ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) Optimization Consulting, Inc. ) ) Under ContractNo. W9I33L-10-D-0002 )
APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 58752

SheridanEngland, Esq.

S. 

### L. England, PLLC Washington, DC Raymond M. Saunders, Esq.

Army ChiefTrial Attorney RobertB. Neill, Esq. ·

Trial Attorney
OPINION BYADMINISTRATIVE JUDGE SCOTT Appellant Optimization Consulting, Inc. (OCI) has timely appealed underthe Contract Disputes Act, 41 U.S.C. §§ 7101-7109, from the contracting officer's (CO's) denial ofits claim under the captioned contract for psychological healthcare and related data management services issued by the National Guard Bureau (NGB) on behalfofthe AirNationai Guard (ANG). OCI seeks reimbursement for increased costs it alleges it incurred whenthe government did not accept its proposedManagement Information System (MIS) orprovide a government-furnishedMIS. The Board denied the government's motion for summaryjudgment. ·Optimization Consulting, Inc., ASBCA No. 58752, 15-1 BCA,36,106 (Optimization I). Thereafter, the Board conducted a one-day hearing on entitlement only (tr. 11). Forthe reasons set forth below, we deny the appeal.
FINDINGS OF FACT
Solicitation and Contract
1. On August 10, 2018 NGB issued commercial item solicitation No. W9I33L-10- R-0099 for an indefinite delivery indefinite quantity contract for mental health counseling and associated support services for members ofANG and their families. The acquisition was set aside for service-disabled veteran-owned small businesses. (R4, tab 2 at 1, 9, 41) 1 The Performance Work Statement (PWS)

1Rule 4 citations are to the consecutively-stamped numbers unless otherwise indicated.imposed two broad categories ofperformance obligations, the first concerning psychological health services (PHS) and the second, related records management and reporting (R4, tab 2 at 45-103).
2. The contract and solicitation included Federal Acquisition Regulation (FAR) 52.212-4, CONTRACT TERMS AND CONDITIONS- COMMERCIAL ITEMS (JUNE 2010), which provides that "(c) Changes. Changes in the terms and conditions ofthis contract may be made only by written agreement ofthe parties" (R4, tab 1 at 13; tab 2 at 24).
3. With respectto PHS, contractors were expected to staff89 psychological healthcare subject-matter experts (PHSMEs) at facilities throughout the United States and its territories who would, among otherthings, oversee and coordinate mental health services; provide a network ofmental health clinicians to provide mental health support to service members andtheir families; and undertake activities to promote psychological wellness (R4, tab 2 at 3, 56, 78-80, 85-88).
4. The second category ofperformance obligations, records management and reporting, is addressed primarily in PWS Section III.A, "Security and Records Management," which describes the contractor's obligations relating to a "system of records" and an MIS (R4, tab 2 at 94-103).
5. Theparties' obligations with respect to the MIS are at the heart ofthis dispute. The solicitation does not specifically define "MIS" but itrefers to the MIS as a data collection mechanism throughout Section III.A. as well as in otherPWS provisions, intermingledwith discussions about how and what type ofinformation was

· to be collected, maintained andreported to ANG. (R4, tab 2)
6. The most detailed discussion ofthe MIS appears in the following subsection ofSection III.A:

a. Management Information System () (Portions are Optional for award)
The ANG is currently investigating a comprehensive multi-layered tracking and data collection system for many ANG personnel functions. TheANGmay/maynot electto utilize the totalcapability of Contractor's comprehensiveMISsystem, butexpectsthe offerorto provideandmanagehardwarenecessaryto accomplish andeffectively communicateas wellas trackactivity of thePHSMEprogram. The ANG expects anydata collected in the provision ofthis contract will have the ability to be transferred and/or to collaborate in

2 ' ,Jpartnership with other ANG/IT contractors, within the bounds ofprivacy and confidentiality laws and regulations. However, the Government does expect each off eror to propose as part ofthis solicitation, its MIS capabilities and plan for tracking PHSME services.
Offerors are to propose use oftheirMIS and describe in theirproposal how their MIS will effectively support the full range ofservices neededunder this contract. Off erors are to provide a breakout ofMIS costs as part oftheir business proposal. The Governmentreserves the right to require use ofa DoD [U.S. Department ofDefense] system or a combination ofDoD and Offeror's MIS. (R4, tab 2 at 95) (emphasis in original)
7. Section III.Aprovides additional detail regarding the contractor's obligations with respect to documentation, datamanagement and reporting (R4, tab 2 at 96-101, 103). Among otherthings, contractors were responsible for "collection and management ofall case management, counselor activity, and business management data required to create operational andbusiness reports for the ANG," which was to be "maintainedwithin the Contractor's MIS" (R4, tab 2 at 97).
8. PWS section III.D, "GovernmentFurnishedFacilities and Equipment/Property" does not explicitly identifyparticular items as government furnished property (GFP) including an MIS (R4, tab 2 at 103-11). Rather, it discusses a variety ofissues, including that, when requested bythe CO's technical representative (COTR), the contractorwas "to fully participate in an in-depth study ofthe security of the Contractor'srecords system and 

### [MIS]" (R4, tab 2 at 106). The contractorwas also to adhere to the requirements ofits "MIS securityplan including security guidelines for electronic files" (R4, tab 2 at 106). 

### In addition, the MIS was to comply with DoD computer security requirements, including a number oflaws, regulations and directives addressing the security ofinformation systems (R4, tab 2 at 107-09; see 

### also app. br. at 4-5 (listing contractor's MIS responsibilities)).
9. ·The solicitation included a table listing 63 "deliverables" consisting essentially oftasks the offerors would be expectedto complete as part ofcontract performance. Those deliverables did not include an MIS. (R4, tab 2 at 88-93)
10. The solicitation included four contract line items (CLINs): CLIN 0001, covering labor costs for 89 PHSMEs and one program manager; CLIN 0002, for additional laborhours worked by PHSMEs outside the normal eight-hour work day

3(subject to certain time limitations); CLIN 0003, for travel and other direct costs for the program manager; and CLIN 0004, for travel, materials and other direct costs within the 89 operating areas. CLINs 0001 and 0002 were firm fixed price; CLINs 0003 and 0004 were cost CLINs. (R4, tab 2 at 3-4)
11. Pricing proposals were to be evaluated for completeness and accuracy. · Offerors were required to "identify Unit Pr!ce, extended totals Amounts for CLINs (0001, 0002), and the total proposal amount." (R4, tab 2 at 12)
12. Solicitation Modification No. 0001 (Mod. 1), effective August 19, 2010, contained 40 questions and answers on a variety ofissues; several addressedhow offerors were to account for various performance costs (R4, tab 3). Inresponse to · Question 5, which asked "underwhat CLIN should weput other direct costs

- e.g., support stafffor the program manager; costs ofoffice space should thatbe necessary[,]" potential offerors were advisedthat "all.overhead, G&A, or support costs will be included in the labor rates ofCLIN 0001" (R4, tab 3 at 3). Questions 6 and 8-10 requested clarification regarding where offerors should include costs associated with implementation, client satisfaction surveys, and "TransitionIn" and "Transition Out" activities. All answers referred to the answer to Question 5 (R4, tab 3 at 3-4). · 13. Question 13 asked whether the potential offerorwas correct in assuming that "costs associated with Cont_ract Administration, Accounting, Reporting, Human Resources, IT support and the like should be included in the burdenrates since there is not a separate CLIN for these costs." The government responded that "these G&A support costs shouldbe included in the quoted fully burdened laborrates." Neither Question 13 nor its ariswer contained any explicitreference to MIS. (R4, tab 3 at 5)
14. Question 14 requested clarification concerning the contract type, noting that the CLINS were identifie4 as both firm fixed price.and cost. The government responded: · [T]he Firm Fixed Price applies to the quoted laborrates. Cost CLIN will notbe evaluated and need not be quoted in accordance withthe evaluation criteriaprovided in the solicitation.

. . . [U]nitprices and extended CLINtotals need only beprovided for CLIN 0001 and 0002. The Cost CLINs are primarily for Travel expenses
.... No G&A, fees or overhead rates will be applied to CLINs 0003 and 0004. (R4, tab 3 at 5)

4OCI's Proposal and Contract Award
15. OCI's proposal2 stated that it wouldbe teaming with two other co,mpanies; the combined organization was called "Team Craft Healthcare" (R4, tab 4 at 2-3; tab 7). Withrespect to MIS,the proposal stated as follows:
Team CraftHealthcare has garnered the support of IntelliSuite MIS technicians to fully explore the requirements and resources needed toprocure a comprehensive MIS systemthat meets theANG's needs. Towardthat end, we are preparedto utilize ourMIS support infrastructure to enable all users to communicate effectively and to generate data and statistical reports to makeprojections and support case management. (R4, tab 4 at 13; tab 7 at 20)
16. Inresponse to specific questions inthe solicitation, OCI'sproposal detailed various elements and capabilities ofits proposedMIS. It also summarizedthe information that would beprovided underthe required reports; described the information to be included inthe eventthat data transition were requested orupon contract termination; and included several report examples. (R4, tab 4 at 14-18, 23-25; tab 7 at 20-24, 29-31)
17. OCI proposed a total cost of$21,593,125.88, broken down by priceper

. CLIN, and included an explanation ofhowthe figures for eachwere calculated (R4,

tab 6). Withrespect to CLIN 0001, the pricing reflected "the costs oftraining and employing the 89 PHS:MEs, the 6 RLPHPs,3 and the Program Manager for the first year of.services" (R4, tab 6 at 4). The explanation did notbreak outthe costs by component.
18. Withrespect to CLIN 0004, the proposal statedthatthe figure quoted ·"reflects all the Wing-level travel and other direct costs," andthen described "other direct costs" as consisting ofthe following:
Other direct costs will coverthe maintenance and operations ofTeam CraftHealthcare's [MIS]. Team Craft Healthcare has garneredthe support ofIntelliSuite MIS

2 OCI'stechnical proposal was submitted on August 25, 2010 and clarifications were submitted on September 10, 2010. Theportions ofthetwo submissions relevant to this appeal are identical in all material respects. 3 RLPHPs are regional lead psychological healthcare providers (R4, tab 7 at 6).

5technicians to fully explore the requirements and resources needed to procure a -comprehensive MIS systemthat meets the ANG's needs. Towardthat end, we are preparedto utilize our MIS support infrastructure to enable all users to communicate effectively and to generate data and statistical reports to make projections and support case management.
This will cover [ various listed cost items].
Other costs will include upgrading orreplacing the computers, developing, networking, evaluating and migrating the MIS data, evaluation and assessment materials, supplies,.and hosting ofthe Sharepoint web-base. (R4, tab 6 at 8-9) OCI priced CLIN 004 at $1,156,329. Ofthat figure, $550,329 was identified as _being for material and otherdirect costs, including "[d]eveloping networking, [evaluation], and migration ofthe MIS data." (R4, tab 6 at 8)
19. The source selection authority (SSA) found four proposals to be technically acceptable (R4, tab 8 at 1-3). The SSA evaluatedthe offerors' prices on the basis of CLINs 0001 and 0002 alone, noting that offerors had been instructed thatproposed costs for CLINs 0003 and 0004 were not expected and would notbe evaluated. OCI's price was the second lowest. (R4, tab 8 at 3-4)
20. The SSA determine~ that a nationwide implementation would be too challenging for a single entity-and divided the contract between OCI and another offeror (R4, tab 8 at 4). NGB awarded OCI its portion ofthe contract on September 24, 2010, for a maximum amount of$17,050,000 (R4, tab 1 at 1, 10). Task order No. 0001, in the amount of$4,218,356.20, became effective September 29, 2010; task orderNo. 0002, in the amount of$1,532,369.52, became effective April 15, 2011; and task orderNo. 0003, in the amountof$7,692,981.56, became effective September 28, 2011. (R4, tabs 10, 18, 45)
21. The contract's CLINs were substantially the same as the solicitation's CLINs, modifiedto reflect a redu~ed number ofpersonnel due to the division ofthe award betw~en two contractors (R4, tab 1 at 4-7). CLINs 0001 and 0002 were priced at a maximum value of$6 million and $1.5 million respectively, with no reference to the proposed labor rates. CLIN 0004 was priced at a maximum of$450,000, with no reference to any ofthe costs proposedby OCI for its MIS. (R4, tab 1 at 11; see also R4, tab 6 at 8-9) The contract's PWS was identical to the solicitation's PWS in all material respects

..

6Contract Performance
22. Contractperformance was accomplished under the above three task orders, none ofwhich changed the PWS requirements (R4, tabs 10, 18, 45).
23. According to OCI's ChiefExecutive Officer (CEO), BryantHolmes, when the government awarded the contract to OCI, it did not accept OCI's proposal to use IntelliSuite, which he characterized as an off-the-shelfproduct, as its MIS (tr. 22, 28-30, 51; 

### see_R4, tab 1 at 8). Instead, according to Mr. Holmes, the government assured OCI that it wouldprovide an MIS (tr. 30-31). Mr. Holmes could not identify the p·erson alleged to have statedthatthe governmentwouldprovide an MIS (tr. 55).
24. Mr. Holmes was the only witness to testify on OCI's behalf. Before he became OCI's CEO, he was its chieffinancial officer (CFO) during the relevant period (tr. 23). However, he had no direct involvement in contractperformance and no communications with governmentrepresentatives,duringperformance. He provided no input into OCI'sproposal preparation, pricing, or the subject claim. (Tr. 22-23, 45-50, 56-58) We accord little weight to Mr. Holmes' testimony except to the extent that he hadpersonal knowledge that OCI provided MIS services to the government and that the government did not pay all ofOCI's invoices. He averred that OCI ultimately ended up going out ofbusiness as a result. (Tr. 61)
25. Lt Col David Bringhurst, now retired, was the COTRbeginning in October orNovember 2011. Shortly after he began, an OCI representative informed him that · OCI expected the government to provide an MIS: However, when Lt Col Bringhurst questioned government contracting officials about that expectation, hewas told that "when we went out for bid

... there was a separate portion ofthe bid

...that was considering [an MIS] thatwas not included [in] the final bid[.]" Lt Col Bringhurst neverpromised OCI that the government wouldprovide anMIS. (Tr. 131, 134-36)
26. Becausethe government did not accept OCI'~ proposed MIS, OCI performed its data management obligations throughout the life ofthe contract using an "adhoc" system in the form ofan Excel spreadsheet developed by the NGB and provided to ANG (tr. 30, 81-82, 137-38). ANGpassedthe spreadsheet onto OCI, which used it to "collate" the required data before providing it to ANG each month (tr. 138-39). AlthoughLt Col Bringhurst wanted.an MIS with real time data, he found the Excel spreadsheets to be sufficient to meet the contract's data reporting requirements, stating thatOCI was "meetingthe deliverable

- you know, we certainly wanted more
.... [but] it sufficedto have the Excel spreadsheets" (tr. 143).
27. OCI considered the "adhoc" system to be inefficient and unwieldy, and it contended that the cost to provide the data in this manner was significant. 

### It

7repeatedly informed the government that an MIS was necessary for it to providethe contract deliverables. (R4, tab 66 at 4; tab 79; tab 82 at 3; tab 131 at 8; tr. 31) At a December 16, 2011 meeting, OCI alleged to ANG that it was using three additional personnel who were "not included, norbillable to the existing contract" to "supportthe contract full time to account for [the] missing MIS System;" these personnel were spending "80% oftheir time formulating reports and gathering data that shouldbe automatically compiled bythe MI_S System;" and this was not cost-efficient and did not "fully alleviate the burden

... that an MIS solution would solve." (R4, tab 66 at 4)
28. In an "ImpactAnalysis" dated February 29, 20124 marked "URGENT," OCI alleged to ANG thatthe lack ofan MIS was liaving a debilitating effect upon its ability to perform the contractually required tasks adequately. OCI contendedthat the solicitationrequired an MIS butthat,·upon contract award, it had been notified that its_ MIS had notbeen accepted because the government would be locating and implementing its own MIS solution. OCI did not identify who providedthe alleged notice and we have not been directed to, and have not located, any suchwritten notification ofrecord. OCI requested a contract modification to "implement an MIS solution immediately as originally required" orto modify the contract's pricing structure to account for its alleged additional costs. (R4, tab 79 at 1) The impact analysis stated:
Without either modification, all additional resources and personnel outside the contractualprovisions mustbe removed from the worksite and relieved ofANG PHP-related duties as ofMarch 9, 2012. Should this happen, it will have a potentially devastating effect on the Program

.... [Without] either an MIS or administrative support, the Program becomes completely impossible to manage and operate. (R4, tab 79 at 1)
29. In a March 7, 2012 email an ANGrepresentative responded to OCI that, underthe contract, ANGhadreserved the rightto elect notto·use any particular portion ofthe contractor's MIS or not to use it at all. The government's decision "to implement for cost orto stay the implementation ofthe MIS system" did notreduce the contractor's responsibility to provide ANG with the data listed inthe contract's deliverables. Moreover, the items detailed in the impact analysis were listed in the contract's statement ofwork and were already "included inthe overhead, G&A and fees currently'being assessed in the invoices." (Ex. A-4 at 8)

4 The record includes a version ofthis document dated February 27, 2012 that is the same as the February 29, 2012 version in all material respects (R4, tabs 78-79).

830. InApril 2012, ANG de"."obligated funds for task orders Nos. 0001 and 0002 by unilateral modifications, stating that the de-obligated funds were in excess ofwhat OCI had billed and hadbeenpaid, and that "there is evidence to supportthe fact that the required services wereprovided and the contractor was paid in accordance with the conditions ofthe contract." (R4, tab 85 at4; tab 86 at 4)
31. In April or May 2012, OCI began submitting the"required data in an uncollated format on approximately 44 individual spreadsheets rather than one consolidated spreadsheet (tr. 138-39). According to L(ColBringhurstthe data provided in that format was "complete" but not "satisfactory" because itwas a "pile of data" thatwas not manageable in the wayhe wished it to be (tr. 153-54).
32. On November 27, 2012, the parties metto discuss a number ofissues, including the lack ofan MIS. Bythis time, CPTMichael Wade ofNGB hadbeen assigned as C0.5 He served as CO from approximately September 2012 through contract completion in March 2013 and authored the CO's final decision in May 2013. (R4, tabs 131, 213; tr. 158-61) OCI's minutes ofthe meeting state that CPT Wade informed OCI that, although itwas originally the government's intent to provide an MIS, it would notbe doing so and "the status quo we currently are using is acceptable up to this point." (R4, tab 131 at 8) OCI's minutes report that CPT Wade stated that the government was not in a positionto make any changes because they were atthe end oflhe contract, buthe would "take a look at the MIS section ofthe SOW for future reference" (R4, tab 131 at 8).
33. By letter dated December 26, 2012, OCI submitted a certified claim for a $3,661,683.16 equitable adjustment, covering the period October 2010 through December 2012. OCI alleged increased costs due to the government's failure to implement an MIS in accordance with the contract. (R4, tab 147 at 1, 5) OCI contended that "[t]he "contract expressly and specifically requires an MIS for nationwide data management" (R4, tab 147 at 5). 

### It alleged that; although the government had advised OCI that it would provide an MIS, it never did so, which forced OCI to use a "work-around" system to compile data manually, analyze it, and generate the reports the contractrequired (R4, tab 147 at 3). This resulted in the need for additionalpersonnel and labor hours beyond whatwouldhave been necessary if the reports were automatically generated using an MIS (R4, tab 147 at 3-6). OCI claimedthat there was a "directnexus" betweenthe government's inaction and OCI's additional costs (R4, tab 147 at 4). The claim is basedupon the doctrine of constructive change. OCI did not directly allege contract breach or contend thatthe contract was ambiguous. (See R4, tab 147)

5 Bythe time ofthe hearing, CPTWade hadbeenpromotedto Major. We refer to him by his rank atthe time ofthe final decision.

934. On May 25, 2013 CPT Wade issued hi~ final decision denying OCI's claim (R4, tab 213). Among several other things, he noted that OCI had included its costs relating to information technology, including MIS, in CLIN 0004, even though in Mod. 1the·government had informed offerors that costs proposed under CLINs 0003 and 0004, which were intended for travel costs, would notbe included in the proposal evaluations. He opined that, regardless ofwhetherthe government indicated an intent to obtain its own MIS, which was not supportedbythe contract file or any evidence provided with the claim, the contract required that changes be made only by the parties' written agreement (R4, tab 213 at 4).
35. CPT Wade also asserted that the government did not represent, inthe solicitation or contract, that it wouldprovide an MIS as GFP, and he describedthe MIS as an "optional component" ofthe contract effort (R4, tab 213 at4-5). He further cited a number ofalleged problems with OCI's invoicing, including that it rarely invoiced for more than a small number ofhours under CLIN 0002, where overtime hours were to be invoiced, and that its inv~ices did not reflect that personnel were working beyondthe standard work week. He noted that OCI never sought authorization to exceed the maximum amount ofovertime identified in CLIN 0002 and contended that OCI's claimed costs were based upon unsupported estimates and unverifiable alleged additional workhours. (R4, tab 213 at 5-6) Testimony Concerning the Contract's MIS Requirement
36. Lt Col James Coker served as a CO's representative on the contract. He assiste4 in drafting the PWS, which was basedupon language borrowed from a separate contract for the provision ofsimilar services to otherNational Guard personnel. The borrowed language was then "tailored" for ANG. (Tr. 75-76) Although Lt Col Coker conceded thatportions ofPWS Section III.A contemplated that a contractor should provide a comprehensive MIS or include an MIS in its proposal, he asserted that the contract did notrequire an MIS (tr. 90-92).
37. CPT Wade's understanding from ANGpersonnel was that, contrary to the PWS statement, ANG was not "investigating-a comprehensive multi-layered tracking and data collection system" at the time ofcontract award. That language was copied from an Army Guard document, as was the language that ANG "may or may not elect to utilize the total capability ofthe contractor's comprehensive MIS system." (Tr. 182-84)
THE PARTIES·' CONTENTIONS
In Count I ofits complaint, OCI alleged that the government breachedthe parties' contract when it failed to provide an MIS or to use the MIS proposed by OCI.

10In Count II, OCI alleged that, by rejecting its MIS and informing OCI that it would use its own, the government constructively changed the contract, requiring the government to provide the MIS, which it failed to do. In Count III, OCI allegedthatthe solicitation contained a latent ambiguity with respect to responsibility for the MIS.
The government denied OCI's allegations and moved for summaryjudgment on the ground that the contract did notrequire it either to pay OCI for its MIS orto provide one for OCI's use. The government alleged that the contract unambiguously / stated that ~n MIS tool was an optional service and optional for award. The Board determined thatthe contract "does not unambiguously supportthe government's interpretation" OptimizationI, 15-1BCA136,106 at 176,275, and concludedthat, based upon Section III.A, an MIS was not optional. 

### Id. at 176,276. The contractor was expected to use its own MIS unless the governmentprovided one. 

### Id. OCI did not move for summaryjudgment and the Board did notreach the issue ofwhether OCI's interpretationwas supportedby the contract. 

### Id. at 176,277.
In its principalpost-hearing briefOCI first asserts that:
This case turns on one simple fact: whether [the subject contract] required OCI toprovide [an MIS]. The hearing, much like the plain language ofthe Contract, established that it did. Accordingly, OCI is entitled tojudgment. (App. br. at 1) OCI later contends thatthe contract "conclusivelyprovided for the use ofanMIS while leaving the source ofsaidMIS undetermined" (

### id. at 5) (emphasis omitted). OCI asserts thatthe contract, read as a whole, "confirms that the MIS permeates the entire contract and is essential to the effective execution ofthe contract" 

### (id. at 4), and that anMIS was a material contractrequirement 

### (id. at 5). OCI concludes that, ifthere were any ambiguity, it was latent; its interpretation was reasonable; the doctrine ofcontraproferentem applies; andthe contract must be construed against the government 

### (id. at 6-7). OCI does not directly allege breach or mention constructive change.
The government responds that there was no government contract breach, constructive change, or relevant contract ambiguity (gov'tbr. at 1). While it did not provide an MIS for OCI's use, the contract did not obligate it to do so. Rather, the contractunambiguously required OCI to collect and maintain data andprovidereports to the government. OCI was on notice priorto contract award, through the questions and answers published in Mod. 1, to include its anticipated costs ofmeeting the· contract requirements, including "any MIS it chose to employ" in its fully burdened labor rates under CLIN 0001, whichresolved any possible ambiguity concerning responsibility for those costs. 

### (Id. at 1-3)

11The government contends that the contractor's employment ofan MIS was not a materialcontract requirement but, ifit were considered to be so, then OCI's failure to use· an MIS was a prior material breach excusing the government from any MIS payment obligations. The government acknowledges that it accepted OCI's submission ofthe required data through Excel spreadsheets, and permitted OCI to continue contractperformance. (Gov'tbr. at 3) The governmentassesses that "responsibility for [OCI's] costs to track and manage data to be provided via reports to the ANG appears to be the actual issue in this appeal" (id. at 18). 

### It contends that because OCI did not use an MIS, it incurred no MIS costs and it has been fully compensated in accordance with the contract for its overhead costs, including data collection, analysis and reporting (id. at 3). The government asserts that, to the extent OCI failed to include all such costs in its proposedpricing for firm fixed-price CLIN 0001, it bore the risk ofits own oversight and any increased costs (id. at 21).
OCI replies that the government mistakenly conflates the contract's MIS requirements and data management. 

### It asserts that an MIS was a separate required contract deliverable. (App. reply br. at 1) OCI also chalienges the government's assertion thatthe questions and answers in Mod. 1resolve the issue, stating that "IT support, generally, is_notthe same as MIS services" (id. at 5). OCI disputes the government's contentions that it did notprovide an MIS and/or did not bill underthe correct CLIN 0001 (id. at 3-4). OCI alleges thatthe issues raised by the government are bothbelated and matters ofquantum, not liability. The thrust ofOCI's allegations is that it "provided adhocMIS services at considerable expense because the government refused to furnish its own MIS and further refused OCI's offers for other offthe shelfsolutions" (id. at 3).
DISCUSSION
We have considered all ofthe parties' arguments but discuss only those important to our decision. , The Contract Was NotAmbiguous Concerning Contractor's MIS Responsibilities
OCI alleges that its interpretation ofthe contract mustprevail because the contractwas latently ambiguous, such that the rule ofcontraproferentem applies and the contract mustbe construed against the government as its drafter. It is fundamental that, when interpreting.a contract, we begin with the language ofthe written agreement, considerthe document as a whole, and interpret it "so as to harmonize and give reasonable meaning to all ofits parts." NVTTechnologies, Inc. v. U.S., 370 F.3d 1153, 1159 (Fed. Cir. 2004) (citing McAbee Constr., Inc. v. U.S., 97 F.3d 1431, 1435 (Fed.Cir.1996)). 

### "An interpretationthat gives meaningto all parts ofthe contract is to be preferred over one that leaves a portion ofthe contract useless, inexpHcable, void,

12or superfluous." NVTTechnologies, Inc., 370 F.3d at 1159 (citing Gould, Inc. v. US., 935 F.2d 1271, 1274 (Fed. Cir. 1991)).
A contract is considered to be ambiguous "ifit is susceptible oftwo different and reasonable interpretations, each ofwhich is found to be consistent withthe contract language." CommunityHeating &Plumbing Co., Inc. v. Kelso, 987 F.2d 1575, 1579 (Fed. Cir. 1993) (citations omitted). It is not enough to showthat "the parties differ in their respective interpretations ofa contract term.

. . . Rather, both interpretations must fall within a 'zone ofreasonableness."' Metric Constructors, Inc. v. NationalAeronautic andSpa.ce Administration, 169 F.3d 747, 751 (Fed. Cir. 1999) (citations omitted). A patent ambiguity is one that is so '"obvious, gross, [or] glaring"' that ittriggers a bidder's duty to inquire. NVTTechnologies, Inc., 370 F.3d at 1162 (ci~ation omitted). Ifan ambiguity is not sufficiently glaring to trigger the patent ambiguity exception, it is deemed latent and the general rule ofcontra proferentem applies. HPIIGSA-3C, LLCv. Perry, 364 F.3d 1327, 1334 (Fed. Cir. · 2004). Evenifan ambiguity is latent, however, the nondraftingparty mustprove that it relied on its interpretation during bidding. Fruin:Colnon Corp. v. UnitedStates, 912 F.2d 1426, 1430 (Fed. Cir. 1990).
Underthe solicitation andresulting contract, which were substantially the same in all material respects (see finding 21), offerors were to propose use oftheir MIS and · describe how it would supportthe full range ofcontract-required services; They were to break outMIS costs as part oftheirproposal. While portions oftheMIS were optional for award, andthe governmentreserved the right to require use ofa DoD system or a combination ofDoD's andthe offeror's MIS, nothing in the contract obligated DoD to provide anMIS. The contract clearly provided thatthe contractor had the ultimate responsibility to supply and employ an MIS (findings 4-8).
The government's contention that the answers to questions inMod. 1 unambiguously directed offerors to include their direct and indirect costs for reporting and for IT support in their proposed fully burdened labor rates under fixed price CLIN 0001 is reasonable. Otherthan to allege that MIS and IT support costs are not the same, OCI has not advocated for its own interpretation ofwhere MIS costs were to be included in its proposal. Regardless ofthe government's directions, OCI recorded

. those costs under CLIN 0004, a choice it did not explain and which we find to be unreasonable given that the contract documents explicitly stated that CLINs 0003 and

. 0004 were for travel costs; offerors should notpropose any costs for those CLINs; and

the government would not be evaluati_ng proposals on the basis ofthose two CLINs (findings 10, 12-14).
Forthe foregoing reasons, the contractis not ambiguous and we therefore do not reach the issue ofalleged latent ambiguity. ·

13The Government DidNot Constructively Change the Contract
OCI alleges thatthe government is liable to it under the doctrine ofconstructive change. We recently addressed that doctrine:
"A constructive change occurs when a contractor performs work beyond the contractrequirements, without a formal order under the Changes clause, due eitherto an express or implied informal order from an authorized government official or to government fault." Circle, LLC, ASBCA No. 58575, 15-1 B_CA, 36,025 at 175,974 (citing Bell/Heery v. UnitedStates, 739 F.3d 1324, 1335 (Fed. Cir. 2014)). Thus in the absence -ofgovernment action or fault, the constructive change doctrine cannot form the basis for recovery. lnt'lDataProds. Corp. v. UnitedStates, 492 F.3d 1317, 1325 (Fed. Cir. 2007).
Parwan Group Company, ASBCANo. 60657, 18-1 BCA,37,082 at 180,498. To recover under a constructive change theory, the contractor mustprove not only that it performed additional workbeyond the contract's requirements but also that it incurred increased costs over what it otherwise would have incurred in performing those requirements. Charles F. Day &Assocs. LLC, ASBCA No. 60211 etal.~ 19-1 BCA

. , 37,215 at 181,175. Preliminarily, the contractrequires that all changes to it can be made only by the parties' written agreement (finding 2). There is no suchwritten agreement concerning the cop.tract's MIS provisions. OCI has- notproffered any evidence that any government official with authority constructively changed the contract. OCI's only hearing witness was not actively involved with the contract, proposalpreparation orpricing andhis testimony in this regard carries little weight. In any event, he could not identify the government employee whopurportedly advised OCIthatthe government would supply an MIS for OCI's use. The government denies this allegation and the Board found no evidence ofrecord ofany such instruction. (Findings 23-25, 28) OCI has not met its burden to prove that the government constructively changed the contract. )The Government DidNotBreachthe Contract OCI_alleged in its complaint that the governmentbreached the parties' contract when it failed to provide OCI with an MIS or to use the MIS proposedby OCI (see also findings 23, 28). We discussed above that nothing in the contractrequiredthe government to provide OCI with anMIS; the government denied that itpromised to do so; and OCI did not identify any individual who allegedly made thatpromise. The

14record lacks probative evidence as to why the government did not accept its MIS. OCI failed to meet its burdentoprove thatthe governmentbreachedthe contract. In sum, OCI has not met its burden to prove entitlement under any ofits legal theories.

We deny the appeal.
Dated: August 20, 2019

Armed Services Board ofContractAppeals DECISION

Administrative Judge Armed Services Board ofContractAppeals
I concur

RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion andDecision ofthe Armed Services Board ofContract Appeals in ASBCANo. 58752, Appeal of Optimization Consulting, Inc., rendered in conformance with the Board's Charter.
Dated:

15 PAULLA K. GATES-LEWIS Recorder, Armed Services Board ofContractAppeals ·