' 

ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeals of -- ) 

) 

American International Contractors, Inc. ) 

) 

Under Contract No. W912ER-14-C-0002 ) 

APPEARANCES FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA Nos. 60948, 61166 

Scott M. Heimberg, Esq. 

Mark J. Groff, Esq. 

Akin Gump Strauss Hauer & Feld LLP 

Washington, DC 

Michael P. Goodman, Esq. 

Engineer Chief Trial Attorney 

Rebecca L. Bockmann, Esq. 

Sarah L. Hinkle, Esq. 

Engineer Trial Attorneys 

U.S. Army Engineer District, Middle East 

Winchester, VA 

OPINION BY ADMINISTRATIVE JUDGE O'CONNELL 

ON APPELLANT'S MOTION FOR RECONSIDERATION 

Appellant, American International Contractors, Inc. (AICI), moves for 

reconsideration of our decision in American International Contractors, Inc., ASBCA 

Nos. 60948, 61166, 18-1 BCA, 37,061, in which we denied AICI's motion for summary 

judgment and granted-in-part and denied-in-part the government's cross-motion for 

summary judgment. We deny the motion. 

DECISION 

The standards for deciding a motion for reconsideration are well established. 

Reconsideration does not provide a party an opportunity to reargue issues that were 

previously raised and decided. Precision Standard, Inc., ASBCA No. 58135, 

16-1 BCA, 36,504 at 177,860. The movant must establish a compelling reason to 

modify the earlier decision. Id. We look to whether the movant presents newly 

discovered evidence, mistakes in findings of fact, or errors of law. Id. A motion for 

reconsideration does not provide a litigant a "second bite at the apple" or the 

opportunity to advance arguments that properly should have been presented in an 

earlier proceeding. Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014). 
As we described in our decision, this appeal involves a unilateral Modification, 

No. POOO 11, issued after AICI had completed the work and demobilized from the site. 

Modification No. POOOl l added 232 days and $168,710 to perform four discrete items 

of work. (A subsequent unilateral modification, Modification No. P00012, extended 

the time period by an additional 59 days.) AICI, 18-1 BCA ,i 37,061 at 180,410. AICI 

contends that, as a result of this modification, the government should also return 

$159,055 in withheld liquidated damages, for total compensation of $327,765. 

In the briefing on the cross-motions for summary judgment, it was undisputed 

that the modification's value ($168,710) and term (232 days) came directly from 

AICI's proposal (GSMF ,J 8; app. reply to GSMF ,J 8; R4, tabs 19, 92). While AICI 

ultimately refused to sign the modification, it was undisputed that its stated reason was 

that it wanted an unspecified additional amount for oversight of the work (id.). 

Prior to issuance of the modification, neither party brought up a return of the 

liquidated damages. AICI, 18-1 BCA ,i 37,061 at 180,410. Nevertheless, AICI is 

unhappy that it did not receive something it never requested during the negotiations. 

As we stated, Federal Acquisition Regulation (FAR) 52.211-13, TIME EXTENSIONS 

(SEP 2000), provides that when the contracting officer issues a modification for changed 

work, he or she may also provide for an "equitable readjustment" of liquidated damages. 

AICI, 18-1 BCA ,J 37,061 at 180,409-10. Similarly, FAR 52.243-4, CHANGES (JUN 2007), 

requires the contracting officer to make an "equitable adjustment" when changed work 

increases or decreases the price of the work or the time required. One of the central flaws 

in AICI's argument is that it has never attempted to show that the $168,710 it received 

was inequitable based on the work it performed, or that $327,765 would have been more 

equitable. 

Despite failing to show that it did not receive equitable compensation in 

Modification No. POOOl 1, AICI nevertheless predicts dire consequences from our 

decision. It contends that the decision will have "a far reaching harmful effect on the 

administration of Government contracts" because the government will be able to order 

new work after substantial completion without losing withheld liquidated damages. 

(App. mot. at 7) We are not convinced. Contracting officers will still be constrained 

by the requirement to make equitable adjustments pursuant to the Changes clause. 

Having failed to show that Modification No. POOOl 1 was somehow inequitable, 

AICI also has not attempted to show either through the language of Modification 

No. POOO 11 or extrinsic evidence that the government intended to release the 

liquidated damages. Instead, AICI goes in a different direction. Its argument seems to 

be that the contracting officer simply blundered into giving away the liquidated 

damages (see app. mot. at 6: "Whether the Government misunderstood the contract it 

drafted, or the applicable case law, or the consequences of its own unilateral actions, 

[it] is the Government's burden to bear."). We disagree for the reasons stated in our 

2 
decision including that the Time Extensions clause specifically granted the contracting 

officer the authority to change the completion date for one portion of the work while 

leaving all other completion dates in effect and that the contracting officer specified in 

the modification that the period of performance for all other work under the contract 

remained the same. A/Cl, 18-1 BCA ,i 37,061 at 180,411-12. 

AICI contends that we made a variety of errors in our decision. We address 

several of its contentions. 1 

AICI's first, second, third and sixth assignments of error all stem from the 

unilateral nature of Modification No. POOO 11. Its contentions are not entirely 

consistent. While on the one hand it suggests that the contracting officer did not 

understand the contract or modification and effectively gave away the liquidated 

damages, it also decries the "self-serving language" in the modification and contends 

we erred by "deferring" to this self-serving language (app. mot. at 2 (first and third 

contentions of error)). But AICI simply makes conclusory statements rather than 

developing an argument. 

Similarly, AICI faults the Board for applying standard rules of contract 

interpretation, including "the plain meaning rule," to Modification No. POOOl l (app. mot. 

at 2 (second contention of error)). AICI's description of our opinion is incomplete, 

however. Near the beginning of our legal analysis we briefly stated some standard rules 

of contract interpretation, including that we begin with the plain language of the contract, 

which we interpret to give reasonable meaning to all its parts. A/Cl, 18-1 BCA ,i 37,061 

at 180,411 (citing Gardiner, Kamya & Associates, P.C. v. Jackson, 467 F.3d 1348, 1353 

(Fed. Cir. 2006)). We then analyzed the Time Extensions clause, which was part of the 

original contract. We concluded that this clause provided the contracting officer 

authority to extend the completion date only for the work affected by the modification, 

while leaving in place other completion dates. 

Later in the decision we also examined the language in Modification No. POOOl l 

to determine whether its language supported the government's contention that it preserved 

the assessed liquidated damages. We concluded that "POOO 11 clearly carved out a 

separate completion date for the new work while preserving liquidated damages already 

assessed." A/Cl, 18-1 BCA ,i 37,061 at 180,411. Certainly, it would have been relevant, 

1 In a brief of just over six pages, AICI spends a fair amount of space at the beginning 

and end making what are not so much legal arguments but rather complaints 

about the government. Thus, we will not address its complaints that the 

government only mentioned one time in its brief that Modification No. POOOl l 

was unilateral or whether the contracting officer fairly characterized 

Modification No. POOOl l (which was 1.7% of the contract value when 

executed) as "minor." 

3 
1 

and perhaps dispositive, if the language of Modification No. POOOl 1 did not support the 

government's position. Thus, we continue to believe it was proper to ascertain the plain 

meaning of the entire contract, including the modifications. It is not clear what rules of 

contract interpretation AICI would have us apply in place of those we cited. 

AICI also contends that we erred "by relying on Gardiner ... and purportedly 

resorting to 'extrinsic' evidence to determine whether the language of Modification 

Nos. POOOl 1 and P00012 was 'clear"' (app. mot. at 5 (sixth contention of error)). 

AICI somewhat overstates what we did. Like the Federal Circuit in Gardiner, we 

reached our decision based on the language of the contract. Only then did we perform 

a cross check of that determination by looking at the negotiating history of the 

modification. Gardiner, 467 F.3d at 1354. If, for example, that negotiating history 

revealed a government promise to refund liquidated damages, we might have a 

different case, but we found no such evidence. 

AICI's longest contention of error concerns Sundt Construction, Inc., ASBCA 

No. 57358, 11-1BCA134,772, ajf'd, 469 F. App'x 916 (Fed. Cir. 2012) (app. mot. at 2-4). 

In its cross-motion for summary judgment, the government repeatedly cited Sundt (gov't 

resp. at 10, 12, 14, 16). AICI submitted an opposition to the cross-motion but failed to 

address the government's Sundt arguments. Its belated attempt to do so now is a 

quintessential improper basis for reconsideration. 

In any event, AICI seems to read too much into our citation to Sundt. We cited 

that opinion only to answer the question of whether the government may ever add 

work to a contract while retaining liquidated damages already withheld. Sundt 

answers that question in the affirmative. Sundt, 11-1 BCA 1 34, 772 at 171, 118-19. 

We never stated that the Sundt facts are precisely the same as in this appeal. 2 

Finally, AICI contends that we misinterpreted the Time Extensions clause. It 

contends that the authority granted to the contracting officer in that clause does not 

allow her to unilaterally change the one completion date to which the parties agreed in 

the Liquidated Damages clause (app. mot. at 4-5). 

2 AICI also contends that an opinion we distinguished in Sundt, J.G. Watts Construction 

Co., ASBCA Nos. 9462, 9463, 1963 BCA 13889, supports its position. AICI did 

not cite this opinion in its summary judgment briefs; we hold that it waived this 

argument. In any event, we distinguished Watts in the Sundt opinion because we 

read the modification in that earlier appeal as extending the completion date for 

all of the contract work, not just the discrete work at issue. Sundt, 11-1 BCA 

at 171,119-20 (citing Watts, 1963 BCA 13889 at 19,311). As we have found, 

Modification No. POOO 11 only extended the completion date for the work that 

was the subject of the modification. 

4 
The Time Extensions clause grants the contracting officer the authority to extend 

the completion date for the additional work and to adjust liquidated damages. Thus, the 

clause contemplates that the contracting officer may add work to the contract after 

liquidated damages have already been assessed, in other words, after the contractor is 

late in completing the work. The clause does not require the contracting officer to 

return the liquidated damages if she establishes a future date for completion of the work 

covered by the modification. Instead, it leaves it to her discretion, stating that she "may 

provide an equitable readjustment of liquidated damages." FAR 52.211-13. As we 

have already stated, AICI has not even attempted to show that the circumstances of the 

new work made it equitable to adjust the liquidated damages. 3 

CONCLUSION. 

AICI's motion for reconsideration is denied. 

Dated: October 29, 2018 

I concur 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

~~. 0 'L.v--tl 

MICHAE N. O'CONNELL 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

OWEN C. WILSON 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

3 We have considered AICI's contentions concerning Abcon Associates, Inc. v. United 

States, 49 Fed. Cl. 678 (2001), but we conclude that it merely reiterates the 

same contentions from the underlying motions. 

5 
I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA Nos. 60948, 61166, Appeals of 

American International Contractors, Inc., rendered in conformance with the Board's 

Charter. 

Dated: 

6 

JEFFREYD. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals