NORTHROP GRUMMAN CORPORATION, Plaintiff, v. The UNITED STATES, Defendant, 47 Fed. Cl. 20

OPINION MILLER, Judge. This contract action, before the court after trial, juxtaposes the military’s evolving requirements and a contractor’s over-ambitious assessment of its capabilities to meet them. In the circumstances the contractor questions the military’s choice of a fixed-price incentive contract and the mushrooming of labor hours expended in responding to fluid requirements. The military defends the choice of contract type, disputes the charge of illegality, and blames the contractor for spending $34 million on a $22 million contract.

The court concludes that Congress precluded this type of contract during three years of its performance, but that damages shall be determined under the contract. Plaintiff is entitled to an award on some of its claims; with respect to constructive changes, which dominated trial, plaintiff has failed to establish that the Government ordered most of the constructive changes and, even if so, to prove its damages with the requisite certainty- FACTS In the mid-1980s, the military identified a need to upgrade its Vietnam-era Tactical Air Command Central (“TACC”).

This objective to advance the command and control of Marine Corps operations gave birth to the Advanced Tactical Air Command Central (the “ATACC”). From this nascent concept, the Navy and the Marine Corps commenced the development of the ATACC, the subject matter of the instant case. The ATACC was to be a set of four modular shelters that could be transported onto the battlefield to provide local command and control.

Each shelter was to house sufficient hardware (including desktop terminals, operator consoles, and communications equipment) and software (including software for various military communications protocols, message generation, and database management) for the Marine Corps operators to plan and implement airborne strikes. This portable command and control center was to replace the TACC, which contained outmoded equipment and software and was housed in an inflatable bubble. On February 7,1986, the Government prepared the Software Baseline Estimate.

It estimated the lines of code (“LOC”) to be developed by the eventual ATACC contractor to be between 52,200 and 121,200. The estimate concluded that a total of 182,000 to 240,000 LOC would be required. The difference between the two estimates entailed code furnished by the Government or already in existence. On November 17, 1986, United States Navy Space and Naval Warfare Systems Command (“SPAWAR”) finalized the ATACC Acquisition Plan 86-16 (the “Acquisition Plan”).

The Acquisition Plan calls for, among other items, a standardized Navy computer — the AN/UYK-14/43/44 — which can use the CMS-2 compiler, Tactical Digital Information Link (“TADIL”) software to be government-furnished information (“GFI”), and developmental items (“DI”) to be mainly software in the information-management area of the ATACC program. The Acquisition Plan labels the software risk as “moderate and manageable.” In August 1986 SPAWAR opened the ATACC request-for-proposal (“RFP”) library at Calculon Corporation, a government contractor providing support for the ATACC program.

The library contained almost all of the information required to bid on the RFP; some limited information related to tracking capabilities was classified and not in the library. Grumman Data Systems, Inc. (“GDS”), became interested in the project. GDS was a division of Grumman Aerospace Corporation (“Grumman”). (Northrop Corporation acquired Grumman on May 18,1994, forming Northrop Grumman Corporation (“plaintiff”)).

The types of documents that GDS personnel could have reviewed (or copied) at the library included the first draft Statement of Work (“SOW”), operational documents, TACC documents, military standards (“MIL-STD”), and Data Item Descriptions (“DIDs”). GDS used the Calculon library, copied a complete Marine Tactical System (“MTS”) protocol and encountered no banders to review of all the documents in the library. At approximately this time, SPA-WAR held a pre-RFP industry conference for the ATACC program.

Before SPAWAR released the ATACC RFP, GDS sent several representatives to SPAWAR to identify the Marine Corps’s needs regarding the ATACC program. SPAWAR issued the ATACC solicitation on April 30, 1987. Two months later the Marine Corps completed the MTS message specification. GDS composed a proposal team that included, among others: Richard F. McLean, the ATACC Software Manager; Joseph A. Cotellessa, the Manager of the Battle Management Subsystem for the ATACC; Dr. Joseph H. Kullbaek, Senior Systems Architect; Harold LaWare, Vice President of Technical Operations for GDS; and William T.

Bonner, Engineering Manager. Dr. Stuart A. Steele, Vice President of GDS, was responsible for technical solutions, costing, staffing, and personnel for the program. To generate an LOC estimate, Mr. Cotellessa used the Constructive Cost Model (“COCOMO”), a widely accepted estimating tool. COCOMO is a top-down tool that generates an estimate of man-months of labor based on projected LOC. Because it is a modeling tool, COCOMO must be calibrated properly, usually by use of past results. Dr. Steele testified that Mr. Cotellessa had someone calibrate COCOMO based on three past projects. Dr.

Steele believed the LOC estimate generated by COCOMO was reasonable. Mr. Cotellessa supervised the estimates of all GDS software proposed for the ATACC. Mr. Cotellessa used the ATACC specification to generate an architecture. Then, he used the lowest level requirements to determine how many LOC of existing products needed to be modified. For new software Mr. Cotellessa constructed from bottom up a structure to estimate the LOC needed for all new items by asking members of each project group within GDS what they considered their portion of the ATACC software development would require.

COCOMO resulted in a more pessimistic

schedule than the bottom-up model. GDS used the COCO-MO estimate when it made its proposal because COCOMO was able to be segregated into skill areas. No confidence interval was assigned to either estimate. Dr. Steele testified that he did not usually assign confidence intervals to LOC estimates. Concurrent with the generation of its proposal, plaintiff undertook risk assessments regarding the ATACC project. Mr. LaWare personally evaluated the risk and concluded that it was very low because of the amount of non-developmental items (“NDI”) that GDS proposed for the project.

On August 20, 1987, SPAWAR finalized the Source Selection Plan (the “SSP”). Four days later GDS submitted its proposal. GDS proposed an ATACC based predominantly on NDI hardware and software. The GDS NDI software had been developed earlier for other government programs, such as Commander in Chief' Display Support System, Maritime Defense Zone, and the Ocean Surveillance Information System Baseline Upgrade. After it submitted its proposal, but before submitting its best and final offer (“BAFO”), GDS, during April 1988, demonstrated its ATACC concept to the Marine Corps and SPAWAR.

The RFP permitted demonstrations, and GDS seized upon this opportunity to market its concept. In attendance at the demonstrations were senior GDS personnel and ATACC team members, as well as high-ranking Marine Corps and SPAWAR personnel. GDS treated its guests to an almost complete functioning system and a videotape that demonstrated GDS’s mock-up. Mr. McLean oversaw the demonstrations. Mr. La-Ware testified that this demonstration was a departure point from which to tailor to the Marine Corps’s needs. The live-test demonstration included NDI software and some DI software.

GDS continued to demonstrate its mock-up on numerous other occasions to others in the military. For the mock-up GDS wrote the code in Fortran, which was not permissible for the finished product; however, Mr. McLean thought that GDS had three to four weeks to assemble the demonstration and knew that this was insufficient time to generate a demonstration in Ada, which was the programming language called for by the specification. GDS actually had four months to generate the mock-up, which Mr. McLean testified would have been sufficient for him to develop an Ada-based mock-up.

Although GDS used a non-developmental Fortran version of Air Tasking Order (“ATO”) software that would later need to be replaced by a developmental Ada software package, ATO generation was demonstrated to obtain customer feedback. Mr. McLean testified that government feedback indicated satisfaction with GDS and that GDS met the requirements. According to Mr. McLean, this feedback on the demonstration was the key to GDS’s understanding of the requirements and its relationship to the Marine Corps’s needs in the future. John F.

Williams, Jr., now an employee of Logicon, which is a subsidiary of plaintiff, joined Columbia Research Corporation (“CRC”) in February 1988 after two-and-one-half-decades in the Marine Corps. His role with CRC was to provide support to Marine Corps Systems Command (“MARCORSYSCOM”). CRC in general was to assist the ATACC program manager, who at various times was positioned in Marine Corps Headquarters (Lt. Col. Lou C. Consagra and Mr. George Georgeadis), Marine Corps Research, Development and Acquisition Command (“MCRDAC”) (Mr. Georgeadis), and SPA-WAR (Lt. Col. James T. Ware). CRC monitored cost and

schedule and tracked requirements of the specification. Mr. Williams developed a requirements traceability matrix from software that assigned a number to each requirement to track each and to assess fulfillment of each. Although not part of CRC’s contract, Mr. Williams recommended use of the matrix, and the Marine Corps agreed to it. After contract award Mr. Williams provided GDS with the matrix. GDS developed a similar matrix of its own using other software. Before contract award Mr. Williams wrote an independent verification and validation (“IV & V”) plan for prospective IV & V contractors.

CRC was intended to be involved in IV & V, but SPAWAR awarded an IV & V contract before MARCORSYSCOM went into operation. On March 29, 1988, Maj. Janice P. Guy, the Developmental Project Officer for the ATACC, sent a letter to Lt. Col. Consagra discussing her assessment of the software risk.

She noted that “[wjhile the processing of textual (character oriented) data is not new, the incorporation of an automated capability into a tactical system, in support of [Joint Interoperability of Tactical Command and Control Systems (“JINTACCS”)] character oriented message exchange is of concern.” Before BAFO submission, GDS answered questions posed by SPAWAR. With Mr. McLean as a participant, GDS answered an Ada sample problem.

Ada was required for all Computer Software Configuration Items (“CSCIs”) — software items that make up the software architecture of a program — that were more than 25 percent new or modified. Ada is a high-order, or powerful, language, representing a consolidation of other extant languages — Fortran, Cobalt, Pascal. GDS personnel possessed limited knowledge of Ada, and in his LOC estimate Mr. Cotellessa modeled the inefficiencies in COCOMO, penalizing GDS for its inexperience through an effort-adjustment factor for language experience.

To arrive at its own BAFO, GDS needed to “scrub” its own proposal to eliminate unnecessary costs and expenses. Mr. LaWare undertook this task. On May 31, 1988, GDS requested BAFOs from its subcontractors, like Aircraft Systems Division (“ASD”), a sister division to GDS. On June 15, 1988, ASD submitted its BAFO to GDS for the shelters for the ATACC. ASD’s BAFO for the prototype was $6,079,680.00, including a 10.8 percent profit, a price well in excess of the $4,350,000.00 BAFO that GDS wanted from ASD.

In addition to reductions to the shelter costs, GDS secured reductions from other subcontractors — including, among others, Digital Equipment Corp., Genisco, and SCI — and made reductions to its own costs, although no documentation of these reductions was introduced into evidence. On June 6,1988, the Revised System Specification for the ATACC, ELEX-T-620A, and the ATACC SOW were issued. On June 9, 1988, SPAWAR requested BAFOs from bidders adjudged technically competent. BAFOs were to include formal incorporations of the May 2, 1988 answers to questions.

BAFOs were not to include exceptions to the requirements, terms, or conditions of the RFP; according to the June 9, 1999 call for BAFOs, “[a]ny exception taken may render your offer unacceptable.” (Emphasis added.) BAFOs were due to SPAWAR by June 24, 1988. On June 24, 1988, GDS submitted its BAFO on which it performed another LOC estimate. GDS estimated that 218,000 LOC would be necessary for its proposed ATACC. In its BAFO, GDS took no exception to the RFP, the ATACC SOW, or the ATACC contract. GDS’s BAFO contained a target price of $23,267,207.00 and an identical ceiling price.

This target price was a $3,198,706.00 reduction from GDS’s proposal price. GDS’s BAFO included copies of its May 2, 1988 responses to questions regarding cost and revisions to its proposal. In addition to GDS, LTV Sierra/Singer submitted a BAFO to be evaluated according to the SSP. The SSP called for a Contract Award Review Panel, which was divided into technical and cost evaluation boards. The SSP, dated April 20, 1987, covered the cost side. No one from any of the Marine Corps Air Wings was involved in the cost evaluation. Maj.

Bedar of Marine Corps Tactical Systems Support Activity (“MCTSSA”) was a member of the Cost Evaluation Board. The Technical Evaluation Board (the “TEB”), composed of Maj. Guy, Maj. Bedar, Col. Robert Speights, and Col. Louis L. Simpleman, scored and provided comments on GDS’s BAFO. On June 28,1988, the TEB issued its ATACC Final Technical Evaluation, which included revised technical scores. It concluded that GDS proposed acceptable functional and technical approaches.

Two days later, on June 30, SPAWAR issued the final recommendation of award of the ATACC contract to GDS because GDS submitted “the lowest priced proposal, had the highest overall weighted score, and [its] technical approach was judged lower risk in the critical area of software engineering.” On July 6, 1988, SPAWAR awarded the contract to GDS because GDS offered a single-contractor approach as opposed to LTV Sierra/Singer’s two-contractor effort, GDS’s proposed ATACC could be applied to other tactical applications, and LTV Sierra/Singer’s proposal had higher technical risk. A bid protest ensued.

GDS was not permitted to revise its BAFO before the signing of the awarded contract, and it was not until December 14, 1988, that a contract between SPAWAR and GDS was signed. The contract called for delivery of the ATACC prototype for operational testing within 27 months. Mr. Williams of CRC drafted a Program Management Plan (“PMP”), dated August 1, 1988, as a guide to the steps that the program should follow. Mr. Williams has no knowledge of whether the PMP was implemented, but assumes that it received at least some kind of approval.

He used the Marine Corps System Acquisition Management Model (“MCSAMM”), a computer database that tracks milestones. CRC communicated monthly reports that showed the status of each deadline and milestone. Although Mr. Williams received the follow-up questions, he did not recall specifics or whether Lt. Col. Ware asked follow-up questions. The

schedule generated for the ATACC was optimistic, especially because MCSAMM had forecast an overrun of a year or longer. Mr. Williams had to go back and compress dates in MCSAMM, and GDS needed to compress its own

schedule to match. No hard copy of the MCSAMM report, which filled two walls, was ever filed with the Government’s Program Management Office (“PMO”). In January 1989 the parties held a post-award conference. Lt. Col. Ware was SPA-WAR’s Program Manager for ATACC, and this conference was his first involvement with the ATACC program. While at SPAWAR, Lt. Col. Ware communicated with the contracting officer at least once per week.

At this point GDS raised the issue of satisfying the hardware quality requirements of MIL-Q-9858A (“9858A”), which was not applicable to commercial off-the-shelf equipment (“COTS equipment”). During the next two months, GDS and SPAWAR engaged in a number of guidance conferences on ATACC requirements. From award until July 1990, Mr. LaWare was the ATACC Program Manager for GDS. Two to three times per week during the first six months of the ATACC program, he met with Lt. Col. Ware to discuss schedules and progress. Formal meetings were generally large, while informal meetings were small. Gerald E.

Glinka, Director of Finance and Business Management for Logicon, GDS’s current appellation, started on the ATACC program in January 1989. He held the overall responsibility for business operations. Three functional groups reported to him: contracts, subcontracts and acquisition, and program planning and control. Mr. Glinka reported to the program manager and to business operations in Grumman’s Bethpage, New York, office. Mr. McLean was appointed Software Manager. He possessed familiarity with a range of programming languages, including Fortran, Pascal, PL/1, and various assembler languages. Mr.

McLean received praise from witnesses for his programming abilities, but suffered criticism regarding his management skills. Mr. Bonner assumed the duties of Engineering Manager on the ATACC program after award until April 1990. He reported to Mr. LaWare. Messrs. Cotellessa, McLean, Richard T. Cartwright, Jr., Shelter Systems Manager, Andrew Sullivan, Communications Systems Manager, and Lawrence Gibbey, Integrated Logistics Support (“ILS”) Manager, reported to Mr. Bonner. During January or February 1989, Capt. Charles M.

Iaquinto became the Marine Corps in-plant representative, a position he held until September or October 1991. Capt. Iaquinto’s duties included ensuring that deliverables were timely delivered, functioning as a sounding board for users — the Fleet Marine Force (the “FMF”) — and serving as the operational point of contact for GDS. He reported to Lt. Col. Ware. Although Capt.

Iaquinto reviewed the generic request that the Marine Corps issued to start the ATACC program, he never reviewed GDS’s proposal and did not recall the exchanged questions and answers, nor did he supervise the IV & V contractor, Texel & Co. (“Texel”). As the interface between the PMO and the FMF, Capt. Iaquinto addressed such issues as the man-machine interface (the “MMI”) and hardware concerns. The FMF never asked him to influence GDS, but it did express to him its preferences for the ATACC.

On March 15, 1989, Defense Contract Administrative Services (“DCAS”) released its Quality Assurance Representative’s (“QAR’s”) Contract Data Package Recommendation/Deficieney Report. In this report DCAS indicated that 9858A was not applicable to NDI. On March 20, 1989, Mr. LaWare developed briefing charts, comparing GDS’s and ASD’s costs for the shelter effort.

They indicate that GDS took the position that it was required to deliver unnecessary data and that the Marine Corps did “not understand how to support commercial NDI.” On March 24, 1989, GDS released a Cost/Schedule Status Report (“C/SSR”) for January 28, 1989, to February 24, 1989. The C/SSR reflects that $4,044,000.00 had been deposited in Undistributed Budget. On that same day, GDS also submitted a Contractor’s Progress, Status, and Management Report (“CPSMR”) for February 10, 1989, to March 9, 1989. The CPSMR indicates that a vendor had been selected for the shelter subsystem during the time period.

On March 27, 1989, members of the FMF, prospective users of the ATACC, visited GDS for a three-day briefing and demonstration. These Marines desired additional software and some different functionalities. They also expressed conflicting opinions about the ATACC concept. Also in March, William E. Fravel, Jr., of Texel, the IV & V contractor for the ATACC program, debriefed GDS personnel about GDS’s answer to the solicitation’s Ada test problem. At approximately this time, GDS moved its ATACC operations to its permanent facility in Springfield, Virginia.

The Program Review, designed to keep the Marine Corps as user abreast of the progress of the ATACC program, occurred three months into performance. During the Program Review, Lt. Col. Ware approved the format and content of the Systems Requirements Review (the “SRR”) The participants in the Program Review discussed the high NDI content in GDS’s approach to the ATACC. SPAWAR’s documentation requirements for military quality and testing could not be satisfied by GDS’s proposed approach.

Before the SRR, GDS was preparing the Software Development Plan (the “SDP”), the System/Segment Design Document (the “S/ SDD”), and other documents. Mr. Bonner was satisfied with the level of staffing. If there were staff shortages, GDS brought personnel in from other parts of Grumman— ASD, for example. GDS had not planned to write code at this time; rather, the plan was to defer code writing until the Critical Design Review (the “CDR”). GDS, according to Mr.

Bonner, was not behind schedule, but was experiencing the same start-up issues as any big project — a temporary building, temporary equipment, and addition of staff. From April 4 to April 6, 1989, GDS and SPAWAR scheduled the SRR, a meeting at which each party could share substantive feedback on how it was actually approaching the ATACC. The SRR’s purpose was to assure each party’s understanding and to make needed adjustments. The SRR was scheduled early in the program, so that the program could be defined clearly to prevent ongoing refinements that are deleterious for software development.

GDS did not understand this as an evolution of Contract Line Item Number 0001 (“CLIN 0001”), the prototype, but proceeded on the basis that any evolution would occur through other CLINs after the prototype was completed. In advance of the SRR, GDS provided a proposed agenda. Maj. Theodore J. Dunn, SPAWAR’s ATACC Acquisition Manager, considered the agenda to be unsatisfactory because it failed to contain sufficient substance. Maj. Dunn relayed such dissatisfaction to Mr. Bonner. After some communication between Maj. Dunn and Mr. Bonner, Maj. Dunn conveyed his dissatisfaction with the SRR agenda to Lt. Col. Ware.

The latter raised the issue with Mr. Bonner, who said that GDS would modify the SRR agenda. Mr. Bonner worked on documents and briefings for the SRR. He was responsible for all but a few minutes of the technical presentation. His intention was to present the preliminary design and other requirements to a very detailed level. The SOW required the presentation of the Preliminary System/Segment Design Document (the “PS/SDD”), although it was not a deliverable at the SRR, that is, GDS was not required to supply it to the Government at this time. Mr. Cotellessa testified that Maj.

Dunn cross-checked MIL-STD-1521B with GDS’s planned level of detail. Maj. Dunn told Mr. Cotellessa to scale back the detail on the PS/SDD. Maj. Dunn and Mr. Cotellessa walked through the standard and the agenda together. The S/SDD was required 60 days before the System Design Review (the “SDR”), which was to occur more than two months after the SRR. The SDR for hardware was scheduled for July 17; for software, August 16. The Software Development Plan (the “SDP”) was not deliverable at SRR. The Software Quality Program Plan (the “SQPP”) also was not deliverable at the SRR, or so Mr. Bonner believed.

On April 20, 1989, GDS submitted its C/SSR for February 25, 1989, to March 31, 1989. The C/SSR reflects a zero balance in the Undistributed Budget and distributions of the previously undistributed funds to various cost accounts. One week later CRC transmitted comments on GDS’s SPD to the Marine Corps Program Office. These comments included those of MCTSSA, BoozAllen and Hamilton, Inc., and CRC. The Program Officer transmitted these comments to GDS on May 24, 1989.

On April 28, 1989, CRC provided the PMO with comments on the C/SSR for March and supplied a Cost Appraisal System (“CAPPS”) report that indicates a projected cost overran. These monthly reports communicated to the Marine Corps those items that were late, missed, or impacted the critical path. The CAPPS report differs from the MCSAMM report. MCSAMM used all the deliverables in the SOW, while CAPPS used data from GDS’s C/SSRs. Mr. Williams did not know what the PMO did with CRC’s monthly CAPPS reports.

At the second SRR, from May 2 to May 4, 1989, the Marine Corps indicated a desire to change the ATACC workstation design. The Marine Corps wanted five desktop terminals (“DTTs”) instead of two DTTs and three operator consoles (“OCs”). This SRR marks the birth of Engineering Change Proposal No. 1 (“ECP1”), discussed more fully below. Cheryl A. DiMaio, a government contracting officer, twice had responsibilities for the ATACC. After contract award, the ATACC contract was assigned to her as a Contract Specialist under SPAWAR. She retained the contract until June or July of 1989.

In November 1990, she assumed duties of Contracting Officer for the contract under MCRDAC. She had no pre-contract duties on the ATACC program. As Contracting Officer she reported to Floyd Donald Monaco, who was a Supervisory Contracting Officer at SPAWAR. Diane C. Thornewell, an employee at SPAWAR since 1976, became the ATACC Contracting Officer three to six months after award of the contract. She was a contracting officer on five to six projects at that time. Her immediate supervisor also was Mr. Monaco. She continued as the Contracting Officer until November 1990. Ms.

DiMaio assumed the contracting officer position when the ATACC program was transferred from SPAWAR and Ms. Thornewell to MCRDAC. Lt. Col. Ware became Assistant Program Manager of ATACC for MCRDAC. While at MCRDAC, he was responsible to the Program Manager, Col. Keith Stivers, for management of ATACC development. In June 1989 Maj. Dunn retired from the Marine Corps and left the ATACC program. Lt. Col. Ware played his cards close to his vest. He excluded people from meetings and held government-only meetings, according to Mr. Williams, the CRC support person. However, he never prevented Mr.

Williams from attending a meeting. Lt. Col. Ware was a “one-man band” to some degree. Mr. Williams had no personal knowledge of Lt. Col. Ware barring MCTSSA from any meetings. Lt. Col. Ware threatened to cut CRC funds and hindered Mr. Williams somewhat in his duties, but Mr. Williams worked around him. On June 22, 1989, GDS submitted its May 1989 C/SSR. This C/SSR projected a negative cost variance upon completion of the ATACC program. One day later GDS submitted a CPSMR, which shows a

schedule impact because of ECP1. On September 8, 1989, GDS submitted the SRSs for non-TADIL communications, bit-message processing, character-message processing, system control, and TADIL communications. Ten days later Modification P00011 incorporated ECP1 into the ATACC contract. GDS submitted additional SRSs for decision support and ATO generation on September 29,1989. From October 17 to October 19 and October 23 to October 26, 1989, GDS and the Government engaged in the System Design Review (“SDR”).

In late 1989 GDS personnel met with personnel of Eagle Technologies, the government contractor assisting in the development of MTS, to discuss MTS. At this point, Joseph H. Matusic, a former Marine Captain whom GDS retained to act as a functional expert, first appreciated the problems with utilizing MTS and JINTACGS in the same system. Mr. Matusic was a particularly straightforward witness, who criticized both GDS and the Government’s actions. On February 26, 1990, GDS submitted its first version of the Software Design Documents (the “SDDs”). This submission occurred before the Marine Corps approved the SRSs.

In March 1990 GDS and the Marine Corps engaged in the Preliminary Software Design Review (“PSDR”) for the SDD and the Software Architecture Specification (the “SAS”). On June 12, 1990, GDS delivered its third version of the S/SDD. On July 23, 1990, GDS delivered its version 3A of the S/SDD. On July 18, 1990, Mr. McLean wrote a memorandum to Henry Jenkins, GDS’s Engineering Manager. In this memorandum, Mr. McLean laments errors in the original costing of the proposal, reductions in software engineering labor, and additional unplanned effort.

During August 1990 Cyberchron, GDS’s contractor for ruggedized workstations, failed to deliver those workstations in a timely manner. During September 1990 GDS began writing software code and performing unit testing. On October 2, 1990, the Marine Corps declared that GDS deliverables, such as C/SSRs, would be handled by the PMO’s in-plant representative. “As per conversation today between Capt. Iaquinto and GDS Contracts, this is to notify your office that all SPAWAR CDRL Deliverables will be handled by the In-House Representative for distribution.” During November 1990 Mr.

Cotellessa started to focus primarily on CLIN 0013, the Joint Tactical Information Distribution System (“JTIDS”). On November 13,1990, procurement authority for the ATACC was transferred from SPAWAR to MCRDAC, and Ms. DiMaio assumed the role of Contracting Officer from Ms. Thornewell. This shift signaled the final transfer of authority from the Navy to the Marine Corps. Edward J. Stolark, Ms. DiMaio’s superior, first became aware of software development problems related to the ATACC program at approximately this time.

During January 1991 GDS experienced software development delays due to Cyberchron’s non-delivery of ruggedized workstations. During March 1991 Arthur Fritzson, eventually GDS’s ATACC Software Manager, and other Grumman software managers from its Bethpage, New York, office visited GDS’s ATACC facility for interviews and debriefings. By April 3, 1991, GDS estimated the number of code “statements” in the ATACC system as of March 8, 1991, at 310,564. On April 19, 1991, the System/Segment Design Review was held. During May 1991 Mr. McLean left the ATACC Software Manager position.

Although he attempted to portray his departure in neutral or positive terms, the undertone of GDS’s dissatisfaction was revealed by other witnesses. Two months later Mr. Fritzson assumed the position as ATACC Software Manager. On July 11, 1991, Ms. DiMaio met with GDS personnel to discuss progress in software development and GDS’s ability to deliver the ATACC in December 1991. As a result of this meeting, Ms. DiMaio notified Mr. Stolark, MARCORSYSCOM’s Director of Contracts, by e-mail that GDS was expending its own resources to accelerate and to overcome

schedule slippages. An ASD team arrived at GDS’s ATACC site on July 22, 1991, to audit the ATACC program. Nine days later GDS submitted its C/SSR for May 25 to June 28, 1991, and its CPSMR. The C/SSR recounts a $9,832,000.00 overrun. GDS declared a commitment to

schedule reduction through overtime and additional resources. The Field Demonstration System (the “FDS”) was rescheduled for November 1991. In September 1991 prospective ATACC users from the FMF attended training at GDS’s Springfield, Virginia, facility in preparation for the FDS to be held at Camp Pendleton, California, in November. The Marines criticized the ATO procedures, and GDS undertook to re-write the MMI for ATO mission planning procedures. The FDS was held in November, as scheduled.

Joseph Bonsignore, Jr., then a Marine Corps major, started as a software engineer for the MCRDAC on the ATACC in late 1991. He later became in-plant representative for MCRDAC. He was a software engineer until January 1994 when he was promoted to Program Manager, a position that he held until June 1994. Lt. Col. Ware and he were the only in-plant MCRDAC representatives while Mr. Bonsignore was stationed at GDS. During February 1992 GDS held its Production Readiness Review. On June 25, 1992, Ms. DiMaio sent an email to Mr. Stolark, the Director of Contracts.

She advised that GDS was meeting the specification, for the most part, but that some areas were problems, though not major problems. Mr. Stolark recalled neither this position nor the opposite being reported to him. The e-mail indicates a few areas where the specification was unachievable. Mr. Stolark did not recall this and indicated that he was not a technical person and could not evaluate such an assertion. Ms. DiMaio noted that GDS had made remarkable progress since January 1992. She recounted that Col.

Stivers impressed upon GDS the need to go to Operation, Test and Evaluation (“OT & E”) by December: If GDS were to fall off schedule, funds would be in jeopardy. Mr. Stolark agreed with the schedule, but had no opinion as to whether it was tight. During July 1992 Lt. Col. Ware retired from the Marine Corps. Lt. Col. Thomas L. Dempsey assumed the role of Assistant Program Manager, succeeding Lt. Col. Ware. During August 1992 GDS shipped the ATACC for Initial Operation, Test and Evaluation (“IOT & E”). In October 1992 GDS placed Adm. Robert Owens (Ret.) in the position of ATACC program director.

He reported to A1 Piccarrelli in Bethpage, New York, and Mr. Piccarrelli reported to the president of GDS, Bob Meyers. It was Adm. Owens’s understanding that the ATACC had not done as well as expected and that he was to provide more senior management. He was aware that the ATACC was about two years behind

schedule and that there had been much labor poured in with no funding. By this time most of the ATACC personnel had moved over to the TAU TEN project, but there still were approximately 20 employees working on the ATACC. Adm. Owens’s job was to keep the relationship with the Marine Corps on an even keel, and he was successful to some degree. On November 12, 1992, the ATACC was put through Field Installation and Acceptance Testing. One week later Lt. Col. Dempsey signed the DD250 Material Inspection and Receiving Report, accepting delivery of the ATACC prototype.

The DD250 indicates that the unit price for the prototype of $1,369,242.76 was “[sjubject to adjustments for outstanding modifications.” From January to May 1993, IOT & E was conducted. The MTS message system was not tested during this time. The Marine Corps requested a Rough Order of Magnitude (a “ROM”) from GDS on August 13, 1993, for the removal of MTS from the ATACC system. Adm. Owens sent an April 15, 1993 letter to the Marine Corps regarding IOT & E. The letter reflects a positive relationship with the Marine Corps.

On August 23, 1993, GDS and the Marine Corps entered Modification P00076 for Mission Support Upgrades. GDS, according to Adm. Owens, also understood that the Marine Corps expected ongoing improvements before production. On May 18, 1994, Northrop Corporation acquired Grumman, including the GDS subsidiary. The acquisition formed plaintiff. The ATACC did not go into production. This disappointed Mr. Williams of CRC, who could not recall the date on which he became aware of the production decision. In Mr.

Williams’s opinion, two factors contributed to the decision not to produce: first, the advent of CTAPS, an Air Force program that accomplished similar functions; second, the negative comments of the Second Marine Corps Air Wing Control Group, which expressed a desire not to be stationed in “buses,” as the shelters were known. Plaintiff engaged in internal discussions about whether to file a claim. Adm. Owens was involved in plaintiffs filing of its claim under the Contract Disputes Act of 1978, 41 U.S.C.A. §§ 601-613 (West 1987 & Supp. 2000).

As part of plaintiffs procedure, a prospective claim would go through a series of “sign offs,” a process whereby those involved could assent to or dissent from the claim. Adm. Owens formally expressed the opinion that the claim should not be filed. When he sent his dissent, plaintiff was seeking new work from the Marine Corps. His concern was not technical or legal; rather, it was a fear of making the Marine Corps upset with plaintiff. His dissent was not well received by those above him, and he experienced a softening of support for his continued services, although he left on amicable terms. Mr.

Matusic, who played a role in the identifying issues for the claim, was under the impression that, before Northrop Corporation acquired Grumman, Grumman, GDS’s parent corporation, had written off the claim, which he characterized as differences of opinions between the lawyers and the workers and as a great deal of hindsight by plaintiff. Mr. Matusic also testified that plaintiff was holding the claim for the production decision. On August 23,1995, plaintiff filed its ATACC claim with the contracting officer. The instant litigation ensued.

Plaintiffs April 11, 1997 complaint, advanced eight counts for which it sought recovery. These counts include: breach of contract due to extra work, breach of contract due to delays and acceleration, breach of the duty to cooperate, breach of contract based on superior knowledge, breach of contract based on cardinal change, estoppel and waiver, illegal contract based on appropriations restrictions, and mutual mistake.

By the date of trial, plaintiff was advancing fewer claims, including breach because of extra work, breach of the duty to cooperate, superior knowledge, illegal contract type, and unilateral and mutual mistake. Other lines of argument appear to have been abandoned or were resolved before trial. Plaintiff seeks reformation, damages in the amount of $14,162,409.00 plus interest, or other relief the court deems just and proper. DISCUSSION I. Whether formation of the ATACC contract was flawed 1.

Appropriations restrictions for FY 1990 to FY 1992 1) Liability In Count VII plaintiff asserts that the Navy funded the contract in violation of various Department of Defense (“DoD”) appropriation acts that required a risk determination for certain fixed-price contracts from FY 1988 to FY 1992. Defendant counters that the contract was not subject to a risk determination for any fiscal year. In its December 20, 1999 order on partial

summary judgment, the court ruled that

section 8085 of the FY 1989 DoD appropriation act, Pub.L. No. 100-463, § 8085, 102 Stat. 2270, 2270-32 (1988), amended by Pub.L. No. 100-526, § 105, 102 Stat. 2623, 2625 (1988), applied only to firm fixed-price contracts. See Order filed Dec. 20, 1999, at 5. As a consequence, if an FY 1989 contract were a firm fixed-price contract, the Under Secretary of Defense for Acquisition (“USD(A)”) was required to make a risk determination. The court also ruled that the contract at issue is not a firm fixed-price contract. See id. at 11.

The lack of a risk determination before award therefore did not render the contract illegal. The court, however, left open the question of whether later appropriations restrictions required the USD(

A) to perform risk determinations on earlier awarded, ongoing contracts. Plaintiff argues that the Government funded the contract incrementally from FY 1990 to FY 1992 in violation of each fiscal year’s appropriations legislation that required risk determinations for “fixed price-type contracts.” Defendant responds that the appropriations restriction has been interpreted to exclude incremental funding of contracts entered into and initially funded in a prior fiscal year. For FY 1990 to FY 1992, Congress reiterated the requirement for risk determination by the USD(

A) first inserted into FY 1988 DoD appropriations. See Pub.L. No. 100-102, 101 Stat. 1329 (1987). Specifically, the appropriations mandated, “None of the funds provided for the Department of Defense in this Act may be obligated or expended for fixed price-type contracts in excess of $10,000,000 for the development of a major system or subsystem unless the Under Secretary of Defense for Acquisition determines, in writing, that program risk has been reduced to the extent that realistic pricing can occur .... ” Pub.L. No. 102-172, § 8037, 105 Stat. 1150, 1179 (1991); Pub.L.

No. 101-511, § 8038, 104 Stat. 1856, 1882-83 (1990); Pub.L. No. 101-165, § 9048, 103 Stat. 1112, 1139 (1989). These fiscal-year appropriations, however, modified the FY 1989 appropriation’s language and again used FY 1988’s “fixed price-type contracts” language. Although what qualifies as “fixed price-type contracts” may be open to

interpretation, the Federal Circuit has placed all fixed-price incentive contracts within the sphere of “fixed price-type contracts.” See AT &T v. United States, 177 F.3d 1368, 1373 (Fed.Cir.1999) (en banc) (holding that FY 1988 limitation on fixed price-type contracts applies to fixed-price incentive contract awarded in FY 1988). AT & T resolves a related question that the parties ask this court to answer. The Federal Circuit rejected the Government’s argument that, because not all of the funds used for the contract at issue were appropriated in FY 1988, the FY 1988 prohibition did not apply. See id.

The court looked at the “starting” point of the contract and held that “[t]he multi-year funding does not excuse the Defense Department from compliance with § 8118” at the time of award. Id. In other words, the initial risk determination might suffice to cover the “out years” of a multiyear contract. This implies, although does not explicitly state, that application of the risk determination requirement should occur only attendant to award of the contract and not in each subsequent fiscal year. Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), sets forth a two-step test to be used in evaluating the lawfulness of an agency’s

interpretation and implementation of a statutory mandate. The first question in the Chevron analysis is “whether Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. 2778. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778.

If, however, “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778 (footnote omitted). Step two of Chevron is brought on by one of two scenarios — statutory silence as to the “specific issue” or ambiguity.

When the plain language of a statute leads to absurd consequences, see, e.g., AT & T, 177 F.3d at 1383 (Plager, J., dissenting) (criticizing majority’s application of absurd-results standard as too lenient), or to results not in concert with Congress’s policy, see Neptune Mut. Assoc, v. United States, 862 F.2d 1546, 1549 (Fed.Cir.1988), the statute is deemed ambiguous. See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 510-11, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989). In order to resolve ambiguity, the court can utilize a number of resources, if available, including legislative history.

See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778; Princess Cruises, Inc. v. United States, 201 F.3d 1352, 1359 (Fed.Cir.2000). Step two of Chevron admonishes the court to defer to the agency’s construction of the statute as a permissible construction when it “reflects a plausible construction of the plain language of the statute and does not otherwise conflict with Congress’ express intent.” Rust v. Sullivan, 500 U.S. 173, 184, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991); see also Torrington Co. v. United States, 82 F.3d 1039, 1044 (Fed. Cir.1996).

Defendant asserts that ambiguities inhere in the legislation at issue because of both statutory silence as to its application to incremental funding and absurd consequences that plaintiffs reading would yield. On the narrow issue of whether incrementally funded contracts are covered by appropriations restrictions, the statutes are silent.

If plaintiffs reading were accurate, defendant postulates that the DoD would have been required to terminate or to suspend, until risk determinations could be performed, certain fixed-price incentive contracts that were lawfully awarded during FY 1989 and received funding in the FY 1990 appropriations. Such a result, defendant argues, is inconsistent with the acts’ purpose because it would have resulted in harm to the very contractors the acts were designed to protect. Defendant would have the court move to step two of Chevron based on silence and the absurd result. Here, the legislative history is mixed.

Favoring defendant’s reading of the appropriations acts’ restrictions are a conference report, a Senate report, and an authorization act. In its conference report accompanying the FY 1988 appropriations, which contains the risk determination prerequisite, the House conference noted: “The language requires the Under Secretary of Defense for Acquisition to make determinations in writing concerning program risk pri- or to awarding a fixed-price type development contract ----” H.R. Conf. Rep. No. 100-198, at 623 (1988).

A Senate report noted that the FY 1989 restriction should not call into question “the propriety of an otherwise valid contract,” S.Rep. No. 100-326, at 105 (1988), that is, a contract that was entered validly in another year should not be made invalid merely because of the appropriations restrictions. Defendant highlights that Congress reiterated that risk assessment was pre-award in the FY 1989 authorization act. See Pub.L. No. 100-456, § 807, 102 Stat.1918, 2011 (1988) (stating that a risk determination must be performed before contract “may be awarded”).

The DoD interpreted the FY 1988 appropriations act, which included language similar in all relevant respects to those restrictions currently at issue, as applying only before the DoD awarded a contract and not requiring annual risk determinations for contracts covered by the restriction in the appropriations act. On February 11, 1988, after the passage of the FY 1988 appropriations, the USD(A), Dr. Robert Costello, charged with performing the risk determination, issued a memorandum announcing the DoD’s

interpretation of

section 8118. Dr. Costello stated that a risk determination “is not required for incremental funding with FY 1988 monies of a development contract already awarded using funds from a previous fiscal year.” The DoD reenforced this reading when it promulgated DFAR § 235.006, which also indicates a need to perform risk determinations only prior to award and not during each year of a multi-year development contract. See 48 C.F.R. (DFAR) § 235.006 (1989). The courts charge Congress with presumptive awareness of administrative

interpretations of legislation. See Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). When Congress fails “to revise or repeal [an] agency’s

interpretation,” its inaction provides “persuasive evidence that the

interpretation is the one intended by Congress.” NLRB v. Bell Aerospace Co., 416 U.S. 267, 274, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). Because Congress did nothing more than enact substantially identical legislation for the appropriations cycles after Dr. Costello’s

interpretation, this judicial presumption supports the conclusion that Congress intended these appropriations restrictions to apply only prior to the awarding of development contracts and not to incrementally funded contracts of a previous fiscal year to be funded in a given fiscal year. Indeed, although this presumption is occasionally criticized, the House Appropriations Committee and the Senate Armed Services Committee performed reviews of the DoD’s policy in June 1988 and May 1988, respectively. See H.R.Rep. No. 100-681, at 147-49 (1988); S.Rep. No. 100-326, at 104-06 (1988).

Plaintiff culls documents from the legislative history and the DoD’s records to argue that the statutes apply to incrementally funded contracts, and that therefore the DOD’s

interpretation is unreasonable. Plaintiff points to statements by government officials that support a different reading of the conference report than that offered by defendant. Plaintiff suggests that the conference report’s language is not exclusive, i.e., that it does not delimit the entire scope of the restriction. The conference report appears to be open to both parties’ readings. Plaintiff counters defendant’s reliance on

section 807 of the FY 1989 authorization with the passage of the FY 1989 appropriations, Pub.L. No. 100-463, § 8085, 102 Stat. 2270, 2270-32 (1988), amended by Pub.L. No. 100-526, § 105, 102 Stat. 2623, 2625 (1988).

Section 8085 of the FY 1989 appropriations does not contain the same apparent limitation of risk determinations to the pre-award context. Plaintiff proffers two DoD

interpretations of the scope of the risk determinations required by the appropriation acts. Prior to passage of

section 8118, Deputy Secretary of Defense William H. Taft, IV, sent letters dated December 14,1987, to the Chairmen of both the Senate and House Appropriations Committees. Each of Deputy Secretary Taft’s letters included an enclosure that reads: [S]everal changes need to be made in this provision to render it workable. First, this provision overlooks the fact that, due to incremental funding, RDT & E funds appropriated in FY 1988 (or subsequent years) may be obligated on long-term fixed-price development contracts awarded in prior fiscal years.

As the provision now reads, in such cases the Department would still be required to make a written determination for such appropriations to be obligated for contracts awarded in prior years. After passage of the appropriations, DoD’s Assistant General Counsel (Logistics) Dennis H.

Trosch discussed incremental funding in a memorandum dated December 23, 1987: “Accordingly, I am providing you with this ‘heads up’ because of the potential impact on the Department (the language appears to cover FY 88 incremental funding of existing contracts, which may be imminent) and so you can plan for making appropriate reviews so that you can make the required determination.” The court is unwilling to accord Deputy Secretary Taft’s letter the weight that plaintiff requests. Far from an official

interpretation of a statute, Deputy Secretary Taft’s letter is a lobbying letter. It is an effort to entice Congress to change its course. Assistant General Counsel Trosch’s letter, too, is of less import than plaintiff attaches to it. Assistant General Counsel Trosch acknowledges that “[w]e do not have the final printed copies of the legislation” and only posits a “potential impact” because “the language appears to cover ... incremental funding.” By no means could Assistant General Counsel Trosch’s letter be construed as the DoD’s

interpretation. Further, the District of Columbia Circuit Court has indicated that the duty to interpret

an act rests with the official identified in the act as the one to administer the act. See California Co. v. Udall, 296 F.2d 384, 388 (D.C.Cir.1961) (“An administrative official charged with the duty of administering a specific statute has a duty to determine as an initial and administrative matter the meanings of the terms in that statute.”) Thus, Dr. Costello’s

interpretation transcends the two offered by plaintiff. Finally, plaintiff argues that risk determinations that the USD(

A) made regarding other incrementally funded contracts for FY 1988 demonstrate either that defendant’s current

interpretation of the DoD policy is erroneous or that the DoD did not have a consistent policy entitled to deference under Chevron. The DoD performed several risk determinations for contracts similar to the contract at issue in this case. No evidence was offered to indicate the magnitude of these determinations when compared to the total number of similar contracts. If the funding restrictions applicable during FY 1990 to FY 1992 that require risk determinations were ambiguous in their scope, the court would have no difficulty ruling that Dr. Costello’s

interpretation, recorded in his memorandum and reiterated in DFAR § 235.006, is reasonable and therefore entitled to deference. However, the court does not progress beyond step one of Chevron because no ambiguity is present. Neither of defendant’s arguments on this score persuades the court. The statutes themselves are silent only in their breadth. They do not cover the specific issue of incremental funding because they cover all funding.

The appropriations unambiguously read: “None of the funds provided for the Department of Defense in this Act may be obligated or expended for fixed price-type contracts in excess of $10,000,000 for the development of a major system or subsystem unless the Under Secretary of Defense for Acquisition determines, in writing, that program risk has been reduced to the extent that realistic pricing can occur ....” Moreover, defendant’s argument about absurd results does not withstand scrutiny. The mere enactment of the restriction would not lead to absurd results, i.e., termination of contracts.

The DoD could forestall termination by performing risk determinations before the appropriated money is obligated or expended on those covered contracts. The DoD apparently did perform some similar risk determinations for incrementally funded contracts without termination. Assistant General Counsel Trosch’s letter, although of limited import, advances this understanding and does not predict immediate termination of contracts. Congress may have been silent in the face of an agency

interpretation in contravention of an unambiguous statute, but a court does not have that luxury. See FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981) (“[T]he courts are the final authorities on issues of statutory construction. They must reject administrative constructions of the statute ... that are inconsistent with the statutory mandate .... ”); AT & T Corp. v. Excel Communications, Inc., 172 F.3d 1352, 1355 (Fed.Cir.1999) (“In matters of statutory

interpretation, it is [a] court’s responsibility independently to determine what the law is.”). By failing to make risk determinations for the incremental funding of the ATACC contract for FY 1990 to FY 1992, the DoD violated the statutory prerequisites for the funding of this fixed-price incentive contract. 2) Remedy After determining that the contract at issue in AT & T was not void, the Federal Circuit remanded the issue of damages to the Court of Federal Claims.

Although the decision on remand has not been issued, the Federal Circuit identified three possible remedies: “When a contract or a provision thereof is in violation of law but has been fully performed, the courts have variously sustained the contract, reformed it to correct the illegal term, or allowed recovery under an implied contract theory ____” AT & T, 177 F.3d at 1376.

The Federal Circuit, however, was cautious in its remand: Although the parties discuss possible remedies, the issue of what relief may be available to AT & T is not before us, for the Court of Federal Claims did not consider AT & T’s claims on the premise that the underlying contract was not void. We have not considered this issue, and express no view thereon. Id. at 1377. Plaintiff utilizes AT & T as the basis for its request that the court either allow recovery under an implied contract theory or reform the contract.

i) Implied contract Plaintiff relies upon AT & T’s citation of Urban Data Systems, Inc. v. United States, 699 F.2d 1147 (Fed.Cir.1983), for the proposition that “reimbursement on a quantum valebant basis for the reasonable value in the marketplace of the supplies and concomitant services.” Id. at 1154 (citing Cities Serv. Gas Co. v. United States, 205 Ct.Cl. 16, 32, 500 F.2d 448, 457 (1974)). Initially, it should be noted that AT & T only used Urban Data Systems for the modest proposition that a price term contrary to law did not render a fully performed contract invalid. See AT & T, 177 F.3d at 1376.

In Urban Data Systems, plaintiff appealed a determination by an agency board of contract appeals that two of plaintiffs contracts were “void ab initio because the price adjustment clauses” contained therein violated 41 U.S.C. § 254(b) (1976), a statutory prohibition against the use of “cost-plus-a-percentage-of-eost” provisions. 699 F.2d at 1150. The board ruled that, upon presentation to the contracting officer, plaintiff was entitled to recovery on a quantum valebant basis because performance had been completed.

The Federal Circuit held that because “the Government bargained for, agreed to pay for, and accepted the supplies delivered by [plaintiff],” quantum valebant recovery was appropriate given that the only illegality in the contract was the price term. Id. at 1154. Plaintiffs reliance upon Urban Data Systems is misplaced. Urban Data Systems, a 17-year-old case, must be distinguished based on the grounds of recovery that are currently available in the Court of Federal Claims. In Mega Construction Co. v.

United States, 29 Fed.Cl. 396 (1993), the court discussed the differences between the authority of the Federal Circuit and that of the Court of Federal Claims to issue equitable remedies. The court in Mega Construction Co. held: Because the Court of Appeals for the Federal Circuit is a court created under

Article III of the Constitution of the United States, its exercise of equitable powers, such as in [United States v.] Amdahl[, 786 F.2d 387 (Fed.Cir.1986) ], is within its jurisdictional mandate. However, [the Court of Federal Claims] is an

Article I court with specific jurisdiction granted by the Congress that must be strictly construed. See United States v. John C. Grimberg Co., 702 F.2d 1362, 1372-74 (Fed.Cir.1983). This court is statutorily devoid of equitable jurisdiction in this area of the law and, thus may not provide redress for contracts implied-in-law. See 28 U.S.C. § 1491(a)(1); [United States v.] Mitchell, 463 U.S. [206, 218, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)]; Merritt [v. United States,] 267 U.S. [338, 341, 45 S.Ct. 278, 69 L.Ed. 643 (1925) ]. 29 Fed.Cl. at 472; see also AT & T v.

United States, 124 F.3d 1471, 1479 (Fed.Cir. 1997) (noting that Court of Federal Claims generally lacks the power to grant remedies based in equity), rev’d en banc on other grounds, 177 F.3d 1368 (Fed.Cir.1999); City of El Centro v. United States, 922 F.2d 816, 820-24 (Fed.Cir.1990) (construing Court of Federal Claims jurisdiction over implied-in-fact contracts in contrast to implied-in-law contracts), cert. denied, 501 U.S. 1230, 111 S.Ct. 2851, 115 L.Ed.2d 1019 (1991); Wainwright Realty Co. v. United States, 28 Fed.

Cl. 425, 426 (1993) (noting that Court of Federal Claims lacks jurisdiction over claims of unjust enrichment). The Federal Circuit implicitly ratified the holding in Mega Con struction Co. in its decision in Trauma Service Group v. United States, 104 F.3d 1321 (Fed.Cir.1997) The Federal Circuit held: “[I]mplied-in-law contract scenarios are beyond the purview of the Tucker Act” and therefore not remediable in the Court of Federal Claims. Id. at 1327; see also Hercules, Inc. v.

