• Multidistrict Burn Pit Litigation Raised Political Question
• Government Failed to Prove CAS Noncompliance Claim
• Claim Misunderstood Contract Scope, Not False or Fraudulent
• Revised Quotation Did Not Adequately Address Technical Issues

• Aviation Program Management Services — $1.5 Billion
• F-16 Aircraft — $830 Million
• Laboratory Supplies — $234 Million

Multidistrict Burn Pit Litigation Raised Political Question

Multidistrict litigation against wartime contractors was dismissed by the District Court for the District of Maryland because the plaintiffs’ claims were non-justiciable under the political question doctrine. The majority of the plaintiffs were United States military personnel who sought to recover for injuries allegedly suffered as a result of exposure to open burn pits and contaminated water at military bases throughout Iraq and Afghanistan. The court concluded "[t]he actions complained of are not ones taken by the [contractors] alone, and [their] defenses (e.g., contributory negligence and causation) would necessarily require review of the reasonableness of military decisions, a role that is simply not appropriate for, or within the competence of, the judiciary." (In re: KBR, Inc., Burn Pit Litigation, DC Md, 57 CCF ¶80,045)

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Government Failed to Prove CAS Noncompliance Claim

The government’s claim alleging noncompliance with Cost Accounting Standards was denied by the Court of Federal Claims because the government failed to prove the contractor’s method of allocating materiel overhead violated Cost Accounting Standard 418. The government did not adequately support its contention that direct materiel should have been used to allocate the materiel overhead pool, nor did it provide any evidence to establish that CAS 418 required the use of an alternate method of allocation involving the segregation of government furnished materiel-related costs in a distinct indirect cost pool. (Sikorsky Aircraft Corp. v. U.S., FedCl, 57 CCF ¶80,040)

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Claim Misunderstood Contract Scope, Not False or Fraudulent

Government counterclaims alleging violation of the False Claims Act, the Contract Disputes Act, and the special plea in fraud statute were denied by the Court of Federal Claims because the government failed to prove the construction contractor knowingly presented false or fraudulent claims to the government. The counterclaims were denied because government failed to identify any "falsities": the contractor’s belief the contract did not include its proposal was sincere; the claim’s listing of subcontractors anticipated to perform the work and the estimated costs, even though the subcontractors did not submit claims to the contractor, was not improper; the 172 percent general and administrative direct labor rate was higher than the 165 percent rate established in an audit of a state surveying services contract, but was not false; a $15,000 claim for light poles that cost the contractor $10,089 was viewed as an estimate pending receipt of a credit card statement; and mark-ups sought for work performed by other contractors were transparently stated in the claim. (Hernandez, Kroone & Associates, Inc. v. U.S., FedCl, 57 CCF ¶80,044)

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Revised Quotation Did Not Adequately Address Technical Issues

A challenge to an evaluation and selection decision was rejected because the government’s concerns regarding the protester’s approach to a technical requirement were reasonable. The Comptroller General denied the protest, finding the government had "good reasons" to be concerned with the protester’s help desk approach. Although the protester increased its help desk staffing in response to the discussions, it failed to explain how the additional staff would be used. Also, the protester did not demonstrate it would not be using the help desk as a "call handling center." (NCI Information Systems, Inc., 28 CGEN ¶114,047)

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Aviation Program Management Services — $1.5 Billion

Science and Engineering Services LLC, Huntsville, Ala.; and Support Systems Associates Inc., Melbourne, Fla.; were awarded an indefinite-delivery/indefinite-quantity, multiple-award, firm-fixed-price contract with a maximum value of $1,500,000,000 for services in support of Army Aviation program management. The Army Contracting Command, Redstone Arsenal, Ala., is the contracting activity.

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F-16 Aircraft — $830 Million

Lockheed Martin Aeronautics Corp., Fort Worth, Texas, is being awarded an $830,000,000 firm-fixed-price, cost-plus-fixed-fee contract modification for additional production of 18 Iraq F-16 aircraft and associated support equipment, technical orders, integrated logistics support, contractor logistics support and an electronic warfare system. The Air Force Life Cycle Management Center/WWMK at Wright-Patterson Air Force Base, Ohio, is the contracting activity.

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Laboratory Supplies — $234 Million

Fisher Scientific Co., LLC, Pittsburgh, Pa., has been awarded a maximum $233,598,349 modification exercising the fourth option year of a base contract with four one-year option periods for selection of a distributor to make available laboratory supplies and wares using the Laboratory Electronic Catalog program. The contracting activity is the Defense Logistics Agency Troop Support, Philadelphia, Pa.

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