APPELLANT’S MOTION FOR SUMMARY RELIEF GRANTED IN PART;
RESPONDENT’S MOTION FOR SUMMARY RELIEF GRANTED IN PART:
September 3, 2015
CBCA 3491, 3636
A-SON’S CONSTRUCTION, INC.,
Appellant,
v.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
Respondent.
John G. Bravacos, Paoli, PA, counsel for Appellant.
Blythe I. Rodgers, Jonathan E. English, and Todd P. Maiberger, Office of the General
Counsel, Department of Housing and Urban Development, Washington, DC, counsel for
Respondent.
Before Board Judges HYATT, POLLACK, and LESTER.
LESTER, Board Judge.
These consolidated appeals involve two separate contracts, with virtually identical
terms, between appellant, A-Son’s Construction, Inc. (Asons), and respondent, the
Department of Housing and Urban Development (HUD).  Through delivery orders under
these contracts, Asons was to provide property management services for a continuously
changing portfolio of  HUD-owned real estate properties.  Both Asons and HUD have filed
motions for summary relief, each arguing that, under the proper interpretation of the terms
of the two contracts, it should prevail in the parties’ dispute over HUD’s ability to prorate

CBCA 3491, 3636 2
monthly fee payments when HUD did not require services for a particular property for a full
calendar month.  To resolve the dispute, we have to decide two related issues:  (1) whether
the term “monthly” in a portion of the contracts necessarily means a “calendar month” that
commences on the first day of one of the twelve calendar months, and (2) whether HUD is
otherwise entitled to prorate Asons’ “monthly” fees under the terms of the contracts for less
than a period of one month (or a period of twenty-eight to thirty-one days, depending on the
month).  For the reasons explained below, we grant a portion of each party’s motion for
summary relief on the second issue, but deny both parties’ summary relief motions on the
first issue.
Background
I. The Single-Family Mortgage Insurance Program
HUD, through one of its organizational units, the Federal Housing Administration
(FHA), administers the single-family mortgage insurance program.  See Appeal File, Exhibit
64 at R-001750.1  It insures approved lenders against the risk of loss on mortgages obtained
with FHA financing.  Id.  In the event of a default on an FHA-insured loan, the lender
(1) acquires title to the property by foreclosure, a deed in lieu of foreclosure, or another
acquisition method; (2) files a claim for insurance benefits; and (3) conveys the property to
HUD.  Id.  HUD becomes the property owner through the foreclosures – creating what are
termed HUD “Real Estate Owned” (REO) properties – and then offers the REO properties
for sale to recover the loss on the foreclosure claim.  Because of the large number of property
acquisitions through the mortgage insurance program and through other programs, HUD has
a need to manage and sell a sizable inventory of single-family REO homes in a manner that
promotes home ownership and, at the same time, maximizes return to the FHA insurance
fund.  Id.
Since 1999, HUD has outsourced the disposition of its REO properties through
competitively bid contracts to Marketing and Management (M&M) vendors.  See Exhibit 64
at R-001750.  As the second generation of these M&M contracts – known as the “M&M II”
contracts – was due to expire in 2009, HUD prepared to compete the third generation of its
REO marketing and management needs, a procurement to which both HUD and the appellant
refer as “M&M III.”  Although the M&M II contracts had encompassed three different
activities – property management, asset management, and mortgagee compliance services –
under a single contract, see Exhibit 24 at R-000549 to -000550, HUD separated these three
1  All exhibits referenced in this decision are found in the appeal file, unless otherwise
noted.

CBCA 3491, 3636 3
functions in its M&M III contracts, awarding separate regional contracts for property
management (or “Field Service Management” (FSM)), separate regional contracts for asset
management, and a single nationwide contract for mortgagee compliance services.
II. The Terms Of Asons’ FSM Contracts
The issues in these consolidated cases relate to the M&M III contracts concerning
FSM services.  On September 16, 2009, HUD issued solicitation no. R-OPC-23447, through
which it expected to award approximately thirty-five separate Indefinite Quantity/Fixed Unit
Rate contracts throughout the country for the property management services that it required. 
Exhibit 32 at R-000840.  The solicitation described the property maintenance and
preservation services that the contract awardees would have to provide as including
“inspecting the property, securing the property, performing cosmetic enhancements/repairs,
and providing on-going maintenance.”  Id. at R-000841 (§ B.1); see id. at R-000960 to
-000983 (Performance Work Statement (PWS) requirements).
On June 1, 2010, HUD awarded numerous regional FSM services contracts to various
vendors, two of which went to Asons:  contract no. C-OPC-23653 for Geographic Region
1P (encompassing Michigan) and contract no. C-OPC-23682 for Geographic Region 3P
(including states in the New England area).  Exhibit 1 at R-000001, -000066; Exhibit 47 at
R-001362, -001426.  Both of the Indefinite Quantity/Fixed Unit Rate contracts were for a
base period of one year, with four one-year options.  Exhibit 1 at R-000021 (§ F.2); Exhibit
47 at R-001381 (same).
Under the terms of Asons’ contracts, the number of REO properties that Asons would
manage at any given time was not stagnant.  Because of the nature of real estate foreclosures,
properties would regularly come into HUD’s possession at varying times, and disposition of
those properties would occur at varying times as they were sold or transferred.  Accordingly,
Asons could be assigned a property to add to its management portfolio at any time during a
calendar month, and that property could leave Asons’ oversight portfolio at any time,
depending on when HUD acquired and disposed of the property.  The number of properties
under Asons’ property management responsibility would vary over the life of the contract,
depending upon the number of REO properties that HUD was holding.
HUD would order supplies and services from Asons – that is, it would add a property
to Asons’ management responsibilities – “by issuance of delivery orders or task orders
[against each of the Contract Line Item Numbers (CLINs) in the contract] by the individuals
or activities designated in the Schedule,” and delivery and task orders could be issued at any
time from “date of award through 12 months” (the conclusion of the one-year contract
period).  Exhibit 1 at R-000021 (Contract § F.3(a)/FAR 52-216.8(a), Ordering (Oct 1995));

CBCA 3491, 3636 4
see Exhibit 47 at R-001381 (same).  From a logistical standpoint, Asons was to receive notice
of assignments or orders through a web-based Internet portal, P260, “or as directed by the
GTR [Government Technical Representative].”  Id. at R-001408 (§ I.3(a), Ordering Process). 
All delivery/task orders would be “subject to the terms and conditions of this contract.”  Id.
at R-001381 (§ F.3(b)/FAR 52-216.8(b)); see id. at R-001408 (§ I.3(b), Ordering Process: 
“[a]ll assignments/orders are subject to the terms and conditions of this contract”).  As the
contracts indicated, “[d]elivery or performance [would] be made only as authorized by orders
issued in accordance with the Ordering clause.”  Exhibit 1 at R-000048 (§ I.4/FAR
52.216-22, Indefinite Quantities (Oct 1995)) (emphasis added); see Exhibit 47 at R-001408
(same).
Asons was to receive specific fees for each REO property that it was assigned to
manage during the time period that HUD held that property.  The contracts provided that
HUD would pay Asons “as full compensation for all work required, performed and accepted
under this contract . . . the fixed-unit-rate for the applicable CLINs and applicable periods”
identified in section B of the contracts.  Exhibit 1 at R-000023 (§ G.2); Exhibit 47 at
R-001383 (same).  The contractor was to submit “monthly invoices for payment of fixed-
price services,” Exhibit 1 at R-000024 & Exhibit 47 at R-001384 (§ G.4, Invoicing
Procedures), billing for the fee as follows:
Fixed-Unit Rate Services – The following types of items, if applicable, may
be included on a single invoice:
1. PROPERTY MANAGEMENT FEE – a fixed fee per property for all
requirements as stated in Section B.4, “PRICING STRUCTURE”.
2. VACANT LOT MANAGEMENT FEE – a fixed fee per property for
all requirements as stated in Section B.4, “PRICING STRUCTURE”.
3. CUSTODIAL FEE – a fixed fee per property for all requirements as
stated in B.4, “PRICING STRUCTURE”.  The Contractor shall invoice
monthly beginning with the month the property is assigned.
Exhibit 1 at R-000025; Exhibit 47 at R-001385.
In turn, section B.4 of the contract, titled “Revised Pricing Structure,” listed, in a basic
chart form, the specific categories of property management services that HUD would require
and the applicable fee for each service, assigning each category a different CLIN and
identifying (1) the estimated quantity of services under each CLIN, (2) the estimated units
of each service that the agency would order, and (3) the total price for each unit.  See Exhibit

CBCA 3491, 3636 5
1 at R-000007; Exhibit 47 at R-001367.  The chart in section B.4 set forth this information
for the “Base Year Period,” as well as for each of the four one-year option periods.  Exhibit 1
at R-000007 to -000014; Exhibit 47 at R-001367 to -001374.
Five of the CLINs in section B.4 – CLINs 0001, 0002, 0003, 0004, and 0008 –
covered pre-conveyance and initial inspections for each property that the contractor was
required to manage.2  See Exhibit 1 at R-000007; Exhibit 47 at R-001367.  Through these
“initial services,” the contractor had to “complete a comprehensive (thorough and complete)
property inspection” for each property, “to include conveyance condition items, initial
inspection items, systems check, Lead Based Paint (LBP) considerations and any other items
HUD requires.”  Exhibit 47 at R-001503.  Pursuant to section B.4, HUD would order these
initial services only one time for each assigned property.  See, e.g., id. at R-001367.
After the contractor completed these initial services for any given assigned property,
the property would move to CLINs 0005, 0006, or 0007 – the CLINs associated with
continuing property management and maintenance:
• CLIN 0005 provided the contractor with a “fee” to cover continuing property
management services for “HUD-owned vacant” properties acquired by HUD
by reason of payment of an insurance claim or another acquisition method. 
Exhibit 47 at R-001367, -001485; see Exhibit 1 at R-000125.  Under CLIN
0005, the contractor had to “maintain properties in a manner that is clean, safe,
sanitary and secure,” including keeping properties in “ready to show
condition,” routinely inspecting the properties and taking all actions necessary
to ensure that they were free from safety and health hazards and debris, and
fixing broken windows, broken doors, and leaks.   Exhibit 47 at R-001505,
-001506; see id. at R-001493 (PWS § C-5) (“maintain all properties in a
manner that results in properties that are clean, safe and sanitary and perserves
property value”).  “At a minimum,” Asons had to “inspect the property once
every two weeks and report data on FSM Property Inspection Form
(Attachment 8).”  Id. at R-001505.
2  Another CLIN, CLIN 0006, includes “initial services” (including “inspection”)
associated specifically with custodial services.  Exhibit 47 at R-001367.  Because that CLIN
also includes on-going management services after the initial services are complete, and
because the language contained in CLIN 0006 affects the interpretation of the two on-going
management services CLINs at issue in these appeals, we will discuss CLIN 0006 in
conjunction with the other on-going management services CLINs.

CBCA 3491, 3636 6
• CLIN 0006 covered on-going project management “for custodial properties.” 
Exhibit 47 at R-001367.  Custodial properties were “vacant properties” that
were “secured by a secretary-held mortgage” and over which, by virtue of its
security interest, HUD had “certain rights and responsibilities.”  Id. at
R-001512 (PWS § C-5.2.10).
• CLIN 0007 applied to the continuing property management and maintenance
for “vacant lots,” providing the contractor with an “on-going [property
management] fee” for those services.  Exhibit 47 at R-001367.  The PWS
indicated that “[v]acant lots [were] to be maintained at all times in a manner
that result[s] in properties that are clean, safe and sanitary,” without further
explanation.  Id. at R-001513 (PWS § C-5.2.12).
Unlike the initial services CLINs, CLINs 0005, 0006, and 0007 each indicated that
the on-going property management/maintenance services would, or at least could, continue
over extended periods of time.  Nonetheless, each of the three on-going property
management services CLINs used slightly different wording to indicate the “Estimated Unit”
that HUD would order under each CLIN – “[m]onthly” (for CLIN 0005), “[m]onthly when
a property is assigned until it is removed or converts to HUD vacant” (for CLIN 0006), and
“[m]onthly until sold” (for CLIN 0007), as follows: 
CONTRACT
LINE ITEMS
(CLINS)
SUPPLIES
OR
SERVICES QUANTITY
ESTIMATED
UNIT
TOTAL
UNIT PRICE
*          *          *
CLIN 0005:  ON-GOING PROPERTY MANAGEMENT (PM) FEE,
HUD-OWNED VACANT
0005
HUD-Owned
Vacant 10332 Monthly $455.00
CLIN 0006:  INSPECTION, INITIAL SERVICES, ON-GOING PM FOR
CUSTODIAL PROPERTIES
0006
Custodial
Properties 158
Monthly when
a property is
assigned until it
is removed or
converts to
HUD vacant $250.00

CBCA 3491, 3636 7
CLIN 0007:  ON-GOING PM FEE, VACANT LOT
0007 Vacant Lot 53
Monthly until
sold $170.00
Exhibit 1 at R-000007.
When the contract was originally executed, it contained a clause (in section B.5)
dealing with payment to the contractor at contract expiration.  Exhibit 1 at R-000015;
Exhibit 47 at R-001375.  The clause provided that, if unlisted or unsold properties remained
assigned to the contractor when the contract (as opposed to a particular delivery order)
expired, the contractor would receive only a “portion of the fixed unit price due for the
property.”  Exhibit 1 at R-000015; Exhibit 47 at R-001375.  Asons’ contracts were modified
on February 7, 2011, to replace the clause at section B.5 with a new version that, among
other things, eliminated that sentence.  Exhibit 64 at R-001657.
III. The Contract That HUD Originally Intended To Write
The record in these cases makes clear that the CLIN 0005 language in the solicitation
– and in Asons’ contracts – differs somewhat from what its drafters had originally planned.
As background, HUD had a payment system in place for its second generation of
M&M contracts (the M&M II contracts), which preceded the contracts at issue here.  Under
the M&M II contracts, HUD would pay the contractor a “fixed fee” for property management
or vacant lot management services for each “HUD-owned property” or HUD-owned vacant
lot that HUD assigned to the contractor’s management portfolio.  Exhibit 24 at R-000540. 
“Though submitting as a single fixed fee, the Contractor [would] be paid in four equal
monthly installments” for each property, and “[t]he Contractor [had to] invoice one fourth
of the Property Management fee [or Vacant Lot Management fee] each month for four
months beginning with the month the property [was] assigned.”  Id.  Payment of the full fixed
fee was not dependent on the length of time that the property remained in the contractor’s
inventory.  If the property remained in the contractor’s inventory for only two months, the
contractor would still receive the full single fixed fee that would have been paid over the
four-month period, although payment of the fee would be accelerated upon the early
disposition of the property:  “If the property closes or is reconveyed to a Mortgagee before
the four installments are paid, the remaining Property [or Vacant Lot] Management fee shall
be invoiced in the month the property reconciles or is reconveyed.”  Id.  Conversely, if the
property remained in the contractor’s inventory for more than four months, the M&M II
contract did not provide for any additional fee payment to the contractor – beyond the four

CBCA 3491, 3636 8
equal monthly payments for which the contract provided – for services relating to that
property.  See id.
There was a different provision for payment of custodial property management
services under the M&M II contracts, which applied to properties that HUD did not own. 
Exhibit 24 at R-000541-42; see id. at R-000553 (“Custodial property – a borrower owned
property that serves as security for a secretary-held mortgage . . . which HUD, through the
Contractor, has taken possession of following default and vacancy or abandonment.”).  The
M&M II contracts provided that “[t]he Contractor shall be paid a fixed monthly fee per
property for those property management requirements described in Section C - 5.3.12 relating
to custodial properties managed but not owned by HUD.”  Id. at R-000541.  That fee was to
be “invoiced monthly beginning with the month” of property assignment, as follows:
The fee will be invoiced monthly beginning with the month the property is
assigned to the Contractor.  In the month following the month a property
converts from custodial to HUD-owned, the Contractor will no longer receive
the Custodial Fee but will be entitled to begin invoicing the Property
Management Fee or Vacant Lot Management Fee.
Id. at R-000542-43; see id. at R-000641 (Clause G.4:  “The Contractor shall invoice [its
custodial fee] monthly beginning with the month the property is assigned.”).3
3   In its motion for summary relief, Asons asserts that, when developing its offer, it
assumed that HUD would pay the M&M III property management and vacant lot
management services fees under CLINs 0005 and 0007 in the same manner that HUD had
previously paid the M&M II custodial property services fee.  There is nothing in the record,
other than counsel’s assertion, to support this statement.  In fact, the only record evidence
conflicts with that statement.  Specifically, on June 24, 2010, just after award of the M&M
III contracts, a representative of Asons sent an e-mail message to Craig H. Karnes at HUD,
incorrectly representing that, although the final M&M III solicitation had stated that property
management and vacant lot management fees were “to be invoiced ‘one fourth of the
management fee each month for four months,’” the conformed contract did not contain that
provision, making it seem that monthly invoicing was desired.  Exhibit 49 at R-001531.  (In
reality, the final M&M III solicitation never included any reference to a four-month divided
fee payment for property management and vacant lot management services.)  Given the
timing of this statement, we can identify no basis for Asons’ representations in its motion that
it somehow prepared its offer believing that the property management and vacant lot
management services fees would be paid in the same manner as the monthly M&M II
custodial property services fee.  “In countering a motion for summary [relief], more is

CBCA 3491, 3636 9
For the M&M II contracts, HUD used a system called the Single Family Acquired
Asset Management System (SAMS) to assist in calculating and paying amounts due its
contractors.  Exhibit 46 at R-001360; see 71 Fed. Reg. 35,443, 35,443-44 (June 20, 2006)
(discussing SAMS).  SAMS did not permit HUD to prorate service fees for property
management and other services.  Exhibit 34 at R-001088; Exhibit 46 at R-001360.  HUD
would pay the entirety of the established monthly fee for any property management, vacant
lot, or custodial services on a particular property during a given month, even if the property
was assigned or removed from the contractor’s portfolio in the middle of a month.  Exhibit
34 at R-001088.  That is, if a property was assigned to a contractor for property management
services on March 25, the contractor would include the first of its four equal fee payment
requests in its March invoice, without regard to the date within March that the property was
assigned to it.
For the M&M III contracts, HUD planned to replace SAMS with P260, an Internet-
based system developed by a third-party contractor, Yardi Systems, Inc. (Yardi), which
would serve as the primary system of record for all M&M III REO case management
transactions.  Unlike SAMS, the P260 system could be programmed to prorate the monthly
fee.  Exhibit 34 at R-001088; Exhibit 46 at R-001360.  That is, assuming a property
management assignment that began March 25 and ended April 2, the P260 system could
prorate the monthly fees for March and April so that the contractor only received payment
for seven days of work in March and two days in April.
Because the P260 system was capable of proration, HUD, when it was originally
drafting the solicitation for what would become the M&M III property management services
contracts, developed language for CLIN 0005 that differed from the language that was
eventually used.  Initially, the HUD drafters provided HUD’s Office of the Chief
Procurement Officer (OCPO) with a draft of the program management services CLINs
expressly stating that CLINs 0005 and 0007 would be prorated, with the contractor
compensated only for the specific number of days that an assigned property was in that
contractor’s inventory:
FSM CLINS – FEE STRUCTURE
Field Service Managers . . . will be paid on a per property firm fixed fee basis
plus reimbursement for actual cost incurred, or time and materials, as
required than mere assertions of counsel.”  Sweats Fashions, Inc. v. Pannill Knitting Co., 833
F.2d 1560, 1562 (Fed. Cir. 1987) (quoting Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d
624, 626-27 (Fed. Cir. 1984)).

CBCA 3491, 3636 10
appropriate.  The fixed fee includes one-time and recurring monthly payments. 
Clins 1 through 4 and Clin 8 are paid one-time and will be paid only after work
has been completed.  Clins 5 and 7, Property Management fee are paid
monthly.  However, the first and last month fees are prorated based on
the number of days the property was in inventory during the first and last
month.
Clin 
Line Items
Frequency of
Payment
Base
Year
Option 1 Option 2 Option 3 Option 4
*          *          *
CLIN 5: 
On-going
Property
Manage-
ment (PM)
Fee, HUD-
owned,
vacant
Monthly
when a
property is
assigned
until it is sold
CLIN 6: 
Inspection,
Initial
Services,
on-going
PM for
Custodial
Properties
Monthly
when a
property is
assigned until
it is removed
or converts to
HUD vacant
CLIN 7: 
On-going
PM Fee,
Vacant Lot
Monthly
until sold
Exhibit 28 at R-000815 (emphasis added); see id. at R-000814 (indicating submission of
language to OCPO).  Language from the proposed fee structure – identifying payments under
CLIN 0005 as “[m]onthly when a property is assigned until it is sold” and under CLIN 0007
as “[m]onthly until sold” – was then included in the Yardi-developed functional requirements
documents for the P260 system until at least June 2, 2011.  See Exhibit 29 at R-000821;
Exhibit 30 at R-000827; Exhibit 67 at R-001806.
Based upon this language, Yardi then developed a written description of the P260
design inputs, which it submitted to HUD on September 1, 2009.  Yardi stated there that, for

CBCA 3491, 3636 11
both CLINs 0005 and 0007, “payment [would be] prorated based on the number of days the
FSM was assigned to the property in the prior month and the number of days the property
was in fee status” of either “HV (HUD Vacant)” or “VL (Vacant Lot).”  Exhibit 31 at
R-000830 to -000832; see id. at R-000832 (“If a property is assigned to an FSM during the
post month and is sold within the post month, fees are calculated for days between assigned
date and sold date.”).
When the FSM solicitation was issued on September 16, 2009, the “Estimated Unit”
language for CLIN 0007 was the same as in the OCPO draft:  “[m]onthly until sold.”  Exhibit
32 at R-000843.  However, for reasons not clear from the record, the language from the
original OCPO draft for CLIN 0005 was changed.  Instead of saying “[m]onthly when a
property is assigned until it is sold,” the solicitation identified the fee for CLIN 0005 as
“[m]onthly,” without further elaboration.  See Exhibit 32 at R-000842.  On October 7, 2009,
a HUD employee sent an internal HUD e-mail message to several other HUD employees,
including Craig H. Karnes, the Director of the M&M Acquisition Center, Office of the Chief
Procurement Officer, in which the HUD employee stated that, although the P260 system
(unlike SAMS) could prorate monthly fees, the FSM solicitation “has no proration language
and the CLIN’s just say ‘monthly fee’ plus we have multiple types of monthly [fees].” 
Exhibit 34 at R-001088.  In response to the employee’s question as to whether the FSM
solicitation language would permit proration, Mr. Karnes indicated that whether prorating
was permissible “depends on how the line item was specified in the solicitation/contract.” 
Id.  He stated that, if the existing language for CLIN 0005 did not permit prorating, HUD
most likely would not be able to prorate unless it amended the solicitation before receipt of
final proposals:
If not, barring an amendment, the contractor would most likely be entitled to
the full fee for the service.  The good news is that there is still time to amend
the contract unilaterally at this point, if we would like to change the desired
approach.
Id.  Another HUD employee (the Director of the REO Division, Denver Homeownership
Center) then responded that, “[s]ince we are amending this section of the solicitation anyway,
I think we need to include this.”  Id.  Nevertheless, although the solicitation was subsequently
reissued, with numerous amendments, Exhibit 41 at R-001110, HUD did not modify the
relevant portion of section B.4.  Id. at R-001185.  Instead, when it reissued the amended
solicitation on November 5, 2009, it left the “Estimated Unit” for CLIN 0005 as “Monthly.” 
Id.
Subsequently, after a Yardi representative asked HUD for more information about the
fee calculations, Exhibit 82 at R-002001, a HUD employee opined that she did not “think

CBCA 3491, 3636 12
[the solicitation] states anything about prorations.”  Exhibit 82 at R-002000.  Another HUD
employee then indicated that the proration language was originally in the CLIN descriptions,
that the proration language did not make it into the solicitation, and that it was the contracting
officer’s responsibility to add it to the solicitation:
The proration language was actually in the CLINS descriptions – this would
be into Section B of the contract, it would not be in the PWS.  The [contracting
officer] who is awarding has to make sure this language gets into section B. 
It should have been in the CLIIN [sic] section of the solicitation.
Id.
The solicitation was never amended to add any new language about proration.
IV. Contractor Complaints in Response to HUD’s Prorating of the “Monthly” Fee
When HUD awarded the two M&M III contracts to Asons, it also awarded similar
property management contracts to ten other contractors.  Within a few months after these
contract awards, four of the eleven awardee contractors (including Asons) began complaining
about the proration of their monthly fees, arguing that the contracts as written did not allow
HUD to prorate the monthly fees under CLINs 0005, 0006, or 0007 “based on transition date
or assignment date.”  Exhibit 52 at R-001541; see, e.g., Exhibit 54 at R-001543; Exhibit 56
at R-001554; Appellant’s Response Brief, Exhibit D.  On October 1, 2010, one HUD
employee initially responded to one contractor’s inquiry by stating that she “did not see or
[was not] aware of any pro-rated information,” Exhibit 52 at R-001540, while other
contractors, near the same time, were told that they should prorate their fees based upon the
date of the property’s assignment into their inventory and the date of transition out of it.  See,
e.g., Appellant’s Response Brief, Exhibit D.  Although another HUD employee, in response
to Mr. Karnes’ request, see Exhibit 52 at R-001539, reported on October 6, 2010, that he
could not “find the prorated description” for CLIN 0005 in the solicitation, Exhibit 55 at
R-001551, Mr. Karnes determined, after reviewing the contract language, that proration from
date of assignment to date of transition was permissible:
Neither Section 8 of the Contract, nor the [Performance Work Statement],
comes out and says how the CLIN should be billed.  I see nothing to indicate
that the contractor should have expected full payment based on month of
assignment though.
Exhibit 57 at R-001555.  HUD directed its M&M III contractors in November and December
2010 to prorate fees to “days/months in inventory” for CLIN 0005.  Exhibit 60 at R-001570;

CBCA 3491, 3636 13
Exhibit 62 at R-001641.  HUD thereafter continued to require proration of the CLIN 0005,
0006, and 0007 monthly fees.
V. HUD’s Exercise of Options
HUD has exercised three options under Asons’ contracts, each one adding a year of
property management services (including the follow-on CLINs to CLINs 0005 and 0007),
through May 31, 2014.  Exhibit 69 at R-001817 to -001820 (adding CLINs 0014 and 0016,
the follow-on CLINs to CLINs 0005 and 0007); Exhibit 10 at R-000357 to -000361 (adding
CLINs 0023 and 0025); Exhibit 14 at R-000371 to -000380 (adding CLINs 0032 and 0034).
VI. Asons’ Claim Submission
On November 28, 2012, Asons submitted a claim (dated November 27, 2012) to the
contracting officer under contract nos. 23653 and 23682, seeking payment of $1,937,403.71
and $712,041.84 under each contract, respectively, to cover “the difference between the
partial monthly payment made by HUD and the unit price for each CLIN identified in the
Contract.”  Exhibit 16 at R-000438 to -000440.  Asons asserted that the contract provisions
“require the fixed-unit-rate of the CLINs applied to the Estimated Unit and do not permit the
partial or pro-rata payment that the P260 system has enforced.”  Id. at R-000439.  The claim
was certified, in accordance with the requirements of the Contract Disputes Act (CDA), 41
U.S.C. § 7103(b) (2012), by Milan Thompson, Asons’ Chief Executive Officer (CEO).  Id.
at R-000442.
In that November 28, 2012 claim, Asons represented that it had submitted a similar
certified claim “[n]early two years ago,” a copy of which it was attaching, to which “[t]here
has been no response.”  Exhibit 16 at R-000438.  The attached letter, which was undated, was
addressed to Sharon Washington, “as Contracting Officer” for HUD, and, in it, Asons
complained that the P260 system had changed Asons’ invoices for payment under “CLIN
numbers 0002, 0004, 0005, and 0008.”  Id. at R-000435.  Asons sought $336,336.72 for the
inappropriate payment of “a pro rata share of a CLIN item billing,” which it alleged was
inconsistent with the language of the contract.  Id.  Like the November 28, 2012, claim, this
undated letter is signed and certified by Asons’ CEO, Mr. Thompson.  Id. at R-000436. 
Although the letter is undated, the appeal file contains an e-mail message from Mr.
Thompson to Ms. Washington, dated December 8, 2010, in which Mr. Thompson stated as
follows:  “Please find attached an invoicing dispute with our recently awarded HUD
Contracts.  A certified letter will also be sent.”  Exhibit 17 at R-000457.  Unfortunately, the
copy of the December 8, 2010, e-mail message in the record is not accompanied by any
attachment, and HUD has informed us that it has not determined what, if any, document was
attached.  In addition, Asons has included with its motion for summary relief a copy of an

CBCA 3491, 3636 14
internal HUD e-mail message dated December 9, 2010, with the subject “Dispute / Claim -
C-OPC-23653,” through which one HUD contracting office employee forwarded to another
an attached “letter from A-Son’s Construction disputing the change of invoices and amounts
in P260,” but without the attachment.  In response to an inquiry from the Board, HUD has
conceded that the undated certified claim was the attachment to the December 9, 2010,
e-mail chain.
On December 20, 2012, Asons received an e-mail message from the HUD contracting
office asking that Asons resubmit its November 27, 2012, claim as two separate claims, one
addressing contract no. 23653 and one addressing contract no. 23682.  See Exhibit 16 at
R-0000429.  In response, on December 22, 2012, Asons submitted two separate claims. 
Exhibit 17 at R-000455 to -000456.  The first claim, certified by Asons’ CEO, Mr.
Thompson, solely addressed contract no. 23653 and sought $1,937,403.71, an amount that
Asons asserted was the “difference between the invoice amount submitted by [Asons] and
the amount the P260 system accepted and presented to HUD for payment” for CLINs 0005
and 0007.  Exhibit 72 at R-001884, -001905.  The second claim, certified by Asons’
corporate counsel, solely addressed contract no. 23682 and sought payment of $712,041.84. 
See Exhibit 20 at R-000475, -000496.
On May 17, 2013, the contracting officer issued a decision  (dated May 14, 2013)
denying Asons’ claim under contract no. 23682.  Exhibit 15 at R-000413; Exhibit 21 at
R-000497 to -000498.  On August 12, 2013, Asons filed an appeal with the Board of the
contracting officer’s decision, which the Board docketed as CBCA 3491. 
In the decision on the contract no. 23682 claim, the contracting officer did not address
the contract no. 23653 claim.  By letter dated July 31, 2013, counsel for Asons wrote the
contracting officer, reminding her that the claim remained outstanding.  On December 13,
2013, having received no response, Asons appealed the contracting officer’s “deemed denial”
of the claim under contract no. 23653.  The Board docketed that appeal as CBCA 3636 and,
at the parties’ request, consolidated the cases.
Following consolidation, the parties engaged in discovery, exchanging written
discovery requests and taking several depositions.  After the discovery period concluded,
both parties filed motions for summary relief, asking the Board to adopt their respective
interpretations of CLINs 0005 and 0007.

CBCA 3491, 3636 15
Discussion
Asons’ Jurisdictional Issue:  Which Certified Claim Controls?
Asons has raised a question about which of its various claims provides the
jurisdictional basis for these consolidated appeals.  Subject matter jurisdiction is a threshold
matter involving a tribunal’s “power to hear a case.”  Arbaugh v. Y&H Corp., 546 U.S. 500,
514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)).  Typically, when a
question about subject matter jurisdiction arises, it requires the Board to determine whether
the contractor submitted a valid CDA claim, given that “[s]ubmission of a valid CDA claim
is a jurisdictional prerequisite to appeal to the Board.”  H.L. Smith, Inc. v. Dalton, 49 F.3d
1563, 1564 (Fed. Cir. 1995).  Here, however, there is no question, and HUD does not dispute,
that the Board has jurisdiction to entertain these appeals.  The issue here is which of the
smorgasbord of claims that Asons submitted is the one (or the ones) upon which the Board’s
jurisdiction rests.  This issue is important to Asons because interest starts to accrue on a CDA
claim from the date that a valid claim was received by a contracting officer.  See 41 U.S.C.
§ 7109(a).
We have three different sets of claims from which to choose, all of which Asons
alleges to have submitted to the contracting officer.  First, Asons asserts that, on December 8
or 9, 2010, it submitted a single claim under both contract nos. 23653 and 23687 seeking to
recover amounts that HUD had improperly withheld by prorating payments under CLINs
0005 and 0007, but HUD never acted on this claim.4  Second, Asons asserts that, because
HUD never responded to the December 2010 claim, it submitted on November 28, 2012,
another claim under both contract nos. 23653 and 23687 covering CLINs 0005 and 0007. 
Third, at the contracting officer’s request, Asons resubmitted its November 2012 claim as
two separate claims – one covering contract no. 23653 and one covering contract no. 23682
– on December 22, 2012.
There are three basic requirements for a valid CDA monetary claim:  “(1) the
contractor must submit the demand in writing to the contracting officer, (2) the contractor
must submit the demand as a matter of right, and (3) the demand must include a sum certain.” 
H.L. Smith, 49 F.3d at 1565.  “The CDA also requires that a claim indicate to the contracting
4  While Asons identifies December 9, 2010, as the date that it submitted its claim to
the contracting officer, referencing an internal HUD e-mail message between HUD
employees on that date forwarding a letter from Asons, another e-mail message in the record
from Asons to Sharon Washington, “as Contracting Officer,” with an unidentified
attachment, is dated December 8, 2010.  Exhibit 17 at R-000457.

CBCA 3491, 3636 16
officer that the contractor is requesting a final decision,” although this request need not be
explicit.  M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir.
2010).  The CDA “prescribes no particular format” for a valid claim, but “the contractor’s
claim must be presented in sufficient detail to notify the contracting officer of the basis and
amount of the claim as well as the basic factual allegations upon which the claim is
premised.”  Automated Power Systems, Inc., DOT BCA 2925, et al., 98-1 BCA ¶ 29,568, at
146,575.  In addition, a monetary demand in excess of $100,000 “is not a claim under the
[CDA] until certified.”  48 CFR 52.233-1(c) (2014).
We start with Asons’ earliest alleged claim, which, although undated, Asons states it
sent to the contracting officer in December 2010.  On its face, it satisfies all of the required
elements for a valid claim:  it is in writing, identifies Asons’ complaint about prorated
payments, seeks payment of a sum certain, implicitly requests a final decision, and is certified
by Asons’ CEO.  Further, the record includes an e-mail message dated December 8, 2010,
from Asons to the contracting officer at HUD, see Exhibit 17 at R-000457, as well as another
e-mail message dated December 9, 2010, between two HUD employees which indicates that
it is attaching a letter from Asons complaining about the P260 payment system.  Both e-mail
messages reference an attachment, but HUD filed an appeal file that did not include a copy
of any such attachment.  Nevertheless, HUD subsequently conceded that the undated certified
claim was attached to the December 9, 2010, e-mail message, and, even though the agency
has indicated that it does not know “what, if anything, was actually attached to” the
December 8, 2010, e-mail message, Respondent’s Response to Order of December 2, 2014,
at 1-2, it seems more likely than not that the undated certified claim was also attached to the
December 8, 2010, e-mail message.
Nevertheless, the claim submitted on December 8, 2010, only encompasses Asons’
CLIN 0005 claim, not its CLIN 0007 claim.  In the December 2010 claim, Asons complained
that the P260 system had prorated Asons’ invoices for payment under “CLIN numbers 0002,
0004, 0005, and 0008.”  Exhibit 16 at R-000435.  The claim does not mention CLIN 0007. 
For the Board to exercise jurisdiction over an appeal relating to CLIN 0007, Asons must first
have presented a valid claim seeking relief under CLIN 0007, containing “a clear and
unequivocal statement that gives the contracting officer adequate notice of the basis and
amount of the claim.”  M. Maropakis Carpentry, 609 F.3d at 1327 (quoting Contract
Cleaning Maintenance, Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1997)).  Although
“a contractor may increase the amount of its [submitted] claim and present evidence in
support of an increase,” it “may not raise any new claims which were not presented to the
contracting officer.”  EHR Doctors, Inc. v. Social Security Administration, CBCA 3522, 14-1
BCA ¶ 35,630, at 174,492 (quoting Ketchikan Indian Community v. Department of Health
& Human Services, CBCA 1053-ISDA, et al., 13 BCA ¶ 35,436, at 173,808).  “When a new
claim is asserted that is not directly addressed in the appellant’s original claim submission,

CBCA 3491, 3636 17
the tribunal must examine whether the newly posed claim derives from the same operative
facts, seeks essentially the same relief, and, in essence, merely asserts a new legal theory for
the recovery originally sought.”  Id.  
Here, although the allegations about prorating payments are similar for CLINs 0005
and 0007, the contracting officer would have to review different payment files to determine
payment amounts for CLIN 0005 and for CLIN 0007, indicating that the claim for CLIN
0005 is separate and distinct from the claim for CLIN 0007.  See EHR Doctors, 14-1 BCA
at 174,492 (finding that new claim was not based on same operative facts as original claim
where contracting officer would have to review different sets of documentation to evaluate
each claim).  Further, as will be discussed below, different portions of section B.4 cover
payments under CLIN 0005 than those that are applicable to CLIN 0007, and the section uses
different language to define the “Estimated Unit” associated with each CLIN, such that a
different analysis is necessary to resolve CLIN 0005 and CLIN 0007 issues.  In such
circumstances, CLIN 0007 cannot be said to fall within the December 2010 claim. 
Accordingly, because the December 2010 claim does not address or apply to CLIN 0007, it
does not provide the Board with a jurisdictional basis to consider Asons’ CLIN 0007
allegations.  It only covers Asons’ allegations in these appeals relating to CLIN 0005
proration.
Although the December 2010 claim did not cover CLIN 0007, Asons submitted three
more claim letters to the contracting officer – one on November 28, 2012, and two on
December 22, 2012 – all of which expressly seek relief for underpayments under CLIN 0007. 
HUD does not dispute that the two December 2012 claim submissions are valid, but those
claims were submitted only because a HUD employee was dissatisfied with Asons’
November 28, 2012, submission.  In its November 28, 2012, claim, Asons had sought relief
under both contract no. 23653 and contract no. 23687, combining its monetary requests under
both contracts into a single claim.  HUD asked Asons to break it into two separate claims and
to resubmit.  To the extent that the contracting officer believed that combining equitable
adjustment requests under two separate contracts into a single certified claim did not comport
with the CDA, that belief lacked any foundation, at least in the circumstances here.  As the
Armed Services Board of Contract Appeals (ASBCA) explained in Harbert International,
Inc., ASBCA 44873, 97-1 BCA ¶ 28,719 (1996), nothing in the CDA precludes a contractor
from combining monetary requests involving multiple contracts into a single CDA claim, at
least if the contracts and/or claims are “sufficiently related.”  Id. at 143,360.  The ASBCA
recognized that Board decisions “involving a single contractor claim submitted under
multiple contracts are hardly ‘rare.’”  Id. at 143,358.  Without definitively deciding whether
the CDA precludes putting wholly unrelated contracts or monetary requests into a single
monetary claim, the ASBCA stated that it would evaluate “the justiciability under the CDA
of a ‘claim’ relating to more than one contract . . . on a case-by-case basis, with the main

CBCA 3491, 3636 18
considerations being the relationship between the contracts to each other and the relationship
between each contract and the claim.”  Id. at 143,360.
Here, as in Harbert International, we need not decide whether a single CDA claim
can encompass unrelated contracts because Asons’ two contracts are sufficiently related to
justify use of a single claim covering both contracts.  The terms of the two contracts are
virtually identical, the alleged improper government action and the monetary requests at issue
are based upon the same legal and factual theories, and the facts at issue involve the same
witnesses and actors.  Accordingly, the November 28, 2012, claim submission was valid, and
the contracting officer has provided no justifiable basis upon which to have asked Asons to
resubmit it as two separate claims.
In summary, Asons submitted certified claims relating to both CLIN 0005 and CLIN
0007.  To the extent that Asons succeeds in these appeals, interest for any recovery under
CLIN 0005 runs from December 8, 2010, the date upon which the HUD contracting officer
received Asons’ certified claim relating to CLIN 0005, while interest on any award under
CLIN 0007 runs from November 28, 2012.
The Merits:  Interpreting the Word “Monthly” In These Contracts
I. The Standard for Summary Relief
The parties have both filed motions seeking summary relief, each of them asserting
that its interpretation of the language in CLINs 0005 and 0007 entitles it to judgment. 
“Resolving a dispute on a motion for summary relief is appropriate when the moving party
is entitled to judgment as a matter of law, based on undisputed material facts.”  Au’ Authum
Ki, Inc. v. Department of Energy, CBCA 2505, 14-1 BCA ¶ 35,727, at 174,891.  “When both
parties move for summary relief, each party’s motion must be evaluated on its own merits
and all reasonable inferences must be resolved against the party whose motion is under
consideration.”  Government Marketing Group v. Department of Justice, CBCA 964, 08-2
BCA ¶ 33,955, at 167,991.5
5  In First Preston Management, Inc. v. Department of Housing & Urban
Development, CBCA 3563, 14-1 BCA ¶ 35,643, a case that has since been amicably resolved
and dismissed, the Board denied cross-motions for summary relief involving contract
interpretation issues under another HUD M&M III contract that are similar to the issues here,
finding that the position of each party was not supported by the existing record at the
pre-discovery summary relief stage.  Id. at 174,538.  The record in these cases, following
discovery, is more thoroughly developed than the First Preston record.

CBCA 3491, 3636 19
The party moving for summary relief bears the burden of establishing the absence of
any genuine issue of material fact associated with its request.  Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).  Nevertheless, “the party opposing summary [relief] must show an
evidentiary conflict on the record; mere denials or conclusory statements are not sufficient.” 
Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987).  It must
set forth specific facts showing there is a genuine issue for trial.  Celotex, 477 U.S. at 324. 
“Where the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no ‘genuine issue for trial.”’  Matsushita Electric Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“Contract interpretation is a question of law generally amenable” to summary relief. 
Varilease Technology Group, Inc. v. United States, 289 F.3d 795, 798 (Fed. Cir. 2002).  That
being said, “the question of interpretation of language, the conduct, and the intent of the
parties, i.e., the question of what is the meaning that should be given by a court or board to
the words of a contract, may sometimes involve questions of material fact and not present
a pure question of law.”  DJM/Reza, A Joint Venture, VABCA 6917, et al., 05-1 BCA
¶ 32,943, at 163,208.  “To the extent that the contract terms are ambiguous, requiring
weighing of external evidence,” summary relief is inappropriate, but only if the external
evidence is sufficient to create a genuine issue of disputed material fact.  Beta Systems, Inc.
v. United States, 838 F.2d 1179, 1183 (Fed. Cir. 1988).  Unless the “underlying probative
evidence,” considered in its entirety, creates a “genuine evidentiary conflict” as to the proper
interpretation of an ambiguous provision, “there is no genuine underlying issue of material
fact” precluding summary relief.  Johnston v. IVAC Corp., 885 F.2d 1574, 1579-80 (Fed. Cir.
1989).  A “mere dispute over the meaning of a term does not itself create an issue of fact.” 
Id. at 1579.
II. HUD’s Arguments that Asons Released or Waived its Prorated Payment Claims
A. The Effect of HUD’s Failure to Allege Release in its Answer
HUD argues that the Board need not reach the contract interpretation issues here
because Asons executed bilateral contract modifications during the course of contract
performance expressly releasing HUD from liability.  In support of this argument, HUD cites
release language contained in four bilateral modifications under contract no. 23653
(Exhibit 69 at R-001818; Exhibit 75 at R-001968; Exhibit 77 at R-001975; Exhibit 84 at
R-002007) and one bilateral modification under contract no. 23682 (Exhibit 11 at R-000364),
each of which reads as follows:
Pursuant to the terms of this contract and in consideration of the changes
specified above, the Government of the United States, its officers, agents, and

CBCA 3491, 3636 20
employees are hereby fully and finally released and discharged from all
liabilities, demands, obligations, requests for equitable adjustment, and claims,
whether legal, equitable, contractual, or administrative in nature, which the
contractor . . . has or may have, now or in the future, arising under or relating
to this modification of the contract . . . .
HUD asserts that the “language and coverage of the release is quite broad,” affecting “the
prices and payment of the CLINs at issue.”  Respondent’s Motion for Summary Relief at 39. 
Because Asons did not “except the instant claim” from this release “when it knew of the
issue underlying the dispute,” id., Asons should, HUD argues, be precluded from pursuing
its claims.
Asons first responds that the doctrine of release is an affirmative defense and that,
because HUD failed to raise the affirmative defense in its answer to Asons’ complaint, the
defense is waived.  CBCA Rule 6(c), like Federal Rules of Civil Procedure 8(b) and 12(b),
provides that, in its answer to an appellant’s complaint, the respondent must set forth not only
its defenses to the appellant’s claims, but also “any affirmative defenses it chooses to assert.” 
48 CFR 6101.6(c).  The purpose of putting the affirmative defenses in the answer “is to give
the opposing party notice of the affirmative defense and a chance to respond.”  Ultra-
Precision Manufacturing, Ltd. v. Ford Motor Co., 411 F.3d 1369, 1376 (Fed. Cir. 2005)
(quoting Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997)); see Eagle Contracting, Inc.,
AGBCA 88-225-1, 92-3 BCA ¶ 25,018, at 124,702 (describing purpose of affirmative
defense pleading requirement).  Failure to plead an affirmative defense in a timely manner
can result in the defense’s waiver.  Systems Management & Research Technologies Corp.
v. Department of Energy, CBCA 4068, 15-1 BCA ¶ 35,976, at 175,789; see 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure § 1278, at 644-45 (3d ed. 2004)
(citing cases).  Release is an affirmative defense that the Government must plead in its
answer.  Kolin Construction, Tourism, Industry & Trading Co., ASBCA 56941, et al., 11-1
BCA ¶ 34,670, at 170,798; see Fed. R. Civ. P. 8(c)(1) (identifying release as an affirmative
defense).
Nonetheless, even though the Government acts “at its own peril” in failing to plead
its affirmative defenses in its answer, “tribunals generally are liberal . . . in allowing the late
assertion of [affirmative] defenses, absent prejudice to the opposing party.”  Ball, Ball &
Brosamer, Inc., IBCA 2841, 97-1 BCA ¶ 28,897, at 144,084; see First Annapolis Bancorp,
Inc. v. United States, 75 Fed. Cl. 280, 288 (2007) (“An affirmative defense may be waived
if not pled as prescribed, but the waiver is not effective absent unfair surprise or prejudice.”). 
We have the authority under CBCA Rule 6(e) to permit amendments to pleadings “on
conditions fair to both parties.”  While we encourage timely pleading of affirmative defenses,
we, like other tribunals, will not typically reject an affirmative defense raised for the first

CBCA 3491, 3636 21
time in a motion for summary relief, absent articulable prejudice to the opposing party,
particularly where the motion, as here, is filed well before any trial or hearing has been
scheduled.  See, e.g., Ultra-Precision, 411 F.3d at 1376 (affirming trial court’s consideration
of affirmative defense first raised in second set of summary judgment motions); National
Gypsum Co., ASBCA 53259, et al., 03-1 BCA ¶ 32,054, at 158,454-55 (2002) (affirmative
defense considered although first raised in brief); Holland v. United States, 74 Fed. Cl. 225,
256 (2006) (same), rev’d on other grounds, 621 F.3d 1366 (Fed. Cir. 2010).  Here, Asons has
had a full opportunity to respond to HUD’s release argument and, importantly, has not
alleged any prejudice from the late disclosure of this defense.  Therefore, we consider the
defense.
B. Whether Asons Released its Prorated Payments Claims
Addressing the merits of HUD’s release argument, Asons asserts that HUD is
overreaching by taking a limited release and attempting to convert it into a general release. 
“A release is a contract whereby a party abandons a claim or relinquishes a right that could
be asserted against another.”  Holland v. United States, 621 F.3d 1366, 1377 (Fed. Cir.
2010).  “Because a release is contractual in nature, it is interpreted in the same manner as any
other contract term or provision.”  Bell BCI Co. v. United States, 570 F.3d 1337, 1341 (Fed.
Cir. 2009); see Restatement (Second) of Contracts § 284 cmt. c (1981) (“The rules of
interpretation that apply to contracts generally apply also to writings that purport to be
releases.”).  Accordingly, like any other contract, “[i]f the provisions of a release are ‘clear
and unambiguous, they must be given their plain and ordinary meaning.’”  Optex Systems,
Inc., ASBCA 58220, 14-1 BCA ¶ 35,801, at 175,097 (quoting Bell BCI, 570 F.3d at 1341). 
The “burden of proving the validity and applicability of release” is on the party seeking to
enforce it – here, the Government.  Shell Oil Co. v. United States, 751 F.3d 1282, 1297 (Fed.
Cir. 2014) (quoting A.R.S. Inc. v. United States, 157 Ct. Cl. 71, 76 (1962)). 
HUD’s release argument fails for two reasons:
  First, as with any contract interpretation issue, we look to the plain language of the
release.  LAI Services, Inc. v. Gates, 573 F.3d 1306, 1314 (Fed. Cir. 2009).   On its face, that
language does not purport to release all contractor claims under the contract, instead
releasing only those claims “arising under or relating to this modification of the contract.” 
Exhibit 11 at R-000364 (emphasis added).  Although the modifications changed the unit
prices under the “Total Unit Price” column for various CLINs in section B.4, they did not
change or affect the “Estimated Unit” of any CLIN in that section.  It is under the “Estimated
Unit” column that the terms whose meaning is in dispute – “monthly” and “monthly until
sold” – reside.  Nothing in the plain language of the modifications indicates that a price

CBCA 3491, 3636 22
change under the  “Total Unit Price” column somehow modified the definition of “monthly”
in the separate “Estimated Unit” column.
Second, all of the modifications at issue were forward-looking, rather than backward-
looking, providing price changes for not-yet-performed option periods.  As an example,
modification no. M0006 to one of the contracts had an effective date of October 1, 2011, and
revised the contract unit prices for Option Period 1 starting October 1, 2011, and running
through February 29, 2012.  Exhibit 69 at R-001817 to -001818.  Because each release only
applied to claims arising from or relating to “this modification to the contract,” it could not
apply retroactively to release claims that had accrued in prior periods – not a single one of
the cited modifications dealt with or affected prior year prices or payments.  To the extent
that HUD is arguing that the releases applied to potential claims that would arise during
future performance, “[s]uch a promise is not a release” because “[a] promise to discharge in
the future an existing duty merely creates a new duty that can itself be discharged by the
parties.”  Restatement (Second) of Contracts § 284 cmt. a (1981).  In essence, HUD is really
arguing that, through the forward-looking modifications, the parties agreed to change the
contract terms so that the word “monthly” was redefined to allow prorating.  Nothing in the
plain language of the modifications supports that position, and HUD has neither alleged nor
presented evidence that the parties even discussed that concept in negotiating the
modifications.  The releases simply do not apply to the contract interpretation issue in dispute
here.
C. Whether Asons Alternatively Waived Its Prorated Payment Claims
Alternatively, HUD argues that Asons waived its prorated payment claims because,
in the payment invoices that it submitted through the P260 system, it sought payment of
prorated amounts when properties were not in its portfolio for a full month.6  It is true that,
if a contractor performs a contract without protesting or objecting to the Government’s
erroneous interpretation of contract requirements, it may be barred from later recovering for
alleged changes or extra work.  See, e.g., E. Walters & Co. v. United States, 576 F.2d 362,
367-68 (Ct. Cl. 1978); Ling-Temco-Vought, Inc. v. United States, 475 F.2d 630, 636-39 (Ct.
Cl. 1973); Acme Process Equipment Co. v. United States, 347 F.2d 509, 515-18 (Ct. Cl.
1965), rev’d on other grounds, 385 U.S. 138 (1966).  By failing to give timely notice of its
objections, a contractor precludes the Government from reevaluating and correcting its
6  Waiver constitutes an affirmative defense that respondent must plead in its answer. 
CBCA Rule 6(c); Fed. R. Civ. P. 8(c)(1).  Although HUD did not plead waiver in its answer,
we consider its waiver argument for the same reasons that we have considered its release
argument.

CBCA 3491, 3636 23
erroneous interpretation before the contractor incurs damages.  Ling-Temco-Vought, 475 F.2d
at 638-39; Northern Helex Co. v. United States, 455 F.2d 546, 551 (Ct. Cl. 1972).
Here, however, Asons has repeatedly objected to HUD’s payment proration position
since early in contract performance (as have several other contractors with virtually identical
contracts).  See, e.g., Exhibit 17 at R-000457; Exhibit 54 at R-001543, -001545, -001550,
-001556; Exhibit 62 at R-001641; Appellant’s Response Brief, Exhibit D.  Although Asons
may have submitted invoices through the P260 system in accordance with HUD’s
instructions to prorate, HUD cannot pretend that it did not simultaneously know of Asons’
objections.  When the agency is on notice of the contractor’s objection, the agency has no
basis for asserting a waiver simply because the contractor simultaneously performed in
accordance with the Government’s instructions.  Northern Helex, 455 F.2d at 551; Kiewit-
Turner, A Joint Venture v. Department of Veterans Affairs, CBCA 3450, 15-1 BCA ¶ 35,820,
at 175,177 (2014).  HUD’s selective focus only on the P260 invoice submissions – without
any reference to preexisting and outstanding objections to prorating – is misguided.  Asons
has not waived its payment proration claims.
III. Interpretation of Asons’ Contracts
A. The Basic Contract Interpretation Rules
The dispute in these consolidated cases focuses on the meaning of the word “monthly”
in section B.4, as applied to CLINs 0005 and 0007.  That dispute is best divided into two
subparts:  (1) whether the word “monthly,” as used in section B.4, necessarily means
“calendar month” (running from the first day of the calendar month to the last day of that
month); and (2) whether section B.4 precludes HUD from prorating “monthly” fees if HUD
has only ordered property management services for a portion of a month.  Asons and HUD
have offered differing interpretations of the word “monthly” in the context of the contract
as a whole.
“In resolving disputes involving contract interpretation, we begin by examining the
plain language of the contract.”  LAI Services, 573 F.3d at 1314 (quoting M.A. Mortenson
Co. v. Brownlee, 363 F.3d 1203, 1206 (Fed. Cir. 2004)); see McHugh v. DLT Solutions, Inc.,
618 F.3d 1375, 1380 (Fed. Cir. 2010) (“Contract interpretation begins with the plain
language of the written agreement.”).  In one sense, the interpretation issue here is “more
subtle” than many presented to the Board “because the outcome is heavily dependent on the
meaning ascribed to one word, not a group of words such as a clause, sentence, or paragraph,
and therefore, it illustrates both the beauty and difficulties of English.”  MPE Business
Forms, Inc., GPO BCA 10-95, 1996 WL 812877 (Aug. 16, 1996), rev’d and remanded on
other grounds, 44 Fed. Cl. 421 (1999).  Nevertheless, we do not interpret the word in dispute

CBCA 3491, 3636 24
in isolation, but, to decipher its meaning, must consider its use in the context of the contract
as a whole, B.D. Click Co. v. United States, 614 F.2d 748, 753 (Ct. Cl. 1980), “construed to
effectuate its spirit and purpose giving reasonable meaning to all parts of the contract.” 
Hercules Inc. v. United States, 292 F.3d 1378, 1381 (Fed. Cir. 2002).  “If the plain language
of the contract is unambiguous on its face, the inquiry ends, and the contract’s plain language
controls.”  ACM Construction & Marine Group, Inc. v. Department of Transportation,
CBCA 2245, et al., 14-1 BCA ¶ 35,537, at 174,151 (citing Hunt Construction Group, Inc.
v. United States, 281 F.3d 1369, 1373 (Fed. Cir. 2002)).  If, however, the contractual
language is susceptible to more than one reasonable interpretation, it is ambiguous.  Id.; see
E.L. Hamm & Associates v. England, 379 F.3d 1334, 1341 (Fed. Cir. 2004) (“ambiguity
exists when a contract is susceptible to more than one reasonable interpretation”).  If a
contract provision appears ambiguous on its face, extrinsic evidence may assist in discerning
the parties’ intent and may show that language appearing on its face to be ambiguous is not
because, for example, the parties shared a mutual understanding as to its meaning.  See
Metropolitan Area Transit, Inc. v. Nicholson, 463 F.3d 1256, 1260 (Fed. Cir. 2006).
If resort to extrinsic evidence does not resolve an ambiguity, “the next question is
whether that ambiguity is patent.”  E.L. Hamm, 379 F.3d at 1342.  Generally, “[w]hen a
dispute arises as to the interpretation of a contract and the contractor’s interpretation of the
contract is reasonable, we apply the rule of contra proferentem, which requires that
ambiguous or unclear terms that are subject to more than one reasonable interpretation be
construed against the party who drafted the document.”  Turner Construction Co. v. United
States, 367 F.3d 1319, 1321 (Fed. Cir. 2004).  However, if “the ambiguity or lack of clarity
was sufficiently apparent” on the face of the solicitation before the contract was awarded, the
contractor was required “to inquire as to that provision before entering into the contract,” and
it is barred from later pressing its own interpretation if it failed to do so.  Id.  “More subtle
ambiguities,” however, “are deemed latent, and the general rule that such language is
interpreted in favor of the nondrafting party will apply.”  ACM Construction, 14-1 BCA at
174,151.
B. HUD’s Partial Performance Argument
HUD argues that Asons’ interpretation of the contract conflicts with Federal
Acquisition Regulation (FAR) clause 52.232-1, Payments (Apr 1984), 48 CFR 52.232-1
(2010), a clause included in Asons’ contracts.  HUD asserts that “the clause requires that
partial deliveries invoiced by the contractor and accepted by the Government receive
corresponding partial payment unless specifically prohibited by the contract.”  Respondent’s
Motion for Summary Relief at 9.  HUD contends that, if Asons provided management
services for a particular property for less than a full month, Asons provided only a “partial

CBCA 3491, 3636 25
delivery” – “service for less than a month’s work” – and is entitled under the Payments
clause to recover only a prorated amount for that month’s work.
It is true that, pursuant to the “Payments” clause at FAR 52.232-1, an agency will
make a reduced payment to the contractor for “partial deliveries accepted by the Government
if . . . [t]he Contractor requests it and the amount due on the deliveries is at least $1,000 or
50 percent of the total contract price.”  48 CFR 52.232-1 (emphasis added); see 48 CFR
32.102(d) (“[i]n accordance with 5 CFR 1315.4(k), agencies must pay for partial delivery
of supplies or partial performance of services unless specifically prohibited by the contract”
(emphasis added)).  Yet, HUD’s position that Asons was providing “partial delivery” and
“partial performance” under these contracts is unfounded.  FAR 32.102 makes clear that
“partial performance” refers to performance “of [the] contract” or, as here, of the individual
delivery/task orders that HUD placed.  See 48 CFR 32.102(a).  The word “partial” means
“[n]ot complete; of, relating to, or involving only a part rather than the whole.”  Black’s Law
Dictionary 1293 (10th ed. 2014).  “Performance” refers to “[t]he successful completion of
a contractual duty.”  Id. at 1319.  “Part” or partial “performance,” then, means “[t]he
accomplishment of some but not all of one’s contractual obligations.”  Id.  Accordingly, the
terms “partial delivery” and “partial performance” identified in FAR 32.102 and 52.232-1
refer to the contractor’s failure to perform some portion of the work that the agency assigned
and ordered.
HUD does not allege that Asons failed to perform any of the property management
services that HUD ordered.  It does not allege that Asons only performed “part” of what
HUD asked it to do.  It instead argues that there was “partial performance” because HUD did
not always ask Asons to provide services for the entirety of a month – that is, that HUD itself
restricted the length of services requested.  This argument is misguided.  The completeness
of Asons’ performance depends on Asons’ actions in providing the services that HUD
actually ordered, not upon the limited duration of what HUD ordered.  If Asons fully
performed every delivery/task order that HUD assigned to it, it fully performed its
obligations and is entitled to payment for full delivery and full performance.  There is no
basis for HUD to reduce Asons’ fee payments based upon Asons’ alleged “partial
performance” of, or Asons’ partial failure to perform, its obligations.
C. HUD’s Trade Usage Argument
HUD asserts that industry trade usage requires us to interpret CLINs 0005 and 0007
as contemplating prorated fee payments because “industry trade practice is not to pay the
relevant property maintenance services on a retainer basis or for time a property is not in
contractor inventory, but to pay only as reimbursement for services actually rendered or to
pay a specified fixed price for a specific task.”  Respondent’s Motion at 22.  HUD refers to

CBCA 3491, 3636 26
property management services contracting documents from Fannie Mae and Freddie Mac as
evidence of the existence of such an “industry trade practice.”
Interpretation of a contract “may properly include consideration of an accepted
industry or trade practice.”  Roxco, Ltd., ENG BCA 6435, 00-1 BCA ¶ 30,687, at 151,583
(1999).  However, such trade usage or custom must “show that language which appears on
its face to be perfectly clear and unambiguous has, in fact, a meaning different from its
ordinary meaning.”  Gholson, Byars & Holmes Construction Co. v. United States, 351 F.2d
987, 999 (Ct. Cl. 1965) (emphasis added).  That is, such evidence must show “a competing
interpretation of words” contained in the Government’s contract and not just “the fact that
things are not customarily done in the manner called for by the contract.”  Western States
Construction Co. v. United States, 26 Cl. Ct. 818, 824 (1992) (emphasis added); see Jowett,
Inc. v. United States, 234 F.3d 1365, 1369 (Fed. Cir. 2000) (party must show a “term in the
contract that has an accepted industry meaning different from its ordinary meaning”). 
On its face, HUD’s argument fails.  HUD has not argued that the words in Asons’
contracts have a particularized meaning in the industry.  Instead, HUD’s allegations of an
“industry trade practice” are based upon Fannie Mae and Freddie Mac contracts that, through
their express language, clearly require those organizations to pay up to a specific fixed price
for specific tasks, such as $60 for changing knob locks, $100 for cutting grass of less than
10,000 feet, or $100 for repairing a garage door.  See Exhibit 71 at R-001864 to -001882;
Exhibit 86 at R-002014 to -002019.  The Fannie Mae and Freddie Mac contracts do not
define payments as “monthly.”  They are instead written to provide reimbursement for
specific expenses incurred, item by item.  HUD’s contract was written very differently:  HUD
reimbursed contractors through a “monthly” fee, without regard to the specific work that the
contractor had to perform or specific expenses incurred on the property in a given month. 
HUD cites nothing from the industry showing an interpretation of the word “monthly” as
meaning “proratable.”  Because HUD has focused solely on a generalized industry concept,
without arguing (much less presenting evidence) that the word “monthly” has a specific
meaning in the industry, HUD’s trade practice argument is meritless.
D. Whether “Monthly” Must Start on the First Day of a Calendar Month
1. Ambiguity in the Start Date of Monthly Fee Payments
Having dealt with the parties’ arguments about partial performance and trade usage,
we are left simply to determine whether the plain language of the contracts permits HUD to
make “monthly” payments under CLINs 0005 and 0007 of less than a full calendar month. 
To resolve this issue, we must answer two questions:  first, whether the “month” under the
M&M III contracts starts on the date of property assignment or, instead, at the top of

CBCA 3491, 3636 27
whatever calendar month in which a property is assigned; and, second, whether, once the
“month” begins, HUD can pay less than a full month’s fee if it removes a property from the
contractor’s inventory portfolio mid-month.
The first interpretation issue involves whether the word “monthly,” as used in these
contracts, necessarily means one of the twelve calendar months, starting on the first day of
that calendar month.  Asons assumes that it does.  Accordingly, Asons believes that, if HUD
added a property to Asons’ property management services portfolio on April 30, it was
entitled to be paid a full monthly property management fee for the period from April 1
through April 30, even though it only provided property management services for a single
day in April.
The contract itself does not define the word “monthly.”  As a result, we turn to
dictionary definitions to assist in extrapolating the word’s “ordinary and commonly accepted
meaning.”  Hol-Gar Manufacturing Corp. v. United States, 351 F.2d 972, 976 (Ct. Cl. 1965);
see CBS Corp. v. Eaton Corp., No. 07-Civ.-11344, 2009 WL 4756436, at *4 (S.D.N.Y.
Dec. 7, 2009) (“A sound method for determining the plain meaning of words is to look at
their dictionary definitions.” (citation omitted)).  In doing so, however, we must always be
cautious to consider the context in which the word at issue is used in the contract: 
“[a]lthough as any large dictionary shows, single words do have meanings and often a great
many meanings, it is impossible to determine which one of those meanings the parties
intended unless each word is considered in its context.”  5 Margaret M. Kniffen, Corbin on
Contracts § 24.21, at 210 (rev. ed. 1998).
Dictionary definitions of the word “month” typically include one of the twelve
“calendar months” as one available definition – for example, according to Black’s Law
Dictionary, a “month” can be “[o]ne of the twelve periods of time in which the calendar is
divided.”  Black’s Law Dictionary 1161 (10th ed. 2014).  Nevertheless, dictionaries also
define a “month” as “[a]ny time period approximating 30 days <due one month from
today>.”  Id.; see Webster’s New Twentieth Century Dictionary Unabridged 1166 (2d ed.
1975) (defining “month” as including “the time from any day of one month to the
corresponding day of the next,” as well as “a period of four weeks or 30 days”); Random
House Dictionary of the English Language 928 (unabridged ed. 1969) (“the time from any
day of one calendar month to the corresponding day of the next,” as well as “a period of four
weeks or 30 days”); 2 Bouvier’s Law Dictionary 2244 (3d rev. 1914) (“month” is “[a] space
of time variously computed, as the term is applied to astronomical, civil or solar, or lunar
months”).
Further, in defining the corresponding word “monthly,” the dictionaries provide
nothing to indicate that “monthly” necessarily denotes a calendar month or always starts on

CBCA 3491, 3636 28
the first day of the calendar month.  See Webster’s New Twentieth Century Dictionary
Unabridged 1166 (“continuing or lasting for a month” or “done, happening, appearing,
payable, etc. once a month or every month; as, a monthly magazine”); Random House
Dictionary of the English Language 928 (“pertaining to a month, or to each month”). 
Practical experience establishes that “monthly” does not necessarily equate with a calendar
month:  monthly credit card billing cycles do not always run from the first of a calendar
month to the end, but can begin at any point in a calendar month and run until a
corresponding day in the following calendar month.
Particularly because there are multiple dictionary definitions of the words “month”
and “monthly,” we have to evaluate the context in which the word “monthly” is used in
Asons’ contracts.  At least one contract clause favors HUD’s position that “monthly” does
not have to start on the first day of a “calendar month.”   Section G.2, titled “Payment
Schedule and Invoice Submission (Fixed-Price) (Feb 2006),” indicates that HUD will pay
Asons for “work . . . performed,” as follows:
The Government shall pay the Contractor as full compensation for all work
required, performed and accepted under this contract, inclusive of all costs
and expenses, the fixed-unit-rate for the applicable CLINs and applicable
periods, as stated in Part I, Section B of this contract.
Exhibit 1 at R-000023 (HUDAR 2452.232-70) (emphasis added); see Exhibit 47 at R-001383
(same).  Although Asons believes that it is entitled to be paid a full thirty-day fee for the
calendar month of April if HUD adds a property to Asons’ property management services
portfolio on April 30, Asons would only have provided services, or “work,” for one day
under that scenario.  Asons’ position conflicts with the concept that Asons will be paid for
“work . . . performed.”  Construing the contract “to effectuate its spirit and purpose,” as we
must, Hercules, 292 F.3d at 1381, it is logical that HUD would want, and expect, to pay only
for “work . . . performed,” not to provide payments for services neither ordered nor received.7 
7  As HUD also explains, interpreting the word “monthly” in CLINs 0005 and 0007
as meaning “calendar month,” with a mandatory first-of-the-calendar-month start date,
creates the possibility that Asons would be paid both a monthly fee under CLIN 0005 and a
one-time fee under an “initial services” CLIN for the same property in a single month.  As
previously explained, when Asons is originally assigned a property, it performs pre-
conveyance and/or initial services for that property under CLIN 0001, 0002, 0003, 0004, or
0008.  When initial services are complete, the property may then receive property
management services under CLIN 0005 or 0007.  If a property is assigned for initial services
under CLIN 0004 on April 1, but moves from the initial services CLIN to CLIN 0005 on

CBCA 3491, 3636 29
See Coastal Dry Dock & Repair Corp., ASBCA 31894, 87-1 BCA ¶ 19,618, at 99,236 (“One
aid to interpretation . . . is that we should give meaning to the contract provision which is in
furtherance of the principal apparent purpose of the contract.”).
Conversely, however, interpreting the term “monthly” in CLINs 0005 and 0007 as
something other than starting on the first day of a calendar month would seemingly render
other contract language unnecessary and redundant, in conflict with general contract
interpretation principles.  “An interpretation that gives meaning to all parts of the contract
is to be preferred over one that leaves a portion of the contract useless, inexplicable, void,
or superfluous.”  NVT Technologies, Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir.
2004); see Restatement (Second) of Contracts § 203(a) (1981) (contract interpretation should
not leave a part of contract “of no effect”).  In the contracts at issue here, the “Estimated
Unit” for another of the CLINs – CLIN 0006 – is defined as “[m]onthly when a property is
assigned until it is removed or converts to HUD vacant.”  Exhibit 1 at R-000007.  This
language seems to indicate that the monthly period starts when the property is assigned – that
is, the fee for CLIN 0006 assignments does not start to run retroactively from the top of a
calendar month, but starts to run instead from the date that the property is added to the
contractor’s portfolio.  If the word “monthly,” as used in CLIN 0005 and 0007, does not
mean a “calendar month,” there is no purpose in adding language to CLIN 0006 to indicate
that “monthly” in that CLIN does not start at the top of the “calendar month.”  Accordingly,
defining the word “monthly” in CLINs 0005 and 0007 as a roughly thirty-day period starting
from the date that a property is assigned would render the extra language in CLIN 0006
redundant, in violation of standard contract interpretation principles.
To determine if a contract is ambiguous, a tribunal “need not determine which” of the
parties’ interpretations “is the more likely interpretation,” but “need merely decide whether
[each] . . . is sufficiently reasonable to render the clause ambiguous.”  Mellon Bank, N.A. v.
United Bank Corp. of New York, 31 F.3d 113, 115 (2d Cir. 1994) (quoting Wards Co. v.
Stamford Ridgeway Associaties, 761 F.2d 117, 121 (2d Cir. 1985)).  Here, there are contract
provisions that support, and detract, from each party’s interpretation.  Regardless of whether
we find the word “monthly” to refer to a calendar month or, instead, to mean a roughly
thirty-day period, there will be some conflict with some part of the contract.  In these
April 30, Asons would, under its interpretation of the contracts, receive a full fee payment
under CLIN 0004 for the initial services provided from April 1 to 29 for the property, plus
a full monthly April fee payment under CLIN 0005 for the same property.  An interpretation
that provides for such double payments would not effectuate the “spirit and purpose,”
Hercules, 292 F.3d at 1381, of the contracts.

CBCA 3491, 3636 30
circumstances, the meaning of the word “monthly” in these contracts is ambiguous – at least
with regard to whether it means a calendar month beginning on the first day of the month.
2. Using Extrinsic Evidence to Resolve the Ambiguity
Typically, when faced with a contract provision that is ambiguous on its face, we may
turn to extrinsic evidence to assist in discerning the parties’ intent and to determine whether
there is truly an ambiguity.  Metropolitan Area Transit, 463 F.3d at 1260.  Although
competing extrinsic evidence can create a genuine issue of material fact that precludes a
tribunal’s ability to grant summary relief, see Beta Systems, 838 F.2d at 1183, a disputed fact
is “material” only if it “might affect the outcome of the suit under the governing law,” and
a dispute is genuine only “if the evidence is such that a reasonable [fact finder] could return
a verdict for the nonmoving party” based upon it.  Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
Here, much of the extrinsic evidence that the parties have submitted is not relevant,
under proper contract interpretation rules, to a determination of whether the word “monthly”
in CLINs 0005 and 0007 begins on the date of a property’s assignment into Asons’ portfolio
or, instead, begins at the top of whatever calendar month in which the property is assigned. 
Both parties have attached to their summary relief pleadings voluminous pages of deposition
testimony indicating what particular individuals subjectively, and currently, believe the
contract language to mean – beliefs that the parties did not share with one another prior to
contract award.  Unexpressed subjective intent “plays no role in interpreting a contract,” even
if the contract is ambiguous.  Western States, 26 Cl. Ct. at 826 (citing ITT Arctic Services,
Inc. v. United States, 524 F.2d 680, 684 (Ct. Cl. 1975)); see Dana Corp. v. United States, 470
F.2d 1032, 1041 (Ct. Cl. 1972) (“subjective intent is not important and the [contract
language] must be viewed from an objective standpoint”).  Accordingly, the deposition
testimony is generally irrelevant to the resolution of this dispute, and it cannot create a
genuine issue of material fact.
Nevertheless, there is evidence in the existing record suggesting that some individuals
within HUD, both before contract award and early during the contract performance period,
interpreted the language that actually made it into the contract as providing for a “monthly”
fee payment that, regardless of the date within the calendar month that the property was
assigned, would retroactively start from the top of that calendar month.  Interpreting the
existing record evidence most favorably to Asons, Asons has a plausible argument that, after
HUD employees discovered that HUD had issued a solicitation using different language from
that which they had originally drafted, several of them indicated that, if HUD did not amend
the solicitation and change the language, offerors would believe that, for any property
assigned, payments would not be prorated:  that is, offerors would believe that payments

CBCA 3491, 3636 31
would be calculated from the top of the calendar month in which the property was assigned
(rather than running from the date on which the property was assigned).  See, e.g., Exhibit
34 at R-001088; Exhibit 41 at R-001110; Exhibit 82 at R-002000 to -002001.  “Generally,
evidence of contemporaneous beliefs about the contract is particularly probative of the
meaning of a contract.”  Reliable Contracting Group, LLC v. Department of Veterans Affairs,
779 F.3d 1329, 1332 (Fed. Cir. 2015); see Brooklyn Life Insurance Co. of New York v.
Dutcher, 95 U.S. 269, 273 (1877) (“The practical interpretation of an agreement by a party
to it is always a consideration of great weight.”); Max Drill, Inc. v. United States, 427 F.2d
1233, 1240 (Ct. Cl. 1970) (en banc) (per curiam) (“[t]he interpretation of a contract by the
parties to it before the contract becomes the subject of controversy is deemed by the courts
to be of great, if not controlling weight”).  “[I]n an executory contract, . . . where its
execution necessarily involves a practical construction, if the minds of both parties concur,
there can be no great danger in the adoption of it by the [tribunal] as the true one.”  City of
Chicago v. Sheldon, 76 U.S. (9 Wall.) 50, 54 (1869).  Further, “[t]he closer in time to
contract formation, and the more distant the prospect of litigation, the more reliable the
parties’ practical interpretation should be.”  Dalles Irrigation District v. United States, 82
Fed. Cl. 346, 356 (2008).  Even though there is no allegation in the record that any of these
HUD employees communicated their concerns about the language to Asons, HUD
employees’ pre-award interpretation of the contract as precluding proration is strong extrinsic
evidence in resolving the facial ambiguity of the meaning of “monthly” in the M&M III
contracts.
At the same time, there is evidence detracting from Asons’ position.  First, it is
unclear from the existing record whether the individuals questioning whether the solicitation
language permitted “prorating” were referring only to whether payment for a period of less
than approximately thirty days was permitted or, rather, whether they were also referring to
the start date for the first “monthly” payment, and the resolution of those issues among those
HUD employees is less than clear on the existing record.  Second, the record contains no
information regarding the circumstances under which these HUD employees were rendering
their interpretations – that is, nothing in the record tells us whether, in making these
statements, they were interpreting the actual language used in the solicitation or instead were
merely reacting to the absence of the language that they had suggested.  Third, assuming that
the HUD employees were referring to the start date for monthly payments, the record does
not establish that the contracting officer shared the belief that those HUD employees appear
to have had, and, even though the HUD employees’ beliefs might support the reasonableness
of Asons’ interpretation, interpretations by unauthorized individuals do not bind the
Government, making them less than conclusive.  See Enrico Roman, Inc. v. United States,
2 Cl. Ct. 104, 108 (1983) (“Statements of an unauthorized Government employee have never
provided the required imprimatur desired by plaintiff.  At the very most, the statements of
an unauthorized Government employee can only lend insight to the reasonable interpretation

CBCA 3491, 3636 32
of a contract.”).  Fourth, HUD has presented evidence that, when viewed most favorably to
HUD, indicates that Asons did not hold the interpretation of the term “monthly” it now
espouses when it was entering into the M&M III contracts and instead based its offer on a
faulty assumption that property and vacant lot management services were paid with a single
fee of four equal payments – evidence that, if true, would defeat Asons’ argument that the
parties mutually interpreted the actual contract provisions in the same manner prior to
contract award.  Exhibit 49 at R-001531.  Fifth, and importantly, interpreting a contract in
a manner that effectuates its purpose is an important element of contract interpretation,
Hercules, 292 F.3d at 1381, and any argument that the start date for payment precedes the
actual assignment of the property for management services appears to conflict with the stated
purpose of the payment provisions of the contract, which indicated that the contractor would
be paid for “work required, performed, and accepted.”  Exhibit 1 at R-000023; Exhibit 47
at R-001383.
As previously discussed, “[f]or purposes of deciding motions for summary relief, we
must take all reasonable inferences in favor of the non-moving party.”  Americom
Government Services, Inc. v. General Services Administration, CBCA 2294, 14-1 BCA
¶ 35,687, at 174,683 (citing Mingus Constructors, 812 F.2d at 1390).  Accordingly, in
reviewing Asons’ summary relief motion, we must make all reasonable inferences from the
factual record in the Government’s favor, and, in reviewing the Government’s motion, we
must reallocate those inferences in Asons’ favor.   “Any doubt on whether summary relief
is appropriate is to be resolved against the moving party.”  SBBI, Inc. v. International
Boundary & Water Commission, CBCA 3213, 14-1 BCA ¶ 35,582, at 174,362.  Further, “[a]t
this stage, the Board may not make determinations about the credibility of potential witnesses
or the weight of the evidence.”  Partnership for Response & Recovery, LLP v. Department
of Homeland Security, CBCA 3566, et al., 14-1 BCA ¶ 35,805, at 175,114.
Because there is extrinsic evidence supporting each side’s interpretation of the
intended start date for “monthly” payments, and because of the conflict in that extrinsic
evidence, we do not believe it appropriate in response to summary relief motions to decide
whether the facial ambiguity can be resolved.  If, following a hearing or a submission of this
issue on the written record pursuant to Board Rule 19, we cannot resolve the ambiguity as
to when the “monthly” fee payment begins based upon the extrinsic evidence, we will then
have to determine whether that unresolvable ambiguity is sufficiently “patent” – that is,
whether it is so “obvious, gross, glaring, . . . that plaintiff contractor had a duty to inquire
about it at the start,” States Roofing Corp. v. Winter, 587 F.3d 1364, 1372 (Fed. Cir. 2009)
(quoting H & M Moving, Inc. v. United States, 499 F.2d 660, 671 (Ct. Cl. 1974)), which the
contractor did not do – to avoid charging the Government, under the doctrine of contra
proferentem, with responsibility for the ambiguity.  See HPI/GSA 3C, LLC v. Perry, 364 F.3d
1327, 1334 (Fed. Cir. 2004) (“Where an ambiguity is not sufficiently glaring to trigger the

CBCA 3491, 3636 33
patent ambiguity exception, it is deemed latent and the general rule of contra proferentem
applies.”).  If we do not find the ambiguity patent, we will then resolve HUD’s argument that
Asons did not rely on its current interpretation when bidding, which, HUD argues, would
preclude application of the contra proferentem doctrine here.  Before we reach those issues,
however, we must determine whether the extrinsic evidence that the parties have presented,
and may present in a future hearing or Rule 19 record submission, is sufficient to resolve the
ambiguity.  Gardiner, Kamya & Associates v. Jackson, 467 F.3d 1348, 1354 (Fed. Cir. 2006). 
Applying the standards that we must to motions for summary relief, we deny both parties’
requests for summary relief on whether “monthly” payments must begin at the top of the
calendar month, rather than on the date of a property’s assignment, and preserve this issue
for further proceedings.8
E. Whether HUD Can Reduce Monthly Fee Payments To Less Than Thirty Days
1. Prorating Under CLIN 0005
Regardless of when the “monthly” fee period begins, there is a question as to whether,
once the “monthly” period starts, HUD is obligated under the contracts to pay the full
monthly fee – that is, a fee covering a full “month” of approximately thirty days – if a
property leaves Asons’ portfolio before that “monthly” period has ended.
It is clear from the dictionary definitions discussed above that the word “monthly” in
CLIN 0005’s “Estimated Unit” refers to a period of approximately thirty days.  But nothing
8  Asons has argued that the ASBCA’s recent decision in Amaratek, ASBCA 59149,
et al., 15-1 BCA ¶ 35,808 (2014), is relevant to this issue because, in Amaratek, the ASBCA
considered the word “month” to begin on the first day and end on the last day of the calendar
month.  The Amaratek decision is inapposite here for three reasons.  First, the decision was
issued under ASBCA Rule 12.2 as having “no value as precedent,” and, even if it had value
as precedent, it would not be not binding on the CBCA.  Second, the parties do not appear
to have disputed in Amaratek that the reference to “month” in the contract there was a
calendar month beginning on the first of each month, instead focusing only on whether the
agency had to pay during a stop-work period; here, the meaning of the word “monthly” in
Asons’ contracts is a central focus of the parties’ dispute.  Third, the context of the contract
language in Amaratek is different from that here, and contract interpretation is wholly
dependent on the language and context used in an individual contract, read as an “organic
whole.”  Lockheed Martin IR Imaging Systems, Inc. v. West, 108 F.3d 319, 322 (Fed. Cir.
1997).  As discussed above, the word “monthly” can mean different things in different
contexts.  Accordingly, Amaratek is not helpful here.

CBCA 3491, 3636 34
in the CLIN 0005 language indicates that the period of approximately thirty days, or at least
payment for it, can be cut off early or prorated for less than thirty days.  That is made clear
when we look at the “Estimated Unit” language for CLIN 0006, which defines the unit as
“[m]onthly when a property is assigned until it is removed or converts to HUD vacant.” 
Exhibit 1 at R-000007 (emphasis added).  That language in CLIN 0006 connotes that the fee
payment will cease, or be prorated, upon the date that the property is removed from the CLIN
0006 portfolio.  HUD is arguing that CLIN 0005 should be interpreted to have the same
effect as CLIN 0006.  In fact, it affirmatively asserts that “there is no logical reason as to why
CLINs 0005, 0006, and 0007 would be paid differently from one another.”  Respondent’s
Response Brief at 4.  Yet, CLINs 0005, 0006, and 0007 all use different language in defining
their “Estimated Units.”  If we interpreted CLIN 0005 in the same manner as CLIN 0006, the
“until it is removed or converts to HUD vacant” language in CLIN 0006 would be
superfluous.  As previously discussed, interpretations that render portions of a contract
superfluous are disfavored.  NVT Technologies, 370 F.3d at 1159.
In addition, it is very clear that HUD was well aware of the type of language necessary
to permit proration to a period of less than one full month.  In addition to the CLIN 0006
language, HUD originally included in these contracts a clause that expressly addressed
prorated payments at the contract’s expiration.  In the original version of section B.5, the
contractor expressly “accept[ed] the risk that, upon expiration of the contract, including any
options to extend that are exercised, properties assigned to it may remain unlisted or unsold”
and that, “[i]n such case, in accordance with the fixed unit price nature of this contract, the
Contractor shall only receive the portion of the fixed unit price due for the property as
reflected in [section B.4].”  Exhibit 1 at R-000015; Exhibit 47 at R-001375.  Although HUD
later amended section B.5 to eliminate this language, it is clear that HUD understood what
was necessary to prorate.  In addition, as with CLIN 0006, if HUD could prorate CLIN 0005
monthly payments without including the type of language originally set forth in section B.5,
it would render that portion of the original section B.5 superfluous, in violation of contract
interpretation principles.  The fact that HUD included language expressly providing for
prorating to a period of less than one full month in the contracts for some payments, but did
not include it for CLIN 0005, supports an interpretation that the “monthly” payment under
CLIN 0005 should not be reduced to a less-than-one-full-month period.
In effect, HUD asks us to interpret the word “monthly” to mean “daily.”  That is,
HUD believes that it should pay Asons on a daily basis for each day that a CLIN 0005
property is in Asons’ portfolio.  It wants to limit its payments in any given month to those
days within the month that Asons actively held that property as part of its services portfolio. 
Had HUD used the word “daily” in CLIN 0005, its intent would have been clear:  if a
property was assigned to Asons on March 15 and removed three days later, HUD would pay
for four days of services.  But the contract does not say “daily,” and we have not identified

CBCA 3491, 3636 35
any basis upon which to contort the “monthly” fee language of CLIN 0005 into something
that really provides for a daily fee.
HUD asserts that section G.2, which provides payment for “work . . . performed,” sets
forth the type of language necessary to permit prorating and to change the meaning of the
word “monthly” to “daily.”  Yet, section G.2 provides that the payment for “work . . .
performed” is defined “as stated in Part I, Section B of this contract.”  Exhibit 47 at
R-001383.  Section B.4, which is contained within “Part I, Section B,” defines the property
management fee period for CLIN 0005 as “monthly.”  Again, we cannot identify any logical
way to define “monthly” as “daily” or “a thirty-or-so-day period, minus those days for which
work was not ordered.”  The contracts simply do not say that.
HUD also references language in section G.2 providing that contractors will be paid
“the fixed-unit-rate for the applicable CLINs” and argues that, by using the word “rate,” the
clause makes clear that HUD can simply pay a portion of the monthly property management
services fee – that the monthly fee is really a monthly “rate” that can be prorated instead of
a firm monthly fee.  Again, there is no reasonable way to interpret the word “monthly” as
something less than a full month simply because the contracts say that Asons will be paid the
“fixed-unit-rate.”  Section G.2 qualifies the term “fixed-unit-rate” by indicating that it is “as
stated in Part I, Section B of this contract.”  Section B defines the CLIN 0005 unit as
“monthly” and identifies an associated unit price – it does not provide for discounts or
percentage reductions in “monthly” fees.  It seems clear that the use of the word “rate” in
“fixed-unit-rate,” in the context in which it is used in these contracts, means the “amount paid
or charged for a good or service.”  Black’s Law Dictionary 1452 (10th ed. 2014).  Unless we
can identify two reasonable competing interpretations of CLIN 0005’s meaning, there is no
basis for finding an ambiguity.  Community Heating & Plumbing Co. v. Kelso, 987 F.2d
1575, 1579 (Fed. Cir. 1993) (“A contract is ambiguous if it is susceptible of two different and
reasonable interpretations, each of which is found to be consistent with the contract
language.”).  Any attempt to force HUD’s proposed interpretation into the language of
sections B.4 and G.2 creates not a reasonable possible interpretation of the contract language,
but a confusing morass of words and phrases that results in no logical meaning at all.  HUD’s
unreasonable interpretation cannot create an ambiguity.
HUD further asserts that, in the Questions and Answers (Q&As) that were made part
of the solicitation for these contracts, HUD made a statement suggesting that monthly fees
would be prorated to less than a full month.  That Q&A reads as follows:
B.5:  At the end of the contract will the Vendor be paid for FSM services
rendered on unlisted and/or unsold properties?

CBCA 3491, 3636 36
Response:  The FSM vendor will receive their monthly property management
or vacant lot fee during the period of time the property remains in their
inventory.  The FSM vendor will be reimbursed for all allowable pass through
expenses.
Exhibit 41 at R-001159.  As made clear in the question itself, this Q&A relates to “the end
of the contract.”  Id.  There is a specific provision in the contract, section B.5, titled
“Payment At Contract Expiration,” which deals with how properties unsold at the end of the
contract will be handled.  See Exhibit 64 at R-001657.  The on-going CLIN 0005 “monthly”
property management services fee is not covered by section B.5, but by section B.4.  Section
B.4 says nothing about prorating monthly fees to a period of less than a full month, and
HUD’s attempt to apply a Q&A relating to section B.5 to redefine the meaning of the word
“monthly” in the unrelated section B.4 is unfounded.  Even if the Q&A expressly applied to
section B.4, the language is simply too vague to put Asons on notice that, by saying
“monthly,” HUD meant “monthly but subject to proration to something less than a full
month.”
HUD also maintains that Asons cannot rely upon its interpretation of CLIN 0005 as
not permitting prorating because Asons did not hold that understanding when it executed its
contracts.  Respondent’s Motion for Summary Relief at 32-33.  As support, it cites to an
e-mail message from Asons, sent soon after contract award, in which Asons expresses
confusion over why a provision that was contained in an early version of the solicitation –
one that (like the predecessor M&M II contracts) provided for payment of a single
management fee over the course of four months – was not in its awarded contracts,
apparently not realizing that the four-month fee provision was deleted from the solicitation
by amendment during the procurement process.  See Exhibit 49 at R-001531.  It is true that,
“where a contractor seeks recovery based on his interpretation of an ambiguous contract, he
must show that he relied on this interpretation in submitting his bid.”  Fruin-Colnon Corp.
v. United States, 912 F.2d 1426, 1430 (Fed. Cir. 1990) (quoting Lear Siegler Management
Services Corp. v. United States, 867 F.2d 600, 603 (Fed. Cir. 1989)).  “This rule is aimed at
preventing contractors from recovering additional compensation under a contract based on
a mere afterthought, i.e., based on an interpretation of the contract not contemplated by the
contractor at the bidding stage.”  Fry Communications, Inc. v. United States, 22 Cl. Ct. 497,
510 (1991).  A contractor cannot “contend that it relied on any interpretation of [the]
specification” at the bidding stage “when it had no knowledge of its existence.”  Dale
Ingram, Inc. v. United States, 475 F.2d 1177, 1185 (Ct. Cl. 1973).  The rule only applies,
though, if the contract term is ambiguous.  Meredith Construction Co., ASBCA 41736, 93-2
BCA ¶ 25,864, at 128,685; Roberts Construction Co., ASBCA 32171, 86-2 BCA ¶ 18,981,
at 95,859.  Here, although we have not yet decided when the one-month period for
calculating monthly payment begins, we have found that, once the “month” begins, the

CBCA 3491, 3636 37
contract’s plain language does not permit CLIN 0005 prorating to a period less than a full
one-month period and that HUD’s interpretation to the contrary is not reasonable. 
Accordingly, because there is no ambiguity, the rule requiring reliance when bidding has no
application.9
HUD finally asserts that, if we do not find the right to make prorated fee payments
obvious from the contracts’ terms, we could imply that term into the contracts to fill a gap
or an omission.  In support, HUD cites to Restatement (Second) of Contracts § 204 (1981),
which states that, “[w]hen the parties to a bargain sufficiently defined to be a contract have
not agreed with respect to a term which is essential to a determination of their rights and
duties, a term which is reasonable in the circumstances is supplied by the court.”  Id.  Here,
though, there is no omission.  There is no gap.  HUD, whether intentionally or not, issued a
solicitation that provided for payment of monthly fees under CLIN 0005 and did not provide
for fee proration, and it awarded Asons contracts containing that provision.  That is not a gap
or omission, but is the requirement to which HUD agreed.  We have no basis for changing
those agreements after-the-fact by adding terms to redefine the parties’ bargain.
The real problem here is that HUD did not create the contract that it originally
intended.  HUD’s original drafts of the solicitation provided that the CLIN 0005 “Estimated
Unit” would be precisely the same as that for CLIN 0006:  “Monthly when a property is
assigned until it is removed or converts to HUD vacant.”  Yet, for reasons unclear from the
record, the CLIN 0005 language was somehow changed during the procurement process to
read “monthly,” without the qualifying language, even while the CLIN 0006 went out as
originally drafted.  The record makes clear that numerous HUD employees, upon discovering
the change in the CLIN 0005 solicitation language, recognized that the solicitation needed
9  HUD’s argument about Asons’ reliance is odd since it does not appear that HUD
can show its own reliance during the procurement process on its current interpretation.  HUD
employees’ belief during the procurement process that CLIN 0005 prorating was permissible
was clearly based on language that was not ultimately included in the contracts.  To the
extent that the record contains any evidence about HUD’s understanding at the time of
bidding as to whether the contracts, as they are written, permitted proration, it shows that at
least some HUD employees believed that they did not.  There is no reason that the same
reliance rule that HUD seeks to impose on the contractor should not apply equally to HUD. 
See Fry Communications, 22 Cl. Ct. at 510 (purpose of reliance requirement is to prevent
party from imposing extra financial obligations on other as “mere afterthought” when, after
contract award, it discovers means of interpretation that would provide the party extra
money).  Nevertheless, because we find that CLIN 0005 is unambiguous with regard to
prorated fee payments, we need not resolve this issue.

CBCA 3491, 3636 38
to be changed before award to permit CLIN 0005 prorating.  But no change in language was
ever made.  There is no basis for placing the burden upon the contractor to compensate for
HUD’s actions, even if those actions were a mistake.  All of the communications in the
record about the change in the CLIN 0005 solicitation language and the possible effect of the
change are internal to HUD.  There is no evidence that anyone ever shared with offerors
before the contracts were awarded that different CLIN 0005 language was intended or that
HUD expected to prorate CLIN 0005, such that Asons could have had no notice of HUD’s
unstated intent.  Asons is bound only by the language in the contracts that it actually
executed, see Enterprise Information Services, Inc. v. Department of Homeland Security,
CBCA 4671, 15-1 BCA ¶ 36,010, at 175,886-87 (language, even if originally in solicitation,
that was not incorporated into contract cannot change parties’ obligations under the contract
language actually written), and the actual contract language here does not permit CLIN 0005
fee proration to a period of less than a full month.10
2. Prorating Under CLIN 0007
We reach a different result with regard to CLIN 0007.  Unlike CLIN 0005, the
“Estimated Unit” for CLIN 0007 is “[m]onthly until sold.”  Exhibit 1 at R-000007.  That is
the language HUD originally intended to use for CLIN 0007.  Under rules of contract
interpretation, the addition of the “until sold” language to the word “monthly” has to have
some purpose and meaning.  See NVT Technologies, 370 F.3d at 1159.  Because the word
“monthly” in CLIN 0005 does not permit proration to something less than a full period of
approximately thirty days, the addition of “until sold” in CLIN 0007 could have no other
purpose but to permit HUD to stop payment of the monthly fee when the CLIN 0007
property is sold, even if it is sold mid-month.  Accordingly, we find that CLIN 0007 permits
proration.
10  HUD asserts that, at a minimum, the contract must be patently ambiguous as to
prorating because “several different individuals had spotted a potential omission in the
contract language as to whether property management fees were to be prorated.” 
Respondent’s Motion for Summary Relief at 38 n.21.  The “individuals” to whom HUD
refers are all HUD employees, who knew what the original intended language for CLIN 0005
was and then noticed that the actual solicitation contained different language.  In the
circumstances here, it would be wholly unfair to impose upon Asons the same level of
knowledge, and obligation to identify an ambiguity, as HUD employees who were personally
involved in the agency’s internal development and implementation of the solicitation.  HUD
has identified no reason why Asons, prior to contract award, should have recognized that
HUD had meant to include different language in the solicitation than it did.

CBCA 3491, 3636 39
Decision
For the reasons discussed above, the Board cannot decide the question of when a
“month,” for purposes of establishing when fee payments commence, starts under either
CLIN 0005 or CLIN 0007.   Given the competing evidence that the parties have submitted,
the Board cannot property resolve that issue on a motion for summary relief.  It will have to
be resolved through further proceedings.
Nevertheless, we can, and do, grant summary relief on the issue of when the “month”
ends under both CLINs 0005 and 0007, ruling in Asons’ favor on CLIN 0005 and HUD’s
favor on CLIN 0007.  While we do not decide here when payment under CLIN 0005
commences, regardless of when the “month” commences as to that CLIN, payment will run
from that date to the day before the corresponding date in the next month – that is, if the
“month” begins on January 1, payment for property management services will run through
January 31, even if HUD cancels services for the property on January 15; if the “month”
begins on January 10, payment will run through February 9, even if the property leaves
inventory on February 3.  As to CLIN 0007, HUD is entitled to prorate payment for the final
month to reflect the number of days in inventory, so that, if the “month” starts on January 1
but leaves inventory on January 15, HUD will pay only for that fifteen-day period. 
Accordingly, CLIN 0005 will be paid in full monthly increments (of twenty-eight to thirty-
one days, depending upon the month), but CLIN 0007 need not be paid in a full increment
for the last month that a property is in inventory.
Accordingly, we DENY both parties’ motions for summary relief as to the question
of when the “monthly” fee payment under the contract begins.  Nevertheless, we reject
HUD’s release, waiver, partial performance, and trade usage arguments.
We GRANT IN PART each party’s motion for summary relief with regard to
whether, once payment of the monthly fee for a particular property under CLIN 0005 or 0007
commences, the fee payment can be prorated to a period of less than a full month.  We grant
Asons’ summary relief motion as to CLIN 0005, holding that HUD is not entitled to prorate
the CLIN 0005 monthly fee to something less than one full month.  We grant HUD’s
summary relief motion as to CLIN 0007, holding that HUD is entitled to prorate the last
CLIN 0007 fee payment for vacant lot property management services for an assigned vacant
lot to the date that the lot under that CLIN is sold.
Any interest on any judgment entered in Asons’ favor under the CLIN 0005 claim will
run from December 8, 2010, and any interest on the CLIN 0007 claim will run from
November 28, 2012.

CBCA 3491, 3636 40
The Board will schedule further proceedings in these consolidated cases by separate
order.
_____________________________
HAROLD D. LESTER, JR.
Board Judge
We concur:
____________________________ _____________________________
CATHERINE B. HYATT HOWARD A. POLLACK
Board Judge Board Judge