Full opinion text
OPINION ELLEN B. BURNS, Senior District Judge. Plaintiff, United States of America, has brought this action against Defendant, United Technologies Corporation, Sikorsky Aircraft Division (“Sikorsky”), alleging violations of the False Claims Act, 31 U.S.C. § 3729 (“FCA”), and the Truth-in-Negotiations Act, 10 U.S.C. § 2306a (“TINA”). The government also seeks damages under the common law causes of action of payment by mistake and unjust enrichment. In its amended complaint, the government alleges that Sikorsky submitted false cost or pricing data to the Navy during negotiations and provided a false'Statement in'the company’s July 25, 1985 Certificate of Current Cost or Pricing Data that accurate, current and complete cost or pricing data had been provided to the Navy through the agreement date of July 9,1985. In accordance with Federal Rule of Civil Procedure 52(a), the Court now enters the following findings of fact and conclusions of law. I.FINDINGS OF FACT A. Background 1. On or about January 13, 1984, the Navy awarded contract N00019-83-C-0364 (“Contract”) to Sikorsky. (EX. 501.) The purpose of the Contract was to extend the service life of the Navy’s SH-3 Sea King helicopter. This effort became known as the Main Gear Box Improvement Program (“MGBIP”). 2. The Contract references, and is ‘governed by, clauses in the Defense Acquisition Regulation (“DAR”), including DAR § 7Al04.29(a) (January, 1970), Price Reduction For- Defective Cost or Pricing Data. (EX. 501 at 8-12.) 3. Modification P00001 to the Contract was executed by the Navy on March 13, 1984. Among other things, Modification P00001 required Sikorsky to furnish main gear box improvement kits for aircraft, for training and for spares. Because there were several versions of the Sea King helicopter in service, the modification kits had to be customized in order to upgrade the various model’s main gear boxes. The price for P00001 was undefinitized, meaning that it was to be negotiated at a future date. 4. On or about September 2, 1984, the Navy executed a second undefinitized modification to the Contract, Modification P00004. Inter alia, Modification P00004 changed Contract Line Item Number (“CLIN”) 0028 to increase the quantity of main gear box improvement kits for the H-3 version of the Sea King helicopter from 62 to 80, and directed delivery of quantities of kits for spares. 5. On or about May 22, 1985, the Navy executed another undefinitized modification, P00008, which, inter alia, altered the quantities of kits needed under the Main Gear Box Improvement Program (“MGBIP”). 6. The total price for the main gear box improvement kits and interim spares purchased through Modifications P00001, P00004 and P00008 was definitized in Modification P00013. Modification P00013 was signed by Sikorsky on October 9,1985, and by the Navy on January 17, 1986. (EX. 26.) Modification P00013 was entered into on January 17, 1986. The issuance of Modification P00013 was preeéded by Sikorsky’s submittal of price proposals and cost information in support of those proposals, and by lengthy negotiations between Sikorsky and the Navy. With respect to the kits and interim spares, those negotiations concluded on July 9, 1985. B. Sikorsky’s proposals and submissions 7. On or about May 14, 1984, Sikorsky-submitted to the Navy proposal number SPB 84-N3247 to defínitize P00001. . That proposal included amounts for FY 1984 main gear box improvement kits and for interim spares. Sikorsky submitted with the proposal a DD Form 633, a Contract Pricing Proposal cover sheet. (EX. 73.) 8. On or about May 17, 1984, at the Navy’s request, Sikorsky submitted another proposal, SPB 84-N3248. This proposal included amounts for main gear box improvement kits and interim spares for FY 1985 and FY. 1986 and also included a DD 633. (EX. 74.) 9. Sikorsky did not submit with its proposals a consolidated, priced bill of materials listing, by part number, all of the components required for the contract. At the time of these negotiations, Sikorsky’s computer system did not accommodate the creation of such consolidated bills of materials. Sometime in late 1984, Robert Yates, the Navy’s primary negotiator on the MGBIP, learned of this limitation in Sikorsky’s computer system. (TR. 1852.) Sikorsky provided to Yates handwritten bills of materials for each of the subkits. (TR. 1822; EX. 510.) 10. On July 18, 1984, Sikorsky submitted to the Navy a seven-page, handwritten “Unique Parts List” which gave for each of the parts listed a part number, description, quantity, unit price and total price. (TR. 927; EX. 512.) 11. On August 16, 1984, representatives of the Navy and Sikorsky met to discuss the Navy’s concern regarding the proposed prices Sikorsky had furnished with its May, 1984, proposals for subcontracted items on the MGBIP. As a result of that meeting, Sikorsky was to provide, on hard copy and diskette, the price history for all items with unit costs over $100. (EX. 101.) 12.On October 11, 1984, the Defense Contract Audit' Agency (“DCAA”) issued Audit Report No. 2661-4B210204, discussing the findings from a pre-award assist audit of Sikorsky’s proposals. (EX; 511.) In performing the review, DCAA examined Sikorsky’s handwritten bills of materials for the subkits. In the report, DCAA recommended “that the' contractor be required to resubmit its proposed material costs for our review prior to contract negotiations.” (EX. 511 at 11.) 13/' Sikorsky employee Robert Madden was the primary negotiator on behalf of Sikorsky for the definitization of the kits and interim spares portion of the MGBIP. Stephen Kiesel, another Sikorsky employee, assisted Madden in the negotiatiqn process. • ’ 14. In keeping with its then current practice, Sikorsky assigned a person in the Pricing, Targeting and Termination Liability unit of the Purchasing Department to act as a liaison between that department and Sikorsky’s government contract negotiators. Dennis Buccilli was assigned to support the Sikorsky negotiators. His job was to gather and organize information from the Purchasing Department for Sikorsky to use and to pass on to the government. (TR. 381-82, 388-90,- 404, 481-82.) 15. • As part of his duties, Buccilli would solicit buyers, who were not typically informed when negotiations were taking place with the government (TR. 185), to obtain the most current pricing information for incorporation into Purchasing Updates. Buccilli would gather this information in various ways: (1) by delivering lists of parts specific to buyers and purchasing agents of each buying-group for updating, (2) by checking the Sikorsky computer system which displayed information regarding purchase orders (“PRISM”), and (3) sometimes by speaking with buyers in person. (TR. 481-82, 490-91, 546, 583.) 16. Upon receipt of this information, Buc-cilli incorporated it into a Purchasing Update, which he then forwarded to Sikorsky’s negotiators. (TR. 476-77, 481, 486-87.) During the final stages of the negotiations, Buccilli highlighted changes from the previous version. (TR. 592, 1418, 1482-83,1974.) 17. On or about January 3, 1985, Sikorsky delivered a Purchasing Update, dated January 2, 1985, to the Navy. (EXs. 95; 522.) 18. On or about January 22, 1985, Sikorsky provided the Navy with a “Program Update,” which set forth proposed pricing for the entire MGBIP as then contemplated, except for the warranty and the interim spares. (EX. 543.) 19. On or about April 23, 1985, Sikorsky submitted to the Navy a second comprehensive Program Update dated April 20, 1985, (“April 20 Program Update”) covering all aspects of the MGBIP, except for warranty. (TR.1945-46.) This update also covered the interim spares. Regarding program material costs, this Program Update included Shop Fabricated Spares Cost Worksheets of various subkit configurations and listings maintained on a personal computer spreadsheet of the parts for certain other subkits to be purchased by the Navy. This Program Update also contained listings of interim spares maintained on a personal computer. These worksheets and listings were essentially priced bills of materials for each of the subkits and for the interim spares the Navy was considering. The April 20 Program Update also included material cost summary pages for each of the fiscal years subject to the negotiations. These summary pages contained information regarding the quantity of each of the subkits that the Navy was considering buying for each of the three fiscal years, 1984, 1985 and 1986. (EX. 6.) 20. Yates understood that, in order to determine Contract quantities of a particular part by using the April 20 Program Update, one would first look to the bills of materials for an individual subkit to get a per-subkit quantity and then look to the material summary pages to determine how many of that type of subkit were being purchased. Then the two numbers would be multiplied together to determine the total for the part. (TR. 1853-55.) 21. On or about May 6, 1985, Sikorsky delivered to the Navy a Purchasing Update. (EX. 98.) 22. On or about May 15, 1985, Sikorsky delivered to the Navy another Purchasing Update. (EX. 99A.) 23. On or about June 26, 1985, Sikorsky delivered to the Navy a Commitment Report for special project codes 3F and DG dated June 19,1985. (EXs.110, 540.) 24. On or about June 28, 1985, Sikorsky delivered to the Navy a Purchasing Update dated June 27, 1985. (EXs.lll, 532.) 25. On July 8, 1985, Sikorsky delivered to the Navy a Commitment Report for special project codes 3F and DG dated June 27, 1985. (EX. 541; TR. 859-60, 1952-53.) 26. On July 25, 1985, Sikorsky forwarded to the Navy a Commitment Report for special project codes 3F and DG dated July 10,1985, and containing data concerning purchase orders placed as of July 9, 1985. (EX. 551.) C. Negotiations and agreement on price 27. In late November, 1984, in preparation for negotiations, Yates visited the Sikorsky plant and met with government and Sikorsky personnel. (TR. 1663-64.) At that time, Yates was given a copy of a Commitment Report and an explanation of how to read it. (TR. 1851-52.) 28. On or about March 11, 1985, Yates completed a prenegotiation Business Clearance Memorandum (“BCM”). Upon approval by higher ranking Navy officials, the BCM authorized Yates to definitize the pricing of Sikorsky’s Engineering Change Proposal 5923R1 to Contract N00019-83-C-0364, the MGBIP. The BCM set out a target price of $36,847,629, excluding warranty. (EX. 103.) 29.' In its pre-award assist audit report, DCAA recommended that the Navy have an auditor attend the negotiations due to their complexity. Yates did not follow this recommendation. (TR. 1835.) 30. Also in the pre-award assist audit report, DCAA offered to assist the Navy at any time during the negotiations. DCAA provided the name and telephone number of a person to contact for assistance who would always be available to the Navy negotiator. Despite this, Yates contacted DCAA only to discuss the applicability of factors for scrap, raw, and unrestricted material. Yates did not request the assistance of DCAA in analyzing the cost or pricing data Sikorsky submitted. (TR. 1836-38.) 31. DCAA also recommended in the pre-award assist audit report that additional audit support should be requested if there were significant changes in the planned procurement or if Sikorsky supplied cost or pricing data which had a significant impact on the proposal. Both of these eventualities came to pass; however, Yates did not request such assistance. (TR. 1838-39.) 32. The parties engaged in negotiations to definitize the MGBIP (exclusive of warranty) from April, 1985, through July 9, 1985. Face-to-face negotiations occurred on April 1, April 23, April 24, May 7, May 14-16, June 4, June 24 and June 26-28, 1985. (TR. 625, 629, 718, 721-22, 734, 749, 825, 844-50.) Sikorsky’s negotiation team included Madden and Kiesel, among others. (TR. 621.) The Navy was represented by Yates, who was assisted by Thomas Bordone. (TR. 625.) 33. The negotiations became extended over the issue of what factors Sikorsky was to apply to scrap, raw or unrestricted materials. (TR. 661.) 34. DCAA and the Navy contended that a factor for scrap, raw or unrestricted material should not be applied to kits that did not require any Sikorsky labor. (TR. 670,1656-58,1661,1674.) 35. By' letter dated June 5, 1985, the Navy asked Sikorsky to discretely price unrestricted parts for “subkits upon which Sikorsky does not incur manufacturing labor costs.” The letter also requested that Sikorsky submit a proposal for 1985 and 1986 bevel gears. (EX. 79.) 36. In response to the Navy’s June 5, 1985 request, on or about June 26, 1985, Sikorsky submitted to the Navy a collection of “Shop Fabricated Spares Cost Worksheets,” each of which was dated June 19, 1985. Consistent with the Navy’s request, the June 19, 1985 worksheets reflected the discrete pricing of the unrestricted materials which went into the non-labor bearing kits the Navy was purchasing. Sikorsky also submitted a proposal for bevel gears. (EX. 549.) 37. The parties’ final face-to-face negotiations occurred on June 26-28, 1985. During these negotiations, Sikorsky delivered to the Navy a Commitment Report for special project codes 3F and DG dated June 19, 1985 (EXs.110, 540), and a Purchasing Update dated June 27, 1985. (EXs.lll, 532.) 38. On Tuesday, July 2, 1985, Yates and Madden negotiated by telephone. Sikorsky made an offer of $44,000,000 for the MGBIP exclusive of warranty. The price included over $2,000,000 for bevel gears. (EX. 118A.) 39. On the morning of Tuesday, July 9, 1985, Yates and Madden conversed again by telephone. In this conversation, Yates advised Madden that the Navy did not intend to purchase bevel gears from Sikorsky and offered a bottom-line price of $40,-400,000 for the MGBIP exclusive of warranty. Yates stated that when the price was definitized, the FY 1986 effort, then under option, would be a firm order. (EX. 118A.) 40. At approximately 3:37 p.m. on the afternoon of Tuesday, July 9, 1985, Yates and Madden spoke again by telephone. After Yates told Madden that a specific part, a Crown Coupling, was not included in the earlier bottom-line offer, Madden accepted the offer. (EX. 118A; TR. 1477-78.) The parties reached a price agreement of $40,400,000 on the MGBIP exclusive of warranty late in the afternoon of July 9, 1985. 41. During the negotiations, the parties were unable to agree on any major cost elements, including the cost element of material. (TR.1992-94, 1979-82, 2025-26, 2612-13; EX. 105 at 8.) The parties resolved this difficulty by resorting, at Yates’ suggestion, to a “bottom-line” negotiation on the overall cost of the MGBIP exclusive of warranty. (TR. 781-82,1974-75.) 42. Madden and Yates used different techniques in making their separate estimates of material cost. (TR. 742, 1964-65.) 43. Yates understood all of the data provided to him by Sikorsky, occasionally after asking Sikorsky for clarifications. (TR.2080-81.) 44. Yates testified that he “relied” on all of the information provided to him by Sikorsky. However, for his analysis he chose to use certain data and to discard other data. (TR.1955-60.) D. Certification and events following the July 9, 1985 agreement on price 45. By letter dated July 25, 1985, Madden transmitted to the Navy a Certificate of Current Cost or Pricing Data (“Certificate”). The Certificate stated in pertinent part: [T]o the best of my knowledge and belief, cost or pricing data as defined in FAR 15.801, submitted, either actually or by specific identification in writing (see FAR 15.804-2), to the Contracting Officer or his representative in support of Sikorsky Letters SPB 84-N3247 dated 14 May 1984 and SPB 84-N3248 dated 17 May 1984 are accurate, complete, and current as of 9th July, 1985. The Certificate bore Sikorsky’s name and Madden’s signature and title. (EX. 121C.) 46. Together with the Certificate, Madden transmitted to the Navy a document entitled “Negotiated Price Schedule” and some recorded cost data. The recorded cost data included information on labor costs and material costs. The material cost information was supplied in the form of a Commitment Report dated July 10, 1985. This report contained information about purchase orders placed for the MGBIP as of July 9, 1985. (EX. 120.) 47. Sikorsky and the Navy later reached a $2,000,000 bottom-line agreement on the warranty portion of the procurement. (EX. 105 at 10.) The parties had continued to negotiate on the warranty following the July 9, 1985 agreement on the main gear box improvement kits and interim spares. (TR. 852.) 48. Yates prepared a post-negotiation BCM which he dated September 17, 1985. (TR.1991-92; EX. 105.) That BCM requested authorization to definitize Modifications P00001, P00004, and P00008 to contract N00019-83-C-0364 at a firm fixed price of $42,400,000, including warranty. (EX. 105.) 49. This post-negotiation BCM states that “the NAVAIR negotiator reached a final settlement on a bottom-line basis rather than attempting to reconcile differences on an element-by-element basis.” There was no negotiated price for the material element. (EX. 105 at 8; TR.1992-93.) 50. As a result of the bottom-line settlement, Yates had wide latitude to assign an amount for the material and other cost elements in his post-negotiation BCM. For example, in order to come to the $40,400,-000 base program (exclusive of warranty) price, Yates arbitrarily made a downward adjustment of the amount he had originally calculated as Sikorsky’s estimated profit. (TR.1995-2000; see EX. 105.) 51. The amount Yates included in the post-negotiation BCM for the material cost element was $27,024,154. This amount was not negotiated between the parties. (See, e.g., TR.1992-93, 2612-13; EX. 105 at 8.) 52. The post-negotiation BCM written by Yates contains numerous adjustments made by Yates to make the document support the bottom-line agreement of $40,-400,000. (TR.1991-2034; EX. 105.) Many of these adjustments were judgments made by Yates in the process of manipulating the numbers to support the bottom line price agreement. . . 53. Madden prepared documents, Negotiated Price Schedules, sometime after the agreement on price on July 9,1985. (EXs. 551, 553, 555, 120 p. 266-280.) The purpose of these documents was to come up with unit prices for the contract line items and exhibit line items in the statement of work. (TR. 4080.) Madden created more than one document because it took more than one attempt to get the numbers close to the $40,400,000 agreed-upon figure for price. (TR. 4081.) Yates responded to the Negotiated Price Schedule accompanying the Certificate of Current Cost or Pricing Data sent to the Navy on July 25, 1985 (EX. 120 p. 266-280), that it was an unacceptable method for calculation of unit prices and asked that Sikorsky make some adjustments. (TR. 4088.) Madden made the adjustments and sent the revised document to Yates. (TR. 4088-89; EX. 553.) 54. ■ In advance of final approval to enter into the Contract definitization modification, the Navy forwarded to Sikorsky for execution Modification P00013. (EX. 26.) Sikorsky signed the modification on October 9, 1985, and, by letter dated October 17, 1985, returned the executed document to the Navy. (EX. 26.1.) 55. On December 20, 1985, the post-negotiation BCM was given final approval by the Navy thereby authorizing it to award the modification. (EX. 105 at 30.) 56. On or about January 17, 1986, Daniel Nielsen, a Navy contracting officer responsible for the Contract at the time, entered into Contract Modification P00013 by executing it, and thereby formally awarded this modification to Sikorsky. (EX. 26.) 57. Soon after the award, Sikorsky began submitting invoices for subkits and interim spares that it delivered to the Navy in connection with Contract Modifications P00001, P00004, P00008 and P00013. (TR. 2811-15.) E. The DCAA’s Defective Pricing Audit 58. By an Avoid Verbal Orders (“AVO”) form dated October 22, 1985, the DCAA advised Sikorsky that it was “commencing a post award review of contract number N00019-83-C-0364 mod P00001, ECP 5923 R1 H3 Main Gear Box Improvement Kits.” (EX. 121B.) The AVO further advised that the initial information required to begin this review was (1) A Certified Bill-of-Materials; (2) a Commitment Run for Parts; and (3) Year To Date Incurred Cost Data. (EX. 121B.) 59. The DCAA request for a certified bill of materials was forwarded to Madden and Kiesel. Because no certified bill of materials existed, Madden and Kiesel collected alternative information to satisfy the DCAA request. (TR. 1496, 1498-99.) This collection of .documents became known as the “so-called July 9, 1985 BOM.” 60. The' so-called July 9, 1985 BOM is essentially a forty-four-page compilation of subkit bills of materials and yearly material cost summaries. It includes pages of Shop Fabricated Spares Cost Worksheets, personal computer listings of parts for certain subkits and interim spares, and other listings of support,- tooling and test equipment. Some of the pages contain handwritten additions and corrections. It includes three material cost summary pages, dated 07/09/85, reflecting the date of agreement on price. (TR. 1443.) Also included is a one-page, undated, handwritten cover sheet prepared by Madden and Kies-el. The cover sheet was created after July 9, 1985,- and lists amounts for the various categories of material the Navy was purchasing by fiscal year. Kiesel incorrectly totaled the amount he and Madden had listed on this page. (TR. 1484-85, 4052-53; EX. 15.5.) 61. Sometime-on or before November 15, 1985, Kiesel gave Albert Gaulzetti the forty-four-page compilation (the- so-called July 9,1985 BOM) prepared in response to DCAA’s request for a certified bill of materials. (TR. 2862-63.) • Gaulzetti worked in Sikorsky’s Pricing Compliance Department and acted as a liaison between Sikorsky and DCAA. (TR. 2173.) 62. On or about November 15, -1985, Gaulzetti forwarded the compilation to DCAA auditor Daniel Sparano. (TR. 2868.) 63. During the DCAA post-award audit, sometime in 1986, Sparano saw the May 30,’ 1985 New York Air Brake Company price quotations and Sikorsky’s Cost Price Analysis Report No. 4446. (TR. 2197-2201; EX. 35, 36.) Both items were-in the Sikorsky “Buyer’s File” for purchase order 117203. (EX. 29.) 64. On July 23, 1986, as part of the DCAA audit, Sparano met with Madden, Kiesel and Gaulzetti. (TR. 2511.) Shortly after the meeting, Sparano made handwritten notes of what he believed had occurred. (TR. 2512-13; EX. 121.) 65. The notes incorrectly attribute to Madden statements to the effect that by July 9, 1985, he had developed “a new position for material” to be negotiated “of $24,965,099,” and that on that same date Yates called Madden and advised that he, Yates, had done an analysis and arrived at $27,000,000 as the amount for material. (EX. 121.) 66. Following the July 23, Í986 meeting, Sparano set forth in other handwritten notes dated that same day “some observations.” These included Sparano’s observation that the NÁVAIR post-negotiation BCM amount “is not valid,” due to the use of inconsistent unit prices and incorrect quantities. (EX. 12Í.) These “observations” contain mistakes, unsupported inferences and opinions. (TR. 2343-51.) Viewed as a whole, Sparano’s notes are not credible. Among other things, he referred to outside sources when making his handwritten notes of various conversations, but makes no mention of having done so. (TR. 2514-19.) Specifically, he attributed certain numbers to individuals which actually came from other sources. Further, several years later, when creating a typewritten version of the handwritten notes, he made numerous changes and omissions. (TR. 2540-41, 2542-44, 2591-93.) 67. On August 27, 1986, Sparano met with Bordone, a Navy employee who assisted Yates in the negotiations leading to modification’ P00013. A typewritten version prepared in October or November, 1989, of the notes Sparano made shortly after the 1986 meeting states: The remainder of the meeting and conversation revolved around the issue of the difference between the BOM’s [the amount in the post-negotiation BCM and the 44-page compilation given to DCAA in November, 1985]. Bordone was of the opinion that this issue was not a valid adjustment. The Auditor countered with a published ASBCA case which found that this type of issue was found to be a valid defective pricing issue. (EX. 569.) 68. 'On September 12, 1986, Sparano conducted an exit conference with Gaulzetti. In the conference, Sparano presented his audit findings. Sparano alleged that Sikorsky had failed to disclose various cost or pricing data, including the New York Air Brake quotations* of May 30, 1985, and the compilation of documents Gaulzetti1 had provided to him in November, 1985. . (TR. 2220-22; EX. 15.5.) Sparano erroneously concluded that the latter was a consolidated bill of materials and that the compilation existed as of July 9, 1985. (TR. 2520-22.) 69. Contractors are typically given 30 days to respond to allegations of defective pricing brought to their attention during an exit conference. Sikorsky was given six days, until September 18, 1986. (TR. 2573-74, 2578.) 70. On September 18, 1986, Sparano met again with Gaulzetti. Gaulzetti- acknowledged that the forty-four-page compilation of documents Sikorsky had given DCAlA in November, 1985, was never given to the Navy. However, he told Sparano that, through other documents, namely through computer printouts, worksheets, and floppy disks formatted for the Navy’s computer, Sikorsky had given the Navy updated information. Gaulzetti disagreed with some of Sparano’s additional findings of defective pricing unrelated to the so-called July 9,1985 BOM and provided to Sparano documents in support of Sikorsky’s position. (TR. 2584-88.) 71. Gaulzetti asked Sparano to compare this information which Sikorsky had submitted to the Navy with that which Spara-no believed was not disclosed. Sparano’s handwritten notes state that “[w]hen review this info: [sic] and comparing to 7/9/85 updated BOM, the auditor found that they did reconcile.” (EX. 121 at A-14a-2.) Over three years later, while assisting the Naval Investigative Service agents in their investigation of this matter, Sparano transcribed these handwritten notes but amended them to read “[t]he auditor review these printout [sic] he found in some cases that the material parts did include updated' unit cost which reconcile with the updated BOM and in other eases they did not.” (EX. 569.) Thus, while it remains unclean when the government first discovered that'some of the unit prices Sikorsky disclosed during the negotiations did not reconcile to those in the so-called July 9, 1985 BOM, the-inconsistent versions of these notes cast doubt on the 'veracity of Sparano’s recorded recollection of what occurred in his July 23, 1986 meeting with Madden, Kiesel, and Gaulzetti. (See Findings 64-65.) 72. On September 19, 1986, after having reviewed the information which Sikorsky had provided, Sparano reviewed other information in Sikorsky’s files and told Gaul-zetti, during that review, that nothing he had seen had caused him to change his mind. (TR. 2596-97.) 73. On September 19, 1986, Sparano called the Navy’s negotiator, Yates. Yates advised Sparano that Sikorsky had never submitted a consolidated bill of materials for the program, but that he had received from Sikorsky during the negotiations updated information on computer printouts and on floppy disks.. Yates further advised Sparano that during the negotiations he had never made an offer of $27,000,000 for material to Sikorsky. (TR.2065, 2609-13.) During this conversation, Sparano incorrectly informed Yates that he had received ' a consolidated bill of materials (BOM) from Sikorsky. (TR. 2609-10.) Yates was surprised to learn of this and responded that he had asked for one during the negotiations, but never received it. (TR.2061.) 74. Although Sparano believed that the forty-four-page compilation DCAA received in November, 1985, was a consolidated bill of materials, he did not show it-to Yates, if at all, until after DGAA issued the audit report on October 2, 1986. If Sparano had done so, Yates would have disagreed with Sparano’s conclusion that the compilation was a consolidated bill of materials. (TR. 2610-11, 2613-14, 2060-64.) 75. In DCAA’s October 2, 1986 audit report, Sparano still referred to a negotiated figure of $27,000,000 for material, (TR. 2613; EX. 570), despite what he learned from Yates and despite the fact that Yates’ post-negotiation BCM explicitly stated that the negotiation was settled on a bottom-line basis and that there was no negotiated amount for any cost element. (EX. 105.) 76. Sparano concluded that Yates did not realize the impact of the updated information provided by Sikorsky. (TR. 2600-01; EX. 121.) He reached this conclusion-without discussing it with Yates. (TR. 2600.) Had he done so, he would have learned that Yates understood all of the data provided to him by Sikorsky. (See Finding 43.) Sparano also could have examined Yates’ post-negotiation BCM to see if Yates used the data that Sparano believed he did not understand, but he did not do so. (TR. 2605.) 77. Typically, when determining if there was defective pricing, Sparano would want to 'find out from the government negotiator whether he or she relied on the data alleged to be defective. (TR. 2469.) Spara-no did not inquire of Yates or Bordone as to whether the defective data regarding the New York Air Brake modification kits were relied upon. (TR. 2469.) 78. Sparano indicated on a DCAA checklist that he followed DCAA’s standard defective pricing audit program. (EX. 567.) However, Sparano computed a recommended price adjustment, but failed to compare the proposal as updated by Sikorsky’s submissions of cost or pricing data to the undisclosed cost or pricing data available to Sikorsky as ■ of the date of price agreement. Sparano computed a recommended price adjustment on a different basis. (TR. 2469-72, 2532-34.) 79; On October 2, 1986, DCAA issued audit report number 2661-6B420008, which was transmitted to the Navy. (EX. 570.) That report set forth recommended adjustments to the price of Modification P00013. These adjustments were in part based on the difference between what DCAA incorrectly believed was the “material amount negotiated for kits and spares of $27,024,-154 and the amount reflected on the bill of material dated 9 July, 1985.” (EX. 570 at 7; TR. 2689.) This was the only time that Sparano ever made a recommendation for a price adjustment for defective pricing without consideration of the data a contractor had disclosed. (TR. 2533-34.) The audit report recommended a cost adjustment of $2,176,112 for the kits and spares. (EX. 570.) 80. DCAA could not determine what' the parts were that made up Yates’ $27,024,-154 amount stated in his post-negotiation BCM. (TR. 2689; EX. 105.) Yates acknowledged that the $27,024,154 amount was not negotiated between the parties, but rather was justification of his recommendation on the price agreement in the post-negotiation -BOM. (TR.1999-2001, 2025-26.) 81. DCAA’s audit report cited Sikorsky for defective pricing for five parts that it claimed were not updated even in the claimed July 9, 1985 BOM. At trial Spara-no admitted that DCAA was wrong as to these parts. (TR. 2682-83.) 82. DCAA also cited Sikorsky for defective pricing regarding an interim spare. (TR. 2685-86.) However, Yates used the correct pxdcing in his post-negotiation BCM. (TR. 2704-07.) At trial, Sparano conceded that, had he looked at the post-negotiation BCM regarding this part, he would have found the allegedly undisclosed prices. (TR. 2707.) 83. DCAA’s formulation of the recommended price adjustment was incorrect in that, contrary to DCAA’s belief, the parties did not negotiate an amount for kits and interim spares. (TR. 2612-13.) The $27,024,154 figure DCAA used was instead the amount Yates calculated for inclusion in his post-negotiation BCM after the bottom-line price agreement. (TR.1992-94.) Additionally, the Court finds that the forty-four-page compilation of documents DCAA received in November, 1985, did not exist on July 9, 1985. Thirteen of these pages were given to the Navy as part of the April 20 Program Update. ('Compare EX. 6 with EX. 15.5.) The remaining pages included adjustments of both facts and judgments, some made by Sikorsky after July 9, 1985, using information available and disclosed as of that date. For example, the denomination of a part called a “crown coupling” as government furnished equipment (“GFE”), was information that Madden did not learn until the 3:37 p.m. call on July 9, 1985, which resulted in the agreement on price. (TR. 1442, 4063-64, 4071.) 84. Around the time DCAA transmitted the audit report dated October 2, 1986, to the Navy, DCAA also advised Department of Defense criminal investigators of Sikorsky’s “suspected irregular conduct.” (EX. 125.) In this fraud referral, dated October 28, 1986, DCAA raised questions about Sikorsky’s failure to disclose the forty-four-page compilation. The referral also alleged fraud in connection with Sikorsky’s Cost Price Analysis Report' No. 4446 (“CPA Report No. 4446”), which discussed the prices proposed by New York Air Brake for the modification kits. DCAA suspected irregular conduct because the typewritten date, “6/24/85,” on the report was written over in pen to read “7/14/85.” (EX. 125.) 85. The government conducted a criminal investigation into the allegations made in the October 28, 1986 DCAA Suspected Irregular Conduct referral form. In February, 1988, Sikorsky was served with an Inspector General subpoena for documents. (EX. 581.) F. Navy-Sikorsky interaction during the fraud investigation 86. On October 29,-1986, the Navy forwarded to Sikorsky for review and comment a copy of DCAA’s October 2, 1986 audit report. (EX. 570.) 87. By letter dated December 5, 1986, Sikorsky offered a partial response to DCAA’s October 2,1986 audit report, (EX. 572), indicating that information concerning several of DCAA’s allegations regarding undisclosed purchase orders had been disclosed in Commitment Reports and Purchasing Updates given to the Navy before the price agreement. Sikorsky also sought discrete information about which of the parts-in the forty-four-page compilation given to DCAA in November, 1985, were defectively priced, and about the evidence proving that defective pricing. (EX. 572.) 88. Concerning the New York. Air Brake parts, the December 5, 1986 letter stated that. Sikorsky “agree[d] that there were lower cost or pricing data available, ... [but] disagree[d] with the disclosed costs used by DCAA in its calculations of alleged defectiveness. The use of the incorrect amount disclosed overstates the claim of defectiveness.” (EX. 572.) 89. On January 6, 1987, Dana Smith, a lawyer for the Navy, wrote a memorandum to Yátes attaching a notice of the DCAA’s October, 1986 fraud referral. The memorandum advised Yates to forward the information to the person responsible for’ the Contract, if he was no longer that person. Also, the memorandum instructed that: ' No defective pricing or other issues related to the facts described in the report should be resolved, settled, etc. without first checking with the Defense Procurement Fraud Unit to ensure no Government interests would be compromised thereby.- (Court’s Exhibit 1.’) 90. Paul Saunders, .the contracting officer then responsible for the Contract, received Smith’s memorandum from Yates. (TR. 2937.) 91. On January 7, 1987, Saunders wrote to Sikorsky, advising it that: 1„ We are forwarding your [December 5, 1986] rebuttal’to the Resident Auditor, DCAA for his comments, which we are going to review before contacting you again. 2. At this time, we are holding your request for certain documentation in abeyance, pending receipt of the Resident Auditor’s comments, which we wish to review before further proceeding in this matter. (EX. 727.) 92. By letter dated February 2, 1987, Sikorsky provided additional rebuttals to DCAA’s October 2, 1986 audit report and submitted offsets to its admitted defective pricing on the New York Air Brake parts. It renewed its request for information about the bills of materials allegation. (EX. 573.) 93. In a letter dated March 24, 1987, Sikorsky renewed its request for information about the bills of materials allegation. (EX. 575.) 94. On August 14, 1987, Sikorsky again wrote to the Navy requesting information about the bills of materials allegation in the October 2, 1986 audit report. (EX. 577.) 95. On.September 30, 1987,-the Navy forwarded to Sikorsky DCAA’s first supplement to its October 2, 1986 report. That supplement was dated April 6, 1987, and contained a DCAA memorandum dated February 15, 1987. It pronounced Sikorsky’s proposed offsets “highly questionable.” DCAA increased the amount of its previously recommended price adjustment. (EX. 578.) 96. Also in the September 30,1987 letter, the Navy replied to Sikorsky’s request for information about the bills of materials allegation by telling Sikorsky to seek relief under the Freedom of Information Act (“FOIA”). (EX. 578.) 97. By letter dated October 30, 1987, Sikorsky replied to the Navy’s September 30, 1987 letter. Sikorsky offered rebuttals to allegations DCAA made in its April 6, 1987 supplemental audit report. In response to the Navy’s September 30, 1987 suggestion, Sikorsky asked that its letter be treated as an FOIA request for information about the bills of materials allegation. (EX. 579.) 98. On January 14, 1988, the Navy responded to Sikorsky’s October 30, 1987 FOIA request by providing Sikorsky with the post-negotiation BCM. (EX. 580.) 99. By letter dated February 3, 1988, DCAA responded to Sikorsky’s October 30, 1987 FOIA request. DCAA advised that the documents regarding the bills of materials allegation that Sikorsky was seeking “do not exist in this form.” DCAA said that the “recommended price adjustment represents the difference between the negotiated material cost for kits and spares as detailed in the NAVAIR Post Negotiation Memorandum of $27,024,154 and material costs for kits and spares of $24,848,042 as detailed in the contractor’s 9 July 1985 Bill of Material.” (EX. 581.) 100. As early as December, 1986, DCAA, and specifically Sparano, knew that the information Sikorsky was seeking did not exist. DCAA did not inform Saunders or Sikorsky of this for more than 14 months, after a Department of Defense Inspector General subpoena was issued and after Sikorsky’s FOIA request. (TR. 2698-99, 2711-13.) - 101. On or about February 29, 1988, DCAA issued a second supplement to its October 2, 1986 audit report. (EX. 583.) Athough generally such audit reports are sent by the contracting officer to the contractor for review and comment, this one was not. (TR. 2941, 2971-72.) In this February 29, 1988 supplement, DCAA, having reviewed Sikorsky’s August 14, 1987 and October 30, 1987 rebuttals, acknowledged that many of its findings occasioned by Sikorsky’s offset claim, were “erroneous.” However, as to practically all of its October 2, 1986 recommendations, DCAA’s recommended adjustment remained the same. The February 29, 1988 second supplemental audit report recommended a price adjustment of $3,999,203. (EX. 583.) 102. On March 16,1988, Contracting Officer Saunders wrote to the Naval Investigative Service concerning the alleged defective pricing on Modification P00013. Saunders wrote: This is to confirm your ... request to us not to continue with the subject defective pricing until your investigation, which is currently in progress, has been completed.... We have been asked by [Sikorsky] to expedite our defective pricing action but have in the past avoided any reference to your investigation. We understand that we can now disclose to Sikorsky that we are on hold, pending the completion of your investigation, since [Sikorsky] has been made aware of your investigation. (EX. 734.) 103. Despite his knowledge of the investigation and his belief that he was precluded from settling the defective pricing allegations with Sikorsky, Saunders acted toward Sikorsky in a manner consistent with the steps he ordinarily took to settle routine defective pricing. (TR. 2941-44, 2957-58, 2966-67.) 104. By letter dated April 15,1988, Sikorsky sent a check for $436,324 to the Navy. The amount represented what Sikorsky then believed was its defective pricing liability less valid offsets. The letter stated that Sikorsky believed that “with this payment, ... [its] obligations regarding defective pricing have been satisfied.” (EX. 584.) 105. By letter dated April 28, 1988, the Navy returned the check. In this letter, the Navy said that it was still evaluating DCAA’s findings. The letter also referenced the government’s investigation, noting that it was not yet complete. The Navy said: “Since we have no firm position as yet, we cannot consider your [April 15] letter as a starting point for negotiations, nor can we take any other steps.” (EX. 585.) 106. By letter dated May 26, 1988, Sikorsky once again sent a $436,324 check to the Navy. Sikorsky’s letter stated that its “check was intended only to represent the amount we agreed was due and owing,” and added that “the check was not intended to prejudice any rights or positions of either party with respect to any other issues .... ” This check was also designed to prevent further interest from accruing on the money that Sikorsky believed it owed the government. (TR. 2645-46; EX. 586.) 107. In a letter dated August 15, 1989, the Navy once again returned Sikorsky’s $436,324 check. The Navy had held the check on advice of counsel. (TR. 2984.) The Navy stated that it was returning the check due to the fact that the government’s investigation of the matter was not yet concluded. (EX. 587.) G. The government’s allegations 108. In its amended complaint, the government alleged that Sikorsky had in its possession on or before July 9, 1985, a bill of materials dated July 9, 1985. (The so-called July 9, 1985 BOM.) In addition, the complaint alleges, without identifying, the existence of earlier versions. (First Amended Complaint ¶ 12.) At trial, it became apparent that the “earlier version” the government referenced in its complaint was a document created by Madden and called the Norden Update. (EX. 19.1.) (1) The .so-called July 9, 1985 BOM 109. The Court finds that the forty-four-page collection of documents making up the so-called July 9, 1985 BOM was created by Madden subsequent to the July 9, 1985 price agreement in response to DCAA’s October, 1985 request for a certified bill of material. (EX. 121B.) 110. The Court finds that, on a date after the July 9, 1985 price agreement, Madden began to prepare a price schedule for the subkits and interim spares. That schedule was ultimately forwarded to the Navy on July 25, 1985. {See Finding 46; TR. 2868, 4079-80.) 111. Madden made several attempts to fit the material cost estimate to the negotiated price of $40,400,000. (TR. 4079-81.) This process required Madden to make adjustments to some of the unit prices in the lists of parts that he maintained, using both factual information from the data that Sikorsky had previously submitted to the Navy and his judgment. (See Finding 53.) Some of the adjustments that Madden made in his effort to create a price schedule are reflected in the pages of the so-'called July 9,1985 BOM. (2) The Norden Update 112. Sometime between June 28, 1985, and July 5, 1985, Madden completed an analysis of the cost of the parts included in a particular subkit which were not listed on the Purchasing Updates. (TR. 1247-48; EX. 19.1.) Because the analysis was done in the offices of Norden Systems, Inc., a United Technologies Corporation subsidiary, this analysis was called the Norden Update. 113. To create the Norden Update, Madden and Kiesel compared the previously disclosed prices of parts with those found in the then-current June 19, 1985 Commitment Report. (TR. 1252-53, 1273.) This Commitment Report was provided to the Navy on June 26, 1985. (See Finding 23.) 114. In addition to the factual information taken from the Commitment Report, the Norden Update contained numerous judgments on the part of Madden. (TR. 1272-73.) All of the factual data in the Norden Update was provided to the Navy. (See Finding 113.) 115. The Court finds that Sikorsky had no obligation to provide the Norden Update to the Navy. There is no dispute that Sikorsky disclosed the Commitment Report from which the Norden Update was created. (TR. 1248-M9, 1252-53, 1274, 1951-53, 1973; EX. 110.) Yates could have performed the same mathematical exercise and was not significantly disadvantaged by the fact that Sikorsky did not provide him with its analysis of previously disclosed data. The government has failed to show that cost or pricing data contained within the Norden Update was not disclosed to Yates. (3) New York Air Brake Parts 116. On August 22, 1984, Sikorsky issued NTE Purchase Order No. 117203 to the New York Air Brake Company (N.Y.AB) for two modification kits, part numbers 937522 and 937513. Purchase Order No. 117203 specified a price of $860 per unit for each of the two kits, subject to downward negotiation. (EX. 33B.) 117. On April 25, 1985, Sikorsky buyer Robert Goldstein spoke with a representative of New York Air Brake and informed him that Sikorsky would be purchasing an increased quantity of each of the modification kits. New York Air Brake agreed to review its $860 NTE price based on the increased quantities, but did not tell Gold-stein that its prices would be going down. New York Air Brake did not inform Gold-stein that it had solicited lower quotations from its own suppliers. (TR. 288-90, 316.) 118. On April 26, 1985, Sikorsky issued Supplement 1 to Purchase Order 117203. By this supplement, Sikorsky ordered additional quantities of each of the New York Air Brake modification kits at the previously set $860 per unit NTE price. (EX. 33.) 119. By letter dated May 30, 1985, New York Air Brake Company forwarded to Sikorsky quotations for each of the two modification kits. In place of the $860 NTE price, New York Air Brake Company’s May 30, 1985 letter included SF 1411s listing prices of $226.59 for one part, and $213.60 for the other. (EX. 35.) The New York Air Brake cover letter was addressed to John Piatak, a Sikorsky buyer. (EX. 35; TR. 227, 317-18.) 120. On June 20, 1985, a Sikorsky cost price analyst, Frank Spitz, visited New York Air Brake to conduct a “fact-find” on the May 30, 1985 quotations. (TR. 335, 346; EX. 36.) 121. Spitz prepared Cost Price Analysis Report #4446 (CPA Report # 4446) to report on his June 20,1985 fact-find. (EX. 29 at 4217) The date of the report is typed “6/24/85.” This date was altered by hand to read “7/14/85.” (EXs. 29 at 4217, 36.) No evidence was produced that allows this court to make a determination as to who changed this date. By the time of trial, Spitz had died. 122. The report recommended that Sikorsky seek prices that were lower than the May 30, 1985 quotations for the parts. (EX. 36.) 123. John Giamarino, Spitz’s supervisor, signed and approved the report on July 16, 1985. The report was not released to the buyer or his supervisor until after Giamar-ino’s approval and signature. (TR. 348, 353-55; EX. 36.) 124. With regard to the New York Air Brake Company parts, Buceilli sought information for the Purchasing Update from Buying Group 4. (TR. 593-94.) 125. In or about mid-June, 1985, Sikorsky shifted responsibility for buying the two New York Air Brake parts from Buying Group 4 to Buying Group 7. (Compare EX. 110 & EX. 111 (June 19, 1985 Commitment Report and June 27, 1985 Purchasing Update respectively, showing parts as being purchased by Buying Group 4) with EX. 112F (June 27, 1985 Commitment Report showing parts as being purchased by Buying Group 7).) 126. Sikorsky’s system for updating pricing information was designed to inform Buceilli when responsibility for a particular part changed buying groups. He was routinely informed when this happened. (TR. 525-26.) However, Buceilli did not learn about the switch from Buying Group 4 to Buying Group 7 and continued to request information on the New York Air Brake parts from Buying Group 4. (TR. 594^95.) 127. Because of this error, Buceilli did not receive information about the lower cost quotations forwarded by New York Air Brake when he was preparing the June 27,1985 Purchasing Update and, as a consequence, information about the May 30, 1985 quotations was not included in the June 27, 1985 Purchasing Update. (TR. 591-92; EX. 111.) The information was not forwarded to Madden and Madden did not forward the information to the Navy. 128. The failure to provide Madden and the Navy with the lower New York Air Brake quotations was the result of a failure in Sikorsky’s in-house transmission of information rather than a deliberate misrepresentation. Buceilli did not intentionally avoid learning of the lower quotations or act with reckless indifference to the true state of the New York Air Brake prices. (TR. 533-35, 554, 557, 586, 591-92.) 129. Sikorsky did not adopt the target prices recommended in CPA Report # 4446 until November 18, 1985. (TR. 360; EX. 563, 564.) 130. On March 15, 1986, Sikorsky issued Supplement 7 to Purchase Order No. 117203, setting the prices of the New York Air Brake parts at $166 and $155 per unit, the higher of the target prices listed in the report. (EX. 29 at 4181-83.) 131. The Court finds that Sikorsky had cost or pricing data relating to the NYAB parts that it did not disclose to the Navy prior to the July 9, 1985 price agreement. The Court does not find that Sikorsky’s failure to disclose this information was intentional or reckless. (4) The government’s specific part allegations 132. With respect to unit prices, in paragraph 14 of the amended complaint, the government alleged that Yates relied on the June 27, 1985 Purchasing Update for the actuator, part number 61350-24802-101, for both FY 1984 and FY 1985. (First Am. Compl. ¶ 14; EX. 150 at 21 (part # 4).) The government claimed that the unit price listed for that part in the June 27, 1985 Purchasing Update was $64.00 higher for FY 1984 and $134.60 higher for FY 1985 than the amounts found in the undisclosed, so-called July 9, 1985 BOM. 133. Sparano testified that the so-called July 9, 1985 BOM unit price for the FY 1984 actuator was not current or accurate. (TR. 2366.) He acknowledged that the price failed to take into account a higher unit cost which Sikorsky paid for some of the pieces needed to fill the 1984 requirement. (TR. 2368.) 134. Sparano also testified (TR. 2365-66), that the weighted average cost calculation in the June 27, 1985 Purchasing Update, which was disclosed to the Navy during negotiations, did take into account 'the higher unit cost which Sikorsky paid for some of the required actuators. (TR. 2365-67; EX. 111.) Thus, the information in the June 27, 1985 Purchasing Update was in this regard current, accurate and complete. 135. Rounding to the nearest dollar, the June 27, 1985 Purchasing Update unit cost for the FY 1984 actuator was the same as the unit cost information which Yates used in his post-negotiation BCM. (TR. 2365; EX. 105.) The Court finds that Sikorsky provided current, accurate, and complete cost or pricing data regarding the FY 1984 cost for the actuator; and, at least in the preparation of the post-negotiation BCM, Yates used that same cost or pricing data. 136. The government alleged in paragraph 14 of the amended complaint that the June 27, 1985 Purchasing Update contained a false unit price for the actuator which was $134.60 higher than the unit price found in the so-called July 9, 1985 BOM. 137. Sparano testified, however, that the June 27, 1985 Purchasing Update FY 1985 actuator unit cost amount of $3,673 was the same as that found for this part in the June 19,1985 Commitment Report’s listing of purchase order information. (TR. 2367; EX. 110.) 138. There was no specific unit cost information, for the FY 1985 actuator in the so-called July 9, 1985 BOM. Sparano testified that he was “at a loss” to explain how he derived the number he represented in Plaintiffs Exhibit 150 as the cost for the part taken from the so-called July 9, 1985 BOM. (TR. 2397; EX. 150 at 21.) Sparano could not replicate the amount. (See TR. 2398, 2401-03.) Nonetheless, he admitted that the number he used for the so-called July 9, 1985 BOM for this part involved the use of some escalation. (TR. 2403.) 139. Sparano admitted that what escalation a contractor or, for that matter, the government would choose to use in estimating prices was not a verifiable fact. (TR. 2368-69.) The Court finds that a number which is the product of such judgment would be outside the definition of cost or pricing data and nondisclosure of such a number cannot provide a basis on which to claim defective pricing. The government has failed to meet its burden of proving that Sikorsky failed to disclose current, accurate or complete cost or pricing data for the actuator unit. 140. The government alleged that there was a unit price decrease of $1.36 for the FY 1984 housing, part number 61350-24060-103, between the June 27, 1985 Purchasing Update and the so-called July 9, 1985 BOM. (First Am. Compl. ¶ 14; EX. 150 at 24 (part # 36).) 141. In Plaintiffs Exhibit 150 at 24, the difference between what is listed for the part in Yates’ post-negotiation BCM and the June 27, 1985 Purchasing Update on the one hand, $440, and in the so-called July 9, 1985 BOM on the other, $439, was ascribed by Sparano to “rounding.” (TR. 2325-26.) “Rounding" is not cost or pricing data. Additionally, even if the difference in amounts were not attributable to rounding, the $1.36 amount of the alleged defective pricing, First Amended Complaint ¶ 14, multiplied by the requisite quantity of 108, amounts to $146.88. Even after burdens and profit are applied, the amount is trivial in comparison to the material amounts for kits and interim spares variously estimated to be in the tens of millions of dollars by the parties. The amount could not have had a significant impact on the negotiated price. 142. The government further alleged that there was a unit price decrease of $129.87 for the FY 1985 bearing, part number SB2106-103, between the June 27, 1985 Purchasing Update and the so-called July 9,1985 BOM. (First Am. Compl. ¶ 14; EX. 150 at 24 (part # 34).) 143. Mr. Sparano testified that he found the unit cost information for FY 1985 for this bearing in the so-called July 9, 1985 BOM, (TR. 2414; EX. 15.5 at 32), and that the amount listed, $253.73, was stated to be a weighted average. (TR. 2414.) He did not verify the weighted average calculation. (TR. 2414.) 144. The weighted average shown in the so-called July 9, 1985 BOM was a calculation using the three purchase orders for that part listed in the June 19, 1985 Commitment Report. (TR. 2416-17; EX. 110.) In the June 27, 1985 Commitment Report there were only two purchase orders for that part, (TR. 2418; EX. 541), which were used to arrive at the amount listed as the weighted average for this part in the June 27, 1985 Purchasing Update. This amount is identical to the amount used by Yates in his post-negotiation BCM. (EXs. 105; 111.) 145. At trial, the government acknowledged it did not know which of the differing weighted averages in the so-called July 9,1985 BOM (using three purchase orders) and the June 27, 1985 Purchasing Update (using two purchase orders) was correct. (TR. 2419.) The government presented no further evidence on this point. There was, therefore, no evidence that established that the number found in the so-called July 9, 1985 BOM was accurate, and therefore cost or pricing data requiring disclosure. 146. Lastly, the government alleged that there was a unit price decrease of $2.00 for the FY 1986 forging, part number 61350-24051-001, between the June 27, 1985 Purchasing Update and the so-called July 9, 1985 BOM. (EX. 150 at 25 (part # 42).) That exhibit, however, showed the difference as $4, not $2 as alleged in the Amended Complaint. 147. Sparano verified that for this part for FY 1986, the $140 amount found in the post-negotiation BCM and the June 27, 1985 Purchasing Update were identical. He further confirmed that the Purchasing Update stated that the amount was based on a quotation that Sikorsky had received. (TR. 2381.) He testified that he would consider a quotation to be cost or pricing data. (TR. 2381-82.) 148. Sparano also testified that the so-called July 9, 1985 BOM did not specifically contain a unit cost for this part for FY 1986. (TR. 2386.) He acknowledged that there was no FY 1986 Commitment Report showing a purchase order amount for this part. (TR. 2382.) Sparano admitted that the FY 1986 number he used for this part in Plaintiffs Exhibit 150 was the unesca-lated amount of the FY 1985 purchase order. He used this number because Sikorsky applied a judgment not to use escalation in the so-called July 9, 1985 BOM for the subkit containing this part. (TR. 2389-90.) The government offered no explanation why the judgmentally arrived-at unit cost for FY 1986, as derived- by Spara-no from the so-called July 9, 1985 BOM, should take precedence over the quotation for this part for FY 1986 identified in the June 27,1985 Purchasing Update. As noted above, Sparano conceded that the quotation was cost or pricing data. (TR. 2390.) The Court finds that Sikorsky disclosed cost or pricing data for this part for FY 1986, the quotation, but did not disclose cost information that was derived from a judgment. The Court cannot find defective pricing. - The government has failed to show that -Sikorsky did not disclose current, accurate and complete cost or pricing data for the FY 1986 unit cost of the forging. 149. Although not alleged in the Amended Complaint, at trial the government presented evidence of other instances where the unit costs for some parts found in the June 27, 1985 Purchasing Update were different than those found in the so-called July 9,1985 BOM. 150. ' Among those parts used by Yates in the post-negotiation BCM was the FY 1986 actuator, part number 61350-24802-101. (EX. 150 at 21 (part # 4).) The FY 1986 unit cost set out -in the June 27, 1985 Purchasing Update is lower than that which Sparano calculated for what he believed the so-called July 9, 1985 BOM would have shown had it displayed an amount for the part for FY 1986. (EX. 150.) Where the disclosed data is lower than the undisclosed data, as Sparano repeatedly testified, there would be no DCAA citation for defective pricing. (See, e.g., TR. 2373-74; 2374-75.) 151. Another part used by Yates was a bearing, part number SB2106-103. At trial the government pointed out that the FY 1984 unit cost listed in the June 27, 1985 Purchasing Update differed from the FY 1984 unit cost for the part found in the so-called July 9, 1985 BOM. (EX. 150 at 21.) However, the amount in the Purchasing Update, which was used by Yates in his post-negotiation BCM, was lower than the amount in the BOM. Sparano testified that under such circumstances he would not cite Sikorsky for defective pricing. (TR. 2373-74.) 152. Sparano reiterated that testimony with regard to a forging, part number S6135-20134-005. (TR. 2374-75; EX. 150 at 22 (part # 17).) The unit cost shown for that part for FY 1984 in the June 27, 1985 Purchasing Update “was lower than the unit cost found for that part for FY 1984 in the so-called July 9,1985 BOM. 153. Sparano testified that there was no defective pricing regarding another bearing, part number SB1357-103. (TR 2375; EX. 150 at 23 (part # 21).) For FY 1984, the Uune 27, 1985 Purchasing Update amount, again identical to the amount used by Yates in his post-negotiation BC