               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
Globe Trailer Manufacturing, Inc.             )      ASBCA No. 60979
                                              )
Under Contract No. W56HZV-11-D-0204'          )

APPEARANCES FOR THE APPELLANT:                       G. Lindsay Simmons, Esq.
                                                     Eric Whytsell, Esq.
                                                      Jackson Kelly PLLC
                                                      Washington, DC

APPEARANCES FOR THE GOVERNMENT:                      Arthur M. Taylor, Esq.
                                                      DCMA Chief Trial Attorney
                                                     Michael T. Patterson, Esq.
                                                      Trial Attorney
                                                      Defense Contract Management Agency
                                                      Chantilly, VA

         , OPINION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
                BY ADMINISTRATIVE JUDGE D'ALESSANDRIS .

        Pending before the Board are cross-motions for summary judgment regarding
the proper interpretation of the termination settlement provision for commercial item
contracts, Federal Acquisition Regulation (FAR) 52.212-4(1), when the contract
additionally contains a provision for first article testing, FAR 52.209-4. The
Department of the Army (government or Army) awarded a requirements contract for
low-bed semitrailers to appellant; Globe Trailer Manufacturing, Inc. (Globe). The
commercial items .contract required Globe to submit eight trailers as part of the first
article test procedures. These test trailers were separate contract line-items (CLINs) in
the first delivery order. Pursuant to the first article test requirements, any work beyond
the first article test units was performed at Globe's risk. Globe submitted the first
article test units; however, the Army terminated the contract for convenience of the
government before the first article test units were approved. After Globe submitted a
termination settlement proposal, the termination contracting officer issued a final
decision limiting Globe's recovery to the first article test contract line items.

        In the pending cross-motions, the government contends that the first article test
provision caps Globe's recovery for work related to the first articles at the amount of
the first article test line items. Conversely, Globe contends that its recovery is not
limited to the first article contract line items, but that it can recover all reasonable
charges relating to production of the first articles. For the reasons stated below, we
grant both motions in part, holding that Globe is entitled to recoyer for work
performed pursuant to non-first article test contract line items that were required to be
delivered prior to first article approval, but that Globe's recovery for work necessary
for first article approval is limited to the amount of the CLINs for the first article test
line items.

         STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS

          On September 21, 2011, the Army awarded Contract W56HZV-11-D-0204 and
delivery order 0001 to Globe. The contract was a five-year requirements contract for
M870A4 low bed semitrailers and related deliverables. (R4, tab 1 at G-1-10) The
M870A4 is a trailer intended for military use on diverse surfaces and in all climates
(id. at G-46) Relevant to this appeal, the delivery order included separate CLINs
including CLINOOO lAA for one shakedown test trailer, CLIN0002AA for one First
Production Verification Inspection (FPVI) test trailer, CLIN0003AA for five
Production Verification Test (PVT) trailers, CLIN0004AA for one Logistics
Demonstration (Log Demo) test trailer, 1 CLIN0006AA for contract data requirements
lists (CDRLs), and CLIN1001AA for 641 first year production trailers for a total
amount of$39,613,22I.27 (R4, tab 1 at G-1-10, tab 9 at G-176, 181). CLINs 0002AA
and 0003AA contain similar provisions providing that "[a]ll costs associated with the
trailer ... are to be included in the unit price" (R4, tab 1 at G-5, 6). Two additional
delivery orders followed (R4, tabs 15, 19).

       Relevant to this appeal, the contract contained FAR 52.209-4 FIRST ARTICLE
APPROVAL-GOVERNMENT TESTING (SEP 1989)-Altemate Sep/1989 I (Jan 1997)
AND ALTERNATE II (SEP 1989) providing that "(h) ... [u]ntil first article approval is
granted, only costs for the first article and costs incurred under this authorization are
allocable to this contract for (1) progress payments, or (2) termination settlements if the
contract is terminated for the convenience of the Government" (R4, tab 1 at G-66-67).
The contract additionally incorporated by reference FAR 52.212-4 CONTRACT TERMS
AND CONDITIONS - COMMERCIAL ITEMS providing that:

                (1) Termination for the Government's convenience.
                The Government reserves the right to terminate this
                contract, or any part hereof, for its sole convenience ....
                Subject to the terms of this contract, the Contractor shall be
                paid a percentage of the contract price reflecting the
                percentage of the work performed prior to the notice of

1 The   log demo trailer was not part of first article testing (R4, tab 1 at G-44 ); however,
         the contracting officer compensated Globe for the line item in the final decision
         (R4, tab 31 at G-339), and the government does not dispute Globe's entitlement
         to compensation for this contact line item.

