U.S. Aeroteam, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of - ) ) U.S. Aeroteam, Inc. ) ASBCA Nos. 61972, 61973 ) Under Contract No. FA8526-09-C-0007 ) Contract No. FA8526-12-C-0039 ) APPEARANCES FOR THE APPELLANT: Milton C. Johns, Esq. Rachel Leahey, Esq. Jill F. Helwig, Esq. Executive Law Partners, PLLC Fairfax, VA APPEARANCES FOR THE GOVERNMENT: Caryl A. Potter, III, Esq. Air Force Deputy Chief Trial Attorney Isabelle P. Cutting, Esq. Michael J. Farr, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE O’CONNELL These appeals involve two Air Force contracts to purchase ground support trailers for aircraft engines. The contracts have an extensive litigation history, which can be traced to two requests for equitable adjustment that appellant, U.S. Aeroteam, Inc. (USAT), submitted in 2015 that the contracting officer mostly denied. In 2016 and 2017, USAT submitted certified claims related to the trailer running gear, which was the main cost component of the REAs. After the contracting officer denied the claims, USAT filed suit in the Court of Federal Claims, which entered judgment in favor of the government. That decision was affirmed by the Court of Appeals for the Federal Circuit. U.S. Aeroteam, Inc. v. United States, No. 2021-2272, 2022 WL 2431626 (Fed. Cir. July 5, 2022) (USAT I). Nearly two years after it submitted the first running gear claim, USAT certified claims for the remaining REA issues. The present appeals arise from those claims. As will be seen, the government contends that some parts of the two appeals were, or should have been, litigated in the Court of Federal Claims. During the period in which the REAs/claims were under consideration or in litigation at the Court of Federal Claims, work on the second contract ground to a halt. The contracting officer terminated the contract for default and demanded the return of more than $3 million in unliquidated progress payments. USAT appealed both decisions to the Board, which denied the appeals in U.S. Aeroteam, Inc., ASBCA Nos. 61933, 61934, 25-1 BCA ¶ 38,826 (USAT II). USAT did not appeal that decision, and it is now final and binding. The Board conducted a five-day hearing on the present appeals. 1 Only entitlement is before us (tr. 1/7). The Board dismisses the appeals in part for lack of jurisdiction. We sustain the appeals with respect to shoring of trailers, consultants, and in-house REA costs. Otherwise, we deny the appeals. FINDINGS OF FACT 1. USAT is a contractor that specializes in building components for the aerospace industry. USAT I, 2022 WL 2431626, at *1. 2. On April 24, 2009, the Air Force awarded USAT Contract No. FA8526-09- C-0007 (the 07 contract) for the delivery of up to 41 ground support trailers for C-17 Globemaster III aircraft engines. The contract provided for payment of $199,877.90 per trailer during the base contract, and $218,319.60 for optional trailers. (Joint Stipulation of Facts (JSF) ¶ 8; R4, tab 6 at 3, 12)). 2 3. On September 6, 2012, the Air Force awarded USAT Contract No. FA8526- 12-C-0039 (the 39 contract), a contract for 86 trailers at $179,975 each, with options for 12 trailers at $184,975 (R4, tab 41 at 1-4). 4. The contracts were firm-fixed-price, placing upon USAT the “‘maximum risk and full responsibility for all costs and resulting profit or loss.’” USAT I, 2022 WL 2431626, at *1 (quoting Federal Acquisition Regulation (FAR) 16.202-1). 5. The contracts included a technical data package (TDP) that identified thousands of parts to be produced or acquired. The TDP included about 800 drawings (tr. 1/33; 4/70; R4, tab 1 at 58-86 (initial list of drawings)). Most of the litigation at the Board and the Court of Federal Claims has stemmed from the TDP. 1 Judge Young, who conducted the hearing, retired in 2025. 2 Citations to the Rule 4 file are to the .pdf page number of the electronic file. 2  The Requests for Equitable Adjustment (REAs) 6. In January or February of 2015, USAT submitted an REA on each contract with the running gear as the primary cost component (JSF ¶ 41). Each REA contained multiple discrete issues referred to as “factors.” 7. The REA for the 07 contract sought the following amounts: Factor 1 – Running Gear $1,092,415 Factor 2 – Gov’t Source Inspections $37,880 Factor 3 – Progress Payments $287,439 Factor 4 – Shoring of Trailers $4,868 Factor 5 – Storage Boxes $53,006 Factor 6 – Engineering Orders $8,811 Factor 7 – Consultants $15,904 Factor 8 – In-House REA Expenses $25,129 Factor 9 – ID Tags $2,109 (JSF ¶ 42; R4, tab 27). 8. The REA for the 39 contract contained many of the same factors: Factor 1 – Running Gear $3,559,810 Factor 2 – Gov’t Source Inspections $55,169 Factor 3 – Shoring of Trailers $9,501 Factor 4 – Floor Space for trailers $53,010 Factor 5 – Engineering Orders $70,200 Factor 6 – Brake Testing $62,162 Factor 7 – Consultants $35,900 Factor 8 – In-House REA Expenses $53,124 Factor 9 – ID Tags $4,624 Factor 10 – Change in Contract – FMS $53,758 Factor 11 – Impact on Business $574,265 (JSF ¶ 43; R4, tab 52). 9. On May 17, 2016, the contracting officer issued a decision with respect to the 07 contract REA (R4, tab 29). He determined that USAT was entitled to: Factor 5 – Storage Boxes $48,229.64 Factor 6 – Engineering Orders $8,446.64 3  Factor 7 – Consultants $296.70 (JSF ¶ 49). 10. On the same date, the contracting officer issued a decision with respect to the 39 Contract. He determined that USAT was entitled to: Factor 5 – Engineering Orders $72,730.09 Factor 6 – Brake Testing $68,812.12 Factor 7 – Consultants $542.58 (JSF ¶ 53). 11. The contracting officer effectively denied the remaining factors in the REAs but left them “on hold” if USAT wished to submit additional documentation (JSF ¶¶ 49, 53). The Running Gear Claims and Litigation 12. The running gear is essentially a drive train for the trailer, which allows it to roll, brake, and steer. USAT obtained the running gear from a subcontractor, PDI Ground Support Systems (PDI). USAT I, 2022 WL 2431626, at *1. According to USAT’s president, Suhas Kakde, depending upon how one counts (number of parts or dollar value), the running gear made up 40 to 50% of the trailers (tr. 1/26, 49). 13. On December 19, 2016, USAT submitted a claim for $1,385,912 related solely to the running gear for the 07 contract. USAT certified the claim on February 10, 2017. (R4, tabs A - B) On February 24, 2017, USAT submitted a certified claim for $4,022,273 for the running gear on the 39 contract (R4, tab C). 14. USAT alleged that the Air Force had ordered USAT to manufacture the running gear in place of PDI, causing it to incur increased costs. USAT I, 2022 WL 2431626, at 2. What actually happened is that in March 2012, after delivering 19 running gear units on the 07 contract, PDI attempted to raise its price from an agreed-upon $20,300 per unit to $38,000. Id.; (R4, tab A at 2-3). USAT chose not to absorb the price increase and decided to manufacture the running gear itself. The financial consequences of this decision increased sharply when USAT subsequently bid the much larger 39 contract at a significantly lower price per trailer. USAT I, 2022 WL 2431626, at *1. (R4, tabs A at 2-3; C) 4  15. USAT made a number of allegations in the 07 contract running gear claims concerning defects in the contract’s TDP and the ensuing delays that are relevant to the present appeals. The allegations include the following: A. The government-provided TDP “included many RG [running gear] component drawings that were faulty.” PDI had its own TDP, which was also faulty. The “discrepancies” in the TDPs “caused delays in production, increased material scrap rates, extensive rework, and greater oversight and inspection of processes and procedures by USAT inspection and management personnel.” (R4, tab A at 7) B. The TDPs “were deficient” and forced USAT to “develop solid models,” which required “many attempts until the specifications were met. USAT consistently found the TDP drawing specifications resulted in ‘tolerance stack-up.’” 3 (Id. at 8) C. “If USAT had produced the RG using the approved drawings it received, the overall performance of the trailer would have been impaired” (id. at 10). D. “Hold Point delays” imposed by the Defense Contract Management Agency (DCMA) “cost USAT their battle rhythm in the manufacturing process.” When DCMA imposed these delays, “USAT incurred tremendous waste in the form of idle machines and employees working at less than their full capacity.” (Id. at 11) E. USAT had “to engineer a new TDP that would evolve into a build to print and to address the failings for the PDI and Government-provided TDPs, both of which were not build to print drawings because they lacked the necessary precision to establish a RG manufacturing assembly line” (id. at 12). F. USAT’s increased costs were caused, in part, by “the failure of both sources and specifications listed on the Government-provided drawings USAT received when it was forced to manufacture the” running gear (id. at 16). G. “It was time-consuming and costly for USAT… to create a manufacturing assembly process from scratch to make a product it had never produced, based on faulty TDPs” (id. at 19). H. The government impliedly warranted that the running gear drawings “were free of errors” (id. at 14, 22). 3 Tolerance refers to the acceptable variation in individual pieces. Stack-up refers to a problem that can occur when individual pieces that are each within acceptable limits must fit together. (R4, tab A at 8-9) 5  I. USAT is entitled to recover under “the theory of defective specifications” (id. at 22). J. USAT is not “legally responsible for the delays and costs of inefficiencies which it encounters when, for reasons not foreseen by the contractor, its performance proves to be more difficult or complex than that described in the solicitation” (id. at 23). 16. The 39 contract claim incorporated the allegations in the 07 contract claim (R4, tab C at 2). 17. The contracting officer denied the running gear claims (R4, tabs D - E). On July 26, 2018, USAT filed a 10-count complaint in the Court of Federal Claims. The complaint raised a variety of theories including constructive change, commercial impracticability, and cardinal change (R4, tab F). The Air Force draws our attention to counts seven and eight, which alleged that the government’s TDP was defective (id. at ¶¶ 126-27, 134-35). These counts alleged, in part, that: 126. The government provided design specifications as part of the TDP with the 0007 solicitation. 127. The government’s design specifications were defective. 128. USAT was not aware of the defects in the government’s design specifications when it submitted its proposal on or about October 28, 2008. 129. USAT relied on the defective government specifications in submitting its proposal. USAT believed that the design specifications would allow a manufacturer to build-to-print. This proved to be impossible. 130. The defects in the government’s design specifications were not apparent upon visual examination but became apparent only after USAT started manufacturing RGs in late 2012 and early 2013. (R4, tab F) 18. During the trial at the Court of Federal Claims, USAT presented expert testimony from the same expert it employed at the Board. The expert opined that USAT had incurred $1,656,926 in damages due to “production inefficiencies and disruption” after “taking over production of the running gear” 4 (USAT I, CAFC app’x at 1986 (COFC tr. 628)). 4 This testimony led to an objection by the government and an argument about the proper scope of the cases at the court and the Board. Ultimately, the court decided to bifurcate the trial into liability and damages phases (USAT I, CAFC app’x at 1986-89 (COFC tr. 628-42)). Because the court decided the liability issue in favor of the government, it never resolved the objection. 6  19. After a trial, the Court of Federal Claims ruled from the bench in favor of the government without a subsequent written opinion. USAT, 2022 WL 2431626, at *2. USAT appealed to the Federal Circuit, which affirmed the trial court’s decision. The Court of Appeals held that USAT failed to prove its contention that the Air Force ordered it to manufacture the running gear. Id. at *2. Rather, USAT “chose” to manufacture it. Id. The Court observed that PDI did not refuse to manufacture the running gear. Rather, PDI only demanded a higher price, which USAT chose not to pay. Id. at *2-*4. The Court held that an increase in a subcontractor price was part of the risk that USAT assumed when it executed a firm-fixed-price contract. Id. at *5. USAT Submits Claims on the Remaining REA Factors 20. On November 16, 2018, more than nine years after award of the 07 contract, USAT submitted certified claims for the REA factors that had not been resolved, withdrawn, or filed in the Court of Federal Claims (JSF ¶¶ 61-64; R4, tabs 31, 60). The biggest changes to the claims from the REAs were the introduction of a Factor 11 on the 07 contract and a large increase in Factor 11 on the 39 contract. Factor 11 dominated these claims. 21. The claim for the 07 contract sought: Factor 2 Gov’t Source Inspection Changes $35,488 Factor 4 Shoring of Trailers $4,562 Factor 7 Consultants $93,327 Factor 8 In-House REA and Claim Expenses $27,635 Factor 9 ID Tags $1,917 Factor 11 Impact on Business/Interruption to Production $2,460,000 TOTAL $2,622,929 (JSF ¶ 62; R4, tab 31). 22. The claim for the 39 contract sought: Factor 2 Gov’t Source Inspection Changes $52,703 Factor 3 Shoring of Trailers $9,474 Factor 4 Floor Space for trailers $18,119 Factor 7 Consultants $210,670 Factor 8 In-House REA and Claim Expenses $60,768 Factor 9 ID Tags $4,357 Factor 10 Change in Contract – FMS $50,596 7  Factor 11 Impact on Business/Interruption to Production $4,054,265 TOTAL $4,460,952 (JSF ¶ 64; R4, tab 60). 23. The contracting officer did not issue final decisions on the claims (JSF ¶ 67). USAT filed appeals on February 15, 2019. 24. The Board docketed the 07 contract appeal as ASBCA No. 61972 and the 39 contract appeal as No. 61973. For the remainder of this decision, we make separate findings of fact and conclusions of law for each factor as applied to the two contracts. We begin with Factor 11 because its portion of the claims is the most complex and constitutes about 92% of the amount in dispute. FINDINGS OF FACT FOR FACTOR 11 – IMPACT ON BUSINESS/INTERRUPTION TO PRODUCTION AND CONSISTENT NONRESPONSIVENESS Background 25. During the solicitation of the 07 contract, the Air Force was under pressure to award a contract due to expiring funds. The Air Force used engineering orders to amend the drawings in advance of issuing final revised drawings. During the TDP package preparation and the solicitation, the Air Force issued approximately 27 drawing updates through engineering orders. (Tr. 4/69) The parties continued to discover issues with the TDP after award (tr. 5/18). 26. If an error in the TDP was discovered by USAT or the government, the government would send the issue to David Doran, an Air Force engineer (tr. 4/67, 90). Mr. Doran would review the issue and coordinate a response with Boeing, the aircraft manufacturer. If they determined that a change to a drawing was warranted, an engineering order would be generated. (Tr. 4/90-91) The amount of time it took to identify a solution was “highly variable” and depended on the complexity of the issues and the number of suppliers involved (tr. 4/93). 27. On October 28, 2011, USAT submitted an REA for 85 engineering orders issued after the award of the 07 contract (JSF ¶¶ 15-16; app. supp. R4, tab 120). 28. On May 3, 2012, the parties entered into bilateral Modification No. P00008 (Mod. P8) in the amount of $234,754 in settlement of the REA. The parties have 8 stipulated that USAT released the government from further liability for these engineering orders (JSF ¶ 16; R4, tab 16). 29. By contrast, in the REAs that led to the present appeals, when the Air Force agreed to pay USAT for the engineering order factors (findings 9, 10), the payments were for “engineering labor only, not for production-related costs” (JSF ¶¶ 51, 54). 30. During the 07 contract, the Air Force issued 196 engineering orders (JSF ¶ 51). During performance of the 39 contract, the Air Force issued 85 engineering orders (JSF ¶ 54). The Factor 11 Claims 31. In its November 16, 2018 certified claims, USAT entitled the Factor 11 issue “Impact on Business/Other Customer Deliveries and Interruption to Production, and Consistent Non-Responsiveness” (R4, tabs 31 at 3; 60 at 4). During the hearing before us, USAT abandoned the first part involving the impact on its business and deliveries to other customers (tr. 1/100-01; 2/9-10). 32. As to the remaining portion (interruption to production and consistent non- responsiveness), the claims on the two contracts had nearly identical explanations and, like the running gear claims, contained allegations of a defective TDP. The 07 contract claim stated: All the EOs on [the two contracts] caused not only the engineering interruptions & time spent to come up with the correct solution that of which we were paid for, but we were not compensated for the interruption to Production Flow/Battle Rhythm while waiting on responses from AF engineering & contracting. This was a build to print we did not include disruptions in production for a deficient TDP. As a Lean Manufacturer, we priced this very competitively thinking the government would not have a deficient TDP and delayed responsiveness especially when there had been over 120 trailers fielded prior to [the 07 contract]. A total of forty-one (41) trailers were delivered under the 0007 contract, and this cost is attributable to production of only those units. (R4, tab 31 at 3-4) 33. These four sentences were the sole explanation the contracting officer received. While the part of the Factor 11 claim that USAT abandoned had been part of 9 the 39 contract REA, the remaining issue had not. USAT alleges that there were 4.5 years of delay on the two contracts (app. br. at 33), but it would have been impossible for the contracting officer to discern that from the quoted text. 34. Curiously, in a hearing in which only entitlement, not quantum, was at issue, USAT presented expert testimony only from a certified public accountant (tr. 2/40). Although he read some of the engineering orders, the expert did not know how many, and he did not “have any independent interests in understanding engineering order [sic]” (tr. 2/103). 35. USAT has provided the Board a blurry spreadsheet entitled “DELAYS ON EACH OF THE ENGINEERING CHANGES to implemet [sic] the change thru mfg process” (app. supp. R4, tab 202). The spreadsheet states that it was prepared “by Ed Cyran, Chief Eng’r” (id.) (hereinafter USAT EO Delay Spreadsheet). Mr. Cyran did not testify during the hearing. 5 Among other things, the document identifies a part, the number of trailers affected, and the days of alleged delay. For example, line 10 of the spreadsheet identifies a part referred to as “Flap & Tube” (discussed below) that affected 41 units and for which Mr. Cyran listed 135 days of delay. 36. The spreadsheet contains a total of 42 entries requesting delays up to 238 days per entry. Mr. Kakde testified that the spreadsheet “is not complete” (tr. 1/104). While this would imply that USAT contends that there were more than 42 engineering orders that caused delay, USAT witnesses discussed fewer than 42 issues at the hearing, as we will discuss below. Accordingly, the number of engineering orders for which USAT alleges delay or disruption is not clear. 37. USAT attempted to prove its claims mostly by fact witness testimony. While these witnesses referred to documents in the record, in most cases these documents were emails, not contract drawings, engineering orders, or schedules. Testimony on Factor 11 was primarily given by Jeffrey Maag, USAT’s former vice president of sales (tr. 3/36), and Mr. Doran of the Air Force. Both witnesses were credible but at times struggled to recall events that occurred up to 10 years before USAT submitted the claims at issue (and 12 years before the hearing). This was particularly so for Mr. Maag, who was no longer a USAT employee at the time of the hearing (tr. 3/35). Because USAT lacked an expert who could analyze the engineering issues and calculate specific delays, USAT’s delay presentation consisted mostly of Mr. Maag declaring that USAT had been delayed, without any specific testimony or documents establishing the length of the delay. 5 Mr. Cyran did testify in the running gear trial at the Court of Federal Claims. The court found that Mr. Cyran “had very little memory to offer. He repeatedly said he didn’t remember things …. He just didn’t remember the critical facts.” (USAT I, Fed. Cir. Appx. at 2061 (tr. 843)). 10  38. During his testimony, Mr. Maag attributed numerous problems USAT experienced to errors in the TDP. Our findings with respect to these issues are set forth below. However, we note that because USAT did not raise most of these issues in its claims nor discuss them in its post-hearing briefs, it is not clear which issues are actually part of the Factor 11 claims. A. Weldments 39. Mr. Maag cited this issue after USAT’s attorney asked him for examples of mistakes within the TDP. Mr. Maag’s testimony, while terse, was that the drawings provided that parts should be finished to print dimensions and then welded, but USAT found that the heat of the welding would change the configuration of the pieces and cause them to fall out of tolerance (tr. 3/49). 40. Mr. Maag did not address the extent of the delay or disruption caused by the alleged problem, nor did he refer to any documents. 41. The entire trailer contained weldments, including the running gear (tr. 4/6). 42. A weldment issue is not mentioned in the claims, nor in USAT’s post- hearing briefs. B. Dampening 43. Mr. Maag testified about this issue after USAT’s attorney asked: “what was the most significant supplier issue that you encountered with the tech data package?” (tr. 3/56). 44. Mr. Maag testified that the most significant supplier issue involved a dampening, which looks like a hydraulic cylinder. Mr. Maag testified that the dampening was supposed to have a fixed valve that could not be altered, but the supplier, which he referred to as Cunningham, sent a product with adjustable valves, which was “a clear violation of the TDP.” (Tr. 3/56, 59) Mr. Maag attributed the problem to “turnover” in Cunningham’s “small shop” (tr. 3/59). Mr. Maag did not address the extent of the disruption caused by the alleged problem, nor did he refer to any documents. 45. The dampening issue was not mentioned in USAT’s claims, or in its post- hearing briefs, or in the USAT EO Delay Spreadsheet. It is not entirely clear if this issue is part of USAT’s claim, but the import of Mr. Maag’s testimony seemed to be that USAT contends that the government was responsible for these problems because 11 the supplier was a “directed source” (tr. 3/59). USAT did not direct the Board to documents showing that Cunningham was a directed source. C. Storage Boxes 46. Each trailer contained a lockable metal storage box. While the TDP listed approved sources, by 2012 they no longer manufactured the boxes. The Air Force modified the contract in June 2012 to add USAT as an approved source, which proceeded to manufacture them. (R4, tab 29 at 7; app. supp. R4, tab 128 at 1-2) 47. It is not clear when the TDP-listed suppliers stopped making the storage boxes. Mr. Maag testified that prior to bidding on the 07 contract, he engaged with the pre-existing suppliers (tr. 3/39), but he did not state whether he had contacted the storage box manufacturers. 48. As described above, the contracting officer approved USAT’s REA with respect to storage boxes, which was a component of only the 07 contract REA. There is no indication that delay or disruption related to the storage boxes are included in the Factor 11 claim. Mr. Maag testified at the hearing that “[w]e were compensated for all of our effort on [the storage boxes], including design” (tr. 3/60). When specifically asked in a follow-up question by USAT’s attorney whether USAT had been compensated for “interruptions to the battle flow,” Mr. Maag responded “I don’t recall it” (tr. 3/61). In any event, Mr. Maag did not testify as to the extent of any delay or disruption caused by the storage boxes. 49. Six of the 42 issues listed on the USAT EO Delay Spreadsheet are identified as “Storage Box” and allege delays ranging from one to 99 days. There are conclusory notes that we find unhelpful. For example, the note for one of the 99-day delays states “Effectivity – 6 Units SN 17-41 & added alternative Storage box drawing 9658-3.” (App. supp. R4, tab 202 at 1) 50. The storage box issue was listed as paid in USAT’s claims (R4, tabs 31 at 6; 60 at 6). The storage boxes are mentioned in the context of the Factor 11 claim in USAT’s post-hearing briefs but only to challenge testimony from Mr. Doran that the change had been for the convenience of USAT (app. br. at 35-36). D. Quality Control Issues 51. This issue relates to delay or disruption but not any alleged errors in the TDP. In a February 28, 2013 letter from Mr. Maag to the administrative contracting officer, Kevin Smith, Mr. Maag stated that Mr. Smith had called USAT the previous day, informing USAT that progress payments would be suspended until quality issues 12 had been resolved. Mr. Maag stated in the letter that “most” of the quality issues were not the fault of USAT. (App. ex. 51 at 1; tr. 3/108) 52. The quality issues included adding too much grease to kingpins, which were part of the running gear. Mr. Maag contended in the letter and in his testimony that the color of the overflowing grease showed that it was not USAT grease but rather grease added by the government (app. ex. 51 at 1; tr. 3/108-09). Other issues raised in the letter involved damage to a storage box and to engine rails on the trailer, which USAT contended had been caused by the shipper after it left the USAT facility (app. ex. 51 at 1). 53. These quality control issues are not mentioned in USAT’s claims or in its post-hearing briefs. In his testimony, Mr. Maag seemed most concerned about the “rumor mill” at DCMA and the lack of an apology. He also testified that when faced with these allegations, USAT had to spend time researching the issues and defending itself and that it “takes away from our battle rhythm” (tr. 3/111-12). Mr. Maag did not quantify any delay or disruption. E. Flaps and Tubes 54. As evidenced in several emails starting in approximately June 2012, after USAT delivered several trailers to Boeing, the tires began going flat. The source of the problem was the inner tube and flap in the tires, which Boeing had to replace. (App. supp. R4, tab 138 at 4) The Air Force and USAT agreed that PDI workmanship had caused the problem. USAT agreed to replace the flaps and tubes in Boeing’s inventory and to inspect tires that were still at USAT’s facility. (Id. at 1, 3) Subsequently, in an email to the contracting officer in March 2013, Mr. Doran stated that the manufacturer of the flaps and tubes, Goodyear, had stopped making them (app. supp. R4, tab 160 at 3). 55. Neither Goodyear nor the flaps and tubes are mentioned under Factor 11 in the claims. However, the flaps and tubes are listed as paid under Factor 5, the engineering orders. (R4, tab 31 at 5) The flaps and tubes are briefly mentioned in USAT’s post-hearing brief, in which it cites the USAT EO Delay Spreadsheet prepared by Mr. Cyran (app. supp. R4, tab 202 at 1) to contend that there was a 135- day delay (app. br. at 32). 56. Mr. Maag testified that this was one of many problems USAT had with PDI. However, he could not remember how long shipments were delayed due to the tire issues. (Tr. 3/116-17) USAT introduced no persuasive evidence supporting a 135- day delay. 57. The tires (and the flaps and tubes) were part of the running gear (tr. 4/7). 13  F. Part Substitutions 58. Mr. Maag testified concerning two part-substitution requests that USAT made in February of 2013 (tr. 3/118-21). The first involved a hose. Mr. Doran investigated and found that the solicitation contained Revision A of the relevant drawing but that the Air Force had never given USAT Revision B, which allowed use of the hose at issue (app. supp. R4, tab 159 at 1). Mr. Maag testified that this had caused “more delay,” but he did not quantify it (tr. 3/119). A hose issue is not mentioned in the claims or in USAT’s post-hearing briefs. 59. The second issue involved a brake drum. 6 All prior trailers included brake drums manufactured by PDI because PDI was the only approved source. The PDI drums had a unique feature in that they had six holes (to accommodate six lug studs) whereas most commercial sources have eight holes. (App. supp. R4, tab 159 at 2; tr. 4/124) 60. Due to the breakdown in the relationship with PDI, USAT asked if there was an alternate source (id.; tr. 3/120). The Air Force answer was that unless PDI refused to make the part, PDI would remain the source (app. supp. R4, tab 159 at 2). Mr. Maag did not testify as to whether PDI ever refused to manufacture the brake drum. He also testified that the brake drum “really wasn’t a – an issue for us so much” (tr. 3/120). 61. The brake drums are not mentioned in the claims or in USAT’s post- hearing briefs. 62. The brake drum is part of the running gear (tr. 4/7). G. Brake Cables 63. Mr. Maag testified with respect to two sets of emails discussing issues with the brake cables. First, he testified concerning emails from March 2015 in which USAT informed the Air Force that the sole-source supplier had updated the cable after completion of the first article test and requested approval of the substitute. USAT complained about how long it was taking the Air Force to approve the substitution. (App. supp. R4, tab 194 at 3; tr. 3/122-24) The supplier is not identified in these emails, but Mr. Maag testified that it was the “Orscheln brake company” (tr. 3/124). 6 A brake drum is part of a drum brake system, which is “a type of vehicle brake in which brake shoes press against the inside of a drum on the wheel.” New Oxford American Dictionary (3rd ed. 2010). 14 Mr. Maag did not testify as to how this issue was resolved, that is, whether the substitution was approved or denied. He did not quantify any delay or disruption. 64. Mr. Maag next testified with respect to emails from January 2014, more than a year earlier, which refer to the brake cables as “PDI cables” (app. supp. R4, tab 175). In these emails, Mr. Doran stated, among other things, that the PDI cables did not conform to the bid drawings because they were missing an external seal that allowed rain and salt air into the cable assembly, resulting in internal corrosion. Boeing and Air Force engineering personnel requested a halt to trailer deliveries until the problems were resolved. (App. supp. R4, tab 175; tr. 3/126-28) Mr. Doran stated that PDI had made an unauthorized substitution of its own version of the brake cable (app. supp. R4, tab 175). Mr. Maag testified that USAT had “to wait, again delay for the acceptable brake cable” (tr. 3/128), but he did not dispute that the corrosion and other problems discussed in the email had occurred. Mr. Maag characterized the matter as “PDI’s problem, not ours” (tr. 3/127). 65. It is not clear how the problems with the brake cables in 2014 impacted the request for approval of an updated cable in March 2015. 66. The brake cable issue is not discussed in USAT’s claims or in USAT’s post-hearing briefs. 67. The brake cable is part of the running gear (tr. 4/7). H. Drawing Revisions 68. This issue relates to an October 29, 2012, email from Mr. Doran to an official at Boeing. Mr. Doran stated that USAT had submitted five technical support requests. Among other things, Mr. Doran concluded that 26 drawings provided to USAT by the government were not at the correct revision level so that “Rev. A” drawings needed to be changed to “Rev. B.” (App. supp. R4, tab 141) 69. Mr. Maag did not explain what the underlying issues were and what, if any, problems were caused by USAT having an earlier version of the drawings. Mr. Maag asserted that the issue was “disrupting”, but he again failed to quantify the impact (tr. 3/152). USAT did not discuss the issue in its claims. USAT mentioned this issue in its post-hearing brief but only to establish that the parties continued to find errors in the TDP after award (app. br. at 30). I. Guide Plates 70. This issue involves parts that are referred to as guide plates. In an email dated February 6, 2013, to contracting officer Mr. Gordon Abney, Mr. Doran stated 15 that the guide plates had not been installed correctly. He concluded that it was not the fault of USAT or DCMA because the drawings were not clear with respect to the correct orientation of the plates. (App. supp. R4, tab 157) 71. Mr. Maag testified that this caused “a lot of administrative paperwork” for USAT and required it to retrain assembly line personnel but he was not specific as to the extent of the delay or disruption this caused (tr. 3/153). 72. USAT did not mention guide plates in its claims or post-hearing briefs. J. Brake Drums 73. This is a second issue involving the brake drums. As of July 2014, more than two years after it decided to manufacture the running gear, USAT was still having trouble building trailers with properly functioning brakes. In a July 9, 2014 email to CO Abney, Mr. Doran reported “that the brake drum drawing lacked explicit concentricity/run-out criteria” (app. supp. R4, tab 187 at 1). As Mr. Doran testified at the hearing, it is important to “hav[e] the drum concentric with the axle, or the hub, so that you’re not running ineffectively trying to chase an egg shape” (tr. 4/135). In other words, the parts should be concentric circles, not a circle around an egg shape. The lack of explicit direction in the drawings was not a problem until USAT became the manufacturer because PDI had the expertise to manufacture, finish, and install the parts correctly (tr. 4/135-36). Such knowledge is widely held among manufacturers and service garages (app. supp. R4, tab 187 at 2). 74. While reviewing this problem, Mr. Doran also discovered that the drawings permitted the use of 2.5-inch brake shoes even though the Air Force had determined that 3.0-inch brake shoes were necessary. The Air Force ordered the use of the 3.0- inch shoes. (Id. at 1-2) 75. Mr. Maag was again unable to provide a detailed explanation as to the disruption or delay these issues caused USAT (tr. 3/156). 76. USAT did not discuss the brake drum issues in its claims or post-hearing briefs. K. Surge Brake 77. This issue stems from a February 20, 2013 request for deviation by USAT “to correct the End Fitting changes” on the surge brake because the government did not provide USAT the correct drawing (app. ex. 94 at 1). Mr. Maag testified that USAT “ha[d] to pull all the paperwork that’s throughout the company” and that it had 16 “to recreate a new router” but did not quantify any delay or disruption to USAT (tr. 3/161). 78. The surge brake is not mentioned in USAT’s claims. USAT mentions the surge brakes once in its briefs, but only in a conclusory manner (app. br. at 43). 79. The surge brake is part of the running gear (tr. 4/145). L. Hollow Member Treatment Plugs 80. This issue involved holes drilled into the bottom of the trailers, which led to concerns about corrosion (tr. 4/149). USAT applied a rust-inhibiting compound to the holes, but the compound leaked out in warm weather. According to an August 1, 2012 email from Mr. Doran to CO Abney, the drawings contained conflicting guidance as to whether the holes should be plugged. (App. supp. R4, tab 131 at 1) CO Abney ordered USAT to stop deliveries on August 9, 2012