               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                 )
                                             )
Avant Assessment, LLC                        )      ASBCA No. 58867
                                             )
Under Contract No. W9124N-10-C-0109          )

APPEARANCES FOR THE APPELLANT:                      Mark G. Jackson, Esq.
                                                    Stowell B. Holcomb, Esq.
                                                     Jackson Rosenfield LLP
                                                     Seattle, WA

APPEARANCES FOR THE GOVERNMENT:                     Raymond M. Saunders, Esq.
                                                     Army Chief Trial Attorney
                                                    CPT Harry M. Parent III, JA
                                                    Kyle E. Chadwick, Esq.
                                                     Trial Attorneys

            OPINION BY ADMINISTRATIVE JUDGE MCILMAIL
        ON THE GOVERNMENT'S MOTION FOR RECONSIDERATION

       On 10 September 2015, the government timely moved for reconsideration of
the Board's 11August2015 decision granting appellant's motion for summary
judgment and sustaining the appeal. Avant Assessment, LLC, ASBCA No. 58867,
 15-1BCA~36,067. Appellant, Avant Assessment, LLC (Avant), moved for summary
judgment that its contract for the provision of 3,300 foreign language test items had
been improperly terminated for default. In response, the only justification that the
government offered for the termination was that Avant "fail[ed] to deliver the required
number" - 3,300- "of acceptable test items" (gov't resp. at 4). We rejected that
argument, finding that the parties had entered into Modification No. P00005, which
"descoped" from the contract any unaccepted items; therefore, "delivering fewer than
3,300 acceptable items was not cause for terminating the contract." Avant Assessment,
 15-1BCA~36,067 at 176,129.


       Where litigants have once battled for a decision, they should neither be
required, nor without good reason permitted, to battle for it again. See Dixon v.
Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014). Motions for reconsideration do not
afford litigants the opportunity to take a "second bite at the apple" or to advance
arguments that properly should have been presented in an earlier proceeding. Id. On
reconsideration, the government advances the following justification for the
termination of the contract:
              Modification No. P00005 required appellant (Avant) to
              submit specified numbers of test items per "node"
              (language and skill level). Appellant under-delivered for
              some nodes and over-delivered for others. There is a direct
              link between appellant's under-deliveries and the
              126 items that the contracting officer found Avant was
              "short," and that were subsequently descoped.

(Gov't mot. at 1) The government continues:

              [T]he "descoping" provision of Modification No. P00005
              may have reduced the required number of "acceptable"
              items required, but it did not relieve appellant of its
              obligation to comply with the agreed delivery schedule. In
              short, if an item was never delivered, it was not descoped
              from the contract.

(Id.)

       Essentially, the government appears to be arguing that Avant did not deliver a
required number of test items, regardless of their acceptability. That is an argument
not advanced in response to the motion for summary judgment. To be sure, the
government's response to the summary judgment motion discussed nodes, but, as the
following excerpt from the response shows, that was in support of the argument that
Avant had not delivered 3,300 acceptable test items:

                     Appellant's contention that the government agreed
              to move overages from some nodes on [the contract] to
              shortages in other nodes as a way for appellant to reach the
              required number of 3, 300 acceptable test items under this
              contract is similarly disputed.

(Gov't resp. at 4) (Emphasis added)

        In support of its current argument, the government offers what it characterizes as
"new" evidence in the form of deposition testimony given on 4 August 2015 by "an
Avant manager"; the government also points to the contracting officer's 26 June .2013
final decision, and to findings of fact that Avant proposed in support of its summary
judgment motion on 21 July 2015 (gov't mot. at 1-2; R4, tab 7; app. mot. at 9, ~~ 47-48).
Of course, the latter two items are not new, and the deposition testimony appears to offer
the deponent's understanding of how Modification No. P00005 would operate.
However, that is a matter of contract interpretation, an issue of law that - particularly
because there is no suggestion that Modification No. P00005 is ambiguous - does not


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require parole evidence to resolve. See VLOX, LLC, ASBCA No. 59305 et al.,
 15-1BCA~36,055 at 176,075. That means that the government did not need the
deposition testimony to advance the argument it now advances; it could have advanced
that argument in its response to the summary judgment motion. For whatever reason, it
did not; not even the government suggests otherwise. For all these reasons, the motion
for reconsideration is denied.

       Dated: 14 October 2015




                                                 -c~
                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals


 I concur                                        I concur
                                                      ~··


~#
 sIBMPLE N.
 Administrative Judge
                                                 RICHARD SHACKLEFORD
                                                 Administrative Judge
 Acting Chairman                                 Vice Chairman
 Armed Services Board                            Armed Services Board
 of Contract Appeals                             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. 58867, Appeal of Avant
Assessment, LLC, rendered in conformance with the Board's Charter.


      Dated:



                                                 JEFFREY D. GARDIN
                                                 Recorder, Armed Services
                                                 Board of Contract Appeals



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