Raytheon Co. v. United States

31 Cont. Cas. Fed. 71,309, 2 Cl. Ct. 763, 1983 U.S. Claims LEXIS 1697
CourtUnited States Court of Claims
DecidedJune 28, 1983
DocketNo. 180-82C
StatusPublished
Cited by11 cases

This text of 31 Cont. Cas. Fed. 71,309 (Raytheon Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Raytheon Co. v. United States, 31 Cont. Cas. Fed. 71,309, 2 Cl. Ct. 763, 1983 U.S. Claims LEXIS 1697 (cc 1983).

Opinion

OPINION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

WHITE, Senior Judge.

The plaintiff, Raytheon Company (Ray-theon), seeks Wunderlich Act review of a decision by the Armed Services Board of Contract Appeals (ASBCA or Board) denying the plaintiff’s claim for royalties allegedly due pursuant to the standard (1967) Value Engineering Incentive (VEI) clause included in contract No. N00024-72-C-1310 (contract C-1310) between Raytheon and the defendant. Contract C-1310, which the Department of the Navy awarded to Ray-theon on June 14, 1972, was for the produe[765]*765tion of certain sonar equipment at an initial total cost of $20,384,415.

The parties have filed cross-motions for summary judgment. For the reasons stated in the opinion, the court concludes that there are no genuine issues of material fact in dispute, that the plaintiff is not entitled to recover, and that the complaint should be dismissed. In addition, it is concluded that the defendant is entitled to judgment in the amount of $11,719 on its counterclaim against Raytheon.

The standard VEI clause provides that a contractor may submit proposed contract changes reducing the cost of performance, and that, if the Government approves the proposal, the contractor is entitled to share in the cost savings. The VEI clause contained in contract C-1310 allowed Raytheon to share in three types of cost savings: instant contract, collateral, and future contract savings. Raytheon’s present claim involves only its entitlement to future contract savings.

Paragraph (j)(l) of the VEI clause in contract C-1310 provided that Raytheon would receive royalties during a 2-year period in the amount of 40 percent of the future unit cost savings accruing from an approved cost reduction proposal. The issue in dispute between the parties is the beginning date of the 2-year period, or “window,” during which the royalties were to be computed. Paragraph (j)(l)(ii) provided that the 2-year period commended on the later of two dates: (1) “the last originally scheduled delivery date” for items ordered under contract C-1310 utilizing the cost reduction proposal, or (2) “the date of acceptance of the cost reduction proposal.” Specifically, paragraph (j)(l)(ii) provided in pertinent part as follows:

(j)(l) If a cost reduction proposal is accepted under this clause, the Contractor will be paid (in addition to any adjustment under paragraphs (d) and (f) (if included) above) a royalty share of savings realized by the Government on future purchases, if any, of items utilizing the cost reduction proposal. The Contractor’s royalty share will be forty percent (40%) of the unit cost reduction under this contract (without deducting any cost of development or implementation) multiplied by the quantity of Item 0001 which
(i) utilize the cost reduction proposal pursuant to the specifications of other provisions of any other contract of the Naval Ship Systems Command which is awarded after acceptance of the cost reduction proposal, and
(ii) are originally scheduled for delivery not later than two (2) years after either the last originally scheduled delivery date for any such item under this contract or the date of acceptance of the cost reduction proposal whichever is later, and
(iii) are accepted by the Government under such other contracts.

Pursuant to the VEI clause contained in contract C-1310, Raytheon submitted Value Engineering Change Proposal (VECP) No. 1 to the Government on January 31, 1973. Estimating that the net total cost savings resulting from the proposal were $278,077, Raytheon proposed that it was entitled to 50 percent of the instant contract savings pursuant to paragraph (d) of the VEI clause and a 40 percent future royalty share in accordance with paragraph (j)(l), quoted above.1

On June 28, 1973, the plaintiff and the Government executed Modification P00005 (Modification 5), which stated in part as follows:

VECP No. 1 is hereby approved as stated in the Contractor’s letter of 31 January 1973 * * *.
Any adjustment in the contract price resulting from the foregoing specification change will be established in accordance with the “VALUE ENGINEERING INCENTIVE” and the “CHANGES” Clause of this contract.

[766]*766Deliveries under contract C-1310 were originally scheduled to begin on December 1,1973, and end on February 1,1975. However, in November 1973 and January 1974, the plaintiff requested changes in the delivery schedule. As a result, on April 30,1974, the contracting officer issued Modification P00010 (Modification 10), which changed the first delivery date to March 1974 and the last to September 1975.2

On May 21, 1974, the plaintiff executed Modification P00011 (Modification 11), which established that the plaintiff was entitled to 50 percent of the instant contract savings resulting from VECP No. 1 and fixed a specific dollar amount. Modification P00012 (Modification 12), executed by the contracting officer on June 24, 1974, revised the computation made in Modification 11.

On July 28, 1976, the parties executed Modification P00023 (Modification 23), which established the per item or partial item amount for calculating future royalties and provided for future royalties in the amount of $216,150 under two subsequent contracts, C — 1124 and C — 1258, for items utilizing VECP No. 1. The contracting officer concluded that Modification 23 also established that the 2-year window for future royalty payments would begin on February 1, 1975, the last originally scheduled delivery date, and end on February 1, 1977. The contracting officer chose February 1, 1975, as the opening date because it was later than the date on which he concluded that the cost reduction proposal was accepted, June 28, 1973, this being the date when Modification 5 was executed. The contracting officer also used Modification 23 to correct an error which had occurred in the computation of instant savings under Modification 11.

In a letter to the contracting officer, the plaintiff subsequently sought royalty payments for items utilizing VECP No. 1 that were contracted for pursuant to contracts C-6147 and C-6160. Both contracts scheduled some deliveries for dates after February 1, 1977, determined by the contracting officer to be the termination date of the 2-year window which, according to the contracting officer, Modification 23 had established. Nevertheless, the plaintiff contended that it was entitled to royalty payments on all items utilizing VECP No. 1 which were ordered pursuant to contracts awarded during the 2-year window, irrespective of the scheduled delivery dates for the items.3 The plaintiff stated that the words “for delivery” in paragraph (j)(l)(ii) of contract C-1310 constituted merely a “non-essential subsidiary expression.”

The contracting officer, in a final decision dated January 3, 1978, rejected the plaintiff’s request for additional royalties, and stated that the Government would pay royalties only for “that quantity of items utilizing value Engineering Change Proposal No. 1 whose original delivery dates were no later than February 1977.” [Emphasis added.] On January 27, 1978, the plaintiff appealed the final decision to the Armed Services Board of Contract Appeals (ASBCA No. 22711).

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Bluebook (online)
31 Cont. Cas. Fed. 71,309, 2 Cl. Ct. 763, 1983 U.S. Claims LEXIS 1697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raytheon-co-v-united-states-cc-1983.