ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
CDM Constructors, Inc. ) ASBCA Nos. 60454, 60455, 60669
)
Under Contract No. W9 l 2PL- l 2-C-0022 )
APPEARANCES FOR THE APPELLANT: Bret S. Wacker, Esq.
Jeffrey M. Gallant, Esq.
Emily J. Baldwin, Esq.
Clark Hill PLC
Detroit, MI
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
John F. Bazan, Esq.
Gilbert H. Chong, Esq.
Brian M. Choe, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Los Angeles
OPINION BY ADMINISTRATIVE JUDGE SWEET ON THE
GOVERNMENT'S MOTION FOR RECONSIDERATION
The government moves to reconsider our October 24, 2018 decision on entitlement
as to the standby generator in ASBCA Nos. 60455 and 60669.* Motions for
reconsideration are only appropriate if they are based upon newly discovered evidence,
mistakes in the findings of fact, or errors oflaw. Green Valley Co., ASBCA No. 61275,
18-1 BCA ,i 37,044 at 180,329 (citing Alliance Roofing & Sheet Metal, Inc., ASBCA
No. 59663, 15-1 BCA ,i 36,063). "Reconsideration is not intended to provide a party with
the opportunity to reargue its position." Id. (quoting Robinson Quality Constructors,
ASBCA No. 55784, 09-2 BCA ,i 34,171 at 168,911). Thus, "[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 v.
Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014) (citations and quotations omitted).
* The government does not seek reconsideration of our decision regarding the evaporation
ponds in ASBCA No. 60454.
Here. the government first improperly seeks to reargue the position it advanced in
its post-hearing reply brief that appellant CDM Constructors, Inc. (CDM) abandoned its
defective specification claim (gov·t post-hearing reply at 1; gov't mot. at 3-4 ). In any
event, the government's argument ignores the fact that defective specification is a category
of constructive change. Grunley-Walsh Constr. Co., ASBCA No. 33004, 90-1 BCA
,i 22,362 at 112,343; see also John Cibinic, Jr., James F. Nagle & Ralph C. Nash, Jr.,
ADMINISTRATION OF GOVERNMENT CONTRACTS, 399 (5th ed. 2016). It also ignores the
discretion we possess to consider issues, even abandoned ones. Becton Dickinson & Co. v.
C.R. Bard, Inc .. 922 F.2d 792. 800 (Fed. Cir. 1990).
Second. the government mischaracterizes the decision· s findings of fact by asserting
that we found that "there was no defect in the [Southern California Edison (SCE)] drawings
design'' (gov't mot. at 4 (citing findings. 47-49)). In the decision, we merely found that the
SCE drawings were consistent with Contract No. W912PL-12-C-0022's (0022 Contract's)
appendix A,§ 9.1.3, and SCE's Electrical Service Requirements ,i 12. CDM Constructors,
Inc., ASBCA No. 60454, 18-1 BCA ,i 37,190 at 181,010. It does not follow from those
findings that the SCE drawings design were error free. Id. On the contrary, as we found,
the drawings were defective because the government and SCE rejected CDM's design based
upon those drawings. Id. at 181,010, 181,014.
Third, the government's argument that there was no government action or omission
because it was SCE-and not the government-that rejected the design fails legally and
factually (gov't mot. at 4-5). Legally, the government's issuance of a misleading
solicitation itself is the basis for a price adjustment under a defective specification claim.
BECO Constr. Co., ASBCA No. 57483, 11-2 BCA ,i 34,817 at 171,338; F.J. Stokes Corp.,
ASBCA No. 6532, 1963 BCA ,i 3944 at 19,542. Factually, the government also rejected
the design by adopting SCE's position in a memorandum. CDM, 18-1 BCA ,i 37,190
at 181,010. Indeed, the testimony of the government's electrical engineer-upon which
the government relies-confirms that the government also rejected CDM's design (gov't
br. at 5) (quoting tr. 4/38). Therefore, we deny the government's motion for
reconsideration.
Dated: May 7, 2019
JAMESR. SWEET
Administrative Judge
Armed Services Board
of Contract Appeals
(Signatures continued)
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I concur I concur
RI~EFORD OWEN C. WILSON
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 Nos. 60454, 60455, 60669, Appeals of CDM
Constructors, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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CDM Constructors, Inc.
Combined Opinion