ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of-- Phoenix Data Solutions LLC

f/k/a Aetna Government Health Plans
Under ContractNo. H94002-09-C-0008 APPEARANCES FORTHE APPELLANT: ) ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCANo. 60207

Karen L. Manos, Esq. Erin N. Rankin, Esq.

Gibson, Dunn & CrutcherLLP Washington, DC
Laurel C. Gillespie, Esq.

ChiefTrial Attorney John G. Terra, Esq. Song U. 

### Kim, Esq.

Trial Attorneys Defense Health Agency JBSA Fort Sam Houston, TX OPINION BYADMINISTRATIVE JUDGE D'ALESSANDRIS ON MOTIONS FORRECONSIDERATION Pending before the Board are three motions seekingreconsideration and redaction ofportions ofthe Board's decision inthis appeal dated June 21, 2018. Appellant, Phoenix Data Solutions LLC, f/k/a Aetna Government HealthPlans (AGHP), filed a "Motion for Reconsideration to Correct Clerical Mistake," and a separate "Memorandumin Support ofProposedRedactions." Respondent, the Defense Health Agency (DHA) filed a cross-motion for reconsideration.
Forthe reasons statedbelow, AGHP's motion for reconsideration to correct a clerical error is granted. AGHP's request for redactions is granted in part. DHA's motion for reconsideration is denied.
I. Standard ofReview for Motions for Reconsideration
In deciding a motion for reconsideration, we examine whether the motion is basedupon newly discovered evidence, mistakes in our findings offact, or errors of law. Zulco International, Inc., ASBCANo. 55441, 08-1 BCA

## ,r 33,799 at 167,319. 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

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neitherbe required, nor without good reason permitted, to battle for it again. Motions for reconsideration do not afford litigants the opportunity to take a 'secondbite at the apple' orto advance arguments thatproperly should have been presented in an earlier proceeding." Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014) (citations omitted); see alsoAvantAssessment, LLC, ASBCANo. 58867, 15-1 BCA**~** 36,137 at 176,384. We do not grant motions for reconsideration absent a compellingreason. J.F. Taylor, Inc., ASBCANos. 56105, 56322, 12-2 BCA**~** 35,125 at 172,453. II. AGHP's Request to Correct a Clerical Error AGHP correctly notes thatthe Board's opinion contains a mathematical error on page 30 ofthe slip opinion and that the loss percentage, correctly calculated should be 16.26 percent, ratherthan 17.37 percent calculated in the slip opinion. AGHP, again correctly, asserts thatthe total award should be revised to $11,216,011. After

. AGHP filed its motion, the undersigned administrativejudge issued an ordernoting

that there was a formula error in the Excel spreadsheet used to calculate the adjustment for loss, and that the spreadsheetvalues corresponded to amounts referenced in AGHP's motion after correcting the error. DHA does not dispute either the existence ofthe error orthat AGHP has properly calculatedthe mathematical consequences of the mistake. Instead, DHA opposes AGHP's motion to correctthe clerical error because it asserts that the Board has committed legal error in the method used to calculate the adjustment for loss. As AGHP has identified a true clerical error, we grant AGHP's motion. 1 Zulco International, 08-1 BCA**~** 33,799 at 167,319.
III. AGHP's Request for Redactions
In a separate motion, AGHP requests thatthe name ofthe former DHA Chiefof Staffon pages 5, 6, 10, 12, 20, 21, and 33 ofthe slip opinion be redacted to preserve that individual's personal privacy interests in accordance with Freedom ofInformation Act (FOIA) exemption 6 which protects information about individuals in "personnel and medical files and similar files" when the disclosure ofsuch information "would constitute a clearly unwarranted invasion ofpersonal privacy." 5 U.S.C. 

### § 552(b)(6). By order dated July 11, 2018, and without ruling upon the applicability ofFOIA exemption 6, the undersigned administrativejudge indicated a willingness to accommodate AGHP's request ifthe parties could agree upon alternative wording that wouldpreserve the readability ofthe decision. The orderproposed substituting "the former DHA ChiefofStaff' inplace ofthe individual's name. 

### In response, the government states that it does not believe that the individual's name is required to be redacted pursuant to FOIA orPrivacy Act grounds (gov't cross-mot. at 4). However,

1 This appeal is subject to a protective order. Dueto the request for redactions, discussed below, the slip opinion has not been distributed. The Board will issue a corrected opinion making the changes identified in AGHP's motion. 2 

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# IDHAindicated that, ifsubjectto redaction, it would not oppose a change to "the former DHA ChiefofStaff' and indicated that it had consulted with counsel to AGHP, and thatAGHP was also amenable to such a revision (id. at 5). AGHP's motion for redaction is granted in part, and the opinion will be released with the individual's name changed to read "the former DHA ChiefofStaff." This modification is being made pursuant to the Board's discretion and not based upon a finding that the change was required pursuant to FOIA or the Privacy Act. IV. DHA's Motion ForReconsideration
In response to AGHP's motion for reconsideration to correct a clerical error, DHA filed a cross-motion regarding the calculation ofthe adjustment for loss. According to DHA, the Board should not fix its mathematical error because it "assumes a method for calculation ofthe termination settlement amountthat is at odds with the binding precedent ofthis Board and the Federal Circuit, as well as the language ofthe contract at issue in this appeal" (gov't cross-mot. at 1). Accordingto DHA, our opinion is not in accordance with Boardprecedent holding that a contractor cannotrecover more than its expectation damages in a termination for convenience (gov't cross-mot. at 2 (citing 

### SWR, Inc., ASBCA No. 56708, 15-1 BCA

## ,r 35,832)). DHA additionally cites to 

### William Green Constr. Co. v. UnitedStates, 477 F.2d 930, 936 (Ct. Cl. 1973), for the proposition that the only difference between recovery in a termination for convenience and recovery pursuantto a breach action is that the recovery in a breach action can include anticipated but unearnedprofits. According to DHA, AGHP was scheduled to lose $18,536,611 on the contract, and thus, the Board's awardputAGHP in a betterposition than ifit had performed the contract (gov'tcross-mot. at 2-3). However, here DHA simply repeats an argument contained in its post-hearing briefs and that we have already rejected (gov'thr. at 33; gov'treply hr. at 9-10). 

### PhoenixDataSolutions LLCf/k/aAetna GovernmentHealth Plans, ASBCANo. 60207, slip op. at 18-19, 28 (June 21, 2018). DHA's arguments regarding 

### SWR and 

### William Green (both cited and discussed in the government's opening post-hearing brief) are misplaced. 

### SWR involved the application ofthe termination for convenience clause for commercial item contracts, not applicable here. Just as 

### SWR calculated the termination settlementbased upon FAR 52.212-4(1), the applicable termination clause in that appeal 

### (SWR, 15-1 BCA 

## ,r 35,832 at 175,221-24), we calculated the termination settlementbased upon FAR 52.249-2, the applicable termination clause for the terminated work in this appeal. DHAhas never demonstrated that we misapplied the applicable FAR prov1s10n.

3

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.~

The Court ofClaims' holding in William Green is similarly inapplicable. In William Green the contractor sought expectation damages in addition to its termination settlementproposal. The court held thatthe termination settlement was the contractor's sole remedy, noting that the convenience terminationpermits the government to terminate a contract "in exchange for the contractorbeing able to recover from it administratively sums the contractor may have been able to recover in a contract 'breach action,' except for profits that were anticipated and unearned." (Gov't cross-mot. at 2 (citing William Green, 477 F.2d at 936)). 

### In the Board's June 21, 2018 opinion, AGHP was not awardedprofits but instead had an adjustment for loss. As would have been the case with profits, the adjustment for loss was appliedonly to the work actually performed. However, as required by the FAR, the adjustment for loss was calculatedbased upon the loss AGHP would have incurred ifthe entire contract had been performed. FAR 52.249-2(g)(iii).2
DHA's secondbasis for reconsideration simply repeats its argument that the Board must harmonize the various termination for convenience clauses contained in the contract (gov't cross-mot. at 3-4; gov'tbr. 43-47). According to DHA, each termination clause should be applied to the contract line item numbers (CLINs) for whichthey were written (gov'tbr. at 44-45). 

### In fact, the Board's opinion didjustthis and did not award any damages to AGHP for its cost-plus-fixed-fee, requirements, award-fee pool, or time-and-material CLINs. All the work AGHPperformed was under firm-fixed price CLINs, and the Board awarded damages based on FAR 52.249-2, the termination for convenience provision for fixed-price contracts. DHA alleges error in the Board's calculation ofthe adjustment for loss, asserting that the adjustment for loss should be calculatedbased solely on the anticipated loss on the fixed-price line items, and estimating an adjustment for loss of 62.35% (gov'tbr. at45-46). However, DHA's argument ignores the plain language of the FARproviding "ifit appears thatthe Contractor would have sustained a loss on the entire contract had it been completed, the Contracting Officer shall allow no profit underthis subdivision

...and shall reduce the settlement to reflect the indicated rate of loss." FAR 52.249-2(g)(iii). We interpreted "entire contract" as including all awarded line items, but not including the unexercised options. Phoenix, slip op. at 30-31. We

2 Significantly, the FARrule requiring thatprofitbe calculatedbased upon the entire contractprotects boththe government and the contractor. As in this appeal, contractors can submitproposals with different expectedprofitpercentages for different contract line items. Here, the governmentwould have benefitted from an interpretation that based the contractor's profit only onthe fixed-price line items. In other instances, the fixed-price work may have a greater expected rate ofprofitthan the other terminated work, in which case, the FARrule requiring calculation ofprofit based on the entire contract would benefitthe government. 4

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rejected DHA'sproposed interpretation because itproposed to calculate the adjustment for loss based on only 2 ofthe 16 awarded CLINs, rather than the "entire contract" as required by the FAR(id. at 30). Nothing in DHA'srepetition ofits previously-rejected argument causes us to reconsiderthat decision. CONCLUSION
Forthe reasons stated above, AGHP's motion for reconsideration to correct a clerical error is granted, AGHP's motion for redactions is granted in part, and DHA's cross-motion for reconsideration is denied. Dated: October 2, 2018

I concur

RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContract Appeals DAVID D'ALESSANDRIS Administrative Judge Armed Services Board ofContractAppeals
I concur

J. REIDPROUTY Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify thatthe foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCA No. 60207, Appeal ofPhoenix Data Solutions LLC f/k/a Aetna Government Health Plans, rendered in conformance with the Board's Charter. Dated:



### 5 JEFFREYD. GARDIN Recorder, Armed Services Board ofContract Appeals


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