Grumman Aerospace Corporation v. Wynne

497 F.3d 1350, 2007 U.S. App. LEXIS 19566, 2007 WL 2340823
CourtCourt of Appeals for the Federal Circuit
DecidedAugust 17, 2007
Docket2006-1482
StatusPublished
Cited by28 cases

This text of 497 F.3d 1350 (Grumman Aerospace Corporation v. Wynne) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grumman Aerospace Corporation v. Wynne, 497 F.3d 1350, 2007 U.S. App. LEXIS 19566, 2007 WL 2340823 (Fed. Cir. 2007).

Opinions

Opinion for the court filed by Circuit Judge RADER. Opinion dissenting in part filed by Circuit Judge NEWMAN.

RADER, Circuit Judge.

The Armed Services Board of Contract Appeals denied Grumman Aerospace Corporation’s (Grumman’s) superior knowledge claim against the United States Air Force (Air Force). In re Grumman Aerospace Corp., 03-1, B.C.A. (CCH) ¶ 32,203 (A.S.B.C.A. March 14, 2003), aff'd on recon., 03-2 B.C.A. (CCH) ¶ 32,289 (A.S.B.C.A. June 23, 2003). The Board also denied Grumman any damages under the jury verdict method on 14 of its sustained claims. In re Grumman Aerospace Corp., 06-1, B.C.A. (CCH) ¶ 33,216 (A.S.B.C.A. February 27, 2006). Because the Board correctly denied Grumman’s superior knowledge claim and use of the jury verdict method for damages, this court affirms.

I

In the early 1980s, the Air Force sought to modernize the avionics (Avionics Modernization Program or AMP) for its fleet of F-lll aircraft. In 1984, the Air Force began this project by awarding General Dynamics Corporation (GDC) a contract to modernize the avionics of one model within the F-lll fleet, namely the FB-111A (FB111A AMP). The Air Force also decided to offer another AMP contract for the F-111A/E and EF-111A models (F-111 A/E AMP). The competition for the F-lll A/E AMP ran concurrently with the on-going FB-111A AMP project. In re Grumman Aerospace Corp., 03-1, B.C.A.(CCH) ¶ 32,203 at 159,180 (A.S.B.C.A. March 14, 2003), aff'd on recon., 03-2 B.C.A. (CCH) ¶ 32,289 (A.S.B.C.A. June 23, 2003).

On June 1, 1984, the Air Force announced the F-lll A/E AMP procurement in the Commerce Business Daily (CBD). [1353]*1353In that announcement, the CBD advised potential offerors about the availability of data:

Government will provide a library of available data. Additionally, required data for interface shall be the responsibility of the contractor via associate and subcontractor agreements. Previous performance of this task was by General Dynamics Fort Worth Division for the FB-111A aircraft. Data from that acquisition will not be available at time of proposal preparation or award, (emphasis added)

Id. After the CBD announcement but before release of the Request for Proposal (RFP), Grumman’s F-111A/E AMP proposal manager attended two dinner meetings on the F111A/E AMP procurement. At the first dinner meeting, Grumman’s manager sought assurances about the fairness of the F-111A/E AMP procurement. At the second dinner meeting, the manager obtained general information about problems with the ongoing GDC FB-111A AMP contract. Id.

On January 31, 1985, the Air Force issued the F-lll A/E AMP RFP. In the RFP, the Air Force identified the data for the preparation of proposals:

L-637 COMPETITION DATA LIBRARY
a.Data — An Avionics Modernization Program Competition Data Library has been established [sic] and is being maintained at SM-ALC [Sacramento — Air Logistics Center]. This library contains limited F-lll [sic] engineering and technical data, and will be maintained from RFP Release until contract award. The Competition Data Library (also referred to as “Data Library”) will be provided to the successful offeror at contract award.
b. This library contains the following categories of data:
(1) FB-111A AMP data
(2) F-111A/E and EF-111A engineering drawings
(3) F-111A/E and EF-111A Aircraft Technical Orders
(4) F-lll A/E and EF-111A System (Commodity) Technical Orders
(5)F-111A/E and EF-111A TCTOs
(6) AMP Group B drawings and specifications
(7) Computer program (software) specifications
(8) Aircraft configuration status records
(9) Other engineering/technical data required to define the aircraft or its system.
c. This library will be complete, to the best of the Air Force’s ability, at RFP Release. All data that is in the library will be available to all competing Contractors on an equal time, reservation basis. Data which is not available through the Data Library will not be provided by the Government to any Contractor. Any data added to the library after RFP release will be entered into a log including a description of the data, identification number and the date received. Every two weeks a copy of the log describing the new data will be provided to each of the bidders. New data will be considered additive; older revisions will be maintained throughout the period of operation of the library.

Id. Furthermore, the RFP included Clause H-1051, in pertinent part:

H-1051 GOVERNMENT PROVIDED DATA-WARRANTY
a. The Government in no way warrants the data contained in the AMP Data [1354]*1354Library. The Government will not reimburse the Contractor for any cost incurred as a result of using data provided in the data library or allow a schedule slippage due to defects in the data provided.

Id. at 159,181. According to the record, Grumman fully understood that the Air Force gave no warranties about the data in the library.

In February 1985, Grumman circulated an internal memorandum to its proposal team. The internal memorandum also referred to Clause H-1051:

Section H-1051 — The information obtained from the Data Library is not warranted due to the fact that the FB-111A design is not frozen. This data is to be used at the bidders [sic] own risk. (emphasis added)

Id.

On May 31, 1985, Grumman and GDC, the only two bidders, submitted their proposals for the F-111A/E AMP contract. Grumman’s approach depended to some extent upon the use of the FB-111A Operational Flight Program (OFP) code and data under development for the ongoing GDC contract. Although the RFP directed each offeror to provide, as part of its proposal, a list of required Government Furnished Property (GFP), Grumman did not list any OFP software from the FB-111A concurrent contract. In other words, Grumman did not notify the Air Force that it expected to receive data from the GDC project.

After receipt of Grumman’s proposal, the Air Force issued the following inquiry to Grumman:

Para 5230.2 of the SOW [Statement of Work] refers to data for GFP to be used during development. Any such data required by the offeror must be identified as part of their proposal. Request you provide a list of any data to be provided by the Government which is in addition to that contained in the AMP Competition Data Library and the dates the data is required by.

Id. at 159,182. Thereafter, Grumman requested, inter alia, paper copies of FB-111A source code within 90 days of award. However, the Air Force replied to Grumman’s request as follows: “The Government is reviewing that list. If the data is available, it will be provided. NOTE: Regardless of the availability of the data, the requirement of the RFP, SOW and SSS [System Segment Specification] will not be affected.” Id.

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Cite This Page — Counsel Stack

Bluebook (online)
497 F.3d 1350, 2007 U.S. App. LEXIS 19566, 2007 WL 2340823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grumman-aerospace-corporation-v-wynne-cafc-2007.