The opinion
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The decision issued on the date below is subject to an ASBCA Protective Order.
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ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
CACI International, Inc. ) ASBCA No. 63663
)
Under Contract No. N00189-12-D-Z001 )
APPEARANCES FOR THE APPELLANT: Tyler Evans, Esq.
John F. O’Connor, Esq.
Caitlin T. Conroy, Esq.
Steptoe LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Samuel W. Morris, Esq.
DCMA Chief Trial Attorney
Adrianne L. Goins, Esq.
Scott Reid, Esq.
Trial Attorneys
Defense Contract Management Agency
Chantilly, VA
OPINION BY ADMINISTRATIVE JUDGE D’ALESSANDRIS ON
THE PARTIES’ CROSS-MOTIONS FOR RECONSIDERATION
Pending before the Board are cross-motions for reconsideration filed by
appellant, CACI International Inc. (CACI) and the Defense Contract Management
Agency (DCMA or government). In our opinion dated May 6, 2025, we denied the
government’s motion to dismiss, treated as a motion for summary judgment, and
granted in part CACI’s motion for summary judgment. In short, we held that CACI’s
claimed Iraqi litigation costs were not barred by a 2007 settlement agreement between
CACI Premier Technology (CACI PT) and the Department of the Interior (DOI) and
denied the remainder of CACI’s motion. Familiarity with that decision is assumed.
At the request of the parties, the Board held oral argument on the cross-motions for
reconsideration on February 11, 2026.
In its motion for reconsideration, CACI, raises new arguments and repeats the
arguments from its motion for summary judgment, arguing once again that litigation
costs are generally allowable, and that the tort claims at issue are not “similar” to the
enumerated unallowable costs. The government’s motion for reconsideration similarly
raises new arguments and repeats arguments from its motion to dismiss, that we should
have found issue preclusion based on a District Court holding, and that the release
from the settlement between CACI PT and DOI precludes CACI’s Iraqi litigation costs
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below is subject to an ASBCA Protective Order.
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at issue in this appeal. As neither motion identifies mistaken findings of fact or errors
of law, we deny both motions. *
DECISION
I. Standard of Review
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 at 161,816. The Board has summarized the standard for reconsideration
by 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.
II. CACI’s Motion For Reconsideration
CACI’s motion for reconsideration generally repeats the legal argument from
its motion for summary judgment with new facts from the second Al Shimari jury trial
that were not included in CACI’s original motion.
A. The Board Has Already Rejected CACI’s Legal Argument
CACI’s motion for reconsideration argues that legal costs are generally
allowable unless there is an exception, and that the Al Shimari legal costs are not
“similar” to the exceptions previously recognized by the courts (app. mot. recon. at
6-10). We fully considered these arguments in our opinion. We rejected CACI’s
argument that legal costs are generally allowable unless specifically excluded by
Federal Acquisition Regulation (FAR) 31.205-47 noting that the Court of Appeals for
the Federal Circuit had rejected this same argument in Boeing North American (CACI
*
The Chairman has denied the government’s request that these appeals be referred to
the Board’s Senior Deciding Group.
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Int’l Inc., ASBCA No. 63663, slip op. at 21-22 (May 6, 2025)(quoting Boeing N. Am.,
Inc. v. Roche, 298 F.3d 1274, 1285 (Fed. Cir. 2002))). We also held that the Al
Shimari costs were “similar” to other unallowable costs. Here, CACI cites to the same
cases that it relied upon in its motion for summary judgment. CACI again argues that
the Al Shimari costs are not “similar” to other unallowed costs because it is private
litigation with penalties paid to the plaintiffs and not the government (tr. 35). We
reviewed those cases in our opinion and nothing in CACI’s motion for reconsideration
causes us to reconsider our analysis.
B. The Board Will Not Consider CACI’s New Arguments Raised For The
First Time In Its Motion For Reconsideration
CACI’s motion for reconsideration also introduces new argument regarding the
Al Shimari litigation. In its original motion for summary judgment, CACI argued that
legal fees incurred in defending against the Al Shimari litigation were allowable
because actions brought pursuant to the Alien Tort Statute (ATS) were not “similar” to
unallowable costs because the litigation was brought in an individual capacity and
damages would not be paid to the government (app. mot. s.j. at 4-5, 17-23). In other
words, CACI’s argument was that the litigation costs were allowable because any
action brought pursuant to the ATS would be different from the types of litigation cost
that have previously been found to be unallowable.
In its motion for reconsideration, CACI essentially seeks summary judgment on
a different question – whether the Al Shimari costs are unallowable based on the
specific facts of that case. CACI devotes a significant portion of its motion for
reconsideration addressing new information, not included in its original motion for
summary judgment, regarding the procedural history of the Al Shimari litigation, as
well as an expanded discussion of the history of the ATS. Specifically, CACI argues
that the Al Shimari judgment currently on appeal “rests on a unique and unprecedented
application of two levels of vicarious liability” (app. mot. recon. at 2). According to
CACI, the district court in the second Al Shimari trial granted CACI judgment on the
plaintiff’s claims for aiding and abetting torture, and cruel, inhumane, or degrading
treatment (CIDT) (id. at 1). CACI notes that the district court’s actions occurred
following the conclusion of briefing in this appeal (app. reply at 2 n.8). However,
CACI did not seek to amend its motion for summary judgment, and the Board decided
the question presented in CACI’s motion for summary judgment. Specifically we
denied CACI’s motion for summary judgment that any litigation costs incurred in
defending against a claim pursuant to the ATS were allowable, based on the factual
situation then before us, which included allegations of violation of international law,
including aiding and abetting torture (slip op. at 23). Whether a civil damages award
based upon two-levels of vicarious liability is “similar” to the costs disallowed
pursuant to FAR 31.205-47(b) is a different question, and one requiring full briefing
by the parties rather than being raised for the first time in a motion for reconsideration.
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CACI also argues that 18 of 20 claims contained in the Al Shimari litigation
have been resolved in CACI’s favor, and thus the Board should only look at the two
remaining claims asserting co-conspirator liability in determining allowability for the
litigation costs (app. mot. for recon. at 1-2). As noted above, this is a different
question from that posed in CACI’s motion for summary judgment. That motion
asked the Board to enter judgment that litigation costs for actions brought pursuant to
the ATS were, in essence, per se allowable, if not expressly made unallowable by a
specific FAR provision. We decline to consider CACI’s new justification for
allowability of its legal costs.
CACI additionally suggests that the Board should apportion the litigation costs,
and allow 90% of the costs (based on 18 of 20 claims being resolved in CACI’s favor)
even if we find the litigation costs to be “similar” to unallowable costs (id.). The
government argues that the Federal Circuit rejected this argument (gov’t resp. at 7 n.4
(citing Rumsfeld v. General Dynamics Corp., 365 F.3d 1380 (Fed. Cir. 1380, 1386
(Fed. Cir. 2004)). CACI’s apportionment argument was not raised in the summary
judgment briefing and we decline to consider it for the first time on reconsideration.
Dixon, 741 F.2d at 1378.
CACI also makes new legal arguments regarding the Torture Victims
Prevention Act (TVPA), 28 U.S.C. § 1350 note, and the history of the ATS as likely
only covering offenses against ambassadors, violations of safe conduct and prize
capture and piracy (app. mot. for recon. at 5). Once again these are new arguments not
raised in the summary judgment briefing. We decline to consider the arguments.
For the reasons stated above, we deny CACI’s motion for reconsideration.
III. The Government’s Motion for Reconsideration
The government seeks reconsideration of the Board’s decision that CACI’s
claim for inclusion of Al Shimari litigation costs in its overhead rate was not barred by
issue preclusion, and the Board’s decision that a 2007 settlement agreement between
the Department of the Interior (DOI) and CACI PT, settling litigation pending before
the Civilian Board of Contract Appeals (CBCA), did not release CACI International,
Inc.’s claim against the DCMA.
A. The Government Misinterprets The Requirements For Issue Preclusion
In our decision, we held that CACI’s claimed overhead costs were not barred by
the doctrine of issue preclusion, based upon the Eastern District of Virginia’s holding
that CACI’s claims of equitable legal theories of indemnification, exoneration, and
contribution and the contractual theory of breach of the duty of good faith and fair
dealing, asserted in that action, were barred by the 2007 settlement agreement (slip op.
