Board Upholds Measured-Mile Methodology to Calculate Disruption

In Lockheed Martin Aeronautics Company, ASBCA No. 62209 (a C&M case), the Armed Services Board of Contract Appeals (“Board”) denied the Air Force’s motion for summary judgment, which had argued that the “measured mile” approach to calculating disruption was legally untenable.  In its decision, the Board noted that it has “accepted the measured mile approach as an appropriate method of determining impact to productivity” referencing extended discussion in King Aerospace, Inc., ASBCA No. 60933, 19- 1 BCA ¶ 37,316.  The Board also granted Lockheed Martin’s cross-motion for summary judgment on the issue of release, holding that the express language of modifications signed by the parties indicated that Lockheed Martin did not release any portion of its claim.  The recent decisions follow on the heels of two other Board decisions.  In April 2022, the Board granted Lockheed Martin’s cross-motion for summary judgment on the Air Force’s statute of limitations defense because Lockheed Martin’s claim did not accrue before the events that fixed the government’s liability occurred (discussed here).  In June 2021, in a case of first impression, the Board granted Lockheed Martin’s motion for summary judgment on the Air Force’s affirmative defense of laches, holding that laches is no longer applicable in CDA cases at the Board (discussed here).