### ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of

-- ) ) 

### Supply 

### & Service Team GmbH ) ) 

### Under ContractNo. W912PB-06-D-001 l )
APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 59630

Paul D. Reinsdorf, Esq.

Frankfurt/Main Germany Raymond M. Saunders, Esq.

Army ChiefTrial Attorney CPT Jessica E. Hom, JA

Trial Attorney
OPINION BYADMINISTRATIVE JUDGE PROUTY ON THE GOVERNMENT'S MOTION FORRECONSIDERATION
Before the Board is the government's timely motion for reconsideration ofour earlier entry ofsummaryjudgment sustaining appellant, Supply 

### & Service Team GmbH's (SST's), appeal. 

### Supply & 

### Service Team GmbH, ASBCANo. 59630, 17-1 BCA, 36,678. We deny the motion.
In a motion for reconsideration, the movingparty has the burden of "demonstrat[ing] a compelling reason for the Boardto modify its decision." 

### ADTConstruction Group, Inc., ASBCANo. 55358, 14-1BCA,35,508 at 174,041 (citations omitted). In particular, it must provide newly discovered evidence or demonstrate mistakes inthe original decision's findings offact or conclusions oflaw. 

### Id. A motion for reconsideration is not the place to present arguments previously made and rejected. "[W]here litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again. Motions for reconsideration do not afford litigants the opportunity to take a 'second bite at the apple' orto advance arguments that properly should have been presented in an earlier proceeding." 

### Dixon v. 

### Shinseki, 741F.3d1367, 1378 (Fed. Cir. 2014) (citations omitted); 

### see alsoAvantAssessment, LLC, ASBCA No. 58867, 15-1 BCA, 36,137 at 176,383. Here, the government's motion for reconsideration rests completely on an argument that it only presented, in passing, in response to our order directing briefing
on legal issues involving accord and satisfaction and fraud as a defense. The government's new, substantial elaboration on this argument was not before us when
we made our decision, nor is it persuasive, in any event.We granted SST's motion for summaryjudgment on the basis that a particular modification (referredto as Mod 4 in our decision) to the contract at issue effectively acted as an accord and satisfaction ofthe dispute that was the basis ofthis appeal. The government's argument in its motion for reconsideration is that two subsequent bilateral contract modifications de-obligating funds from delivery orders on the contract (the de-obligation modifications) acted to set aside the government's waiver ofits rights in Mod 4. We made short work ofthe abbreviated form ofthis argument originally presentedby the governmentbecause a contractor's agreement to de-obligate funds, without more, does not constitute a waiver or its rights andbecause the de-obligation modifications were not supportedby any consideration. The government's new challenges to those bases are unavailing.
First, the government argues that we erredby limiting our consideration ofthe effect ofthe de-obligation modifications to the four comers oftheirtexts.* This argument is unpersuasive, to say the least. It is well established (and noted in cases cited byboth our original decision andthe government's motion for reconsideration) that (with exceptions not applicable here) we do not stray from the text ofthe contract when interpreting it ifthere is no identifiable ambiguity in its terms requiring a resort to extrinsic evidence. 

### See, e.g., TEG-Paradigm Environmental, Inc. v. UnitedStates, 465 F.3d 1329, 1338 (Fed. Cir. 2006); 

### McAbee Construction, Inc. v. 

### UnitedStates, 97 F.3d 1431, 1434 (Fed. Cir. 1996) (citing numerous cases);

### AutomotiveManagement Services FZE, ASBCA No. 58352, 15-1 BCA**~** 36,119 at 176,329; 

### StewartAvionics, Inc., ASBCANo. 10226, 65-2 BCA**~** 5111at24,070 (necessary to go beyondthe four
comers ofthe contract because the meaning ofthe contract term is unclear). The cases cited by the government, when properlyread, hew to this black letter law. Inasmuch
as the government has identified no ambiguities in the de-obligation modifications, we discern no legal error in confining our interpretation ofthem to the four comers of their respective texts.
The government's argument that the de-obligation modifications were supported by consideration, contrary to our findings, is similarly unsupported. The government's assertion is that, by agreeing to de-obligate the funds, SST both waived its right to payment for those funds and obtained the right to file future claims on the contractthat were otherwise barred byMod 4. This argument is in radical contravention to the government's earlierposition inthis appeal, that there was no accord and satisfaction in Mod 4, and finds no support, whatsoever, in the record: underno conceivable reading ofthe de-obligatio,n modifications (even ifthey were ambiguous, which they are not), could they be read to resurrect SST's rights to advance claims that it waived by executing Mod 4. We can only imagine the government's protests ifwe had ruledthat a de-obligation modification, 

### sub silentio,

*Notably, the government is implicitly conceding that, underthe four comers ofthe text ofthe de-obligation modifications, it cannotprevail.

2

### permitted a contractorto pursue claims against the government that it had previously waived

- yetthat is exactly what it requests here.

We have carefully reviewed the remainder ofthe government's motion and find no other basis to revise our earlier opinion in this appeal. Thus, for the reasons stated herein, we deny the government's request for reconsideration ofour decision sustaining ASBCA No. 59630.
Dated: 3 May 2017

I 

### concur //'/ //' //,/''/// /Ji{' " //,J<;'<:.,:.,_ ',/ //f

### /{;;i:c//'~:_ ./

### :_:,[~**-:~-o--------** N. 

### STEMPLER Administrative Judge Acting Chairman Armed Services Board ofContract Appeals 

## f.IDPROUTY Administrative Judge Armed Services Board ofContract Appeals

I 

### concur

# ~ RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I 

### certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCA No. 59630, Appeal ofSupply & Service Team GmbH, rendered in 

### conformance with the Board's Charter.
Dated:

3 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals