Lockheed Martin Aeronautics Company

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of -- )
)
Lockheed Martin Aeronautics Company ) ASBCA Nos. 62505, 62506
)
Under Contract Nos. FA8615-16-C-6048 )
FA8615-17-C-6045 )

APPEARANCES FOR THE APPELLANT: Stephen J. McBrady, Esq.
Skye Mathieson, Esq.
Michelle D. Coleman, Esq.
John Nakoneczny, Esq.
Crowell & Morning LLP
Washington, DC

APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq.
Air Force Chief Trial Attorney
Caryl A. Potter, Esq.
Christopher M. Judge-Hilborn, Esq.
Trial Attorneys

MAJORITY OPINION BY ADMINISTRATIVE JUDGE PROUTY

The question presented by these appeals is whether a unilateral contract
definitization 1 action by a contracting officer (CO) constitutes a government claim that
may be directly appealed to the Board by the contractor (as happened here), or whether it
is an act of contract administration, subject to a claim by the contractor, but not a direct
appeal. It turns out, we answered this question 33 years ago in Bell Helicopter Textron,
ASBCA No. 35950, 88-2 BCA ¶ 20,656, aff’d on mot. for recon., 88-3 BCA ¶ 21,048. In
that case, we held that such a unilateral contract definitization is not a government claim
and that, to obtain relief, the contractor must first file a claim with the CO and then
appeal to us if it is dissatisfied with the results. Appellant here, Lockheed Martin
Aeronautics Company (LM), is well aware of Bell Helicopter, but appealed the unilateral
definitization directly to us anyway, arguing that Bell Helicopter has been effectively, if
not expressly, overruled in the years since its issue. Judge Clarke, in dissent, agrees with
LM.

Though we certainly agree that the definition of “claim” and the universe of
actions subject to a claim has grown more liberal since the issuance of Bell Helicopter,

1 Contract definitization is the setting of a final price for a contract that was awarded
without a set price.
see, e.g., Todd Constr. v. United States, 656 F.3d 1306, 1311-12 (Fed. Cir. 2011), we
respectfully disagree with Judge Clarke’s conclusion that it has changed so much as to
effectively overrule that decision. That being the case, we must follow our prior
precedent, see SWR, Inc., ASBCA No. 56708, 15-1 BCA ¶ 35,832 at 175,220, and
continue to hold that a unilateral contract definitization does not constitute a government
claim and may not be directly appealed to us. The government motion to dismiss on
these grounds is granted.

STATEMENT OF FACTS FOR THE PURPOSES OF THE MOTION

Strictly speaking, the motion before us is a motion to dismiss for lack of
jurisdiction. The government submitted with its motion a statement of undisputed
material facts, in the style of a motion for summary judgment. Those proposed
facts – at least those which we find material to our decision today – may be gleaned
almost completely from LM’s complaint in this action.2 The salient ones are below.

These appeals involve two contracts in which the Air Force contracted with LM to
upgrade F-16 fighter aircraft on behalf of two different foreign governments pursuant to
the Foreign Military Sales program. Contract No. FA8615-16-C-6048 (the Singapore
contract) was entered in December 2015 and was for the purpose of upgrading the
avionics of F-16s owned by Singapore. Contract No. FA8615-17-C-6045 (the Korea
contract) was entered into in November 2016. (See compl. ¶¶ 1-2).

Each contract was an undefinitized contract action (UCA), meaning that the
contract was awarded before the final price was set (see compl. ¶ 2). In each case, LM
was entitled to charge the government for the costs that it incurred as it performed the
contract until it was definitized (see compl. ¶ 3). Each contract also included a “not to
exceed” (NTE) amount, which limited the costs that LM could incur before the contract
price was definitized (see compl. ¶ 17 (Singapore contract); ¶ 19 (Korea contract)).

The contract provisions governing definitization came from different sources for
each contract, though they were identical for our purposes. The relevant provision for the
Singapore contract came from the Federal Acquisition Regulation (FAR) 52.216-25(c);
the provision for the Korea contract came from the Department of Defense Supplement to
the Federal Acquisition Regulation (DFARS) 252.217-7027(c). (See compl. ¶ 5). Each

2 In a motion to dismiss for lack of jurisdiction, well-pleaded facts in the complaint are
generally treated as true unless controverted. See, e.g., Reynolds v. Army and Air
Force Exch. Svs., 846 F.2d 746, 747 (Fed. Cir. 1988).

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provided that, in the event the parties were unable to come to agreement upon the
definitized price within the time set by the contract:

the Contracting Officer may, with the approval of the head of
the contracting activity, determine a reasonable price or fee in
accordance with subpart 15.4 and part 31 of the FAR, subject
to Contractor appeal as provided in the Disputes clause. In
any event, the Contractor shall proceed with completion of
the contract, subject only to the Limitation of Government
Liability clause.

See compl. ¶ 10 (citing FAR 52.216-25(c); DFARS 252.217-7027(c)).

And, speaking of the Disputes clause, each contract included the same Disputes
clause, FAR 52.233-1, DISPUTES (MAY 2014) ALTERNATE I (DEC 1991)) (see
compl. ¶ 11; R4, tab 1 at 47 (Singapore contract); R4, tab 7 at 42 (Korea contract)).

LM submitted proposals for definitization of the contracts in a timely manner and
included cost data to support its proposals (see compl. ¶¶ 20-43 (Singapore contract);
¶¶ 47-65 (Korea contract)). Nevertheless, after a period of several years, the parties were
unable to come to agreement upon the contract prices and, on February 12, 2020, the CO
issued contract modifications to unilaterally set the price for each contract. In the case of
the Singapore contract, Modification No. PZ0010 unilaterally definitized the total project
price at $1,008,584,243 (see comp. ¶ 44). In the case of the Korea contract, Modification
No. PZ0012 unilaterally definitized the total project price at $970,462,643 (see compl.
¶ 66).

LM did not file a claim with the CO challenging these definitization actions.
Instead, on May 8, 2020, LM filed Notices of Appeal of each definitization action with the
ASBCA, stating that it was appealing directly from the government’s two unilateral
modifications. (See compl. ¶ 12). At the time of its submission of the appeals, LM
asserts, both contracts had over a year of performance remaining and in neither contract
had LM’s costs exceeded the unilaterally definititzed price set by the CO (see compl. ¶ 9).

The appeals have since been consolidated.

DECISION

I. Bell Helicopter is Dispositive (if it Remains Good Law)

As noted above, the government has moved to dismiss these appeals upon the
ground that LM has not filed claims with the CO challenging the two definitization
actions at issue. Without a decision upon claims to appeal, of course, there is no

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jurisdiction under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. Islands
Mechanical Contractor, Inc., ASBCA No. 59655, 17-1 BCA ¶ 36,721 at 178,809.

LM recognizes the need for a CO final decision for Board jurisdiction, but argues
that it has that in the CO’s definitization decision, which LM asserts is a government
claim against the contractor which may be directly appealed (see app. opp’n at 15-16
(citing Garrett v. Gen. Elec. Co., 987 F.2d 747, 749-50 (Fed. Cir. 1993))). Unfortunately
for LM, that argument was rejected by the Board in Bell Helicopter, where we held that a
“contracting officer’s decision [that] did no more than establish the contract price in
accordance with [the terms of the contract] did not amount to a government claim.” 88-2
BCA ¶ 20,656 at 104,392. The CO’s decisions challenged here, likewise, established the
contract price in accordance with the contracts’ terms, and are thus not government
claims – so long as Bell Helicopter remains binding.

II. Bell Helicopter Remains Good Law

As will be discussed herein, LM’s challenges to Bell Helicopter come in two
primary categories. The first is that the judicial expansion of the meaning of “other relief”
as a category of claim under the CDA, which happened subsequent to the Bell Helicopter
decision, now embraces definitization, making it a claim. 3 The second category of
challenge to Bell Helicopter is premised upon the notion that it was decided incorrectly in
the first place. Neither category of challenge is persuasive in the context we are operating
under here: our decision today is not based upon what we would do if we were working
on a blank slate and the Board had not issued Bell Helicopter; instead our decision – and
the analysis which we must undertake in addressing LM’s arguments – is premised upon
Bell Helicopter being the law, which we do not have the power to overrule. 4 Our

3 LM also argues that Bell Helicopter did not address whether definitization constituted
“other relief”, thus, technically, making it unnecessary for us to actually overrule
that decision (app. sur-reply at 4-8). Contrary to LM’s argument, Bell Helicopter
addressed whether the government seeks other relief when it definitizes prices by
expressly holding that the government did not seek any “recourse” when it
definitized prices. 88-2 BCA ¶ 20,656 at 104,392. In any event, we find that
LM’s argument cuts things too finely: the Bell Helicopter decision considered
whether a unilateral definitization was a government claim and found that it was
not; the “other relief” text was, of course, part of the CDA at the time and we
presume our predecessors were familiar with it, even if they did not explicitly cite
it. In any event, in dealing with the argument that the law on “other relief”
expanded post-Bell Helicopter, we largely deal with LM’s argument that the Bell
Helicopter panel ignored “other relief.”
4 To be clear, we do not mean to imply that, without Bell Helicopter, we would

necessarily rule in LM’s favor or that we disagree with the outcome of that case.
We do not reach those questions because, if Bell Helicopter remains the law (as

4
authority to disregard the holding of Bell Helicopter can only rest on its being directly
overruled by a body with the authority to do so, such as the Board’s own Senior Deciding
Group (SDG) 5 or the Federal Circuit, or its foundational underpinnings having been so
changed as to effectively overrule it. See Lighting Control Ballast, LLC v. Phillips Elecs.
N. Am. Corp., 744 F.3d 1272, 1282 (Fed. Cir. 2014), vacated on other grounds sub nom.
Lighting Control Ballast, LLC v. Universal Lighting Tech., Inc., 574 U.S. 1133 (2015); cf.
Patterson v. McLean Credit Union, 491 U.S. 164, 173 (1989).6

A. The Ascendance of “Other Relief” Does Not Sufficiently Change the Basis of
Bell Helicopter to Overrule it.

The decision that LM and Judge Clarke’s dissent argue is most salient to this appeal
is the Board’s SDG decision in Gen. Elec. Co., ASBCA Nos. 36005, 38152, 91-2 BCA
¶ 23,958, which was affirmed by the Federal Circuit in Garrett, supra (see app. opp’n
at 23-24). General Electric involved the CO’s direction to appellant to repair a number of
non-complying jet engines produced under the contract. Since the government’s demand
was nonmonetary, it had been argued that prior Board decisions requiring a monetary
aspect to a CO’s directive to make it a government claim – H.B. Zachry Co., ASBCA
No. 39202, 90–1 BCA ¶ 22,342, was the primary example – precluded that direction from
being a government claim. See Gen. Elec., 91-2 BCA ¶ 23,958 at 119,945-46. The SDG
decision overruled any such decisions, recognizing that “other relief” under the FAR’s
definition of “claim” embraced the CO’s directive to repair the engines and that any notion
of limiting government claims to ones specifically seeking money was wrong. Id.
at 119,946. The Federal Circuit’s opinion essentially agreed with this, holding that the
government’s direction to the contractor was a government claim despite its choice to
pursue a nonmonetary remedy. See Garrett, 987 F.2d at 749.

None of this directly addresses Bell Helicopter, about which the SDG was
conspicuously silent, despite its explicitly overruling of Zachry. See Gen. Elec.,
91-2 BCA ¶ 23,958 at 119,946. To be sure, Bell Helicopter was mentioned in one of the
three dissenting opinions in which it was included in a string cite for the proposition that
directions by contracting officers to perform additional work were not considered to be

we find that it is), there is no more reason to second guess it than any other
binding precedent.
5 The SDG is the way that the Board overturns its past precedents. See SWR, 15-1 BCA

¶ 35,832 at 175,220. It may be considered the equivalent of an en banc decision,
but it does not involve every member of the Board, just the most senior.
6 In footnote four of its sur-reply, LM cites four prior opinions of ours in support of its

assertion that we have routinely “jettisoned” our past precedent when the Federal
Circuit has “signal[led] a new jurisdictional trajectory” (app. sur-reply at 6, n.4).
That particular test is not to be found in any of our opinions. A change in
foundational underpinnings, the proper test, is different than a vague “signal.”

5
claims. See Gen. Elec., 91-2 BCA ¶ 23,958 at 119,947 (Spector, J., dissenting). But,
with due respect to that dissenting opinion, that alleged holding of Bell Helicopter’s is
not, in fact, an accurate representation of its actual holding, for the unilateral contract
definitization in Bell Helicopter entailed no requirement for additional work, and nothing
in Bell Helicopter is premised upon the notion that only monetary claims can be
government claims.

Judge Clarke argues that concerns expressed by the dissenters in General Electric
– that finding a government claim in those circumstances would unduly intrude into
contract administration – show that those concerns are now relegated to dissents. In other
words, they have been rejected by the winning side of that decision and the same
rejection should apply to Bell Helicopter, which is (supposedly) premised upon similarly
misplaced views of keeping the Board’s hands out of contract administration. But not
everything said in a dissent is necessarily wrong. Judge Williams’ concurring opinion in
General Electric shared the dissenters’ “legitimate concern that the Board not become
embroiled in matters that are primarily contract administration.” Gen. Elec., 91-2 BCA
¶ 23,958 at 119,947. He, nevertheless, found that the circumstances in General Electric
did not go too far into such administration. Id. Indeed, the Federal Circuit’s opinion in
Garrett recognized the problematic aspects of judicial intrusion into contract
administration, but, like Judge Williams (with whom it agreed), found them to be
inapplicable to the circumstances presented in that appeal, given, inter alia, that contract
performance was already complete at the time the government revoked its acceptance of
the jet engines and required the contractor to fix them. Garrett, 987 F.2d at 751-52.

Hence, in and of themselves, neither General Electric nor Garrett overruled Bell
Helicopter, either explicitly or implicitly. Moreover, they did not appreciably change the
legal terrain regarding “other relief” as a basis for government claims. As the SDG
opinion in General Electric noted, the Board had ample past precedent prior to that case
(and Bell Helicopter) in which the Board found the government’s availing itself of other
relief constituted a claim. Gen. Elec., 91-2 BCA ¶ 23,958 at 119,944-45 (citing cases).

LM argues that the Federal Circuit’s more recent decision in Todd Construction,
supra, further opened up the definition of claim so as to embrace a definitization action.
A more accurate reading of Todd Construction would be to say that it opened up the
matters that could be subject to claims. Importantly, Todd Construction did not hold that
the challenged performance evaluations 7 were, themselves, government claims; rather, it
held that seeking relief from those evaluations was the proper subject of a claim. See
Todd Constr., 656 F.3d. at 1313-14. This, we think, is key: it is not that every written
action in the course of a contract that a party considers to be adverse to it is a claim;

7 The issue in Todd Construction was whether the CDA permitted a contractor to file a
claim challenging contractor performance reports. The Federal Circuit decided
that it did. See 656 F.3d. at 1313-14.

6
instead, it is the seeking of relief from those actions that is the claim. The Federal Circuit
in Todd Construction never concluded that the performance evaluations were,
themselves, government claims. Id.

And it is a very good thing for the private contracting community that Todd
Construction did not do so: if an adverse performance evaluation were, in fact, a
government claim, then a contractor would be subject to the CDA’s statute of limitations
to appeal it to the Board or the Court of Federal Claims. See 41 U.S.C. § 7104. Does
Todd Construction really mean that, in all acts of contract administration by the
government that the contractor may later dispute, the contractor must immediately vault
to the courthouse door prior to filing its own claim or risk losing its appeal rights? Under
LM’s reading of the case, it must. 8 But we think not. Instead, the CDA, sensibly, gives
the contractor ample time to decide whether to file a claim in the first instance (6 years,
see 41 U.S.C. § 7013(a)(4)), and a much shorter period of time after the claim is denied
(90 days for appeals to the Board; a year for appeals to the Court of Federal Claims) to
appeal the claim denial. 41 U.S.C. § 7104. To its credit, Todd Construction did not
change this.

LM cites a number of other types of appeal which do not, in and of themselves,
expand the definition of “claim” but that it argues are the “progeny” of General Electric
and, by analogy, suggest the definitization here must be a claim (see generally, app.
opp’n at 18-19; 25-42). To put it slightly differently, LM’s argument is that, “if these
other things are government claims, surely a contract definitization must be.” We
generally question whether argument by analogy is sufficiently direct to cause us to
recognize that one of our precedential opinions had been since overturned by our
reviewing court. But, in any event, the analogous cases cited by LM are all
distinguishable from contract definitization or were taken into consideration by the Board
when Bell Helicopter was issued, thus precluding their use as bases to set aside that case.

8 Perhaps LM might argue here that, since performance evaluations and other such CO
actions do not include appeal rights, they are not necessarily government claims
unless the contractor wishes them to be. But such an argument would both be
contrary to the position it is taking in this appeal, that a decision may be a
government claim even if the appeal rights are left off (see app. opp’n at 47), and
be mistaken. We have long held that CO final decisions with defective notification
of appeal rights can, nevertheless, be considered valid and not toll the statute of
limitations – in particular, when the contractor has not detrimentally relied on the
defective notification. See Mansoor Int’l Dev. Servs., ASBCA No. 58423, 14-1
BCA ¶ 35,742 at 174,926; cf. Decker & Co v. West, 76 F.3d 1573, 1579-80 (Fed.
Cir. 1996). This law does not provide room for the contractor to pick and choose
which CO’s decisions were ripe for appeal and which it would prefer to let lie and
perhaps later submit a claim upon.

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 The first set of “analogous” cases cited by LM are a number involving the use of
the contract’s inspection clause by the government to direct the contractor to do new
work on the contract (see app. opp’n at 25-28). These cases are all similar to General
Electric and present similar fact patterns. Inasmuch as we have already discussed
General Electric above, and find that it does not change the viability of Bell Helicopter,
we may dispose of these arguments out of hand: the cases cited all involved directing the
contractor to incur additional costs of performance – that has not happened here.
0
LM next argues that cost accounting standard (CAS) non-compliance
determinations, which are government claims, are similar to the definitization here (app.
opp’n at 28-32). In support of this conclusion, LM relies principally on one of our
opinions: CACI Int’l, Inc., ASBCA No. 57559, 12-1 BCA ¶ 35,027, and a Court of
Federal Claims opinion cited in CACI, Newport News Shipbuilding & Dry Dock Co. v.
United States, 44 Fed. Cl. 613 (1999) (see app. opp’n at 28-30). Those cases stand for
the (hardly novel) proposition that a CAS non-compliance determination, which imposes
the cost of a new accounting system on the contractor, is a government claim. See CACI,
12-1 BCA ¶ 35,027; Newport News, 44 Fed. Cl. at 616-17. LM asserts that a unilateral
cost definitization is like a non-compliance finding because it will “invariably forc[e] cost
overruns down the road” (app. opp’n at 28).

That is quite some assertion. Especially given how foundational it is to LM’s
argument. Absent a claim by the contractor, we have no way of knowing whether the
particular price definitization imposed by the government will force later cost overruns in
a particular case, much less whether any and all unilateral definitizations would
“invariably” cause such overruns. 9 In any event, it is safe to say that the reasoning in
CACI did not overturn Bell Helicopter and that neither it, nor Newport News, a case in a
court that is not binding upon us, could have overturned Bell Helicopter in any event.

We also note that CACI is not the first case of ours finding a CAS non-compliance
finding to be a government claim. In 1983, five years before Bell Helicopter, we came to
that very conclusion in Brunswick Corp., ASBCA No. 26691, 83-2 BCA ¶ 16,794,
obviating LM’s suggestion that there was any change in law supporting setting aside Bell
Helicopter.10

9 LM asserts in its complaint that it is being wronged by tens of millions of dollars (see
comp. ¶¶ 73, 80), but it does not argue that such figures may be found in the CO’s
definitization decision or that all unilateral priced definitizations will “invariably”
cause cost overruns.
10 Newport News, the Court of Federal Claims case cited by LM here, also relied upon

one of the Board’s pre-Bell Helicopter decisions for its holding that CAS
non-compliance findings could constitute government claims. 44 Fed. Cl. at 616
(citing Systron Donner, Inertial Div., ASBCA No. 31148, 87-3 BCA ¶ 20,066).

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 Equally meritless is LM’s argument that cases holding terminations for default to
be government claims necessarily overturned Bell Helicopter (see app. opp’n at 32-34).
This holding was the law prior to Bell Helicopter, and was indeed discussed by the panel
that considered Bell Helicopter, and dismissed by it. See 88-2 BCA ¶ 20,656 at 104,392.
It is not a basis to argue that the law has changed since we issued the Bell Helicopter
decision.

LM’s penultimate argument by analogy is to compare the present circumstances to
data rights claims, in which the government’s ordering the removal of restrictive data
rights markings (or its unilateral removal of such markings), which we have held
constitutes a government claim (see app. opp’n at 34-38). First, as LM recognizes, such
data rights issues were recognized as government claims even before Bell Helicopter, see,
Bell Helicopter Textron,11 ASBCA No. 21192, 85-3 BCA ¶ 18,415 (cited by app. opp’n
at 37), and were cited immediately after it. See Ford Aerospace & Comms. Corp.,
ASBCA No. 29088, 88-2 BCA ¶ 20,748 at 104,829 (cited by app. opp’n at 37). Indeed,
two of the three judges who signed Bell Helicopter (Spector, J., and Ruberry, J.) also
signed Ford Aerospace, so it is rather clear that the consideration of the data rights
actions to be government claims is not a change to the law since Bell Helicopter,
indicating that its time has passed. Moreover, the data rights cases are easily
distinguishable from the definitization we are dealing with here: perhaps there had been
no monetary impact by the government’s arrogation of contractor-owned data rights, but
they involved the taking of property from the contractor by the government – a wrong
that was ripe for relief. The unilateral contract definitization, however, as the Bell
Helicopter Board put it, sought nothing from the contractor and merely established the
price as required by the contract. See 88-2 BCA ¶ 20,656 at 104,392. The two types of
cases are consistent – and are certainly not so inconsistent as to compel the reversal of
Bell Helicopter.

LM’s final argument by analogy is that the government’s unilateral establishment
of indirect cost rates constitutes a government claim, which would mean that the
government’s unilaterally establishing the contract’s price should also be a government
claim (app. opp’n at 38-42). In some ways, this is LM’s strongest argument because
there are commonalities in the circumstances – namely that the government is setting a
price for a portion of contract performance that is different than what the contractor
requested. But there are reasons that it is not dispositive.

First, LM’s brief rests largely on an interpretation of our decision in Fiber
Materials, Inc., ASBCA No. 53616, 07-1 BCA ¶ 33,563, which, LM argues,
demonstrates that unilateral indirect cost rate determinations by the CO may be directly

11This is not to be confused with the appeal which is central to our opinion today, though
it does bear the same name.

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appealed as non-monetary claims 12 (see app. opp’n at 38-41). But Fiber Materials
(issued in 2007) did not see itself as plowing new ground. Instead, in rather summary
form, it plainly stated that, “[t]he government’s disallowance of appellant’s indirect costs,
as reflected in the ACO’s unilateral rate determination, and her imposition of penalties,
are government claims subject to appeal under the CDA” and cited four prior Board
decisions in support of that holding – every one of them pre-dating Bell Helicopter.
See 07-1 BCA ¶ 33,563 at 166,251 (citing cases). Thus, the notion that the unilateral
setting of indirect cost rates constitutes a government claim is longstanding and not a
change to the legal landscape after Bell Helicopter. Indeed, as discussed at length above,
Bell Helicopter does not rest on the price definitization being a non-monetary claim.
Hence, LM’s fixation on Fiber Materials’ allowance of a non-monetary government
claim is of far less moment than LM appears to think.

Moreover, on the merits, the CO’s unilateral establishment of indirect cost rates,
coming, as it must, after provisional billing and payment for indirect costs is different
than unilateral price definitization when already-incurred costs have been paid, but the
definitive price has not. The former almost always will entail a refund to the
government, even if the amount is not necessarily calculated by the CO and demanded at
the time she or he issues their decision establishing the rate. To be sure, LM has
proposed a hypothetical in which it is possible that the contractor’s rejected indirect cost
rates were higher than those for which it billed, thus leading to the imposition of rates
lower than it requested, but equal to the amount that it had billed such that no money was
owed to the government (see app. opp’n at 41), but that strikes us as highly unlikely and
none of the cited cases show that to have actually occurred and been held to be a
government claim. Perhaps it might happen on rare occasion, but the general character of
a unilateral indirect cost rate determination by the government is the taking away of
money expected by the contractor. 13

12 LM’s brief makes the statement that Fiber Materials clarified that such claims “must”
be non-monetary (app. opp’n at 39). We do not follow this argument. There is no
reason apparent to us that a CO decision unilaterally setting indirect cost rates
could not also expressly demand the return of a sum certain from the contractor.
13 The government did not address unilateral rate determinations in its reply brief and this

issue was not addressed by LM, so we make the following observation without the
benefit of argument: we note that, under the FAR provision governing Fiber
Materials, FAR 52.216-7(d)(4), a disagreement about rates is considered a
contract dispute, subject to the Disputes clause, see 07-1 BCA ¶ 33,563 at 166,235
(quoting the FAR), while the law tells us that the CO’s deciding a unilateral rate
(presumably after the disagreement) is the subject of the claim. The clauses
governing unilateral price definitization here do not refer the parties to the
Disputes clause until after the CO has issued her or his determination. See
FAR 52.216-25(c) and DFARS 252.217-7027(c). Thus, though we do not

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 B. Arguments That We Have Ruled Contrary to Bell Helicopter Are Mistaken

Judge Clarke argues that prior opinions of ours have held that definitization
actions are government claims, thus reflecting the Board’s determination that Bell
Helicopter is no longer good law. We have not so found.

The primary case discussed by Judge Clarke for this proposition is Litton Sys.,
Inc., Applied Tech. Div., ASBCA No. 49787, 00-2 BCA ¶ 30,969, which he characterizes
as stating that a unilateral determination constituted a government claim. To be sure, if
Litton said as much, we would be facing a very different legal terrain! But it does not.
The 2000 opinion cited by Judge Clarke, in fact, is merely reporting the result of a 1993
decision in the same case on a motion to dismiss. See Litton Sys., Inc., Applied Tech.
Div., ASBCA No. 49787, 93-2 BCA ¶ 25,705. The 1993 opinion did not hold that a
unilateral determination was a government claim; rather, it held that in a case involving a
firm fixed price contract, a unilateral reduction in the price, requiring the return of money
by the contractor, constituted a government claim. This is consistent with our view of the
law, which is that CO decisions requiring the return of money to the government
(somewhat like was seen in General Electric, where it was a possibility), are government
claims. Again, this does not affect the continued viability of Bell Helicopter. If it did,
we would have expected the case to have been referenced in Litton, but it was not.

