ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of --

CiyaSoft Corporation 

Under Contract No. W91B4L-10-P-1475 

APPEARANCE FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 59913 

Ms. Laila H. Rashed 

Corporate Officer and Director of Sales 

Raymond M Saunders, Esq. 

Army Chief Trial Attorney 

Evan C. Williams, Esq. 

MAJ Bruce H. Robinson, JA 

Trial Attorneys 

OPINION BY ADMINISTRATIVE JUDGE MCNULTY ON THE 

GOVERNMENT'S MOTION FOR RECONSIDERATION 

The government has timely moved for reconsideration of our 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 previously raised and decided. The movant must provide a compelling 

reason for modifying or overturning the decision being reconsidered. We look for newly 

presented evidence, mistakes in findings of fact, or errors oflaw. American International 

Contractors, Inc., ASBCA Nos. 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 of the decision erroneously concludes 

appellant's complaint filed October 23, 2014, included a signed certification. The 

government states in part: "Perhaps, the confusion arose from the contracting officer's 

final decision (COFD), dated 30 March 2015. In the COFD, the contracting officer 

erroneously purported to make a final decision on CiyaSoft' s 'claim dated 23 October 

2014. "' (Gov't mot. at 2) The government is correct that the complaint included no 

certification. The government is also correct that 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 
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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'g on recon. 90-3 BCA ,r 23,201; 

Dr. David T Snow, ASBCA No. 30652, 87-1 BCA ,r 19,455 at 98,296-97, ajf'g on recon. 

86-2 BCA ,r 18,844; Maitland Brothers Company, ASBCA No. 24032, 85-2 BCA 

,r 18,041 at 90,545-46, ajf'g on recon. 84-2 BCA ,r 17,463, for examples of other decisions 

we have confirmed on reconsideration despite including immaterial errors of fact. 

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

as filed included certification language mandated by the Contract Disputes Act, 

41 U.S.C. §§ 7101-7109 (CDA). The certification was not signed. (R4, tab 15 at 2) We 

have frequently held that an unsigned certification is a defective certification that cannot 

be corrected, which renders a claim invalid. See, e.g., NileCo General Contracting LLC, 

ASBCA No. 60912, 17-1 BCA ,r 36,862 at 179,607. The contracting officer nonetheless 

issued a final decision, basing the denial of the claim in part on the lack of a signed 

certification (R4, tab 16 at 2). Appellant filed a notice of appeal, which included a 

signed certification (R4, tab 17 at 2). Shortly after appellant filed its complaint, the 

government, in lieu of an answer, filed a motion to dismiss, asserting the Board lacked 

jurisdiction to consider the appeal because a certified claim had never been submitted to 

the contracting officer (gov't mot., November 3, 2014). The Board thereafter advised 

the parties that decision on the motion would not be an efficient use of the 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 indicated that when the contracting officer issued the 

new final decision, appellant could file a "protective" appeal, which would be assigned a 

separate appeal number by the Board and consolidated with the existing appeal. (Bd. 

corr. ltr. dtd. ·February 4, 2015) Pursuant to our request to do so, the contracting officer 

issued a second final decision dated March 30, 2015 (R4, tab 19). This decision appears 

to be a verbatim copy of the initial final decision except that it refers to the claim as 

being dated October 23, 2014, and deletes the discussion of appellant's copyright 

infringement assertions and the statement regarding the unsigned certification. 2 The 

record includes no explanation for the contracting officer's reference in the second final 

decision to the claim being dated October 23, 2014. The government argues that 

because of our error we have no jurisdiction to consider appellant's appeals, as there is 

no certification for 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 merit because we view the 

complaint as merely providing additional factual detail based on the same operative facts 

asserted originally in appellant's claim, which we have jurisdiction over by reason of the 

1 The date of appellant's notice of appeal, 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) 

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signed 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 of the basis for its claims and that without 

reliance on new additional operative facts set forth in the complaint our decision was 

erroneous because we lacked jurisdiction to consider these new facts. The government 

correctly asserts the claim asserts two causes of action: ( 1) the contract was breached 

by permitting multiple unauthorized copies of appellant's software to be created; and 

(2) the contract was breached by the government's failure to protect the software. 

(Gov't mot. at 4-5) At pages 6 and 7 of its motion the government argues that 

appellant's complaint sets forth an entirely different set of facts from the claim. 

Specifically, the government argues the claim is devoid of any discussion of Army 

employees installing appellant's software on more than one Army computer and fails 

to mention the two copies registered using SPC Sahar' s email address. We view these 

facts as simply being more detailed assertions of the factual statements made in the 

claim as follow: ( 1) "The Software was licensed pursuant to a clear mutual 

understanding that it was for use on one computer system only"; (2) "In fact, the 

change in installation process made on behalf of the Army made it possible for the 

Army or contractors operating for the Army to copy and install unauthorized copies of 

the Software without the Company's knowledge"; and (3) "CiyaSoft Corporation (the 

'Contractor') now formally claims that the Army breached the terms of the License 

Agreement covering each CD copy of the software supplied pursuant to the Contract 

in that the Army caused multiple unauthorized copies of the Software to be made by 

its own actions or by handing copies to translation contractors such as Mission 

Essential Personnel ('MEP') which contractor(s), in turn, made unauthorized copies of 

the Software with actual or imputed knowledge of the Army." (R4, tab 15 at 1) 

The government similarly, argues that the details provided in the complaint 

relating to the government's failure to provide appellant with a list of activations or 

registered users is a new claim (gov't mot. at 7-8). We again disagree and view the 

complaint as merely setting forth more detail with respect to the following assertions 

set forth in the claim: (1) "The Contract provided a special exception for the Army 

regarding registering each copy of the Software online via the 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) "Our Company made various attempts to learn how many copies of the Software 

were actually installed and upon which computer system. Neither the Army nor any 

contractor working under the aegis of the Army ever disclosed the copying or 

installation data we sought." (R4, tab 15 at 1) 

If operative facts presented in the pleadings are essentially the same as those in 

the claim, we have held they are within the scope of the appeal. Stencel Aero 

Engineering Corporation, ASBCA No. 28654, 84-1BCA116,951. In Stencel, we 

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noted that the de novo nature of the proceedings before us means that we are not 

limited to consideration of only the evidence and legal theories presented to the 

contracting officer. We stated: "the proper scope of an appeal processed under the 

CDA is circumscribed by the parameters of the claim.'' Id. at 84,315; see also Cline 

Construction Company, ASBCA No. 28600, 84-3 BCA ,r 17,594 at 87,660 

(government permitted to plead and introduce evidence relating to two defenses to 

contractor's claim not mentioned in the COFD over the contractor's objection). The 

Federal Circuit has held that a valid claim must give the contracting officer adequate 

notice of the basis and amount of the claim but need not provide detailed evidence of 

all of the 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 of detailed cost 

information); see also Aerojet 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 it based on additional evidence the government had discovered 

during discovery, as being based upon a perspective that sought to isolate each piece 

of data or fact from its context. We stated: "If the court will have to review the same 

or related evidence to make its decision, then only one claim exists." Id. at 120,773 

(quoting Placeway Constntction Corp. v. United States, 920 F.2d 903, 907 (Fed. Cir. 

1990)). Here we find·that the facts the government argues constitute new claims are 

within the parameters of the claim considered by the contracting officer and that we 

therefore have jurisdiction to consider and decide the appeals. The facts set forth in 

the complaint do not differ materially from the essential nature of the operative facts in 

appellant's claim with the unsigned certification. 

The government also argues that we erred when we ruled the long form of the 

license agreement was incorporated into the contract (gov't mot. at 9-11 ). The 

government argues that this ruling required consideration of operative 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 that the 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 government has not 

been prejudiced as the record indicates that the government was fully aware of the 

different forms of the license appellant had provided, e.g., the government posed 

several questions to appellant during discovery regarding the different versions of the 

license agreement and appellant's views of the government's responsibilities 

thereunder. (R4, tabs 20-21, 25-26) The long form of the 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 either pose any objection to the 

testimony provided by appellant during the hearing relating to the long form of the 

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agreement, or demonstrate in its motion how it might have been prejudiced by 

appellant's failure to refer to the long form of the agreement expressly as such in its 

claim (tr. 1/59-64, 67-75 (testimony concerns tab 8 of app. supp. R4 which is the long 

form of the 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 of the license agreement made by appellant in its 

complaint. Accordingly, we also find this argument by the government for 

reconsideration to be unpersuasive. 

The government also argues we erred by relying on Federal Acquisition 

Regulation (FAR) Part 12.212, and the finding that the software was commercial 

software as that term is used in the FAR, neither of which appellant mentioned, either 

in its claim, or in 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 policy that commercial software purchased by the government 

is subject to the terms of the license the vendor offers to other purchasers to the extent 

the terms are consistent with federal law and otherwise satisfy the government's needs. 

We are unaware of any precedent that would prevent us from taking into account FAR 

provisions applicable to an issue that have not been cited by a party. Furthermore, we 

note that our discussion of FAR 12.212 and the commercial nature of appellant's 

software was a secondary rationale for our finding that the contract included the 

license agreement. The fact that this is a secondary basis for ruling that the contract 

included the licensing agreement means that, even if we were to agree with the 

government that our reliance 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 

statement that it had no opportunity to brief this issue persuasive. The government has 

had the opportunity to do so with its motion for reconsideration. 

The government also argues we erred when we determined appellant's licensing 

agreement did not differ materially from the .standard licensing agreement offered to the 

public. The government argues the changes appellant made to the agreement were 

material because it placed 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 of the license agreement form involved, the government had an affirmative 

duty to register the software, only the method of registration 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 that had he known about the 

registration requirement he would have taken significantly different steps. The record, as 

cited in our original opinion, indicates the contracting officer had no interest in the license 

and made no effort to familiarize himself with its terms. The record also would support 

finding that the contracting officer in fact did know about the registration requirements 

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given appellant's testimony that it was discussed with him, although the contracting 

officer testified he had no recollection of this discussion. 18-1 BCA ,I 37,084, findings 

15-16. We did not find it necessary to make such a finding and do not do so now. 

Finally, the government argues we erred when we found the long form of the license 

agreement was included in the box with the copies of the software sent to 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 

of Contract Appeals 

CHRISTOPtlER M. MCNULTY 

Administrative Judge \ 

Armed Services Board 

of Contract Appeals 

I concur 

OWEN C. WILSON 

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. 59913, Appeal of CiyaSoft 

Corporation, rendered in conformance with the Board's Charter. 

Dated: 

6 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals