                 ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
Beechcraft Defense Company                     )      ASBCA No. 59173
                                               )
Under Contract No. FA8617-07-D-6151            )

APPEARANCES FOR THE APPELLANT:                        Jerald S. Howe, Jr., Esq.
                                                      James J. McCullough, Esq.
                                                      Samuel W. Jack, Esq.
                                                       Fried, Frank, Harris, Shriver &
                                                         Jacobson LLP
                                                       Washington, DC

APPEARANCES FOR THE GOVERNMENT:                       E. Michael Chiaparas, Esq.
                                                       DCMA Chief Trial Attorney
                                                      Robert L. Duecaster, Esq.
                                                       Trial Attorney
                                                       Defense Contract Management Agency
                                                       Manassas, VA

       OPINION BY ADMINISTRATIVE JUDGE STEMPLER ON APPELLANT'S
        MOTION TO DIRECT THE GOVERNMENT TO FILE THE COMPLAINT

       This matter comes before the Board on appellant's motion for an Order requiring
the government to file the complaint in this appeal.

               STATEMENT OFF ACTS FOR PURPOSES OF THE MOTION

        1. On 12 December 2013 a Defense Contract Management Agency (DCMA)
contracting officer (CO) issued a final decision 1 to Beechcraft Defense Company (BDC
or appellant) alleging that BDC was noncompliant with CAS 402 from 2006 until
present. The final decision asserted a government claim for $5,861,755.00 inclusive of
interest to the date of the decision. The decision referenced five documents: (1) a
Defense Contract Audit Agency (DCAA) audit report dated 1April2009; (2) an
Administrative Contracting Officer's (ACO) Determination of Noncompliance letter
dated 3 April 2009; (3) appellant's General Dollar Magnitude Proposal dated 4 June
2009; (4) a DCAA audit report dated 15 August 2011; and (5) appellant's letter dated
31 October 2011 in rebuttal to the 15 August 2011 audit report. The decision chose
Contract No. FA8617-07-D-6151 as a representative contract.

1
    All references are to documents in the Board's correspondence file.
      2. By letter dated 21February2014, BDC filed a Notice of Appeal from the CO's
12 December 2013 final decision and the Board docketed the appeal on 24 February
2014.

       3. Relying on LGT Corporation, ASBCA No. 44066, 93-3 BCA ii 26,184, on
6 March 2014 appellant filed the instant motion arguing that since the appeal involved a
government claim, the government was in a better position to file the complaint and that
the proceeding would be facilitated by the government's filing of the initial pleading
setting forth the full rationale for the assertion of its claim.

       4. By Order dated 11March2014, the Board ordered the government to respond
to the motion, and stayed the proceeding pending resolution of the motion.

       5. On 25 March 2014, the government responded to the motion recognizing that
the appeal involved a government claim, but objecting to filing the initial pleading and
asserting that "[a]ppellant is in the best position to assert the facts that would establish a
compliant [with CAS 402] accounting practice." The government alleged that there had
been no showing that the proceeding would be facilitated by its filing the initial pleading.
The government also disagreed that LGT was controlling and instead referred the Board
to General Dynamics Corporation, ASBCA No. 49339, 96-1BCAii28,244.

       6. On 14 April 2014 appellant replied to the government's opposition to the
motion, arguing that the relevant information concerning why the government alleges
appellant had violated CAS 402 resides with the government and:

              [D]irecting the Government to file the complaint would
              facilitate these proceedings because it would establish the
              factual and legal allegations underlying the Government's
              position from the outset, rather than having Beechcraft draft a
              complaint that speculates about the grounds for the
              Government's claim, and which may include information that
              is not relevant to the dispute.

                                         DECISION

       The circumstances of this motion present themselves because of the requirement
of the Contract Disputes Act (CDA) that all claims (whether by the contractor or the
government) be the subject of a CO's final decision (or deemed decision) (41 U.S.C.
§ 7103) and the CDA's requirement that proceedings before this Board always
commence with an appeal from a CO's decision by the contractor, regardless of whether
the decision concerns a contractor or government claim. 41 U.S.C. § 7104. In
accordance with this procedural posture, Board Rule 6 requires appellants to file


                                              2
complaints. 48 C.F.R. Chap. 2, Appx. A, Pt. 2, Rule 6. Nonetheless, we have recognized
that there exist situations when the proceedings would be facilitated by the government
filing the complaint or initial pleading. See, e.g., RO. VI.B. Srl, ASBCA No. 56198, 09-1
BCA ~ 34,068 (termination for default claim by government); Hughes Aircraft Company,
ASBCA No. 46321, 94-2 BCA ~ 26,801 (defective pricing claim by government); LGT
Corporation, 93-3 BCA ~ 26, 184 (Board orders government to file complaint sua
sponte). If we determine that the proceeding would not be facilitated, we do not order the
government to file the initial pleading. See, e.g., General Dynamics Corp., 96-1 BCA
~ 28,244 (contractor in possession of information upon which government claim is
based).

       The government's 25 March 2014 response to the motion evidences a basic
misunderstanding concerning the alleged CAS violations. It appears the government
believes that it is appellant's burden to establish that its accounting system is CAS
compliant. The law is otherwise. The burden of proving noncompliance is upon the
government. Raytheon Company v. United States, No. 2013-5004, -5006, slip. op. at 18
(Fed. Cir. April 4, 2014); General Dynamics Corporation, ASBCA No. 56744, 11-2
BCA ~ 34,787; Unisys Corporation, ASBCA No. 41135, 94-2 BCA ~ 26,894; NI
Industries, Inc., ASBCA No. 34943, 92-1 BCA ~ 24,631.

        In the circumstances of this appeal, we conclude that the proceedings would be
facilitated by the government setting forth in an initial pleading, the facts and rationale
for its CO's decision finding that Beechcraft was noncompliant with CAS 402 and the
position the government is taking before this Board. We do not deem this requirement to
be onerous. 2 The government should be fully conversant with its own claim. The
government's pleading is due within 30 days from the date the government receives this
decision.




2
    This is comparable with CDA practice at the Court of Federal Claims where the
          government routinely files a counterclaim in response to the contractor's initiation
          of the litigation (by the filing of a complaint rather than a Notice of Appeal as is
          the case in Board practice) in cases involving a government claim.

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                                   CONCLUSION

      Appellant's motion is granted.

      Dated: 24 April 2014




                                             Administrative Judge
                                             Acting Chairman
                                             Armed Services Board
                                             of Contract Appeals

                                              I concur


                                             ~h£L;/
RICHARD SHACKLEFORD                          MARK A. MELNICK
Administrative Judge                         Administrative Judge
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. 59173, Appeal ofBeechcraft
Defense Company, rendered in conformance with the Board's Charter.

      Dated:



                                             JEFFREY D. GARDIN
                                             Recorder, Armed Services
                                             Board of Contract Appeals




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