CBCA 6031-R

RECONSIDERATION DENIED: April 4, 2019 CBCA 6031-R WOOLERY TIMBER MANAGEMENT INC., Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Charlotte Woolery, President of Woolery Timber Management Inc., Tuolumne, CA, appearing for Appellant. John Eichhorst, Office of the General Counsel, Department of Agriculture, San Francisco, CA, counsel for Respondent. LESTER, Board Judge. On January 31, 2019, the Board issued its decision in this appeal, awarding appellant, Woolery Timber Management Inc. (WTM), $4008.32 in costs associated with a blocked access road to the project site, plus interest pursuant to the Contract Disputes Act (CDA), 41 U.S.C. § 7109(a) (2012), but denying the remainder of WTM’s $86,674.04 claim. See Woolery Timber Management Inc. v. Department of Agriculture, CBCA 6031, 19-1 BCA ¶ 37,245, at 181,293. Respondent, the United States Forest Service (USFS), acting through the Department of Agriculture, seeks reconsideration of the damages award to WTM, arguing that the Board’s findings of fact were incorrect and asking that we award WTM no damages. In our prior decision, we found “it more likely than not, based upon a preponderance of the evidence, that WTM had been relying on a service road for access to the portion of the CBCA 6031-R 2 project area that it was working, that the area was accidentally blocked, and that WTM lost thirty-two hours of work time having to take an alternative route to that project area.” Woolery Timber Management, 19-1 BCA at 181,293. We based that finding upon significant evidence in the record, contemporaneous with the events in question, showing that WTM’s vice president and project manager, Ed Woolery, was complaining to the USFS about blocked road access during this period of time. We also indicated that the contracting officer’s representative (COR) did not actually go to the disputed area to check access during that time. On reconsideration, the USFS provides a declaration from the COR indicating that the latter finding is incorrect. Discussion This appeal is proceeding under the small claims procedure set forth in Board Rule 52, 48 CFR 6101.52 (2018). Although Rule 52(c) provides that the Board’s decision in a small claims procedure case “is final and conclusive [and] shall not be set aside except for fraud,” nothing in our rules expressly precludes a party from seeking reconsideration of a decision in such a case, and the Board has routinely entertained reconsideration requests in such cases. See, e.g., Native American Construction Services, LLC v. Department of the Interior, CBCA 5232-R, 16-1 BCA ¶ 36,542, at 178,021; G2G, LLC v. Department of Commerce, CBCA 4845-R, 15-1 BCA ¶ 36,163, at 176,471; Michael C. Lam v. General Services Administration, CBCA 1213-R, 09-1 BCA ¶ 34,105, at 168,643. Accordingly, the USFS’s reconsideration, timely filed under Board Rule 26(b) within thirty days following the USFS’s receipt of the January 31 decision, is properly before us. Because the case was originally decided by a single judge under the Board’s small claims procedure, the same single judge similarly will decide the reconsideration motion. Michael C. Lam, 09-1 BCA at 168,644. On the merits of the USFS’s reconsideration request, we generally do not accept new evidence—in this case, a post-hearing declaration supplementing the prior hearing testimony of a fact witness—that was or could with due diligence have been reasonably available to the party during the prior hearing. Meredith Relocation Corp., GSBCA 9124, et al., 90-3 BCA ¶ 23,129, at 116,124. The declaration is submitted to convince us that, contrary to our factual finding, the COR actually visited the section of the project site where WTM alleges its road access was blocked and that the COR could find no such road, much less blockage. Most statements contained in that declaration repeat the COR’s hearing testimony, and anything new could have been presented at the hearing. Accordingly, the COR’s declaration is not “new” under the standard for accepting evidence on reconsideration. Even considering the declaration, though, it does not change the result of the blocked access road issue. We do not doubt the integrity of the COR or his efforts to work with WTM to obtain proper mastication work under the contract at issue. The contemporaneous CBCA 6031-R 3 documentary evidence is clear that, back in the spring of 2017, Mr.