McDonnell Douglas Corp. v. United States

42 Cont. Cas. Fed. 77,230, 39 Fed. Cl. 665, 1997 U.S. Claims LEXIS 289, 1997 WL 766001
United States Court of Federal Claims·Decided December 5, 1997·No. No. 91-1204C·Published·Cited by 4 cases

Opinion

OPINION AND ORDER

HODGES, Judge.

By order dated August 30,1996, we limited plaintiffs’ incurred cost recovery to the amount of funds formally obligated to the Full Scale Development (FSED) portion of the A-12 Contract at the time of termination: $3,499,793,515. Plaintiffs argued that they were entitled to funds obligated at the time of termination not only by formal modification, but also by constructive obligation or express terms of the contract. The “constructive obligation” theory derived from plaintiffs’ argument that they were entitled to the January 1991 scheduled installment even though the modification had not been signed. We ruled that funds could not be obligated without a contract modification in such circumstances. McDonnell Douglas Corp. v. United States, 37 Fed.Cl. 295 (1997).

[666] In Footnote 11 of the February 5, 1997 Opinion and Order we solicited an explanation of defendant’s response to plaintiffs’ argument that alternative sources of funding were available beyond the $3.5 billion “cap.” This was an issue that we did not consider to be substantive in light of the pending stipulation of damages. Plaintiffs argued that Clause H-14, the Incentive Price Revision clause (IPR), and Clause H-56, the Economic Price Adjustment clause (EPA), entitled them to funds beyond the $3.499 billion obligated by modification. This issue had been briefed, but only “perfunctorily,” we stated. The August 30, 1996 Order establishing a $3.499 billion cap was interpreted by the parties to include funds authorized by the IPR and EPA clauses. We did not intend this result. •

BACKGROUND

The Navy contracted with plaintiffs in 1988 to develop the A-12 stealth aircraft. The contract had an initial target price of $4,379,-219,436 and an initial ceiling price of $4,777,-330,294. The Government terminated the contract for default on January 7, 1991, the same day that defendant was scheduled to obligate an additional $553.2 million to the contract. The contractors sued the Navy to convert the termination for default to a termination for convenience of the Government, and to recover incurred costs, profits, and equitable adjustments. The contractors also submitted a termination for convenience cost recovery claim for $4.003 billion to the contracting officer. That claim was deemed denied and plaintiffs appealed. McDonnell Douglas Corp. v. United States, 37 Fed.Cl. 285 (1997). We converted the termination for default to one for convenience of the Government, McDonnell Douglas Corp. v. United States, 35 Fed.Cl. 358 (1996), and limited plaintiffs’ recovery to incurred costs not to exceed $3.499 billion, McDonnell Douglas Corp. v. United States, 37 Fed.Cl. 295 (1997).

At the time of termination, the Government had accepted and paid for six of 58 contract line items (CLINs). Plaintiffs were paid $1.334 billion for the accepted CLINs at the adjusted billing prices set forth in modification P00052. The price adjustments above target price for these items totaled $127.083 million ($109.776 million in IPR adjustments and $17.307 million in EPA adjustments).1 Such adjustments were paid as part of liquidated progress payments. No modification adjusted the final prices for these items, and no modification obligated funds above target price.

Plaintiffs contend that the incurred cost limitation of $3.499 billion artificially limits their cost recovery claim. The Government acknowledges paying the contractors most of the adjustments above the original contract target price for the six accepted CLINs. Defendant also concedes that the contract scheduled funding to satisfy liabilities up to target price only. The issue is whether plaintiffs are entitled to prove an additional $135 million in incurred costs.

I. Contract Funding Clauses

A. Clause H-56 — Economic Price Adjustment Clause

The Economic Price Adjustment Clause was established to adjust the target cost, target price, and ceiling price of the contract.2 Any such adjustments were to be made by contract modification.

A modification of the contract shall be issued making necessary changes in the contract targets/eeilings, for items delivered and to be delivered, to reflect the [667] adjustments determined under [the implementation part] of this provision.

H-56, Part I, G.

PART II, the “implementation part,” includes formulae for calculating price adjustments according to Bureau of Labor Statistics indexes that measure materials and labor cost fluctuations in the aircraft industry. As materials and labor costs rise throughout the industry during the term of the contract, original target values are adjusted proportionately upward so that the contractor does not bear costs unrelated to its own performance.

An upward EPA adjustment reflects increased cost, and credits the contractor for the amount of increase by reestablishing higher values for target cost, target price, and ceiling price. If the Bureau of Labor Statistics indexes indicate that the cost of materials used in the aircraft industry is five percent higher in 1990 than in 1988, the contract’s target cost, target price, and ceiling price must be increased proportionately. Otherwise, price revision calculations would attribute to the contractor costs common to the entire industry. EPA adjustments must be made before an accurate price revision modification can be executed.

No adjustments were to be made under H-56 in the calendar years before 1990. The EPA clause did not include a termination provision.

B. Clause H-14 — Incentive Price Revision Clause3

The IPR clause was designed to establish the total final contract price not to exceed the contract ceiling price. Total final price was to be determined according to negotiated costs, the degree to which negotiated costs departed from target costs, and profit (including any adjustments thereto). Final cost and profit adjustments could be made above target price, but no adjustment could exceed the ceiling price.

The IPR clause requires contracting parties to negotiate total final cost, following the submission of cost data for items delivered and accepted. H-14(d)(l). Total final price is determined by applying an adjustment for profit or loss to final negotiated cost. For example, if final negotiated cost exceeds tar[668] get cost, total final price is the sum of final negotiated cost plus target profit less forty-percent of the amount by which final negotiated cost exceeds target cost. H-14(d)(2)(ii). Thus, as the contractor’s costs rise above target cost, profits fall. Conversely, profits increase when final costs are less than target cost. If final negotiated cost is less than target cost, total final price is the sum of final negotiated cost, target profit, and forty percent of the amount by which final negotiated cost is less than target cost. H-14(d)(2)(iii). If final negotiated cost equals target cost, total final price is the sum of target cost and target profit, or target price. H-14(d)(2)(I). Total final price is to be “evidenced by a modification to this contract, signed by the Contractor and the Contracting Officer.” H-14(e).

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McDonnell Douglas Corp. v. United States, 42 Cont. Cas. Fed. 77,230, 39 Fed. Cl. 665, 1997 U.S. Claims LEXIS 289, 1997 WL 766001 (uscfc 1997).

42 Cont. Cas. Fed. 77,230 (McDonnell Douglas Corp. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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