      In the United States Court of Federal Claims
                                  No. 17-1969C

                             (E-Filed: May 29, 2019)

                                       )
 THE BOEING COMPANY,                   )
                                       )
                                              Contract; Cost Accounting
                     Plaintiff,        )
                                              Standards Dispute; Failure to
                                       )
                                              Establish Jurisdiction for Illegal
 v.                                    )
                                              Exaction Claim; Cross-Motions for
                                       )
                                              Summary Judgment, RCFC 56;
 THE UNITED STATES,                    )
                                              Waiver of Claims.
                                       )
                     Defendant.        )
                                       )

Charles J. Cooper, Washington, DC, for plaintiff. Michael W. Kirk, Howard C. Nielson,
Jr., John D. Ohlendorf, and Seth H. Locke, of counsel.

Erin K. Murdock-Park, Trial Attorney, with whom were Joseph H. Hunt, Assistant
Attorney General, Robert E. Kirschman, Jr., Director, Elizabeth M. Hosford, Assistant
Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant. Arthur Taylor and Kara M. Klaas, Defense
Contract Management Agency, Chantilly, VA, of counsel.

                                       OPINION

CAMPBELL-SMITH, Judge.

       This case is before the court on dispositive cross-motions, brought under Rules
12(b)(1), 12(b)(6), 12(c) and 56 of the Rules of the United States Court of Federal Claims
(RCFC). Plaintiff filed a motion for judgment on the pleadings, ECF No. 11, which was
countered by defendant’s motion to dismiss, or, in the alternative, motion for summary
judgment, ECF No. 15. Replies were filed by plaintiff, ECF No. 16, and by defendant,
ECF No. 17; oral argument was held on August 1, 2018, ECF No. 20 (oral argument
transcript).

     The court ordered supplemental briefing on topics discussed at oral argument. See
ECF No. 18 (order). Plaintiff’s supplemental brief was filed on September 21, 2018. See
ECF No. 22. Defendant’s supplemental response brief was filed on November 2, 2018.
See ECF No. 27. Finally, plaintiff’s supplemental reply brief was filed on November 20,
2018. See ECF No. 28.

       The focus of this lawsuit is on the application of cost accounting standards to a
contract between the United States military and The Boeing Company (Boeing). For the
reasons set forth below, plaintiff’s motion for judgment on the pleadings is DENIED,
and defendant’s combined motion to dismiss and motion for summary judgment is
GRANTED.

I.     Background

       Boeing contracts with the government to provide military aircraft and related
services; the division of Boeing implicated here had the United States Department of
Defense as its primary customer. ECF No. 1 at 8-9 (complaint). This suit challenges a
contracting officer’s final decision on a government claim, issued by the Defense
Contract Management Agency (DCMA) on December 21, 2016. See id.; ECF No. 1-2 at
2-9. Plaintiff also challenges DCMA’s subsequent rejection of Boeing’s related claim on
November 21, 2017. ECF No. 1 at 7-8; ECF No. 1-1 at 2-3. The gravamen of plaintiff’s
complaint is that the government incorrectly applied cost accounting standards (CAS),
which are set forth in 41 U.S.C. §§ 1501-1506 (2012) and 48 C.F.R. § 9903.201-4
(2018). 1 ECF No. 1 at 1. Plaintiff seeks relief regarding one representative contract,
Contract No. N00019-09-C-0019. Id.; ECF No. 1-2 at 4.

       However, plaintiff also seeks declaratory relief that would apply to “each of the
relevant contracts between Boeing and the United States.” ECF No. 1 at 35. Even if this
request for relief is limited to the Boeing division that is identified in the complaint, that
division entered into “hundreds of contracts” from 1992 through 2015. Id. at 9. Much of
the complaint addresses Federal Acquisition Regulation (FAR) 30.606, which, according
to plaintiff, “violates the CAS statute.” 2 Id. at 5. Plaintiff’s challenge to FAR 30.606 is
multi-faceted, but only a few aspects of that challenge will be examined in detail in this
opinion. At oral argument, plaintiff noted that Boeing has raised this type of challenge to
FAR 30.606 in three suits before the undersigned, and in twelve cases before the board of
contract appeals. ECF No. 20 at 17-18. Defendant argued that the impact of declaratory



1
      All citations in this opinion are to the current version of Title 48 of the Code of
Federal Regulations, known as the Federal Acquisition Regulation (FAR), unless
otherwise noted.
2
        The specific provision challenged by plaintiff is FAR 30.606(a)(3)(ii), which is
referred to more generally in this opinion as “FAR 30.606.” See ECF No. 11-1 at 20
(asserting that the CAS statute requires what “FAR 30.606(a)(3)(ii) purports to bar”).


                                              2
relief invalidating FAR 30.606 would affect “thousands of contracts across the
Government.” Id. at 46-47.

       In the representative contract, FAR 30.606 prevented Boeing from offsetting
“eight simultaneous accounting changes” which “had mixed effects on the composition
of Boeing’s pool of costs on its CAS-covered contracts.” ECF No. 1 at 3, 5. The first
three counts of the complaint could be characterized as claims founded on the contract (or
contracts) between Boeing and the United States. Id. at 31-34. The fourth count of the
complaint asserts that an illegal exaction occurred when FAR 30.606 was applied to
Boeing’s contract, in violation of 41 U.S.C. § 1503(b). Id. at 34-35. When only the
representative contract is considered, Boeing asserts that the government’s claim for
$1,064,773 is invalid, and that damages for the payments paid by Boeing on the
government’s claim, plus interest, should be awarded to Boeing. Id. at 35.

        FAR 30.606, in relevant part, went into effect on April 8, 2005. ECF No. 15-1 at
112. Boeing entered into the representative contract on December 4, 2008. Id. at 136.
Boeing implemented eight simultaneous accounting changes on January 1, 2011, which
were deemed to be “unilateral” changes under the FAR. ECF No. 1 at 24-29. It is these
accounting changes, and their treatment under FAR 30.606 by the DCMA, that give rise
to the dispute in this case.

II.    Standards of Review

       A.     Motion to Dismiss under RCFC 12(b)(1)

       When reviewing a complaint to determine its jurisdiction over a plaintiff’s claims,
this court must presume all undisputed factual allegations to be true and construe all
reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982);
Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988) (citations
omitted). Plaintiff bears the burden of establishing subject matter jurisdiction by a
preponderance of the evidence. Reynolds, 846 F.2d at 748 (citations omitted). If
jurisdiction is found to be lacking, this court must dismiss the action. RCFC 12(h)(3).

       B.     Motion to Dismiss under RCFC 12(b)(6) Converted to RCFC 56 Motion

        When considering a motion to dismiss brought under RCFC 12(b)(6), “the
allegations of the complaint should be construed favorably to the pleader.” Scheuer, 416
U.S. at 236. “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). When the parties rely on materials outside of the pleadings, and the
court must consider those materials to decide a motion brought under RCFC 12(b)(6), as
is the case here, the motion must be treated as one for summary judgment. See RCFC


                                               3
12(d) (“If, on a motion under RCFC 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one for
summary judgment under RCFC 56.”).

       C.     Motion for Judgment on the Pleadings Treated as a Motion for Summary
              Judgment

        If the parties support their arguments regarding a motion for judgment on the
pleadings with matters outside the pleadings, the court will convert the RCFC 12(c)
motion to a motion for summary judgment under RCFC 56. See RCFC 12(d). That is
the situation in this case. See ECF No. 11-2; ECF No. 15-1; ECF No. 17-1; ECF No.
27-1; ECF No. 28-1; ECF No. 28-2. When the RCFC 12(c) motion is converted to a
summary judgment motion, the parties must be given a “reasonable opportunity to
present all the material that is pertinent to the motion.” RCFC 12(d). The court
confirmed that the briefing schedule proposed by the parties and adopted by the court
afforded the parties a reasonable opportunity to brief their dispute under the standard
applicable to RCFC 56. See ECF No. 20 at 37, 62, 65. Thus, plaintiff’s motion for
judgment on the pleadings will be considered pursuant to the standard of review
applicable to RCFC 56. See Schultz v. United States, 5 Cl. Ct. 412, 415-16 (1984)
(converting a motion for judgment on the pleadings to a motion for summary judgment in
similar circumstances).

       D.     Cross-Motions for Summary Judgment

        The party moving for summary judgment will prevail “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” RCFC 56(a). A genuine dispute of material fact is one that could
“affect the outcome” of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). “[A]ll evidence must be viewed in the light most favorable to the nonmoving
party, and all reasonable factual inferences should be drawn in favor of the nonmoving
party.” Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994)
(citations omitted). For cross-motions for summary judgment, “the court must evaluate
each party’s motion on its own merits, taking care in each instance to draw all reasonable
inferences against the party whose motion is under consideration.” Mingus Constructors,
Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987) (citation omitted).

III.   Analysis

       Defendant has raised one jurisdictional challenge to the claims in Boeing’s
complaint that is persuasive to the court, and another that is not. The court will address
these challenges first. The court will then consider whether the affirmative defense of
waiver entitles defendant to summary judgment and compels dismissal of plaintiff’s
claims on the merits.



                                             4
       A.     Jurisdictional Challenge to Plaintiff’s Illegal Exaction Claim

              1.     Overview of Precedent

       Plaintiff argues that there is no jurisdictional barrier to its illegal exaction claim.
ECF No. 11-1 at 42-44; ECF No. 16 at 15-18; ECF No. 22 at 29-33; ECF No. 28 at
22-24. Plaintiff relies to a great extent on three decisions of the United States Court of
Appeals for the Federal Circuit: Aerolineas Argentinas v. United States, 77 F.3d 1564
(Fed. Cir. 1996); Norman v. United States, 429 F.3d 1081 (Fed. Cir. 2005); and Stockton
East Water District v. United States, 583 F.3d 1344 (Fed. Cir. 2009). A brief review of
the holdings in these cases is indeed instructive.

        In Aerolineas Argentinas, the Federal Circuit set forth the analytical framework
which determines whether this court possesses jurisdiction for an illegal exaction claim.
77 F.3d at 1572-78. The jurisdictional analysis was founded, in large part, on Bell v.
Hood, 327 U.S. 678, 682-83 (1946). 3 Aerolineas Argentinas, 77 F.3d at 1572, 1574. The
Federal Circuit noted, in particular, that the Court of Claims “held that on the allegation
that the government had illegally exacted money by enforcement of a regulation that was
contrary to statute, the court had jurisdiction under the Tucker Act to render judgment
against the United States for recovery of that money.” Id. at 1573 (citing Eversharp, Inc.
v. United States, 125 F. Supp. 244, 247 (Ct. Cl. 1954)).

        The Federal Circuit also held that “[i]f the [plaintiffs] fail to establish that the
exaction was contrary to law, that failure does not deprive the court of jurisdiction, but
serves as an adjudication on the merits.” Id. at 1574 (citing Bell v. Hood, 327 U.S. at
682). This particular statement in Aerolineas Argentinas, in the court’s view, is in
harmony with the Federal Circuit’s guidance as to a “single step” jurisdictional analysis.
See Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (en banc) (“When a
complaint is filed alleging a Tucker Act claim based on a Constitutional provision,
statute, or regulation, see 28 U.S.C. § 1491(a)(1) [(2012)], the trial court at the outset
shall determine, either in response to a motion by the Government or sua sponte (the
court is always responsible for its own jurisdiction), whether the Constitutional provision,
statute, or regulation is one that is money-mandating.”). Before leaving this discussion of
Aerolineas Argentinas, the court notes that plaintiff’s reliance on the concurrence in that
decision does not identify binding precedent. See ECF No. 16 at 17 (citing Aerolineas
Argentinas, 77 F.3d at 1579 (Nies, J., concurring)).



3
       The Supreme Court of the United States recently questioned whether one aspect of
the Bell v. Hood jurisdictional analysis of 28 U.S.C. § 1331 (2012) is applicable in other
jurisdictional inquiries. Bolivarian Republic of Venez. v. Helmerich & Payne Int’l
Drilling Co., 137 S. Ct. 1312, 1322 (2017) (quoting Bell v. Hood, 327 U.S. at 685).


                                              5
        In Norman, the Federal Circuit reviewed this court’s decision to dismiss an illegal
exaction claim on jurisdictional grounds, before trying a takings claim founded on the
frustrated development of real estate. 429 F.3d at 1085-87. There are four relevant
statements of law in Norman. First, the definition of an illegal exaction is set forth:

              An “illegal exaction,” as that term is generally used, involves money
       that was “improperly paid, exacted, or taken from the claimant in
       contravention of the Constitution, a statute, or a regulation.”

Norman, 429 F.3d at 1095 (quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002,
1007 (1967)). Second, the Federal Circuit identified the source of this court’s jurisdiction
to entertain illegal exaction claims. See id. (“An illegal exaction involves a deprivation
of property without due process of law, in violation of the Due Process Clause of the
Fifth Amendment to the Constitution.”) (citation omitted). Third, the Norman panel
noted that this court has jurisdiction “over illegal exaction claims ‘when the exaction is
based upon an asserted statutory power.’” Id. (citing Aerolineas Argentinas, 77 F.3d at
1573; Eastport, 372 F.2d at 1008). Fourth, and most importantly, the Federal Circuit
required the claimant to show that the violation was of a money-mandating statute:

       To invoke Tucker Act jurisdiction over an illegal exaction claim, a claimant
       must demonstrate that the statute or provision causing the exaction itself
       provides, either expressly or by “necessary implication,” that “the remedy
       for its violation entails a return of money unlawfully exacted.”

Id. (citing Cyprus Amax Coal Co. v. United States, 205 F.3d 1369, 1373 (Fed. Cir.
2000)).

        This fourth statement of law was essential to the holding in Norman which upheld
this court’s dismissal of the illegal exaction claim on jurisdictional grounds. See id. at
1096 (concluding that the statute relied upon by the plaintiffs in Norman “does not, by its
terms or by necessary implication, provide a cause of action with a monetary remedy for
its violation”) (citing Cyprus Amax, 205 F.3d at 1373). Discerning no conflict between
Norman and Aerolineas Argentinas, the court concludes that Boeing also must show that
41 U.S.C. § 1503(b) is money-mandating to establish jurisdiction for its illegal exaction
claim.

        Finally, plaintiff cites Stockton East for the proposition that a contract claim and
an illegal exaction claim are not incompatible, as a matter of jurisdiction, in the same suit.
ECF No. 16 at 15; ECF No. 28 at 23. The court would agree that as a matter of pleading,
there is no impediment to plaintiff’s Count IV, the illegal exaction claim. See Stockton
East, 583 F.3d at 1368 (noting that a party is not precluded “from alleging in the same
complaint two alternative theories for recovery against the Government, for example, one
for breach of contract and one for a taking under the Fifth Amendment to the
Constitution”). But whether a government contractor, pursuing relief under both the


                                              6
Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109 (2012) (CDA), as well as under
the Due Process Clause, should be restricted to relief under the CDA does not appear to
be a question that has been resolved in the precedential decisions binding this court. See
ECF No. 22 at 32 (noting that plaintiff “uncovered no case fitting this profile”); ECF No.
27 at 25 (noting that “there is little binding precedent directly on-point in excess of that
previously cited by the Government”).

        It is true that the parties here have cited a number of cases on this point, but that
authority is not binding for the proposition cited. For example, there is what plaintiff
characterizes as dicta from the Federal Circuit which indicates that certain takings claims
are precluded in suits where breach of contract claims are asserted. Piszel v. United
States, 833 F.3d 1366, 1376 (Fed. Cir. 2016) (citations omitted). And similar holdings
have issued in decisions of this court addressing contract-based spent nuclear fuel claims,
where the court has dismissed duplicative illegal exaction claims. See, e.g., Yankee
Atomic Elec. Co. v. United States, 42 Fed. Cl. 223, 237 (1998) (stating that the electric
utility’s “illegal exaction claim fails because the duty on which the claim is based is
contractual, not statutory”), aff’d sub nom. Maine Yankee Atomic Power Co. v. United
States, 225 F.3d 1336 (Fed. Cir. 2000). The court observes that while there may be valid
policy reasons that counsel against duplicative CDA and illegal exaction claims, see ECF
No. 27 at 28, no precedential rule that bars illegal exaction claims from suits brought in
part under the CDA has yet come to the court’s attention. 4

              2.     Application of Norman

       The parties’ briefing addresses the requirement that an illegal exaction plaintiff
identify a money-mandating statute that has been violated. The court begins with
defendant’s analysis, for which the principal argument was presented in its opening brief:

             Boeing points to nothing in the CAS statute that contemplates a
       damages action in this Court, should the statute be improperly applied.
       Indeed, given as noted above that any violation would necessarily arise in the
       context of [a] voluntary contract between the parties, it is inconceivable that
       Congress intended to create a separate damages remedy in this Court for a
       purported violation of the statute.


4
        Boeing’s illegal exaction claim is unusual in that Boeing seeks a reduction in its
“reimbursement of the increased costs and interest that [the government] incurred as a
result of two of Boeing’s unilateral [cost accounting] changes.” ECF No. 15 at 13. In the
government’s view, Boeing has the government’s money in its pocket, unlike a typical
illegal exaction claim, where the government has the plaintiff’s “‘money in its pocket.’”
Aerolineas Argentinas, 77 F.3d at 1573 (quoting Clapp v. United States, 117 F. Supp.
576, 580 (Ct. Cl. 1954)).


                                              7
ECF No. 15 at 40. Defendant then expanded on its analysis with the following passage in its
reply brief:

                Second, although Boeing attempts to equate the language in section
       1503(b) with the Export Clause of the Constitution, section 1503(b) is not
       money-mandating. To apply section 1503(b), Boeing must have voluntarily
       entered into a contract with the Government. Conversely, a clause that
       mandates payment of a money remedy is one that is separate and apart from
       a contract. See, e.g., Cyprus Amax Coal Co. v. United States, 205 F.3d 1369,
       1373 (Fed. Cir. 2000). In a claim arising under the money-mandating Export
       Clause, no party would need to enter into any contract with the Government
       to ship across state lines, and thus the Government must repay any money
       that it collected for taxes that violated that clause. Id. at 1373-75 (explaining
       why the Export Clause is money-mandating, including its “self-executing”
       nature); see also Norman v. United States, 429 F.3d 1081, 1095 (Fed. Cir.
       2005). Legislative history supports our assertion that Congress intended for
       contractors to repay the Government for the increased costs imposed by the
       contractor due to its unilateral changes, not that “Congress would have
       intended its ban on Government windfalls to have no remedy at all,” as
       Boeing contends. [ECF No. 16 at 18]. Rather, Congress always mandated
       that contractors repay the Government for its increased costs—not that
       contractors can request the Government to pay additional money in excess
       of that contractually agreed-upon. 41 U.S.C. § 1502(f)(2); [ECF No. 15-1 at
       2-23, 57-63].

ECF No. 17 at 13-14. Defendant asserts that the statute relied upon by plaintiff “is not,
by itself, sufficiently money-mandating.” Id. at 12 (citing ECF No. 15 at 38-40).

       Plaintiff presents a relatively brief analysis 5 of this issue:

              Second, . . . the CAS Statute itself must be read as mandating the
       return of windfalls the Government reaps in violation of the statute. Section
       1503 provides that, when a contractor changes its accounting practices, “[t]he
       Federal Government may not recover costs greater than the aggregate
       increased cost . . . .” 41 U.S.C. § 1503(b). Like the Constitution’s bar on
       export taxes, the “necessary implication” of this “unqualified proscription is

5
        In the preceding two paragraphs of its brief, plaintiff appears to argue that Norman
is in conflict with binding precedent. See ECF No. 16 at 17-18. Seeing no such conflict,
the court must follow Norman. See, e.g., Strickland v. United States, 423 F.3d 1335,
1338 n.3 (Fed. Cir. 2005) (stating that this court may disregard Federal Circuit precedent
only “if the circuit’s precedent is expressly overruled by statute or by a subsequent
Supreme Court decision”) (citation omitted).


                                                8
       that the remedy for its violation entails a return of money unlawfully
       exacted.” Cyprus Amax Coal Co. v. United States, 205 F.3d 1369, 1373
       (Fed. Cir. 2000). While the Government purportedly finds it “inconceivable”
       that Congress intended to create a separate damages remedy to compensate
       for violations of this clear restriction, [ECF No. 15 at 40], it is far more
       inconceivable that Congress would have intended its ban on Government
       windfalls to have no remedy at all.

ECF No. 16 at 18.

       Having considered both parties’ arguments as to 41 U.S.C. § 1503(b), as well as
the text and context of the statute itself, the court finds defendant’s arguments to be more
persuasive. First, plaintiff unconvincingly asks the court to compare § 1503(b) with the
Export Clause. The money-mandating nature of the Export Clause is established by the
fundamental role it plays as a check on unconstitutional taxation practices and the
“unqualified proscription” of the clause:

       The necessary implication of the Export Clauses unqualified proscription is
       that the remedy for its violation entails a return of money unlawfully exacted.
       Indeed, just as Congress’s power to lay taxes enables it to collect money, the
       Export Clauses restriction on taxing power requires Congress to refund
       money obtained in contravention of the clause. Thus, given a fair textual
       interpretation, the language of the Export Clause leads to the ineluctable
       conclusion that the clause provides a cause of action with a monetary remedy.

Cyprus Amax, 205 F.3d at 1373 (citations omitted). In the court’s view, section 1503(b)
is not analogous to the Export Clause, and plaintiff’s illegal exaction claim here is not
supported by Cyprus Amax.

        The court has also considered the context of § 1503(b). The other two provisions
of this statutory section either refer disputes to the CDA dispute resolution process or
assess interest in favor of the government on cost accounting price adjustments. See 41
U.S.C. § 1503(a), (c). Another provision of § 1503(b) is clearly for the protection of the
government. See § 1503(b) (stating that “[a] contract price adjustment . . . shall be made,
where applicable, on relevant contracts between the Federal Government and the
contractor that are subject to the cost accounting standards so as to protect the Federal
Government from payment, in the aggregate, of increased costs”). The provision on
which plaintiff relies is, in its entirety, as follows:

       The Federal Government may not recover costs greater than the aggregate
       increased cost to the Federal Government, as defined by the Board, on the
       relevant contracts subject to the price adjustment unless the contractor made
       a change in its cost accounting practices of which it was aware or should



                                             9
       have been aware at the time of the price negotiation and which it failed to
       disclose to the Federal Government.

41 U.S.C. § 1503(b). There is no right to bring a claim for monetary damages expressly
contained in the statute, nor is such a right provided by necessary implication. Plaintiff
has failed to meet its burden of establishing that its illegal exaction claim is founded on a
money-mandating statute, as required by Norman. Thus, the illegal exaction claim stated
in Count IV of the complaint must be dismissed for lack of subject matter jurisdiction.
Norman, 429 F.3d at 1095-96.

       B.     Whether Plaintiff’s Claim, by Its Nature, Is an Administrative Procedure
              Act Claim over which this Court Lacks Jurisdiction

        As summarized by plaintiff’s counsel at oral argument, it is the government’s
assertion that because Boeing should have brought its challenge to FAR 30.606 under the
Administrative Procedure Act (APA), 5 U.S.C. §§ 702, 704 (2012), in a district court
action, jurisdiction in this court under either the CDA or the Tucker Act is not available
now. ECF No. 20 at 29. Defendant adds that this court has no jurisdiction over APA
claims. E.g., Martinez v. United States, 333 F.3d 1295, 1313 (Fed. Cir. 2003) (en banc)
(citing Murphy v. United States, 993 F.2d 871, 874 (Fed. Cir. 1993)). Defendant first
raised this jurisdictional challenge in its opening brief, ECF No. 15 at 32-34, and the
parties have vigorously debated the issue, see ECF No. 16 at 11-14; ECF No. 17 at 8-11;
ECF No. 20 at 29-35.

       Indeed, there are circumstances in which the court must discern the true nature of
the plaintiff’s claims to determine whether it has jurisdiction over a suit. See Katz v.
Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994) (“Regardless of the characterization of the
case ascribed by [plaintiff] in its complaint, we look to the true nature of the action in
determining the existence or not of jurisdiction.”) (citation omitted); accord, e.g., Doe v.
United States, 372 F.3d 1308, 1315 (Fed. Cir. 2004) (citations omitted). But here
defendant asks the court to consider the true nature of a claim that plaintiff could have
brought at an earlier date under the APA. Defendant argues:

       In other words, to be able to show that any breach of contract or illegal
       exaction occurred, Boeing first would have to have gone to a district court
       and successfully challenged FAR 30.606’s validity. It would have had to
       persuade the district court that FAR 30.606 was directly contrary to the CAS
       Statute and therefore improperly promulgated. But Boeing failed to bring a
       timely APA challenge.

ECF No. 17 at 9. Because defendant does not argue that the current suit could, and
should, have been brought in December 2008 in a district court, under the APA, the court
need not conduct the type of jurisdictional analysis required by Bowen v. Massachusetts,
487 U.S. 879 (1988), and its progeny. See Suburban Mortg. Assocs., Inc. v. U.S. Dep’t


                                             10
of Hous. & Urban Dev., 480 F.3d 1116, 1117 (Fed. Cir. 2007) (noting that “[t]his case
requires us to reexamine the jurisdictional boundary between the Tucker Act and the
Administrative Procedure Act, as that boundary is understood in the light of the Supreme
Court’s decision in Bowen v. Massachusetts”).

       Defendant’s jurisdictional argument regarding the nature of plaintiff’s suit is
largely focused on actions Boeing could have taken, but did not. The court finds this
RCFC 12(b)(1) argument, which is based on the court’s lack of jurisdiction over claims
under the APA, to be unpersuasive. 6

       C.     Waiver

       The court turns to the parties’ summary judgment arguments concerning the
government’s affirmative defense of waiver. Defendant properly raised the affirmative
defense of waiver in its amended answer. ECF No. 24 at 16. The court ordered briefing
on this defense. See ECF No. 18. The parties cite to a number of cases addressing
waiver in their supplemental briefs. See ECF Nos. 22, 27-28. For the sake of brevity, the
court will limit its discussion to those precedential decisions of the Federal Circuit or the
Court of Claims that have articulated a rationale for applying, or refusing to apply, the
doctrine of waiver.

        At the outset, however, the court considers plaintiff’s assertion that GHS Health
Maintenance Organization, Inc. v. United States, 536 F.3d 1293 (Fed. Cir. 2008) (GHS
II), and the underlying trial court opinion, GHS Health Maintenance Organization, Inc. v.
United States, 76 Fed. Cl. 339 (2007) (GHS I), “compel the Court to reject the
Government’s waiver defense.” ECF No. 28 at 6. The court finds otherwise because,
simply put, GHS II does not elaborate a standard that explains why waiver should or
should not apply under the facts of this case, and GHS I is not binding precedent in this
matter.

       Plaintiff’s reliance on GHS II is unavailing because the Federal Circuit’s holding
indicated that waiver should not apply in that case, but the short analysis justifying the
court’s rejection of the defense did not clearly indicate why the government’s waiver
defense was deemed to be “frivolous.” 536 F.3d at 1306. In GHS II, the court’s waiver
analysis is as follows:

               We regard as frivolous the Government’s attempt to sustain the
       regulation on the grounds that it was consented to by a contract that was
       signed by the [plaintiffs]. The [invalid regulation] was non-negotiable. If

6
       The fact that Boeing, before entering into the representative contract, did not
challenge the validity of FAR 30.606 once it had been promulgated is addressed in the
waiver section of this opinion. See infra.


                                             11
       anything is to be derived from the contract provision, it is an inference that
       [the Office of Personnel Management] itself had profound doubts about the
       validity of the regulation.

Id. Further, the GHS II opinion does not cite any of the lower court’s discussion of
waiver in GHS I. The court cannot agree with plaintiff, therefore, that GHS II compels
any particular result in this case. See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 631
(1993) (declining to consider prior decisions because the Court had never before
“squarely addressed the issue”); Edelman v. Jordan, 415 U.S. 651, 670 (1974) (declining
to follow prior decisions that did not “substantively treat” an issue); The Container Store
v. United States, 864 F.3d 1326, 1333 n.4 (Fed. Cir. 2017) (quoting Brecht, 507 U.S. at
631, for the “‘squarely addressed’” standard); United States v. Cty. of Cook, Ill., 170
F.3d 1084, 1088 (Fed. Cir. 1999) (stating that when prior decisions contain no “explicit
rule” for decision, those opinions do not provide binding precedent on the issue (citing
Nat’l Cable Television Ass’n, Inc. v. Am. Cinema Editors, Inc., 937 F.2d 1572, 1581
(Fed. Cir. 1991))).

              1.     Waiver of Plaintiff’s Contract Claims

                     a.     Whether FAR 30.606 Applies to this Contract

       Plaintiff asserts that FAR 30.606 is “extra-contractual,” and notes that this FAR
provision is not incorporated in the contract by full text or by reference in the list of FAR
provisions included in the contract. See ECF No. 20 at 53; ECF No. 22 at 7, 11, 14, 21;
ECF No. 28 at 12 & n.5, 16. While maintaining a challenge to the validity of FAR
30.606, plaintiff does not appear to dispute that FAR 30.606 is applicable to the
administration of Boeing’s contract with the United States. See ECF No. 15 at 23-24;
ECF No. 17 at 8; ECF No. 28 at 12-13 & nn.5-6. Further, aside from an argument as to
the contingent nature of the applicability of FAR 30.606, because cost accounting
changes are somewhat unpredictable, plaintiff does not refute the fact that Boeing was
fully aware of the existence and applicability of FAR 30.606 at the time it entered into
the representative contract in December 2008. ECF No. 16 at 20; ECF No. 28 at 14-15.
And, the court adds, “government contractors are presumed to have constructive
knowledge of federal procurement regulations.” Gen. Eng’g & Mach. Works v. O’Keefe,
991 F.2d 775, 780 (Fed. Cir. 1993) (citing Gen. Builders Supply Co. v. United States,
409 F.2d 246, 250-51 (Ct. Cl. 1969)). FAR 30.606 applies to the representative contract.

                     b.     Whether the Applicability of FAR 30.606 Creates a Patent
                            Ambiguity that Boeing Failed to Challenge

      Although plaintiff offers numerous arguments for its position that no patent
ambiguity existed in its contract with the United States, these arguments are unavailing.
ECF No. 22 at 13; ECF No. 28 at 6, 15-17. The complaint sets forth plaintiff’s view that
FAR 30.606 is a clear violation of the CAS statute and the CAS clause included in the


                                             12
contract. See ECF No. 1 at 9-23. For plaintiff to prevail on its contract claims, its
interpretation of the contract cannot bind the parties unless the ambiguity in the contract
was latent, not patent. See Cmty. Heating & Plumbing Co. v. Kelso, 987 F.2d 1575,
1579 (Fed. Cir. 1993) (“If a contract contains a patent ambiguity, the contractor is under a
duty to inquire and must seek clarification of the proper contract interpretation.”)
(citations omitted); see also K-Con, Inc. v. Sec’y of Army, 908 F.3d 719, 723 (Fed. Cir.
2018) (holding that because the solicitation contained a patent ambiguity, the contractor’s
failure to seek clarification of the ambiguity prevented the contractor’s interpretation of
the contract from binding the parties) (citation omitted); Interwest Constr. v. Brown, 29
F.3d 611, 615-16 (Fed. Cir. 1994) (“Because [plaintiff] did not seek clarification of the
performance requirements, it cannot now secure an equitable adjustment arising from the
alleged ambiguity.” (citing Community Heating, 987 F.2d at 1579)).

        A government contractor has an obligation to inquire as to patent ambiguities in a
solicitation. This duty is described in the following excerpt from a Federal Circuit
decision:

       If [plaintiff’s] claims of ambiguity among the evaluation terms are correct,
       the ambiguity would be patent and not latent. A patent ambiguity is present
       when the contract contains facially inconsistent provisions that would place
       a reasonable contractor on notice and prompt the contractor to rectify the
       inconsistency by inquiring of the appropriate parties. Thus, [plaintiff] “had
       a duty to seek clarification from the government, and its failure to do so
       precludes acceptance of its interpretation.”

Stratos Mobile Networks USA, LLC v. United States, 213 F.3d 1375, 1380-81 (Fed. Cir.
2000) (quoting Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996)).

       Moreover, if a contractor were allowed to postpone challenges to the contract’s
conditions of performance until after award, the fairness and openness of the competition
would be thwarted. That is, if a bidder wins a contract despite its knowledge of a patent
ambiguity in the solicitation, and later seeks to address that ambiguity, the principles of
fair competition are undermined:

              The patent ambiguity doctrine is a court-made rule that is designed to
       ensure, to the greatest extent possible, that all parties bidding on a contract
       share a common understanding of the scope of the project. That objective is
       particularly important in government contracts, in which significant post-
       award modifications are limited by the government’s obligation to use
       competitive bidding procedures and by the risk of prejudice to other potential
       contractors.

Triax Pac., Inc. v. West, 130 F.3d 1469, 1475 (Fed. Cir. 1997) (citation omitted).



                                             13
        It is fundamentally harmful to the competitive bidding process for the awardee to
enter into a government contract while knowingly preserving a later challenge to the
contract’s terms which could significantly alter the costs paid by the government. Cf. id.
(“In addition, the duty of inquiry prevents contractors from taking advantage of
ambiguities in government contracts by adopting narrow interpretations in preparing their
bids and then, after the award, seeking equitable adjustments to perform the additional
work the government actually wanted.”) (citations omitted). Also, as the Federal Circuit
has noted, one of the principal benefits of the patent ambiguity doctrine is “avoiding
costly litigation after the fact” of contract award. Community Heating, 987 F.2d at 1580
(citing Newsom v. United States, 676 F.2d 647, 649 (Ct. Cl. 1982)).

        The court finds that in the circumstances of this case, Boeing failed to inquire as to
a patent ambiguity in its contract with the government. 7 There also does not appear to be
any real dispute that Boeing consistently entered into contracts with the government, after
FAR 30.606 became effective, without challenging this regulation in any type of
pre-award protest or negotiation with the government, before its contracts were awarded.
ECF No. 20 at 16-17, 46-47, 53, 55; ECF No. 22 at 15; ECF No. 27 at 12 & n.4; ECF No.
27-1 at 1-3; ECF No. 28 at 13-15. Because Boeing did not seek clarification, before
award, of the conflict it saw between the CAS statute, the CAS clause and FAR 30.606,
its contract claims are foreclosed as a matter of law. Cf. Whittaker Elec. Sys. v. Dalton,
124 F.3d 1443, 1446 (Fed. Cir. 1997) (finding that the contractor “waived the right to
challenge the validity of the contract” clause when it made no timely objection to that
clause prior to the contract’s execution) (citations omitted); E. Walters & Co. v. United
States, 576 F.2d 362, 368 (Ct. Cl. 1978) (holding that the contractor was estopped from
bringing an untimely challenge to a contract clause, because the contractor’s silence as to
the operation of this clause had deprived the government of a “relatively painless
alternative”) (footnote omitted). Further, even if the patent ambiguity doctrine might not,
by itself, bar Boeing’s contract claims in this suit, Boeing’s repeated challenges to FAR
30.606, after this pre-existing regulation was applied to the administration of Boeing’s
government contracts, strongly indicate that the government’s affirmative defense of
waiver has merit.

                     c.     Whether the CAS Statute Protects Contractors, the
                            Government, or Both



7
        Plaintiff, in its supplemental reply brief, argues that the government has not
established the necessary factual predicate for the court’s analysis of terms contained in
the solicitation. ECF No. 28 at 16 n.8. The court observes that the government has not
had an opportunity to respond to this argument, but in the court’s view, the necessary
factual predicate for an understanding of the solicitation is satisfactorily provided by the
contract excerpts cited by both parties. ECF No. 15-1 at 136-37; ECF No. 28-2 at 2-12.


                                             14
       The court must agree with defendant that the CAS statute and the CAS clause
primarily benefit the government. ECF No. 27 at 17-19. The Federal Circuit has
described the obligations the CAS statute, in relevant part, historically places on the
contractor in the following manner:

              By regulation, a contractor that wishes to modify its accounting
       practices must first negotiate the terms and conditions under which the
       change will be made with the appropriate Divisional Administrative
       Contracting Officer (“DACO”). FAR 52.230-2(a)(4)(ii). If the accounting
       change results in increased costs because expenses previously accounted as
       indirect are now directly charged to the government contract, the contractor
       is required to agree to a contract price adjustment and repay the government
       any increased costs caused by the accounting change. FAR 52.230-2(a)(2),
       (a)(5). The regulations also state that the amount of the price adjustment is
       generally limited to the additional amount paid by the government “in the
       aggregate” over “all of the contractor’s affected CAS-covered contracts and
       subcontracts.” FAR 30.602-3 (1993); see 41 U.S.C. § 422(h)(3); FAR
       52.230-2(a)(5).

Donley v. Lockheed Martin Corp., 608 F.3d 1348, 1350 (Fed. Cir. 2010). The CAS
statute provides a mechanism, in other words, for ensuring that the contractor’s
accounting practices correctly identify contract performance costs related to government
contracts. See, e.g., Raytheon Co. v. United States, 747 F.3d 1341, 1352 (Fed. Cir. 2014)
(“Indeed, the relevant [CAS] provisions appear to be primarily focused on ensuring that
the contractor complies with the CAS and follows uniform and consistent cost accounting
practices.”) (citations omitted).

        Given that the CAS statute primarily protects the government from unwarranted
contract performance costs, the parties hotly debate the significance of provisions within
the CAS statute that could be described as protective of contractors. Plaintiff points to
commentary from the Federal Circuit that indicates that the CAS statute prohibits
windfalls to the government, through language now codified in 41 U.S.C. § 1503(b). See
DIRECTV Grp., Inc. v. United States, 670 F.3d 1370, 1378 (Fed. Cir. 2012) (“The Court
of Federal Claims correctly held that such a windfall is prohibited by the CAS statute.”)
(citations omitted). Plaintiff also relies on Chris Berg, Inc. v. United States, 426 F.2d 314
(Ct. Cl. 1970), for the proposition that a contractor may challenge the agency’s
compliance with a statute or regulation that is not solely for the benefit of the contractor.
ECF No. 22 at 17; ECF No. 28 at 10-11 & nn.2-3.

       Defendant cites to a Federal Circuit decision which recognizes the authority of
Chris Berg, among other seminal cases, but concludes that:

       if the primary intended beneficiary of a statute or regulation is the
       government, then a private party cannot complain about the government’s


                                             15
       failure to comply with that statute or regulation, even if that party derives
       some incidental benefit from compliance with it.

Cessna Aircraft Co. v. Dalton, 126 F.3d 1442, 1451-52 (Fed. Cir. 1997) (citing Rough
Diamond Co. v. United States, 351 F.2d 636, 642 (Ct. Cl. 1965); Hartford Accident &
Indem. Co. v. United States, 127 F. Supp. 565, 567 (Ct. Cl. 1955)). In a more recent
Federal Circuit decision, the court rejected the proposition that contractor claims were
foreclosed if the statute or regulation primarily benefited the government, because “it is
possible for a regulation or law to benefit both the government and a class of private
parties.” Todd Constr., L.P. v. United States, 656 F.3d 1306, 1314 (Fed. Cir. 2011)
(citing Rough Diamond, 351 F.2d at 640).

       Relying on Chris Berg, DIRECTV and Todd Construction, plaintiff’s contract
claims in this suit are not foreclosed simply because these claims challenge the
government’s compliance with a statute that primarily benefits the government. The
court does not find, however, that these three cited cases foreclose defendant’s
affirmative defense of waiver. Binding precedent must be examined further to resolve
the waiver issue.

                     d.     LaBarge and AT & T II

       The parties rely on a number of Federal Circuit decisions that substantively
address the doctrine of waiver. The question before the court, however, is how that
doctrine applies to a plaintiff that has entered into a contract with the government, and
who challenges the government’s adherence to a pre-existing regulation in the
administration of the contract, on the basis that the government’s adherence to the
regulation allegedly violated some other legal duty. It is to that relatively narrow
question that the court must apply the most analogous binding precedent on the topic of
waiver. After due consideration of all of the cases cited by the parties in this regard, the
court will discuss the following two decisions: LaBarge Products, Inc. v. West, 46 F.3d
1547 (Fed. Cir. 1995), and American Telephone & Telegraph Co. v. United States, 307
F.3d 1374 (Fed. Cir. 2002) (AT & T II). 8

       LaBarge Products, Inc. (LaBarge), appealed the Armed Services Board of
Contract Appeals (Board) decision which denied LaBarge’s contract reformation claim.
LaBarge, 46 F.3d at 1548. The underlying contract was for the supply of pipe couplings
to the United States Army. Id. One Army official (Officer A) tried to steer the award to

8
       Plaintiff also relies on Beta Systems, Inc. v. United States, 838 F.2d 1179 (Fed.
Cir. 1988). ECF No. 22 at 17-18; ECF No. 28 at 10. The discussion of waiver in that
opinion, however, focused on a challenge to an inaccurate price index incorporated into a
clause of the contract. Beta, 838 F.2d at 1184-86 & n.3. The court finds no compelling
parallel between the facts of Beta and Boeing’s representative contract.


                                             16
a preferred contractor through a sole source procurement, but a competitive procurement
vehicle was used nonetheless. Id. at 1549. The preferred contractor was notified by
another Army official (Officer B) that LaBarge had submitted the lowest bid for pipe
couplings; the preferred contractor was the second lowest bidder. Id.

        A third Army official (Procurement Manager) requested that the offerors submit
best and final offers (BAFOs), which would “include confirmation that the contractor
would accept option provisions for the government to purchase production tooling and
level three production drawings.” Id. LaBarge’s president believed that the request for
BAFOs was an attempt to steer the award away from his firm; yet, he expressed
LaBarge’s intent to “not lose” the contract, and told the Procurement Manager the
approximate price of LaBarge’s upcoming BAFO. Id.

       After the request for BAFOs issued, the news of LaBarge’s expected BAFO price
was leaked to the preferred contractor. Id. LaBarge was unaware that its expected price
had been leaked to the preferred contractor, but, by a stroke of apparent good fortune, its
BAFO continued to be the lowest priced offer. Id. Less luckily, Officer A intervened
again and “attempted to have [LaBarge] declared technically deficient and unacceptable
by requesting an additional evaluation of the company.” Id. The Procurement Manager
refused Officer A’s request. Id.

       On the verge of the announcement that LaBarge had won the contract, the
preferred contractor filed a pre-award bid protest with the General Accounting Office
(GAO), now known as the Government Accountability Office. Id. The preferred
contractor revealed to the GAO that two leaks of LaBarge’s prices had disfavored
LaBarge in the procurement. Id. at 1549-50. LaBarge joined the GAO protest, arguing
that preferential treatment had been given to the preferred contractor. Id. at 1550. In
particular, LaBarge contended that the BAFOs were tainted by this preferential treatment,
and that award should be made based on its first lowest offer, not on LaBarge’s even
lower BAFO. Id.

        Even though the preferred contractor’s GAO protest was denied, LaBarge’s
request that its initial lowest offer be the basis for award, not its BAFO, was not accepted
by the Army; instead, the contract was awarded to LaBarge at its BAFO. Id. LaBarge
successfully completed the contract. Id. LaBarge attempted to reform the contract to
reflect its initial price by submitting a claim to the contracting officer, as follows:

       LaBarge submitted a claim to the contracting officer in which it sought to
       have the coupling contract reformed to the August 16, 1984 bid price. This
       would have resulted in a total contract price increase of about $800,000.
       LaBarge claimed that reformation of the contract to the higher price was
       necessary in order to compensate it for the improper acts of certain Army
       personnel involved in the procurement. LaBarge asserted that there had been
       a conspiracy to direct the contract to [the preferred contractor] even though


                                             17
       LaBarge had submitted the low bid in response to the RFP. According to
       LaBarge, its August 16 bid had been disclosed to [the preferred contractor]
       and the best and final offer round was merely a “sham.” LaBarge claimed
       that, but for improper conduct, it would have been awarded the coupling
       contract at its higher, initial bid. LaBarge’s allegations were based upon
       information it received during the [GAO] protest and upon information
       contained in an Army investigative report dated May 15, 1985, a copy of
       which LaBarge received after the contract had been awarded.

LaBarge, 46 F.3d at 1550. LaBarge’s claim was denied both by the contracting officer
and the Board.

       Most pertinent here, the Federal Circuit considered whether LaBarge, in support of
its contract reformation claim, was estopped from arguing that the government had
violated a regulation prohibiting auction techniques after LaBarge had adhered to and
performed the contract as written. Id. at 1552-53. The Federal Circuit’s holding in this
regard is instructive, and is reproduced here in relevant part:

       [I]f government officials make a contract they are not authorized to make, in
       violation of a law enacted for the contractor’s protection, the contractor is
       not bound by estoppel, acquiescence or failure to protest. In cases in which
       a breach of law is inherent in the writing of the contract, reformation is
       available despite the contractor’s initial adherence to the contract provision
       later shown to be illegal. Like the contractor in Chris Berg, Inc., LaBarge
       may seek reformation of its price term, even after performance, if that term
       was allegedly diminished by unlawful government acts.

Id. at 1552-53 (citing Chris Berg, 426 F.2d at 317-18; Rough Diamond, 351 F.2d at
639-43). It should be noted that Chris Berg, like LaBarge, addressed unlawful conduct of
procurement officials that occurred at the time the offerors’ bids were considered for
award. See Chris Berg, 426 F.2d at 318 (“This analysis establishes that the award of the
contract to plaintiff at the bid price, with knowledge of [plaintiff’s mathematical] mistake
and over its protest, was a clear-cut violation of law.”).

      Although LaBarge offers plaintiff some aid, the LaBarge decision does not offer
Boeing sufficient support to overcome the application of waiver in this case. The holding
in LaBarge confirms that a contractor does not always waive its challenges to unlawful
conduct inherent in the writing of a contract that the contractor signs and performs. 9 46

9
       Unlike the circumstances of LaBarge and Chris Berg, much of the illegality
alleged by plaintiff occurred, if at all, when FAR 30.606 was promulgated, three years
before the representative contract was signed. ECF No. 11-1 at 28-40; ECF No. 16 at
22-36.


                                            18
F.3d at 1552-53. But in the court’s view, it would be an improper extension of LaBarge
to conclude that a sophisticated contractor like Boeing can enter into a contract with the
government, in this case three years after FAR 30.606 went into effect, and not waive a
challenge to the legality of that regulation.

       For more analogous precedent, the court now turns to AT & T II. AT & T II
addressed another contract reformation claim, this one brought by one of the largest
federal contractors, American Telephone & Telegraph Company (AT & T), a company
which in that era performed federal contracts worth over $2 billion dollars. 307 F.3d at
1377, 1380. The underlying contract was with the United States Navy, for the
“develop[ment of] detection technology for tracking ultra-quiet submarines of the Soviet
Union.” Id. at 1376.

        AT & T was awarded a fixed-price contract for an element of this system, known
as a “reduced diameter array (RDA).” Id. “AT & T eventually performed the RDA
contract at a cost of over $91 million, greatly in excess of the contract’s adjusted final
price of about $34.5 million.” Id. at 1377. AT & T sought to have the contract reformed,
after performance, so that its payments under the contract would be on a cost
reimbursement basis, rather than at a fixed price. See id. at 1380 (“As a sophisticated
player, AT & T bargained for and won a fixed-price contract[;] . . . the record simply
provides no evidence that AT & T sought a cost reimbursement contract during contract
negotiations”).

        Plaintiff attempts to distinguish AT & T II on the basis that the violation of law
alleged in AT & T II was of a statute that did not benefit contractors. ECF No. 22 at 19
(citing AT & T II, 307 F.3d at 1379). The court must disagree, based on an en banc
ruling by the Federal Circuit, American Telephone & Telegraph Co. v. United States, 177
F.3d 1368 (Fed. Cir. 1999) (en banc) (AT & T I). The following passage in AT & T I
confirms that the statutory provision alleged to have been violated in the writing and
administration of AT & T’s contract with the Navy was for the benefit of both the
government and contractors:

       The accompanying Conference Report reiterated congressional concern that
       the risks of failure and of cost uncertainties be allocated equitably between
       government and contractor, and stressed the desire to “maintain the
       government’s credibility as a reliable business partner.” Congress referred
       to the burden of a fixed price contract on the contractor when the
       miscalculation of development cost may have been that of the government
       agency as well as the contractor, and to the reluctance of some highly
       qualified firms to enter into such contracts. The Conference Report was
       unambiguous: “Fixed price contracts are normally not appropriate for
       research and development phases.” Thus Congress acted to adjust the risks
       of developing the advanced technologies needed in the service of national
       defense.

                                            19
AT & T I, 177 F.3d at 1372 (citations omitted).

         The Federal Circuit panel in AT & T II was bound by AT & T I and cannot be
presumed to have reinterpreted the relevant statute, sub silentio, as being purely for the
benefit of the government. See Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880
F.3d 1356, 1361 n.2 (Fed. Cir. 2018) (noting that the Federal Circuit in that case was
bound by precedent established by a prior en banc decision); Crowley v. United States,
398 F.3d 1329, 1335 (Fed. Cir. 2005) (holding that a de novo statutory interpretation is
not permitted where binding precedent has already interpreted the statute). As the en
banc Federal Circuit indicated, “Congress can not have intended to charge the contracting
partner with adverse consequences depending on whether” the government complied with
the relevant statute. AT & T I, 177 F.3d at 1375. It is instructive, too, that AT & T I
relied on LaBarge for its analysis of the consequences of the Navy’s failure to comply
with the relevant statute—LaBarge addressed a contractor claim that was founded on the
alleged violation of a regulatory provision that was intended to benefit, at least in part,
government contractors. See id. at 1376 (citing LaBarge, 46 F.3d at 1552-53); see also
LaBarge, 46 F.3d at 1552 (noting that the regulation alleged to have been violated in that
case was “plainly for the benefit of the contractor”). The court does not find plaintiff’s
first attempt to distinguish AT & T II, on the grounds that the statute at issue in that
decision was purely for the benefit of the government, to be availing.

        Plaintiff’s second attempt to distinguish AT & T II is presented in its supplemental
reply brief, to which the government has not had an opportunity to respond. Plaintiff
contends that in AT & T II, there was an express term of the contract that AT & T
“negotiated and accepted,” i.e., that payment would be on a fixed-price basis, whereas
here Boeing merely was contending with “a contract administration rule like FAR
30.606(a)(3)(ii).” ECF No. 28 at 17 (citing AT & T II, 307 F.3d at 1380-81). While the
court would agree that there are factual differences between this case and AT & T II,
there is also a core similarity. When AT & T chose to enter into a fixed-price contract
with the Navy, it accepted the financial framework for its payment under the contract.
Here, Boeing accepted the representative contract’s financial framework, including FAR
30.606, for its payment under the contract. The court concludes that AT & T II and this
case are sufficiently factually similar that AT & T II should guide this court’s waiver
analysis. Cf. 307 F.3d at 1381 (“[C]ompetition on a cost-reimbursement basis may have
taken AT & T out of the game[;] . . . this court is not inclined to change the rules and the
scoring after the game has been played.”).

       Of further note for analytical purposes in this case, the AT & T II decision
emphasized the fact that AT & T was a large and sophisticated government contractor.
307 F.3d at 1380; see also id. at 1382 (Newman, J., dissenting) (noting the “stress” placed
by the panel majority on the fact that AT&T was a sophisticated contractor). In that
decision, the Federal Circuit also commented that AT & T had underbid its competitors,
and that the results of that competition might have been different if the financial


                                            20
framework, i.e., cost reimbursement vs. fixed price, had been different. AT & T II, 307
F.3d at 1380-81. In addition, the Federal Circuit noted that the negotiated price of a
government contract is a fundamental element of the bargain struck between the
contractor and the federal government. Id. Here, as in AT & T II, Boeing is a large and
sophisticated contractor seeking to change the pricing framework for its contract, years
after the competition for that contract ended.

       Providing the most applicable binding precedent on the issue of waiver in this
matter, the Federal Circuit held in AT & T II as follows:

             In short, the proper time for AT & T to have raised the issues that it
       now presents was at the time of contract negotiation, when effective remedy
       was available. This, AT & T did not do. For reasons evident above, even
       were AT & T to have stated a valid claim for reformation, this court’s case
       law would require a finding that AT & T waived that claim.

Id. at 1381 (citing Whittaker, 124 F.3d at 1446; E. Walters, 576 F.2d at 367-68).
Applying the holding in AT & T II to the facts of the instant case, in full consideration of
LaBarge and the other cases cited by plaintiff, the court finds that Boeing waived its
challenge to FAR 30.606 when it entered into the representative contract. Although
plaintiff charges the government with trying to reap an “extraordinary windfall” by
applying FAR 30.606 to this contract, ECF No. 11-1 at 7, plaintiff’s contract claims
attempt to “change the rules and the scoring after the game has been played,” AT & T II,
307 F.3d at 1381, and thus are foreclosed as a matter of law.

        Because all of plaintiff’s contract claims are waived as matter of law, summary
judgment must be granted to defendant on these claims. Count I, Count II, and Count III
must be dismissed on the merits. The court now turns to waiver as it might apply to
plaintiff’s illegal exaction claim.

              2.     No Waiver of Plaintiff’s Illegal Exaction Claim

        Earlier in this opinion, the court held that it lacked jurisdiction over plaintiff’s
illegal exaction claim, following Norman and Cyprus Amax. The court sets forth here its
analysis of the government’s affirmative defense of waiver, as it might apply, in the
alternative, to plaintiff’s illegal exaction claim.

        Defendant asks this court to extend AT & T II and its holding on waiver to all of
plaintiff’s claims, not just its contract-based claims. ECF No. 27 at 15 (citing AT & T II,
307 F.3d at 1380-81). Although AT & T II does mention that AT & T raised “a variety
of unsupported legal theories to support its claim,” 307 F.3d at 1380, the analysis and
holding on the topic of waiver was distinctly focused on AT & T’s contract reformation
claim, id. at 1380-81. Defendant’s reliance on AT & T II to show that Boeing waived its
illegal exaction claim is not well-supported.


                                             21
       Defendant’s position—that all contractor claims founded on the infirmities of a
regulation that was in effect at the time of contract execution are waived—has a certain
appeal. ECF No. 27 at 17, 19. But defendant’s reliance on Community Heating, 987
F.2d at 1580, as support for this proposition is ineffective. Id. at 17. Not only is the topic
of waiver of an illegal exaction claim not addressed in Community Heating, but the
appeal in that case was from a forum that does not have jurisdiction over illegal exaction
claims. 987 F.2d at 1577. Therefore, Community Heating could not have addressed the
waiver of illegal exaction claims, even by implication. Defendant has failed to show that
Boeing waived its illegal exaction claim.

IV.    Conclusion

       Defendant’s combined motion to dismiss and motion for summary judgment, ECF
No. 15, is GRANTED. Because no genuine dispute of material fact exists and plaintiff’s
contract claims are foreclosed as a matter of law, Count I, Count II, and Count III must be
dismissed on the merits. Count IV must be dismissed for lack of subject matter
jurisdiction.

       Accordingly,

       (1)    Plaintiff’s motion for judgment on the pleadings, ECF No. 11,
              treated as a motion for summary judgment, is DENIED;

       (2)    Defendant’s motion to dismiss or, in the alternative, motion for
              summary judgment, ECF No. 15, is GRANTED;

       (3)    The clerk’s office is directed to ENTER final judgment for
              defendant, DISMISSING Count I, Count II, and Count III of
              plaintiff’s complaint, with prejudice, and DISMISSING
              Count IV of plaintiff’s complaint, without prejudice, for lack
              of subject matter jurisdiction; and,

       (4)    No costs.

       IT IS SO ORDERED.



                                           s/Patricia E. Campbell-Smith
                                           PATRICIA E. CAMPBELL-SMITH
                                           Judge




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