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ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of

-- ) ) American International Contractors, Inc. ) ) Under ContractNo. W912ER-14-C-0002 ) APPEARANCES FORTHE APPELLANT:

APPEARANCES FORTHE 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 ChiefTrial Attorney Rebecca L. Bockmann, Esq. Sarah L. Hinkle, Esq.

Engineer Trial Attorneys U.S. Army Engineer District, Middle East Winchester, VA
OPINION BYADMINISTRATIVE JUDGE O'CONNELL ON APPELLANT'S MOTIONFORRECONSIDERATION Appellant, American International Contractors, Inc. (AICI), moves for reconsideration ofour decision inAmericanInternational 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 summaryjudgment. We deny the motion. DECISION The standards for deciding a motion for reconsideration are well established. Reconsideration does notprovide a party an opportunity to reargue issues that were previously raised and decided. Precision Standard, Inc., ASBCANo. 58135, 16-1 BCA, 36,504 at 177,860. The movant must establish a compelling reason to modify the earlier decision. Id. We lookto whetherthe movantpresents newly discovered evidence, mistakes in findings offact, or errors oflaw. Id. A motion for reconsideration does notprovide a litigant a "second bite at the apple" or the opportunity to advance arguments thatproperly should have been presented in an earlierproceeding. 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 ofwork. (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 ofthis 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 summaryjudgment, it was undisputed that the modification's value ($168,710) and term (232 days) came directly from AICI'sproposal (GSMF 

### ,J 8; app. reply to GSMF 

### ,J 8; R4, tabs 19, 92). While AICI ultimately refused to signthe modification, it was undisputed that its stated reason was that it wanted an unspecified additional amount for oversight ofthe work (id.). Priorto issuance ofthe modification, neitherparty brought up a return ofthe 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 whenthe contracting officer issues a modification for changed work, he or she may also provide for an "equitable readjustment" ofliquidated damages. 

### AICI, 18-1 BCA ,J 37,061 at 180,409-10. Similarly, FAR 52.243-4, CHANGES (JUN 2007), requires the contracting officerto make an "equitable adjustment" when changed work increases or decreases the price ofthe work orthe time required. One ofthe central flaws in AICI's argument is that ithas never attempted to show that the $168,710 itreceived was inequitable based on the work itperformed, orthat $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 thatthe decision will have "afar reaching harmful effect on the administration ofGovernment 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 1was somehow inequitable, AICI also has not attemptedto show eitherthrough the language ofModification 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: "Whetherthe Government misunderstood the contract it drafted, or the applicable case law, orthe consequences ofits own unilateral actions, [it] is the Government's burden to bear."). We disagree for the reasons stated in our

2decision including that the TimeExtensions clause specifically grantedthe contracting officerthe authority to change the completion date for one portion ofthe work while leaving all other completion dates in effect and thatthe contracting officer specified in the modificationthattheperiod ofperformance for all otherwork underthe contract remained the same. 

### A/Cl, 18-1 BCA 

### ,i 37,061 at 180,411-12.
AICI contends that we made a variety oferrors in our decision. We address several ofits contentions. 1
AICI's first, second, third and sixth assignments oferror all stem from the unilateral nature ofModification No. POOO 11. Its contentions are not entirely consistent. While onthe one hand it suggests that the contracting officer did not understand the contract ormodification and effectively gave away the liquidated damages, it also decries the "self-serving language" inthe modification and contends we erred by "deferring"to this self-serving language (app. mot. at 2 (first and third contentions oferror)). ButAICI simply makes conclusory statements rather than developing an argument. Similarly, AICI faults the Board for applying standardrules ofcontract interpretation, including "the plain meaning rule," to Modification No. POOOl l (app. mot. at 2 (second contention oferror)). AICI's description ofour opinion is incomplete, however. Nearthe beginning ofour legal analysis we briefly stated some standard rules ofcontract interpretation, including that we beginwith theplain language ofthe contract, which we interpretto 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 ofthe original contract. We concluded thatthis clauseprovidedthe contracting officer authority to extend the completion date only for the work affected bythe modification, while leaving inplace other completion dates.
Later in the decision we also examined the language inModification No. POOOl l to determine whether its language supported the government's contention that itpreserved the assessed liquidated damages. We concluded that "POOO 11 clearly carved out a separate completion date for the newwork whilepreserving liquidated damages already assessed." 

### A/Cl, 18-1 BCA 

### ,i 37,061 at 180,411. Certainly, it would have beenrelevant,

1 In a briefof just over sixpages, AICI spends a fair amount ofspace at the beginning and end making what are not so much legal arguments butrather complaints aboutthe government. Thus, we will not address its complaints that the government only mentioned one time in its briefthat Modification No. POOOl l was unilateral orwhether the contracting officer fairly characterized Modification No. POOOl l (which was 1.7% ofthe contract value when executed) as "minor."
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and perhaps dispositive, ifthe language ofModificationNo. POOOl 1 did not support the government's position. Thus, we continue to believe it was properto ascertain the plain meaning ofthe entire contract, including the modifications. It is not clear whatrules of contract interpretation AICI wouldhave us apply in place ofthose we cited.
AICI also contends that we erred "by relying on 

### Gardiner

...andpurportedly resorting to 'extrinsic' evidence to determine whether the language ofModification Nos. POOOl 1and P00012 was 'clear"' (app. mot. at 5 (sixth contention oferror)). AICI somewhat overstates what we did. Like the Federal Circuit in 

### Gardiner, we reached our decision based on the language ofthe contract. Only then did we perform a cross check ofthat determination by looking at the negotiating history ofthe modification. 

### Gardiner, 467 F.3d at 1354. If, for example, that negotiating history revealed a governmentpromise to refund liquidated damages, we might have a different case, butwe found no such evidence. AICI's longest contention oferror 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 summaryjudgment, 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 attemptto do so now is a quintessential improperbasis 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 ofwhetherthe government may ever add work to a contractwhile 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 statedthat 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 herto 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., ASBCANos. 9462, 9463, 1963 BCA 13889, supports its position. AICI did not cite this opinion in its summaryjudgmentbriefs; 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 ofthe contract work, notjustthe discrete work at issue. 

### Sundt, 11-1 BCA at 171,119-20 (citing 

### Watts, 1963 BCA 

### 13889 at 19,311). As we have found, ModificationNo. POOO 11 only extended the completion date for the work that was the subject ofthe modification.

4The TimeExtensions clause grants the contracting officer the authority to extend the completion date for the additional work andto adjust liquidated damages. Thus, the clause contemplates thatthe contracting officer may add workto the contract after liquidated damages have already been assessed, in other words, afterthe contractor is late in completing the work. The clause does notrequire the contracting officer to return the liquidated damages ifshe establishes a future date for completion ofthe work coveredbythe modification. Instead, it leaves it to her discretion, stating that she "may provide an equitable readjustment ofliquidated damages." FAR 52.211-13. As we have already stated, AICI has not even attempted to show that the circumstances ofthe new work made it equitable to adjustthe 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 ofContractAppeals

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MICHAE

## N. O'CONNELL Administrative Judge Armed Services Board ofContractAppeals

I concur

OWEN C. WILSON Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

3 We have considered AICI's contentions concerningAbconAssociates, Inc. v. United States, 49 Fed. Cl. 678 (2001), butwe conclude that it merely reiterates the same contentions from the underlying motions.

5I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA Nos. 60948, 61166, Appeals of American International Contractors, Inc., rendered in conformance with the Board's Charter. Dated:

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