ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE WOODROW 

ON APPELLANT’S MOTION FOR RECONSIDERATION 

I. Background 

 These appeals concern a requirements contract with the Defense Commissary 

Agency (DeCA) to supply fresh fruits and vegetables (FF&V) to U.S. Military 

commissaries (i.e., grocery stores) in Japan and South Korea. 

 Following a three-day hearing, the Board issued an opinion on November 9, 

2020, concluding that appellant, MPG West, LLC (MPG), did not meet its burden of 

proving that the government breached the contract or that the government 

constructively changed the terms of the contract. MPG West, LLC, ASBCA 

No. 61100 et al., 20-1 BCA ¶ 37,739 at 183,156. 

 MPG moves for reconsideration of the Board’s November 9, 2020 decision. 

Familiarity with that opinion is assumed. Because MPG West has not demonstrated 

errors in our findings of fact or conclusions of law, and because MPG West has not 

introduced newly discovered evidence, we deny the motion for reconsideration. 

Appeals of - )

)

MPG West ) ASBCA Nos. 61100, 61560, 61570

)

Under Contract No. HDEC09-15-D-0002 )

APPEARANCES FOR THE APPELLANT: Yuki Haraguchi, Esq.

J. Travis Pittman, Esq.

 Holmes Pittman & Haraguchi, LLP

 Greensboro, MD

APPEARANCES FOR THE GOVERNMENT: Brian Lucero, Esq.

 Deputy General Counsel

Betsy Dulin, Esq.

Daniel O. O’Connor, Esq.

 Trial Attorneys

 Defense Commissary Agency

Fort Lee, VA 
2

II. Standard of Review

In deciding a motion for reconsideration, we examine whether the motion is 

based upon newly discovered evidence, mistakes in our findings of fact, or errors of 

law. Precision Standard, Inc., ASBCA No. 58135, 16-1 BCA ¶ 36,504 at 177,860. A 

motion for reconsideration does not provide the moving party the opportunity to 

reargue its position or to advance arguments that properly should have been presented 

in an earlier proceeding. See Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014). 

The moving party must show a compelling reason why the Board should modify its 

decision. ADT Construction Group, Inc., ASBCA No. 55358, 14-1 BCA ¶ 35,508 

at 174,041.

III. Appellant Has Not Identified New Evidence or Material Mistakes in our Findings of 

Fact

MPG alleges several mistakes in the Board’s findings of fact. As we discuss 

below, MPG’s disagreements with the Board’s findings go to the weight accorded to 

particular testimony or to the Board’s conclusions based upon uncontroverted 

evidence. MPG offers no new factual information to rebut the Board’s findings. 

Moreover, none of MPG’s alleged mistaken facts, even if true, would change the 

Board’s conclusion that MPG failed to demonstrate that the government breached the 

contract.

A. MPG’s Efforts to Locally Source Produce

First, MPG alleges error in the Board’s factual findings concerning 

MPG’s failure to implement a local sourcing program for fresh produce. MPG

specifically contests the following factual findings:

76. MPG West never implemented the local sourcing plan 

(tr. 2/260, 264, 3/44-45). Instead, MPG West continued to 

source most of its produce from the United States and 

Mexico (tr. 3/44). 

77. MPG West sourced produce in the United States and 

Mexico through its “broker” and sister company, Parma 

Fruit, also owned by Mr. Penny (tr. 1/ 219-20). MPG West 

paid brokerage fees to Parma Fruit for items sourced in the 

United States and Mexico (tr. 1/219-20). 
3

78. By sourcing produce from the United States and 

Mexico, MPG West incurred the additional cost of 

transporting the produce to Korea and Japan (tr. 3/44).

MPG West, LLC, 20-1 BCA ¶ 37,739 at 183,141.

Specifically, MPG contends that it “established its subcontractor Interharvest as 

a vehicle to supply local produce in Japan” (app. mot. at 2). MPG points to one of the 

weekly pricing spreadsheets prepared by the government’s pricing specialists as an 

example of a point in time in which MPG had obtained over 50% of the required 

produce items from local sources (app. mot. at 3).

MPG also points to the testimony of its owner, Mr. Penny, that MPG had 

purchased local produce in Korea from various local wholesale distributors during the 

period from December 2015 through August 2016 (app. mot. at 3). MPG further 

points to statements by various public officials regarding MPG’s efforts to source as 

much local produce as possible (app. mot. at 3-4).

In its reply supporting its motion for reconsideration, MPG sets forth a 

“Schedule 1” table purporting to show that its import costs decreased while its 

in-country costs increased on a month-to-month basis from October 2015 to 

February 2016. According to MPG, the “Schedule 1” table draws on data from MPG’s 

Proof of Costs Statement and from Rule 4 tabs 13b, 43i, and 41. (App. reply at 2-3)

These examples are unpersuasive and do not overcome the weight of evidence 

demonstrating that MPG was unprepared to locally source produce and never 

implemented a plan to do so. For example, MPG’s own post-hearing factual findings 

acknowledge its difficulties in sourcing local produce, particularly at the beginning of 

the contract, including acknowledging that it would take 3-4 months to establish 

sources for local produce and that produce that is not grown on contract is often 

expensive and difficult to obtain on the open market (app. post-hearing facts 110-23). 

Moreover, the Board’s factual findings are based on unrebutted transcript 

testimony. For example, roughly two months after the contract started, in a 

January 2016 meeting with DeCA representatives, MPG assured DeCA that MPG had 

a plan to locally source produce through local contractors, including approximately 

100 items through the Yongsan facility in Korea. MPG West, LLC, 20-1 BCA 

¶ 37,739 at 183,141. Despite confirming its local sourcing plan in correspondence 

with DeCA, MPG never implemented the plan and continued to source most of its 

produce from the United States and Mexico. Id.

Finally, the “Schedule 1” table, set forth in MPG’s reply brief, was not a 

hearing exhibit, nor did MPG provide it in its pre- or post-hearing briefs. Although 
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MPG asserts that the information summarized in the table was contained in its 

Rule 4 exhibits, the Board is not obligated to locate, organize, and summarize MPG’s 

voluminous billing records on behalf of MPG. See GSC Constr., Inc., ASBCA 

Nos. 59402, 59601, 21-1 BCA ¶ 37,751 at 183,251 (stating that the Board will not 

scour the record for appellant’s evidence or do appellant’s work for it).∗

Ultimately, while it may be true that MPG was able to gradually reduce its 

dependence on imported produce during the period from December 2015 until 

February 2016, it is also true that MPG did not have a local sourcing plan in place 

at the start of the contract. Indeed, as MPG’s owner testified, MPG relied upon its 

“sister” company, Parma Fruit, to import produce from the United States and Mexico

at the onset of the contract and continued to do so even as MPG attempted to secure 

local sources. MPG West, LLC, 20-1 BCA ¶ 37,739 at 183,141. 

At bottom, MPG has not provided any new evidence to rebut the 

Board’s factual findings. To the extent that the Board’s findings neglected to describe 

adequately MPG’s increased sourcing of local produce over the last months of its 

contract performance, it does not change our conclusion that MPG initially failed to 

implement a local sourcing plan, despite being on notice that locally sourcing produce 

was crucial to successful performance of the contract. MPG West, LLC, 20-1 BCA 

¶ 37,739 at 183,152.

B. Whether the Government Directed MPG to Alter its Prices and 

 Remove Items from the Stream of Commerce

MPG next finds fault with the Board’s findings that the government asked, 

rather than mandated, that MPG lower its prices or remove produce items from the 

ordering guide (app. mot. at 4). According to MPG, the Board’s factual findings failed 

to acknowledge that the government’s requests were directives, rather than requests. 

∗ “We are not charged with sorting through a haystack of documents to locate relevant 

facts. If we were to engage in such efforts it would cripple our ability to 

perform our basic function of providing a just, inexpensive and expeditious 

remedy . . . . In briefing we expect the parties to make specific reference to 

each remaining document which they contend supports their position. In the 

absence of such specific reference, parties risk documents not being considered 

in reaching our decision.” Gary Aircraft Corp., ASBCA No. 21731, 91-3 BCA 

¶ 24,122 at 120,718 (quoting Hawaiian Dredging & Constr. Co., ASBCA 

No. 25594, 84-2 BCA ¶ 17,290 at 86,125).
5

Specifically, at Fact 96, the Board found that: 

96. If an item was finally determined to be unreasonably 

priced, Ms. Bennet and/or a member of her team requested 

the item be removed from the ordering guide or offered at 

a lower price (tr. 3/86, 91).

Similarly, the Board found:

100. During these calls, DeCA would ask MPG West to 

offer certain products at lower prices (tr. 1/97-99, 

177-79).

101. During the weekly meetings, DeCA sometimes asked 

appellant to remove products, including products on the 

HVCI list and bagged salad, from the commissary catalogs 

due to the price (tr. 1/177-79; app. supp. R4, tab 57 at 96; 

R4, tabs 851, 867-68).

(Op. at 183,142)

Citing testimony from its owner, MPG asserts that the government continually 

pressured MPG to lower its prices and “directed MPG to set aside its contract rights 

under penalty of default termination” (app. mot. at 4).

MPG offers no new facts or evidence to rebut the Board’s factual findings. 

MPG also ignores the context provided by the Board’s other factual findings regarding 

the weekly price review process. In particular, DeCA’s requests concerning pricing 

were made in the context of weekly pricing meetings, at which representatives of 

DeCA and MPG would negotiate the final fixed price of items. MPG West, LLC, 20-1 

BCA ¶ 37,739 at 183,142-43. Although it was true that DeCA occasionally would 

direct MPG to either reduce a price or remove an item, it would do so only in 

accordance with the contractual requirement that prices must be fair and reasonable 

considering the market conditions at the time. Id. 

Although high prices were a common concern at the weekly meetings, the 

DeCA Produce Category Manager testified that DeCA typically would question only 

ten or so items out of a catalog of 400 offerings. On a weekly basis, DeCA approved 

the vast majority of the items submitted by MPG West. MPG West, LLC, 20-1 BCA 

¶ 37,739 at 183,142. For those items that DeCA questioned, DeCA gave MPG an 

opportunity to explain the price. Id. Indeed, in some situations, MPG would refuse to 

lower its prices, stating that the proposed price was the “new retail price” or due to a 

“FOB increase.” Id. at 183,143. In all cases, MPG was free to make a business 
6

decision to remove unavailable items (id.), or alter its profit margin on individual 

items. Id. at 183,142.

The weight of evidence and testimony demonstrates that the Board correctly 

concluded that the government did not breach its contractual obligations when 

conducting its weekly review of MPG’s produce catalog.

C. Whether the Status of Forces Agreement Obligated MPG to Import 

 Certain Produce Items

MPG also challenges the Board’s factual findings that MPG was not obligated 

to import any produce under the Status of Forces Agreements (SOFA) between the 

United States and Korea and Japan. MPG West, LLC, 20-1 BCA ¶ 37,739 at 183,141. 

Specifically, MPG challenges the testimony of the contracting officer, Ms. Petra Pulze, 

that MPG could choose whether or not to import items under the SOFA. Id. MPG 

challenges her testimony by alleging that the “United States government official in 

charge of SOFA compliance in Korea” successfully rebutted Ms. Pulze’s testimony

(app. mot. at 5).

We disagree. The contract expressly states that it is not subject to SOFA, and 

Ms. Pulze’s testimony demonstrates that DeCA’s conduct was consistent with the 

contract. MPG West, LLC, 20-1 BCA ¶ 37,739 at 183,141.

Ms. Pulze testified that the contract permitted embargoed items to be imported 

under the SOFA, but that doing so would require the contractor to coordinate with 

DeCA. She further testified that MPG never asked DeCA to have any items imported 

under SOFA (tr. 2/73-74). In response to a direct question about whether the SOFA 

importation process was mandatory, Ms. Pulze explained that it was not. MPG West, 

LLC, 20-1 BCA ¶ 37,739 at 183,141. Instead, the contract expressly stated that it 

required FOB destination delivery. Id. at 183,138. Indeed, the term was the subject of 

published vendor questions and bid protests challenging its feasibility, so MPG West 

should have been fully aware of the requirement. Id. at 183,137.

Moreover, DeCA amended the solicitation to specifically state that “[a]ny costs 

associated with the transportation and customs clearance of imported products must be 

included into the offered F.O.B. destination price” (app. supp. R4, tab 898 at 7).

MPG West unilaterally chose to import items under the SOFA agreement. 

MPG West, LLC, 20-1 BCA ¶ 37,739 at 183,141. As a consequence, DeCA had no 

duty to coordinate with SOFA representatives, other than to assist when MPG West 

requested and to avoid hindering MPG West. Indeed, DeCA did so when it wrote a 

letter to South Korean customs explaining that MPG West was permitted to import 
7

embargoed items for sale in the commissaries. This letter achieved the desired result, 

as importation difficulties ended after the letter. Id.