                                               2
                termination, plus reasonable charges the Contractor can
                demonstrate to the satisfaction of the Government using its
                standard record keeping system, have resulted from the
                termination ....

(R4, tab 1 at G-64); FAR 52.212-4(1) 2

         The contract provided for an Engineering Change Proposal (ECP) process:

               C.3 .3 .1 Engineering Change Proposal (ECP) - Contractor
               Requested

               a. Requirement for Submittal. After the Government
               provides Production Configuration approval based on the
               successful completion of [first article testing] FAT,
               including changes required to correct deficiencies
               discovered during the First Production Vehicle Inspection
               (FPVI) and Production Verification Test (PVT), the
               Contractor shall submit an Engineering Change Proposal
               (ECP) for any configuration change to the approved
               baseline for any of the M870A4 Semitrailers which impact
               form, fit, or function. ECPs shall be submitted for all
               subsequent changes identified after production start to the
               end of production ....

(R4, tab 1 'at G-25) Paragraph C.3.3.2 additionally provided that government directed
changes would be initiated by the contracting officer requesting a technical and price
proposal (R4, tab 1 at G-26).

        After the contract was awarded, the Army made several changes to the design
of the trailers through bilateral modifications. Modification No. POOOOI, among other
things, raised the trailer deck height and changed the proposed trailer tires. (R4, tab 2
at G-83; app. supp. R4, tab 504 at 3). Modification No. P00003 incorporated
domestically sourced wheels and tires on the M870A4 trailers (R4, tab 4 at G-128-29).
Modification No. P00004 funded CLIN 0003AC to provide test service representatives
at Aberdeen Test Center and Yuma Test Center (R4, tab 5 at G-140). In Modification
No. P00006, the Navy accepted aluminum wheels as consideration for late deliveries
oftest as~ets and CDRLs (R4, tab 7 at G-169).                                , ·


2
    The contract also contains FAR 52.249-2, TERMINATION FOR CONVENIENCE OF THE
         GOVERNMENT (FIXED PRICE) (R4, tab 1 at 65); however, the parties agree that
         FAR 52.212-4(1) controls here (app. reply at 2).

                                             3
       In addition to the changes to the configuration of the first article test trailers
made by contract modification, Globe asserts that the government constructively
changed the contract. Globe asserts that the Navy made constructive changes
including the refusal to include a+/- 3% weight variance; requiring trailer deck width
extensions; providing defective wiring specifications; requiring design and
manufacture of a trailer attachment shackle not required by the contract; requiring a
more extensive quality assurance plan than required by the contract; and
"recommending" that Globe build an additional trailer and conduct an additional test at
the Aberdeen Testing Grounds (app. supp. R4, tab 552 at 39-46).

        On March 11, 2014, the Army terminated the Contract for convenience, stating
that such action was taken pursuant to the FAR 52.212-4(1) termination for convenience
clause for commercial item contracts (R4, tab 23). On November 12, 2014, Globe
submitted its termination settlement proposal using the Standard Form 1435 (inventory
basis settlement proposal) in the amount of $7,233,387.89 (R4, tab 25). On October 7,
2016, the termination contracting officer issued a final decision awarding Globe
$987 ~345.76. The termination contracting officer determined that Globe was entitled to
the price of work completed on the first article contract line items in the amount of
$977,345.76 under the first prong of the FAR 52.212-4(1) commercial items termination
for convenience clause. The termination contracting officer also. awarded Globe
$10,000 under the second prong of the commercial items termination for convenience
clause as costs resulting from the termination. (R4, tab 31 at G-336, 339-40)

        On December 29, 2016, Globe appealed the contracting officer's final decision
to the Board. On June 30, 2017, Globe submitted a revised termination settlement
proposal in the amount of $21,003,162.54. The proposal stated that Globe was entitled
to $21,003,162.54 under the commercial jtem clause and $10,733,308.50 under the
standard Part 49 clause for "traditional government contracts." Globe asserted that it
was entitled to the higher amount because the Army issued the termination for
convenience under FAR 52.212-4(1), and since the contract contained both 52.212-4
and 52.249-2, Globe was entitled to recover costs allowable under either ciause. (App.
supp. R4, tab 552 at 3, 5) Globe's revised termination settlement proposal claimed
entitlement to compensation for purported constructive changes to the contract, and
these claims were included in Globe's July 17, 2017 complaint filed in this appeal. In
its answer to Globe's complaint, the government asserts that the revised settlement
proposal "contained claims based upon additional operative facts that were not alleged
in its original termination settlement proposal" (answer 'ti 27). The record in this
appeal does not contain a final decision on Globe's.revised termination settlement
proposal, and Globe has not appealed from a deemed denial of the revised termination
settlement proposal.




                                           4
                                       DECISION

        We will grant summary judgment only if there is no genuine issue as to any
material fact, and the moving party is entitled to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is one that may affect the
outcome of the decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
The moving party bears the burden of establishing the absence of any genuine issue of ·
material fact, and all significant doubt over factual issues must be resolved in favor of
the party opposing summary judgment. Mingus Constructors, Inc. v. United States, 812.
F.2d 1387, 1390-91 (Fed. Cir. 1987). Once the moving party has met its burden of
establishing the absence of disputed material facts, then the non-moving party must set
forth specific facts, not condusory statements or bare assertions, to defeat the motion.
Pure Gold, Inc. v. Syntex (US.A.), Inc., 739 F.2d 624, 626-27 (Fed. Cir. 1984). The
fact that both the government and Globe have moved for summary judgment does not
require us to grant summary judgment for one side or the other; both motions can be
denied in the event that there are material factual disputes regarding each motion. See,
e.g. Mingus, 812 F.2d at 1391.

        Globe contends that it is entitled to a termination settlement in excess of the
first article contract line item costs due to certain purported constructive changes to the
contract and due to its preparation of CDRLs pursuant to the contract but not part of
the first article test contract line items. The government concedes the contractually
required CDRLs, if actually performed, would be compensable in the termination
settlement (gov't reply br. at 3 n. l). We agree that CDRLs, if completed and provided,
should be included in the percentage of work performed pursuant to the first prong of
FAR 52.212-4(1).

        Globe contends that the constructive changes involved changes that were not
necessary only for the first item, but were required for the production of all units, and
thus are compensable costs pursuant to our holding in Cape Tool & Die, Inc., ASBCA
No. 46433, 95-1 BCA 'if 27,465 (app. mot. at 14-17). Globe additionally contends that,
to the extent it is unable to recover its costs pursuant to the percentage of work
completed clause ofFAR 52.212-4(1) (first prong), it can recover its costs as
"reasonable charges" resulting from the termination because it planned to amortize its
costs across all units, once the final configuration of the production trailers was settled
(second prong) (app. mot. at 18-19). The parties do not appear to dispute
recoverability of termination costs not related to the cost to produce the first article,
such as the cost to prepare the settlement proposal (gov't reply br. at 8).

        The government contends that Globe's recovery is limited to the first article test
line item amounts (gov't mot. at 14-22). The government additionally contends that,
to the extent Globe is seeking costs for constructive changes, it was required to submit
engineering change proposals (gov't mot. at 22-27). In response to the government's


                                             5
motion, Globe asserts that it was not required to seek compensation for the
constructive changes through the engineering change proposal process because that
process only applied after approval of the first item (app. mot. at 17).

      We begin with the plain language of the FAR termination settlement provision.
FAR 52.212-4, CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS provides
that:

              (1) Termination for the Government's convenience.
              The Government reserves the right to terminate this
              contract, or any part hereof, for its sole convenience ....
              Subject to the terms of this contract, the Contractor shall be
              paid a percentage of the contract price reflecting the
              percentage of the work performed prior to the notice of
              termination, plus reasonable charges the Contractor can
              demonstrate to the satisfaction of the Government using its
              standard record keeping system, have resulted from the
              termination ....

The Board previously interpreted this provision, finding:

              The first prong of the sentence providing for payment to
              the contractor of "a percentage of the contract price
              reflecting the percentage of work performed" prior to the
              termination notice, by its plain language, specifies a means
              for compensating the contractor for the work it has done
              before termination. The second prong of the sentence
              providing for payment to the contractor of "reasonable
              charges" the contractor can "demonstrate" "have resulted
              from the termination," when read in conjunction with the
              first prong of the sentence relating to recovery for work
              completed, refers to the recovery of those charges incurred
              that "do not relate to work completed" but should be
              reimbursed to fairly compensate the contractor whose
              contract has been terminated.

SWR, Inc., ASBCA No. 56708, 15-1BCA135,832 at 175,223.

       Here, the contract created separate line items for the first article test units and
the production units, with an instruction to include all costs for the first article units,
including testing costs, in the first article line items. In economic terms, the cost of a
product includes both fixed costs and variable cost. Fixed costs are those costs that do
not change with a change in the quantity produced while variable costs vary with


                                             6
changes in the production volume. 3 Here, within the scope of the requirements
contract for M870A4 semitrailers, the cost to produce the first article would include all ·
fixed costs specific to the contract and all variable costs for the first articles. To the
extent Globe argues that costs that would apply to the first article would also apply to
the production units, this is something that would be true of any fixed cost allocated to
the contract. Any design work, specialized tooling, or constructive changes to the
design of the first article trailer would apply equally to the first article and the
production units.

        Globe argues that it intended to allocate these fixed costs across the entire
production, noting that its bid charged the same unit price for the first article test
semitrailers as the production trailers (app. resp. at 16). This may be true, but it is not
what was required by the contract. The contract specifically informed offerors that
"[a]ll costs associated with the trailer and testing of this vehicle are to be included in
the unit price" (R4, tab 1 at G-6). Globe's decision to allocate its fixed costs to the
entire production placed it at risk of not recovering the costs in the event that the
contract were to be terminated for convenience. See FAR 52.209-4 ALT. II (SEP 1989)
("Until first article approval is granted, only costs for the first article and costs
incurred under this authorization are allocable to this contract for ... termination
settlements if the contract is terminated for the convenience of the Government").

        Globe additionally argues that the contract did not use mandatory language
such as "shall" allocate and so it was not required to include the costs in its first article
test line items (app. mot. at 15). We do not disagree that Globe could allocate costs to
all production units; however, Globe's ability to allocate its costs in that manner does
not require that the government reimburse it for costs other than the first article test
line items in the event the government terminated the contract for convenience. (R4,.
tab 1 at G-67; FAR 52.209-4 ALT II (SEP 1989)).

        The Board's opinion in Cape Tool & Die, which allowed for reimbursement of
tooiing costs othenvise allocated to production CLINs in a certain factual situation,
does not change this analysis. In Cape Tool & Die, the appellant sought reimbursement
for first article costs in a termination settlement proposal following a termination for
convenience. 95-1 BCA, 27,465 at 136,845. The contract in question called for
124 tum-around assemblies. Id. at 136,843. Cape Tool priced the two first article test
units at $4,813 per assembly and the 122 production units at $2,628 each. Id Unlike
the contract at issue in this appeal, there is no indication that the contract in Cape Tool
informed bidders to include all costs in the first article test contract line items. Id.
at 136,844-45. Moreover, the contract in Cape Tool involved a different termination

3
    Of course, most fixed costs, other than intangible assets, are only fixed over a certain
         quantity of production. For example, at some production level, ·a business will
         need to expand the size of its facilities.

                                               7
  clause, FAR 52.249-2, than the clause at issue in this appeal. Id. at 136,843.
  Significantly, FAR 52.249-2 provides for recovery solely based on the contractor's
  costs, rather than reimbursement based on percentage of completion as in
  FAR 52.249-4(1).

          In Cape Tool the Board awarded Cape Tool $10,814.47 for the share of tooling
  costs (122/124ths of $10,420) that were allocated to the production units. Id.
  at 136,847. The Board ·recognized its prior holding that contractors were not permitted
  to reimbursement of production unit costs incurred before approval of first article
  testing in the context of a termination for convenience. Id. at 136,846, citing Century
, Electronics, ASBCA No. 29123, 85-3 BCA ,i 18,232. 4 However, the Board found that
  Cape Tool presented "a more complex issue, as the molds were necessary for both
  production units and first articles." Id. However, this statement would be true for any
  fixed cost related to any contract. The Board found the costs to be reasonable and
  consistent with the FAR because FAR 9.306G) prohibits unbalanced bids and bids may
  be considered unbalanced under FAR 15. 814( d)( 1)5 if first article prices are
  significantly higher than production units. Id.

          The FAR's concern with unbalanced pricing in contracts with a first article test
  requirement applies, where, as here, there is a separate contract line item for the first
  article test items. See FAR 15.404-l(g)(l)(i). The concern is that an offeror could
  shift costs to the first article test items and under-price the production items. If the
  government were to terminate for convenience, as here, the contractor could be
  over-compensated. For example, in a procurement of 100 commercial off the shelf
  items selling for $10 each, for a total of $1,000, a contractor could offer two first
  article test items at $255 each and the 98 production items at $5 each. The total
  contract amount of $1,000 would be the same as if the offeror had priced all 100 units
  at $10 each, but the government would be at risk of overpaying for the first article test
  items if the contract were terminated for convenience after approval of the first articles
  and before the production units were delivered.

         The FAR provision at issue in Cape Tool formerly provided that the contracting
  officers should compare offers before award "to determine if the offerors have significantly
  higher prices for the first articles than for the production units." FAR 15-814(d)(l) (1994).
  However, FAR 15-814(d)(l) was simply a "technique" that the contracting officer could

  4
    The Board also cited, with a "but c.f" signal, to Continental Electronics
         Manufacturing Company, ASBCA No. 14749, 71-2 BCA ,i 9,108, apparently
         for the proposition that non-recurring costs amortized across production units
         can be reimbursed in a termination settlement. However, as the contract at
         issue in Continental Electronics did not include first article testing, it is not
         relevant.     __,,,
  5
    The provisions of FAR 15. 814 have been recodified, with changes, at FAR 15 .404.

                                              8
use to determine if an offer was materially unbalanced. The provision at (d)(2) further
provided that the contracting officer could also evaluate an individual offer (rather than
comparing multiple offers against each other as in (d)(l)) to determine "for instance,
whether manufacturing and special tooling, and test equipment costs, are prorated among
the first articles and the production units, or are only applied to the first articles."
FAR 15.814(d)(2) (1994).

         The revised FAR provision applicable to this appeal, FAR 15 .404(g)( 1),
provides that unbalanced pricing exists when "the price of one or more line items is
significantly over or understated as indicated by the application of cost or price
analysis techniques." Thus, unlike the FAR provision in effect for the contract in
Cape Tool, the FAR now implicitly recognizes that first item prices may be higher
than production unit prices due to manufacturing, special tooling and test equipment
costs. The unbalanced bid provisions of the current FAR provision do not provide a
basis for special treatment of molds or any other fixed-costs incurred in preparing the
first articles in a contract with a first article test provision. Moreover, a concern with
unbalanced pricing is irrelevant to Globe's claims regarding constructive changes
because Globe is alleging changes that occurred after award of the contract. Simply
put, purported post-award constructive changes cannot cause an unbalanced bid. For
these reasons, w~ find that second prong of the termination settlement clause does not
provide a basis for Globe to recover its claimed additional first article test costs.

        Globe argues that the contract provisions requiring that "all costs" be included
in the first article test unit prices do not prohibit its recovery of additional costs in the
termination settlement because the contract does not use mandatory language, and
because CLIN OOOlAA, the CLIN for the "shakedown test trailer," does not contain
the cited language (app. mot. at 15). First, we fail to see how a contract clause stating
that "all costs ... are to be included" can be read as anything other than a mandatory
contractual requirement. To the extent Globe argues that it was not prohibited from
amortizing costs across all production units, we agree; however, to the extent Globe
actually did this, it did so at the risk that it would not recover those costs in a
termination for convenience. (FAR 52.209-4; R4, tab 1 at 67) Globe is correct that
CLINOOO lAA, for the shakedown test trailer, does not contain a provision stating that
all costs should be included in the first article test; however, the contract required that
the shakedown test trailer be refurbished and resubmitted as one of the PVT trailers
under CLIN0003AA, which does contain the language requiring the inclusion of all
costs in the first item test contract line item. Moreover, to the extent Globe argues that
the purported constructive changes were fixed costs applying to all trailers, such costs
also applied to the PVT trailers in CLIN0003AA, which required inclusion of all costs.
Thus, it is unclear what costs pertaining to the shakedown test trailer could remain to
be included in Globe's claim.




                                              9
        With regard to the second prong of FAR 52.212-4(1), providing reimbursement
of "reasonable charges" not related to the percentage of work completed, the parties do
not dispute that Globe is entitled to certain charges, such as the costs of preparing the
termination settlement proposal (gov't reply br. at 8). However, Globe contends that it .
is entitled to reimbursement of its "preparatory and other unamortized initial costs,
including those related to first articles that [it] reasonably intended to spread over the
production units but was unable to by reason of the termination" (app. resp. at 16).
Globe cites to SWR for the proposition that these costs do not relate to the work
completed but should be reimbursed to compensate Globe fairly (id.). However,
Globe ignores the fact that the contract at issue in SWR did not contain a first article
test provision which required inclusion of all costs into the first article test units.
Compensation to the contractor in SWR was for preparatory costs on a contract that
was terminated before any work was completed. SWR, 15-1 BCA ,r 35,832 at 175,203.
Globe's citations to TriRAD Technologies, Inc., ASBCA No. 58855, 15-1 BCA
,r 35,898 and Campus Management Corporation, ASBCA Nos. 59924, 59925, 17-1
BCA ,r 36,727 (app. mot. at 18-19) suffer from the same fate as neither of these
appeals involved first article testing. Here, Globe completed and was compensated for
the first article units and the contract directed Globe to include all costs in the first
article line items.

