CBCA 4594(3048)-REM-R

MOTION FOR RECONSIDERATION DENIED: January 14, 2016 CBCA 4594(3048)-REM-R RELIABLE CONTRACTING GROUP, LLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Reginald A. Williamson and William E. Dorris of Kilpatrick Townsend & Stockton LLP, Atlanta, GA; and Gregory C. Thomas, General Counsel of Fisk Electric Company, Houston, TX, counsel for Appellant. Benjamin Diliberto and Charlma Quarles, Office of General Counsel, Department of Veterans Affairs, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), HYATT, and SHERIDAN. SHERIDAN, Board Judge. Appellant has filed a motion for reconsideration of the Board’s decision in Reliable Contracting Group, LLC v. Department of Veterans Affairs, CBCA 4594(3048)-REM, 15-1 BCA ¶ 36,114. Familiarity with that decision is presumed. For the reasons below, we deny the motion. Background This appeal arose from a claim in which Reliable Contracting Group, LLC (Reliable) sought additional costs for the Department of Veterans Affairs’ (VA’s) alleged rejection of back-up emergency generators provided for a project at the VA medical center in Miami, CBCA 4594(3048)-REM-R 2 Florida. The parties in this appeal elected, pursuant to Rule 19 of the Board’s Rules of Procedure, to submit the case for decision on the written record without a hearing. 48 CFR 6101.19 (2013). The Board concluded that the generators, which had been in storage for four years, could not be factory-tested and did not meet the requirement of being “new.” We also found that at the time the units were delivered, and the VA questioned whether the generators were in compliance with the applicable contractual requirements, neither Reliable nor its electrical subcontractor, Fisk Electric Company (Fisk), characterized the generators as “new” or asserted that the units met the specification in response to the VA’s specific request for confirmation that this was the case. Reliable Contracting Group, LLC v. Department of Veterans Affairs, CBCA 3048, 14-1 BCA ¶ 35,475 (2013). Reliable appealed that decision. The United States Court of Appeals for the Federal Circuit, in Reliable Contracting Group, LLC v. Department of Veterans Affairs, 779 F.3d 1329, 1334 (Fed. Cir. 2015), held that Reliable was required to install “new” generators and stated that this term meant that the generators were to be in “fresh condition,” “not . . . used,” and “free of significant damage, i.e., damage that was not cosmetic.” The Court vacated the Board’s decision and remanded the appeal to the Board with instructions “to determine whether the damage to the generators during the four-year period between the original manufacture and the date of delivery to the VA site was significant enough to render the generators not ‘new.’” Id. at 1335. Following the remand, the Board issued another decision denying Reliable’s claim, concluding, among other things, that there was insufficient evidence in the written record to make a finding that the generators were “new” when they were delivered to the VA site and that when the VA asked Reliable about the generators, both Reliable and Fisk characterized the generators as unacceptable, were either unwilling or unable to represent the generators as “new,” abandoned the generators shortly after delivery, and only began arguing that the generators should have been accepted approximately three years later when Reliable filed its claim. Reliable, 15-1 BCA at 176,308-10. After the issuance of the decision Reliable filed this motion. In the motion Reliable reveals that after the remand, but prior to the Board issuing its decision, the parties engaged in settlement negotiations. As a culmination of these settlement negotiations, on September 15, 2015, the parties reached an agreed settlement amount of “$550,000 ‘all in’ from Reliable’s claimed quantum of $1,138,662.95, plus CDA [Contract Disputes Act] interest . . . shook hands on the deal, and committed to getting the paperwork finalized as soon as possible.” Appellant’s Motion ¶¶ 10, 11. CBCA 4594(3048)-REM-R 3 On September 16, 2015, respondent’s counsel sent appellant’s counsel a draft settlement agreement. Appellant’s Motion ¶ 12. Over the next ten days respondent’s counsel reviewed the draft settlement agreement with Fisk’s counsel and prepared a draft joint motion for judgment on stipulation of settlement.