Exceed Resources, Inc.
Docket: ASBCA 61618
Decision date: 2020-11-02

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of -- ) 
 ) 
Exceed Resources, Inc. ) 
 ) 
   ) 
 
 
APPEARANCE FOR THE APPELLANT: Mr. Celsius Rebello 
  Director Government Services   
  
APPEARANCES FOR THE GOVERNMENT: Scott W. Barber, Esq. 
  NASA Chief Trial Attorney 
Warnecke Miller, Esq. 
Vincent A. Salgado, Esq. 
  Trial Attorneys 
  NASA Headquarters 
  Washington, DC  
 
OPINION BY ADMINISTRATIVE JUDGE O’CONNELL 
 
 Appellant, Exceed Resources, Inc. (Exceed), has filed a motion for 
reconsideration of the Board’s June 11, 2020, opinion granting the National 
Aeronautics and Space Administration (NASA) partial summary judgment.  The 
Board denies the motion. 
 
DECISION 
 
 “Motions 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 v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 
2014) (citations omitted).  But if we made mistakes in our findings of fact or 
conclusions of law, or by failing to consider an appropriate matter, reconsideration 
may be appropriate.  Ford Lumber & Bldg. Supply, Inc., ASBCA No. 61618, 20-1 
BCA ¶ 37,487 at 182,088. 
 
 Exceed raises a variety of arguments in its motion.  We address them briefly. 
 
 In the Board’s decision, we discussed Exceed’s contention that the contracting 
officer created different versions of the contract that were of various lengths.  Exceed 
Resources, Inc., ASBCA No. 61652, 20-1 BCA ¶ 37,634 at 182,719-21.  In its motion 
for reconsideration, Exceed places a great deal of emphasis on two points:  1) the 
ASBCA No.   61652 
Under Contract No.  NNJ15RA22B 

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contracting officer “forged” Exceed’s signature on the contracts (app. mot. at 3); and 
2) that there is a dispute as to the type of contract formed by the parties.  Neither of 
these allegations meets the standards for reconsideration of our earlier decision.  As to 
the former:  this allegation brings to mind some questions, chief among them:  why 
would any contractor begin work on a contract if its signature had been forged?  
Government officials are presumed to act in good faith and an allegation that the 
contracting officer forged appellant’s signature on the contract but it began work 
anyway is so inherently implausible that it does not merit a hearing.  Exceed 
Resources, Inc., 20-1 BCA ¶ 37,634 at 182,722; Am-Pro Protective Agency, Inc. v. 
United States, 281 F.3d 1234, 1238-39, 1241-43 (Fed. Cir. 2002).  
 
 With respect to the type of contract formed, Exceed contends, among other 
things, that NASA “was using a Task Order and masquerading it as an IDIQ 
[indefinite delivery, indefinite quantity] contract . . .”1 but also contends later in its 
brief that the contract was a definite quantity contract (app. mot. at 9, 23).  While 
Exceed discusses contract formation issues at some length (app. mot. at 8-29), it has 
lost sight of our ruling.  As we explained, entitlement to anticipatory profits is quite 
difficult to prove.  Under the specific facts of this appeal, where Exceed proposed the 
no cost termination2 and then signed a release of claims with no exception for 
anticipatory profits, there is simply no issue that warrants an evidentiary hearing.  
Exceed Resources, Inc., 20-1 BCA ¶ 37,634 at 182,719-20.  This analysis does not 
change if the specific contract terminated was a task order, an IDIQ contract, or a 
definite quantity contract. 
 
 Exceed spends much of the remainder of its brief on the contracting officer’s 
insertion of $800,000 in the “Total Award Amount” box in the contract as awarded. 
Exceed Resources, Inc., 20-1 BCA ¶ 37,634 at 182,719.  Again, this allegation does 
not present a basis for reconsideration.  Exceed admits, as it must, that this amount is 
above the $750,000 minimum contract amount (app. mot. at 28).  As discussed in our 
opinion (20-1 BCA ¶ 37,634 at 182,720-22), Exceed tried to avoid the effect of the 
signed release by raising economic duress.  It contended that the contracting officer 
had essentially tricked Exceed into performing all of the contract work for just 
$800,000, which would have caused it to incur a loss of over $45 million, forcing it to 
                                              
1 An IDIQ contract is a contract for an indefinite quantity, within stated limits, of 
supplies or services during a fixed period, upon which the government places 
task or delivery orders for individual requirements.  FAR 16.504(a).  The 
contract at issue identified itself as an IDIQ contract with a phase in period 
from June 18 to July 31, 2015, and provided for the issuance of task orders 
starting on August 2, 2015 (R4, tab 1 at 6, 227). 
2 Exceed admits at page nine of its motion that it proposed the termination but brushes 
this off as “moot.” 

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“involuntarily accept the termination”3 (app. opp’n to gov’t mot. for part. sum. judg. at 
26-29).  The board rejected this contention because the limitation of funds clause 
prevents contractors from being required to work beyond the amount of funding.  
Exceed Resources, Inc., 20-1 BCA ¶ 37,634 at 182,721-22. 
 
 Exceed abandons this argument in its motion and tries a different tack.  It now 
contends that because the limitation of funds clause provided for $800,000 in funding 
through August 29, 2015 (R4, tab 1 at 30), the contracting officer reduced the post 
phase-in work from 58 months, to just 29 days.  It contends it would have had to hire 
130 workers, have them work for 29 days, and then “fire them.”  (App. mot. at 8, 40)  
This would have been less duress-like than the $45 million alleged loss of its original 
argument and, in any event, it is simply contrary to the record before us.  The contract 
expiration date remained at all times May 31, 2020 (R4, tab 1 at 5, 227).  When NASA 
provided incremental funding to the contract through August 29, 2015, this had no 
effect on the contract term. 
 
CONCLUSION 
 
 Exceed’s motion for reconsideration is denied. 
 
Dated:  November 2, 2020 
 
 
 
 
 
 
 
 
(Signatures continued) 
 
                                              
3 As the Board observed in the opinion, the contracting officer explained to Exceed on 
June 22, 2015, that the $800,000 was just for phase in and the first month of 
work.  Exceed Resources, Inc., 20-1 BCA ¶ 37,634 at 182,721 (citing R4, tab 2 
at 313).  Further review of the record indicates that NASA also told Exceed at a 
post-award conference on June 16, 2015, that the contract would be 
incrementally funded (R4, tab 4 at 984, 1000). 
 
 
 
MICHAEL N. O’CONNELL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 


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I concur 
 
 
 
 I concur 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 J. REID PROUTY 
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. 61652, Appeal of Exceed 
Resources, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  November 2, 2020 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals