MOTION FOR RECONSIDERATION GRANTED IN PART: February 2, 2017
CBCA 4410
THINKGLOBAL INC.,
                                                         Appellant,
v.
DEPARTMENT OF COMMERCE,
                                                             Respondent.
Justin E. Proper and Sam Dalke of White and Williams LLP, Philadelphia, PA,
counsel for Appellant.
Mark Langstein, Office of the General Counsel, Department of Commerce,
Washington, DC, counsel for Respondent.
Before Board Judges SHERIDAN, LESTER, and CHADWICK.
CHADWICK, Board Judge.
ThinkGlobal, Inc. (TGI) timely sought reconsideration of our decision granting in part
the motion of the respondent, Department of Commerce (DOC), to dismiss the appeal for
failure to state a claim on which we could grant relief.  ThinkGlobal Inc. v. Department of
Commerce, CBCA 4410, 16-1 BCA ¶ 36,489.  We agree in part with TGI as to one of the
issues it raises, involving the statute of limitations.  We therefore grant the motion for
reconsideration to that extent and otherwise deny it.
Background
Familiarity with our prior decision is assumed.  DOC awarded TGI two successive no-
cost contracts, in 2004 and 2009, to publish an advertising catalog called Commercial News
USA (CNUSA) for distribution to agency commercial posts overseas.  DOC ordered TGI to

CBCA 4410 2
stop work on the 2009 contract in July 2013.  “It is unclear in the record” whether TGI was
performing a validly exercised contract option at that time.  ThinkGlobal, 16-1 BCA at
177,796.  TGI submitted a certified claim on July 25, 2014, for $8,678,475 in damages
arising from alleged breaches by DOC of both contracts.  TGI later appealed from a deemed
denial of that claim and filed a complaint containing three counts, alleging that DOC
(1) breached the express terms of the 2004 and 2009 contracts, (2) breached implied
covenants under both contracts, and (3) engaged in “unfair competition” under both
contracts.  Among the alleged breaches of the 2009 contract were that DOC was dilatory in
responding to Freedom of Information Act (FOIA) requests and abused its discretion or
showed bad faith in terminating the contract.
DOC moved to dismiss the appeal in its entirety for, alternatively, lack of jurisdiction,
failure to state a claim under the contracts, or untimeliness.  We concluded that we have
jurisdiction but found, as relevant here, that all of TGI’s claims under the 2004 contract were
untimely, and that TGI’s complaint failed to state claims under the 2009 contract for breaches
relating to TGI’s FOIA requests, the 2013 termination, or unfair competition.  TGI argues
in its motion for reconsideration that we (1) “may have misinterpreted the continu[ing]
claims doctrine” in dismissing TGI’s claims under the 2004 contract, (2) overlooked some
well-pled allegations relating to the termination of the 2009 contract, and (3) erred in
dismissing TGI’s unfair competition claim.  DOC opposes the motion.
Discussion
I. Standard of Review
The Board grants reconsideration for the limited reasons customarily recognized by
courts and other tribunals, see Oregon Woods, Inc. v. Department of the Interior, CBCA
1072-R, 09-1 BCA ¶ 34,063, at 168,431-32, aff’d, 355 F. App’x 403 (Fed. Cir. 2009),
including when we are persuaded that we construed a party’s allegations too narrowly in
granting a motion to dismiss.  E.g., Bannum, Inc. v. Department of Justice, CBCA 2686-R,
12-1 BCA ¶ 35,022.  Movants should as a rule avoid both “[a]rguments already made,”
Board Rule 26 (48 CFR 6101.26 (2015)), and “arguments [that] could have been made on
the basis of the documents in the record but were not.”  Bryan Concrete & Excavation, Inc.
v. Department of Veterans Affairs, CBCA 2882-R, 16-1 BCA ¶ 36,549, at 178,031. 
II. Timeliness of Claims Under the 2004 Contract
Because the Contract Disputes Act requires a claim to be presented to the contracting
officer within six years of its accrual, 41 U.S.C. § 7103(a)(4)(A) (2012), the key date for
timeliness here is July 25, 2008, six years before TGI submitted its certified claim.  Claims

CBCA 4410 3
that DOC can show accrued before that date—about fourteen months before the 2004
contract expired—are barred.  See ThinkGlobal, 16-1 BCA at 177,792.  In our original
decision, we noted that the complaint alleges that DOC failed to provide several kinds of
information that section 4 of the 2004 contract said DOC would provide “upon contract
award” or “immediately upon contract signing.”  We held that “claims relating to DOC’s
failure to provide information required by section 4 should have been known, and therefore
accrued,” at or around contract award in April 2004.  We dismissed all claims under the 2004
contract as untimely on that basis.  We noted that TGI argued that “claims under the 2004
contract were continuing and did not accrue until March 11, 2011,” when TGI received
documents from DOC pursuant to a FOIA request, but we rejected that argument on the
grounds that TGI was on notice of the alleged breaches “[w]hen DOC did not provide the
information upon contract award or shortly after contract signing.”  Id. at 177,792.
TGI argues on reconsideration that the “2004 contract is inherently susceptible to
being broken down into new and distinct events,” and that its complaint alleged “specific
instances of new breaches that were unrelated to the DOC’s failure to provide documents
after contract signing.”  TGI argues that the complaint alleged that the agency (1) held no
“semi-annual reviews” of the CNUSA program with TGI as provided in the 2004 contract;
(2) failed to distribute “at least six issues of the [catalog]” at overseas commercial posts
within thirty days of receipt, as required by the 2004 contract, between August 2008 and
August 2009; and (3) failed to provide “current” information relevant to the contract, a
requirement that TGI argues “does not have a temporal limitation.”  
The second enumerated allegation does not, in fact, appear in TGI’s complaint. 
Neither the complaint nor, importantly, the certified claim alleges that DOC failed to
distribute CNUSA at foreign posts within thirty days of receipt between July 25, 2008, and
the expiration of the 2004 contract.  The third allegation appears in the complaint but fails
to establish a continuing claim that could overcome the agency’s statute of limitations
defense, because no language in the 2004 contract imposed upon DOC a recurring duty to
provide “current” information to TGI, after the information that DOC agreed to provide upon
or shortly after contract award.  Cf. Ariadne Financial Services Pty. Ltd. v. United States, 133
F.3d 874, 879 (Fed. Cir. 1998) (finding no continuing claim where “the government’s
continued refusal to allow the use of supervisory goodwill flow[ed] from its original
repudiation”); Caraballo v. United States, 124 Fed. Cl. 741, 749 (2016) (“[T]he continuing
claims doctrine applies to cases where recurring [performance is] required.”).
We grant reconsideration as to the timeliness of TGI’s claim based on the lack of
semi-annual reviews.  DOC did not demonstrate in its motion to dismiss that we could not
grant relief under the 2004 contract for that particular alleged breach.  DOC’s arguments on
the merits focused on the no-cost nature of the 2004 and 2009 contracts and did not

