ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Avant Assessment, LLC ) 
) 
Under Contract No. W9124N-10-C-0109 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58867 
Mark G. Jackson, Esq. 
Stowell B. Holcomb, Esq. 
Jackson Rosenfield LLP 
Seattle, WA 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
CPT Harry M. Parent III, JA 
Kyle E. Chadwick, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
ON THE GOVERNMENT'S MOTION FOR RECONSIDERATION 
On 10 September 2015, the government timely moved for reconsideration of 
the Board's 11August2015 decision granting appellant's motion for summary 
judgment and sustaining the appeal. Avant Assessment, LLC, ASBCA No. 58867, 
15-1BCA~36,067. Appellant, Avant Assessment, LLC (Avant), moved for summary 
judgment that its contract for the provision of 3,300 foreign language test items had 
been improperly terminated for default. In response, the only justification that the 
government offered for the termination was that Avant "fail[ ed] to deliver the required 
number" - 3,300- "of acceptable test items" (gov't resp. at 4). We rejected that 
argument, finding that the parties had entered into Modification No. P00005, which 
"descoped" from the contract any unaccepted items; therefore, "delivering fewer than 
3,300 acceptable items was not cause for terminating the contract." Avant Assessment, 
15-1BCA~36,067 at 176,129. 
Where litigants have once battled for a decision, they should neither be 
required, nor without good reason permitted, to battle for it again. See Dixon v. 
Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014). 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. Id. On 
reconsideration, the government advances 
the following justification for the 
termination of the contract: 

Modification No. P00005 required appellant (Avant) to 
submit specified numbers of test items per "node" 
(language and skill level). Appellant under-delivered for 
some nodes and over-delivered for others. There is a direct 
link between appellant's under-deliveries and the 
126 items that the contracting officer found Avant was 
"short," and that were subsequently descoped. 
(Gov't mot. at 1) The government continues: 
(Id.) 
[T]he "descoping" provision of Modification No. P00005 
may have reduced the required number of "acceptable" 
items required, but it did not relieve appellant of its 
obligation to comply with the agreed delivery schedule. In 
short, if an item was never delivered, it was not descoped 
from the contract. 
Essentially, the government appears to be arguing that Avant did not deliver a 
required number of test items, regardless of their acceptability. That is an argument 
not advanced in response to the motion for summary judgment. To be sure, the 
government's response to the summary judgment motion discussed nodes, but, as the 
following excerpt from the response shows, that was in support of the argument that 
Avant had not delivered 3,300 acceptable test items: 
Appellant's contention that the government agreed 
to move overages from some nodes on [the contract] to 
shortages in other nodes as a way for appellant to reach the 
required number of 3, 300 acceptable test items under this 
contract is similarly disputed. 
(Gov't resp. at 4) (Emphasis added) 
In support of its current argument, the government offers what it characterizes as 
"new" evidence in the form of deposition testimony given on 4 August 2015 by "an 
Avant manager"; the government also points to the contracting officer's 26 June .2013 
final decision, and to findings of fact that Avant proposed in support of its summary 
judgment motion on 21 July 2015 (gov't mot. at 1-2; R4, tab 7; app. mot. at 9, ~~ 47-48). 
Of course, the latter two items are not new, and the deposition testimony appears to offer 
the deponent's understanding of how Modification No. P00005 would operate. 
However, that is a matter of contract interpretation, an issue of law that - particularly 
because there is no suggestion that Modification No. P00005 is ambiguous - does not 
2 

require parole evidence to resolve. See VLOX, LLC, ASBCA No. 59305 et al., 
15-1BCA~36,055 at 176,075. That means that the government did not need the 
deposition testimony to advance the argument it now advances; it could have advanced 
that argument in its response to the summary judgment motion. For whatever reason, it 
did not; not even the government suggests otherwise. For all these reasons, the motion 
for reconsideration is denied. 
Dated: 14 October 2015 
I 
concur 
~# N. sIBMPLE 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
-c~ Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
~·· 
RICHARD SHACKLEFORD 
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. 58867, Appeal of Avant 
Assessment, LLC, rendered in conformance with the Board's Charter. 
Dated: 
3 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals