Optimization Consulting, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Optimization Consulting, Inc. ) ASBCA No. 58752
)
Under Contract No. W9I33L-10-D-0002 )
APPEARANCE FOR THE APPELLANT: Sheridan England, Esq.
S. L. England, PLLC
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
Robert B. Neill, Esq. ·
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE SCOTT
Appellant Optimization Consulting, Inc. (OCI) has timely appealed under the
Contract Disputes Act, 41 U.S.C. §§ 7101-7109, from the contracting officer's (CO's)
denial of its claim under the captioned contract for psychological healthcare and related
data management services issued by the National Guard Bureau (NGB) on behalf of the
Air Nationai Guard (ANG). OCI seeks reimbursement for increased costs it alleges it
incurred when the government did not accept its proposed Management Information
System (MIS) or provide a government-furnished MIS. The Board denied the
government's motion for summary judgment. · Optimization Consulting, Inc., ASBCA
No. 58752, 15-1 BCA, 36,106 (Optimization I). Thereafter, the Board conducted a
one-day hearing on entitlement only (tr. 11). For the reasons set forth below, we deny
the appeal.
FINDINGS OF FACT
Solicitation and Contract
1. On August 10, 2018 NGB issued commercial item solicitation
No. W9I33L-10- R-0099 for an indefinite delivery indefinite quantity contract for
mental health counseling and associated support services for members of ANG and
their families. The acquisition was set aside for service-disabled veteran-owned small
businesses. (R4, tab 2 at 1, 9, 41) 1 The Performance Work Statement (PWS)
1
Rule 4 citations are to the consecutively-stamped numbers unless otherwise
indicated.
imposed two broad categories of performance obligations, the first concerning
psychological health services (PHS) and the second, related records management and
reporting (R4, tab 2 at 45-103).
2. The contract and solicitation included Federal Acquisition Regulation (FAR)
52.212-4, CONTRACT TERMS AND CONDITIONS- COMMERCIAL ITEMS (JUNE 2010),
which provides that "(c) Changes. Changes in the terms and conditions of this contract
may be made only by written agreement of the parties" (R4, tab 1 at 13; tab 2 at 24).
3. With respect to PHS, contractors were expected to staff 89 psychological
healthcare subject-matter experts (PHSMEs) at facilities throughout the United States
and its territories who would, among other things, oversee and coordinate mental health
services; provide a network of mental health clinicians to provide mental health support
to service members and their families; and undertake activities to promote
psychological wellness (R4, tab 2 at 3, 56, 78-80, 85-88).
4. The second category of performance obligations, records management and
reporting, is addressed primarily in PWS Section III.A, "Security and Records
Management," which describes the contractor's obligations relating to a "system of
records" and an MIS (R4, tab 2 at 94-103).
5. The parties' obligations with respect to the MIS are at the heart of this
dispute. The solicitation does not specifically define "MIS" but it refers to the MIS as a
data collection mechanism throughout Section III.A. as well as in other PWS
provisions, intermingled with discussions about how and what type of information was
· to be collected, maintained and reported to ANG. (R4, tab 2)
6. The most detailed discussion of the MIS appears in the following subsection
of Section III.A:
a. Management Information System () (Portions are
Optional for award)
The ANG is currently investigating a comprehensive
multi-layered tracking and data collection system for
many ANG personnel functions. The ANG may/may not
elect to utilize the total capability of Contractor's
comprehensive MIS system, butexpects the offeror to
provide and manage hardware necessary to accomplish
and effectively communicate as well as track activity of
the PHSME program. The ANG expects any data
collected in the provision of this contract will have the
ability to be transferred and/or to collaborate in
'
,J
2
partnership with other ANG/IT contractors, within the
bounds of privacy and confidentiality laws and
regulations. However, the Government does expect
each offeror to propose as part of this solicitation, its
MIS capabilities and plan for tracking PHSME
services.
Offerors are to propose use of their MIS and describe in
their proposal how their MIS will effectively support the
full range of services needed under this contract. Offerors
are to provide a breakout of MIS costs as part of their
business proposal. The Government reserves the right to
require use of a DoD [U.S. Department of Defense] system
or a combination ofDoD and Offeror's MIS.
(R4, tab 2 at 95) (emphasis in original)
7. Section III.A provides additional detail regarding the contractor's
obligations with respect to documentation, data management and reporting (R4, tab 2
at 96-101, 103). Among other things, contractors were responsible for "collection and
management of all case management, counselor activity, and business management
data required to create operational and business reports for the ANG," which was to be
"maintained within the Contractor's MIS" (R4, tab 2 at 97).
8. PWS section III.D, "Government Furnished Facilities and
Equipment/Property" does not explicitly identify particular items as government
furnished property (GFP) including an MIS (R4, tab 2 at 103-11). Rather, it discusses
a variety of issues, including that, when requested by the CO's technical representative
(COTR), the contractor was "to fully participate in an in-depth study of the security of
the Contractor's records system and [MIS]" (R4, tab 2 at 106). The contractor was
also to adhere to the requirements of its "MIS security plan including security
guidelines for electronic files" (R4, tab 2 at 106). In addition, the MIS was to comply
with DoD computer security requirements, including a number of laws, regulations
and directives addressing the security of information systems (R4, tab 2 at 107-09; see
also app. br. at 4-5 (listing contractor's MIS responsibilities)).
9. ·The solicitation included a table listing 63 "deliverables" consisting
essentially of tasks the offerors would be expected to complete as part of contract
performance. Those deliverables did not include an MIS. (R4, tab 2 at 88-93)
10. The solicitation included four contract line items (CLINs): CLIN 0001,
covering labor costs for 89 PHSMEs and one program manager; CLIN 0002, for
additional labor hours worked by PHSMEs outside the normal eight-hour work day
3
(subject to certain time limitations); CLIN 0003, for travel and other direct costs for
the program manager; and CLIN 0004, for travel, materials and other direct costs
within the 89 operating areas. CLINs 0001 and 0002 were firm fixed price; CLINs
0003 and 0004 were cost CLINs. (R4, tab 2 at 3-4)
11. Pricing proposals were to be evaluated for completeness and accuracy. ·
Offerors were required to "identify Unit Pr!ce, extended totals Amounts for CLINs
(0001, 0002), and the total proposal amount." (R4, tab 2 at 12)
12. Solicitation Modification No. 0001 (Mod. 1), effective August 19, 2010,
contained 40 questions and answers on a variety of issues; several addressed how
offerors were to account for various performance costs (R4, tab 3). In response to ·
Question 5, which asked "under what CLIN should we put other direct costs - e.g.,
support staff for the program manager; costs of office space should that be
necessary[,]" potential offerors were advised that "all .overhead, G&A, or support
costs will be included in the labor rates of CLIN 0001" (R4, tab 3 at 3). Questions 6
and 8-10 requested clarification regarding where offerors should include costs
associated with implementation, client satisfaction surveys, and "Transition In" and
"Transition Out" activities. All answers referred to the answer to Question 5 (R4,
tab 3 at 3-4). ·
13. Question 13 asked whether the potential offeror was correct in assuming
that "costs associated with Cont_ract Administration, Accounting, Reporting, Human
Resources, IT support and the like should be included in the burden rates since there is
not a separate CLIN for these costs." The government responded that "these G&A
support costs should be included in the quoted fully burdened labor rates." Neither
Question 13 nor its ariswer contained any explicit reference to MIS. (R4, tab 3 at 5)
14. Question 14 requested clarification concerning the contract type, noting
that the CLINS were identifie4 as both firm fixed price .and cost. The government
responded: ·
[T]he Firm Fixed Price applies to the quoted labor rates.
Cost CLIN will not be evaluated and need not be quoted in
accordance with the evaluation criteria provided in the
solicitation. . . . [U]nit prices and extended CLIN totals
need only be provided for CLIN 0001 and 0002. The Cost
CLINs are primarily for Travel expenses .... No G&A,
fees or overhead rates will be applied to CLINs 0003 and
0004.
(R4, tab 3 at 5)
4
OCI's Proposal and Contract Award
15. OCI' s proposal2 stated that it would be teaming with two other co,mpanies;
the combined organization was called "Team Craft Healthcare" (R4, tab 4 at 2-3; tab 7).
