CI², Inc.
Docket: ASBCA 56257, ASBCA 56337
Decision date: 2003-02-10

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
CI2, Inc. ) 
) 
Under Contract No. DAB NO l-03-C-0007 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 56257 
HJ.A. Alexander, Esq. 
Alexander Law Firm, P.C. 
Atlanta, GA 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
Kyle E. Chadwick, Esq. 
Trial Attorney 
OPINION 
BY ADMINISTRATIVE JUDGE DELMAN ON GOVERNMENT'S 
MOTION FOR RECONSIDERATION 
The government has filed 
a timely motion seeking reconsideration of our 
decision under ASBCA No. 56257 in which we granted, in part, appellant's appeal. 
CJ2, Inc., ASBCA Nos. 56257, 56337, 14-1BCAii35,698. Appellant has filed in 
opposition to this motion. 1 Familiarity with our decision is assumed. 
In ADT Construction Group, Inc., ASBCA No. 55358, 14-1BCAii35,508 
at 17 4,041, we recently stated the well settled law pertaining to the review of a motion 
for reconsideration: 
[The moving party] must demonstrate a compelling 
reason for the Board to modify its decision. JF. Taylor, 
Inc., ASBCA Nos. 56105, 56322, 12-2 BCA ii 35,125. In 
determining whether a party has done so, we look to 
whether there is newly discovered evidence or whether 
there were mistakes in the decision's findings of facts, or 
errors of law. Id. Motions for reconsideration are not 
intended to provide a party with an occasion to reargue 
issues that were previously raised and denied. WestWind 
Technologies, Inc., ASBCA No. 57436 11-2 BCA 34,859. 
1 Appellant also seeks unidentified sanctions against the government for unsupported 
arguments in its motion papers. We believe the record fails to support 
sanctions, and we deny appellant's request. 

Applying these well established principles, we address the government's motion 
below. 
Breach of Contract 
The government contends that the Board erred because it relied upon a contract 
breach theory that appellant never raised in its claim (gov't mot. at 5). The 
government is incorrect. Appellant claimed, among other things, that the government 
was contractually obligated to assign and pay for the permanent registrar and 
temporary registrar (TR) units identified in the contract as modified, 2 and its failure to 
do so was a breach. The Board granted appellant's claim, in part, on this basis. This 
was not a new or novel "breach theory." 
Course of Dealing in Derogation of the Contract as Modified 
Notwithstanding Modification (Mod.) No. POOOOl, which stated, inter alia, that 
effective 10 February 2003, the government shall order services under Indefinite 
Delivery/Indefinite Quantity (ID/IQ) contract line item numbers (CLINs), i.e., TRs, 
through the issuance of contract modifications, the government contends that the 
Board erred in failing to find that the parties had a "course of dealing" in derogation of 
this contract requirement (gov't mot. at 5). According to the government, the 
contracting officer's representative (COR) requested the TRs during weekly 
consultations with appellant's German subcontractor and that is how the Army placed 
orders under the ID/IQ CLINs in practice (id. at 6). 
Evidence of a "course of dealing" is extrinsic evidence that may be used to 
establish the meaning of ambiguous contract language, or to establish that an explicit 
contract requirement is not binding due to waiver and estoppel. JOHN CIBINIC, JR., 
RALPH C. NASH, JR. & JAMES F. NAGLE, ADMINISTRATION OF GOVERNMENT 
CONTRACTS 210-11 (4th ed. 2006). The government failed to show either 
circumstance. The government failed to show that Mod. No. POOOO 1 was ambiguous; 
to the contrary, the new contract requirement to order ID/IQ CLINS through contract 
modifications was clear. The government also failed to show that the COR had the 
authority to waive the requirements of Mod. No. POOOOl. Indeed, she admitted she did 
not have the authority to change the terms of the contract (tr. 1/8). The cases cited by 
2 See appellant's certified claim (R4, tab 23), which is based upon and incorporates the 
following amounts: Mod. No. P00002, SUBCLIN 0003AA, Permanent Registrars, 
$1,470,840.00 (R4, tab 14 at 2of3), which is carried over to appellant's claim for 
FY 03 under Invoice No. 240 (back-up sheet). Mod. No. P00003, CLIN 1004, 
Temporary Registrars, $757,944.00 (R4, tab 15 at 3of15), which is carried over to 
appellant's claim for FY 04 under Invoice No. 241 (back-up sheet). 
2 

the government in support of its position involved claims of course of dealing based 
upon prior contracts, and have no application here. 
The Board did not err in failing to find a "course of dealing" in derogation of 
the requirements of this contract as modified. 
The Contract Modifications 
The government contends that the Board erred in construing Mod. No. P00002 
to obligate permanent registrars in the amount of 360.5 months for the base year, 
contending that this figure was only an estimate. By finding that this was a contract 
obligation, we rejected this interpretation, and the government has not persuaded us 
that our interpretation was in error. The government's interpretation is unsupported by 
the language of Mod. No. P00002, i.e., it is unsupported by any estimate-type 
language provided in the contract modification for the permanent registrars, and it is 
also inconsistent with that portion of the contract modification that expressly modifies 
"[t]he total cost" of the contract (R4, tab 14 at 2), and which also includes release-type 
language that appellant was obligated to sign (id. at 1 ). Contract interpretation is a 
question of law, Applied Companies v. Harvey, 456 F.3d 1380, 1382 (Fed. Cir. 2006), 
and we are not bound by the unreasonable contract interpretation of any party or 
witness. 
The government also contends that the Board cannot logically hold that the 
Army breached the contract by failing to "order" quantities of permanent registrars 
that were not subject to order under the Ordering clause (gov't reply br. at 5). 
However, we did not state that permanent registrars should have been ordered under 
the Ordering clause. Rather, we concluded that the 360.5 figure for permanent 
registrars under the bilateral contract modification was a binding contract obligation. 
The Board's use of the term "failure to order" in this context referred to the 
government's failure to "assign" these units to the various work sites consistent with 
its contract obligations and as determined by the Board's entitlement decision. 
Similarly, the government contends that the Board cannot logically hold 
that the 
Army breached the contract by failing to "order" quantities of TRs that were in fact 
ordered under Mod. Nos. P00002 and P00003 (gov't reply br. at 5). Our response is 
also similar. With respect to the TRs, the Board's reference to the government's 
failure to "order" was a reference to the government's failure to "assign" these TR 
units to the various work sites consistent with its contract obligations, as modified by 
the contract modifications. 
Although we believe these verbal distinctions were readily apparent in the 
context in which they were written, we hereby clarify the language in our decision in 
accordance with the above to reflect the change in terminology from "order" to 
3 
I 
I 

"assign," at the following sections of the decision: "Base Year 'Ramp-Up Period' 
and Beyond," last paragraph, sentence 3, and also at "Temporary Registrars in 
Option Year," last paragraph, first sentence, see CI2, Inc., 14-1BCA~35,698 
at 174,782-84. Appellant's objection to the Board's terminology provides no basis to 
reverse our holding. 
The government also contends that the Board erred in construing Mod. 
No. P00003 as obligating the government to order TRs in the amount of216 units for 
the option year, contending that this figure was only an estimate. While it is true that 
the Indefinite Quantity clause in the contract, as awarded, provided that such quantities 
in the schedule were estimates and were to be ordered in accordance with the Ordering 
clause, it is undisputed that Mod. No. POOOO 1 changed the Ordering clause to provide 
that ID/IQ CLINs shall be ordered by issuance of contract modifications. Such was 
the case here. The government otherwise basically reiterates arguments previously 
raised and rejected by the Board. This is not a basis for reconsideration. ADT 
Construction Group, Inc., 14-1BCA~35,508 at 174,041. 
Our decision remanded quantum to the parties. The parties on remand 
should 
address any proven damages of appellant arising out of any contract breaches 
referenced in our decision. As the parties are aware, we did not state in our decision 
that appellant was entitled to the full contract price incident to any breaches of 
contract. 
CONCLUSION 
We have reconsidered our decision in view of the government's motion, and we 
find no basis to reverse our decision. Our decision, as clarified herein, is affirmed. 
Dated: 21November2014 
(Signatures continued) 
4 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

I concur 
~~~ 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrati 
Acting Vice airman 
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. 56257, Appeal of Cr2, Inc., 
rendered in conformance with the Board's Charter. 
Dated: 
5 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals 
I t [