Chugach Federal Solutions, Inc.
Docket: ASBCA 61320
Decision date: 2023-10-24

DOCUMENT FOR PUBLIC RELEASE                                                                                           
The decision issued on the date below is subject to an ASBCA Protective Order.          
This version has been approved for public release. 
 
 
 
ARMED SERVICES BOARD OF CONTRACT APPEALS 
OPINION BY ADMINISTRATIVE JUDGE D’ALESSANDRIS ON THE 
GOVERNMENT’S MOTION FOR PARTIAL RECONSIDERATION 
 
 Pending before the Board is the government’s motion for reconsideration of 
portions of our June 8, 2023 decision in this appeal.  See Chugach Federal Solutions, 
Inc., ASBCA No. 61320, 23-1 BCA ¶ 38,372.  For the reasons stated below we deny 
the government’s motion. 
 
I. Standard Of Review For Motions For Reconsideration 
 
 A motion for reconsideration is not the place to present arguments previously 
made and rejected.  “[W]here litigants have once battled for the court’s decision, they 
should neither be required, nor without good reason permitted, to battle for it again.”  
Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014) (quoting Official Comm. of 
the Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 
167 (2d Cir. 2003)).  Moreover, “[m]otions for reconsideration do not afford litigants 
the opportunity to take a ‘second bite at the apple’ or to advance arguments that 
properly should have been presented in an earlier proceeding.”  Dixon, 741 F.3d 
at 1378; see also Avant Assessment, LLC, ASBCA No. 58867, 15-1 BCA ¶ 36,137 
at 176,384.  On the other hand, if we have made mistakes in the findings of fact or 
conclusions of law, or by failing to consider an appropriate matter, reconsideration 
Appeal of - )  
 )  
Chugach Federal Solutions, Inc. ) ASBCA No. 61320 
 )  
Under Contract No. N44255-14-D-9000 )  
   
APPEARANCES FOR THE APPELLANT: Richard B. O’Keeffe, Jr., Esq.  
William A. Roberts III, Esq.  
Gary S. Ward, Esq.  
Cara L. Lasley, Esq. 
    Wiley Rein LLP 
    Washington, DC 
 
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. 
    Navy Chief Trial Attorney 
 David M. Marquez, Esq. 
Robyn L. Hamady, Esq. 
Anthony Hicks, Esq. 
    Trial Attorneys 
  
 

DOCUMENT FOR PUBLIC RELEASE                                                                                           
The decision issued on the date below is subject to an ASBCA Protective Order.          
This version has been approved for public release. 
 
2 
 
may be appropriate.  See Robinson Quality Constructors, ASBCA No. 55784, 09-2 
BCA ¶ 34,171 at 168,911; L&C Europa Contracting Co., ASBCA No. 52617, 04-2 
BCA ¶ 32,708.  The Board has summarized the standard for reconsideration stating 
“[i]n short, if we have made a genuine oversight that affects the outcome of the appeal, 
we will remedy it.”  Relyant, LLC, ASBCA No. 59809, 18-1 BCA ¶ 37,146 
at 180,841.  Here, as in Relyant, no such mistakes have been identified. 
 
II. Procedural History 
 
 In its motion for partial reconsideration, the government asserts two errors in 
our decision:  first, that we “erroneously concluded that the Navy did not identify 
specific costs for non-performed or late-performed work in FY16” (gov’t mot. at 2-3); 
and second, that we “erred in holding that the Navy cannot withhold payment for late-
performed work” (gov’t mot. at 3-6). 
 
 At issue in this motion for reconsideration are the government’s withholdings 
of contract funds.  In November 2015, the government withheld approximately 
$450 thousand for specifically identified tasks that were not performed and positions 
that were not filled.  See, Chugach, 23-1 BCA ¶ 38,372 at 186,387; (R4, tab 12.632.3 
at GOV421048-1, tab 12.632.2 [native] (spreadsheet detailing deductions)).  These 
deductions are not in dispute.  In addition, the withholding letter provided that the 
government would be making “temporary” withholdings, and that if the performance 
problems persisted the withholdings would be made permanent at the end of the fiscal 
year “once the full extent of the non-conformance is determined” (R4, tab 12.632.3 
at GOV421048-2).  The withholding amount was initially 10 % of contract payments 
due, but was reduced to 5 %. Chugach, 23-1 BCA ¶ 38,372 at 186,388. 
 
 In its opening post-hearing brief, Chugach argued that the government had not 
established a right to withhold a generalized “10% or 5% withholding of the 
negotiated contract price” and that the government could not establish that the 
withholdings bore a “reasonable relationship” to the damages suffered by the 
government (app. br. at 164).
1  With Chugach having raised these issues, it was 
incumbent upon the government to identify the legal basis for its withholding.  In 
addition, it was incumbent upon the government to establish that there was late-
performed or non-performed work and to demonstrate some rational relationship 
between the identified work and the withholding. 
 
 
1 Chugach argued that there was no relationship between the withholding and the harm 
to the government because the government was responsible for Chugach’s 
non-performance and late-performance. 

DOCUMENT FOR PUBLIC RELEASE                                                                                           
The decision issued on the date below is subject to an ASBCA Protective Order.          
This version has been approved for public release. 
 
3 
 
 In its Rule 11 brief, the government addressed Chugach’s argument with three 
sentences and a string-cite of its proposed findings of fact.  In its entirety, the 
government’s argument was: 
 
Moreover, NAVFAC documented significant instances of 
CFSI’s nonperformance, including failure to perform 
required preventative maintenance across multiple 
annexes, failure to meet required completion deadlines, 
and failure to fill key positions required by the WSBOS 
Contract.  Navy PFF Nos. 375-384.  CFSI admitted that it 
had not fully performed required work in either FY15 or 
FY16, the two claim years.  Navy PFF Nos. 378, 380, 
385-386.  The work that CFSI failed to perform – e.g., 
unstaffed key positions, time-based maintenance, late 
completion, etc. – was not amenable to re-performance. 
Navy PFF No. 385. 
 
(Gov’t br. at 82-83)  Although not included in the Navy’s string cite, our opinion cited 
the Navy’s proposed finding of fact number 387 as the only support for the Navy’s 5 
percent retainage.  This was a declaration by a contracting officer, (but not the 
contracting officer that instituted the withholding nor the contracting officer that 
reduced the withholding rate to 5%) stating that “NAVFAC estimated the cost of the 
FY16 non-performed work as 5% of the contract value of the recurring work.”  We 
held that this conclusory statement by a contracting officer was: 
 
[U]nsupported by citation to any workpapers or 
documentation of non-performed work.  Moreover, 
Mr. Sandoval does not state that he personally estimated 
the value of the non- performed [work], but just that 
“NAVFAC” estimated the cost without identifying the 
individual or individuals that purportedly estimated the 
value to be 5 percent. 
 
Chugach, 23-1 BCA ¶ 38,372 at 186,400 (citing gov’t ex. 1 ¶ 20). 
 
 In its Rule 11 reply brief, Chugach again challenged the Navy’s withholding as 
being without a rational relationship to the unperformed work, although this time 
arguing that the Navy failed to carry its burden and relied “on items it either already 
valued in its deductive modifications (which suggest double withholding) or late work 
that Chugach admittedly performed (for which Chugach is entitled to be paid)” (app. 
reply at 107).  Chugach requested, and was granted, leave to file a sur-reply, but did 
not respond to this issue in its sur-reply. 
 

DOCUMENT FOR PUBLIC RELEASE                                                                                           
The decision issued on the date below is subject to an ASBCA Protective Order.          
This version has been approved for public release. 
 
4 
 
III. The Government’s Assertions of Error 
 
A.  The Navy Did Not Identify Specific Costs For Non-Performed or Late-  
  Performed Work in FY16 
 
 In its motion for reconsideration, the government notes that one of its proposed 
findings of fact, Navy PFF No. 383, cited a Contactor Performance Assessment Rating 
System (CPAR) review that identified unstaffed positions and late-performed work (gov’t 
mot. at 3).  Specifically, this proposed finding of fact establishes that two unstaffed 
positions that were the subject of specific, enumerated dollar value deductions in FY15 
remained unstaffed into FY16.  We addressed this evidence in our decision noting that 
the evidence was not specific and that the government had not cited any probative 
evidence to link the non-performed and late-performed work in the CPAR to the 
withholding amount.  Chugach, 23-1 BCA ¶ 38,372 at 186,400.  Even with the 
government finally identifying a specific example of unperformed work (two positions 
that were already the subject of a deductive modification) we fail to see a rational 
relationship between these two positions that were unfilled for portions of the fiscal year, 
and the $1.6 million dollar retainage.  See, e.g., E. Mass. Prof. Standards Review Org., 
ASBCA No. 33639, 91-3 BCA ¶ 24,301 at 121,432 (requiring withholding to bear “some 
reasonable relationship” to the work not performed).2 
 
 Under these circumstances, we see no basis to revisit our findings on this issue. 
 
B.  We Did Not Hold That The Navy Could Not Withhold Payment For Late    
  Performed Work  
 
 The government’s second argument is that we improperly held that the Navy could 
not withhold payment for late-performed work (gov’t mot. at 3-6).  As noted above, 
Chugach argued in its Rule 11 brief that the government had not established a right to 
withhold a generalized 5% or 10% of the contract price (app. br. at 164).  It was 
incumbent upon the government to respond to this argument in its brief.  In its motion for 
reconsideration, the government asserts that the Board erred and now cites to 
Clause 9303(a)(2) (NAVFAC clause 5252.246-9303), providing that the government can 
assess liquidated damages; however, the government did not cite that provision in its 
post-hearing response brief, or its proposed findings of fact (gov’t mot. at 4-5).  In its 
response to the motion for reconsideration, Chugach identified this as being a new 
argument (app. resp. at 4-5).  In reply, the government digs deep into the Rule 4 file to 
find mentions of liquidated damages that were not cited in the Rule 11 briefing (gov’t 
 
2 The amount of the withholding is not specified in the Rule 11 briefing, but the 
contracting officer’s final decision references the amount as $1,663,634.80 (R4, 
tab 4-44 at GOV29305).  It is unclear whether this amount includes the $439,353 
in specified deductions in FY15 (R4, tab 3-26 at GOV18659-60).   

DOCUMENT FOR PUBLIC RELEASE                                                                                           
The decision issued on the date below is subject to an ASBCA Protective Order.          
This version has been approved for public release. 
 
5 
 
reply at 1).  We deny the government’s motion as it raises an argument that was not 
raised in the post-hearing briefing.  That said, our decision is based upon the record in 
this appeal and did not hold that the Navy was prohibited from withholding payment for 
late work.  Rather, we held that the Navy had not established entitlement to withhold 
payment. 
 
CONCLUSION 
 
 For the reasons stated above, the government’s motion for partial reconsideration 
is denied. 
 
 Dated:  October 24, 2023 
 
 
 
 
 
 
 
 
 
 
 
DAVID D’ALESSANDRIS 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 

DOCUMENT FOR PUBLIC RELEASE                                                                                           
The decision issued on the date below is subject to an ASBCA Protective Order.          
This version has been approved for public release. 
 
6 
 
 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. 61320, Appeal of Chugach 
Federal Solutions, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  October 24, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals