ASBCA 62295

DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Sauer Incorporated ) ASBCA No. 62295 ) Under Contract No. N69450-09-D-1277 ) APPEARANCES FOR THE APPELLANT: Lawrence M. Prosen, Esq. Benjamin L. Williams, Esq. Cozen O’Connor Washington, DC APPEARANCES FOR THE GOVERNMENT: Allison M. McDade, Esq. Navy Chief Trial Attorney David M. Ruddy, Esq. David M. Marquez, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE WOODROW ON THE GOVERNMENT’S MOTION FOR RECONSIDERATION The Department of the Navy (Navy or government) moves for reconsideration of the Board’s August 13, 2025, decision denying its motion for summary judgment. The Navy raises two issues for reconsideration: (1) that the Board erred in concluding that there was a genuine issue of material fact concerning the scope of the release between Sauer, Inc. (Sauer) and its subcontractor, Tri-State Painting, LLC (TSI); and (2) that the Board erred in concluding that the settlement agreement between Sauer and TSI creates a new liability and obligates Sauer to pursue recovery of its pass-through claims against the government in light of the United States Court of Appeals for the Federal Circuit’s affirmance of the United States Court of Federal Claims decision in George Hyman Constr. Co. v. United States, 30 Fed. Cl. 170 (1993), aff’d mem. 39 F.3d 1197 (Fed. Cir. 1994) 1. (Gov’t mot. at 1-2) The motion has been fully briefed, with Sauer filing an opposition on September 25, 2025, and the Navy filing a reply on September 29, 2025. Issuance of this decision was delayed due to a lapse in government appropriations. For the reasons stated below, the Navy’s motion for reconsideration is denied. 1 We note that the Federal Circuit’s decision affirming George Hyman was non-precedential, pursuant to Federal Circuit Local Rule 47.6.  DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. I. Standard for Reconsideration 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. Precision Standard, Inc., ASBCA No. 58135, 16-1 BCA ¶ 36,504 at 177,860. 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). The moving party must show a compelling reason why the Board should modify its decision. ADT Constr. Grp., Inc., ASBCA No. 55358, 14-1 BCA ¶ 35,508 at 174,041. II. Decision A. The Board Correctly Found a Genuine Issue of Material Fact Regarding Whether Change Order No. 10 Operated as a Valid Release The Navy speculates that the Board “relied on an erroneous belief that that the government was a party to the S.D. Georgia litigation” when the Board held that the Navy had failed to show the absence of a disputed material fact in this appeal (gov’t mot. at 4 (quoting Decision at 10 (“[I]n the S.D. Georgia litigation, the government was unable to prove the absence of a genuine issue of material fact as to whether Change Order No. 10 was ever agreed to by the parties.”)). The Navy is incorrect. The quoted sentence from page 10 of our Decision did reference the government by mistake, but the surrounding language makes clear that we were talking about the surety – the defendant in the Southern District of Georgia litigation. 2 Notably, the Navy does not, and cannot, challenge the Southern District of Georgia’s holding that there was “a clear and lively dispute about a material fact” regarding whether Sauer and TSI had mutually assented to Change Order No. 10. See Decision at 4. Next, the Navy argues that Sauer failed to submit a factual affidavit purporting to establish a disputed issue of material fact concerning the release in Change Order No. 10 (gov’t mot. at 4-5). This argument is without merit.