-1 BCA 

if 35,592 at 174,395; see also, e.g., RO. VlB. SrL, ASBCA No. 56198, 09-1 BCA 

if 34,068 (ordering government to file initial pleading in appeal from default termination); 

Hughes Aircraft Co., ASBCA No. 46321, 94-2 BCA if 26,801 (ordering government to 

file complaint in appeal involving allegations of defective pricing). We do not always 

direct the government to file a complaint in appeals from government claims. Where, for 

example, the contractor uniquely possessed relevant information about the claim and 

proceedings would not have been aided by the government filing the initial pleading, we 

declined to order the government to file the complaint. See General Dynamics Corp., 

ASBCA No. 49339, 96-1 BCA if 28,244. 

This motion presents a twist on Beechcraft, in that the contractor is appealing 

from the denial of a contractor claim, not a government claim, and yet still seeks an 

order compelling the government to file the complaint. Appellant argues that its claim 

"relates to the Government's defective pricing claim" for which the government bears 

the burden of proof, the government is in the best position to set forth the facts and legal 

arguments to support its defective pricing allegations, and the "proceedings will benefit" 

from greater efficiency (app. mot. at 4-5). 

We agree. Appellant's claim appears to be a defense against the government's 

allegations of defective pricing, not a separate claim for contract adjustment (R4, tab 29 

at 11, Conclusion). Indeed, the Board and the parties are in this unusual posture 

because the government did not issue a final decision finding defective pricing except in 

response to the contractor's claim. Moreover, the contracting officer's final decision 

does not explain in any depth why it rejected the contractor's arguments, except with 

occasional summary remarks (R4, tab 44 ). In these particular circumstances, 

proceedings would be more efficient if the Board could start with a government 

articulation of the basis for its determination of defective pricing, rather than appellant's 

speculation about the basis for the government's assertions. 

Both the government defective pricing allegations and the contractor's claim 

appear to spring from the same set of operative facts. This should alleviate the 

government's concern about having to articulate the underlying basis for the 

contractor's claim (app. mot. at 3). In any event, the government should only assert the 

underlying basis for its defective pricing allegations and is not required to plead the 

contractor's defenses. The appellant should do that in its answer. 

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CONCLUSION 

The Board grants appellant's motion to compel the government to file the 

complaint in this appeal. The government is directed to file the complaint no later than 

30 days following the date of this order. The government should assert the underlying 

basis for its defective pricing allegations. Appellant's answer shall be due 30 days after 

receipt of the government's complaint. 

Dated: 18 November 2014 

I concur 

~~# Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

RICHARD SHACKLEFORD 

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. 59374, Appeal of BAE 

Systems Land & Armaments Inc., rendered in conformance with the Board's Charter. 

Dated: 

4 

JEFFREYD. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals