ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeals of - )  
 )  
Philips Lighting North American 
  Corporation 
)
) 
ASBCA Nos.  61769, 61873, 62391 
 )   
Under Contract No. CQ-12077 )  
    
APPEARANCES FOR THE APPELLANT: Franklin C. Turner, Esq. 
Ethan M. Brown, Esq. 
Cara A. Wulf, Esq. 
Alexander W. Major, Esq. 
Matthew Wright, Esq. 
    McCarter & English, LLP 
    Washington, DC 
 
APPEARANCES FOR THE GOVERNMENT: Jon B. Crocker, Esq. 
    Chief Counsel 
Washington Metropolitan Area 
  Transit Authority 
  Washington, DC 
 
Eric W. Leonard, Esq. 
Tracye Winfrey Howard, Esq. 
Attison L. Barnes, III, Esq. 
Douglas C. Dreier, Esq. 
George E. Petel, Esq. 
  Wiley Rein LLP 
  Washington, DC 
 
OPINION BY ADMINISTRATIVE JUDGE WOODROW 
 
The Washington Metropolitan Area Transit Authority (WMATA) moves for 
reconsideration of the Board’s July 30, 2020 Opinion,1 requesting that the Board 
reconsider two aspects of its opinion:  (1) the Board’s grant of partial summary judgment 
under Count II of Philips Lighting North America Corporation’s (Philips) complaint with 
respect to the payment provision in Contract No. CQ-12077’s (the Lighting Contract); 
and (2) the Board’s grant of Philips’ motion to strike WMATA’s affirmative defense of 
setoff associated with Philips’ alleged performance delay (resp. mot. at 1).  In addition to 
                                              
1 Philips Lighting North American Corp., ASBCA Nos. 61769, 61873, 62391, 20-1 BCA 
¶ 37,679. 

 
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opposing WMATA’s motion, Philips requests an order directing payment of money now 
due it and for the imposition of sanctions against WMATA for the alleged bad faith in its 
motion.  The motions brought by both parties are denied. 
 
I.  Standard of Review 
 
 In deciding a motion for reconsideration, we examine whether the motion is based 
upon newly discovered evidence, mistakes in our findings of fact, or errors of law.  
Precision Standard, Inc., ASBCA No. 58135, 16-1 BCA ¶ 36,504 at 177,860.  A motion 
for reconsideration does not provide the moving party the opportunity to reargue its 
position or to advance arguments that properly should have been presented in an earlier 
proceeding.  See Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014).  The moving 
party must show a compelling reason why the Board should modify its decision.  ADT 
Construction Group, Inc., ASBCA No. 55358, 14-1 BCA ¶ 35,508 at 174,041. 
 
II.  WMATA Fails to Demonstrate that the Board Erred in Interpreting the Payment 
 Provisions of the Contract 
 
In our earlier opinion, we held that the Lighting Contract permitted Philips to 
receive payment from WMATA of a portion of the savings that WMATA realized 
through the use of energy efficient lightings installed by Philips, even if the savings were 
not as high as the “guaranteed savings” referenced in the contract.  Philips Lighting, 20-1 
BCA ¶ 37,679 at 182,926-28.  WMATA contends that the Board’s interpretation of the 
payment provisions in the Lighting Contract is inconsistent with the parties’ original 
intent and does not respect the benefit and risk for which the parties bargained (resp. mot. 
at 4-7).  WMATA relies on selectively quoted deposition testimony and other extrinsic 
evidence to support its contention regarding the allocation of risk under the contract.  
Specifically, WMATA cites excerpts from several depositions to support its contention 
that “[a]t the time the Lighting Contract was made, Philips and WMATA shared the same 
understanding – the Guaranteed Energy Savings was a guarantee.”  (Resp. mot. at 4) 
 
This argument is flawed in several respects.  First, it inappropriately relies upon 
extrinsic evidence for the proposition that both parties intended the contract to guarantee a 
certain level of savings or forever forfeit payment if that guarantee was not met.  Second, 
the cited deposition testimony does not demonstrate that Philips shared WMATA’s 
understanding of the payment provisions – instead, the testimony reveals that Philips 
believed the energy savings to be an estimate.  Finally, WMATA’s insistence that the 
Board’s interpretation of the Lighting Contract will cause Philips to “receive a windfall of 
reward without risk” strains credulity (resp. mot. at 3).  Indeed, WMATA admits that the 
effect of its interpretation of the contract “seems extreme if considered in isolation” (resp. 
mot. at 5). 
 

 
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A.  WMATA Cannot Rely Upon Extrinsic Evidence to Create an Ambiguity 
 
In relying upon extrinsic evidence to support its position, WMATA attempts to 
have it both ways, arguing that the language of the contract unambiguously forecloses 
payment until the guaranteed savings are met (resp. mot. at 2), while simultaneously 
arguing that the language is ambiguous and requires consideration of extrinsic evidence 
regarding the parties’ intent (resp. mot. at 7, 9). 
 
Tellingly, WMATA did not contend in its response to Philips’ motion for partial 
summary judgment that the payment provisions were ambiguous (WMATA April 12, 
2019 partial summary judgment opp’n at 12-14).  A motion for reconsideration does not 
provide the moving party the opportunity to advance arguments that properly should have 
been presented in an earlier proceeding.  Dixon v. Shinseki, 741 F.3d at 1378. 
 
The cases WMATA relies upon to support its consideration of extrinsic evidence 
are inapposite.  For example, Metric Constructors, Inc. v. Nat’l Aeronautics & Space 
Admin., 169 F.3d 747, 752 (Fed. Cir. 1999), dealt with evidence of trade practice and 
custom in the interpretation of ambiguous contract terms.  Here, we did not find the 
contract language to be ambiguous, but instead interpreted in the most reasonable way 
possible so as to assign meaning to all provisions of the contract (op. at 15).  Indeed, 
WMATA has not presented any evidence of trade practice or custom to support its 
interpretation.  Moreover, WMATA cannot rely on extrinsic evidence to create an 
ambiguity where none exists.  Metric Constructors, 169 F.3d at 752; Coast Federal Bank, 
FSB v. United States, 323 F.3d 1035, 1040 (Fed. Cir. 2003) (en banc). 
 
WMATA’s reliance on Walsh Grp. Ventures, ASBCA No. 61222, 20-1 BCA 
¶ 37,615, and L.C. Gaskins Constr. Co., ASBCA No. 58550, 15-1 BCA ¶ 36,059, also is 
misplaced.  In both of these appeals, the Board denied summary judgment on the grounds 
that the contract language at issue was ambiguous and required the Board to resolve 
genuine issues of material fact. 
 
Perhaps realizing that its reliance on extrinsic evidence was inconsistent with its 
position that the Board erred in interpreting the plain language of the contract, WMATA 
backpedals in its reply brief and argues that its reliance on extrinsic evidence was 
necessary only to illustrate the flaws in the Board’s opinion (WMATA reply at 4).  
However, to the extent that WMATA contends that the Board erred in its interpretation of 
the plain language of the contract, reconsideration is not intended to provide a party with 
the opportunity to reargue an issue that already has been raised and decided.  Computer 
Sciences Corp., ASBCA Nos. 56168, 56169, 09-2 BCA ¶ 34,261 at 169,283. 
 

 
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B.  Cited Deposition Testimony Does Not Support WMATA’s Contentions 
 
Even if we were to consider extrinsic evidence of the parties’ intentions, the 
deposition testimony cited by WMATA does not support its contention that the parties 
shared an understanding of the payment provisions – instead, the testimony reveals that 
Philips believed the energy savings to be an estimate. 
 
For example, exhibit 1 to WMATA’s motion is a two-page excerpt from the 
deposition of William McShane, Philips’ Senior Manager for Sustainable Lighting.  
WMATA cites the deposition to support its claim that “Philips and WMATA shared the 
same understanding – the Guaranteed Energy Savings was a guarantee” (resp. mot. at 4).  
However, Mr. McShane’s testimony supports a different conclusion – that Philips 
understood the guaranteed energy savings to be an estimate.  When specifically asked 
whether the guaranteed energy savings was premised on a guarantee, Mr. McShane states: 
 
Q.  These tables talk about annual guaranteed energy savings 
and this contract was premised on a guarantee.  Is that 
correct? 
 
A.  It was about an estimated.  For the proposal, it was all 
estimated cost, because nobody had the true numbers. 
 
(Resp. mot., ex. 1 at 2) 
 
WMATA next cites to an email from Greg Jones, Philips’ project manager for the 
construction phase, to support the same contention – that the parties shared an understanding 
that the guaranteed energy level was a guarantee (resp. mot. at 4, citing ex. 2).  In this email, 
written prior to the completion of the construction phase, Mr. Jones states that the lighting 
system may have “an annual shortfall of about 1,372,429 kWh, or about 8.8% of our annual 
payments” (resp. mot., ex. 2).  This demonstrates that Mr. Jones’ contemporaneous 
understanding that Philips’ annual payments would be reduced in the event that the energy 
savings fell short of the guaranteed energy savings set forth in the contract.   
 
Finally, WMATA includes as exhibit 3 an excerpt from Mr. Jones’ deposition, in 
which he testified as a corporate designee.  In that deposition, Mr. Jones has this to say 
about the guaranteed energy savings set forth in Table 1 to the contract: 
 
Q.  Why do you say that the guaranteed savings were 
estimated? 
 
A.  Well, at the time of the proposal it was an estimate.  It 
was incorporated into the contract as a guarantee.  Not a 

 
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guarantee that had to be met in order to be paid, but it had to 
be met to be paid at a hundred percent. 
 
(Resp. mot., ex. 3 at 37) 
 
This colloquy demonstrates that Philips understood that annual payments would be 
reduced if the lighting system did not achieve the guaranteed level set forth in the 
contract. 
 
C.  WMATA’s Argument Regarding Risk Allocation Misses the Mark 
 
Finally, WMATA insists that the Board’s interpretation “reassigns risk to 
WMATA” (resp. mot. at 13).  But WMATA fails to explain exactly how it bears any risk 
under this contract:  it has a brand new lighting installation with zero maintenance costs, 
its energy costs have been dramatically reduced, and it has not paid an extra cent for any 
of it.  Indeed, if we were to adopt WMATA’s interpretation of the contract, it presumably 
would never have to pay Philips for the installation and maintenance of the lighting 
system (resp. mot. at 7). 
 
The Board’s interpretation of the payment provisions makes logical sense.  
Following the installation of the lighting system, WMATA’s energy costs were expected 
to decrease, and the savings that resulted would be paid – over a 10-year period – to 
Philips as compensation for the installation and maintenance of the lighting system.  
Contrary to WMATA’s contention, it is Philips that bears the risk of underperformance.  
If the lighting system saves less energy than expected, Philips would be paid less.  
Conversely, if the lighting system saved more energy than expected, Philips would 
receive no more than the guaranteed level of installment payments.  (Op. at 15) 
 
D.  WMATA’s Novel Argument Concerning Installment Payments 
 
WMATA introduces a new argument in its motion for reconsideration.  WMATA 
contends that the “Lighting Contract never describes how to calculate the amount that 
Philips should be compensated if it falls short of the Guaranteed Energy Savings because 
the Lighting Contract neither contemplates nor allows any payment in that event.”  (Resp. 
reply at 3)  WMATA contends that the “Lighting Contract does not contain any formula 
or any way to calculate the amount allegedly due to Philips” (resp. reply at 6).  It further 
contends that Philips improperly relies on deposition and expert testimony, rather than 
contractual language, to calculate the amount allegedly due to Philips in the event that the 
project savings is less than the scheduled installment payment (id.). 
 
Nothing prevented WMATA from making this argument in its initial response to 
Philips’ motion for summary judgment, and it is not appropriate to raise it here.  Dixon v. 
Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014) (“[m]otions for reconsideration do not 

 
6 
afford litigants to take a ‘second bite at the apple’ or to advance arguments that properly 
should have been presented in an earlier proceeding”).  We nonetheless address this novel 
argument and conclude that it is meritless. 
 
WMATA’s contention that the contract is silent on how to calculate amended 
installment payments is flatly contradicted by the language of the contract.  Paragraph 6, 
Payment Terms, states in relevant part:  
 
If the Project savings are less than the scheduled Installment 
payments, then the scheduled Installment payment(s) for that 
period are deemed amended to equal the actual Project 
savings obtained (the “Amended Installment Payments”). 
 
(Op. at 12) 
 
As we explained in our previous decision, the contract’s payment terms expressly 
contemplate variances in the semi-annual installment payment amounts (op. at 12-13).  
Specifically, we said: 
 
Paragraph 6.a. of the contract defines two distinct terms:  
“scheduled installment payment,” and “amended installment 
payment.”  The amount of each “scheduled installment 
payment” is set forth in “Table 1A: Option Annual 
Guaranteed Energy Savings and Total WMATA Costs – 
Philips” . . . .  
 
In contrast, an “amended installment payment” occurs only 
when the actual project savings for that period is less than the 
scheduled amount.   
 
(Op. at 12)  In that situation, and as expressly set forth in paragraph 6.a., the “amended” 
installment payment is based on the actual project savings obtained. 
 
WMATA attempts to create confusion surrounding the determination of the 
amended installment payments by contrasting installment payments (measured in dollars) 
with energy savings (measured in kWh).  WMATA contends that “Installment Payments” 
pertain to cost savings (measured in dollars), while “Actual Project/energy savings” 
pertain to energy levels (measured in kWh).  (Resp. mot. at 6-8) 
 
Under this novel argument, WMATA’s contractual payment obligations would 
depend on the utility rate – the price per kWh in effect during the period.  According to 
WMATA, even if the lighting system required less energy (measured in kWh) than the 
“guaranteed” level, WMATA would not be required to pay Philips if the “costs savings” 

 
7 
were below the “estimated energy cost to WMATA” set forth in the contract (Table 1A).  
Thus, according to WMATA, Philips could achieve the “guaranteed” level of energy 
savings and still not be owed payment.  (Resp. mot. at 7-8) 
 
WMATA’s contention that its payment obligations rely on a distinction between 
“Installment Payments” and “Actual Project/Energy Savings” ignores the fact that the 
parties relied on an agreed-upon imputed utility rate to calculate the “estimated energy 
cost to WMATA” in Table 1 of the contract. 
 
The conversion of energy savings (measured in kWh) and payments (measured in 
dollars) is achieved simply by multiplying the energy savings by the utility rate (measured 
in cents/kWh).  In this case, the utility rate readily can be calculated from Table 1A of the 
contract.  There is no hidden formula – just simple mathematics.  Pursuant to Table 1A of 
the contract, WMATA’s payment obligations are calculated by multiplying the estimated 
energy consumption by an agreed-upon utility rate (expressed in cents/kWh) (R4, tab 1 
at 5).  This imputed utility rate can be ascertained by dividing WMATA’s estimated Year 1 
energy costs of $685,659 by the estimated energy consumption of 7,376,876 kWh/year, 
which yields a rate of 9.29 cents/kWh (app. resp. at 18).  This rate is increased each year by 
a 2 percent inflation adjustment (R4, tab 1 at 5). 
 
The contract, therefore, contains all of the information necessary to calculate the 
amount of amended installment payments due to Philips. 
 
E.  WMATA Fails to Identify Any Mistakes in the Board’s Factual Findings 
 
In its motion for reconsideration, WMATA spends considerable time attacking 
Philips’ reliance on deposition testimony and documents produced during discovery 
(resp. reply at 5-6).  However, the Board’s decision did not rely upon deposition 
testimony or any form of extrinsic evidence to form its conclusions.  To the contrary, the 
Board based its decision on the plain language of the contract and upon undisputed 
factual allegations concerning Philips’ work on the lighting project and on the status of 
Philips’ unpaid invoices.  (Op. at 11-15) 
 
WMATA also contends that the Board erred in making certain factual findings and 
that its errors “created an ambiguity regarding the contract’s installment payment terms” 
(resp. mot. at 13).  We disagree.  The cited findings of fact are correct and supported by 
the language of the contract and WMATA’s pleadings even if they do not include 
extraneous details that WMATA wishes us to include to support its arguments. 
 
Specifically, finding 17 in the opinion states in pertinent part: 
 
After completion of the construction phase, Philips was to be 
paid by WMATA in twenty semi-annual installments over the 

 
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ten-year maintenance phase of the contract, from the savings 
achieved from the project under the contract at Part II, § 2 
¶ 6(a) (R4, tab 1 at 84-85; answer ¶ 21). 
 
See Philips Lighting, 20-1 BCA ¶ 37,679 at 182,923.  WMATA contends that the 
contract does not provide that Philips would be paid by WMATA “[a]fter completion of 
the construction phase,” but instead after final completion of the construction phase and 
after the guaranteed energy savings are verified through the measurement and verification 
plan (resp. mot. at 12).  We agree that the language WMATA cites is contained in the 
contract, but our decision not to quote the specific language does not make the factual 
finding any less true, nor does it impact our interpretation of the plain language of the 
contract. 
 
WMATA next challenges the Board’s finding 22, arguing that WMATA is not 
“required to pay Philips after receipt of a properly completed invoice” as stated in that 
finding (see Philips Lighting, 20-1 BCA ¶ 37,679 at 182,923-24); but rather, Philips is 
entitled to payment only if it performs its obligations under the contract and submits a 
properly completed invoice evidencing that performance (resp. br. at 12-13).  Again, 
finding 22 correctly summarizes the obligations set forth in paragraph 7 of the contract, 
which we quote at length in finding 23. 
 
WMATA’s efforts to find fault with the Board’s factual findings are nothing more 
than thinly veiled attempts to re-argue its position on contractual interpretation – 
specifically, that Philips is not entitled to payment unless the lighting system meets the 
guaranteed energy savings. 
 
III.  WMATA’s Claim for Liquidated Damages 
 
WMATA contends that the Board erred as a matter of law when it concluded that 
WMATA’s defense of delay is “tantamount to an affirmative claim for entitlement to 
liquidated damages” (Philips Lighting, 20-1 BCA ¶ 37,679 at 182,928).  In its motion for 
reconsideration, WMATA seeks to rebrand its delay claim as an “affirmative defense of 
offset for delay.”  WMATA then contends that an offset against damages is a “classic 
common-law defense.”  (Resp. mot. at 14; resp. reply br. at 10-12) 
 
As a threshold matter, we note that WMATA did not raise this argument in its 
response to Philips’ motion for summary judgment.  As we previously noted, a motion 
for reconsideration does not provide the moving party the opportunity to advance 
arguments that properly should have been presented in an earlier proceeding.  Dixon v. 
Shinseki, 741 F.3d at 1378. 
 
WMATA cannot hide from the procedural steps it has taken in this appeal, 
including its decision to withdraw its counterclaims and its statement that it “intends to 

 
9 
issue a contracting officer’s final decision with regard to any affirmative claims WMATA 
has against Philips under the contract” (see Withdrawal of Counterclaims & Request for 
Leave to File Amended Answer in ASBCA No. 61769 (Dec. 18, 2018)).  Despite stating 
more than two years ago that it would issue a final decision, WMATA has not yet done so. 
 
We agree that an offset can be asserted as an affirmative defense.  See Litton Sys., 
Inc., ASBCA No. 36976, 93-02 BCA ¶ 25,705 at 127,891-92 (appellant permitted to raise 
affirmative defense of offset for additional work it performed against government’s 
reduction in contract’s not-to-exceed price).  However, WMATA’s logic breaks down 
when it conflates its claim for liquidated damages with an offset.  An affirmative claim 
for liquidated damages is distinct from an offset in that it requires a contracting officer’s 
final decision before it can be raised in an appeal.  Sharman Co. v. United States, 2 F.3d 
1564, 1568-69 (Fed. Cir. 1993), overruled on other grounds by Reflectone, Inc. v. Dalton, 
60 F.3d 1572 (Fed. Cir. 1995) (en banc) (holding a final decision from the contracting 
officer on the government’s monetary claim was a prerequisite to jurisdiction over the 
claim).  Indeed, in Securiforce Int’l America, LLC v. United States, 879 F.3d 1354 (Fed. 
Cir. 2018), the Federal Circuit made the point that, while some affirmative defenses need 
no government claim as a prerequisite, those which seek payment of money do require a 
contracting officer’s decision.  See 879 F.3d at 1362 (citing Raytheon Co. v. United 
States, 747 F.3d 1341, 1368 (Fed. Cir. 2014).  This is true even when, as in this appeal, 
the contract is not subject to the Contract Disputes Act.  As we explained in our July 30, 
2020 opinion, the disputes clause of the Lighting Contract requires that “any dispute 
concerning a question of fact arising under or related to this Contract . . . shall be decided 
by the Contracting Officer, who shall reduce his/her decision to writing . . .” (op. at 7, 
SOF ¶ 25). 
 
WMATA does not mention the disputes clause in its motion for reconsideration, 
but instead relies on a series of cases to support its contention that a claim for liquidated 
damages can be raised as an affirmative defense of offset.  These cases do not support 
WMATA’s position. 
 
WMATA relies heavily upon Leal Petroleum Corp., ASBCA No. 36047, 92-1 
BCA ¶ 24,719, to support its contention that it may raise an affirmative defense without 
first filing a claim with the contracting officer.  Leal Petroleum involved a government 
claim for recoupment of advance payments.  Id. at 123,380.  As an affirmative defense, 
appellant contended that the government’s delay in making advance payments prevented 
it from obtaining sufficient crude oil to meet the contract’s obligations.  Id. at 123,379.  
The Board held that Leal was entitled to raise the government’s conduct as an affirmative 
defense, despite the fact that Leal had not filed a claim with the CO for any credit owed 
to it as a result of the government’s alleged conduct.  Id. at 123,381-82.  Although the 
facts surrounding the government’s conduct could have been the basis of a separate 
affirmative claim, Leal’s decision not to file a claim did not prevent it from raising the 
government’s conduct as an affirmative defense to entitlement.  Id. 

 
10 
 
Leal Petroleum offers no support to WMATA in this appeal.  Unlike the contractor 
in Leal, WMATA is seeking payment of liquidated damages in a sum certain amount 
based upon allegations of Philips’ delay in completing the lighting system.  Rather than 
merely rely upon the alleged delay as a defense against entitlement, WMATA seeks the 
payment of money (in the form of liquidated damages) based on the alleged delay.  The 
fact that an award of liquidated damages hypothetically may be offset against the quantum 
owed to Philips’ does not change the essential character of WMATA’s claim. 
 
WMATA also relies on DCX-CHOL, ASBCA Nos. 61636, 61637, 19-1 BCA 
¶ 37,394, for the proposition that a contractor need not assert a claim to the CO in order 
to assert a common law affirmative defense, unless the defense seeks a change in the 
terms of the contract (resp. mot. at 14).  DCX-CHOL involved an appeal of the 
government’s default termination.  19-1 BCA ¶ 37,394 at 181,799.  The Board granted 
the government’s motion to strike the contractor’s affirmative defenses of delay and 
constructive change on the grounds that such defenses require the contractor first to assert 
a claim to the CO.  Id. at 181,800.  DCX-CHOL offers no help to WMATA, because, like 
DCX-CHOL, WMATA is seeking to assert an affirmative defense of delay. 
 
WMATA’s attempt to fit its delay claim for liquidated damages into the category 
of common law defenses that do not seek a change in contract terms fails, because 
WMATA is seeking the payment of money based upon a showing that Philips was 
responsible for delays in the completion of the lighting system.  To prevail in its claim, 
WMATA must make a factual showing as to both entitlement and quantum for delay 
damages.  Pursuant to the terms of the Lighting Contract, such a claim necessarily 
involves questions of fact which must first be decided by the contracting officer (op. at 7, 
SOF ¶ 25). 
 
IV.  Whether the Lighting Contract Imposes Current Obligation to Make Amended 
Installment Payments 
 
In its opposition to WMATA’s motion for reconsideration, Philips seeks a ruling 
from the Board to “clarify for WMATA that the Board’s July 30, 2020 Order resolves the 
issue of WMATA’s payment obligations under the Count II and under the Lighting 
Contract as a matter of law,” and that WMATA must stop its withholding of payment to 
Philips for its outstanding invoices (app. reply at 33 (emphasis in original omitted)). 
 
According to Philips, WMATA has admitted, in sworn interrogatory answers and in 
its April 12, 2019 Opposition to Philips’ Motion for Partial Summary Judgment, that the 
lighting system is providing at least 91-92 percent of the guaranteed energy savings target 
of 15,615,828 kWh/year, based on WMATA’s unadjusted baseline (app. reply at 29-30).  
Therefore, Philips contends that it is entitled to immediate payment of at least $4,677,562 
(app. reply at 31). 

