CBCA 8151-R

MOTION FOR RECONSIDERATION DENIED: October 9, 2025 CBCA 8151-R, 8162-R, 8163-R GDM A-E, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Italia A. Carson, Polaris Law Group, P.C., North Pole, AK, counsel for Appellant. Neil S. Deol, Office of General Counsel, Department of Veterans Affairs, Decatur, GA; and Kathleen Ramos, Office of General Counsel, Department of Veterans Affairs, Arlington, TX, counsel for Respondent. Before Judges GOODMAN, KULLBERG, and KANG. GOODMAN, Board Judge. Appellant, GDM A-E, Inc., moves for reconsideration of our decision GDM A-E, Inc. v. Department of Veterans Affairs, CBCA 8151, 8162, 8163, 25-1 BCA ¶ 38,911, dismissing these consolidated appeals for failure to state a claim. We deny the motion. Grounds for Reconsideration The Board stated the grounds for reconsideration in Y2Fox, Inc. v. Department of State, CBCA 7805-R, 24-1 BCA ¶ 38,647 at 187,873, dismissed, No. 25-1001 (Fed. Cir. Nov. 14, 2024): CBCA 8151-R, 8162-R, 8163-R 2 A motion for reconsideration is not an opportunity for a litigant to reargue its case. Reconsideration is warranted only in “extraordinary circumstances.” Caldwell v. United States, 391 F.3d 1226, 1235 (Fed. Cir. 2004). “The three primary grounds that justify reconsideration are: (1) an intervening change in the controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.” Delaware Valley Floral Group, Inc. v. Shaw Rose Nets, LLC, 597 F.3d 1374, 1383 (Fed. Cir. 2010) (internal quotation marks omitted). The Board “will not address new arguments or evidence that the moving party could have raised before the [original] decision issued.” Banister v. Davis, 590 U.S. 504, 508 (2020). Arguments that were forfeited because they were not timely asserted cannot be resurrected on reconsideration. See Philip Morris Products S.A. v. International Trade Commission, 63 F.4th 1328, 1336-37 (Fed. Cir. 2023); Caldwell, 391 F.3d at 1235; Hazani v. United States International Trade Commission, 126 F.3d 1473, 1476-77 (Fed. Cir. 1997). Appellant’s Motion First Basis for Reconsideration Appellant presents three bases for its motion. The first basis was titled: The Board Misapprehended Appellant’s “Totality of the Circumstances” Argument that Drastic Increases in ECCs[1] Necessitating Additional Drawings Indicate Scope Changes Were Required in Each Contract. Motion for Reconsideration at 3. Appellant states in support of this assertion: [Appellant] did not assert that either increased ECC prices or design drawings necessitated [that the contracting officers (COs)] change the scope of work in the three contracts. Rather, Appellant offered these grounds, in toto, as indicia of a change from the scope of work at contract award. In other words, the combination of these facts supported a finding of a change to the contracts 1 ECC is the abbreviation of “estimated construction contract.” We assume appellant is indicating “estimated construction contract price.” CBCA 8151-R, 8162-R, 8163-R 3 necessitating a change in scope of work to address the increased magnitude of the project. .... Appellant asserts the increased ECCs and design drawings greatly modified the original scope such that the COs should have modified the contracts to change the scope of the work or materials to account for the increased work. Such changes to the contracts entitled Appellant to additional compensation. Id. at 3-4. Appellant is rearguing evidence and issues previously considered by the Board. Appellant states: The Board’s decision addressed Appellant’s argument that the Agency should have changed the scope of work or materials by focusing separately on the grossly elevated ECC prices and the increased number of designs required under the three contracts during performance. The Board concluded that an increase in ECC alone is not a ground for an increase in design fee. Separately, the Board concluded that an increase in the actual number or complexity of design drawings did not support the conclusion that there had been a change in the scope of work entitling the contractor to an additional fee. “Accordingly, there was no change, actual, constructive, or cardinal.” Id.