ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of--

Phoenix Data Solutions LLC 

f/k/a Aetna Government Health Plans 

Under Contract No. H94002-09-C-0008 

APPEARANCES FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 60207 

Karen L. Manos, Esq. 

Erin N. Rankin, Esq. 

Gibson, Dunn & Crutcher LLP 

Washington, DC 

Laurel C. Gillespie, Esq. 

Chief Trial Attorney 

John G. Terra, Esq. 

Song U. Kim, Esq. 

Trial Attorneys 

Defense Health Agency 

JBSA Fort Sam Houston, TX 

OPINION BY ADMINISTRATIVE JUDGE D'ALESSANDRIS ON 

MOTIONS FOR RECONSIDERATION 

Pending before the Board are three motions seeking reconsideration and 

redaction of portions of the Board's decision in this appeal dated June 21, 2018. 

Appellant, Phoenix Data Solutions LLC, f/k/a Aetna Government Health Plans 

(AGHP), filed a "Motion for Reconsideration to Correct Clerical Mistake," and a 

separate "Memorandum in Support of Proposed Redactions." Respondent, the 

Defense Health Agency (DHA) filed a cross-motion for reconsideration. 

For the reasons stated below, 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 of Review for Motions for Reconsideration 

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. Zulco International, Inc., ASBCA No. 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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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' or to advance arguments that properly should have been presented in an earlier 

proceeding." Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014) (citations 

omitted); see also Avant Assessment, LLC, ASBCA No. 58867, 15-1 BCA ~ 36,137 

at 176,384. We do not grant motions for reconsideration absent a compelling reason. 

J.F. Taylor, Inc., ASBCA Nos. 56105, 56322, 12-2 BCA ~ 35,125 at 172,453. 

II. AGHP's Request to Correct a Clerical Error 

AGHP correctly notes that the Board's opinion contains a mathematical error 

on page 30 of the slip opinion and that the loss percentage, correctly calculated should 

be 16.26 percent, rather than 17.37 percent calculated in the slip opinion. AGHP, 

again correctly, asserts that the total award should be revised to $11,216,011. After 

. AGHP filed its motion, the undersigned administrative judge issued an order noting 

that there was a formula error in the Excel spreadsheet used to calculate the adjustment 

for loss, and that the spreadsheet values corresponded to amounts referenced in 

AGHP's motion after correcting the error. DHA does not dispute either the existence 

of the error or that AGHP has properly calculated the mathematical consequences of 

the mistake. Instead, DHA opposes AGHP's motion to correct the 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 that the name of the former DHA Chief of 

Staff on pages 5, 6, 10, 12, 20, 21, and 33 of the slip opinion be redacted to preserve 

that individual's personal privacy interests in accordance with Freedom of Information 

Act (FOIA) exemption 6 which protects information about individuals in "personnel 

and medical files and similar files" when the disclosure of such information "would 

constitute a clearly unwarranted invasion of personal 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 administrative judge indicated a willingness to 

accommodate AGHP's request if the parties could agree upon alternative wording that 

would preserve the readability of the decision. The order proposed substituting "the 

former DHA Chief of Staff' in place of the 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 or Privacy Act grounds (gov't cross-mot. at 4). However, 

1 This appeal is subject to a protective order. Due to 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. 

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DHA indicated that, if subject to redaction, it would not oppose a change to "the 

former DHA Chief of Staff' and indicated that it had consulted with counsel to AGHP, 

and that AGHP 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 Chief of Staff." 

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 For Reconsideration 

In response to AGHP's motion for reconsideration to correct a clerical error, 

DHA filed a cross-motion regarding the calculation of the adjustment for loss. 

According to DHA, the Board should not fix its mathematical error because it 

"assumes a method for calculation of the termination settlement amount that is at odds 

with the binding precedent of this Board and the Federal Circuit, as well as the 

language of the contract at issue in this appeal" (gov't cross-mot. at 1). 

According to DHA, our opinion is not in accordance with Board precedent 

holding that a contractor cannot recover 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. United States, 477 F.2d 930, 936 (Ct. Cl. 1973), for the proposition that the only 

difference between recovery in a termination for convenience and recovery pursuant to 

a breach action is that the recovery in a breach action can include anticipated but 

unearned profits. According to DHA, AGHP was scheduled to lose $18,536,611 on 

the contract, and thus, the Board's award put AGHP in a better position than if it had 

performed the contract (gov't cross-mot. at 2-3). However, here DHA simply repeats 

an argument contained in its post-hearing briefs and that we have already rejected 

(gov't hr. at 33; gov't reply hr. at 9-10). Phoenix Data Solutions LLCf/k/a Aetna 

Government Health Plans, ASBCA No. 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 of the termination for convenience clause for commercial item contracts, 

not applicable here. Just as SWR calculated the termination settlement based 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 settlement based upon 

FAR 52.249-2, the applicable termination clause for the terminated work in this 

appeal. DHA has never demonstrated that we misapplied the applicable FAR 

prov1s10n. 

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The Court of Claims' holding in William Green is similarly inapplicable. 

In William Green the contractor sought expectation damages in addition to its 

termination settlement proposal. The court held that the termination settlement 

was the contractor's sole remedy, noting that the convenience termination permits 

the government to terminate a contract "in exchange for the contractor being 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 awarded profits but instead had an 

adjustment for loss. As would have been the case with profits, the adjustment for 

loss was applied only to the work actually performed. However, as required by 

the FAR, the adjustment for loss was calculated based upon the loss AGHP would 

have incurred if the entire contract had been performed. FAR 52.249-2(g)(iii).2 

DHA's second basis 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't br. 43-47). According to DHA, each 

termination clause should be applied to the contract line item numbers (CLINs) for 

which they were written (gov't br. at 44-45). In fact, the Board's opinion did just this 

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 AGHP performed 

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 of the adjustment for loss, 

asserting that the adjustment for loss should be calculated based solely on the 

anticipated loss on the fixed-price line items, and estimating an adjustment for loss of 

62.35% (gov't br. at 45-46). However, DHA's argument ignores the plain language of 

the FAR providing "if it appears that the Contractor would have sustained a loss on the 

entire contract had it been completed, the Contracting Officer shall allow no profit 

under this 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 FAR rule requiring that profit be calculated based upon the entire 

contract protects both the government and the contractor. As in this appeal, 

contractors can submit proposals with different expected profit percentages for 

different contract line items. Here, the government would have benefitted from 

an interpretation that based the contractor's profit only on the fixed-price line 

items. In other instances, the fixed-price work may have a greater expected rate 

of profit than the other terminated work, in which case, the FAR rule requiring 

calculation of profit based on the entire contract would benefit the government. 

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rejected DHA's proposed interpretation because it proposed to calculate the 

adjustment for loss based on only 2 of the 16 awarded CLINs, rather than the "entire 

contract" as required by the FAR (id. at 30). Nothing in DHA's repetition of its 

previously-rejected argument causes us to reconsider that decision. 

CONCLUSION 

For the 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 

of Contract Appeals 

DAVID D' ALESSANDRIS 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

J. REIDPROUTY 

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 No. 60207, Appeal of Phoenix 

Data Solutions LLC f/k/a Aetna Government Health Plans, rendered in conformance 

with the Board's Charter. 

Dated: 

5 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals