ASBCA 60692

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of -- ) ) K-Con, Inc. ) ASBCA Nos. 60686, 60687 ) Under Contract Nos. W912SV-13-F-0100 ) W912SV-13-F-0121 ) APPEARANCES FOR THE APPELLANT: Robert J. Symon, Esq. Aron C. Beezley, Esq. Bradley Arant Boult Cummings LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Christopher M. Coy, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE WOODROW ON APPELLANT'S MOTION FOR RECONSIDERATION On 6 February 2017, appellant, K-Con, Inc., timely moved for reconsideration of the Board's 12 January 2017 decision. K-Con, Inc., ASBCA Nos. 60686, 60687, 17-1 BCA ~ 36,632. In its motion for reconsideration, K-Con contends that the Board improperly ignored K-Con's argument in its brief concerning the United States District Court for the Northern District of Illinois' opinion in Faerber Elec. Co. v. Atlanta Tri-Com, Inc., 795 F. Supp. 240 ( 1992). In addition, K-Con requests that the Board reconsider its ruling in light of FAR 12.301, which addresses the clauses to be incorporated into commercial item contracts. DISCUSSION In deciding a motion for reconsideration, we examine whether the motion is based upon newly discovered evidence, mistakes in our findings of fact, or errors of law. Zulco International, Inc., ASBCA No. 55441, 08-1BCA~33,799 at 167,319. A motion for reconsideration does not provide the moving party the opportunity to reargue its position or to advance arguments that properly should have been presented in an earlier proceeding. See Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014). We do not grant motions for reconsideration absent a compelling reason. JF. Taylor, Inc., ASBCA Nos. 56105, 56322, 12-2 BCA ~ 35,125 at 172,453.  I. Faerber Electric Does Not Compel a Different Result K-Con first contends that the Board improperly ignored K-Con' s argument in its initial brief concerning the U.S. District Court's opinion in Faerber Electric. Although K-Con acknowledges that decisions of United States District Courts are not binding on the Board, it contends that we should find the Court's decision persuasive, particularly given the absence of Board precedent on the precise issue. Faerber Electric holds that, absent a bond being obtained, there is no claim directly under the Miller Act statute. We did not hold that the Miller Act is self- implementing in the sense that it creates a cause of action. Instead, we held that, pursuant to the Christian doctrine, the bonding requirements set forth in the Miller Act (and codified at FAR 52.228-15) are mandatory clauses that must be included in government construction contracts if they are omitted. We did not reach the further question - at issue in Faerber Electric - of whether a subcontractor possesses a right of action to sue the prime contractor ifthe prime contractor did not obtain a bond in connection with its contract with the government. While it is true that Faerber Electric concluded that the Miller Act is not implicitly incorporated into any federal contract covered by the Act, it did so in the context of determining whether a subcontractor possessed a right of action against a prime contractor based on the presumption that the prime contractor would have obtained a bond pursuant to the Miller Act. 795 F. Supp. at 246 (citing, inter alia, G.L. Christian & Assocs. v. United States, 320 F.2d 345, 350-51 (1963)). Because the prime contractor's contract with the government did not include a bonding requirement, and the prime contractor did not obtain a bond, there was no bond on which the subcontractor could sue. The Court refused to create an implied cause of action to fill the lacuna created when both the contractor and the government contracting officer ignore the bonding requirement. The conclusion in Faerber Electric - that the Miller Act bonding requirement is not implicitly incorporated into federal contracts covered by the Act - did not rest on analysis of the Christian doctrine. Specifically, Faerber Electric did not delve into whether the bonding requirement is a mandatory contract clause that expresses a significant or deeply ingrained strand of public procurement policy. G.L. Christian & Associates v. United States, 312 F.2d 418, 424, 427 (Ct. Cl. 1963).