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address the increased credits. The increased credits were part
of a collateral matter in which petitioner had made claim for
overpayments based on its claim for increased credits
attributable to fixed-price Government contracts. That claim has
not been formally acted on by respondent.
Petitioner’s claim for overpayment, involving a series of
years, including the ones at issue here, had proceeded along a
parallel path and was not formally incorporated into this
proceeding until petitioner made its allegations in its petition.
Respondent’s engineer had reviewed the claim and recommended that
it be denied. The engineer, acknowledging that petitioner would
be entitled to some increased credits if successful on the legal
issue, merely made proposed adjustments which reduced the total
amount of the credit petitioner had claimed. That total amount
was reflected in the engineer’s report. Petitioner agrees with
and relies on the amount proposed by the engineer for purposes of
this litigation. However, respondent’s counsel does not agree to
the amount and, instead, contends that petitioner must show a
relation to the contract language to be entitled to the credit.
The key fact here is that the parties did not enter into a
binding agreement with respect to the amount of the increased
credit. Accordingly, petitioner continues to bear the burden of
proving the amount of the credit, and respondent, in the context
of this litigation, has not bound herself to the adjustment that
was proposed by her engineer.
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Last modified: May 25, 2011