Case: 21-2304 Document: 51 Page: 1 Filed: 01/03/2023
United States Court of Appeals
for the Federal Circuit
______________________
SECRETARY OF DEFENSE,
Appellant
v.
RAYTHEON COMPANY, RAYTHEON MISSILE
SYSTEMS,
Appellees
______________________
2021-2304
______________________
Appeal from the Armed Services Board of Contract Ap-
peals in Nos. 59435, 59436, 59437, 59438, 60056, 60057,
60058, 60059, 60060, 60061, Administrative Judge David
D’Alessandris, Administrative Judge Cheryl L. Scott, Ad-
ministrative Judge Richard Shackleford.
______________________
Decided: January 3, 2023
______________________
DANIEL B. VOLK, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for appellant. Also represented by
MICHAEL GRANSTON, PATRICIA M. MCCARTHY; ALEXANDER
MARTIN HEALY, Contract Disputes Resolution Center, De-
fense Contract Management Agency, Hanscom Air Force
Base, MA.
JOHN WILLIAM CHESLEY, Gibson, Dunn & Crutcher
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2 SECRETARY OF DEFENSE v. RAYTHEON COMPANY
LLP, Washington, DC, argued for appellees. Also repre-
sented by LINDSAY MIRIAM PAULIN, AMIR C. TAYRANI;
DHANANJAY S. MANTHRIPRAGADA, Los Angeles, CA; NICOLE
OWREN-WIEST, ERIN NICOLE RANKIN, Crowell & Moring
LLP, Washington, DC.
DOUGLAS W. BARUCH, Morgan, Lewis & Bockius LLP,
Washington, DC, for amici curiae Aerospace Industries As-
sociation, National Association of Manufacturers. Also
represented by WILLIAM BARRON ARBUTHNOT AVERY,
JENNIFER M. WOLLENBERG; SHEILA A. ARMSTRONG, Dallas,
TX; CATHERINE LYNN ESCHBACH, Houston, TX. Amicus cu-
riae Aerospace Industries Association also represented by
MATTHEW F. HALL, Dunaway & Cross, PC, Washington,
DC.
______________________
Before MOORE, Chief Judge, PROST and TARANTO, Circuit
Judges.
PROST, Circuit Judge.
The Secretary of Defense (“Secretary”) appeals an
Armed Services Board of Contract Appeals (“Board”) deci-
sion rejecting the government’s claim that Raytheon Co.
(“Raytheon”) included unallowable costs in its final indi-
rect-cost proposals for 2007 and 2008. We conclude that
the Board erred in interpreting Raytheon’s corporate prac-
tices and policies, which are inconsistent with the Federal
Acquisition Regulation (“FAR”), Chapter I of Title 48 of the
Code of Federal Regulations, and which led Raytheon to
charge the government for unallowable costs. We therefore
reverse.
BACKGROUND
I
In cost-reimbursement contracts with the United
States, the government agency agrees to pay the
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SECRETARY OF DEFENSE v. RAYTHEON COMPANY 3
contractor’s allowable costs. See 48 C.F.R. § 52.216-7. This
case involves indirect costs, which are incurred as part of
normal business operations rather than in performing a
specific contract. Id. § 31.203(b). Each year, contractors
submit indirect-cost rate proposals, which provide a sched-
ule of all claimed expenses. Id. § 52.216-7(d)(2). A contrac-
tor may not pass on all of its costs to the government; some
costs are unallowable by law, and the contractor must cer-
tify that its incurred-cost submissions do not include any
unallowable costs. See 10 U.S.C. § 2324(e), (h) (2020). 1
An allowable cost is a cost that complies with all of the
following requirements: (1) reasonableness; (2) allocabil-
ity; (3) “[s]tandards promulgated by the [Cost Accounting
Standards (“CAS”)] Board, if applicable; otherwise, gener-
ally accepted accounting principles and practices appropri-
ate to the circumstances”; (4) “[t]erms of the contract”; and
(5) “[a]ny limitations set forth in” subpart 31.2 of Title 48
of the Code of Federal Regulations. 48 C.F.R. § 31.201-2(a).
An expressly unallowable cost is “a particular item or type
of cost which, under the express provisions of an applicable
law, regulation, or contract, is specifically named and
stated to be unallowable.” 48 C.F.R. § 31.001.
Subpart 31.2 outlines the allowability of specific costs
and makes some expressly unallowable even if the cost oth-
erwise meets the general allowability criteria of § 31.201-
2(a). Relevant here, “lobbying and political activity
costs”—which are costs associated with “[a]ttempts to in-
fluence the outcomes of” elections, referenda, initiatives, or
the introduction, enactment, or modification of legisla-
tion—and “organization costs”—including costs associated
with “planning or executing the organization or
1 Section 2324 has since been repealed. See William
M. (Mac) Thornberry National Defense Authorization Act
for Fiscal Year 2021, Pub. L. No. 116-283, Div. A, Title
XVIII, sec. 1881(a), 134 Stat. 4293.
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4 SECRETARY OF DEFENSE v. RAYTHEON COMPANY
reorganization of the corporate structure of a business, in-
cluding mergers and acquisitions”—are expressly unallow-
able. See id. §§ 31.205-22, 31.205-27. “A contractor is
responsible for accounting for costs appropriately and for
maintaining records, including supporting documentation,
adequate to demonstrate that costs claimed have been in-
curred, are allocable to the contract, and comply with ap-
plicable cost principles . . . .” Id. § 31.201-2(d). Contractors
who submit indirect-cost rate proposals that include ex-
pressly unallowable costs are subject to penalties.
10 U.S.C. § 2324(b) (2020); 41 U.S.C. § 4303(b).
II
The challenged costs in this case relate to Raytheon’s
Government Relations and Corporate Development De-
partments.
Raytheon’s Government Relations Department, which
in 2007 and 2008 consisted of 20 to 22 employees, is housed
in Arlington, Virginia. During the relevant time period,
government-relations employees engaged in various activ-
ities including information gathering, internal discussions
on lobbying strategies, attending meals with contractors
and Congresspeople or Congressional staff, meeting with
internal Raytheon customers, attending political fundrais-
ing events, administering Raytheon’s Political Action Com-
mittee, interfacing between Raytheon and the legislative
branch of the U.S. government, and responding to requests
from Congressional staffers, among other similar activi-
ties. Raytheon’s Policy 23-3045-110, “Identifying and Re-
porting Lobbying Activity Costs,” instructed employees to
record all compensated time spent on lobbying activities.
Accounting personnel then identified and withdrew costs
associated with that time from Raytheon’s incurred-cost
submissions. Raytheon’s employees considered time
worked outside of regular hours and on weekends to be part
of their regular work duties, yet Raytheon’s Lobbying Pol-
icy instructed them not to report “[t]ime spent on lobby
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SECRETARY OF DEFENSE v. RAYTHEON COMPANY 5
activity after the scheduled working day,” which was be-
tween 8:00 a.m. and 5:00 p.m., Monday through Friday.
Government-relations employees do not report time spent
on allowable (i.e., non-lobbying) activities.
Raytheon’s Corporate Development Department,
which in 2007 and 2008 consisted of roughly seven to eight
employees, is housed in Waltham, Massachusetts. During
the relevant period, Corporate Development worked with
Raytheon’s business units in strategic development and
growth opportunities. When it identified gaps in a busi-
ness’s capabilities, Corporate Development would work
with that business to fill the gap through, for example, in-
ternal investment, research and development, intellectual
property licensing, partnerships, or acquisitions. Pro-
posals for acquisitions or divestitures were made to the Ac-
quisition Counsel, which made the final decision to submit
a non-binding indicative offer or to go to market with offer-
ing materials. Per Corporate Development policy, “[u]nal-
lowable acquisition costs commence with the submission of
an indicative offer,” and “[u]nallowable divestiture costs
commence when the decision to ‘go to market’ with the of-
fering materials is made.” These bright-line rules establish
when Raytheon’s corporate-development employees begin
recording their time: before the Acquisition Counsel makes
its decision, Raytheon treats employee time as allowable
and does not record it; after the decision, Raytheon
switches the time to “unallowable,” and employees begin to
record their time.
In 2007 and 2008, Raytheon charged the government
for roughly half of the salary costs of its Government Rela-
tions and Corporate Development Departments.
III
The Defense Contract Audit Agency (“DCAA”) audited
both Raytheon’s Government Relations Department and
its Corporate Development Department, determined that
Raytheon’s 2007 and 2008 incurred-cost submissions for
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6 SECRETARY OF DEFENSE v. RAYTHEON COMPANY
those departments included unallowable costs, including
expressly unallowable costs, and demanded reimburse-
ment and payment of penalties. Raytheon appealed to the
Board, which held a hearing in May 2017. On February 1,
2021, it ruled in Raytheon’s favor, concluding, as relevant
here, that Raytheon’s claimed government-relations and
corporate-development costs were allowable and appropri-
ately charged to the government. See Appeals of Raytheon
Co., ASBCA No. 59435, 21-1 B.C.A. ¶ 37,796 (Feb. 1, 2021)
(J.A. 1–115).
With respect to government-relations costs, the Board
concluded that the government had not met its burden of
proving that Raytheon’s costs were unallowable lobbying
costs. J.A. 35. The Board found that Raytheon’s personnel
were well trained in the FAR’s lobbying reporting require-
ments and complied with Raytheon’s policies. J.A. 36. It
rejected the government’s contention that the time Ray-
theon’s employees spent lobbying outside regular working
hours should be included because, even though “lobbying
responsibilities were a regular part of the work duties,”
Raytheon’s time-paid accounting policies meant that its
employees were compensated for a 40-hour work week and,
therefore, “[t]here was no cost to Raytheon or the govern-
ment for work outside normal business hours.” Id. The
Board further rejected the idea that all unsupported costs
were unallowable. J.A. 38.
The Board also concluded that the government had
failed to show that the disputed corporate-development
costs were unallowable. J.A. 50. The Board scrutinized
Raytheon’s bright-line rules and concluded that they were
a permissible articulation of the line between allowable
economic- or market-planning costs under 48 C.F.R.
§ 31.205-12 and unallowable organization costs under
§ 31.205-27. Id. Because Raytheon trained its employees
on that policy, who then followed it, the Board concluded
that the government had failed to show that Raytheon’s in-
curred-cost submissions were inaccurate. J.A. 51–52.
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SECRETARY OF DEFENSE v. RAYTHEON COMPANY 7
The Secretary appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(10).
DISCUSSION
We review the Board’s legal determinations de novo
and may set aside the Board’s findings of fact if they are
(a) fraudulent, arbitrary, or capricious; (b) so grossly erro-
neous as to necessarily imply bad faith; or (c) not supported
by substantial evidence. 41 U.S.C. § 7107(b).
The Secretary’s appeal challenges the Board’s findings
that Raytheon’s cost-reporting policies comply with the
FAR. 2 We address the government-relations and the cor-
porate-development policies in turn.
I
The Secretary contends that the government met its
burden of showing that Raytheon overcharged the govern-
ment because Raytheon’s policy disregarding after-hours
lobbying rendered the government-relations incurred-cost
submissions meaningless. We agree.
The Board’s conclusion that “there was no cost to [Ray-
theon] or to the government for work outside normal busi-
ness hours,” J.A. 20, is not supported by substantial
evidence. Indeed, the Board’s findings support the opposite
conclusion. It observed that “Raytheon’s lobbyists worked
early mornings, late nights, and weekends from time to
time on what all of the testifying witnesses considered to
be a regular part of their work duties.” J.A. 36. And it
2 The Secretary also makes the more-general argu-
ment that all unsupported costs are unallowable but agrees
that we need not reach that issue if we find, as we do, that
Raytheon’s policies are inconsistent with the FAR. Oral
Arg. at 31:34–32:07, No. 21-2304, https://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=21-2304_1101202
2.mp3.
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8 SECRETARY OF DEFENSE v. RAYTHEON COMPANY
stated, “logically, the expectation of regular night and
weekend work would be factored into the salary paid to the
lobbyists.” J.A. 20 n.12. Together, these statements lead
to the conclusion that Raytheon, by ignoring after-hours
lobbying, must have charged the government for unallow-
able lobbying costs. Yet the Board ignored its own factual
findings and logic and reached the opposite conclusion. It
did so, seemingly, based on “Raytheon’s testimony that the
government was not charged for the night and weekend
work,” id., and the finding, unsupported by any citation,
that “[a]ccounting for labor costs as a function of time paid,
rather than time worked, is one common industry method.”
J.A. 20.
Both Raytheon’s testimony and the time-paid-account-
ing point are inconsistent with the Board’s finding that
“night and weekend work would be factored into the salary
paid to the lobbyists.” That finding alone reflects what a
salary is: compensation for work performed on behalf of the
company, regardless of when. See, e.g., Salary, Black’s Law
Dictionary (11th ed. 2019) (“An agreed compensation for
services”); Abshire v. Cnty. of Kern, 908 F.2d 483, 486
(9th Cir. 1990) (“A salaried employee is compensated not
for the amount of time spent on the job, but rather for the
general value of services performed.”), overruled on other
grounds by Auer v. Robbins, 519 U.S. 452, 463 (1997). Ray-
theon’s time-paid accounting is a fiction that necessarily
overcharges the government when it ignores time spent
working on unallowable activities after regular business
hours. Raytheon’s lobbyists worked on unallowable activi-
ties after-hours, and their salaries necessarily compen-
sated them for that time. Raytheon’s policies ignoring
after-hours time resulted in the government reimbursing
Raytheon for unallowable costs.
The FAR confirms that after-hours work on unallowa-
ble activities should be accounted for. It instructs that
“[t]ime spent by employees outside the normal working
hours should not be considered except when it is evident
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SECRETARY OF DEFENSE v. RAYTHEON COMPANY 9
that an employee engages so frequently in company activi-
ties during periods outside normal working hours as to in-
dicate that such activities are a part of the employee’s
regular duties.” 48 C.F.R. § 31.201-6(e)(2). In other words,
if an employee’s after-hours work is extensive enough to be
considered part of the employee’s regular duties, as was the
case here, see J.A. 36, that time “shall be treated as directly
associated costs to the extent of the time spent on the pro-
scribed activity.” 48 C.F.R. § 31.201-6(e)(2). Though both
parties point out that this provision is not directly applica-
ble, it is nonetheless instructive: if after-hours activities
should be considered for directly associated costs, for con-
sistency’s sake they should also be considered for expressly
unallowable costs. 3
Raytheon’s arguments to the contrary are unconvinc-
ing. It first suggests that not paying its salaried employees
for time worked outside of normal business hours “simply
reflects the reality that under the Fair Labor Standards
Act [(“FLSA”)] . . . any exempt (i.e., salaried) employee is
not entitled to pay for the time spent on business-related
work beyond a 40-hour work week.” Appellee’s Br. 44.
First, that argument is based on the premise—unprovable
here—that all of Raytheon’s government-relations employ-
ees worked full 40-hour work weeks during recordable time
periods and that time worked outside regular business
hours was only additional time. But employees could have
worked less between 8:00 a.m. and 5:00 p.m., Monday
3 Raytheon suggests that FAR 31.201-6(e)(2) only
applies to salary expenses that generate unallowable costs;
because the Board found that after-hours activities did not
generate any costs, Raytheon contends, it does not apply.
See Appellee’s Br. 46. But that argument, again, relies on
the fiction that Raytheon’s employees were not compen-
sated for after-hours lobbying, an idea fundamentally at
odds with what a salary is.
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10 SECRETARY OF DEFENSE v. RAYTHEON COMPANY
through Friday, to offset time spent working earlier or later
in the day or on weekends. 4 Second, Raytheon’s argument
is contrary to what the FLSA says. The exemption Ray-
theon refers to comes from 29 U.S.C. § 213, which simply
provides that salaried employees are not subject to the
minimum-wage or maximum-hours and overtime provi-
sions of §§ 206 and 207, respectively. See 29 U.S.C.
§ 213(a)(1). That, again, reflects the reality that a salary,
by definition, compensates an employee for everything the
employee does on behalf of the company irrespective of the
time spent on those services. Cf. Brock v. Claridge Hotel &
Casino, 846 F.2d 180, 184 (3d Cir. 1988) (observing that
“the salaried employee decides for himself how much a par-
ticular task is worth, measured in the number of hours he
devotes to it,” while for hourly employees “it is the em-
ployer who decides the worth of a particular task, when he
determines the amount to pay the employee performing
it”). It does not mean that salaried employees are not paid
for time worked beyond 40 hours in a week.
Raytheon also argues that the CAS required it to dis-
close its cost-accounting practices to the government and to
comply with those practices. Because, Raytheon says, that
is exactly what it did here, it would be contrary to the CAS
to find that Raytheon violated any other regulations. But
as Raytheon admits, its CAS disclosure statements were
not in evidence. Appellee’s Br. 45. So substantial evidence
does not support any contention that Raytheon disclosed
its after-hours policy in advance, let alone that the govern-
ment consented to the policy and agreed to reimburse costs
pursuant to it.
4 We can only speculate on these points because, as
mentioned previously, Raytheon’s employees do not record
time that its policies deem allowable; Raytheon’s timekeep-
ing policies, therefore, make no distinction between allow-
able work time and time not worked at all.
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SECRETARY OF DEFENSE v. RAYTHEON COMPANY 11
Because Raytheon’s incurred-cost submissions ac-
counted only for unallowable costs incurred during regular
hours and ignored after-hours lobbying, they do not accu-
rately reflect the proportion of time that Raytheon’s em-
ployees spent on unallowable lobbying activities. The only
evidence, in the form of employee testimony, in the record
of after-hours time was time spent on unallowable lobbying
activities. There was no evidence of unaccounted for allow-
able time, meaning that—so far as can be divined from the
record—the proportion of time Raytheon’s lobbyists spent
lobbying was necessarily higher than what Raytheon re-
ported. We therefore conclude that the Board erred in find-
ing that the government failed to meet its burden of
showing that Raytheon charged it for unallowable costs.
We reverse that finding and remand for the Board to deter-
mine the amount of unallowable lobbying costs improperly
charged to the government. We recognize that the lack of
timekeeping records makes that a difficult task. That un-
fortunate consequence, however, is attributable to Ray-
theon’s policies. Raytheon, not the government, should
bear the costs associated with Raytheon’s policies.
II
The Secretary next contends that Raytheon’s bright-
line corporate-development policies are inconsistent with
the FAR and resulted in Raytheon charging the govern-
ment for expressly unallowable costs. We agree.
The FAR expressly disallows costs associated with
“planning . . . mergers and acquisitions.” 48 C.F.R.
§ 31.205-27(a)(1). By only reporting time after the submis-
sion of an indicative offer or the decision to go to market
with offering materials—the bright-line rules—Raytheon’s
corporate policies are plainly inconsistent with the regula-
tion. As a matter of both logic and common sense, a deci-
sion on submitting an offer or to go to market cannot be
made unless at least some planning for that offer or the
offering materials has occurred. The clearest illustration
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12 SECRETARY OF DEFENSE v. RAYTHEON COMPANY
of that point is: acquire (or divest of) what? Even identify-
ing the subject of the decision involves preliminarily plan-
ning the acquisition or divestiture and is, per the
regulation, unallowable. And, naturally, more preliminary
planning must be involved before the Acquisition Counsel
can capably decide what to do. So the language of the pol-
icies alone reflects the fact that Raytheon fails to account
for expressly unallowable costs in its indirect-cost rate pro-
posals. Confirming that understanding, ample evidence
before the Board established that at least some of Ray-
theon’s “allowable” pre-decision salary costs related to
planning mergers, acquisitions, or divestitures. See, e.g.,
J.A. 4953 (slide illustrating divestiture process which
shows tasks like “identify opportunity,” “preliminary valu-
ation,” “team selection and launch,” all happening before
go-to-market decision); J.A. 20547 (employee testifying
that he performed “acquisition planning” before offer sub-
mission); J.A. 20883–84 (employee testifying to research
and analysis before offer submission). The Board therefore
erred as a matter of law in concluding that Raytheon’s pol-
icies are consistent with the FAR. The government met its
burden of showing that Raytheon charged it for expressly
unallowable costs.
Raytheon tries to justify its policies by suggesting that
the distinction between unallowable organizational-plan-
ning costs and allowable economic- or market-planning
costs is “unclear” and not “a defined line.” See Appellee’s
Br. 47. The solution, Raytheon contends, is that the FAR
creates a distinction between general planning and plan-
ning for a specific acquisition or divestiture. Id. at 49. It
then argues that its bright-line policies reflect that distinc-
tion. There are at least two problems with Raytheon’s po-
sition. First, if Raytheon’s point about the lack of a defined
line is intended to suggest that there might be overlap be-
tween these categories of costs, that’s wrong: FAR 31.205-
12 says that “[e]conomic planning costs do not include or-
ganization or reorganization costs covered by 31.205-27.”
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SECRETARY OF DEFENSE v. RAYTHEON COMPANY 13
Even if it can sometimes be difficult to determine whether
a specific activity generates allowable economic-planning
costs or unallowable corporate-reorganization costs, that
doesn’t justify Raytheon’s decision to establish policies
drawing bright lines that start the clock on unallowable
time at points obviously later than the FAR permits.
Second, even if we accept that FAR § 31.205-27(a)(1)
only disallows planning for a specifically identified acqui-
sition or divestiture—a proposition that the generality of
the regulation does not support—evidence before the Board
shows that, before involving the Acquisition Counsel, Ray-
theon employees identified specific acquisition targets and
worked towards possible acquisitions, which are activities
that plainly involve “planning . . . mergers.” See, e.g.,
J.A. 4849 (employee Goals & Accomplishments document
for 2007 identifying specific acquisition targets and ex-
plaining work performed relating to each). But because
Raytheon never submitted indicative offers to the identi-
fied targets, all of those salary costs were deemed allowable
under Raytheon’s corporate policies. J.A. 22349 (employee
testifying that all time spent pursuing acquisition targets
was included in charges to the government). So the evi-
dence belies Raytheon’s justifications and confirms the
common-sense view that Raytheon’s policies are facially in-
consistent with the FAR.
Amici suggest that siding with the Secretary on this is-
sue is tantamount to finding that corporate policies and
trainings purporting to explain the FAR to employees are
impermissible. See, e.g., Brief for Amicus Curiae National
Association of Manufacturers and Aerospace Industries
Association, 12–13. But that is not what we understand
the Secretary’s position to be, and that is not what we have
concluded. We are not saying that all policies that attempt
to draw lines interpreting FAR provisions are improper; we
have simply concluded that these policies drawing those
lines are inconsistent with the FAR. We see nothing
wrong, as a general matter, with policies that interpret and
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14 SECRETARY OF DEFENSE v. RAYTHEON COMPANY
explain the FAR; each policy should be evaluated on its
own merits, as Raytheon’s have been here.
Because the Board erred as a matter of law in conclud-
ing that Raytheon’s corporate-development policies were
consistent with the FAR, its factual determination that the
government was not charged for unallowable costs because
Raytheon’s employees complied with those policies is also
legally incorrect. We therefore reverse the Board’s conclu-
sion and remand for the Board to determine the amount of
unallowable costs improperly charged to the government.
We again recognize that Raytheon’s policies make this a
difficult task, but we reiterate our view that Raytheon
should shoulder the burden its policies created.
CONCLUSION
We have considered Raytheon’s remaining arguments
and find them unpersuasive. For the reasons set forth
above, we conclude that the Board erred in finding both
that Raytheon’s policies comply with the FAR and that the
government failed to show by a preponderance of the evi-
dence that Raytheon overcharged it. We therefore reverse
the Board’s judgment and remand for a determination of
costs Raytheon must repay and, if necessary and appropri-
ate, an assessment of penalties.
REVERSED AND REMANDED
COSTS
No costs.