Command Languages, Inc. d/b/a CLI Solutions ( 2020 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of-- )
)
Command Languages, Inc. d/b/a CLI Solutions ) ASBCA No. 61216
)
Under Contract No. W56HZV-15-C-0200 )
APPEARANCES FOR THE APPELLANT: Eric WhytselL Esq.
Rodney W. Stieger, Esq.
Stinson LLP
Denver, CO
Scott R. Williamson, Esq.
Williamson Law Group LLC
Frederick, MD
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq.
Army Chief Trial Attorney
MAJ Ronald M. Herrmann, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE KINNER
Appellant, Command Languages, Inc. d/b/a CLI Solutions (CLI) challenges the
denial of its claim by the Army Contracting Command (ACC) regarding its creation of
technical manuals (TMs) and programs of instruction (PO Is) for training the
Afghanistan National Army (ANA) to maintain an armored vehicle provided under
prior contracts. CLI claims ACC required it to include descriptions of lower level
maintenance tasks that were beyond the scope of its contract to create higher level
manuals. A hearing of this appeal was conducted August 13-14, 2018. Only
entitlement is before the Board.
FINDINGS OF FACT
As a result of a Foreign Military Sales (FMS) program, Afghan forces have been
supplied an enhanced version of the Army's M-117 Armored Security Vehicle (ASV)
(tr. 1/206, 2/52-55). This enhanced armored vehicle, called the Mobile Strike Force
Vehicle (MSFV), is manufactured by Textron (id.). As the original equipment
manufacturer (OEM), Textron also provided maintenance manuals (tr. 1/135, 2/53,
2/94). The OEM manuals covered two basic levels of maintenance (tr. 2/94). The
Army classifies equipment maintenance by four levels, 10, 20, 30, and 40 (tr. 1/31-32).
Level 10 maintenance is performed by the equipment operator (tr. 2/62). Level 20
maintenance is performed by the organizational unit which operates the equipment (id.).
Level 30 maintenance includes tasks that are more than a unit can perform, including
some refurbishing (id.). Maintenance tasks at the 40 level are tasks performed at a
national depot level, such as refurbishment, overhauls, etc. (tr. 2/62-63).
When the Army considered obtaining new maintenance manuals for the MSFV,
the OEM 10 and 20 level manuals were already in use in Afghanistan (tr. 1/68, 1/180,
2/17, 2/93, 2/112-15). The OEM manuals had been translated by computer programs
into Dari and Pashtu (tr. 2/55). Computer translations are not as accurate as manual
translation services (tr. 1/25). Nonetheless, using the computer translated MSFV
manuals and programs of instruction, Afghan soldiers had already received a 20 week
training program that taught the MSFV 10 and 20 level manuals tasks (tr. 2/63, 2/113).
The Army did not have 30 and 40 level manuals to support more advanced
training (tr. 2/63). Having received critical evaluations of the computer translation of
the OEM manuals, the ACC Allied Tactical Vehicle program office (ATV) was
determined to ensure that MSFV manuals for higher level maintenance tasks would be
made easily understandable by Afghan personnel (R4, tab 10 at 133; tr. 2/95-97). The
OEM manuals were written at a 7th- I 0th grade reading level, which is typical of
technical manuals (tr. 1/69, 1/85-87, 1/122-23, 1/137, 2/93, 2/97). Therefore, the
program office sought to procure more accurately translated 30 and 40 level manuals,
but at a 3rd grade reading level (tr. 2/148).
The program office was familiar with a previous contract for simplified contract
manuals and used that contract as a sample for what was sought in the contract for
30 and 40 level MSFV manuals (tr. 2/58, 2/139). Over time, as the requirements
office developed the statement of work, it became "relatively clear" what they were
looking for in a new contract (tr. 2/147-48). The maintenance tasks for the new
manuals were not drawn from the Textron manuals (tr. 2/ 11-13). Instead,
Christopher Simons, ATV contracting officer representative (COTR), created a new
maintenance allocation chart task list, which was derived from 30 and 40 level
manuals for the ASV, and some tasks from the existing MSFV manuals (id.). The goal
was to procure technical manuals that would "allow primarily people from an agrarian
background with an average third grade level of literacy, the ability to look at a
pictorial display and understand how to [perform maintenance tasks] for the MSFV ...
and it would be easier [for a person] with that background to understand pictures rather
than just using words" (tr. 2/142).
The Army published a combined synopsis and solicitation on the
FedBizOps.gov website for simplified 30 and 40 level manuals and programs of
instruction for the MSFV on February 18, 2015 (R4, tab 2). The FedBizOps
announcement informed potential offerors that it was the only "solicitation; proposals
are being requested and a written solicitation will not be issued" (id. at 66). In
2
accordance with FAR 52.212-1 (g), the solicitation stated that the government intended
to award a contract without discussions, but it reserved the right to conduct discussions
if it was determined by the contracting officer to be necessary (id. at 69). "In addition,
the government reserve[ d] the right, without entering discussions, to request additional
information necessary to support the offeror's price in order to determine price
reasonableness" (id.). The government never used these provisions to clarify CLI's
proposal or its price.
The desired pictorial nature of the 30 and 40 level manuals was not described in
the FedBizOps announcement in the Rule 4 file (R4, tabs 2, 3). Between March 2 and
April 7, 2015 the FedBizOps solicitation was amended eleven times (R4, tabs 5-16).
On March 15, 2015, contrary to the statement in the initial announcement, ACC issued
a second version of the solicitation as a written hard copy (R4, tab 10). The second
version was issued with the same solicitation number, although amendments that
followed were issued via FedBizOps (R4, tabs 11-16). Any offeror submitting a
proposal in response to the FedBizOps solicitation received a copy of the second hard
copy solicitation (tr. 1/210-11).
The requirement for pictorial display of the maintenance tasks to be described
in the new 30 and 40 level manuals was reflected in the second solicitation and in the
final contract on July 15, 2015 (R4, tab 1 at 28, tab 10 at 133). Paragraph C.2.1. ofthe
statement of work states that "[t]he contractor shall include relevant photos of
individual steps within tasks with concise active support language to coincide with the
pictorial step by step approach. The TMs and POI shall be written at a literacy level
commensurate with a Western 3rd Grade Primary School comprehension level when
such step down in presentation/approach will not degrade the context and intent of the
task" (id.).
Both government and CLI witnesses understood that the purpose of the
procurement was to obtain 30 and 40 level manuals, not 10 and 20 level task
descriptions (tr. 1/67, 1/132, 1/144, 1/174, 1/201-02, 1/213, 2/17, 2/63, 2/93, 2/116).
Paragraph C.1.1. states "[ c]urrently the ANA have 10 and 20 level technical manuals
and programs of instruction, but need TMs and POI for 30 and 40 level maintenance"
(R4, tab 1 at 28, tab 10 at 132-33). And, "[t]his effort is to develop and deliver 30 and
40 level TMs with associated POI, to promote an organic MSFV sustainment
capability within the ANA" (id.).
This dispute is centered on the sentence that appears between those statements
in C.1.1.: "The 10 and 20 level TMs and associated POI are provided to authorized
sources as government furnished information (GFI) for reference" (id.). Paragraph
C.2.2. of the contract statement of work lists information provided as GFI, including
ASV manuals and other technical manuals "provided as a reference point for TM
development" (R4, tab 1 at 28). That paragraph instructed CLI to develop new tasks
3
for the MSFV that are not described in the ASV manuals and that the remaining GFI
was for its "knowledge and reference" (id.). Similarly, paragraph C.5.2. of the
statement of work stated that the government would provide the existing ASV and
MSFV manuals "to be used as reference material" during the contractor's development
of the new manuals (R4, tab 1 at 30, tab 10 at 134). But that paragraph concluded with
a statement that the "contractor shall make use of any government provided
information to the maximum extent practicable" (id.).
Prior to submission of bids, offerors submitted numerous questions to the
government seeking advice for fonnulation of their proposals. These questions, and
the government's answers, were documented in a log which was included in the
solicitation by amendments to the FedBizOps solicitation (R4, tabs 4, 5, 8, 9, 11, 13,
14, 16). As reflected on the log that was added to the contract on March 12, 2015,
using the disjunctive "or" in question 4 7, two questions were posed (R4, tab 8 at 108).
First, the government was specifically asked whether it would be acceptable to
reference the maintenance manual or operator's manual for equipment conditions and
other references in the 30 and 40 level manuals (id.). The government's response to
the first part of that question was "yes, reference existing manuals" (id.). That
response was reinforced by the government's response to the second part of the
question. The request asked if tasks in other manuals would have to be replicated in
the new manuals (id.). The government answered: "no need to replicate" (id.).
