Northrop Grumman Corp. v. United States

42 Cont. Cas. Fed. 77,361, 41 Fed. Cl. 645, 1998 U.S. Claims LEXIS 252, 1998 WL 515737
CourtUnited States Court of Federal Claims
DecidedAugust 19, 1998
DocketNo. 97-418C
StatusPublished
Cited by1 cases

This text of 42 Cont. Cas. Fed. 77,361 (Northrop Grumman Corp. 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
Northrop Grumman Corp. v. United States, 42 Cont. Cas. Fed. 77,361, 41 Fed. Cl. 645, 1998 U.S. Claims LEXIS 252, 1998 WL 515737 (uscfc 1998).

Opinion

OPINION

MILLER, Judge.

Before the court after argument on cross-motions for summary judgment, this case addresses whether the Government breached a cost-plus-ineentive-fee contract by unilaterally reducing plaintiffs fee for alleged failure to satisfy certain contract specifications.

FACTS

The following facts are undisputed, unless otherwise noted. On November 2, 1990, the United States Air Force (the “Air Force”) awarded sole-source Letter Contract No. F19628-90-0197 to Grumman Aerospace Corporation (“plaintiff’)1 for the development of a state-of-the-art aircraft called the Joint Surveillance and Target Attack Radar System (“Joint STARS”). The contract called for the reconditioning and transformation of an old Boeing 707 airplane into the world’s most advanced battlefield management aircraft, with the capability to detect, track, and target both moving and stationary enemy ground forces and material through clouds, foliage, and other obscurants. Because plaintiff previously had developed two earlier versions of Joint STARS aircraft under a different contract, the contract at the center of the instant dispute governing the third Joint STARS aircraft has been designated by the parties as the Follow-on Full Scale Development (“FoFSD”) Contract.

As a complex development project, the FoFSD contract was issued as a Cost-Plus-Incentive-Fee (“CPIF”) contract as described by Federal Acquisition Regulation (“FAR”) § 16.404-1, 48 C.F.R. § 16.404-1 [647]*647(1990),2 then in effect.3 A CPIF contract is appropriate when “uncertainties involved in contract performance do not permit costs to be estimated with sufficient accuracy to use any type of fixed-price contract.” FAR § 16.301-2, 48 C.F.R. § 16.301-2 (1997). Under this type of cost reimbursement contract, as opposed to a fixed-price type contract, the parties identify a target cost, target fee, minimum fee, and maximum fee. The contractor’s fee is a function of the extent to which total allowable costs are less than or exceed the target cost. Once total allowable costs exceed the target cost, the contractor’s fee will decline proportionately as cost increases. The converse is also true. The greater the contractor is successful in keeping total allowable costs below the target cost, the greater will be the contractor's fee. If total allowable costs are equal to the target cost, the contractor is entitled to the target fee. The fee may not exceed the identified minimum or maximum fees, regardless of the extent to which total allowable costs may be greater or less than the target cost.4

The FoFSD contract contained the following cost and fee provisions:5

Target Cost: 3,000,000.00
Target Fee: $38,844,000.00
Minimum Fee: $17,779,000.00
Maximum Fee: $60,424,000.00

These figures were subject to the Incentive Fee clause, FAR § 52.216-10, 48 C.F.R. § 52.216-10 (1990), which provided in pertinent part as follows:

(a) General. The Government shall pay the Contractor for performing this contract a fee determined as provided in this contract.
(b) Target cost and target fee. The target cost and target fee specified in the Schedule are subject to adjustment if the contract is modified in accordance with paragraph (d) below.
(d) Equitable adjustments. When the work under this contract is increased or decreased by a modification to this contract or when any equitable adjustment in the target cost is authorized under any other clause, equitable adjustments in the target cost, target fee, minimum fee, and maximum fee, as appropriate, shall be stated in a supplemental agreement to this contract.
[648]*648(e) Fee payable. (1) the fee payable under this contract shall be the target fee increased by [Contracting Officer insert Contractor’s participation] cents for every dollar that the total allowable cost is less than the target cost or decreased by [Contracting Officer insert Contractor’s participation] cents for every dollar that the total allowable cost exceeds the target cost. In no event shall the fee be greater than the [Contracting Officer insert percentage] percent or less than [Contracting Officer insert percentage] percent of the target cost.
(3) If this contract is terminated in its entirety, the portion of the target fee payable shall not be subject to an increase or a decrease as provided in this paragraph. The termination shall be accomplished in accordance with other applicable clauses of this contract.

Rather than fill in the bracketed areas with the appropriate figures, the contracting officer identified a “share ratio” of 70/30. The parties agreed that plaintiff would earn 30 cents additional fee for each dollar of total allowable cost less than target cost. Correspondingly, plaintiff would lose 30 cents in fee for each dollar expended in excess of target cost, subject to the specified minimum and maximum fees.

The FoFSD contract also incorporated by reference the following standard FAR clauses, with pertinent provisions quoted below: FAR § 52.246-8 Inspection of Research and Development — Cost Reimbursement

(f) At any time during contract performance ... the Government may require the Contractor to replace or correct work not meeting contract requirements.... Except as otherwise provided in paragraph (h) below, the cost of replacement or correction shall be determined as specified in the Allowable Cost and Payment clause, but no additional fee shall paid....
(g) (1) If the Contractor fails to proceed with reasonable promptness to perform the required replacement or correction, the Government may—
(1) By contract or otherwise, perform the replacement or correction, charge to the Contractor any increased cost, or make an equitable reduction in any fixed fee paid or payable under the contract;
(ii) Require delivery of any undelivered articles and shall have the right to make equitable reduction in any fixed fee paid or payable under the contract; or
(iii) Terminate the contract for default.
(2) Failure to agree on the amount of increased cost to be charged the Contractor or to the reduction in fixed fee shall be a dispute.
(j) The Contractor has no obligation or liability under the contract to correct or replace articles not meeting contract requirements at time of delivery, except as provided in this clause or as may otherwise be specified in the contract.

FAR § 52.246-8, 48 C.F.R. § 52.246-8 (1990).

FAR § 52.232-22 Limitation of Funds

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Cite This Page — Counsel Stack

Bluebook (online)
42 Cont. Cas. Fed. 77,361, 41 Fed. Cl. 645, 1998 U.S. Claims LEXIS 252, 1998 WL 515737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northrop-grumman-corp-v-united-states-uscfc-1998.