With respect to MIS, the proposal stated as follows:
Team Craft Healthcare has garnered the support of
IntelliSuite MIS technicians to fully explore the
requirements and resources needed to procure a
comprehensive MIS system that meets the ANG's needs.
Toward that end, we are prepared to utilize our MIS
support infrastructure to enable all users to communicate
effectively and to generate data and statistical reports to
make projections and support case management.
(R4, tab 4 at 13; tab 7 at 20)
16. In response to specific questions in the solicitation, OCI's proposal detailed
various elements and capabilities of its proposed MIS. It also summarized the
information that would be provided under the required reports; described the
information to be included in the event that data transition were requested or upon
contract termination; and included several report examples. (R4, tab 4 at 14-18, 23-25;
tab 7 at 20-24, 29-31)
17. OCI proposed a total cost of$21,593,125.88, broken down by price per
. CLIN, and included an explanation of how the figures for each were calculated (R4,
tab 6). With respect to CLIN 0001, the pricing reflected "the costs of training and
employing the 89 PHS:MEs, the 6 RLPHPs, 3 and the Program Manager for the first
year of.services" (R4, tab 6 at 4). The explanation did not break out the costs by
component.
18. With respect to CLIN 0004, the proposal stated that the figure quoted
·"reflects all the Wing-level travel and other direct costs," and then described "other
direct costs" as consisting of the following:
Other direct costs will cover the maintenance and
operations of Team Craft Healthcare's [MIS]. Team Craft
Healthcare has garnered the support of IntelliSuite MIS
2
OCI's technical proposal was submitted on August 25, 2010 and clarifications were
submitted on September 10, 2010. The portions of the two submissions
relevant to this appeal are identical in all material respects.
3
RLPHPs are regional lead psychological healthcare providers (R4, tab 7 at 6).
5
technicians to fully explore the requirements and resources
needed to procure a -comprehensive MIS system that meets
the ANG's needs. Toward that end, we are prepared to
utilize our MIS support infrastructure to enable all users to
communicate effectively and to generate data and
statistical reports to make projections and support case
management.
This will cover [various listed cost items].
Other costs will include upgrading or replacing the
computers, developing, networking, evaluating and
migrating the MIS data, evaluation and assessment
materials, supplies,.and hosting of the Sharepoint
web-base.
(R4, tab 6 at 8-9) OCI priced CLIN 004 at $1,156,329. Of that figure, $550,329 was
identified as _being for material and other direct costs, including "[d]eveloping
networking, [evaluation], and migration of the MIS data." (R4, tab 6 at 8)
19. The source selection authority (SSA) found four proposals to be technically
acceptable (R4, tab 8 at 1-3). The SSA evaluated the offerors' prices on the basis of
CLINs 0001 and 0002 alone, noting that offerors had been instructed that proposed
costs for CLINs 0003 and 0004 were not expected and would not be evaluated. OCI's
price was the second lowest. (R4, tab 8 at 3-4)
20. The SSA determine~ that a nationwide implementation would be too
challenging for a single entity-and divided the contract between OCI and another
offeror (R4, tab 8 at 4). NGB awarded OCI its portion of the contract on September
24, 2010, for a maximum amount of $17,050,000 (R4, tab 1 at 1, 10). Task order
No. 0001, in the amount of $4,218,356.20, became effective September 29, 2010; task
order No. 0002, in the amount of $1,532,369.52, became effective April 15, 2011; and
task order No. 0003, in the amountof$7,692,981.56, became effective September 28,
2011. (R4, tabs 10, 18, 45)
21. The contract's CLINs were substantially the same as the solicitation's
CLINs, modified to reflect a redu~ed number of personnel due to the division of the
award betw~en two contractors (R4, tab 1 at 4-7). CLINs 0001 and 0002 were priced
at a maximum value of $6 million and $1.5 million respectively, with no reference to
the proposed labor rates. CLIN 0004 was priced at a maximum of $450,000, with no
reference to any of the costs proposed by OCI for its MIS. (R4, tab 1 at 11; see also
R4, tab 6 at 8-9) The contract's PWS was identical to the solicitation's PWS in all
material respects ..
6
Contract Performance
22. Contract performance was accomplished under the above three task orders,
none of which changed the PWS requirements (R4, tabs 10, 18, 45).
23. According to OCI's Chief Executive Officer (CEO), Bryant Holmes, when
the government awarded the contract to OCI, it did not accept OCI' s proposal to use
IntelliSuite, which he characterized as an off-the-shelf product, as its MIS (tr. 22,
28-30, 51; see_R4, tab 1 at 8). Instead, according to Mr. Holmes, the government
assured OCI that it would provide an MIS (tr. 30-31). Mr. Holmes could not identify
the p·erson alleged to have stated that the government would provide an MIS (tr. 55).
24. Mr. Holmes was the only witness to testify on OCI's behalf. Before he
became OCI's CEO, he was its chief financial officer (CFO) during the relevant period
(tr. 23). However, he had no direct involvement in contract performance and no
communications with government representatives ,during performance. He provided
no input into OCI's proposal preparation, pricing, or the subject claim. (Tr. 22-23,
45-50, 56-58) We accord little weight to Mr. Holmes' testimony except to the extent
that he had personal knowledge that OCI provided MIS services to the government
and that the government did not pay all of OCI' s invoices. He averred that OCI
ultimately ended up going out of business as a result. (Tr. 61)
25. Lt Col David Bringhurst, now retired, was the COTR beginning in October
or November 2011. Shortly after he began, an OCI representative informed him that ·
OCI expected the government to provide an MIS: However, when Lt Col Bringhurst
questioned government contracting officials about that expectation, he was told that
"when we went out for bid ... there was a separate portion of the bid ... that was
considering [an MIS] that was not included [in] the final bid[.]" Lt Col Bringhurst
never promised OCI that the government would provide an MIS. (Tr. 131, 134-36)
26. Because the government did not accept OCI'~ proposed MIS, OCI
performed its data management obligations throughout the life of the contract using an
"ad hoc" system in the form of an Excel spreadsheet developed by the NGB and
provided to ANG (tr. 30, 81-82, 137-38). ANG passed the spreadsheet on to OCI,
which used it to "collate" the required data before providing it to ANG each month
(tr. 138-39). Although Lt Col Bringhurst wanted.an MIS with real time data, he found
the Excel spreadsheets to be sufficient to meet the contract's data reporting
requirements, stating that OCI was "meeting the deliverable - you know, we certainly
wanted more .... [but] it sufficed to have the Excel spreadsheets" (tr. 143).
27. OCI considered the "ad hoc" system to be inefficient and unwieldy, and it
contended that the cost to provide the data in this manner was significant. It
7
repeatedly informed the government that an MIS was necessary for it to provide the
contract deliverables. (R4, tab 66 at 4; tab 79; tab 82 at 3; tab 131 at 8; tr. 31) At a
December 16, 2011 meeting, OCI alleged to ANG that it was using three additional
personnel who were "not included, nor billable to the existing contract" to "support the
contract full time to account for [the] missing MIS System;" these personnel were
spending "80% of their time formulating reports and gathering data that should be
automatically compiled by the MI_S System;" and this was not cost-efficient and did
not "fully alleviate the burden ... that an MIS solution would solve." (R4, tab 66 at 4)
28. In an "Impact Analysis" dated February 29, 2012 4 marked "URGENT,"
OCI alleged to ANG that the lack of an MIS was liaving a debilitating effect upon its
ability to perform the contractually required tasks adequately. OCI contended that the
solicitation required an MIS but that, ·upon contract award, it had been notified that its_
MIS had not been accepted because the government would be locating and
implementing its own MIS solution. OCI did not identify who provided the alleged
notice and we have not been directed to, and have not located, any such written
notification of record. OCI requested a contract modification to "implement an MIS
solution immediately as originally required" or to modify the contract's pricing
structure to account for its alleged additional costs. (R4, tab 79 at 1) The impact
analysis stated:
Without either modification, all additional resources and
personnel outside the contractual provisions must be
removed from the worksite and relieved of ANG
PHP-related duties as of March 9, 2012. Should this
happen, it will have a potentially devastating effect on the
Program.... [Without] either an MIS or administrative
support, the Program becomes completely impossible to
manage and operate.
(R4, tab 79 at 1)
29. In a March 7, 2012 email an ANG representative responded to OCI that,
under the contract, ANG had reserved the right to elect not to·use any particular
portion of the contractor's MIS or not to use it at all. The government's decision "to
implement for cost or to stay the implementation of the MIS system" did not reduce
the contractor's responsibility to provide ANG with the data listed in the contract's
deliverables. Moreover, the items detailed in the impact analysis were listed in the
contract's statement of work and were already "included in the overhead, G&A and
fees currently'being assessed in the invoices." (Ex. A-4 at 8)
4
The record includes a version of this document dated February 27, 2012 that is the
same as the February 29, 2012 version in all material respects (R4, tabs 78-79).
8
30. In April 2012, ANG de"."obligated funds for task orders Nos. 0001 and 0002
by unilateral modifications, stating that the de-obligated funds were in excess of what
OCI had billed and had been paid, and that "there is evidence to support the fact that
the required services were provided and the contractor was paid in accordance with the
conditions of the contract." (R4, tab 85 at4; tab 86 at 4)
31. In April or May 2012, OCI began submitting the "required data in an
uncollated format on approximately 44 individual spreadsheets rather than one
consolidated spreadsheet (tr. 138-39). According to L(Col Bringhurst the data
provided in that format was "complete" but not "satisfactory" because it was a "pile of
data" that was not manageable in the way he wished it to be (tr. 153-54).
32. On November 27, 2012, the parties met to discuss a number of issues,
including the lack of an MIS. By this time, CPT Michael Wade ofNGB had been
assigned as C0. 5 He served as CO from approximately September 2012 through
contract completion in March 2013 and authored the CO's final decision in May 2013.
(R4, tabs 131, 213; tr. 158-61) OCI's minutes of the meeting state that CPT Wade
informed OCI that, although it was originally the government's intent to provide an
MIS, it would not be doing so and "the status quo we currently are using is acceptable
up to this point." (R4, tab 131 at 8) OCI's minutes report that CPT Wade stated that
the government was not in a position to make any changes because they were at the
end oflhe contract, but he would "take a look at the MIS section of the SOW for
future reference" (R4, tab 131 at 8).
33. By letter dated December 26, 2012, OCI submitted a certified claim for a
$3,661,683.16 equitable adjustment, covering the period October 2010 through
December 2012. OCI alleged increased costs due to the government's failure to
implement an MIS in accordance with the contract. (R4, tab 147 at 1, 5) OCI
contended that "[t]he "contract expressly and specifically requires an MIS for
nationwide data management" (R4, tab 147 at 5). It alleged that; although the
government had advised OCI that it would provide an MIS, it never did so, which
forced OCI to use a "work-around" system to compile data manually, analyze it, and
generate the reports the contractrequired (R4, tab 147 at 3). This resulted in the need
for additional personnel and labor hours beyond what would have been necessary if
the reports were automatically generated using an MIS (R4, tab 147 at 3-6). OCI
claimed that there was a "direct nexus" between the government's inaction and OCI's
additional costs (R4, tab 147 at 4). The claim is based upon the doctrine of
constructive change. OCI did not directly allege contract breach or contend that the
contract was ambiguous. (See R4, tab 147)
5
By the time of the hearing, CPT Wade had been promoted to Major. We refer to him
by his rank at the time of the final decision.
9
34. On May 25, 2013 CPT Wade issued hi~ final decision denying OCI's claim
(R4, tab 213). Among several other things, he noted that OCI had included its costs
relating to information technology, including MIS, in CLIN 0004, even though in
Mod. 1 the·government had informed offerors that costs proposed under CLINs 0003
and 0004, which were intended for travel costs, would not be included in the proposal
evaluations. He opined that, regardless of whether the government indicated an intent
to obtain its own MIS, which was not supported by the contract file or any evidence
provided with the claim, the contract required that changes be made only by the
parties' written agreement (R4, tab 213 at 4).
35. CPT Wade also asserted that the government did not represent, in the
solicitation or contract, that it would provide an MIS as GFP, and he described the
MIS as an "optional component" of the contract effort (R4, tab 213 at 4-5). He further
cited a number of alleged problems with OCI's invoicing, including that it rarely
invoiced for more than a small number of hours under CLIN 0002, where overtime
hours were to be invoiced, and that its inv~ices did not reflect that personnel were
working beyond the standard work week. He noted that OCI never sought
authorization to exceed the maximum amount of overtime identified in CLIN 0002 and
contended that OCI's claimed costs were based upon unsupported estimates and
unverifiable alleged additional work hours. (R4, tab 213 at 5-6)
Testimony Concerning the Contract's MIS Requirement
36. Lt Col James Coker served as a CO's representative on the contract. He
assiste4 in drafting the PWS, which was based upon language borrowed from a
separate contract for the provision of similar services to other National Guard
personnel. The borrowed language was then "tailored" for ANG. (Tr. 75-76)
Although Lt Col Coker conceded that portions of PWS Section III.A contemplated that
a contractor should provide a comprehensive MIS or include an MIS in its proposal, he
asserted that the contract did not require an MIS (tr. 90-92).
37. CPT Wade's understanding from ANG personnel was that, contrary to the
PWS statement, ANG was not "investigating-a comprehensive multi-layered tracking
and data collection system" at the time of contract award. That language was copied
from an Army Guard document, as was the language that ANG "may or may not elect
to utilize the total capability of the contractor's comprehensive MIS system."
(Tr. 182-84)
THE PARTIES·' CONTENTIONS
In Count I of its complaint, OCI alleged that the government breached the
parties' contract when it failed to provide an MIS or to use the MIS proposed by OCI.
10
In Count II, OCI alleged that, by rejecting its MIS and informing OCI that it would use
its own, the government constructively changed the contract, requiring the government
to provide the MIS, which it failed to do. In Count III, OCI alleged that the
solicitation contained a latent ambiguity with respect to responsibility for the MIS.
The government denied OCI' s allegations and moved for summary judgment on
the ground that the contract did not require it either to pay OCI for its MIS or to
provide one for OCI' s use. The government alleged that the contract unambiguously
/ stated that ~n MIS tool was an optional service and optional for award. The Board
determined that the contract "does not unambiguously support the government's
interpretation" Optimization I, 15-1BCA136,106 at 176,275, and concluded that,
based upon Section III.A, an MIS was not optional. Id. at 176,276. The contractor
was expected to use its own MIS unless the government provided one. Id. OCI did
not move for summary judgment and the Board did not reach the issue of whether
OCI's interpretation was supported by the contract. Id. at 176,277.
In its principal post-hearing brief OCI first asserts that:
This case turns on one simple fact: whether [the subject
contract] required OCI to provide [an MIS]. The hearing,
much like the plain language of the Contract, established
that it did. Accordingly, OCI is entitled to judgment.
(App. br. at 1) OCI later contends that the contract "conclusively provided for the use
of an MIS while leaving the source of said MIS undetermined" (id. at 5) (emphasis
omitted). OCI asserts that the contract, read as a whole, "confirms that the MIS
permeates the entire contract and is essential to the effective execution of the contract"
(id. at 4), and that an MIS was a material contract requirement (id. at 5). OCI
concludes that, if there were any ambiguity, it was latent; its interpretation was
reasonable; the doctrine of contra proferentem applies; and the contract must be
construed against the government (id. at 6-7). OCI does not directly allege breach or
mention constructive change.
The government responds that there was no government contract breach,
constructive change, or relevant contract ambiguity (gov't br. at 1). While it did not
provide an MIS for OCI's use, the contract did not obligate it to do so. Rather, the
contract unambiguously required OCI to collect and maintain data and provide reports
to the government. OCI was on notice prior to contract award, through the questions
and answers published in Mod. 1, to include its anticipated costs of meeting the·
contract requirements, including "any MIS it chose to employ" in its fully burdened
labor rates under CLIN 0001, which resolved any possible ambiguity concerning
responsibility for those costs. (Id. at 1-3)
11
The government contends that the contractor's employment of an MIS was not
a material contract requirement but, if it were considered to be so, then OCI' s failure
to use· an MIS was a prior material breach excusing the government from any MIS
payment obligations. The government acknowledges that it accepted OCI's
submission of the required data through Excel spreadsheets, and permitted OCI to
continue contract performance. (Gov't br. at 3) The governmentassesses that
"responsibility for [OCI' s] costs to track and manage data to be provided via reports to
the ANG appears to be the actual issue in this appeal" (id. at 18). It contends that
because OCI did not use an MIS, it incurred no MIS costs and it has been fully
compensated in accordance with the contract for its overhead costs, including data
collection, analysis and reporting (id. at 3). The government asserts that, to the extent
OCI failed to include all such costs in its proposed pricing for firm fixed-price CLIN
0001, it bore the risk of its own oversight and any increased costs (id. at 21).
OCI replies that the government mistakenly conflates the contract's MIS
requirements and data management. It asserts that an MIS was a separate required
contract deliverable. (App. reply br. at 1) OCI also chalienges the government's
assertion that the questions and answers in Mod. 1 resolve the issue, stating that "IT
support, generally, is_ not the same as MIS services" (id. at 5). OCI disputes the
government's contentions that it did not provide an MIS and/or did not bill under the
correct CLIN 0001 (id. at 3-4). OCI alleges that the issues raised by the government
are both belated and matters of quantum, not liability. The thrust of OCI' s allegations
is that it "provided ad hoc MIS services at considerable expense because the
government refused to furnish its own MIS and further refused OCI's offers for other
off the shelf solutions" (id. at 3).
DISCUSSION
We have considered all of the parties' arguments but discuss only those
important to our decision. ,
The Contract Was Not Ambiguous Concerning Contractor's MIS Responsibilities
OCI alleges that its interpretation of the contract must prevail because the
contract was latently ambiguous, such that the rule of contra proferentem applies and
the contract must be construed against the government as its drafter. It is fundamental
that, when interpreting.a contract, we begin with the language of the written
agreement, consider the document as a whole, and interpret it "so as to harmonize and
give reasonable meaning to all of its parts." NVT Technologies, Inc. v. U.S., 370 F.3d
1153, 1159 (Fed. Cir. 2004) (citing McAbee Constr., Inc. v. U.S., 97 F.3d 1431, 1435
(Fed.Cir.1996)). "An interpretation that gives meaning to all parts of the contract is to
be preferred over one that leaves a portion of the contract useless, inexpHcable, void,
12
or superfluous." NVT Technologies, Inc., 370 F.3d at 1159 (citing Gould, Inc. v. US.,
935 F.2d 1271, 1274 (Fed. Cir. 1991)).
A contract is considered to be ambiguous "if it is susceptible of two different
and reasonable interpretations, each of which is found to be consistent with the
contract language." Community Heating & Plumbing Co., Inc. v. Kelso, 987 F.2d
1575, 1579 (Fed. Cir. 1993) (citations omitted). It is not enough to show that "the
parties differ in their respective interpretations of a contract term. . . . Rather, both
interpretations must fall within a 'zone of reasonableness."' Metric Constructors, Inc.
v. National Aeronautic and Spa.ce Administration, 169 F.3d 747, 751 (Fed. Cir. 1999)
(citations omitted). A patent ambiguity is one that is so '" obvious, gross, [or]
glaring"' that it triggers a bidder's duty to inquire. NVT Technologies, Inc., 370 F.3d
at 1162 (ci~ation omitted). If an ambiguity is not sufficiently glaring to trigger the
patent ambiguity exception, it is deemed latent and the general rule of contra
proferentem applies. HPIIGSA-3C, LLC v. Perry, 364 F.3d 1327, 1334 (Fed. Cir. ·
2004). Even if an ambiguity is latent, however, the nondrafting party must prove that
it relied on its interpretation during bidding. Fruin:Colnon Corp. v. United States, 912
F.2d 1426, 1430 (Fed. Cir. 1990).
Under the solicitation and resulting contract, which were substantially the same
in all material respects (see finding 21 ), offerors were to propose use of their MIS and ·
describe how it would support the full range of contract-required services; They were
to break out MIS costs as part of their proposal. While portions of the MIS were
optional for award, and the government reserved the right to require use of a DoD
system or a combination ofDoD's and the offeror's MIS, nothing in the contract
obligated DoD to provide an MIS. The contract clearly provided that the contractor
had the ultimate responsibility to supply and employ an MIS (findings 4-8).
The government's contention that the answers to questions in Mod. 1
unambiguously directed offerors to include their direct and indirect costs for reporting
and for IT support in their proposed fully burdened labor rates under fixed price CLIN
0001 is reasonable. Other than to allege that MIS and IT support costs are not the
same, OCI has not advocated for its own interpretation of where MIS costs were to be
included in its proposal. Regardless of the government's directions, OCI recorded .
those costs under CLIN 0004, a choice it did not explain and which we find to be
unreasonable given that the contract documents explicitly stated that CLINs 0003 and
. 0004 were for travel costs; offerors should not propose any costs for those CLINs; and
the government would not be evaluati_ng proposals on the basis of those two CLINs
(findings 10, 12-14).
For the foregoing reasons, the contract is not ambiguous and we therefore do
not reach the issue of alleged latent ambiguity. ·
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The Government Did Not Constructively Change the Contract
OCI alleges that the government is liable to it under the doctrine of constructive
change. We recently addressed that doctrine:
"A constructive change occurs when a contractor performs
work beyond the contract requirements, without a formal
order under the Changes clause, due either to an express or
implied informal order from an authorized government
official or to government fault." Circle, LLC, ASBCA
No. 58575, 15-1 B_CA, 36,025 at 175,974 (citing
Bell/Heery v. United States, 739 F.3d 1324, 1335 (Fed. Cir.
2014)). Thus in the absence -of government action or fault,
the constructive change doctrine cannot form the basis for
recovery. lnt'l Data Prods. Corp. v. United States, 492
F.3d 1317, 1325 (Fed. Cir. 2007).
Parwan Group Company, ASBCA No. 60657, 18-1 BCA, 37,082 at 180,498. To
recover under a constructive change theory, the contractor must prove not only that it
performed additional work beyond the contract's requirements but also that it incurred
increased costs over what it otherwise would have incurred in performing those
requirements. Charles F. Day & Assocs. LLC, ASBCA No. 60211 et al.~ 19-1 BCA
. , 37,215 at 181,175.
Preliminarily, the contract requires that all changes to it can be made only by
the parties' written agreement (finding 2). There is no such written agreement
concerning the cop.tract's MIS provisions. OCI has- not proffered any evidence that
any government official with authority constructively changed the contract. OCI' s
only hearing witness was not actively involved with the contract, proposal preparation
or pricing and his testimony in this regard carries little weight. In any event, he could
not identify the government employee who purportedly advised OCI that the
government would supply an MIS for OCI' s use. The government denies this
allegation and the Board found no evidence of record of any such instruction.
(Findings 23-25, 28) OCI has not met its burden to prove that the government
constructively changed the contract.
) The Government Did Not Breach the Contract
OCI_ alleged in its complaint that the government breached the parties' contract
when it failed to provide OCI with an MIS or to use the MIS proposed by OCI (see
also findings 23, 28). We discussed above that nothing in the contract required the
government to provide OCI with an MIS; the government denied that it promised to do
so; and OCI did not identify any individual who allegedly made that promise. The
14
record lacks probative evidence as to why the government did not accept its MIS. OCI
failed to meet its burden to prove that the government breached the contract. In sum,
OCI has not met its burden to prove entitlement under any of its legal theories.
DECISION
We deny the appeal.
Dated: August 20, 2019
Administrative Judge
Armed Services Board
of Contract Appeals
I concur
RICHARD SHACKLEFORD
Administrative Judge
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. 58752, Appeal of
Optimization Consulting, Inc., rendered in conformance with the Board's Charter.
Dated:
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals ·
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