United States, 516 U.S. 417, 423, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996) (noting that Court has “repeatedly held that [Court of Federal Claims] jurisdiction [does not extend] to claims on contracts implied in law”). An implied-in-fact contract fact also provides no ground upon which plaintiff can stake its claim for recovery. An implied-in-fact contract arises when all of the elements of an express contract are present, except a written document. See Atlas Corp. v.

United States, 895 F.2d 745, 754 (Fed.Cir.1990). “The existence of an express contract precludes the existence of an implied contract dealing with the same subject----” Id. (citing ITT Fed. Support Servs. v. United States, 209 Ct.Cl. 157, 168 n. 12, 531 F.2d 522, 528 n. 12 (1976)). The parties to the present litigation entered an express contract on the exact subject that is the topic of this case. AT & T held that even if the contract were illegal, it would not be void ab initio. Thus, the ATACC contract precludes the existence of an implied-in-fact contract that merits quantum valebant recovery.

If the Federal Circuit were to have used the phrase “an implied contract theory” improvidently and were to have intended to impart another meaning, the court is unable to decipher what that other “implied contract theory” is. Therefore, although the Federal Circuit intimated that quantum valebant recovery for an implied contract may be available, such is not the case given the statutory limitations placed upon this

Article I court, ii) Reformation Plaintiff beseeches this court to reform the contract as an alternative remedy to enforcement of an implied contract. In an oversimplification, plaintiff claims that “[generally, there are only two types of government contracts: fixed-price contracts and cost-reimbursement contracts.” Plfs Br. filed Dec. 2, 1999, at 20. Plaintiff argues for reformation to a cost-reimbursement contract. The remedy of reformation is a narrow one, bringing a contract into conformity with “the true agreement of the parties on which there was a meeting of the minds.” American President Lines, Ltd. v.

United States, 821 F.2d 1571, 1582 (Fed.Cir. 1987). Reformation is not intended to be a means by which a court injects itself into the contracting process to create the contract that it determines is best for the situation. See Atlas, 895 F.2d at 749 (noting that courts have “no authority to write contracts, or contract clauses, for the United States by means of reformation where there has been no agreement”) (citing American President Lines, 821 F.2d at 1582).

Although plaintiff cites no cases other than AT & T for its argument that reformation cures the illegality, AT & T itself provides two such cases, LaBarge Products, Inc. v. West, 46 F.3d 1547 (Fed.Cir.1995), and Beta Systems, Inc. v. United States, 838 F.2d 1179 (Fed.Cir.1988) — cases upon which plaintiff relies in its argument for reformation because of violation of the FAR. See Plfs Br. filed Dec. 2,1999, at 24.

In LaBarge the Federal Circuit denied relief to the contractor, but held that a “claim for reformation of the ... contract [by the Armed Services Board of Contract Appeals (the “ASBCA”)] is supported by a valid legal theory based on illegal government conduct.” 46 F.3d at 1556. The contractor was the low bidder on an Army contract for the manufacture of pipe couplings. The Army procurement officer met with the contractor to indicate that he was going to request BAFOs. The contractor responded that it would offer a BAFO that contained a reduction from $38.50 per coupling to a price in the low $30.00 range.

Someone involved in the procurement notified the contractor’s main competitor for the coupling contract of the amount that the contractor intended to bid. Although the competitor’s bid in its BAFO was lower for the first year, the contractor’s bid was lower over the life of the contract and was accepted by the Army. The disappointed bidder filed a bid protest in which it revealed that the contractor’s BAFO range had been disclosed. The contractor joined the protest. After the protest was denied, the contractor performed at its BAFO price.

The contractor thereafter sought reformation of the contract by the ASBCA in order to recover the difference between its initial bid and its BAFO bid. The contractor alleged violation of the prohibition against auctioning techniques contained in FAR § 15.610(d) (1984). When the ASBCA denied recovery, the contractor appealed to the Federal Circuit. The Federal Circuit in LaBarge relied upon two cases from the United States Court of Claims — CRF-A Joint Venture of Cemco, Inc. and R.F. Communications, Inc. v. United States, 224 Ct.Cl. 312, 324-26, 624 F.2d 1054, 1061-62 (1980), and Applied Devices Corp. v.

United States, 219 Ct.Cl. 109, 119-20, 591 F.2d 635, 640-41 (1979) — as binding precedent that jurisdiction was present to award reformation in the face of a contract illegality. See LaBarge, 46 F.3d at 1552. In CRF-A Joint Venture, the Court of Claims considered whether the contracting officer’s unlawful demand that the contractor refurbish eight first-article radios to production quality amounted to an exercise of further production options. The contract called for the contractor to manufacture a total of 362 production units, including refurbished first-article units.

In contravention of the competitive-bidding regulations, the contracting officer told the contractor that the eight refurbished units were in addition to the 362 production units. The contractor produced the extra units and received no additional compensation. The court ruled that such an order, though illegal and without authority, could be the grounds for reformation because the order of additional units harmonized with the production option that the parties had included in their contract. See CRF-A Joint Venture, 224 Ct.Cl. at 325-26, 624 F.2d at 1061-62.

In Applied Devices the Court of Claims remanded to the trial division an appeal from an ASBCA ruling that denied reformation. The Court of Claims held that the failure of the Government to meet the Armed Services Procurement Regulations (the “ASPR”) requirement for a “reasonable and realistic estimate of labor learning [] and other nonrecurring costs for computation of the ‘cancellation ceiling’ ” warranted reformation. 219 Ct.Cl. at 118, 591 F.2d at 639.

Although not explicit in the court’s reasoning, it can be inferred that the court granted reformation because the parties would not have entered the contract with an illegal price term, but, rather, intended to incorporate a cancellation ceiling that complied with the law, ie., one that reflected “the nonrecurring initial costs in a realistic manner as ASPR l-322.2(

d) and (

e) required.” Id. at 114, 591 F.2d at 637. In Beta Systems, on appeal from a

summary judgment decision, the Federal Circuit considered the parties’ erroneous selection of a specific statistical index by which to adjust the contract price under an Economic Price Adjustment (“EPA”) clause. To comply with contracting regulations, the parties attempted to select an index that would “‘bear a logical relationship to the type of contract costs being measured,’ ” or approximate changes in material costs. Beta Sys., 838 F.2d at 1185 (quoting DAR § 3-404.3(c)(3)c.5 (1981)). When the material costs fluctuated and the EPA clause did not keep pace, the contractor sued.

Because neither party would have intended to use an index that, from the contractor’s point of view, would have frustrated its economic expectations and, from the Government’s view, would have been illegal, the court ruled that “reformation is appropriate” if the facts on remand were to indicate that the contract violated the DAR and the EPA clause did not approximate the economic changes affecting the contract. Id. at 1186. LaBarge, Applied Devices, and Beta Systems are not apposite to the case at bar.

The primary distinction is that the alleged illegality in each case that gave rise to the possibility of reformation involved pricing. In LaBarge the court considered reformation that would increase the price term to that proposed by the contractor before the call for BAFOs. Such a reformation could be appropriate if the higher price were what the parties intended in the absence of the allegedly illegal behavior by the Government. In Applied Devices the court permitted reformation to correct the erroneous and illegal selection of a cancellation ceiling.

The parties, which possessed the requisite intent to contract, would not have selected a cancellation ceding that would have voided their contract. In Beta Systems there appeared to be an intention on the part of both parties to enter a contract different from that which they actually formed, that is, they mistakenly chose the specific EPA clause. Reformation to a cost-reimbursement contract brings additional difficulties. First, the cost-reimbursement contract that plaintiff seeks would itself present problems of legality.

Second, reformation of the contract to cure the illegality would create a most unusual contract. As a threshold matter, federal government contracts must meet the requirements of federal law and the FAR. See FAR § 1.602-l(b) (1999) (“No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met.”). Failure of a contracting officer .to follow these requirements may create the predicate for a claim.

For example, 10 U.S.C. § 2306(c) (1988) (repealed 1994), required that no cost-type contracts could be awarded without agency head certification that no lower cost alternatives were available. The FAR incorporated this restriction, as well. See FAR § 16.301-3(c) (1988). In the instant case, the Secretary of Defense did not make any determination that no lower cost alternatives were available. Reformation to a cost-type contract, then, would bring about the same deficiency about which plaintiff complains in the instant action.

The court is unwilling to trade one illegality for another, even when plaintiff asks for it. Athough awkwardness is not a criterion for reformation, plaintiffs plea for reformation because of the illegality during FY 1990 to FY 1992 would have an unusual effect. For FY 1989, the contract would remain a fixed-price incentive contract. For FY 1990 to FY 1992, the contract would be reformed to be a cost-type contract. For FY 1993 to completion of the contract, it would revert to a fixed-price incentive contract. This result gives the court pause.

It also further suggests that this arrangement would not reflect the intent of the parties. Reformation of the ATACC contract is not appi'opriate. The instant dispute does not fit the mold of a contract for which reformation is an acceptable remedy. Moreover, reformation would not solve the illegality, but rather would create a different illegality, iii) Enforcement as written According to AT & T, one option remains to the court: enforcement as written.

Plaintiff contends that such a result would be inappropriate because the appropriations restrictions “were promulgated precisely to avoid the result in this ease — costly overruns incurred by a contractor performing high-risk development work for a fixed price.” Plfs Br. filed Dec. 2, 1999, at 18. Enforcement as written, regardless of the illegality, brings no unjust result. See, e.g., LaBarge Prods., 46 F.3d at 1556; Trilon Educ. Corp. v. United States, 217 Ct.Cl. 266, 273-74, 578 F.2d 1356, 1360 (1978) (citing cases), cited in AT & T, 177 F.3d at 1376.

Athough GDS was exposed to a number of risks, GDS was cognizant of the risks, as evidenced by the risk assessments that it performed before entering the contract. GDS, a sophisticated government contractor, had available to it all the information necessary to bid on the ATACC contract. Using this information, GDS determined that the risks were low.

The Marine Corps may have exacerbated the problems of performance through constructive changes, a lack of cooperation, or deficiencies within the specification and the contract; nonetheless, such problems do not go to the underlying issue of whether a risk determination was made according to the appropriations restrictions, and are better addressed on a case-by-case basis, rather than by awarding plaintiff full recovery. The full cost recovery plaintiff seeks under this theory of recovery would bring a windfall to which it is not entitled.

The Federal Circuit’s caution in AT & T, that it “ha[d] not considered” “what relief may be available,” 177 F.3d at 1377, raises the possibility that, of the three forms of relief that the court indicated might be available, any one actually might be unavailable. This court’s authority is circumscribed in that it cannot grant the equitable relief sought because, as an

Article I court, it lacks the requisite judicial power. Reformation is also unavailing because no evidence suggests that the parties intended to enter a cost-type contract. Accordingly, the court enforces the ATACC contract as written. Plaintiff is not entitled to recovery on the allegation of contract illegality related to appropriations restrictions for FY 1990 to FY 1992. 2. Regulatory restrictions on contract type Plaintiff challenges the award of the contract as violative of the applicable regulatory requirements for the “selection of] a firm-fixed-price contract.” Plfs Br. filed Dec. 2,1999, at 21.

For this alleged violation of the regulations, plaintiff seeks either recovery in quantum valebant or reformation of the contract to a cost-reimbursement contract. Defendant counters by arguing that the contract at issue is a fixed-price incentive contract. As a fixed-price incentive contract, defendant contends, the ATACC contract was not subject to the stricter requirements for the selection of a firm fixed-price contract.

In a December 20, 1999 order, the court ruled that the ATACC contract was awarded as a fixed-price incentive contract, not a firm fixed-price contract or a de facto firm fixed-price contract as plaintiff argues. See Order filed Dec. 20, 1999, at 10-11 (noting that “[t]he contract does not contain the essential element of a firm fixed-price contract” and “is a fixed-price incentive contract”).

Plaintiffs arguments based on the regulatory requirements of firm fixed-price contracts are misplaced; however, the court considers whether the applicable regulations for fixed-price incentive contracts were satisfied by the Navy prior to selection of the contract type.

Part 16 of the FAR “prescribes policies and procedures and provides guidance for selecting a contract type appropriate to the circumstances of the acquisition.” FAR § 16.000. For fixed-price incentive contracts, the FAR directs: (

b) Application. A fixed-price incentive contract is appropriate when—

(1) A firm-fixed-price contract is not suitable;

(2) The nature of the supplies or services being acquired and other circumstances of the acquisition are such that the contractor’s assumption of a degree of cost responsibility will provide a positive profit incentive for effective cost control and performance; and

(3) If the contract also includes incentives on technical performance and/or delivery, the performance requirements provide a reasonable opportunity for the incentive to have a meaningful impact on the contractor’s management of the work. FAR § 16.403(b). While the application portion of the

section 16.403 provides a broad range of scenarios in which a fixed-price incentive contract might be appropriate, selection of fixed-price incentive contracts is further limited. (

e) Limitations. A fixed-price incentive contract may be used only when a determination and findings has been executed, in accordance with agency procedures, showing that (1) this contract type is likely to be less costly than any other type or (2) it is impractical to obtain supplies or services of the kind or quality required without the use of this contract type. FAR § 16.403(c) (citations omitted). FAR § 16.403-1 governs the procedures and criteria that the Navy would have had to satisfy to award the contract. It provides: (

b) Application. A fixed-price incentive (firm target) contract is appropriate when the parties can negotiate at the outset a firm target cost, target profit, and profit adjustment formula that will provide a fair and reasonable incentive and a ceiling that provides for the contractor to assume an appropriate share of the risk. When the contractor assumes a considerable or major share of the cost responsibility under the adjustment formula, the target profit should reflect this responsibility. (

c) Limitations. This contract type may be used only when—

(1) The contractor’s accounting system is adequate for providing data to support negotiation of final cost and incentive price revision;

(2) Adequate cost or pricing information for establishing reasonable firm targets is available at the time of initial contract negotiation; and

(3) The determination and findings required by 16.403(

c) has been signed. The parties do not dispute the satisfaction of FAR § 16.403(b), which offers the widest range of contracts that may be appropriately let as fixed-price incentive contracts. They do not even dispute that the appropriate findings were made under FAR § 16.403(c). Although other criteria must be satisfied under FAR § 16.403-l(

b) and (c), the parties focus on the availability of adequate cost or pricing information. Plaintiff also challenges whether the Government was required by the FAR to ensure a reasonable apportionment of the contract risk.

In addition to directly countering these arguments, defendant makes the fallacious argument that “agency determinations and findings in support of a selection of contract type are ‘final’ and unreviewable by courts.” Defs Br. filed Dec. 13,1999, at 20. 1) Adequate cost and, pricing information Although not expressly speaking to risk, the requirement that adequate cost and pricing information be available at the time of initial contract negotiations does implicate risk as a factor. Adequate cost and pricing information cannot mean an absence of risk, for such is an impossibility.

All contracts contain some element of risk. The existence of risk cannot preclude the existence of adequate cost and pricing information. Risk is but one component of adequate cost and pricing information, ie., cost and price are functions of risk. The greater the risk of an endeavor, the greater the price charged for undertaking that endeavor. Therefore, even high-risk contracts may contain adequate cost and pricing information to permit the contractor and the Government to arrive at firm targets. Before settling on the fixed-price incentive contract, according to Mr.

Monaco, Director of Contracts at SPAWAR, all contract types were considered. Calculon performed a risk analysis, concluding that the risks were “moderate and manageable.” SPAWAR prepared the Acquisition Plan, which contains the rationale for the selection of a fixed-price incentive contract. The Acquisition Plan lists three factors for contract choice, including “[u]se of non-developmental hardware,” “[ejxistence of data link software which will be provided as GFI to the ATACC developer,” and “[sjoftware to be developed is primarily an information management type subsystem.” Mr.

Monaco did not recall other assumptions that entered into the contract selection rationale. Mr. Monaco, who played a significant role in drafting the Acquisition Plan, testified that SPAWAR approved the Acquisition Plan on July 11, 1986. At that time Col. Robert J. Speights was the Program Manager; Adm. Clark, Commander of SPAWAR. Through his conversation with Robert Meyers, branch head in the PMO, Mr. Monaco believed that the ATACC program would integrate already existent components. The use of NDI was a basic assumption of the Acquisition Plan.

In its description of the program, the Acquisition Plan indicates: “Hardware development will be eliminated and a replacement for the present system fielded by, to the maximum extent possible, integrating military specification or militarized items of hardware already in service use. In order to facilitate this acquisition strategy, the maximum possible use will be made of applicable existing software.” If there were a substantial pull-back in the amount of NDI, Mr. Monaco would have reconsidered the fixed-price contract type.

On August 24, 1987, GDS submitted its ATACC proposal, which contained a risk assessment as directed by the solicitation. In paragraph 3.2.1.9.2, the proposal reads, in part, “The preliminary risk assessment for ATACC has been performed during the proposal preparation phase. Each of the preliminary risks have [

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