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at 20-21). The government asserts that the Board erred in holding that CACI’s claimed
overhead costs were not unallowable pursuant to the doctrine of issue preclusion.
According to the government, the Board erred in three ways: by failing to recognize
that the Board and the district court were reviewing the same issue; by incorrectly
determining that the district court was considering direct costs; and by ignoring the
DCMA’s role in setting overhead rates for all contracts (gov’t mot. at 4-7).
The government’s first argument is that the Board’s decision is inconsistent
with its own findings, because we commented that the scope of the 2007 release was
“central to resolving many of the issues in the pending motions” (slip op. at 3).
According to the government, the scope of the release was also central to the district
court’s holding, and thus, we should find issue preclusion to exist (gov’t mot. at 4-5).
As we noted in our decision, issue preclusion requires that “the issue previously
adjudicated [be] identical with that now presented” (slip op. at 20, quoting Thomas v.
Gen. Servs. Admin., 794 F.2d 661, 664 (Fed. Cir. 1986). While both actions involve
the interpretation of the 2007 settlement agreement, they do not involve the same types
of claims, with the district court action considering equitable legal theories of
indemnification, exoneration, and contribution and the contractual theory of breach of
the duty of good faith and fair dealing (slip op. at 20) and the pending litigation
involving the allowability of indirect overhead costs.
The government’s second alleged error is that the Board incorrectly determined
that the district court action was considering direct costs (gov’t mot. at 5-6). The
Board’s reference to “direct costs” in the decision was a short-hand reference to costs
that would have been directly allocable to the DOI task orders because they were
“liabilities . . . aris[ing] out of the performance of” the task orders. FAR 52.228-
7(c)(2). The district court action involved equitable legal theories of indemnification,
exoneration, and contribution and the contractual theory of breach of the duty of good
faith and fair dealing. These legal theories of recovery directly arise out of the
performance of the DOI task orders. Because the DOI task orders have been
closed-out, the costs cannot, today, be charged directly to the task orders. However,
that does not change the fact that costs at issue in the district court litigation are
different from legal fees being charged to overhead in this action. Legal fees are
considered to be a cost of doing business and are accordingly assigned to overhead
cost pools. In fact, DCMA recommended treating prior litigation costs as indirect
costs (R4, tab 21 at GSR4-479). The treatment of the costs as direct or indirect is an
issue of allocation – that is, to what cost objectives, and thus contracts, should the
costs be allocated.
The government asserts a third error that the Board misconstrued the legal issue
to be determined and ignored DCMA’s role as the cognizant federal agency
responsible for CACI’s indirect costs (gov’t mot. at 6-7). As explained above, the
district court was considering costs that could be directly charged to the contract. The
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Board’s decision perhaps could have been more clear in explaining that this difference
in allocability of the costs was the reason why issue preclusion was not applicable
when it stated that “allowability of these costs is a separate question” (slip op. at 21).
As a general rule, costs must be allocated before determining their allowability. The
Board’s decision did not state that allowability of the costs was separate from CACI’s
indirect rates as asserted by the government (gov’t mot. at 6). The government further
argues that the Board’s decision “ignored DCMA’s role” in setting indirect cost rates
(id.). Again, the government misinterprets the Board’s decision. Once the allocation
of the costs has been resolved, the allowability of the costs will be at issue. The Board
recognizes that DCMA is the cognizant agency for CACI’s indirect cost rates.
B. The Government’s New Arguments Do Not Provide A Basis For
Interpreting The Settlement Agreement As Applying To CACI’s
Overhead Costs
The government also raises a number of new arguments in an attempt to
establish that the settlement agreement encompassed CACI’s legal costs. The
government first repeats its argument that a general release under a government
contract ends all matters related to the contract (gov’t mot. at 9-11). We deny this
argument for the reasons stated in our decision.
The government next argues that the Board misinterpreted the scope of the
release in the 2007 settlement agreement. Here, the government’s argument is a
mish-mash of arguments, mostly new, that ignore all binding authority regarding
privity of contract and co-obligors. The government starts with an argument, without
any citation to authority or the administrative record, that the Department of Defense
(DoD) was “both the successor to, and co-obligor with, DOI for the task orders” (gov’t
mot. at 12). Curiously, the government also dismisses our analysis of Federal Circuit
precedent in Holland v. United States, 621 F.3d 1366 (Fed. Cir. 2010) by asserting that
the Federal Circuit “was mistaken to conclude there was no controlling federal law”
(gov’t mot. at 12 n.12). Even if we were to conclude that the Federal Circuit erred in
its analysis, we are still required to follow precedent.
The government first takes issue with the Board’s statement that the DoD was
not mentioned in the settlement agreement (id.). The government points to the fact
that the settlement agreement required CACI to certify that it delivered some
government property to the Army as proof that DoD was somehow a party to the
settlement. Admittedly, a DoD entity, the Army, was mentioned in the agreement, but
it was not a party to the agreement, and did not have obligations pursuant to the
agreement. Instead, CACI was required to certify that it turned some property over to
the Army. The settlement did not place any obligation on the Army. In fact, the
settlement agreement did not even require the Army to sign a receipt for the property.
Even if DoD had some undefined contractual right pursuant to the settlement
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agreement, that right would be limited to the value of the property that CACI was to
turn-over to the Army. Moreover, the government doesn’t allege that CACI failed to
deliver the property, and the statute of limitation for such a claim has long passed.
The government next makes the new argument that it was the “successor
agency” to DOI and that as “successor” it somehow is entitled to enforce the settlement
agreement (gov’t mot. at 13-14). However, the record is clear that DOI terminated its
task orders so that they could be replaced by DoD task orders (id. at 13-14, citing R4,
tab 18 at GSR4-414). That is, the contractual relationship between CACI and DOI
ended and a new contractual relationship was established between CACI and DoD. The
government cites no legal authority for its novel argument that the termination of one
contract and creation of a new contract with a different federal agency is somehow the
equivalent of a novation changing the responsible party on a single existing contract.
The government admits that the contracts were not novated (tr. 52). Moreover, the
government’s “successor” argument was not raised in its motion to dismiss and we need
not consider it here. Dixon, 741 F.3d at 1378. To the extent we would consider it, it is
denied.
The government also contends that it is a “co-obligor” with DOI on the task
orders. The government cites the definition of co-obligor from Black’s Law
Dictionary as being “bound jointly with another or others in a bond or obligation”
(gov’t mot. at 13 n.14), but fails to explain how or why DOI and DoD were “bound
jointly.” At oral argument, the government pointed to the Army’s transfer of funds to
the DOI by Military Interdepartmental Purchase Request (MIPR) as proof that the
Army was a co-obligor (tr. 51). Details concerning the payment of contract amounts
to CACI do not appear to be in the record, but logically, the Army would not be
transferring funds by MIPR to the DOI if the Army had paid CACI directly. We fail to
see how the transfer of funds by MIPR makes the Army a co-obligor to the contract.
The government also cites a number of sources regarding the interagency procurement
process but does not cite any authority for its novel proposition that a requiring agency
is a party to the contract between the ordering agency and the contractor.
The government also argues that it is a third-party beneficiary “because the
[settlement] agreement reflects the express intention of DOI and CACI to benefit DOD
by transferring ‘Government Property’ and CACI’s work to ‘two follow-on bridge
contracts’ with the Army” (gov’t mot. at 17 n.20). “In order to prove third party
beneficiary status, a party must demonstrate that the contract not only reflects the
express or implied intention to benefit the party, but that it reflects an intention to
benefit the party directly.” Glass v. United States, 258 F.3d 1349, 1354, opinion
amended on reh’g on unrelated grounds, 273 F.3d 1072 (Fed. Cir. 2001). As noted
above, the only reference to DoD in the settlement agreement was a requirement that
CACI certify to DOI to that it returned some government property to the Army. There
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is no indication that the settlement agreement was intended to benefit the DoD, let
alone, an intent to benefit DoD directly.
CONCLUSION
For the reasons stated above, the parties’ cross-motions for reconsideration are
denied. The parties are directed to submit a joint status report with a proposed
schedule for further proceedings within 30 days of the date of this opinion.
Dated: March 10, 2026
DAVID D’ALESSANDRIS
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
OWEN C. WILSON MICHAEL N. O’CONNELL
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. 63663, Appeal of CACI
International, 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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