C. Arguments That Bell Helicopter was Decided Incorrectly are Unhelpful

A number of the arguments advanced by LM and Judge Clarke are premised,
either explicitly or implicitly, upon the notion that the Board erred in the first instance
when it issued Bell Helicopter. No matter how compelling such arguments might be to
the persons advancing them, they are not helpful to us today. As discussed above, being
bound by precedent means that we do not afford ourselves the power to second-guess our
prior opinions, but only to determine whether they, or their legal underpinnings, have
been overruled since they were issued.

One example of LM’s implicitly arguing that Bell Helicopter was incorrectly
decided is its reliance on the portion of the FAR governing definitizations and that
provision’s referring the parties to the Disputes clause as a means for the contractor to
appeal. This, LM argues, indicates that the FAR Council intended the contractor to have
the right to direct appeal to the Board in the event of a unilateral definitization action.
(See app. opp’n at 9). The problem with this argument is that our predecessors who
wrote Bell Helicopter faced circumstances involving an almost identical clause providing
recourse to the Disputes clause. See Bell Helicopter, 88-2 BCA ¶ 20,656 at 104,392. If

necessarily see this as dispositive, the two contracting actions may not be treated
quite so much alike as LM argues.

11
that clause did not cause our predecessors to question their result, it would be
disingenuous of us to find that it provided a basis for revisiting the opinion now.

LM also argues throughout its motion that the CO’s decision here is an
“adjustment or interpretation of contract terms” (app. opp’n at passim). But, again, that
argument was squarely rejected by both the original Bell Helicopter decision and the
decision denying the contractor’s request for reconsideration. See 88-2 BCA ¶ 20,656
at 104,392; Bell Helicopter Textron, 88-3 BCA ¶ 21,048 (denial of request for
reconsideration). And for that reason, we continue to reject it here: nothing has changed
justifying a different result.

Moreover, we reject LM’s request, made in a footnote (app. opp’n at 48, n.19), to
permit a “protective appeal” in a matter over which we possess no jurisdiction. We are
confident that LM has the means and the time to submit a claim it deems appropriate
before the expiration of the statute of limitations.

CONCLUSION

For the reasons discussed above, we are unpersuaded that the holding of Bell
Helicopter, that a unilateral contract definitization is not a government claim, has been
overturned or that its legal underpinnings have been sufficiently eroded as to effectively
overrule it. Accordingly, we dismiss these appeals for lack of jurisdiction because LM
has submitted no claims to the CO for final decision.

Dated: June 24, 2021

J. REID PROUTY
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals

(Signatures continued)

12
I concur I concur

RICHARD SHACKLEFORD JAMES SWEET
Administrative Judge Administrative Judge
Acting Chairman Armed Services Board
Armed Services Board of Contract Appeals
of Contract Appeals

I concur I dissent (see attached opinion)

BRIAN S. SMITH CRAIG S. CLARKE
Administrative Judge Administrative Judge
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals

13
 JUDGE CLARKE’S DISSENTING OPINION

I respectfully dissent. I was the original judge assigned to this appeal and drafted
the decision with which my colleagues disagree. Rather than appending my entire draft
decision as my dissent as I have done before, I present only a portion thereof.

Bell did not Consider “Other Relief”

This appeal involves the question of if a government unilateral definitization of an
Undefinitized Contract Action (UCA) is a government claim supporting Board jurisdiction
similar to a termination for default. The majority cites Bell Helicopter Textron, ASBCA
No. 35950, 88-2 BCA ¶ 20,656, aff’d on mot. for recon., 88-3 BCA ¶ 21,048 to justify
denying jurisdiction. Bell does indeed hold that a unilateral definitization of a UCA is not
a government claim. In Bell we held the unilateral definitization was routine contract
administration and not a contract adjustment. Aside from the fact I do not agree with that
holding, I rely on the Disputes Clause, FAR 52.233-1 that defines a claim as a written
demand or written assertion by one of the contracting parties seeking, as a matter of right,
the payment of money in a sum certain, for the adjustment or interpretation of contract
terms, or other relief arising under or relating to this contract. In Bell this Board based its
decision on only the first two elements of a claim:

The contracting officer’s decision was not premised on an
issue of contract interpretation or adjustment. Instead, the
contracting officer’s action was the initial establishment of
the contract price pursuant to Clause H–1.

(Bell, 88-2 BCA ¶ 20,656 at 104,392). This Board did not analyze H-1, or consider
“other relief arising under or relating to this contract.” It seems to me that this omission
in the 1988 decision limits Bell’s scope and leaves the door open for this Board to
consider if a unilateral definitization is a government claim based on, “other relief arising
under or relating to this contract.” If my colleagues had allowed such consideration, I
believe we would have found jurisdiction based on “other relief.” This approach would
leave Bell intact but limit it to consideration of “contract interpretation or adjustment.”
Our decision in this appeal by Lockheed Martin (LM) would allow our jurisdiction over a
unilateral definitization as “other relief” relating to the contract and not conflict with Bell.

Bell Has Not Been Followed

In addition to my primary argument stated above, I trace the evolution of case law
in this area concluding that unilateral definitization of a UCA is a government claim. I
believe Bell was wrongly decided and rightly ignored over the last 40 years. Bell relies
on a finding that unilateral definitization of a UCA is a matter of routine contract
administration, like appointing a new Contracting Officer’s Representative (COR).

14
Unilateral Definitization is not routine contract administration. It is the contracting
officer, after reaching an impasse on price, unilaterally imposing a lower contract price
on a contractor. See Bell, 88-2 BCA ¶ 20,656 at 104,392 quoted below. Because
unilateral definitization is not routine contract administration, it is an “adjustment of
contract terms” as envisioned by the Disputes Clause. I understand that bad decisions
may never-the-less be binding law, but I am not inclined to resurrect Bell after 40 years
of conflicting treatment to affirm its bad decision as good law today.

Developing Case Law

The parties, particularly LM, cited numerous cases and made alternative
arguments. I selected cases cited by the parties that represent the development of the law
in this area and discuss them in chronological order to understand where the somewhat
chaotic jurisdictional case law is today. I agree with LM that “the modern interpretation
of a CDA-cognizable “claim” is “broad” and “expansive” which supports my argument.

I start where the Air Force (AF) starts in its motion to dismiss, with the March 21,
1988 decision in Bell Helicopter Textron, ASBCA No. 35950, 88-2 BCA ¶ 20,656, aff’d
on mot. for recon., 88-3 BCA ¶ 21,048. In Bell we dealt with its appeal of the AF’s
unilateral definitization of a UCA with which Bell disagreed. We held that the unilateral
definitization was not a government claim but an initial establishment of the contract
price required by the contract:

On 13 September 1985, appellant was awarded subject
Advance Acquisition Contract (AAC) for the production of
certain aircraft and associated data and support. Clause H–1
of the contract provided that the parties would promptly enter
negotiations to definitize the contract price. The clause
further provided that “the Contracting Officer may, with the
approval of the Head of the Procuring Activity, determine a
reasonable price in accordance with Federal Acquisition
Regulation subject to appeal by the Contractor as provided in
the ‘Disputes’ clause of the contract.” After nearly two years
of negotiations, the contracting officer, on 30 September
1987, issued a unilateral modification establishing a total
contract price of $79,076,088 (later amended to $76,463,678).
In an accompanying cover letter, the contracting officer stated
that the unilateral modification was his final decision and
advised the contractor of its appeal rights.

....

15
 Appellant argues further that the contracting officer’s
decision was a Government claim in that it was a written
assertion that “sought ‘as a matter of right’ ... pursuant to
Clause H–1 of the contract ... ‘the adjustment or interpretation
of contract terms....’” We disagree. The contracting officer’s
decision was not premised on an issue of contract
interpretation or adjustment. Instead, the contracting officer’s
action was the initial establishment of the contract price
pursuant to Clause H–1. The contracting officer was merely
performing the duty prescribed by the contract when the
parties failed to reach agreement on a price. Again, the
contracting officer’s action did not amount to a Government
claim.

(Bell, 88-2 BCA ¶ 20,656 at 104,392). This is the case the AF relies upon in support of
its motion. Significantly, the Board’s analysis of H-1 relies on “contract interpretation or
adjustment” but fails to consider the third element of a claim / jurisdiction in the Disputes
Clause, FAR 52.233-1(c), “or other relief arising under or relating to this contract.” As
argued above, I believe this is a fatal omission from the analysis of H-1 in view of the
subsequent decisions that increasingly rely on this third element of jurisdiction and the
fact that Bell has not been followed in 40 years of subsequent decisions.

On June 16, 1988, the Court of Appeals for the Federal Circuit (CAFC) issued
Malone d/b/a/ Precision Cabinet Co. v United States, 849 F.2d 1441 (Fed. Cir. 1988)
where the Court held that a termination for default was a government claim: “This case,
however, concerns a government claim against a contractor. Caselaw supports the
proposition that a government decision to terminate a contractor for default is a
government claim (Case Cites Omitted).” Malone, 849 F.2d 1441, 1443. This
unremarkable decision that a termination for default is a government claim is used later in
our case analysis to expand the Board’s jurisdiction. See Appeals of General Electric
Company and Bayport Construction Corporation, ASBCA Nos. 36005, 38152, 39696,
91-2 BCA ¶ 23,958.

On March 21, 1998, the ASBCA issued LTV Aerospace and Defense Co., ASBCA
No. 35674, 89-2 BCA ¶ 21,858 where the Armed Services Board of Contract Appeals
(ASBCA or “Board”) held that a unilateral price reduction pursuant to an Economic Price
Adjustment Clause was a government claim. The Board distinguished the Board’s
decision in Bell:

Further, unilateral reduction of the contract price pursuant to
an EPA clause is analagous to cases concerning alleged
defective cost or pricing data in which the Government seeks

16
 a contract price reduction. We have held that those cases
involve a Government claim, not a contractor claim.

The Government’s reliance on Bell Helicopter Textron,
ASBCA No. 35950, 88-2 BCA ¶ 20,656, aff’d on mot. for
recon, 88-3 BCA ¶ 21,048 is misplaced. In that case, the
contracting officer unilaterally definitized the total contract
price because a clause in the contract required him to do so.
In that case, we specifically found that “the Government has
not and is not seeking any recourse or payment from
appellant.” 88-2 BCA ¶ 20,656 at 104,392. In this case, the
Government by final decision unilaterally reduced the
contract price by $914,830 and subsequently, by
modification, deobligated contract funds by that amount.

(LTV, 89-2 BCA ¶ 21,858 at 109,951). I see that the Board relied on a sum certain price
reduction and deobligation of that amount to support its finding of a government claim.
This view of what constitutes a government claim is relaxed in later decisions.

On September 29, 1989, the ASBCA issued H.B. Zachry Co., ASBCA No. 39202,
90-1 BCA ¶ 22,342 where the Board held that a government order that Zachry replace or
repair defective piping was not a government claim because the government did not
demand payment for the defective work. Zachry, 90-1 BCA ¶ 22,342 at 112,287. As I
explain below, the Senior Deciding Group (SDG) overruled Zachry. I include it to show
the Board’s change in thinking over time.

On April 23, 1991, the ASBCA SDG issued Appeals of General Electric Company
and Bayport Construction Corporation, ASBCA Nos. 36005, 38152, 39696, 91-2 BCA
¶ 23,958 where the SDG held that contracting officer’s direction to the contractor to
correct or replace previously accepted contract work because of alleged latent defects,
and not demanding or asserting any right to the payment of money is a government
claim:

A demand for refund of part of the contract price in the
present cases would indisputably have represented seeking
“the payment of money in a sum certain”—the first category
of “claim.” The parallel, alternative remedy elected by the
Government instead—a direction to correct or replace the
defective work at no increased cost—seems to us to fall
squarely within the parallel third category of “claim”
recognized by the FAR and Disputes clause definitions: i.e.,
“other relief arising under ... the contract.” We see no reason
to treat such a demand for correction or replacement under

17
 the Inspection clause, absent a demand for monetary relief,
any differently for jurisdictional purposes than a termination
for default under the standard Default clause, long recognized
as a proper Government claim before there is any monetary
claim by either party, as discussed earlier, or any differently
than the various kinds of nonmonetary Government claims
we discuss in III below.

(General Electric, 91-2 BCA ¶ 23,958 at 119,944). Unlike Bell, the SDG relied on the
third type of claim “other relief” as do I. In its decision the SDG “overruled” Zachry:

To the extent that Zachry suggests either (i) narrowly, that a
Government demand for correction or replacement of
accepted contract work because of alleged latent defects, in
lieu of demanding payment for unsatisfactory work, is not the
proper subject of a contracting officer’s decision asserting a
Government claim, or (ii) more broadly, that there can be no
nonmonetary Government claims apart from default
terminations, it conflicts both with the FAR 33.201 definition
of the term “claim” and with the decisions of this Board
recognizing various kinds of nonmonetary Government
claims other than terminations for default (discussed in III
above).

....

To the extent any part of the decision in Zachry is
inconsistent with the holdings herein, it is overruled.

(General Electric, 91-2 BCA ¶ 23,958 at 119,946). There was one concurring decision
by Judge Williams and three dissenting decisions by Judges Spector, Gomez and
Riismandel. Judge Williams wrote in part:

While I share the dissenting judges’ legitimate concern that
the Board not become embroiled in matters that are primarily
contract, administration it is my opinion that revocation of
“final acceptance” can, and under the circumstances of these
appeals does, exceed the bounds of ordinary contract
administration resulting in a Government claim under the
FAR DISPUTES clause definitions. To hold otherwise
would, in my view, unduly restrict the interpretation of the
disputes clause definition of claims for “other relief arising
under or relating to the contract.”

18
(General Electric, 91-2 BCA ¶ 23,958 at 119,947). Dissenting Judge Spector cited Bell
Helicopter Textron, ASBCA No. 35950, 88-2 BCA ¶ 20,656, aff’d on mot. for recon.,
88-3 BCA ¶ 21,048 and argues General Electric “smack[s]” of contract administration:

Under our precedents the direction of the contracting officers
to perform the alleged extra work, even if designated a “final
decision,” would not be a Government claim. H.B. Zachry
Co., ASBCA No. 39202, 90–1 BCA ¶ 22,342; Winding
Specialists Co., Inc., ASBCA No. 37765, 89–2 BCA ¶ 21,737.
See also, Woodington Corporation, ASBCA No. 37272, 89–2
BCA ¶ 21,602; Bell Helicopter Textron, ASBCA No. 35950,
88–2 BCA ¶ 20,656, motion for recon. denied 88–3 BCA ¶
21,048. As stated in H.B. Zachry Co., supra, “This is a classic
case where a contractor should perform the work and file a
claim.”

(General Electric, 91-2 BCA ¶ 23,958 at 119,947). Dissenting Judges Gomez and
Riismandel also express concern over extending claims jurisdiction to matters of contract
administration. (General Electric, 91-2 BCA 23,958 at 119,948-949). This idea of not
extending claims jurisdiction over contract administration is precisely the theory
employed in Bell and is relegated to the dissent in General Electric.

The SDG’s decision in General Electric was appealed to the CAFC. On February
24, 1993 the CAFC issued Garrett v. General Electric Co., 987 F.2d 747 (Fed. Cir. 1993)
where the Court affirmed Appeals of General Electric Company and Bayport
Construction Corporation, ASBCA Nos. 36005, 38152, 39696, 91-2 BCA ¶ 23,958
holding that nonmonetary direction to correct or replace defective engines constitutes
“other relief” supporting Board jurisdiction:

The Navy directed GE to correct or replace the defective
engines. Under the contract, the Navy had three options. It
could have reduced the contract price or demanded repayment
of an equitable portion of the contract price. Rather than seek
these monetary remedies, the Navy chose “other relief arising
under ... the contract.” The Navy’s alternative to a monetary
remedy—the directive to correct or replace defective
engines—constitutes “other relief” within the FAR’s third
category of “claims.” Thus, the regulations, GE’s contract,
and the facts of this case suggest that the Navy’s choice of
relief—a substitute for monetary remedies—fit within the
CDA concept of “claim.” Accordingly, the Board correctly

19
 determined its jurisdiction to adjudicate this Government
claim.

(Garrett, 978 F.2d 747 at 749). The CAFC’s affirmance of the SDG’s reliance on “other
relief” to support our jurisdiction over government direction to replace defective engines
supports my belief that a unilateral definitization is likewise a government claim.

On August 12, 1996, the ASBCA issued Outdoor Venture Corp., ASBCA
No. 49756, 96-2 BCA ¶ 28,490 that involved the government’s demand that Outdoor
Venture repair or replace non-conforming tents that had already been accepted pursuant to
the contract’s warranty clause. Outdoor Venture appealed to this Board. The government
moved to dismiss for lack of jurisdiction contending that the CO had not issued a final
decision. In its decision holding that the demand pursuant to the warranty clause was a
government claim, this Board commented on SDG’s and CAFC’s decisions in General
Electric:

We construed this regulation in General Electric Co.,
ASBCA Nos. 36005, 38152, 91-2 BCA ¶ 23,958, aff’d
987F.2d 747 (Fed. Cir. 1993). There, we held that a
Government direction to a contractor to correct or replace
work allegedly containing latent defects was appealable
because it constituted a CDA claim, rather than merely being
a matter of contract administration. More specifically, the
Board ruled that such Governmental demands fell into the
FAR 33.201 category of claims “related to” the contract.
Because the decision asserting the claim was issued by the
contracting officer, involved each party’s rights under the
contract, and was adverse to the contractor, we found that the
CDA’s jurisdictional requirements were satisfied.

For similar reasons, we conclude that the Government’s
demand that OVC proceed with the warranty work constitutes
a Government claim. Accordingly, OVC may waive the other
defects contained in the letter of 15 April 1996.

(Outdoor Venture, 96-2 BCA ¶ 28,490 at 142,273)

On May 28, 1999, the CAFC issued Alliant Techsystems, Inc. v. United States,
178 F.3d 1260 (Fed. Cir. 1999) where the Court, relying on its decision in Garrett v.
General Electric Co., 978 F.2d 747, held that the Court of Federal Claims had

20
jurisdiction over a request for declaratory judgment that an option exercise was invalid.
The CAFC discussed its decision in Garrett:

In the Garrett case, the contracting officer directed General
Electric to correct or replace certain allegedly defective
engines after the engines had been accepted and certain latent
defects had appeared. The Board of Contract Appeals treated
the contracting officer’s directive as a “claim” over which the
Board of Contract Appeals had jurisdiction, and this court
agreed. The court’s analysis in Garrett is inconsistent with
the government’s theory of this case, since General Electric
could have performed as directed and sought monetary
compensation for its work afterwards. Instead, the court held
that the nonmonetary claim provided a viable basis for board
jurisdiction. Since the court further held that board
jurisdiction is in “parity” with the jurisdiction of the Court of
Federal Claims, the Garrett case stands for the proposition
that nonmonetary claims are not outside the jurisdiction of the
Court of Federal Claims simply because the contractor could
convert the claims to monetary claims by doing the requested
work and seeking compensation afterwards.

(Alliant Techsystems, 178 F.3d 1260, 1270). Again the CAFC affirms that nonmonetary
claims support jurisdiction, this time at the Court of Federal Claims.

On April 28, 2000, the ASBCA issued Litton Systems, Inc., Applied Technology
Division, ASBCA No.49787, 00-2 BCA ¶ 30,969 where the Board held it had jurisdiction
over Litton’s (ATD) claim because it was filed in response to a government nonmonetary
claim:

The Government moved to dismiss ATD’s allegations of
additional work for lack of jurisdiction because no claim had
been submitted to the contracting officer. We found that
ATD’s allegations of additional work were raised only as a
defense to the Government’s unilateral definitization of the
4436 Contract and were sufficiently intertwined with the
Government’s claim for a reduction of the contract price to
fall within the scope of our jurisdiction.

(Litton Systems, 00-2 BCA ¶ 30,969 at 152,834). Here the Board expanded its
jurisdiction over a government nonmonetary claim for unilateral definitization, to cover a
monetary claim by Litton that was not presented as a claim to the CO for a final decision.

21
More importantly for our purposes, the Board held that unilateral definitization was a
government claim.

On August 29, 2011, the CAFC issued Todd Construction v. United States,
656 F.3d 1306 (Fed. Cir. 2011) where the Court affirmed the Court of Federal Claims
jurisdiction over a Corps of Engineers performance evaluation:

Todd Construction, L.P. (“Todd”) is a government contractor.
Todd filed suit in the Court of Federal Claims (“Claims
Court”) under the Tucker Act, 28 U.S.C. § 1491, and the
Contract Disputes Act (“CDA”), 41 U.S.C. § 601 et seq.,
alleging that the United States Army Corps of Engineers (the
“government”) gave it an unfair and inaccurate performance
evaluation. The Claims Court held that the CDA provided it
with subject matter jurisdiction over such a claim, but
dismissed Todd’s complaint for lack of standing and failure to
state a claim. Todd Constr., L.P. v. United States, 85 Fed.Cl.
34 (2008) (“Todd I”); Todd Constr. L.P. v. United States,
88 Fed.Cl. 235 (2009) (“Todd II”); Todd Constr. L.P. v.
United States, 94 Fed.Cl. 100 (2010) (“Todd III”). We affirm
both the Claims Court’s determination that it had jurisdiction
under the CDA and its dismissal of Todd’s complaint on the
grounds of lack of standing and failure to state a claim.

....

Not only is the term “claim” broad in scope, the “relating to”
language of the FAR regulation itself is a term of substantial
breadth. The term “related” is typically defined as
“associated; connected.”

....

As we made clear in Applied Companies, CDA jurisdiction
exists when the claim has “some relationship to the terms or
performance of a government contract.” 144 F.3d at 1478
(emphasis added) [footnote omitted]. A contractor’s claim
need not be based on the contract itself (or a regulation that
can be read into the contract) as long as it relates to its
performance under the contract [Footnote omitted].

(Todd, 656 F.3d 1306, 1312, 1314). Jurisdiction over performance ratings must mark the
outer boundary of our jurisdiction over non-monetary government claims.

22
 On May 31, 2017, the Court of Federal Claims issued L-3 Communications
Integrated Systems L.P. v. United States, 132 Fed. Cl. 325 (2017) where the Court held
that in a unilateral definitization case, where L-3 sought sum certain damages, that L-3
was required to submit a certified claim to the CO:

In this case, L–3 contends that it suffered monetary losses
because the Air Force imposed arbitrary, capricious, and
unreasonable rates for the two CLINs at issue here when it
definitized the contract. The government argues that this
Court lacks jurisdiction over L–3’s complaint because, among
other reasons, L–3 never presented a certified claim to the CO
for payment of a sum certain to cover the losses it alleges it
suffered. Def.’s Mot. at 5–6. The Court agrees.

(L-3 Communications, 132 Fed. Cl. 325, 331). In this case L-3 contended it suffered
losses in a sum certain amount and submitted what it argued was a claim, but failed to
certify its claim. The Court was not dealing with the facts in Bell or “administrative act”
argument.

Summary and Conclusion

From the March 1988 Bell decision through the May 31, 2017 L-3 decision to the
present, I found no case actually deciding a case similar to Bell 14. In our 1988 Bell
decision, the Board declined to treat the unilateral definitization of a contract price as a
government claim because “The contracting officer was merely performing the duty
prescribed by the contract when the parties failed to reach agreement on a price.” Bell,
88-2 BCA ¶ 20,656 at 104,392. This “contract administration” approach has not been
followed in later cases. Additionally, the Board’s jurisdictional analysis of H-1 relied on
the Disputes Clause’s, FAR 52.233-1(c), first two elements of a claim, “contract
interpretation or adjustment” but failed to consider the third element of a claim in the
Disputes Clause, “or other relief arising under or relating to this contract.” In 1991 the
Board’s SDG relied upon “The parallel third category of ‘claim’ recognized by the FAR
and Disputes clause definitions: i.e., ‘other relief arising under . . . the contract’” to hold
that a “demand for correction or replacement under the Inspection Clause, absent a
demand for monetary relief,” should be treated no differently than a termination for
default which is a government claim. General Electric, 91-2 BCA 23,958 at 119,944-45.
The SDG specifically overruled Zachry which required a demand for payment for
defective work under the inspection clause as a prerequisite to being considered a
government claim, a direct conflict with the SDG’s General Electric decision. General

14 According to Westlaw bell has been cited 17 times but not one of the citations was a
decision actually dealing “administrative act” facts and argument in Bell.

23
Electric, 91-2 BCA 23,958 at 119,946. Although Bell was not similarly overruled, it was
cited in Judge Spector’s dissent and by inference its “contract administration” approach
was not looked upon favorably by the majority of the SDG. I view this as significant.
On appeal the CAFC affirmed agreeing that the “other relief” category of claims was “a
substitute for monetary remedies” and “fit within the CDA concept of ‘claim’” General
Electric, 987 F.2d 747, 749. Again, a significant departure from the logic in Bell. In
Outdoor Venture, the Board explained that General Electric established that government
demands that a contractor correct or replace latent defects was a government claim. In
Alliant Techsystems, the CAFC followed Garrett’s holding that a nonmonetary claim
provided a viable basis for board jurisdiction. In Litton Systems, Inc., Applied
Technology Division (ADT) we found that the unilateral definitization of a contract was a
government claim contradicting our 1988 decision in Bell. In Todd Construction, the
CAFC affirmed that the Court of Federal Claims had jurisdiction over a challenge to a
COE performance evaluation. 15 In our May 31, 2017 L-3 decision L3 submitted an
uncertified claim and that is what the court had before it, not the Bell argument. Our
conclusion is inescapable, in 40 years of decisions, Bell has not been followed. Contrary
to Bell 16, a unilateral definitization of a UCA should now be considered a government
claim over which we take jurisdiction.

CONCLUSION

In accordance with the above analysis, I would deny the Air Force’s motion.

Dated: June 24, 2021

CRAIG S. CLARKE
Administrative Judge
Armed Services Board
of Contract Appeals

15 As seen in L-3 Communications, Securiforce, Greenland, and Parsons, these
non-monetary government claim cases do not abandon the fact that if the remedy
sought by a contractor is essentially monetary, the contractor must file a claim with
the contracting officer.
16 Bell may still have precedential value for a yet unidentified act of minor contract

administration, but why would any contractor choose to appeal such an action.

24
 I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 62505, 62506, Appeals of
Lockheed Martin Aeronautics Company, rendered in conformance with the Board’s
Charter.

Dated: June 25, 2021

PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals

25