The weight of evidence demonstrates that MPG possessed the discretion to 

import items through either commercial channels or through the SOFA process and 

that its choice was a business decision, not a mandate from the government.

IV. Appellant’s Challenge to the Board’s Contract Interpretation Fails to Establish an 

Error of Law

A. The Government’s Estimation of its Requirements in the Solicitation 

 Was Not a Breach of Contract

MPG asserts that the government breached the requirements contract when it 

failed to revise its historical data to account for changes to the contract’s structure 

(app. mot. at 6). Specifically, MPG asserts that the government estimated its 

requirements based on historical data from the incumbent contract while failing to take 

into account the fact that the new contract relied upon obtaining local produce rather 

than imports under the SOFA. In support, MPG cites a series of cases establishing that 

the government is in breach of contract when it inadequately or negligently estimates

its requirements (app. mot. at 6). 

MPG’s recitation of the law in its motion for reconsideration is not 

substantively different from the Board’s discussion of the law in its opinion. MPG 

West, LLC, 20-1 BCA ¶ 37,739 at 183,147. As we stated, a breach of contract can 

occur when a government estimate is inadequately or negligently prepared and is 

included without correction in a solicitation or contract. Id. We further clarified that 

the critical measure for determining whether an estimate was negligently prepared is 

whether the estimate is based upon all relevant information that is reasonably available 

to the government at the time of the award. Id.

MPG’s argument, therefore, is not with the Board’s understanding of the law, 

but rather with the Board’s conclusion – based on that law – that MPG failed to 

provide specific evidence that DeCA was negligent in estimating weekly produce 

quantities. Id. at 183,148.

MPG makes several arguments in support of its challenge to the 

Board’s reasoning, all of which it previously made at the hearing or in its post-hearing 

briefing. MPG cites no new evidence in its challenge to the Board’s conclusions. The 

Board considered and addressed each of these arguments in its opinion. See Dixon v. 

Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014) (holding that motion for 

reconsideration does not provide the moving party with an opportunity to reargue its 
8

position); Philips Lighting North America, ASBCA No. 61769 et al., 21-1 BCA 

¶ 37,821 at 183,647.

First, MPG contends that the government was negligent by estimating its 

requirements based upon historical data from the incumbent contract, despite the fact 

that the new contract involved a significant change to the business model from the 

incumbent contract. In addition, MPG contends that the CO’s admission – that she 

did not perform a business case analysis to support her estimates of the 

government’s requirements – further compounds the government’s negligence. (App. 

mot. at 6-7)

MPG made these same arguments in its post-hearing briefing (app. post-hearing 

br. at 32). We continue to find MPG’s arguments unpersuasive. Because the 

government’s estimates for its requirements were based upon historical consumption 

rates, it was reasonable for the government to assume store patrons would continue to 

need similar items and quantities of produce. MPG West, LLC, 20-1 BCA ¶ 37,739 

at 183,137. The fact that the new contract expressly required the new contractor to use 

local sources as much as possible has no bearing on the reasonableness of the 

government’s requirements. MPG has not provided specific evidence that DeCA was 

negligent in estimating weekly produce quantities, nor does MPG provide any new 

evidence in its motion for reconsideration. Id. at 183,148.

Next, MPG argues that the government was negligent because it ignored 

information indicating that the new contract model would make it difficult for the 

contractor to meet the government’s requirements. Specifically, MPG alleges that 

DeCA ignored a market research report prepared by the incumbent contractor warning 

that it would be difficult to satisfy the government’s requirements via local sources. 

MPG further argues that the U.S. SOFA representative in Korea warned the 

government in April 2014 that it would have difficulty obtaining its requirements 

under the new contract model. (App. mot. at 7)

We previously addressed these specific arguments in our opinion. Regarding 

the February 2018 market research report, we reviewed the report’s conclusions and 

did not find them dispositive. Specifically, based upon the unrebutted testimony of the 

project manager for the research report, we found that the report did not segregate data 

generated during MPG West’s performance from data generated after other contractors 

took over in July 2016. MPG West, LLC, 20-1 BCA ¶ 37,739 at 183,144. We also 

concluded that the report did not study the impact of the contract on MPG West, 

did not evaluate DeCA’s conduct of weekly price reviews, and did not evaluate the 

startup process nor MPG West’s delivery of bagged salads. Id. Based upon these 

findings, we concluded that the report did not demonstrate that the government was 

negligent in preparing its requirements. We see no reason to change these conclusions 

upon reconsideration.
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The cases MPG West relies upon in its criticism of the Board’s conclusions 

do not alter our conclusions.

These appeals are not like Burnham Associates, Inc., ASBCA No. 60780, 18-1 

BCA ¶ 36,934, a case cited by MPG. In Burnham, the Board found the government 

negligent in preparing a dredging estimate when it significantly underestimated the 

quantity of soil to be dredged from the Boston Harbor. Id. at 179,942-43. Nor are

these appeals like Rumsfeld v. Applied Companies, Inc., 325 F.3d 1328 (Fed. 

Cir. 2003), another case cited by MPG. In Rumsfeld, the United States Court of 

Appeals for the Federal Circuit affirmed the Board’s finding that the government was 

negligent when it failed to inform the contractor that quantity estimates contained in its 

request for proposals was greatly overstated. Id. at 1335.

Here, in contrast, MPG does not raise an issue with the quantities of produce set 

forth in the government’s estimates of its requirements. MPG does not allege that the 

government over- or under-estimated its needs. Instead, MPG’s quarrel is with the 

purported difficulties of sourcing that produce in accordance with the terms of the 

contract.

As we held in our opinion, the contract expressly placed the burden (and 

concomitant risk) of sourcing produce on the contractor. MPG West, LLC, 20-1 BCA 

¶ 37,739 at 183,149, 183,154. As we found, the record demonstrates that MPG West 

failed to timely implement a local sourcing plan, instead sourcing most of its produce 

from overseas. Id. at 183,141. Moreover, the record further demonstrates that 

MPG’s successor contractors were able to fill the contract’s requirements using 

predominantly local sources (app. post-hearing br. at 2-3).

Finally, MPG argues that the government was negligent, because the DOD 

Inspector General (IG) performed an audit of the government’s market research and 

made a specific finding that it was inadequate (app. mot. at 7).

We expressly addressed the IG’s market research report in our opinion, 

concluding that the IG report did not demonstrate that DeCA breached the contract. 

MPG West, LLC, 20-1 BCA ¶ 37,739 at 183,149. We concluded that the IG’s market 

research report was not dispositive, because it did not differentiate between data 

generated during MPG West’s performance from data generated after other contractors 

took over the contract in July 2016. Id. at 183,144. Moreover, the report did not 

address DeCA’s weekly price reviews, nor its delivery of bagged salads. Id. 

MPG’s motion for reconsideration raises no new arguments and introduces no new 

facts that would cause us to change our conclusions.
10

B. Whether the Government Breached the Contract by Varying its 

 Requirements to Avoid the Fixed Price

MPG next asserts that the government acted in bad faith as a matter of law 

when it varied its requirements in order to avoid obligations under the contract (app. 

reply at 4). Specifically, MPG argues that the government decreased its requirements 

in order to avoid its contract obligations by asking MPG West to take items off the 

shelf because they were too highly priced, and because DeCA was concerned that the 

high prices for certain items would create negative publicity (app. mot. at 8-9).

MPG cites Medart, Inc. v. Austin, 967 F.2d 579, 581 (Fed. Cir. 1992), for the 

proposition that a requirements contract obligates the government to fill all its

requirements at the agreed price. This is an overstatement of the holding in that case. 

Medart holds that the government must use information that is reasonably available in 

order to estimate its requirements, and that the contractor bears the risk of variances in 

quantity. 967 F.2d at 582. In Medart, the Federal Circuit affirmed the Civilian Board 

of Contract Appeals’ holding that the government used reasonable care in computing 

its estimated needs based upon the previous year’s orders. The Court specifically held 

that the government was not required to apply any of the specific methods advanced 

by the appellant, such as contacting or polling end-users about their projected needs 

and budgets, considering the use of statistical formulas such as regression analysis, or 

checking the effectiveness of its estimating procedure based on past performance. Id. 

Medart supports the Board’s reasoning that DeCA used reasonable care in 

estimating its requirements and that DeCA was not required to undertake extraordinary 

measures, such as performing a business case analysis to support its estimates of the 

government’s requirements.

MPG additionally cites Simplix, ASBCA No. 52570, 06-1 BCA ¶ 33,240 

(2006), for the proposition that variation in the government’s requirements may be a 

breach of contract when the government acts in bad faith. MPG’s recitation of the law 

governing requirements contracts ignores the Federal Circuit’s central holding in 

Technical Assistance Int’l v. United States, 150 F.3d 1369 (Fed. Cir. 1998). 

Specifically, Technical Assistance held that the buyer has significant freedom in 

determining its requirements because it has bargained for such flexibility by paying a 

premium price for the goods provided. Id. at 1372.

We comprehensively addressed this argument in section II.C. of our previous 

opinion. Consistent with the central holding in Technical Assistance, we hold that the 

contract expressly permitted DeCA the flexibility to order produce from other 

providers, as long as the contract with MPG West was the “primary source.” MPG 

West, LLC, 20-1 BCA ¶ 37,739 at 183,149-50. We further held that: DeCA conducted 

its weekly pricing review in a manner that was reasonable and consistent with the 
11

contract terms; that DeCA developed and applied reasonable and consistent criteria to 

evaluate weekly prices based on the past history of prices for particular items; and that 

DeCA approved the vast majority of the items submitted by MPG West on a weekly 

basis. Id. at 183,150. Finally, for those items that it questioned, DeCA identified why 

it was questioning the price and gave MPG West an opportunity to explain the price. 

Id.

MPG’s motion for reconsideration raises no new arguments and introduces no 

new facts that would cause us to change the conclusions set forth in our opinion.

C. Whether the Government Satisfied the Implied Duty of Cooperation

MPG challenges the Board’s statement of the law regarding the implied duty of 

cooperation, contending that the Board incorrectly states that the duty of cooperation 

requires only that the government not interfere with performance. Citing a variety of 

Board cases, MPG asserts that the law imposes a more expansive duty on the 

government, including an obligation to “do what is reasonably necessary to enable the 

contractor to perform.” (App. mot. at 12) MPG’s recitation of the law is correct, but 

is not fundamentally at odds with the Board’s statement of the law concerning the duty 

of cooperation. MPG West, LLC, 20-1 BCA ¶ 37,739 at 183,154.

MPG contends that the contract was “doomed from the start,” because it 

involved a significant overhaul of the contract model for supplying commissaries in 

the Pacific theater and was imposed “without even performing adequate market 

research or a business case analysis” (app. mot. at 13). This is simply a restatement of 

arguments MPG previously made and gives us no reason to reconsider our decision. 

MPG further contends that the “Board’s [legal] error is compounded by the 

mistakes of fact that support its reasoning” (app. mot. at 13). As we discussed above, 

we have examined MPG’s allegations of errors in our factual findings and have 

concluded that the record supports our findings. MPG’s real issue, therefore, is not 

with the Board’s understanding of law, but rather with the Board’s application of the 

law.

The bottom line is that the contract placed responsibility for compliance with 

host-nation laws solely on the contractor, and the contractor had a great deal of 

discretion as to how it would comply. MPG West, LLC, 20-1 BCA ¶ 37,739 

at 183,154. Moreover, as we discussed in our opinion, the government did more than 

just “basically stay out of the way” (app. mot. at 12). For example, in an effort to ease 

the South Korean importation process for MPG, DeCA wrote a letter to South Korean 

customs officials explaining that MPG was permitted to import items embargoed 

under the SOFA, provided that the items would be sold in the commissaries. MPG 

West, LLC, 20-1 BCA ¶ 37,739 at 183,141.
12

MPG makes no new arguments and introduces no evidence in support of its 

request for reconsideration. Therefore, we have no reason to change the conclusions 

set forth in our opinion.

D. Whether the Bagged Salad Specifications Were Defective

MPG’s final contention is that the Board erred in concluding that the bagged 

salad specifications were not defective. According to MPG, the Board’s conclusion

was based on a misstatement of MPG’s claim and an insufficient statement of the law 

concerning defective specifications (app. mot. at 14). Citing Essex Electro Engineers 

v. Danzig, 224 F.3d 1283 (Fed. Cir. 2000), MPG contends that the threshold question 

in a defective specification claim is whether the contractor can follow the 

government’s specifications and achieve the result for which the government has 

contracted (app. mot. at 15). According to MPG, it was impossible for MPG to supply 

the government’s bagged salad requirements via FOB destination freight at a fixed 

price that included all costs and profit and also achieve a patron savings discount (app. 

mot. at 15). For example, if it is economically impracticable to supply a specified 

product at a price buyers are willing to pay, then it would support the contention that

the specification is defective (app. br. at 16 (citing Brazier Lumber Co., ASBCA 

No. 18601, 76-2 BCA ¶ 12,207)).

As we explained in our decision, to recover on a defective specification theory, 

MPG West must show that there was a defect, that it reasonably relied upon the defect, 

and that the defect was latent. MPG West, LLC, 20-1 BCA ¶ 37,739 at 183,155 (citing 

E.L. Hamm & Assocs., Inc. v. England, 379 F.3d 1334, 1339 (Fed. Cir. 2004)).

MPG offers no new facts or legal arguments to support its position that the 

Board erred in its findings or legal conclusions. Moreover, MPG West’s criticism of 

the Board’s decision does not address the Board’s conclusion that MPG West failed to 

demonstrate that it relied on the allegedly defective specification. Indeed, when MPG 

West concluded that it could not profitably perform, the government agreed to remove 

the bagged salad requirement. Id. at 183,143.

Perhaps understanding that its defective specification theory lacks merit, MPG 

West now argues, for the first time, that meeting the bagged salad specification was 

commercially impracticable (app. mot. at 16-19). Specifically, MPG West contends 

that “the contract specified that MPG must supply the government's bagged salad 

requirements via FOB destination freight at a fixed price that included all costs and 

profit and achieved a patron savings discount.” According to MPG West, achieving a 

patron savings discount simply was not possible with FOB delivery and a fixed price 

that includes all contractor costs. (App. mot. at 15)
13

A motion for reconsideration is not the appropriate place to raise an argument 

for the first time. See Dixon, 741 F.3d at 1378 (refusing to entertain an argument that 

should properly should have been presented in an earlier proceeding). To establish 

commercial impracticability, the contractor must demonstrate that it has exhausted 

all of its alternatives for performance, not merely that its costs have become more 

expensive than originally contemplated. Jennie-O Foods, Inc. v. United States, 580 

F.2d 400, 409 (Ct. Cl. 1978).

Here, MPG West has not demonstrated that it exhausted all of its alternatives 

for supplying bagged salads. Other than testimony that DeCA suggested corrective 

actions, such as DeCA assuming bagged salad shipments to Korea, MPG West has 

proffered no evidence that it pursued other alternatives (tr. 2/213).

Rather than exhaust all alternatives for supplying bagged salads, MPG West 

asked DeCA to remove the bagged salad requirement, and DeCA did so. MPG West, 

LLC, 20-1 BCA ¶ 37,739 at 183,143. Moreover, MPG West admits that its successor 

contractor was able to successfully perform the contract (app. post-hearing br. at 2). 

The fact that the government agreed to remove the bagged salad requirement has no 

bearing on whether it was impossible to meet the requirement. Indeed, the change was 

bilateral and made at MPG West’s request. Id. at 183,156.

MPG contends that, in Korea, it was impossible to perform the contract with 

local bagged salads in lieu of imports, because the U.S. government command in 

charge of food safety never provided MPG with the necessary authorization. MPG 

offers no new facts in support of this argument, which the Board previously rejected. 

Id. at 183,149.

Finally, MPG’s contention that it could not meet the bagged salad requirement 

while achieving a patron savings discount is without basis, because bagged salads were 

not among the items to be considered in calculating the patron savings requirement. 

Id. at 183,143. As we explained in our opinion, the contract contained a “Patron 

Savings Requirement” applicable to 35 items of produce listed at Attachment 4 called 

“High Volume Core Items” (HVCI). The contract defined the Patron Savings 

Requirement as a price savings to the commissary patron when compared to the prices 

of like items from comparable private sector retail stores within the local commuting 

area of a commissary store in the host country. 
14 

Under the Patron Savings Requirement, MPG West warranted that prices for 

the listed HVCI would provide a minimum percentage of savings when compared to 

the prices in comparable private-sector retail stores. Id. at 183,139.

 For these reasons, we deny the motion for reconsideration. 

Dated: September 20, 2022

KENNETH D. WOODROW

Administrative Judge 

Armed Services Board 

of Contract Appeals

I concur I concur

RICHARD SHACKLEFORD

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals

J. REID PROUTY

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA Nos. 61100, 61560, 61570,

Appeals of MPG West, rendered in conformance with the Board’s Charter. 

 Dated: September 20, 2022

PAULLA K. GATES-LEWIS

Recorder, Armed Services 

Board of Contract Appeals