John H. Dalton, Secretary of the Navy v. Cessna Aircraft Company

98 F.3d 1298
Court of Appeals for the Federal Circuit·Decided December 31, 1996·No. 95-1409·Published·Cited by 92 cases

Opinions

Opinion for the court filed by Circuit Judge SCHALL. Dissenting opinion filed by Circuit Judge NEWMAN.

SCHALL, Circuit Judge.

This action arises under the Contract Disputes Act of 1978, as amended (“CDA”), 41 U.S.C. §§ 601-613 (1994). The United States Navy (“Navy”) appeals from, part of the decision of the Armed Services Board of Contract Appeals (“Board”) in CESSNA Aircraft Co., ASBCA No. 48118, 95-1 BCA (CCH) ¶ 27,560, 1995 WL 113915 (March 6, 1995). In its decision, the Board sustained the appeal of CESSNA Aircraft Company (“Cessna”) seeking an equitable adjustment under its contract with the Navy for flight training services. We reverse.

BACKGROUND

I.

Cessna was awarded Contract No. N00019-83-C-0090 (“the contract”) by the Navy on May 10,1983. Cessna, 95-1 BCA at 137,344. The contract was a firm fixed-price services contract titled “Undergraduate Naval Flight Offieer/Training System Upgrade (UNFO/TSO).” Id. Under the contract, Cessna was to provide services to assist in radar and navigation training for undergraduate naval flight officers (“UNFOs”). Id. The procurement grew out of the fact that the T-39 aircraft the Navy had been using in its UNFO training program were becoming obsolete. Id. at 137,345. In 1981, the Navy decided to enter into a multi-year contract for training services under 10 U.S.C. § 2306(g) (1994),1 rather than purchase its own equipment. Id.

The Navy issued a Request for Information (“RFI”) on May 14, 1982, setting forth what it was contemplating in its procurement and inviting potential bidders to attend a presolicitation conference to be held on May 27, 1982. Cessna, 95-1 BCA at 137,345. In its RFI, the Navy stated: “Annual flight training systems will be designed to support a tactical [Naval Flight Officer] training rate [1300] of from 300-350 students per year. For planning purposes the estimated flying hours needed to conduct this training will range from 12,000-17,000 hours per year.” The RFI did not specify any contemplated number of hours per graduated student. Id. at 337,346. The Navy also stated that the RFI “represents a reliable statement of the Navy requirement and possible procurement approaches for satisfying this requirement.”

At the pre-solicitation conference, potential bidders asked questions about the procurement and had them answered. Cessna, 95-1 BCA at 137,345. On June 29,1982, the Navy distributed to potential bidders, in written form, the questions and answers from the pre-solicitation conference. Id.

A number of questions at the conference addressed the issue of the rate of flight training services that the contractor would be required to provide. In response to all such questions, the Navy consistently referred potential bidders to the then-forthcoming Request for Quotations (“RFQ”). One question asked, “If [Navy] is going to modify the [training] syllabus where will they get their info and training?” The distributed answer read: “The Navy does not intend to modify the syllabus.”

Cessna representatives met with the Navy’s Wing Commander, Captain Thaubald, on September 9, 1982, and questioned him about the 17,000 hour provision. Cessna, 95-1 BCA at 137,346. Captain Thaubald testified before the Board that, at that meeting, he indicated to Cessna that “current usage projected 12,000 flying hours annually, but that if Congress approved a battle group increase the [Navy] would use 17,000 hours.” Id.

On October 1, 1982, the Navy issued its RFQ. Cessna, 95-1 BCA at 137,345. The services that the contractor was to provide were described in Section C, titled “Description or Specifications.” It stated that the contractor was to

provide services to assist in Radar and Navigation training of Undergraduate Naval Flight Officers. These services shall consist of an annual rate of 17,000 airborne training service hours (approximately 58 airborne training hours per graduated student) on Contractor-furnished radar equipped aircraft of common configuration.

Id. at 137,344. Because of a gradual phase-in of services, the contractor was to begin providing a total of 17,000 airborne training service hours in the third year of the contract (FY 1986). Id. The “Program Description and Objectives” section of the RFQ reiterated the language of Section C, stating that “[h]ands-on training on the radar within the aircraft, as well as the training instructor pilot services, will consist of airborne training services of 17,000 hours per year (approximately 58 hours per student).” Other parts of the contract recited the 17,000 airborne training service hours (“ATSH”) provision unaccompanied by the 58-hour parenthetical. These clauses called for 17,000 hours of flight services to be provided in the third, fourth, and fifth program years and in the option years.

Attached to the RFQ were a Statement of Work (“SOW”) and the training syllabus then used by the Navy in the UNFO program. Paragraph 3.1.2 of the SOW defined the scope of contractor support services:

The Contractor shall furnish all equipment and services required to ensure the UNFO Training System is available for Navy use in accordance with the provisions of this SOW.... The Contractor shall provide sufficient aircraft to accomplish the annual UNFO training rate requirement and meet a 95% mission completion rate. The Government may or may not order flights on any given day, depending on the necessity of the work and suitability of flying conditions. The schedule of operations will be planned by the Government with the cooperation of the Contractor’s Representative. Most flight operations will be conducted during daylight hours, however some night and overnight operations will be required. The current training syllabus requires three (3) overnight flights per week of one (1) or two (2) night’s duration.

Attached to the SOW was the training syllabus or “curricula” then in use by the Navy. Paragraph 3.1.1 of the SOW stated, “For Contractor planning purposes, copies of the existing curricula currently used by the [1301] Chief of Naval Air Training for training student Naval Flight Officers are attached.” There was no indication in the SOW as to whether or not the syllabus would be altered by the Navy. According to the syllabus appended to the SOW, the UNFO training program was to be conducted in five curricula grouped into three phases: basic (one curriculum), intermediate (one curriculum), and advanced (three curricula).

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John H. Dalton, Secretary of the Navy v. Cessna Aircraft Company, 98 F.3d 1298 (Fed. Cir. 1996).

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