April 25, 2023; the Court of Appeals agreed with the Armed Services Board of Contract Appeals (ASBCA) that a contractor cannot take a unilaterally established Undefinitized Contract Action (UCA) to the Board without first submitting a certified claim request for a final decision by the contracting officer.
Lockheed Martin Aeronautics Company, 67 CCF ¶82,468, (Apr. 25, 2023)
This case involved two UCAs for upgrades to F-16 aircraft under the Foreign Military Sales program. The Government awarded the UCAs and started down the path laid out in FAR 52.216-25. FAR 52.216-25(c) states in part: “If agreement on a definitive contract to supersede this letter contract is not reached by the target date in paragraph (b) of this section, or within any extension of it granted by the Contracting Officer, the Contracting Officer may, with the approval of the head of the contracting activity, determine a reasonable price or fee in accordance with subpart 15.4 and part 31 of the FAR, subject to Contractor appeal as provided in the Disputes clause.” (Emphasis added) Lockheed assumed that the contracting officer’s unilateral definitization was in effect a claim by the Government that could be directly appealed to the Board under the Disputes clause FAR 52.233-1. Both the Board and Appeals Court found that the contracting officer’s definitization as outlined in FAR 52.216-25 was not a Government claim as it did not demand or assert entitlement to anything from the contractor.
Our Takeaway
If the Government unilaterally establishes the price of a UCA, the contractor must first submit a certified claim with an amount (i.e., sum certain) to which the contracting office will be required to respond with a contracting officer’s final decision. Then an appeal to the Board under the Disputes clause can be raised.
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John is a Director with Redstone Government Consulting, Inc. providing government contract consulting services to our clients primarily related to the DFARS business systems, CAS Disclosure Statements, and DCAA/DCMA compliance preparation, advisory, and defense. Prior to joining Redstone Government Consulting, John served in a number of capacities with DCAA/DCMA for more than 30 years. Upon his retirement, he was based in Texas as an SES-level Corporate Audit Director for DCAA, managing a staff of 300 auditors at one of the largest DOD programs. Professional Experience John began his career in the late 80s working in the Clearwater, FL audit office and over the next three decades he progressed through a number of positions within both DCAA and DCMA with career highlights as DCAA Program Manager at Ft. Belvoir, Chief of Technical Programs Division, Deputy Assistant Director-Policy, Director of the DCMA Cost and Pricing Center, the SES-level Lockheed Martin Corporate Audit Director, and Director of Integrity and Quality Assurance. John’s three decades of experience in performing and leading DCAA auditors and DCMA reviewers provides a wealth of expertise to our clients. John’s role, not only in the performance of audits, but also in the development of audit policy affords him unique insights into the defense of audit findings and the linkage of audit program steps to the underlying regulatory framework. He is an expert in FAR, DFARS, and other agency acquisition regulation, as well as a subject matter expert in the Cost Accounting Standards having reviewed and provided audit feedback on many of the largest and most complex cost accounting practices during his tenure with the DCAA. John’s tenure with DCAA and DCMA came at a critical time during each agency’s history where a number of changes were occurring such as the response to the ICS backlog, development of audit approaches to the DFARS Business Systems and implementation of new audit initiatives as a result of Congressional oversight through the NDAA process. John’s leadership at the DCMA Cost & Pricing center saw oversight of all major DOD pricing actions, leadership of should cost review teams, the Commercial Pricing group and many other areas of strategic value to our clients. His involvement in these and other Agency initiatives is of great value to our clients due to his in depth understanding of DCAA and DCMA’s internal policy directives. Education John holds a Master of Business Administration and a B.A. in Accounting from the University of South Florida. Certifications Certified Information Systems Auditor State of Alabama Certified Public Accountant