Optimization Consulting, Inc.
Docket: ASBCA 58752
Decision date: 2015-09-10

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Optimization Consulting, Inc. ) 
) 
Under Contract No. W9133L-10-D-0002 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58752 
Mr. Richard Holmes 
President 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
Robert B. Neill, Esq. 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE NEWSOM 
ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT 
This appeal comes before the Board on the government's motion for summary 
judgment. Appellant claims that the contract required the government either to 
purchase appellant's proposed Management Information System (MIS), or to provide a 
government-furnished MIS. The government did neither, which allegedly caused 
appellant to incur additional performance costs totaling $3,661,683.16. The 
government contends that an MIS was optional, and the contract unambiguously 
allowed the government discretion neither to purchase nor provide an MIS. 
For the reasons explained below, we deny summary judgment to the 
government because we find that the government's interpretation is inconsistent with 
other provisions of the contract. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
1. Seeking to improve mental health support for its service members, the Air 
National Guard (ANG) issued Solicitation No. W9133L-10-R-0099 on 10 August 
2010 (R4, tab 2 at 1 ). The solicitation called for competitive proposals to provide 
mental health counselors and clinicians and associated support services for ANG 
service members and their families (id. at 40). 
2. On 24 September 2010, ANG awarded Contract No. W9133L-10-D-0002 
(Contract) to Optimization Consulting, Inc. (OCI) (R4, tab 1 at 1). The Contract called 
for OCI to provide services in three out of six regions (R4, tab 1at126-27, tab 8). 

3. The Performance Work Statement (PWS) described the work to be performed. 
In broad terms, the work fell into two categories: (a) psychological health services 
(PHS); and (b) records management and reporting services. (R4, tab 2 at 43, 94) 
4. To meet its PHS obligations, the contractor was required to staff a 
psychological subject-matter expert in each ANG Wing, known as the Wing 
Psychological Healthcare Subject Matter Expert (PHSME), who would oversee and 
coordinate mental health services. It also was to provide a network of mental health 
clinicians and counselors to provide mental health support to service members and 
their families for a wide range of problems, such as adjustment disorders, traumatic 
brain injuries, or post-traumatic stress disorders. The contractor was also to undertake 
activities to promote psychological wellness. (R4, tab 2 at 56-88) 
5. The records management and reporting duties are at the heart of this 
dispute. The contractor was required to collect and maintain data, including records of 
contacts with service members; records of"[ e ]very action taken by the PHSME in 
management of the case"; demographics of service members seeking assistance; key 
events in management of a case, and other data elements (R4, tab 2 at 97-99). The 
contractor was also to create and submit approximately 63 separate written 
deliverables or reports to the government or to other stakeholders, most of which were 
to be submitted on a recurring basis (id. at 88-93). 
6. The dispute concerns the contractor's use of an MIS to perform these data 
management and recordkeeping obligations. The PWS stated that the contractor was 
"expected to use an automated data processing system to support record management 
and reporting needs" (R4, tab 2 at 96). 
7. The parties disagree, however, as to whether the Contract imposed an 
obligation on the government to supply or pay for an MIS to support the contractor's 
records management and reporting duties (app. Statement of Genuine Issues of 
Material Fact (SGI) 2; gov't mot. at 11, 13). 
8. Both parties focus on language in Section III.A of the PWS. In the second 
subsection "a" 1 therein, the following language appeared, with bold and underlining in 
the original: 
1 The PWS Section III.A has two subsections labeled "a." The relevant portion is the 
second subsection "a." 
2 

a. Management Information System () (Portions are 
Optional for award) 
The ANG is currently investigating a comprehensive 
multi-layered tracking and data collection system for 
many ANG personnel functions. The ANG may/may not 
elect to utilize the total capability of Contractor's 
comprehensive MIS system, but expects the o(feror to 
provide and manage hardware necessary to accomplish 
and effectively communicate as well as track activity of 
the PHSME program. The ANG expects any data 
collected in the provision of this contract will have the 
ability to be transferred and/or to collaborate in 
partnership with other ANG /IT contractors, within the 
bounds of privacy and confidentiality laws and 
regulations. However, the Government does expect 
each offeror to propose as part of this solicitation, its 
MIS capabilities and plan for tracking PHSME 
services. 
Offerors are to propose use of their MIS and describe in 
their proposal how their MIS will effectively support the 
full range of services needed under this contract. Offerors 
are to provide a breakout of MIS costs as part of their 
business proposal. The Government reserves the right to 
require use of a DoD system or a combination of DoD and 
Offerors' MIS. 
(R4, tab 2 at 95) (Emphasis in original) 
9. Other PWS provisions mentioned that the contractor would use an MIS to 
perform recordkeeping and reporting functions. The PWS stated, for example, the 
following: 
• "The Contractor shall adhere to requirements ofDoD, ANG and the 
Contractor's Management Information System () security plan including 
security guidelines for electronic files" (R4, tab 2 at 94) (emphasis added). 
• "The offeror will be responsible for collection and management of all case 
management, counselor activity, and business management data required to 
create operational and business reports for the ANG. This data will be 
maintained within the Contractor's MIS" 
(id. at 97) (emphasis added). 
3 

• "Consultation and information provided to PHSMEs during service contacts 
that do not immediately result in opening a case shall be entered in the MIS 
as a consultation occurring or documented immediately and entered by the 
close of business on the day of the contact" (id. at 99) (emphasis added). 
• "The Contractor shall maintain all data sets within their data systems .... [T]his 
information will be provided to the ANG as a backup of the datafrom the 
MIS system used by the Offeror in an agreed to format." (Id. at 102-03) 
(Emphasis added) 
• "The Contractor shall be required when requested by the ANG COTR, to 
promptly and fully participate in an in-depth study of the security of the 
Contractor's records system and Management Information System" (id. 
at 106) (emphasis added). 
• "The MIS must comply with DoD computer security requirements" (id. 
at 107) (emphasis added). 
10. PWS Section III.D, entitled "GOVERNMENT FURNISHED 
FACILITIES AND EQUIPMENT/PROPERTY," identified the equipment and 
facilities that the government would furnish. It did not list an MIS as 
government-furnished equipment or property. (R4, tab 2 at 103-04) (Emphasis in 
original) 
11. The government issued three task orders to OCI, each of which funded portions 
ofthe period of performance (R4, tab 10 at 1, 6-7, tab 18 at 1, 4-5, tab 45 at 1, 7-8). 
12. After performance commenced, OCI expressed concern about the lack of 
an MIS, claiming that the absence of an MIS was causing it to incur unanticipated 
performance costs (R4, tab 66 at 4). According to an OCI-prepared summary of a 
27 February 2012 meeting, OCI urged the government either to "[i]mplement an MIS 
Solution immediately" or "[m]odify the pricing structure to account for the cost of 
OCI's additional resources" (R4, tab 78 at 1). 
13. OCI 
asserts that the government initially stated that it was "looking into" 
using a government-supplied MIS (R4, tab 66 at 4). 
14. By November 2012, however, the government determined that it would not 
supply an MIS and would not modify the Contract to increase OCI's funding (R4, 
tab 131 at 8). 
15. On 26 December 2012, OCI submitted a claim to the 
contracting officer for 
costs incurred allegedly because of the government's failure to implement an MIS. 
4 

OCI claimed that it was forced to analyze data and generate reports manually, which 
required more manpower than would have been required with an MIS. It claims to 
have added 4.5 full-time equivalent staff plus additional work hours for existing staff. 
(R4, tab 147) 
16. The contracting officer denied the claim in a written decision dated 25 May 
2013, which OCI received the same day (R4, tabs 213-15). OCI timely filed this 
appeal on 28 June 2013. 
DECISION 
Summary judgment is appropriate where there is no genuine issue as to any material 
fact and the movant is entitled to judgment as a matter of law. Mingus Constructors, 
Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). As a general rule, pure 
contract interpretation is a question of law that may be resolved by summary judgment. 
Aegis Defence Services Ltd., ASBCA No. 59082, 15-1BCA~35,811at175,138; Osborne 
Construction Company, ASBCA No. 55030, 09-1BCA~34,083 at 168,514. 
The government moves for summary judgment on the ground that the Contract did 
not require the government either to pay appellant for its MIS, nor to provide a 
government-furnished MIS for appellant's use (gov't mot. at 11, 13). Appellant claims 
that the Contract required the government either to provide an MIS or pay for appellant's 
MIS (SGI 2). As we explain below, we conclude that the Contract does not 
unambiguously support the government's interpretation. 
The threshold 
question is whether the plain language of the Contract is clear or 
ambiguous, which is a question of law. NVT Technologies, Inc. v. United States, 
370 F.3d 1153, 1159 (Fed. Cir. 2004); Community Heating & Plumbing Co. v. Kelso, 
987 F.2d 1575, 1579 (Fed. Cir. 1993). If a contract is reasonably susceptible of two or 
more interpretations, each of which is consistent with the contract language, it is 
ambiguous. Community Heating & Plumbing, 987 F.2d at 1579; Phoenix 
Management, Inc., ASBCA No. 57234, 11-1BCA~34,734. 
The government contends that the Contract unambiguously stated that "an MIS 
tool was an optional service" and was "optional for award," (gov't mot. at 11, 13 ), 
relying principally on the language in Section III of the PWS: 
a. Management Information System () (Portions are 
Optional for award) 
The ANG is currently investigating a comprehensive 
multi-layered tracking and data collection system for 
many ANG personnel functions. The ANG may/may not 
5 

(SOF ~ 8) 
elect to utilize the total capability of Contractor's 
comprehensive MIS system, but expects the offeror to 
provide and manage hardware necessary to accomplish 
and effectively communicate as well as track activity of 
the PHSME program. The ANG expects any data 
collected in the provision of this contract will have the 
ability to be transferred and/or to collaborate in 
partnership with other ANG /IT contractors, within the 
bounds of privacy and confidentiality laws and 
regulations. However, the Government does expect 
each offeror to propose as part of this solicitation, its 
MIS capabilities and plan for tracking PHSME 
services. 
Offerors are to propose use of their MIS and describe in 
their proposal how their MIS will effectively support the 
full range of services needed under this contract. Offerors 
are to provide a breakout of MIS costs as part of their 
business proposal. The Government reserves the right to 
require use of a DoD system or a combination of DoD and 
Offerors' MIS. 
The government points to three excerpts from this provision to support its 
interpretation. None of these excerpts stretches quite as far as the government urges. 
First, it points to the heading, arguing that the words "Management Information 
System" and "Optional for award," meant that "an MIS tool" or "the MIS Section" 
were optional for award (gov't mot. at 13-14).2 That, however, is not quite what the 
heading stated. It did not state that an "MIS tool" or "the MIS Section" were "optional 
for award." It stated "Management Information System() (Portions are Optional for 
award)" (SOF ~ 8) (emphasis in original). The meaning depends on what the word 
"portions" refers to. While "portions" could refer to the entire MIS, supporting the 
government's position, that is not the only reasonable reading. "Portions" could also 
refer to sub-elements of the MIS, suggesting that some portions of an MIS were 
optional while other portions of an MIS were mandatory. 
2 For convenience, the Board refers to the PWS in the solicitation, but the same 
language appears in the PWS in the awarded contract (compare R4, tab I with 
R4, tab 2). The Contract incorporated the PWS that was in the solicitation. 
Thus, all of the PWS provisions in the solicitation became part of the awarded 
Contract. (R4, tab 1) 
6 

Second, the government interprets the sentence fragment, "The ANG may/may 
not elect to utilize the total capability of Contractor's comprehensive MIS system" 
(SOF ii 8) (emphasis in original deleted), to mean that the government "may/may not 
elect to utilize" an MIS (gov't mot. at 15). That interpretation, however, ignores 
certain words and thereby changes the meaning. The provision did not state that the 
government may or may not elect to "utilize an MIS" (id.). It stated that the 
government may or may not elect to "utilize the total capability of Contractor's 
comprehensive MIS system" (SOF ii 8). The actual words suggest that the government 
expected to use some element of the contractor's MIS. 
Moreover, the surrounding sentences explain that the government was 
"investigating a comprehensive multi-layered tracking and data collection system," 
and that it "expects the offeror 
to provide and manage hardware necessary to 
accomplish and effectively communicate as well as track activity of the PHSME 
program" (SOF ii 8) (emphasis in original deleted). A fair reading of this entire 
passage is that in the event the government implemented its own MIS, it would not use 
the contractor's entire system, but the contractor was expected in any event to 
"manage hardware necessary" to perform. Viewed in this context, an MIS would not 
have been optional - the contractor would have been expected to use its own MIS 
unless the government implemented 
one. 
Finally, the government interprets the last sentence, "The Government reserves 
the right to require use of a DoD system or a combination of DoD and Offerors' MIS," 
(SOF ii 8), to mean that the government could choose neither to provide nor purchase 
an MIS (gov't mot. at 15). Again, however, that is not quite what it said. It stated 
rather that the government could either use a DoD system or a "combination" of a 
DoD system and contractor system. It was entirely silent on the possibility of using no 
MIS at all. (SOF i\ 8) 
The government's position that an MIS was "optional" is, moreover, difficult to 
reconcile with the numerous PWS elements, quoted above, that expressly mentioned 
use of an MIS (SOF ii 9). One, but by no means the only instance, is PWS Section 
III.A.d, under "Definition of Managed Data," which stated that certain consultations 
with counselors "shall be entered in the MIS as a consultation occurring or 
documented immediately and entered by the close of business on the day of the 
contact" (SOF ii 9). Additional examples are quoted in paragraph 9 of the statement of 
facts above. 
These excerpts could be read to mean that the government expected the 
contractor to have its own MIS and use it to perform. The large volume of data 
management and reporting obligations reinforces that impression (SOF iii! 5, 6). 
7 

Thus, we conclude that the Contract does not unambiguously support the 
government's interpretation. In so ruling, we note that appellant has not moved for 
summary judgment. We have not reached, and expressly do not decide, whether 
appellant's interpretation is supported by the Contract. 
CONCLUSION 
The government's motion for summary judgment is denied. 
Dated: 10 September 2015 
ETH W. NEWSOM 
Ad "nistrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
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Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 58752, Appeal of 
Optimization Consulting, Inc., rendered in conformance with the Board's Charter. 
Dated: 
8 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals