Assist Consultants Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of - )
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Assist Consultants Inc. ) ASBCA Nos. 61525, 62090
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Under Contract No. W912ER-18-C-0009 )
APPEARANCES FOR THE APPELLANT: Lee-Ann C. Brown, Esq.
Douglas L. Patin, Esq.
Sabah K. Petrov, Esq.
Bradley Arant Boult Cummings LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Rebecca L. Bockmann, Esq.
Matthew Tilghman, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Middle East
Winchester, VA
OPINION ON THE GOVERNMENT’S MOTION FOR RECONSIDERATION BY
ADMINISTRATIVE JUDGE D’ALESSANDRIS
In an opinion dated April 29, 2021, the Board denied cross-motions for summary
judgement filed by appellant Assist Consultants, Inc. (ACI) and respondent, the United
States Army Corps of Engineers (USACE or government). Assist Consultants, Inc.,
ASBCA Nos. 61525, 62090, 21-1 BCA ¶ 37,850. The government timely filed a motion
for reconsideration, alleging error in our decision “insofar as it concludes that, as a matter
of law, a request for termination for convenience sufficiently replaces the requirement
that a contractor who has continued performance after discovering a breach must reserve
its rights to avoid a finding waiving its right to claim breach later” (gov’t mot. at 1). For
the reasons stated below, the government’s motion for reconsideration is denied.
DECISION
A motion for reconsideration is not the place to present arguments previously
made and rejected. “[W]here litigants have once battled for the court’s decision, they
should neither be required, nor without good reason permitted, to battle for it again.”
Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014) (quoting Official Comm. of the
Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147,
167 (2d Cir. 2003)). Moreover, “[m]otions 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.” Dixon, 741 F.3d at 1378; see also
Avant Assessment, LLC, ASBCA No. 58867, 15-1 BCA ¶ 36,137 at 176,384. On the
other hand, if we have made mistakes in the findings of fact or conclusions of law, or by
failing to consider an appropriate matter, reconsideration may be appropriate. See
Robinson Quality Constructors, ASBCA No. 55784, 09-2 BCA ¶ 34,171 at 168,911;
L&C Europa Contracting Co., ASBCA No. 52617, 04-2 BCA ¶ 32,708. The Board
recently summarized the standard for reconsideration stating “[i]n short, if we have
made a genuine oversight that affects the outcome of the appeal, we will remedy it.”
Relyant, LLC, ASBCA No. 59809, 18-1 BCA ¶ 37,146 at 180,841. Here, as in Relyant,
no such mistakes have been identified.
In our decision, we held that the government had satisfied its initial burden of
demonstrating that its termination for default was justified, but denied the government’s
motion for summary judgment, because there were material issues of fact regarding
ACI’s affirmative defense alleging a prior material breach by the government. Assist
Consultants, 21-1 BCA ¶ 37,850 at 183,799. Under the summary judgment standard of
review, we also denied the government’s argument that, even if its failure to disclose the
base access restrictions to bidders could constitute a material breach, that ACI had
waived the breach by preforming and not reserving its rights. Id. at 183,810. We
rejected the argument, noting that “the government’s argument completely ignores the
fact that ACI requested a no-cost termination for convenience immediately after the
preconstruction conference where the government announced that Afghan workers
would not be permitted on the base.” Id. The Board did not hold, as a matter of law,
that a request for a termination for convenience was legally sufficient to reserve ACI’s
right, but rather, cited the termination for convenience request as an example of a factual
issue preventing the entry of summary judgment.
To the extent the government argues in its motion for reconsideration that it is
entitled to entry of judgment as a matter of law, because ACI did not identify a specific
reservation of rights, we disagree and hold that there are material factual issues in dispute.
The government cites selectively from 13 Williston on Contracts § 39:35 (4th ed.) for the
proposition that ACI’s failure to expressly reserve its rights entitles the government to
judgment as a matter of law (gov’t reply at 2). However, read in full, Williston provides:
Mere silence, acquiescence, or inactivity is insufficient to
show a waiver of contract rights where there is no duty to
speak or act. But silence or inaction, coupled with
knowledge by the party charged with a waiver that the
contract’s terms have not been strictly met, and detrimental
reliance by the other, for such a length of time as to
manifest an intention to relinquish the known right may
result in a waiver of rights under the contract.
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13 RICHARD A. LORD, WILLISTON ON CONTRACTS § 39:35 (4th ed. 2013) (footnotes
omitted).
ACI asserts, in opposition to the government’s motion for reconsideration, that it
did not have complete knowledge of the government’s breach until after the termination
and subsequent discovery (app. resp. at 4-10). ACI alleges that the government misled
ACI by stating that the USACE had received “no UAE confirmation” that there was a
policy denying access to Afghan passport holders (id. at 8; R4, tab 13), and that the
government’s statement was misleading because the government knew that it would not
get confirmation from the UAE authorities and that the USACE never tried to get
confirmation after the pre-construction meeting (app. resp. at 8). ACI’s allegations are
supported by Mr. Amiri’s declaration and an e-mail, produced in discovery, demonstrating
that the government was aware of a potential base access problem in June 2017, months
before the December 2017 award at issue here (app. mtn. sum. J. ex. 2). ACI further
points to its response to the show cause letter where ACI reported that it was “taking all
steps to submit the required documentation to the UAE and obtain a written position from
UAE authorities as to whether or not we will be allowed access” as proof that it did not
yet possess full knowledge regarding the ability of its Afghan workers to access the base
(app. resp. at 8 (quoting R4, tab 15)). The courts have held that waiver does not apply
during a limited course of action while a party seeks more information. See, e.g., O.K.
Sand and Gravel, Inc. v. Martin Marietta Corp., 819 F. Supp. 771, 783 (S.D. Ind. 1992)
aff’d 36 F.3d 565 (7th Cir. 1994) (single renewal of agreement after knowledge of breach
while producer demanded more information was not ongoing acquiescence required to
establish waiver).
The government cites to e-mails between ACI and its legal consultant to argue
that ACI knew on January 21, 2018, that it had a potential legal argument that the
government had materially breached the contract (gov’t reply at 5-7). However, the
government did not cite these documents in its summary judgment briefing, or even in
its opening brief in this motion for reconsideration. We do not consider new arguments
raised in a motion for reconsideration where the evidence was available to the moving
party at the time it filed its brief. Dixon, 741 F.3d at 1378; Avant Assessment, LLC,
15-1 BCA ¶ 36,137 at 176,384. Accordingly, we continue to find that there is a
material factual dispute regarding ACI’s knowledge. See Northern Helex Co. v. United
States, 455 F.2d 546, 551 (Ct. Cl. 1972).
ACI additionally notes that it never received a notice to proceed under the
contract, and thus, alleges that contract performance had not begun such as to trigger
the election doctrine (app. resp. at 8-9). The government disputes ACI’s interpretation,
again citing to documents in that record that it failed to cite in its dispositive motion
(gov’t reply at 21-24). The fact that ACI did contractual work without having received
a notice to proceed is relevant to the waiver argument in that the reasoning behind the
waiver provision is so that “one side cannot continue after a material breach by the
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other (such as failure to pay), act as if the contract remains fully in force (although
stopping performance would be fair and convenient), run up damages, and then go
suddenly to court.” Northern Helex Co. v. United States, 455 F.2d at 551. Here, ACI
could not run up damages because it was performing the work at its own risk. The
government also fails to note how it relied to its detriment on ACI’s continued
performance, absent a notice to proceed.
Finally, the government’s motion seeks to treat the election requirement as
applying the moment the contractor first becomes aware of possible breach. The
government points to the fact that ACI performed for 23 days as evidence of a
knowing waiver (gov’t reply at 5-13). However, as noted in the government’s reply
brief, what is required is “reasonable promptness” (gov’t reply at 8 (quoting Supreme
Foodservice GMBH, ASBCA No. 57884 et al., 16-1 BCA ¶ 36,387 at 177,395)).
Whether 23 days is a reasonable time is an issue requiring further factual development.
See, e.g., TECOM, Inc., IBCA No. 2970-a-1, 95-2 BCA ¶ 27,607 at 137,597 (finding
no waiver after 4½ months of performance).
CONCLUSION
For the reasons stated above, the government’s motion for reconsideration is
denied.
Dated: October 18, 2021
DAVID D’ALESSANDRIS
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
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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. 61525, 62090, Appeals of
Assist Consultants Inc., rendered in conformance with the Board’s Charter.
Dated: October 19, 2021
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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