        Having determined that the FAR termination for convenience provision, read in
conjunction with the first articlt;-testing provision does not provide for costs in excess
of the first article test contract line item amounts, we address Globe's assertion that it
is entitled to additional compensation because the government constructively changed
the configuration of the first article test trailers (app. mot. at 16~17). The government
contends that Globe is not entitled to recovery because it failed to comply with the
engineering change proposal process (gov't mot. at 22-27). A constructive change
               "a
occurs when contractor performs work beyond the contract requirements without a
formal order, either by an informal order or due to the fault of the Government."
Agility Public Warehousing Co. KSCP v. Mattis, 852 F.3d 1370, 1385 (Fed. Cir.
2017), (quoting Int'! Data Prods. Corp. v. United States, 492 F.3d 1317, 1325 (Fed.
Cir. 2007)).

        Having determined that the termination for convenience clause does not provide
a basis for Globe's recovery, we need not reach the government's argument that Globe
failed to follow the engineering change proposal process. Resolution of Globe's
motion, to the extent it alleges constructive change either as a factual issue regarding
the percentage of contract work completed in the termination for convenience
provision, or as a stand-alone basis for recovery, is not properly before the Board. 6

6   The government has not moved to dismiss Globe's constructive change claims on the
         basis of lack of jurisdiction. While we possess the power to determine our
         jurisdiction sua sponte, here, the issue has not been briefed. We note that the

                                            10
Our reviewing court, the Federal Circuit, has held that CDAjurisdiction requires "both
a valid claim and a contracting officer's final decision on a claim." M Maropakis
Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed'. Cir. 2010}(citing James
M Ellett Constr. Co. v. United States, 93 F.3d 1537, 1541-42 (Fed. Cir. 1996)). As
noted in the facts above, Globe presented its inventory basis terminati~ settlement .
proposal to the contracting officer in 2014 (R4, tab 25). That settlement proposal, was
the subject of a contracting officer's final decision (R4, tab 31) providing the basis for
this Board's jurisdiction. In 2017, after appeal to this Board, Globe submitted a
revised settlement proposal, asserting entitlement to compensation for change orders
(app. supp. R4, tab 552). This revised termination settlement proposal was not the
subject of a-'contracting officer's final decision, and Globe has not appealed from a
deemed denial of the claim. Indeed, the government has obliquely challenged (in its
answer) our jurisdiction over the claim by asserting that the revised proposal
"contained claims based upon additional operative facts that were not alleged in its
original termination settlement proposal" (answer 127). Thus, we find that Globe has
not established that its constructive change claims are properly before the Board, and
deny Globe's motion for summary judgment with regard to these asserted costs.

                                     CONCLUSION

       For the reasons stated above, we grant both motions in part, holding that Globe
has established that the termination settlement should include compensation for work
performed on contract data requirements lists required by contract line item 0006AA
to be completed before first article approval, and that the first article test requirements
prevent compensation in excess of the contract line item amounts. The parties are
directed to file a joint status report with a proposed schedule for future proceedings
within 45 days of the date of this order. -

       Dated: July 10, 2019



                                                    DAVID D' ALESSANDRIS
                                                    Administrative Judge
                                                    Armed Services Board
                                                    of Contract Appeals
{Signatures continued)


       termination settlement proposal references an attached schedule (R4, tab 25 at
       G-249) that does not appear to be included in the record. Accordingly, we
       leave open the question of whether something in the record could support
       jurisdiction for Globe's constructive change claims.

                                             11
 I concur                                         I concur



                 SHER                             OWEN C. WILSON                  =
  dminis rative Judge                            ·Administrative Judge
 Chairman                                         Vice Chairman
 Armed Services Board                             Armed Services Board
 of Contract Appeals                              of Contract Appeals


       I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 60979, Appeal of Globe
Trailer Manufacturing, Inc., rendered in conformance with the Board's Charter.

      Dated:



                                                  PAULLAK. GATES-LEWIS
                                                  Reco~der, Armed Services
                                                  Board of Contract Appeals




                                           12
