ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of

-- CiyaSoft Corporation

Under ContractNo. W91B4L-10-P-1475

APPEARANCE FOR THE APPELLANT: ) ) ) ) )

APPEARANCES FOR THE GOVERNMENT: ASBCA No. 59913

Ms. Laila H. Rashed

Corporate Officer and Director ofSales
Raymond M Saunders, Esq.

Army ChiefTrial Attorney Evan C. Williams, Esq. MAJ Bruce H. Robinson, JA

Trial Attorneys

OPINION BYADMINISTRATIVE JUDGE MCNULTY ON THE GOVERNMENT'S MOTION FOR RECONSIDERATION

The governmenthas timely moved for reconsideration ofour decision, CiyaSoft Corporation, ASBCA Nos. 59519, 59913, 18-1 BCA

## ,r 37,084. Familiarity with the opinion is presumed. The government argues the opinion includes both factual and legal errors stemming from the factual errors. While we agree the decision includes one factual error,
we view the error as immaterial in the circumstances. Accordingly, we deny the motion.

DECISION

The standards for reconsideration are well established. Reconsideration is not for rearguing issues previouslyraised and decided. The movant mustprovide a compelling

reason for modifying or overturning the decisionbeing reconsidered. We look for newly presented evidence, mistakes in findings offact, or errors oflaw. AmericanInternational Contractors, Inc., ASBCANos. 60948, 61166, 18-1 BCA

## ,r 37,194 at 181,070 (citing Precision Standard, Inc., ASBCA No. 58135, 16-1 BCA

## ,r 36,504 at 177,860).

Here the government argues finding 39 ofthe decision erroneously concludes appellant's complaint filed October 23, 2014, included a signed certification. The government states inpart: "Perhaps, the confusion arose from the contracting officer's final decision (COFD), dated 30 March 2015. Inthe COFD, the contracting officer erroneously purported to make a final decision on CiyaSoft's 'claim dated 23 October 2014."' (Gov'tmot. at 2) The government is correct that the complaint included no certification. The government is also correctthat the confusion arose from the contracting officer's second final decision, dated March 30, 2015, which refers to the complaint as appellant's claim. This error however, is immaterial to our decision and we therefore

# I

decline to either modify or overturn it except as set forth below. See C-Ran Corporation, ASBCA No. 37643, 91-2 BCA

## ,r 23,752 at 118,935, aff'gon recon. 90-3 BCA

## ,r 23,201; Dr. DavidT Snow, ASBCA No. 30652, 87-1 BCA

## ,r 19,455 at 98,296-97, ajf'gon recon. 86-2 BCA

## ,r 18,844;MaitlandBrothers Company, ASBCA No. 24032, 85-2 BCA 

## ,r 18,041 at 90,545-46, ajf'gon recon. 84-2 BCA

## ,r 17,463, for examples ofother decisions

we have confirmed onreconsideration despite including immaterial errors offact.

The record reflects that appellant initially filed its claim in April 2014. The claim

as filed included certification language mandatedbythe Contract Disputes Act, 41 U.S.C. §§ 7101-7109 (CDA). The certification was not signed. (R4, tab 15 at 2) We have frequently heldthat an unsigned certification is a defective certification that cannot be corrected, which renders a claim invalid. See, e.g., NileCo General ContractingLLC, ASBCA No. 60912, 17-1 BCA

## ,r 36,862 at 179,607. The contracting officer nonetheless issued a final decision, basing the denial ofthe claim in part on the lack ofa signed certification (R4, tab 16 at 2). Appellant filed a notice ofappeal, which included a signed certification (R4, tab 17 at 2). Shortly after appellant filed its complaint, the government, in lieu ofan answer, filed a motion to dismiss, asserting the Board lacked jurisdictionto considerthe appeal because a certified claim had neverbeen submitted to the contracting officer (gov'tmot., November 3, 2014). The Board thereafter advised the parties that decision on the motion would not be an efficientuse ofthe Board's

resources and requested that the contracting officer issue a new final decision on "the claim as certified on 26 August 2014 1

, and appellant may subsequently file an appeal from that decision." The Board indicatedthat when the contracting officer issued the

new final decision, appellant could file a "protective" appeal, which wouldbe assigned a separate appeal numberbythe Board and consolidatedwiththe existing appeal. (Bd.

corr. ltr. dtd. ·February4, 2015) Pursuantto ourrequest to do so, the contracting officer issued a secondfinal decision dated March 30, 2015 (R4, tab 19). This decision appears to be a verbatim copy ofthe initial final decision except that it refers to the claim as being dated October 23, 2014, and deletes the discussion ofappellant's copyright infringement assertions and the statementregarding the unsigned certification.2 The record includes no explanation for the contracting officer's reference in the second final decision to the claimbeing dated October 23, 2014. The government argues that because ofour error we have nojurisdictionto consider appellant's appeals, as there is

no certificationfor this second claim, i.e., the complaint, which includes operative facts different from those initially asserted.

We find the government's argument to be without meritbecause we view the complaint as merelyproviding additional factual detail based on the same operative facts asserted originally in appellant's claim, which we havejurisdiction overby reason ofthe

1The date ofappellant's notice ofappeal, which included the signed certification.
2 Appellant's claim included assertions that its copyright was infringed. However, this issue was conceded and stricken from the complaint after the government filed

a partial motion to dismiss. (Order dtd. September 14, 2015)

2signed certification provided by appellant and the contracting officer's second final decision.

The government argues that as originally submitted, appellant's claim did not give the contracting officer adequate notice ofthe basis for its claims and that without reliance on new additional operative facts set forth in the complaint our decision was
erroneous because we lackedjurisdiction to consider these new facts. The government correctly asserts the claim asserts two causes ofaction: (1) the contract was breached bypermitting multiple unauthorized copies ofappellant's software to be created; and (2) the contract was breached bythe government's failure to protectthe software. (Gov'tmot. at 4-5) Atpages 6 and 7 ofits motion the government argues that appellant's complaint sets forth an entirely different set offacts from the claim. Specifically, the government argues the claim is devoid ofany discussion ofArmy employees installing appellant's software on more than one Army computer and fails
to mention the two copies registeredusing SPC Sahar's email address. We view these facts as simplybeing more detailed assertions ofthe factual statements made in the claim as follow: (1) "The Software was licensedpursuantto a clearmutual understanding that it was for use on one computer system only"; (2) "Infact, the change in installation process made on behalfofthe Army made it possible for the Army or contractors operating for the Armyto copy and install unauthorized copies of the Software without the Company's knowledge"; and (3) "CiyaSoft Corporation (the 'Contractor') now formally claims that the Armybreached the terms ofthe License Agreement covering each CD copy ofthe software supplied pursuant to the Contract in thatthe Army caused multiple unauthorized copies ofthe Software to be made by its own actions orbyhanding copies to translation contractors such as Mission Essential Personnel ('MEP') which contractor(s), in turn, made unauthorized copies of the Software with actual orimputed knowledge ofthe Army." (R4, tab 15 at 1)

The government similarly, argues thatthe details provided inthe complaint relating to the government's failure to provide appellant with a list ofactivations or registered users is a new claim (gov'tmot. at 7-8). We again disagree and view the complaint as merely setting forth more detail with respectto the following assertions setforth inthe claim: (1) "The Contractprovided a special exception for the Army regarding registering each copy ofthe Software online viathe company's secure registration system"; (2) "The Army never complied with required Software registration procedures heretofore agreed between the Company and the Army"; and (3) "OurCompany made various attempts to learn howmany copies ofthe Software

were actually installed and upon which computer system. Neitherthe Army nor any contractor working under the aegis ofthe Army ever disclosed the copying or installation data we sought." (R4, tab 15 at 1)

Ifoperative facts presented in the pleadings are essentiallythe same as those in the claim, we have held they are within the scope ofthe appeal. StencelAero Engineering Corporation, ASBCANo. 28654, 84-1BCA116,951. In Stencel, we

3noted that the de novo nature ofthe proceedings before us means that we are not limited to consideration ofonly the evidence and legal theories presented to the contracting officer. We stated: "the proper scope ofan appeal processed under the CDA is circumscribedbythe parameters ofthe claim.'' Id. at 84,315; see also Cline Construction Company, ASBCA No. 28600, 84-3 BCA

## ,r 17,594 at 87,660 (governmentpermitted to plead and introduce evidence relating to two defenses to contractor's claim not mentioned in the COFD overthe contractor's objection). The Federal Circuit has held that a valid claim must give the contracting officer adequate notice ofthe basis and amount ofthe claim butneed not provide detailed evidence of all ofthe alleged facts. HL. Smith, Inc. v. Dalton, 49 F.3d 1563, 1565 (Fed. Cir. 1995) (finding claim presented was a valid CDA claim despite lack ofdetailed cost information); see alsoAerojet Ordnance Tennessee, ASBCA No. 36089, 91-3 BCA 

## ,r 24,130, where we faulted a contractor's argument the government was asserting a
new claim against itbased on additional evidence the government had discovered during discovery, as being based upon a perspective that sought to isolate each piece ofdata or fact from its context. We stated: "Ifthe court will have to review the same
orrelated evidence to make its decision, then only one claim exists." Id. at 120,773 (quotingPlaceway Constntction Corp. v. UnitedStates, 920 F.2d 903, 907 (Fed. Cir. 1990)). Here we find·that the facts the government argues constitute new claims are within the parameters ofthe claim considered bythe contracting officer and that we therefore havejurisdictionto consider and decide the appeals. The facts set forth in the complaint do not differ materially from the essential nature ofthe operative facts in appellant's claim with the unsigned certification.

The government also argues that we erred when we ruled the long form ofthe license agreement was incorporated into the contract (gov't mot. at 9-11). The government argues that this ruling required consideration ofoperative facts not presented to the contracting officer (id.). The government asserts the claim includes

no reference to the long form license agreement (id.). We find the government's arguments unpersuasive.

While it is true thatthe claim does not delineate amongst the three versions of the license agreement, the claim specifically asserts that the government failed to comply with the software registration procedures included in the license agreement. This is sufficient. The record in its totality suggests that appellant does not view the three forms as being distinct, legally separate agreements, and the governmenthas not beenprejudiced as the record indicates thatthe government was fully aware ofthe different forms ofthe license appellanthad provided, e.g., the governmentposed several questions to appellant during discovery regarding the different versions ofthe license agreement and appellant's views ofthe government's responsibilities thereunder. (R4, tabs 20-21, 25-26) The long form ofthe agreement was included in the record, identifie_d as "License Agreement" with no objection from the government (app. supp. R4, tab 8). Nor did the government eitherpose any objection to the testimony provided by appellant during the hearing relating to the long form ofthe

4agreement, or demonstrate in its motionhow it mighthave been prejudiced by appellant's failure to refer to the long form ofthe agreement expressly as such in its claim (tr. 1/59-64, 67-75 (testimony concerns tab 8 ofapp. supp. R4 which is the long form ofthe license agreement); app. supp. R4, tabs 2, 8). We find that the reference in the claim to the government's failure to comply with the software registration requirements involve the same operative facts relating to the more detailed factual assertions regarding the long form ofthe license agreement made by appellant in its complaint. Accordingly, we also find this argumentby the government for reconsideration to be unpersuasive.

The government also argues we erred byrelying on Federal Acquisition Regulation (FAR) Part 12.212, and the finding thatthe software was commercial software as thatterm is used in the FAR, neither ofwhich appellantmentioned, either in its claim, orin its briefing (gov't mot. at 9). The government argues this necessarily involves a new claim. While it is true appellant never mentioned FAR 12.212, this provision sets forth the policythat commercial software purchased by the government is subjectto the terms ofthe license the vendor offers to otherpurchasers to the extent the terms are consistent with federal law and otherwise satisfythe government's needs. We are unaware ofany precedentthatwould preventus from taking into account FAR provisions applicable to an issue thathave notbeencitedbya party. Furthermore, we note that ourdiscussion ofFAR 12.212 and the commercial nature ofappellant's software was a secondary rationale for ourfinding that the contract includedthe license agreement. The fact that this is a secondary basis for ruling that the contract included the licensing agreement means that, even ifwe were to agree withthe governmentthat ourreliance on FAR 12.212 was erroneous, it would not change the ultimate ruling we made in appellant's favor. Nor do we find the government's statementthat ithadno opportunity to briefthis issue persuasive. The governmenthas had the opportunityto do so with its motion for reconsideration.

The government also argues we erred when we determined appellant's licensing agreement did notdiffer materially from the .standard licensing agreement offered to the public. The government argues the changes appellant made to the agreement were material because itplaced an affirmative duty on the government. Again, although this relates to our FAR 12.212 analysis, were we to accept the government's argument it would not affect the overall ruling in appellant's favor as we do not find merit in the government's argument. The government is also incorrect. Its argument ignores the fact that regardless ofthe license agreement form involved, the government had an affirmative duty to register the software, only the method ofregistration was changed, which was the basis for our finding that the change was not material. We are also unpersuaded by the government's reliance on the contracting officer's testimony thathad he known aboutthe registration requirement he would have taken significantly different steps. The record, as cited in our original opinion, indicates the contracting officerhad no interest in the license and made no effort to familiarize himselfwith its terms. The record also would support finding that the contracting officer in fact did know about the registration requirements

5given appellant's testimony that it was discussed withhim, although the contracting officertestified he had no recollection ofthis discussion. 18-1 BCA

### ,I37,084, findings 15-16. We did notfind it necessaryto make such a finding and do not do so now.
Finally, the government argues we erred when we found the long form ofthe license agreement was included in the box with the copies ofthe software sentto the government. The basis for our finding was set forth in our opinion and the government's arguments do
not persuade us that our finding in this regard was erroneous.

CONCLUSION

We affirm our opinion and deny the government's motion for reconsideration.

Dated: March 1, 2019

I concur

Administrative Judge Acting Chairman Armed Services Board ofContractAppeals CHRISTOPtlERM. MCNULTY Administrative Judge \ Armed Services Board ofContractAppeals

I concur

OWEN C. WILSON 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 ofContract Appeals in ASBCA No. 59913, Appeal ofCiyaSoft Corporation, rendered in conformance with the Board's Charter.

Dated:

6 JEFFREY D. GARDIN Recorder, Armed Services Board ofContractAppeals