ASBCA 63403

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) CJW Contractors, Inc. ) ASBCA No. 63228 ) Under Contract No. N40085-16-D-0300 ) APPEARANCES FOR THE APPELLANT: Douglas L. Patin, Esq. Erik M. Coon, Esq. Bradley Arant Boult Cummings LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Robyn L. Hamady, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD ON THE NAVY’S MOTION FOR RECONSIDERATION This appeal involves a dispute regarding the replacement of heating systems in Buildings 3, 4, and 5 at Naval Support Activity Mechanicsburg in Pennsylvania. CJW Contractors, Inc. (CJW) sought to recover costs associated with installing 52 new steel I beams to support hydronic piping in Building 5, alleging that it was permissible under the contract to use the building’s existing steel W and S roof beams as support for the pipes. On January 23, 2023, the Board issued a decision sustaining CJW’s appeal pursuant to Board Rules 11 and 12.3. CJW Contractors, Inc., ASBCA No. 63228, 23-1 BCA ¶ 38,272 (CJW I). In sustaining CJW’s appeal, the Board found that CJW’s interpretation of the contract’s specifications and drawings was reasonable and that the contract contained latent ambiguities to be construed against the Navy. Id. at 185,824-26. On February 22, 2023, the Navy filed a motion for reconsideration of the Board’s decision. We deny the Navy’s motion. DECISION Standard of Review Board Rule 20 allows either party to file a motion for reconsideration of a Board decision. In deciding on a motion for reconsideration, the Board will determine “whether there is newly discovered evidence or whether there were mistakes in the decision’s findings of fact, or errors of law.” ADT Constr. Grp., Inc. by Timothy S. Cory, ASBCA No. 55358, 14-1 BCA ¶ 35,508 at 174,041; see also CDM Constructors, Inc., ASBCA No. 60454 et al., 19-1 BCA 37,332 at 181,556 (citing Green Valley Co., ASBCA No. 61275, 18-1 BCA ¶ 37,044 at 180,329). Motions for reconsideration are “not the place to present arguments previously made and rejected,” Assist Consultants Inc., ASBCA Nos. 61525, 62090, 21-1 BCA ¶ 37,946 at 184,297, and “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) (citing Bluebonnet Sav. Bank, F.S.B. v. United States, 466 F.3d 1349, 1361 (Fed. Cir. 2006); Lamle v. Mattel, Inc., 394 F.3d 1355, 1359 n.1 (Fed. Cir. 2005)). Accordingly, the burden is on the moving party to present “a compelling reason why the Board should modify its decision.” Philips Lighting N. Am. Corp., ASBCA No. 61769 et al., 21-1 BCA ¶ 37,821 at 183,647. The Navy Has Failed to Present a Valid Basis for the Board to Modify its Original Decision In its motion for reconsideration, the Navy alleges that the Board erred in finding that CJW’s interpretation of the contract was reasonable primarily by rehashing legal positions already argued to the Board (gov’t mot. at 1). The Navy makes four contentions in support of reconsideration. First, the Navy argues that CJW’s interpretation was erroneous as a matter of law because it failed to consider the contract as a whole (gov’t mot. at 3-7; see also gov’t br. at 3-7). Second, the Navy contends that the contract unambiguously supports its own interpretation, and that if any ambiguities exist, they are patent and thus imposed a duty of inquiry on CJW (gov’t mot. at 9-11; see also gov’t br. at 8-11). Third, the Navy asserts that Federal Acquisition Regulation (FAR) 52.236-21, SPECIFICATIONS AND DRAWINGS FOR CONSTRUCTION (FEB 1997) and Defense Federal Acquisition Regulation Supplement (DFARS) 252.236-7001, CONTRACT DRAWINGS AND SPECIFCATIONS resolve any ambiguities in the contract in the Navy’s favor (gov’t mot. at 12; see also gov’t. br. at 11-12). Finally—in its only novel argument—the Navy mischaracterizes the Board’s analysis by claiming that the Board’s decision imposes a new requirement of contract interpretation that drawings cross-reference each other in order to be considered part of the contract (gov’t mot. at 8-9).