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DOE Board of Contract Appeals (March 1997)

ROCKWELL INTERNATIONAL CORPORATION

EBCA No. C-9509187, C-9509220, C-9509221

Department of Energy Board of Contract Appeals

Regarding:

ROCKWELL INTERNATIONAL CORPORATION

1997 EBCA LEXIS 5; 97-1 B.C.A. (CCH) P28,814

March 12, 1997


CONTRACT:

Contract Nos. AD(29-2)-3533 and DE-AC04-76DP03533

JUDGES:
Sherman P. Kimball, Administrative Judge. Beryl S. Gilmore, Administrative Judge, E. Barclay Van Doren, Chief Administrative Judge, concur.

COUNSEL:
Representing Appellant: Richard J. Ney, Esq., William J. Kelley, III. Esq., Christina A. Bull, Esq., CHADBOURNE & PARKE, Los Angeles, California.
 
Representing Respondent: Donna M. Christensen, Esq., Laura E. Kilpatrick, Esq., United States Department of Energy, Albuquerque Operations Office, Albuquerque, New Mexico.

OPINION BY: KIMBALL

RULING DENYING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT

This appeal involves a certified claim by Appellant Rockwell International Corporation for reimbursement of certain alleged allowable costs, in the amount of $ 10,039,511, incurred under and authorized by its contract with the Respondent Department of Energy (DOE or Government) to manage and operate a government-owned facility known as Rocky Flats Plant. The appeal was filed from a deemed denial of Appellant's claim pursuant to 6(c)(5) of the Contract Disputes Act, 41 U.S.C. 605(c)(5), which provides that the failure of the Contracting Officer to issue a decision within the time prescribed is deemed to be a decision denying the claim.

Respondent has moved to dismiss the appeal or, in the alternative, for summary judgment, on the ground that the costs claimed by Appellant are not allowable as a matter of law by virtue of the Major Fraud Act of 1988, Pub. L. No. 100-700, as amended by Pub. L. No. 103-355, 41 U.S.C. 256. The Board treats the motion as one purely for summary judgment. For the reasons that follow, the motion is denied.

THE FACTS

Determination of the motion before us revolves around the confluence of four undisputed elements: first, the Federal investigation into environmental violations out of which Appellant's claim for reimbursement of allowable costs arose; second, the contractual provisions authorizing reimbursement for allowable costs; third, the impact of the cost limitation provisions of the Major Fraud Act on the claim; and, finally, the Plea Agreement between Appellant and the Department of Justice entered into in connection with the environmental violations and accepted by the United States District Court.

I

The Basis of Appellant's Claim

Appellant's claim is for the attorneys' fees of outside counsel and litigation support costs that Appellant incurred in defending against the investigation into alleged criminal violations of environmental laws and regulations that occurred during Rockwell's operation of the plant. The investigation, which began in June 1989, led to grand jury proceedings and ultimately, after lengthy and protracted negotiations, to pleas of guilty by Rockwell to ten criminal counts of knowingly or negligently violating certain environmental laws or regulations, in United States v. Rockwell, U.S. District Court (D. Col.), Case No. 92-CR-107, and fines of $ 18.5 million, pursuant to a Plea Agreement between Rockwell and the Department of Justice on behalf of the Government, dated March 26, 1992. Seven of the ten criminal counts to which Rockwell pleaded guilty, applied to conduct that occurred exclusively in 1987 and 1988, prior to the effective date of the Major Fraud Act. Of the remaining three counts that included some conduct in 1989, 47 of the total of 188 days of violations of environmental laws for which fines were imposed occurred in 1989. Accordingly, of the 410 days of environmental violations which resulted in the $ 18.5 million fine, less than 12% of the total related to 1989 conduct, after the Act took effect. See Plea Agreement and Statement of Factual Basis, dated March 26, 1992, Appeal File (A.F.), Tab 4.

Rockwell, consequently, incurred certain costs which it claims are allowable under the Plea Agreement and contracts herein. It retained outside legal counsel to represent it during the environmental investigation, between June 6, 1989 and December 31, 1989, to whom it paid $ 1,157,364 (docketed as EBCA No. C-9509187). It also provided independent legal counsel for certain Rockwell employees and former employees who became involved in the ensuing grand jury investigation of the alleged environmental violations as key witnesses or subjects, which cost $ 3,725,461 (EBCA No. C-9509220). Finally, Rockwell retained LSI Corporation to develop and maintain a computerized litigation support system data base for use in connection with the Federal investigation and grand jury proceedings relating to the environmental violations and also for defending against resulting civil actions, for which it paid $ 5,156,686 (EBCA No. C-9509221).

II

The Contracts

Rockwell's contract to manage and operate Rocky Flats was first entered into, effective June 30, 1975, with a predecessor agency, and provided that Rockwell was entitled to reimbursement of allowable costs incurred in that connection. Approximately every five to six years, that contract was modified in toto and a new contract was entered into by Rockwell and DOE. n1 Modification No. M087 (hereinafter Mod. 87) and Mod. 124, which became effective on January 1, 1986, and January 1, 1989, respectively, constitute the basis for Appellant's claim that the specific costs claimed are contractually allowable.

n1 For example, Mod. 87 provides that it constitutes "the entire agreement of the parties with respect to performance by the contractor on or after January 1, 1986, without in any way affecting the rights of the parties under prior contractual agreements for periods of time prior to January 1, 1986." Mod. 124 contains a similar provision except that "January 1, 1989" was substituted for "January 1, 1986." See MacDonald Construction Company, 69-1 BCA 7568, at 35,060 (IBCA).

Items of allowable cost are set forth in P 54(d) of Mod. 87, including P 54(d)(16) which Appellant characterizes as an environmental indemnity provision. Para. 54(d) provides that "the following items of cost of work done under this contract shall be allowable....

(16) all cost incurred by [Rockwell] with respect to any and all liabilities, claims, demands, damage costs, or penalties (such as civil sanctions including fines), arising out of, or relating to environmental, safety and health activities...."
In Mod. 124, the same provision appears as P 62(d)(16). In addition, set forth in P 62(d) are other relevant items of allowable costs, viz., expenses of defending employees involved in legal actions and proceedings resulting from performing their duties under the contract (P 62(d)(8)) and legal expenses and other costs of defending against claims and litigation brought against Rockwell arising out of contract performance (P 62(d)(3) and (4)).

Rockwell's responsibility for management and operation of Rocky Flats ended on December 31, 1989, by virtue of a transfer agreement (Mod. A 140) entered into among Rockwell, EG&G Rocky Flats, Inc. (EG&G), and DOE, dated December 29, 1989. Under it, DOE agreed to pay all allowable costs of Rockwell's activities necessary for the close-out and orderly transfer of responsibilities from Rockwell to EG&G, which included the protection of Rockwell's continuing rights and interest and those of its employees and former employees. A.F., Tab 3, P 19(b).

III

The Major Fraud Act of 1988

The Major Fraud Act, inter alia, amended the Federal Property and Administrative Services Act of 1949 to limit the allowability of costs incurred by contractors under a covered contract in connection with any criminal, civil, or administrative proceeding commenced by the United States or a State. 41 U.S.C. 256(k)(1). In general, it prohibits reimbursing a contractor if the proceeding relates to a violation of a Federal or state law or regulation and results in a disposition of any of the following:

(a) a criminal conviction ( 256(k)(2)(A));
 
(b) in a civil or administrative proceeding involving an allegation of fraud, a determination of contractor liability for violation of a law or regulation ( 256(k)(2)(B));

(c) the imposition of a monetary penalty in a civil or administrative proceeding by reason of a violation of a law or regulation ( 256(k)(2)(C));
 
(d) a final decision to debar or suspend the contractor, or to rescind or void the contract, (or terminate the contract for default ( 256(k)(2)(D)); or
 
(e) a disposition by consent or compromise in any proceeding which could have resulted in a disposition described in 256(k)(2)(A),(B),(C), or (D) ( 256(k)(2)(E)).

However, where a proceeding "is commenced by the United States and is resolved by consent or compromise pursuant to an agreement entered into between [the] contractor and the United States, the costs incurred by the contractor in connection with such proceeding that are otherwise not allowable as reimbursable costs under [ 256(k)(1)] may be allowed to the extent specifically provided in [the] agreement." 256(k)(3). n2 The parties are at odds over the applicability of this provision to this case.

n2 A similar provision applies to proceedings commenced by a State. The State agency that awarded the covered contract may allow costs incurred in the proceedings as reimbursable costs if the agency determines that the costs were incurred as the result of a specific term or condition of the contract, or specific written instructions of the agency ( 256(k)(4)).

The Act was passed on November 19, 1988, and became effective thirty days later. By its own terms, the Act "is effective with respect to contracts awarded after November 19, 1988." 41 U.S.C.A. 256 (Historical and Statutory Notes); see Pub. L. 100-700, 8(e). The DOE regulations implementing the Act, Department of Energy Acquisition Regulation (DEAR), 48 CFR §§ 970.5294-13(e)(33) and 50.5204-61, apply to contracts entered into on or after December 22, 1993. 58 Fed. Reg. 61,625 (1993). n3

n3 "Renewals or extensions of M&O contracts...., substantively and legally, ....constitute an award of a new contract and, as a matter of agency practice, new legislation enacted during the prior period of performance which affects newly awarded contracts is implemented in the extended contract." 58 Fed. Reg. 61,625, 61,626 (1993).

IV

The Plea Agreement

Beginning in 1991, Rockwell and the Department of Justice entered into plea negotiations which "because of the range of issues and the technicalities associated with the statutes and Rockwell's contract with DOE" were protracted. Department of Justice (DOJ) Report, April 8, 1994, Exhibit C to Appellant's Opposition to Motion, 13. n4 Eventually, a plea agreement, dated March 26, 1992, was reached "through negotiations involving concessions by both parties." Id. at 58.

n4 The Report is an after-the-fact response to a congressional inquiry critical of the plea agreement. While hearsay, the Report is admissible under Fed. Rule Evid. 803(8)(C), particularly in view of the divergent positions of the parties. In the context of a plea agreement, the traditional parol evidence rule is subordinated to the protection of the defendant who waives constitutional rights in entering the plea agreement. See Bemis v. United States, 30 F.3d 220, 222-23 (1st Cir. 1994).

The following paraphrased provisions of the Plea Agreement ("P.A.") are pertinent:

Para. 6 - Rockwell will not seek to recover, pursuant to indemnification provisions in Rockwell's contracts with DOE, and will not recover from DOE, the criminal fines paid by Rockwell in connection with this disposition.
 
Para. 7 - Except as provided in P 8, Rockwell will not seek to recover, pursuant to indemnification provisions in Rockwell's contracts with DOE, and will not recover from DOE, the attorneys' fees and costs incurred by Rockwell in defending or preparing to defend the Rocky Flats criminal investigation and prosecution (including this disposition and sentencing), concerning the following subjects: (a) the manufacture, storage, treatment, disposal or other management of pondcrete and saltcrete; (b) the use of the 207 solar ponds to receive, treat or store hazardous or mixed wastes; (c) the manufacture, storage, treatment or other management of vacuum filter sludge; (d) the operation and management of the sewage treatment plant (including its influent and effluent); (e) spray irrigation; (f) Rocky Flats' violation of the biological oxygen demand and fecal coliform limits in its NPDES permit; and/or (g) the chromic acid spill in February-March 1989.
 
Para. 8 - As authorized by 41 U.S.C., 256(k)(3) and [48 CFR §§ 970.5204-13(e)(33) and 970.5204-61], Rockwell may seek to recover from DOE (and subject to DOE's review and approval in accordance with the relevant contract(s)) and applicable law and regulations: (a) attorneys' fees and costs incurred by Rockwell (on behalf of the corporation) prior to January 1, 1990 (but not thereafter); (b) attorneys' fees and costs incurred by Rockwell in providing legal representation to past and present Rockwell employees; and (c) costs concerning a computer system which is also used in Rocky Flats-related civil litigation.

Contained in the DOJ Report are several relevant observations relating to these provisions of the Plea Agreement by the prosecutors who negotiated the agreement, at 47-48:

"2. Attorneys' fees for attorneys provided to Rockwell employees.
 
Rockwell also sought the right to seek indemnification of attorneys' fees for the attorneys paid for by Rockwell and provided to past and present employees. Although the prosecutors considered resisting this request, or attempting to limit it to the "mere witnesses" (and not the targets), the prosecutors felt under the DOE-Rockwell contract, they did not have a strong basis for asking Rockwell to forego seeking indemnification of these fees. (Emphasis supplied.) Accordingly, the government agreed to permit Rockwell to seek reimbursement of attorneys' fees for the individuals, including the targets....
 
3. The applicability of the Major Fraud Act.

* * *
 
In September 1991, DOE informed DOJ that the Major Fraud Act (MFA) would determine whether Rockwell's attorneys' fees and defense costs would be reimbursable....
 
[The prosecutors] believed the DOE's position on the applicability of the MFA was legally untenable.... (Emphasis supplied.) The MFA, on its face, applied to contracts entered into after November 19, 1988. The Rockwell contract most relevant to the investigation was entered into on January 1, 1986 and continued in effect until December 31, 1989. DOE maintained the Act would apply because Rockwell's legal fees and costs were, for the most part, accrued after December 31, 1989. In [the prosecutors'] view, however, the terms of the January 1986 contract would control because the legal fees and costs related to the investigation of conduct that primarily occurred during the pendency of that contract....
 
As a result, [the prosecutors] proposed language in the agreement that specifically allowed Rockwell under an exception to the MFA for settlement agreements, to submit claims for reimbursement for attorneys' fees in the categories discussed above." (Emphasis supplied.)

At 49-50 of the DOJ Report

As a result of the negotiations, the Plea Agreement embodied the following terms:
* * *
 
5. Rockwell would not seek reimbursement of the criminal fines from DOE under the indemnification provisions of its contracts with DOE [P.A., P 6];
 
6. Rockwell agreed not to submit claims under its DOE contracts for indemnification of attorneys' fees and defense costs incurred on behalf of the corporation concerning the criminal investigation .... An exception was made for fees and costs incurred prior to January 1, 1990. Rockwell's responsibility for management and operation of Rocky Flats expired on December 31, 1989. (Mod. A140) The agreement also specifically authorized submission of claims under its contracts for fees and costs incurred by Rockwell in providing legal representation for past and present employees and for costs concerning a computer Rockwell had used in both criminal and civil matters [P.A., PP 7 & 8].
Rockwell and DOJ specifically agreed that the application of the indemnification provisions of the DOE contracts would be a matter left to DOE, and that the Plea Agreement was not intended to predetermine contractual issues concerning the existence of "willful misconduct or lack of good faith" by Rockwell "managerial personnel."

DISCUSSION

I

It is undisputed that since their inception Rockwell's contracts to manage and operate Rocky Flats provided that Rockwell's allowable costs so incurred were reimbursable. Starting with the 1986 contract (Mod 87), an express provision was added to include as allowable those costs incurred by the contractor with respect to any liabilities, claims, etc. arising out of or related to environmental activities at Rocky Flats, the precise subject matter of the investigation. The 1989 contract (Mod. 124) contained the same environmental indemnity provision. An exception to such allowability for costs which result from the "willful misconduct or lack of good faith" on the part of Rockwell's managerial personnel is not an issue before the Board in connection with Respondent's motion. n5

n5 The Plea Agreement provides, at P 9, that "nothing in this agreement shall be construed as an admission by Rockwell, or a determination by the Department of Justice, of 'willful misconduct or lack of good faith' by Rockwell's 'managerial personnel', as such terms are used or defined in [the contract]."

It is further undisputed that as a result of the Government's investigation into the alleged violations of environmental laws by Appellant at Rocky Flats, Appellant incurred certain costs for legal expenses made expressly allowable under the 1989 contract (Mod. 124). Finally, it is also undisputed that in its agreement with Rockwell and EG&G (Mod. A 140), DOE agreed to pay all allowable costs of Rockwell's continuing obligation thereunder including all actions necessary to protect Rockwell's continuing rights and those of its employees and former employees with the determination of allowability to be made at a subsequent time, if necessary. A.F., Tab 3.

The question presented to the Board is whether, as Respondent contends, the Major Fraud Act as a matter of law bars the recovery of costs that might otherwise be allowable under the contracts and Plea Agreement. Put simply, does the Act in and of itself override the terms of the contracts and Plea Agreement so that the Appellant may not seek recovery?

II

At the outset, although not raised, much less briefed, by the parties, we are constrained to begin our inquiry by questioning whether, in the light of United States v. Winstar Corp., 64 F.3d 1531 (Fed. Cir. 1995), aff'd, 116 S. Ct. 2432 (1996), the Major Fraud Act can override the contract and preclude a contractor from seeking its costs expressly made allowable by its contracts. The Federal Circuit said, at 1547, "The terms of a Government contract, like any other contract, do not change with the enactment of subsequent legislation absent a specific contractual provision providing for such a change." A contractual provision of this nature is absent here.

However, such an inquiry could lead us even further afield into the applicability of the sovereign acts doctrine (e. g., Atlas Corp. v. United States, 895 F.2d 745, 754 (Fed. Cir. 1990)), raised by both the Federal Circuit and Supreme Court. Our analysis need not look to Winstar or the minefield of the sovereign acts doctrine in order to resolve the issue before us. Rather, more appropriately for a board, we have reached our decision on a narrow ground.

First, we look to the Act, over the interpretation of which the parties are in deep conflict. Respondent relies on 256(k)(1) which provides that costs, otherwise allowable, incurred in connection with a criminal proceeding are not reimbursable where the proceeding has resulted in either of two alternative dispositions -- disposition by conviction or disposition by consent or compromise that could have resulted in a disposition by convicticn. (Emphasis supplied.) Respondent contends that since the disposition by consent or compromise in the guise of the Plea Agreement not only "could have resulted" in a conviction, but actually did, the exception in 256(k)(3) which provides that where a proceeding is resolved by consent or compromise pursuant to an agreement between the contractor and the United States, costs that are otherwise unallowable, may be allowed to the extent specifically provided in the agreement, is inapposite. In Respondent's view, in order to fall within 256(k)(3), the "consent or compromise pursuant to an agreement" must fall short of providing for a conviction. Accordingly, Respondent asserts, the plea agreement cannot serve as a consent or compromise because it provided for a conviction.

Rockwell, however, maintains that the plea agreement memorialized a compromise between it and Respondent which came within the exception to the general unallowability provision. Rockwell points to the absence in the subsection of any limitations on the form or terms of a settlement agreement that can provide for the allowability of specific costs.

Moreover, Rockwell contends that the Act does not apply to most of the conduct underlying the costs at issue and therefore does not bar recovery of those costs. The conduct underlying the costs at issue took place for the most part under the 1986 contract (Mod. 87) which was entered into before the Major Fraud Act and the DEAR regulation took effect. The Act applies only to contracts entered into on or after November 19, 1988, and the DEAR implementing the Act only to contracts on or after December 22, 1993. 58 Fed. Reg. 61,625 (1993). For this reason, Rockwell argues, Mod. 87 is not and cannot be a "covered contract" within the meaning of 256(k)(1) and only the 1989 contract (Mod. 124) and conduct thereunder is covered by the Act. Accordingly, in Rockwell's view, the allowability of approximately 88% of the costs at issue here are controlled by the 1986 contract and not by the Act or DEAR.

In this regard, Rockwell also argues that even under DOE's construction of the Act, the costs in question would be allowable. Rockwell here distinguishes between charged conduct and uncharged conduct. It asserts that the subjects listed in P 7 of the plea agreement are the violations for which it was charged and pleaded guilty, and the attorneys' fees relating to those subjects are not recoverable. But the three categories of costs in P 8, which it seeks to recover in this appeal, relate to subjects for which Rockwell was not charged and did not plead guilty. Consequently, Rockwell asserts that DOE's reading of the Act does not prevent the costs' allowability since they concern types of conduct that did not lead to or result in the guilty plea.

Respondent strongly disagrees with such distinction or segregation of costs. Respondent charges Rockwell's violations were of a continuing nature which were an integral part of the criminal investigation or "proceeding" under the Major Fraud Act. The limitations on allowability set forth in the Act refer to "proceeding" costs. The Act does not provide for segregation of costs and fees according to when the criminal conduct occurred.

Thus, the parties construe the Act in sharply conflicting ways. Were we to attempt to resolve these positions, the Board would be required to engage in a lengthy exercise in statutory construction and break new ground However, treading in Congress' domain is a last resort which we need not do because the Plea Agreement, by reason of its acceptance by the court, is determinative here, even if DOE's construction of the Act is correct.

III

In order to reach our conclusion that the Plea Agreement is determinative, notwithstanding the Act, we have had to consider three related questions. One, was the Department of Justice empowered to enter into the plea agreement? Two, what is the status of a plea agreement? And, three, may the Board overturn the agreement as Respondent contends we can?

First, it is beyond question that the Department of Justice (DOJ) has broad authority to settle litigation where the United States is a party. See e. g., Executive Business Media, Inc. v. Department of Defense, 3 F.3d 759, 761, (4th Cir. 1993). Its authority may be limited, but only by a clear and unambiguous directive by Congress. United States v. Hercules, Inc., 961 F.2d 796, 798-99 (8th Cir. 1992). From our review of the Act, following closely the analysis in Hercules, we conclude that it does not clearly and unambiguously limit DOJ's authority to settle.

When DOJ settles a matter, the terms of the settlement or, in this case, plea agreement, bind the entire Government. See, e.g., Stern v. Shalala, 14 F.3d 148 (2nd Cir. 1994), cert. denied, 116 S. Ct. 82 (1995), where terms of a plea agreement between DOJ and the defendant were held to be binding on another department in a subsequent administrative proceeding. Indeed, the Supreme Court has said that DOJ's power to enter into settlements includes "the power to make erroneous decisions as well as correct ones." Swift & Co. v. United States, 276 U.S. 311, 332 (1928).

Second, a plea agreement is contractual in nature and generally construed according to ordinary contract principles. See, e.g., United States v. Floyd, 1 F.3d 867, 871 (9th Cir. 1993). As such, it has been held that the Government must fulfill the agreement made with the defendant, United States v. Strawser, 739 F.2d 1226, 1230 (7th Cir. 1984). It has also been held that a defendant, who has entered into a plea agreement, must receive the consideration due him under the agreement, United States v. Clark, 55 F.3d 9 (1st Cir. 1995), cert. denied,    S. Ct.    . Indeed, Respondent has acknowledged in its Supplemental Memorandum (pp. 1-2) that the plea agreement is valid and its terms fulfilled.

Moreover, in Respondent's view, only P 8 of the Plea Agreement which reserved to it the responsibility to review and approve Appellant's cost allowability claims in accordance with applicable law and regulations, is outstanding. Respondent contends that the applicable law to which it must adhere in reviewing the claims is the Major Fraud Act. It alleges in its Supplemental Memorandum (p. 5) that the Act statutorily bars the claimed costs. Hence, it has moved for summary judgment.

Respondent, however, concedes that, by reading the DOJ Report, the intent of the parties to the Plea Agreement was that the Major Fraud Act would not provide a legal bar to Appellant. Respondent would prefer that we not look to the DOJ Report as irrelevant. Since we have found it relevant, Respondent calls upon the Board to rule that the plea agreement is contrary to law, i.e., the Major Fraud Act, which precluded DOJ from agreeing to exclude the costs claimed from the general unallowability provisions of the Act. Accordingly, it is said that the Board, by virtue of its inherent authority, may refuse to be bound by the Plea Agreement as a stipulation contrary to the law.

In the case of an ordinary stipulation, Respondent's contention that the Board is not bound by a stipulation that is contrary to the evidence or the law has merit. See, e. g. General Atomics Corporation, 91-3 BCA P24047 (ASBCA), at 120, 360 (citing Kaminer Construction Corp. v. United States, 488 F.2d 980 (Ct. Cl. 1973)). In this case, however, this stipulation or plea agreement does not stand alone but was expressly accepted by the Court and made part of its judgment of June 1, 1992, under Rule 11 of the Federal Rules of Criminal Procedure. As the Court observed in United States v. Swift & Co., 286 U.S. 106, 115 (1932), "We reject the argument....that a decree entered upon consent is to be treated as a contract and not as a judicial act."

The effect of the Court's acceptance of the plea agreement is to preclude the Board and Respondent from altering its terms. See Brock v. Scheuner Corp., 841 F.2d 151, 154 (6th Cir. 1988). As held in Town of Deerfield, New York v. Federal Communications Commission, 992 F.2d 420, 428 (2d Cir. 1992), "[a] judgment entered by an Article III court.... is not subject to review by a different branch of government."

For purposes of preclusion or judicial estoppel, Respondent and DOJ are considered the same party. See, e.g., Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03 (1940); United States v. Rogers, 960 F.2d 1501, 1509 (10th Cir. 1992), cert. denied, 506 U.S. 1035 (1992). The doctrine of judicial estoppel forbids a party from taking a position inconsistent with one successfully and unequivocally asserted by the same party in a prior proceeding. United States v. Owens, 54 F.3d 271, 275 (6th Cir. 1995).

Accordingly, even if, as Respondent contends, DOJ was circumscribed by the Major Fraud Act and unauthorized to except proceeding costs from the Act's unallowability provisions in a consent or compromise which includes a conviction, the Board and Respondent are precluded from maintaining that Rockwell may not seek the costs at issue. Respondent is estopped from collaterally attacking the District Court's judgment in this forum. See Federated Dept. Stores Inc. v. Moitre, 452 U.S. 394, 398 (1981). The Board's hands are tied.

CONCLUSION

The motion for summary judgment is denied. In view of the judgment of the District Court, the Major Fraud Act and DEAR do not bar Appellant from seeking recovery of costs allowable under its contracts with Respondent and the Plea Agreement, and incurred before January 1, 1990.
 
Sherman P. Kimball
Administrative Judge
 
I concur:
 
Beryl S. Gilmore
Administrative Judge
 
I concur:
 
E. Barclay Van Doren
Chief Administrative Judge

End of Opinion.

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