CBCA 2294-R

MOTION FOR RECONSIDERATION DENIED: December 14, 2016 CBCA 2294-R AMERICOM GOVERNMENT SERVICES, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Thomas L. McGovern, III and Brendan M. Lill of Hogan Lovells US LLP, Washington, DC, counsel for Appellant. Jennifer L. Howard, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges GOODMAN and SHERIDAN.1 GOODMAN, Board Judge. Respondent, General Services Administration, pursuant to CBCA Rule 26 (48 CFR 6101.26 (2015)), has filed a motion for reconsideration of this Board’s decision on the 1 Judge Howard A. Pollack, the panel chair when the decision on the merits was issued, has retired. A panel member is not substituted to resolve a motion for reconsideration. CBCA 2294-R 2 merits in this appeal, in Americom Government Services, Inc. v. General Services Administration, CBCA 2294, 16-1 BCA ¶ 36,320.2 Respondent’s motion details three matters as to which reconsideration is requested: 1) the Board’s decision with regard to institutional ratification; 2) the Board’s treatment of the issue of the Limitations of Funds clause; and 3) alleged numerous errors of fact. Respondent requests that “[i]n light of a number of clear errors of law and fact contained in the Board’s . . . decision . . . , the Board must vacate its decision and deny the appeal.” Respondent’s Motion for Reconsideration at 1. As respondent has not stated grounds for reconsideration of the Board’s decision on the merits, we deny the motion. Discussion Rules 26 and 27 of the Board’s rules set forth the standards by which a motion for reconsideration will be evaluated: [R]econsideration may be granted for any of the following reasons: newly discovered evidence which could not have been earlier discovered, even through due diligence; justifiable or excusable mistake, inadvertence, surprise, or neglect; fraud, misrepresentation, or other misconduct of an adverse party; the decision has been satisfied, released, or discharged, or a prior decision upon which it is based has been reversed or otherwise vacated, and it is no longer equitable that the decision should have prospective application; the decision is void, whether for lack of jurisdiction or otherwise; or any other ground justifying reconsideration, including a reason established by the rules of common law or equity applicable as between private parties in the courts of the United States. 2 The Board had issued three previous decisions in this appeal–Americom Government Services, Inc. v. General Services Administration, CBCA 2294, 12-1 BCA ¶ 34,895 (2011) (denying respondent’s motion to dismiss) (Americom 1), 14-1 BCA ¶ 35,687 (granting respondent’s motion for summary relief in part and denying appellant’s motion for summary relief) (Americom 2), and 15-1 BCA ¶ 35,902 (denying respondent’s motion to dismiss for lack of jurisdiction) (Americom 3). CBCA 2294-R 3 Oregon Woods, Inc. v. Department of the Interior, CBCA 1072-R, 09-1 BCA ¶ 34,063, at 168,431-32, aff’d sub nom. Oregon Woods, Inc. v. Salazar, 355 F. App’x 403 (Fed. Cir. 2009). “Reconsideration is not a vehicle for retrying a case or introducing arguments that could have been made previously.” See Ryll International, LLC v. Department of Transportation, CBCA 1143-R, 12-1 BCA ¶ 35,029, at 172,144. “Arguments already made and reinterpretations of old evidence are not sufficient grounds for granting reconsideration.” Rule 26. Institutional Ratification With regard to the issue of institutional ratification, respondent alleges: Reconsideration is necessary in this matter for a number of reasons, but primarily because of the Board's failure to follow binding precedent from the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). The failure of a Board to follow binding precedent constitutes clear legal error. Avila-Ramirez v. Holder, 764 F.3d 717, 722 (7th Cir. 2014). Specifically, as is explained in more detail below, the Federal Circuit has plainly described the circumstances under which a Board may find that a government agency has ratified a contractual commitment.