 
11 
 
In granting partial summary judgment as to the payment obligations of Count II of 
Philips’ complaint, we did not render judgment on the quantum owed to Philips.  As we 
stated in our July 30, 2020 Opinion, “the factual dispute regarding the calculation of the 
baseline and whether Philips has met the guaranteed savings level safely can be deferred 
to the quantum phase of this appeal.”  (Op. at 15)  Indeed, Philips’ prayer for relief in its 
Second Amended Complaint seeks payment for a different amount – $5,714,334.88 – 
than the amount it seeks here – $4,677,562 (app. reply at 31).  Philips explains that the 
lower amount is based on “WMATA’s admissions and interpreting the third-party energy 
consumption data in the light most favorable to WMATA,” and that it reserves its right to 
seek its full measure of damages under the Lighting Contract (id.).  Philips concedes that 
the final quantum will be determined at trial (app. reply at 31, n.14). 
 
Philips’ request for immediate payment of some amount of damages is based upon 
testimonial evidence, purported admissions in pleadings, and data provided by a third 
party.  We have had no opportunity to review or judge the credibility of any of these 
factual matters, and it is inappropriate to do so in the context of a motion for 
reconsideration of a ruling on a motion for partial summary judgment.  Indeed, Philips’ 
motion for partial summary judgment, which it filed before discovery commenced, stated 
that “Philips is neither seeking a determination nor submitting its evidence on the issue of 
damages quantum at this stage” (Philips February 28, 2019 mot. for partial summary 
judgment at 40).   
 
The factual bases for Philips’ damages calculations deserve to be fully explored 
with the benefit of testimony at a hearing.  Therefore, because there are significant factual 
matters that must be decided, we decline to issue a judgment on quantum at this stage of 
the appeal. 
 
V.  Whether Sanctions Should be Imposed on WMATA 
 
In its response to WMATA’s motion for reconsideration, Philips also asks that the 
Board consider imposing sanctions on WMATA pursuant to Board Rule 16 (app. reply 
at 20).  Philips cites a series of allegedly bad faith actions taken by WMATA’s counsel in 
this litigation, including WMATA’s decision to file “this meritless, dilatory Motion in a 
naked attempt to dodge the Board’s July 30, 2020 Order and avoid making interim 
amended installment payments to Philips” (app. reply at 22). 
 
Sanctions are not warranted in this situation.  First, this appeal is subject to the 
Board’s 1973 rules under the terms of the memorandum of understanding governing the 
Board’s consideration of WMATA appeals (Bd. corr. ltr. dtd. March 18, 2019).  As 

 
12 
WMATA notes, the Board’s 1973 rules do not contain an equivalent provision to Board 
Rule 16.2   
 
Additionally, even if we were to consider imposing sanctions pursuant to Rule 16 
of the Board’s 2014 rules, that rule provides for sanctions only “[i]f any party fails to 
obey an order issued by the Board, the Board may impose such sanctions as it considers 
necessary to the just and expeditious conduct of the appeal.”  Bd. Rule 16.  Here, Philips 
has failed to identify any specific order that WMATA has failed to follow.  To the extent 
that Philips contends that WMATA failed to obey the Board’s July 30, 2020 Order by 
filing a motion for reconsideration of that order, the Board’s 1973 rules expressly allow 
parties to file motions for reconsideration.  Br. Rule 29 (1973).  In the typical course of 
events, such as those presented here, if the motion lacks merit, the appropriate response is 
to deny the motion, not impose sanctions upon the filing party.  Moreover, even if 
sanctions were appropriate in a case of bad faith (a matter over which we express no 
opinion here), we find none in the present circumstances.  Therefore, we decline to 
impose sanctions on WMATA. 
 
 Dated:  March 11, 2021 
 
 
 
KENNETH D. WOODROW 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
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 
 
 
 
 
 
                                              
2 Because we decline to impose sanctions here, we express no opinion regarding whether 
the 1973 rules give us the discretion to impose sanctions where warranted. 


 
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 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 61769, 61873, 62391, 
Appeals of Philips Lighting North American Corporation, rendered in conformance with 
the Board’s Charter. 
 
 Dated:  March 11, 2021 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals