U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS Appeal of Graphic Litho, Inc. Docket No. GPO BCA 17-85 September 30, 1988 MICHAEL F. DiMARIO, Administrative Law Judge ORDER DENYING APPELLANT'S MOTION FOR RECONSIDERATION Appellant has filed a timely Motion for Reconsideration of this Board's February.23, 1988, decision on the grounds that it: (1) Disagreed with this Board's finding of fact that the Hammermill Paper Company, Inc., 54" x 57" "South Shore White Wove" paper purchased by it for performance of the contract was a "common use" item of supply was incorrect; (2) Believed that this Board did not consider certain "evidence showing non-usability of the" paper in rendering its decision; and (3) Believed that the Board is mistaken in stating that "neither the Appellant nor its supplier paper mill will guarantee [the paper] to meet specified paper standards. Additionally, Appellant proffers three signed statements (which it styles as "sworn affidavits") to support its first two allegations. Respondent in turn has filed a timely Opposition on the grounds that "[t]he motion presents no evidence that was not considered by the Board, nor does it show that the Board ruled incorrectly on a question of fact or law. The motion has not raised an issue justifying reconsideration and seeks to do no more than re-argue the case." The Board agrees with Respondent and adopts its reasoning and conclusion as its own. Generally, Boards of Appeals, such as this, will not reopen an appeal record once it is settled. 1 Polerad Electronics Corp., ASBCA 20636, 79-1 BCA ¶ 13,777 (1979); see also Cal Constructors, ASBCA 21179, 78-1 BCA ¶ 12,992 (1977); Harold Benson, AGBCA 384, 77-1 BCA ¶ 12,490 (1972). However, on occasion they will exercise discretion and do so in order to receive significant newly-discovered evidence. Key, Inc. & Jones-Robertson, Inc., IBCA 690-12-67, 69-1 BCA ¶ 7,447 (1969 ), or non-newly discovered evidence, G . M . Co. Manufacturing, Inc., ASBCA 5345, 60-2 BCA ¶ 2,759 (1960), when it is clear that injustice will be done if the evidence is not considered. K-Square Corp., IBCA 959-3-72, 73-2 BCA ¶ 10,146 (1973); Turner Construction Co., GSBCA 3549, 75-1 BCA ¶ 11,106 (1975). A Board may also exercise such discretion in granting reconsideration where it is alleged that the Board erred in its legal conclusions, Pansophic Systems, Inc., GSBCA 4983, 78-2 BCA ¶ 13,390 (1978); or where it is claimed that the decision was founded in a legal theory which neither party had espoused. 1 See Nash, Ralph C., Jr. and John Cibinic, Jr., Federal Procurement Law, 3d ed., Vol. II, Chap. 30, Sec. 3, 2132, ¶ 7 et seq (Washington, DC 1980) from which this summary of law has been derived. Kaminer Construction Corp., ENGBCA 2833, 70-1 BCA ¶ 8,257 (1970). But, "[m]ere allegations in pleadings and briefs, or in statements in lieu of briefs, unsupported by probative evidence in the record, are insufficient basis for allowing a claim against the Government or for setting aside the decision of a Contracting Officer. Such allegations and statements lack evidentiary force or quality." Harold Benson, supra, at 60,539. Examining Appellant's Motion in light of this case law, we conclude that the reasons enunciated therein for this Board to exercise its discretion are inadequate and unpersuasive for the following reasons: First, Appellant's assertion that the bare designation of JCP E-30 paper as "Offset Map, Lithographic Finish" in the "Government's Paper Specification Standards" evidences that such paper "is not a common use item" because it indicates that the paper is intended for specific map use, is a conclusion of fact falling squarely within the category of being a "mere allegation . . . unsupported by probative evidence." It is simply illogical to conclude that the paper is not of "common use" solely because there is a specific designated use for it. Butter knives are clearly intended for specific use, but they are certainly "common use" items. Accordingly, it is the conclusion of this Board that Appellant's purported "evidence" is nonprobative respecting the question of whether or not the paper is of "common use." Additionally, it is the opinion of this Board that the dictionary definition of the word "common" quoted by Appellant (Motion at 3) is not inconsistent with, nor does it invalidate, a finding of fact that paper which is regularly manufactured and sold by product brand name is a "common use" item under the cited case law. The only probative evidence in the record respecting the question of "common use" was that furnished by the Hammermill Paper Company representative to the effect its South Shore White Wove paper was not a special order item. This Board, as the duly constituted finder of fact, found such evidence to be substantial and supportive of a finding that the paper was of common use. That finding is undisturbed by Appellant's present assertion. Second, Appellant's accusation that this Board did not consider certain "evidence showing non-usability of the subject paper stock" (numbered paragraph 2, Motion at 1) is without merit. The Board examined the cited statements and likewise found them to be "mere allegations . . . unsupported by probative evidence." There is simply no evidence in the record supporting (i.e., tending to prove) Appellant's assertion that "[b]y not using this paper for the job intended, Graphic Litho was stuck with 25,000 lbs. of paper made to special size for which it had no job. It is not too far off the mark to describe such stock as useless." (Motion at 1.) The same is true of Appellant's unsupported allegation that the mere readvertisement of the terminated job somehow rendered the retained paper "useless." Likewise, the cited portion of the GPO IG Report which is merely the speculative, idle, and inappropriate commentary of the investigator respecting the potential for argument by Appellant. Third, the three post-decision signed statements proffered by Appellant in numbered paragraphs 3, 4, and 5 of the Motion as proof of its contention that the purchased paper was not usable because of its unusual size, lack necessary jurats to validate them as affidavits and are composed of argument, opinion, and materials which were or should have been readily available for presentation to the Board before the original decision was rendered. Fourth, the Board's statement respecting the lack of willingness of Appellant or its supplier to guarantee the purchased paper cited by Appellant was not a finding of fact. It was merely a recitation of background information in the appeal file respecting events leading up to the Contracting Officer's decision to terminate the contract for the convenience of the Government. As such, the statement is of no importance to the issues presented by the appeal. The same is true respecting whether or not the purchased paper met specifications, since this Board's decision expressly found that such question had no bearing on entitlement under a convenience termination. Accordingly, Appellant's Motion for Reconsideration is denied. It is so ordered.