Lockheed Martin Aeronautics Company

Material Facts

• The Navy awarded Contract No. N00019-02-C-3002 to Lockheed for development of the F-35 Joint Strike Fighter Air System.
• The contract identified verification by modeling and simulation, and the dispute concerns nine items of noncommercial verification simulation software.
• At contract award, Lockheed was not required to deliver any portion of the verification simulation software.
• The contract incorporated DFARS 252.227-7014 and DFARS 252.227-7019, and the parties later added the H-40 clause for the nine software items.
• The H-40 clause premised the negotiated license rights on Lockheed’s assertion that the software was developed exclusively at private expense and required records sufficient to justify that assertion.
• The Navy initiated a challenge to Lockheed’s assertion in May 2018 and designated DCAA as the lead audit agency.
• DCAA reported that it was unable to obtain sufficient and appropriate evidence to form an opinion on whether development was accomplished exclusively at private expense.
• Lockheed submitted declarations from software engineers, project leads, and system architects describing testing and analysis of the disputed software.
• The declarations included descriptions of unit testing and additional testing intended to confirm that software would perform as intended.
• The contracting officer concluded that Lockheed had failed to justify its asserted restrictions and that the Navy was entitled to government purpose rights.

Parties

Appellant

Lockheed Martin Aeronautics Company

Respondent Agency

Department of the Navy

Contracting Agency

Department of the Navy

Contract Number

N00019-02-C-3002