ATK Thiokol, Inc. v. United States

72 Fed. Cl. 306, 2006 U.S. Claims LEXIS 226, 2006 WL 2136707
CourtUnited States Court of Federal Claims
DecidedJuly 31, 2006
DocketNo. 99-440C
StatusPublished
Cited by2 cases

This text of 72 Fed. Cl. 306 (ATK Thiokol, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
ATK Thiokol, Inc. v. United States, 72 Fed. Cl. 306, 2006 U.S. Claims LEXIS 226, 2006 WL 2136707 (uscfc 2006).

Opinion

MEMORANDUM OPINION AND ORDER

BRADEN, Judge.

I. RELEVANT FACTS AND PROCEDURAL HISTORY1

For the past thirty years, Plaintiff has manufactured and sold launch vehicle motors to support the National Aeronautics and Space Administration (“NASA”)’s Space Shuttle program and several significant ballistic missile programs, including: the Polaris; the Poseidon; the Trident; the Minuteman; the Small Intercontinental Ballistic Missile and Peacekeeper; the Aerospace; and the MBB/EKNO/EADS. See ATK Thiokol, Inc. v. United States, 68 Fed.Cl. 612, 615 (2005). Because of uncertainty surrounding the defendant (“the Government”)’s sustained commitment to the space program, Plaintiff decided to diversify and began to sell launch vehicle motors to foreign governments and commercial companies such as: Lockheed Martin Corporation; McDonnell Douglas Corporation; EER; Orbital Sciences Corporation; and Nissan a/k/a IHI. Id.

The launch vehicle motor industry was and is technology driven and, to remain competitive, Plaintiff continuously was engaged in research and development (“R & D”) that primarily was funded internally. Id. In making a decision to fund R & D, Plaintiff was mindful that customers do not want to pay all R & D costs for a product that later may be purchased by others. Id. Moreover, a “cost” of accepting customer R & D funding is that Plaintiff might lose the ability to control the use of company intellectual property and proprietary information. Id. For these reasons, Plaintiff was attentive to whether the Government would recognize R & D expenditures as “indirect costs” that could be reimbursed under the FAR and allow intellectual property rights to remain in Plaintiffs control. Id. Whether R & D costs also could be recovered through profit was an important and relevant factor. Id.

R & D costs generally were incurred at the same time as contract performance. Id. Therefore, when a new contract was awarded, Plaintiff set up two separate categories to account for R & D costs: “development work related to the contract;” and “development work not directly related to a contract.” Id. In addition to R & D required to develop new or modified launch vehicle motors, Plaintiff also typically incurred “Production Equipment” costs, such as new tooling, equipment, and facilities costs. Id.

Between 1990 and 1999, Plaintiff incurred $8,149,888.00 in costs to develop the Castor® IVA-XL motor for the commercial market: $3,149,888.00 for R & D and $5,000,000.00 for Production Equipment. Id. at 617-20. Plaintiff allocated these costs to indirect cost pools. Id. at 621.

On March 10,1999, the Divisional Administrative Contracting Officer (“DACO”)2 issued: Contracting Officer’s Notice of Intent to Disallow Costs, Castor IVA-XL B & P Costs & Capitalized Special Tooling (“Notice of Intent to Disallow Costs”),3 indicating that the Government intended to disallow Plaintiffs allocation of the $8,149,888.00 in R & D and Production Equipment costs as indirect costs, because “these costs should be charged direct to the Castor IVA-XL program.” Id. at 622-23; see also PL Mot. to Confirm at Ex. 4 (“Notice of Intent to Disallow”). Therein, the DACO identified four “ ‘test’ contracts” for potential resolution by litigation. Id. (“The significant contracts that will receive an allocation of costs, which therefore [308]*308govern the dispute, are NAS8-38100, PB10E9900N, F42610-94-C0031, and DAA001-95-C0016.”).

On May 10, 1999, Plaintiff provided the DACO with a Certified Claim asserting that “the [G]overnment’s Notice of Intent to Disallow Costs is totally improper” and requesting that the disputed R & D and Production Equipment costs be allowed as indirect costs:

The undersigned, on behalf of Thiokol Propulsion (“Thiokol”), submits, at your request, a certified claim and request for a contracting officer’s Final Decision pursuant to the Contract Disputes Act (“CDA”) on the [G]overnment’s claim dated March 10,1999, whereby the [Government issued a Notice of Intent to Disallow indirect costs in the amount of $8,119,888. That amount reflects $3,149,888 of disallowed [Research and Development (“R & D”)] costs and $5 million of tooling and equipment costs.

PI. Mot. to Confirm at Ex. 5 (emphasis added); see also ATK Thiokol, Inc., 68 Fed.Cl. at 623. In addition to claiming that the intended disallowance of $8,149,888.00 was improper, Plaintiffs Certified Claim selected one of the four “ ‘test’ contracts” proposed by the DACO as “the ‘test’ contract” and claimed $730,615.00 in R & D and Production Equipment costs thereunder:

The Notice of Intent identified four “test” contracts: Contract Nos. NAS8-38100, PB10E9900N, F42610-94-C0031, and DAA001-95-C0016. The Notice was issued after detailed discussions between the parties and the existence of a clear disagreement. For purposes of this request for a final decision, Thiokol identifies Contract No. NAS8-38100 as the “test” contract, and claims entitlement to recover $730,615 of the costs in dispute under that contract.

Id. (emphasis added).

Plaintiff specified, however, that the identification of Contract No. NAS8-38100 as “the ‘test’ contract” was not a limitation as to the scope of the May 10, 1999 Certified Claim:

Thiokol’s right of recovery exists not only under the test NASA contract and the other three contracts upon which the [Government's Notice of Intent to Disallow is based, but all contracts performed or priced during Thiokol’s fiscal years 1998,1998T and 1999 and thereafter[.]

Id.

On May 14, 1999, the DACO issued the Contracting Officer’s Final Decision to Disallow Costs Castor IVA-XL [R & D] Costs & Capitalized Special Tooling (“Final Decision”) regarding Plaintiffs indirect allocation of $8,149,888.00 in R & D and Production Equipment Costs:

I am issuing this Final Decision to Disallow Costs booked as [Research & Development] costs that have been incurred or are to be incurred in connection with the Castor IVA-XL Research and Developmenl/Production program. The questioned amounts of [R & D] incurred are FY 98 $1,017,261, and FY98T, $1,132,621. The [R & D] estimated amount for CY99 is $1,000, 000. It is my opinion that these costs should be charged direct to the Castor IVA-XL program. It is my position that the related Special Tooling amount, $5,000,000, should be charged direct to its original cost objective, the Castor IVA-XL contract. Thiokol Propulsion plans on capitalizing and depreciating these costs starting CY99.

Id. at Ex. 6 (emphasis added).

Moreover, the Final Decision adopted Plaintiffs selection of Contract No. NAS838100 as “the ‘test’ contract”:

Thiokol has identified Contract NAS838100 as the “test” contract and claims entitlement to recover $730,615[.00] of the costs in dispute under that contract. I agree with the designated contract and the stated amount as the amount in dispute allocable to that contract. I also agree that the contract will serve as the representative contract.

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Related

ATK Thiokol, Inc. v. United States
76 Fed. Cl. 654 (Federal Claims, 2007)
Sarang Corp. v. United States
76 Fed. Cl. 560 (Federal Claims, 2007)

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Bluebook (online)
72 Fed. Cl. 306, 2006 U.S. Claims LEXIS 226, 2006 WL 2136707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atk-thiokol-inc-v-united-states-uscfc-2006.