Question 47 and the government's response was reiterated in the next amendment as
well (R4, tab 9 at 109).
CLI joined with Lionbridge Global Solutions II, Inc. to bid upon the contract
for 30 and 40 level MSFV manuals (R4, tab 17 at 182). Their proposal was submitted
April 14, 2015 (id.). CLI declined to modify its price after the various modifications
to the solicitation (R4, tab 21 at 231; tr. 1/43 ). The proposal specifically described
CLI's plan to perform the contract (R4, tab 17 at 187-88). The CLI plan stated that
during development of the manuals "[ a]ny remove and install tasks already written in
the 10 and 20 manuals will be referenced as needed to perform the repair tasks" (id.
at 187). No government witness possessed familiarity with CLI's work plan, much
less appeared to have closely read the proposal (gov't reply br. at 6 1 17). The ACC
officials testified that they did not look at CLI's plan to perform because it was not
their job to say how the work would be done (tr. 2/106, 2/121, 2/127).
As part of their determination not to consider the manner in which CLI planned
to create the manuals, ACC made no attempt to evaluate the proposal beyond a careful
assessment of the sample translation (tr. 2/64, 2/120-21, 2/163). The remainder of the
information in CLI' s offer was considered irrelevant, including where the proposal
stated that wherever possible, CLI would describe maintenance tasks only by
references to the existing manuals (tr. 2/47). The CLI sample translation was
forwarded to the instructor at the armored branch school in Kabul, Afghanistan
4
(tr. 2/64). Once that translation sample was rated "most favorably" in Kabul, CLI's
proposal was deemed technically acceptable (tr. 2/65). Based upon that evaluation.
and its very low price, CLI was awarded the contract on July 15, 2015 (R4. tab l;
tr. 2/66-67, 2/120).
The ACC officials, however, were concerned with the very low price offered by
CLI (tr. 2/49, 2/66, 2/117-18). That offer was "drastically" below the government
estimate (tr. 2/120). No government official reviewed the proposal to determine why
CLI' s price was low (id.). The contracting officer was so concerned, he attended the
"start of work" meeting on August 4-5, 2015, prior to CLI commencing performance
(tr. 2/101 ). He attended specifically to confirm that CLI understood the scope of the
work (id.). He did so by asking CLI representatives if they understood the work
involved in the contract (tr. 2/121 ). The contracting officer offered CLI the opportunity
to abandon the contract with no other consequences if it realized it could not fully
perform the work (tr. 2/151). The only concern conveyed by the government was that
CLI's price was very low (tr. 1/136). As reflected in the meeting minutes, no official
described a reason for the government's concerns regarding CLI's price (R4, tab 24
at 274). Thus, without any indication of the basis for the contracting officer's concerns,
CLI' s only response was that it understood the scope of work required by the contract
and it was comfortable with the price it offered to perform that work (tr. 2/ 151 ). At that
meeting, CLI also explained that it had planned to refer to 10 and 20 level manuals
wherever possible to reduce its cost of performance. No one in the government heard
that explanation. (Gov't reply br. at 6-;[ 17; tr. 1/46-47, 1/77-78)
CLI's plan to use "reference only" descriptions was not only described orally at
the "start of work" meeting. CLI presented slides at that meeting describing its
technical manual development process. (R4, tab 23 at 247-48; tr. 1/45). Each of the
attendees at the meeting received a hard copy of CLI's presentation (tr. 1/99). CLI
witnesses described the presentation of the slides as a "standard presentation" in which
they reviewed the slides with the Army team and discussed the content of each (tr.
1/4 7). In its presentation CLI reviewed "exactly how we were planning on executing
the contract" (tr. 1/46). It was always CLI's plan to reference anything in the 10 and 20
level manuals so the new manuals would not duplicate anything that already existed
(tr. 1/94). The development process described on the slides was "taken right from 4.1.1
of the proposal" (R4, tab 17 at 187, tab 23 at 248; tr. 1/46, 1/93). As reflected in the
proposal, CLI's slide stated: "[a]ll remove and install tasks already written in the 10
and 20 [level] manuals will be referenced as needed to perform the tasks" (tr. 1/46).
Donald Mackenzie, Director of North America sales for Lionbridge, did not
recall the plan to use 10 and 20 level manual references as a point of discussion at the
meeting, but he was certain this approach was part of the presentation (tr. 1/47).
Brian Ditmer, Lionbridge Director of Technical Publications, described CLI's
presentation which showed its processes and samples (tr. 1/95). Like Mr. MacKenzie,
5
Mr. Ditmer did not recall any government comments on the plan to refer to 10 and 20
level manuals in the new 30 and 40 level manuals (tr. 1/4 7, 1/95). The CLI team was
very positive leaving the "start of work" meeting because they believed the
government team was "on same page and ready to move forward" (tr. 1/49).
CLI received a similar response from the government to the sample 30 level
manual work packages it submitted a few days after the start of work meeting (app.
supp. R4, tab 71 at 1576). CLI submitted those samples August 10, 2015 to show the
government their progress, and "get the government to sign off that they were headed
in right direction" (tr. 1/95-96). The sole description of the tasks in CLI's sample
work packages 24, 38, and 46, is a reference to the 10 and 20 level manuals (app. supp.
R4, tab 72 at 1577-82). For sample work packages 68, 70, and 75, the tasks are
described in numerous specific steps that relate to accompanying photographs and
drawings of the applicable mechanical component in which the parts addressed in the
task description were identified (app. supp. R4, tab 72 at 1583-1605).
CLI commenced work and was able to produce further examples of its progress
by the September 9, 2015 interim progress review (IPR). At that meeting, CLI showed
the government its progress on the 30 level pre-technical manuals (PTMs) and its
delivery schedule (tr. 1/61 ). The discussion focused on presentation of data from the
ASV manuals in the 30 and 40 level manuals (tr. 96-97). CLI reported that the PTMs
were 80-85 percent complete (R4, tab 31; tr. 1/62). The minutes prepared by CLI,
reflect that the government emphasized that all maintenance tasks were to be rewritten
at a 3rd grade literacy level, incorporating a step by step pictorial approach to PIM
development (R4, tab 31). Mr. MacKenzie testified that the Army's insistence at the
meeting that ASV tasks included in the 30 and 40 level manuals had to be written to a
3rd grade level made sense to him (tr. 1/62). Because CLI already understood the goal
to achieve lower literacy in the new 30 and 40 level manuals, Mr. MacKenzie agreed
that ASV tasks "weren't, so they needed to be done" (id.). There were no government
comments regarding tasks in the PTMs that were described only by reference to the 10
and 20 level manuals (tr. 1/62-63, 1/101).
The same is true of the government's comments on the PTMs CLI provided
September 28, 2015. CLI received comments from Mr. Simons on the first PTMs on
October 18, 2015 (tr. 1/109). Mr. Simons' comments primarily pertained to the volume
of photographs utilized by CLI. None of the comments suggested he considered the use
of reference-only tasks unacceptable (tr. 1/112). There was nothing in the comments
regarding the descriptions that only referenced 10 and 20 level manuals (tr. 1/114-16).
Specifically, there were no comments on any of the reference-only tasks in any of the
work packages (R4, tab 81 at 2277-2642; tr. 1/119-24). Mr. Simons made no
comments on a PIM in which every task description relied upon references to 10 and
20 level manuals (R4, tab 33; tr. 1/117).
6
Instead, the common thread in Mr. Simons' comments was his concern for a
lack of photographs or insufficient break down of the steps to perform the maintenance
tasks (tr. 1/113). CLI made changes in response to the comments it received
(tr. 1/128). There were subsequent discussions regarding the difficulty of reducing
some technical terms to a 3rd grade reading level (tr. 1/141). The parties compromised
on a solution to that problem (tr. 1/137-39). By November 15, 2015, CLI had
delivered draft 30 level manuals and begun substantial work on 40 level manuals
(tr. 1/156). CLI believed there had been a good communication chain between it and
the government (id.). It submitted a revised PTM on November 30, 2015 (tr. 1/128).
At that point, CLI considered the 30 level manuals nearly complete and it was
expecting comments on the draft 40 level manuals it submitted in November
(tr. 1/163-64).
In December, CLI received the government's comments on the second PTM
draft submission. CLI considered those comments to be outside the scope of the
contract (R4, tab 41 at 574; tr. 1/156-57). For the first time, the government's
comments indicated that the work packages could not include references to the 10 and
20 level manuals (tr. 1/57). On January 25, 2016, the parties discussed the
government's second round comments on the 30 level manuals by teleconference (R4,
tab 38 at 559; tr. 1/159-60). James Markley, CLI's director of operations, and
Mr. Ditmar informed the government that the comments received were an "extreme
surprise" because they differed from the first round comments and conflicted with the
government's responses to CLI's plan to use references to the 10 and 20 level manuals
prior to that meeting (tr. 1/161- 63). CLI informed the government that its objection to
reference-only task descriptions would require all of its work to be redone and
substantial duplication in rewritten manuals (tr. 1/64-65, 1/163). Mr. Markley testified
that the company would not have proceeded after the "start of work" meeting if it had
known of the government's objections to its approach (tr. 1/165-66).
The government asked CLI to determine a plan to meet the government's
desired approach and its requirements to incorporate the 10 and 20 level manuals
(tr. 1/167). CLI responded February 10, 2016 with two options: 1) add line items to
the contract statement of work that require production of new 10 and 20 level manuals
with the same pictorial approach used in the new 30 and 40 level manuals or 2) add
CLINS to the contract to support redoing the 10 and 20 level tasks that were included
in the Army prescribed task list (R4, tab 41 at 574-75; tr. 1/169). CLI proposed to
provide prices to perform either of these options.
Prior to the contract, when evaluating CLI's proposal, Mr. Simons assumed the
government could correct a contractor's work if he found it unacceptable by defaulting
that contractor (tr. 2/51 ). Apparently carrying out that plan, when the government was
dissatisfied with CLI' s February 10, 2016 response it issued a cure notice on March 21,
2016 (R4, tab 44 ). Rather than suffer default of its contract, CLI complied with the
7
government's wishes and redid the manuals excluding references to 10 and 20 level
manuals (tr. 1/66). On September 20, 2016, CLI submitted a claim to the contracting
officer for $962,020.70 for its increased scope of work (R4, tab 64). The contracting
officer issued a final decision on March 14, 2016 denying the claim (R4, tab 67). CLI
filed its notice of this appeal on June 8, 2017.
DECISION
As noted above, the parties focus this dispute upon the terms of the contract
which describe the 10 and 20 level manuals as provided to CLI for reference. The
government poses the issue to be decided as one of contract interpretation. To the
extent there is any question as to the interpretation of the relevant terms of the
contract, it is resolved by the plain terms of the statement of work which exclude
10 and 20 level tasks. This contract required production of 30 and 40 level manuals
and associated programs of instruction, and no more. The Army, however, argues that
10 and 20 level manuals were inherently incorporated in the work of the contract. This
argument is premised on its analysis that ANA personnel cannot perform 30 and 40
level tasks without first accomplishing 10 and 20 level tasks. The Army asserts that
the goal to achieve an organic maintenance capability in the ANA with simplified
technical manuals cannot be met if the 30 and 40 level manuals require the ANA to
also rely upon the poorly translated higher literacy level 10 and 20 level manuals.
That may be, but this contract did not obligate CLI to achieve the Army's goal, but
only to create and produce simplified 30 and 40 level manuals at a 3rd grade literacy,
translated into Dari and Pashtu. Whatever aspirational goals the Army may find in the
contract, without more, they did not bind CLI to perform work that was otherwise
excluded from the statement of work. Blount Bros. Constr. Co. v. United States, 346
F.2d 962,971 (Ct. Cl. 1965) (the intention in the minds of government designers is of
no consequence unless communicated to bidders); critically, the questions and answers
incorporated into the contract permitted the approach taken by CLI here.
The government also bases its arguments upon a detailed linguistic analysis of
the function and interpretation of the word "reference" as it is used in the text of the
statement of work. Even if that analysis were precise and correct, for the portion of
the contract cited in isolation, it does not advance the government's reading of the
contract. The Army's analysis reads the term "reference" in section C of the contract
to eliminate CLI' s ability to use the GFI as anything other than library materials. The
Army characterizes CLI's interpretation to use GFI for reference within the 30 and 40
level manuals as creating an affirmative and specific duty. Such confined
understanding of that term does not reflect a reasonable reading of the term in the
context of the statement of work.
8
Contrary to creating a contractor duty, the contract gave CLI the option to
utilize GFI in the most effective manner it chose when creating the new manuals.
CLI' s approach reflects its decision how best to utilize the 10 and 20 level manuals,
and complies with the direction elsewhere in the statement of work to maximize the
use of the GFI. There is no language in the contract that forbids the approach taken by
CLI. Moreover, the government appeared to approve of CLI's approach at every step
of the procurement: the solicitation and contract required creating 30 and 40 level
manuals not 10 and 20 level manuals; the government's pre-bid answer clarified that
use of the GFI as intended by CLI was contractually permissible; the government
accepted the reference-only procedure that was explicitly described in CLI' s proposal;
it failed to consider, much less question, the approach in the proposal samples; it
ignored the contractor's information at the "start of work" meeting; ATV officials
made no comment on the allegedly offending "reference-only" approach in three sets
of samples after commencement of work; and those officials accepted the use of
references to GFI in the first review of the draft manuals. The Army cannot now
ignore those events by insisting that the contract can only be interpreted by means of
its refined grammatical application of the term "reference".
Having failed to articulate its desire to obtain simplified pictorial 10 and 20
level manuals* as well as the contracted for 30 and 40 level manuals, the Army
attempts to shift responsibility for that failure onto CLI. The Army argues that CLI's
appeal must be denied because it failed to inquire as to the meaning of "for reference"
prior to bidding. This argument is misdirected. The facts do not present a question of
CLI' s duty to inquire regarding the meaning of the contract language. Rather than
identify an ambiguity, the government's argument is a post-hoc rationalization of the
Army's failure to fully evaluate CLI's proposal.
While preparing its proposal, CLI pursued a reasonable interpretation of the
solicitation. There was nothing in the text of the solicitation that it found ambiguous.
And the Army's grammatical analysis demonstrates that any ambiguity in the
statement of work was so obscure CLI had no duty to inquire regarding its meaning.
Then, there was a specific relevant pre-bid inquiry and an explicit answer by the
government. CLI could rely upon that government response, which became part of the
contract and which confirmed its understanding of its plan to use the GFI in creation of
the 30 and 40 level manuals. KiewitPhelps, ASBCA No. 61197, 19-1BCA137,319
at 181,524. That inquiry also discharged any duty by CLI to seek clarification. SPL
Constr. & Development Corp., ASBCA No. 28699, 85-3 BCA 118,362 at 92,128.
CLI then received further assurance as to how it could utilize 10 and 20 level manuals
* The Army did not explicitly ask for revision of the 10 and 20 levels manuals, but the
references to procedures in those manuals by the 30 and 40 manuals are so
extensive that the Army's position would effectively impose such an obligation
on CLI.
9
from the government's acceptance of its proposal, its samples and subsequently the
award of the contract. CLI reasonably relied upon those assurances in preparation of
its proposal, and in support of its claim.
Moreover, CLI had no reason to suspect the government doubted its ability to
perform the contract. Prior to award, ACC officials believed there may have been a
mistake in CLI's price proposal. That belief was based upon a significant discrepancy
between the government estimate and CLI' s price. While disregarding CLI' s work
plan, the ACC contracting officials uniformly testified that they suspected a problem
in CLI' s proposal because of its low price. The contracting officer testified that he too
was personally concerned with CLI's very low price. Notwithstanding these concerns,
he did not alert CLI that there was a significant discrepancy between its price and the
government's estimate. Nor did he attempt to explain the Army's perception that CLI
must have misinterpreted the contract requirements, of which all ACC personnel
should have been aware. His verification of CLl's price was wholly inadequate.
Straga, ASBCA No. 26134, 83-2 BCA, 16,611 at 82,618. The government ignored
every indicator that CLI did not possess the same understanding of the GFI as
reference material.
Thus, this dispute arises from that careless disregard of CLI' s technical
approach prior to December 2015. Even when CLI informed ACC at the start of work
meeting that it reduced its costs by relying upon information from the 10 and 20 level
manuals, neither the contracting officer, nor any government official, noticed or took
exception. CLI had no notice of the government's contrary view of the GFI until it
received a second round of comments, when the 30 manuals were nearly complete and
substantial work had been performed in creation of the 40 manuals. CLI was then
compelled to redo its work on the contract to comply with the government's revised
expectations. But, the contract imposed no such requirements on CLI. In these
circumstances, CLI is not responsible for the costs of the Army's mid-stream
reformation of the statement of work to satisfy previously undisclosed requirements
for simplified 10 and 20 level manuals.
10
CONCLUSION
CLI' s appeal is sustained, as to entitlement and returned to the parties for
negotiation of quantum.
Dated: February 7, 2020
DONALD E. KINNER
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RIC~CKLEFORD J. REID PROUTY
Administrative Judge 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. 61216, Appeal of
Command Languages, Inc. d/b/a CLI Solutions, rendered in conformance with the
Board's Charter.
Dated:
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
11