'                   ARMED SERVICES BOARD OF CONTRACT APPEALS

    Appeals of --                                )
                                                 )
    American International Contractors, Inc.     )      ASBCA Nos. 60948, 61166
                                                 )
    Under Contract No. W912ER-14-C-0002          )

    APPEARANCES FOR THE APPELLANT:                      Scott M. Heimberg, Esq.
                                                        Mark J. Groff, Esq.
                                                         Akin Gump Strauss Hauer & Feld LLP
                                                         Washington, DC

    APPEARANCES FOR THE GOVERNMENT:                     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


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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


                                                ~~.
                                                  N.
                                                     0 'L.v--tl
                                                   MICHAE        O'CONNELL
                                                   Administrative Judge
                                                   Armed Services Board
                                                   of Contract Appeals



    I concur                                       I concur




    RICHARD SHACKLEFORD                            OWEN C. WILSON
    Administrative Judge                           Administrative Judge
    Acting Chairman                                Vice Chairman
    Armed Services Board                           Armed Services Board
    of Contract Appeals                            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:



                                               JEFFREYD. GARDIN
                                               Recorder, Armed Services
                                               Board of Contract Appeals




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