CBCA 4410 4
specifically address provisions governing performance.  See ThinkGlobal, 16-1 BCA at
177,794.  Therefore, we leave for another time such questions as whether the 2004 contract
obligated (rather than simply permitted) the agency to conduct semi-annual reviews, and, if
so, whether the failure to conduct reviews was a material contract change or caused any
damages.  It suffices to find that if the 2004 contract required DOC to conduct semi-annual
reviews, this would have been a continuing (semi-annual) duty under the contract.  TGI’s
certified claim and complaint colorably allege that no semi-annual reviews occurred in the
final year of the 2004 contract, which was after July 25, 2008.  To that limited extent, this
claim under the 2004 contract would have accrued less than six years before TGI submitted
its certified claim and is not time barred.
III. Termination of the 2009 Contract
As noted, it is unclear at this point whether DOC exercised the option under the 2009
contract under which TGI alleges it was performing when it was told to stop work in July
2013.  We held that TGI failed to state a claim on the merits for bad faith or abuse of
discretion by DOC in not exercising a contract option, but we allowed further development
of “the record on whether DOC should be viewed as having exercised any of the 2009
contract options at issue here (other than the first-year option), whether DOC permitted
performance of [the] contract after it had expired, and what remedies and damages, if any,
are available to TGI for that.”  ThinkGlobal, 16-1 BCA at 177,796.  In addition to repeating
arguments previously made (which we reject for that reason), TGI argues that its complaint
“clearly avers that the options [under the 2009 contract] were exercised,” and that it should
be able to “pursue [a] theory” that DOC terminated the contract for convenience in bad faith. 
We have held that TGI can try to prove that DOC exercised the options.  We deny
reconsideration with respect to whether TGI can pursue a bad-faith-termination theory.  The
complaint does not allege facts that, if proven, would plausibly support relief on such a
claim.  See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Sigma Services, Inc. v. Department
of Housing & Urban Development, CBCA 2704, 12-2 BCA ¶ 35,173, at 172,591.  Instead,
the complaint simply assigns conclusory labels such as “bad faith” and “wrongful” to the
agency’s conduct in stopping TGI’s work, yet alleges, “To date, it is still unknown why the
Government abruptly terminated [the] CNUSA . . . program.”  TGI has colorably alleged a
sloppy end to the 2009 contract.  This is a far cry from alleging facts supporting an inference
that DOC lacked sound policy or business reasons to stop the work in 2013, or that DOC
acted with a specific intent to harm or “get rid of” TGI, the indicia of bad faith.  See V.I.C.
Enterprises, Inc. v. Department of Veterans Affairs, CBCA 1598, 09-2 BCA ¶ 34,284, at
169,363-64 (citing Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1240
(Fed. Cir. 2002)).  TGI may pursue relief for the option years along the lines we laid out.

CBCA 4410 5
IV. Unfair Competition
The complaint gathers a number of TGI’s general criticisms of DOC’s conduct, many
of them alleged on “information and belief,” into an “unfair competition” count.  We focused
on TGI’s allegations that DOC “hinder[ed]” TGI’s “efforts to leverage” two other
government programs, and that DOC “refused to . . . open[] a discussion with . . . official
strategic partners in regard to the . . . CNUSA program,” because those allegations seemed
to be related to the contract terms but unrelated to the FOIA allegations, which we addressed
separately.  We dismissed this count for failure to state a claim because the 2009 contract
contained no “language that could be interpreted as requiring DOC to provide ‘leverage’ for
TGI” or to introduce TGI to other companies.  ThinkGlobal, 16-1 BCA at 177,796-97.  
TGI argues that we “improperly narrowed its claim.”  It says the claim is actually that
“DOC breached its contractual obligations to the Appellant because the DOC benefited
financially from other fee-generating DOC programs that were in direct competition with the
CNUSA program—to the detriment of Appellant.”  This new statement of the claim has to
do with DOC’s motives, rather than its actionable conduct.  Moreover, the complaint alleges
no facts supporting an inference that either DOC or “fee-generating DOC programs”
“competed” with TGI to perform the contract work (publishing the CNUSA catalog), and
TGI cites no contract language that would bar such competition.  TGI notes that section 2 of
the 2009 contract “refers to” Office of Management and Budget circular A-25, and that this
circular relates in general to public-private “competition.”  The reference in the contract,
however, was solely to the circular’s “mandate for full cost recovery” by the Government
when providing services to private entities, and did not purport to impose any enforceable
obligations on the agency.  We deny reconsideration of our dismissal of this count.
Decision
The motion for reconsideration is GRANTED IN PART.  TGI’s claim that DOC
breached the 2004 contract by not holding semi-annual reviews after July 25, 2008, is not
time barred.  The motion is otherwise denied.
_________________________________
KYLE CHADWICK
Board Judge

CBCA 4410 6
We concur:
_______________________________ _________________________________
PATRICIA J. SHERIDAN HAROLD D. LESTER, JR.
Board Judge Board Judge