Board of Contract Appeals General Services Administration Washington, D.C. 20405 _________________________________________________ RESPONDENT'S MOTION IN LIMINE DENIED; APPELLANT'S MOTION TO BIFURCATE DENIED: October 2, 1998 _________________________________________________ GSBCA 13277-COM, 14538-COM TECHNICAL SYSTEMS ASSOCIATES, INC., Appellant, v. DEPARTMENT OF COMMERCE, Respondent. Joseph A. Camardo, Jr. and Christopher M. Wawack, Auburn, NY, counsel for Appellant. Jerry A. Walz, Lisa J. Obayashi, and Terry Hart Lee, Office of General Counsel, Department of Commerce, Washington, DC, counsel for Respondent. BORWICK, Board Judge. ORDER On September 29, 1998, we held a prehearing conference with counsel for respondent and appellant participating. We made rulings on two motions, respondent's motion in limine and appel- lant's motion to bifurcate entitlement and quantum. We address each in order. Nineteen calendar days before the hearing on the merits on this appeal, respondent filed a motion in limine requesting the Board to bar testimony related to appellant's superior knowledge defense to respondent's default termination of appellant's contract with respondent for supply of a fan beam antenna. Respondent recognizes that the purpose of a motion in limine is to exclude irrelevant, immaterial and cumulative evidence. Inslaw v. United States, 35 Fed. Cl. 63, 66 (1998); Weeks Dredg- ing & Contracting Co. v. United States, 11 Cl. Ct. 37, 45 (1986). One court has ruled that a motion in limine to exclude evidence may be granted only if the evidence sought to be excluded is 2 clearly inadmissible for any purpose; the moving party has the burden to make that showing. Plair v. E.J. Brach Corp., 864 F. Supp. 67, 68 (N.D. Ill. 1994). In this matter respondent seeks to preclude appellant from introducing an article on parabolic cylinder antennas, allegedly in the Government's possession. Appellant's position is that the Government's possession of this article is evidence of the Government's superior knowledge that the side lobe measurement specification of this contract was impossible to meet. Respon- dent also seeks to bar introduction of evidence of the Govern- ment's difficulty with a previous contractor in meeting a similar side lobe specification. Respondent argues that appellant's proposed evidence is unconvincing in that the evidence contradicts appellant's plea- dings and appellant's expertise in designing antennas as stated in its proposal. In making its arguments, respondent has failed to establish that the proffered evidence is irrelevant or immate- rial to the claim of respondent's alleged superior knowledge. Indeed, one case relied upon by respondent counsels against exclusion of evidence before the hearing. In Intercontinental Manufacturing Co. v. United States, 4 Cl. Ct. 591 (1984), the court, in a case arising under Wunderlich Act review, considered a contractor claim of unanticipated performance costs in a contract for production of sea mine cases and tail assemblies. The contractor alleged that the agency had superior knowledge because previous agency contractors had difficulty in fabricating components. The court held that a fixed-price contract places the performance risk on the contractor. To shift that perfor- mance risk to the Government, the "record [should] substantiate that the performance difficulties likely to be encountered exceed a rightfully expected level and skill and competence in the industry." Id. at 599. The court noted that experience of other contractors "is a relevant consideration" but that "proof that relies only upon a cataloging of those experiences is not enough." Id.[foot #] 1 Here, the Board will not exclude proffered evidence of the Government's alleged superior knowledge before the hearing. Evaluation of the sufficiency of appellant's evidence on the superior knowledge issue must await consideration of the complete record. Furthermore, the issue of superior knowledge has been in these appeals from their inception; respondent cannot claim surprise. Respondent's motion is therefore DENIED. ----------- FOOTNOTE BEGINS --------- [foot #] 1 The court reviewed a board decision rendered after a full merits hearing. See Intercontinental Manufacturing ___ ______________________________ Co., ASBCA 20880, 80-2 BCA 14,632. ___ ----------- FOOTNOTE ENDS ----------- 3 Appellant seeks to bifurcate quantum and entitlement regard- ing its equitable adjustment claim. Should the default termina- tion be overturned, the equitable adjustment claim will be subsumed in a termination for convenience settlement proposal, pursuant to Federal Acquisition Regulation (FAR) 52.249-8(g) (Apr. 1984), which was incorporated by reference into this contract. Appeal File, Exhibit 1 at 16 ( I.1). The Board does not therefore anticipate a quantum hearing. Nevertheless, the alleged costs of the changes are relevant to the appellant's position that respondent changed this fixed-price contract to a research and development contract, and to appellant's position that the amount and degree of changes excused the default termi- nation. The Board expects from both parties proof, including costs, of the degree of changes (or lack thereof) to the con- tract. To this extent, the appellant's motion to bifurcate is DENIED. The Board expects the witnesses to educate the Board as to the technical issues in the case, including, but not limited to, "side lobes," "feed horns," and the advantages and disadvantages of various antenna designs; in other words, Antenna Physics 101. Toward that end, counsel for the parties will confer and seek to agree on common definitions of technical terms for the Board's edification. ________________________ ANTHONY S. BORWICK Board Judge