ASBCA 60933

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of - ) ) CDM Constructors Inc. ) ASBCA Nos. 62026, 62088, 62089 ) Under Contract No. W912PL-12-C-0022 ) APPEARANCES FOR THE APPELLANT: Bret S. Wacker, Esq. Emily J. Baldwin, Esq. Jeffrey M. Gallant, Esq. Clark Hill PLC Detroit, MI APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney John F. Bazan, Esq. Gilbert H. Chong, Esq. Brian M. Choc, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Los Angeles OPINION BY ADMINISTRATIVE JUDGE SWEET On December 3, 2020, appellant CDM Constructors, Inc. (CDM) moved for reconsideration (motion) of our decision on quantum in CDM Constructors, Inc., ASBCA No. 62026 et al., 20-1 BCA ¶ 37,721 (CDM II). In CDM Constructors, Inc., ASBCA No. 60454 et al., 18-1 BCA ¶ 37,190 at 181,013 (CDM I)—the entitlement decision—we held that, even though the Army Corps of Engineers had constructively changed the contract by imposing certain requirements related to evaporation ponds (EPs), the government did not constructively change the contract when it required CDM to include a standby EP. Moreover, as discussed in far greater detail in CDM II (with which we presume the reader is familiar), we held in CDM II that CDM had failed to prove quantum because it did not show that its revised 100 percent design— which CDM sought to use as a baseline with which to compare the contractual change—did not include a standby EP. Below, we find that the arguments CDM brings to this motion for reconsideration have been waived, and thus are not appropriate bases for reconsideration, because CDM did not raise those arguments in the initial quantum appeal. In any event, those arguments are meritless. Therefore, we deny the motion.  I. CDM Waived the Arguments that it Raises in its Motion, and Those Arguments are not Appropriate Bases for Reconsideration CDM waived the arguments that it raises in its motion, and thus those arguments are not appropriate bases for reconsideration. Motions for reconsideration are only appropriate if they are based upon newly discovered evidence, mistakes in the findings of fact, or errors of law. Green Valley Co., ASBCA No. 61275, 18-1 BCA ¶ 37,044 at 180,330. “Motions for reconsideration do not afford litigants the opportunity to take a ‘second bite at the apple’ or to advance arguments that properly should have been presented in an earlier proceeding.” Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014) (citations and quotations omitted). As a result, in our discretion, we may find that arguments not raised in an opening post-hearing brief have been waived. Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 800 (Fed. Cir. 1990). Here, while CDM’s motion for reconsideration is not entirely clear, we understand CDM’s primary arguments 1 to be that: (1) the Board should not rely upon the water balance analysis because it merely provided an estimate (mot. at 9-15); (2) we should pro-rate CDM’s costs (id. at 28-30); (3) the relevant design did not need the purported standby EP to prevent operational overflows (id. at 27-28); (4) the original operating scenario did not use the purported standby EP to prevent operational overflows, and merely diverted flow to the purported standby EP while cleaning an in-service EP (id. at 30-33); (5) under res judicata or the law of the case doctrine, CDM I precludes a finding that two months was a reasonable time to clean an EP (id. at 21-27); (6) the testimony of CDM’s quantum EP expert (William B. O’Neil) established that the alternative operating scenario showed that the relevant design included a standby EP (id. at 18-21, 33-37); (7) CDM’s request for equitable adjustment (REA) did not concede that the relevant design needed to use the purported standby EP to prevent operational overflows (id. at 37-39); and (8) our qualifying the Corps’s quantum expert (Antonia Ortiz) as an expert caused unfair surprise and undue prejudice (id. at 15-18). Because CDM already had the opportunity to—and properly should have—advanced those arguments earlier, CDM merely seeks a second bite at the apple.