CBCA 5194-R

RECONSIDERATION DENIED: May 26, 2021 CBCA 5194-R, 5938-R SRM GROUP, INC., Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. G. Scott Walters of Smith, Currie & Hancock LLP, Atlanta, GA, counsel for Appellant. James C. Caine and Stephanie Kearney-Quilling, Office of Chief Counsel, Federal Law Enforcement Training Centers, Department of Homeland Security, Glynco, GA, counsel for Respondent. Before Board Judges SOMERS (Chair), HYATT, and LESTER. LESTER, Board Judge. After the Board issued its decision denying this appeal on March 11, 2021, appellant, SRM Corporation (SRM), filed a motion identifying three alleged significant errors that it believes warrant reconsideration of the decision. For the reasons set forth below, we deny SRM’s reconsideration request.1 1 When the Board issued its decision on March 11, 2021, Judge Jeri Kaylene Somers was the assigned presiding judge in this appeal. Although Judge Harold D. Lester, Jr., has been substituted as presiding judge since that decision was issued, the composition of the CBCA 5194-R, 5938-R 2 Reconsideration, which is discretionary with the Board, “need not be granted unless the [Board] finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Stobil Enterprise v. Department of Veterans Affairs, CBCA 5698-R, 20-1 BCA ¶ 37,521 (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). The party seeking reconsideration bears the burden of establishing that the Board’s decision contains substantive errors that are substantial enough to warrant relief. CH2M-WG Idaho, LLC v. Department of Energy, CBCA 6147-R, 19-1 BCA ¶ 37,408. We address the three grounds for SRM’s reconsideration request below: 1. SRM argues that reconsideration is warranted because “the Board erroneously found that Contract Modifications P00016 and P00043 were bilateral and negotiated to resolution between the parties.” Appellant’s Motion at 2. SRM is correct that, in an introductory paragraph on the first page of the March 11 decision, the Board incorrectly referred to modifications 16 and 43 as “bilateral” when they actually were issued by the contracting officer unilaterally. As SRM recognizes in its motion, however, when the Board provided detail in the decision about modifications 16 and 43, it explained that, although the contracting officer originally prepared them as bilateral modifications (believing that SRM was going to sign them), she ultimately issued them unilaterally after SRM declined to sign. SRM Corp. v. Department of Homeland Security, CBCA 5194, et al., slip op. at 2-3 (Mar. 11, 2021). The inadvertent error on the first page of the decision did not affect the Board’s understanding of the facts of this case. Further, the result in this appeal did not in any way depend upon whether modifications 16 and 43 were unilateral or bilateral: DHS did not argue an accord and satisfaction, and the Board did not find or rely in its decision upon accord and satisfaction, rendering any misdescription of the modifications irrelevant to the ultimate result. “Reconsideration is not warranted when the result would not change.” Control Data Corp. v. Department of the Navy, GSBCA 11376-P-R, 92-1 BCA ¶ 24,739.2 panel has not changed. The same three-judge panel involved in the March 11 decision is considering and deciding SRM’s reconsideration motion. See ICF Severn, Inc. v. National Aeronautics & Space Administration, GSBCA 11552-C-R(11334-P), 94-3 BCA ¶ 27,162 (precluding changes in the composition of the panel on reconsideration). 2 SRM also cites as error our reliance on expert witness testimony that referenced bilateral modifications, asserting that, since modifications 16 and 43 were unilateral rather than bilateral, the expert witness testimony was in error and unreliable. Yet, the cited expert witness testimony did not relate to modifications 16 and 43, but to other modifications that were, in fact, bilateral. The record does not support SRM’s effort to tie all discussion about modifications to the two unilateral modifications upon which it now wishes to focus. CBCA 5194-R, 5938-R 3 2.