U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
WASHINGTON, D.C. 20401
In the Matter of )
)
The Appeal of )
)
UNIVEX INTERNATIONAL ) Docket No. GPO BCA 23-90
Jacket No. 606-648 )
Purchase Order B-9708 )
DECISION ON MOTION FOR RECONSIDERATION AND ORDER
On July 31, 1995, the Board issued its Decision and Order in the
above-captioned appeal of Univex International (Appellant or
Contractor), upholding the Contracting Officer's default
termination of the contract for a failure to timely deliver an
acceptable product, and rejecting the Appellant's defenses that:
(1) the default was procedurally defective; and (2) the
Respondent breached its implied duty to cooperate with the
Contractor in the performance of the contract. Univex
International, GPO BCA 23-90 (July 31, 1995), slip. op. at 24,
31, 36, 1995 WL 488438. See GPO Contract Terms, Solicitation
Provisions, Supplemental Specifications, and Contract Clauses,
GPO Publication 310.2, effective December 1, 1987 (Rev. 9-88), ¶
20(a)(1)(i) (Default). However, the Board was unable to rule on
the U.S. Government Printing Office's (Respondent or GPO or
Government) claim against the Contractor for excess reprocurement
costs because there was nothing in the record to show that the
question was ripe for consideration; i.e., there was no evidence
that such costs had been assessed. Univex International, supra,
slip. op. at 34. Therefore, the Board remanded the appeal to the
Contracting Officer for the submission of additional evidence on
that question, including, inter alia, proof that such costs were
assessed against the Appellant.1 Univex International, supra,
slip. op. at 35, 36. Accord Marmac Industries, Inc., ASBCA Nos.
23590, 24029, 24502, 24503, 84-1 BCA ¶ 17,098, at 85,108.
The Appellant received a copy of the Board's Decision and Order
on August 7, 1995. Thereafter, on September 6, 1995, Counsel for
Appellant submitted a timely Motion for Reconsideration (Motion)
to the Board, asking it to: (1) review its default termination
rulings; (2) reverse its decision reopening the record to allow
GPO to submit proof of assessment of excess reprocurement costs;
or, in the alternative, (3) if the record is reopened, grant the
Appellant an opportunity to provide additional evidence with
respect to the default issues. Motion, pp. 3, 5. See, GPO
Instruction 110.12, Subject: Board of Contract Appeals Rules of
Practice and Procedure, dated September 17, 1984, Rule 29 (Board
Rules). On September 15, 1995, Counsel for GPO filed the
Respondent's Opposition to Appellant's Motion for Reconsideration
(Opposition) with the Board, essentially arguing that the Motion
presents no factual or legal justification for reconsideration in
this case. Opposition, pp. 2-3. For the reasons which follow,
the Motion is DENIED.
DISCUSSION AND OPINION
In this forum, motions for reconsideration are governed by Rule
29 of the Board Rules, which provides:
A motion for reconsideration, if filed by either party, shall set
forth specifically the ground or grounds relied upon to sustain
the motion, and shall be filed within 30 days from the date of
the receipt of a copy of the decision of the Board by the party
filing the motion.
By its terms, Rule 29, apart from establishing precise time
limits for filing the appropriate motion, only gives general
guidance for parties seeking reconsideration. See Sterling
Printing, Inc., GPO BCA 20-89 (July 5, 1994), Decision on Motion
for Reconsideration and Order, slip op. at 2, 1994 WL 377592
(hereinafter Sterling). However, in Graphic Litho, Inc., the
Board set forth the standards which it would apply to such
motions:
Generally, Boards of Appeals, such as this, will not reopen an
appeal record once it is settled. [Footnote omitted.] Polerad
Electronics Corp., ASBCA [No.] 20636, 79-1 BCA ¶ 13,777[.] [See
also,] Cal Constructors, ASBCA [No.] 21179, 78-1 BCA ¶ 12,992;
Harold Benson, AGBCA [No.] 384, 77-1 BCA ¶ 12,490. However, on
occasion they will exercise discretion and do so in order to
receive significant newly-discovered evidence[,] Key, Inc. &
Jones-Robertson, Inc., IBCA [No.] 690-12-67, 69-1 BCA ¶ 7,447, or
non-newly discovered evidence, G.M. Co. Manufacturing, Inc.,
ASBCA [No.] 5345, 60-2 BCA ¶ 2,759, when it is clear that
injustice will be done if the evidence is not considered. K-
Square Corp., IBCA [No.] 959-3-72, 73-2 BCA ¶ 10,146; Turner
Construction Co., GSBCA [No.] 3549, 75-1 ¶ 11,106.
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 [No.] 4983,
78-2 BCA ¶ 13,390; or where it is claimed that the decision was
founded in a legal theory which neither party had espoused.
Kaminer Construction Corp., ENGBCA [No.] 2833, 70-1 BCA ¶ 8,257.
See Graphic Litho, Inc., GPO BCA 17-85 (September 30, 1988),
Order Denying Appellant's Motion for Reconsideration, slip op. at
2-3. See also Sterling, supra, slip op. at 2-3.
As indicated in Graphic Litho, Inc., the traditional grounds for
reconsideration are: (1) newly discovered evidence, or evidence
which was unavailable at the time of the initial proceeding; or
(2) error or oversight in the contract appeals board's findings
of fact or conclusions of law. Accord Old Dominion Security,
Inc., GSBCA No. 8563-R, 88-3 BCA ¶ 21,072; Chrysler Corp.,
NASABCA No. 1075-10, 77-2 BCA ¶ 12,829; Winsco Instruments &
Controls Co., NASABCA No. 1065-40, 67-2 BCA ¶ 6,644. See also
FED. R. CIV. P. 60(b). For the purposes of reconsideration,
"newly discovered evidence" is defined as evidence of facts
existing at the time of the original proceeding of which the
party was excusably ignorant, and which could not, by the
exercise of due diligence, have been discovered in time to
present in the original proceeding. See Yachts America, Inc. v.
United States, 779 F.2d 656, 662 (Fed. Cir. 1985); Warner v.
Transamerica Insurance Co., 739 F.2d 1347, 1353 (8th Cir. 1984);
United States v. Walus, 616 F.2d 283, 287-88 (7th Cir. 1980).
See also Danac, Inc., ASBCA No. 33394, 94-1 BCA ¶ 26,286, at
130,759; M.C. & D. Capital Corp., ASBCA No. 38181, 93-2 BCA ¶
25,894, at 128,802; Sunshine Cordage Corp., ASBCA No. 38904, 90-1
BCA ¶ 22,572, at 113,277; Dae Lim Industries Co., ASBCA No.
28416, 87-3 BCA ¶ 20,110. Also, newly discovered proof must not
be merely cumulative and must be of such a material nature as
will probably change the outcome or produce a different result.
See Yachts America, Inc. v. United States, supra, 779 F.2d at
662; Warner v. Transamerica Insurance Co., supra, 739 F.2d at
1353; United States v. 41 Cases, More or Less, 420 F.2d 1126,
1132 (5th Cir. 1970). See also Danac, Inc., supra, 94-1 BCA ¶
26,286, at 130,759; Sunshine Cordage Corp., supra, 90-1 BCA ¶
22,572, at 113,277; Finast Metal Products, Inc., ASBCA No. 19860,
85-1 BCA ¶ 17,873 at 89,518. The same requirements regarding
materiality and a difference of result also apply to alleged
errors or oversights of findings of fact and conclusions of law.2
See e.g., Camel Manufacturing Co., ASBCA No. 41231, 91-2 BCA ¶
23,908; Optimal Data Corp., NASABCA No. 381-2, 85-2 BCA ¶ 18,165.
In the final analysis, reconsideration is discretionary with the
Board, and will not be granted in the absence of specific and
compelling reasons. See Sterling, supra, slip op. at 4-5 (citing
Christie-Willamette, NASABCA No. 1182-16, 89-2 BCA ¶ 21,659;
Carolina Maintenance, ASBCA No. 25891, 88-1 BCA ¶ 20,388; Ken
Rogge Lumber Co., ASBCA No. 84-145-3, 84-3 BCA ¶ 17,570; Ronald
C. Skillens d/b/a Skillens Enterprises, GSBCA No. 4625, 77-2 BCA
¶ 12,634). Indeed, we agree with the view expressed by the
General Services Board of Contract Appeals, when it said:
Reconsideration is, . . . , strongly disfavored; it will not be
granted "on the basis of arguments already made and
reinterpretations of old evidence." Atlas Construction Co.,
GSBCA 7903-R et al., (Sept. 18, 1990); Input Output Computer
Services, Inc., GSBCA 8453-C-R (7090) et al., 88-3 BCA ¶ 20,851
(1988). See also Rocky Mountain Trading Co., GSBCA 10404-C-
R(10210-P), 92-1 BCA ¶ 24,261, 1991 BPD ¶ 171. To warrant
reconsideration, the "moving party must make a satisfactory
showing that it is appropriate for the Board to revisit the
matter." Government Technology Services, Inc., GSBCA 10389-P-R,
90-2 BCA ¶ 22,913, 1990 BPD ¶ 75.
See Zinger Construction Co., Inc., GSBCA No. 11039-R, 92-3 BCA ¶
25,039, at 124,814.
Applying these principles to the Motion, the Board concludes that
the Appellant has presented no grounds which would warrant
reconsideration of the Board's Decision and Order.
In its Motion, the Appellant advances six reasons why the Board
should reconsider its Decision and Order. Specifically, the
Contractor alleges that:
1. The Board failed to give the proper weight to the GPO's
refusal to direct or assist the contractor in obtaining the
rejected products, portions of which (covers and tab dividers)
were needed to perform.
2. The Board relied exclusively on the reprint delivery date
fixed by the Contracting Officer, without recognizing that the
Appellant might not be able to meet the date, or that the date
was unreasonable, given the original schedule.
3. The Board disregarded the fact that as of the time of
termination, the Appellant was attempting to get the rejected
product needed to correct the defect.
4. The Board erred in allowing the GPO to meet its burden of
proof regarding assessment of reprocurement costs after the
record was closed.
5. If the record is reopened to allow GPO to submit additional
evidence, the Appellant should be permitted to provide additional
evidence to meet its burden of proof regarding its efforts to
perform and the government's prevention of performance.
6. The Board erred in failing to find that Appellant was not
required to remanufacture ring binders, covers and tab dividers
which were acceptable, where only certain text pages needed [to
be] replaced, but that the Appellant was only required to correct
and replace the product with one that met specifications, and
that the government breached its implied duty to cooperate by
failing to even allow Appellant to pick up the initial order.
With the exception of grounds 4 and 5, discussed infra, the
arguments raised by the Appellant in the Motion amount to nothing
more than a different interpretation of the record evidence.
There is nothing in Appellant's reasons 1, 2, 3 and 6 which can
be said to be "newly discovered evidence" within the meaning of
the reconsideration rules. See Yachts America, Inc. v. United
States, supra, 779 F.2d at 662; Warner v. Transamerica Insurance
Co., supra, 739 F.2d at 1353; Danac, Inc., supra, 94-1 BCA at
130,759; M.C. & D. Capital Corp., supra, 93-2 BCA at 128,802;
Sunshine Cordage Corp., supra, 90-1 BCA at 113,277. Taken as a
whole, grounds 1, 2, 3 and 6 simply reflect the Contractor's
contrary view of the evidence on which the Board based its
findings that the default was not procedurally defective, and
that the Respondent had not breached its implied duty to
cooperate with the Contractor in the performance of the contract
under the circumstances of this case. Stated otherwise, all four
arguments merely reflect the Appellant's own opinion regarding
the proper evaluation of the evidence of record in the case.
However, under the Board Rules, the Board is the ultimate arbiter
regarding the weight of the evidence in any matter before it.
See Board Rules, Rule 13(c) ("The weight to be attached to any
evidence of record will rest within the sound discretion of the
Board. . .".), and 20 (". . . The weight to be attached to
evidence presented in any particular form will be within the
discretion of the Board, taking into consideration all of the
circumstances of the particular case. . . ".). Accordingly,
Appellant's reasons 1, 2, 3, and 6 are without merit, and not a
basis for granting reconsideration. See Sterling, supra, slip
op. at 16. Accord J.W. Bateson Co., Inc., VABCA No. 3460R, 93-3
BCA ¶ 26,118; Luther Benjamin Construction Co., ASBCA Nos. 40401,
40606, 93-3 BCA ¶ 25,918; Engineering Technology Consultants,
S.A., ASBCA No. 43660, 93-1 BCA ¶ 25,507; Mercers Autos, GSBCA
No. 9323-R, 91-1 BCA ¶ 23,392 (1990); Blake Construction Co.,
GSBCA No. 8376-R, 90-1 BCA ¶ 22,408.
Grounds 4 and 5 relate to the Board's determination that the
issue concerning excess reprocurement costs was not ripe for
consideration under the record before it, and therefore the
matter should be remanded to the Contracting Officer for the
submission of further evidence on that question. See Univex
International, supra, slip op. at 33-35 (citing Sterling, supra,
slip op. at 48). The Contractor says: (1) the Board's remand
order violated the well-settled rule against acceptance of
evidence after the record is settled; and (2) any remand should
be equally available to the Appellant for the purpose of
providing additional proof on its efforts to perform and on the
Government's breach of its implied duty to cooperate. The Board
disagrees.
As the Appellant correctly states, the settled rule is that,
absent unusual circumstances, evidence proffered for admission
after the record has been settled is generally not be accepted.
See Goetz Demolition Co., ASBCA Nos. 40605, 41346, 93-2 BCA ¶
25,886; Sunshine Cordage Corp., supra, 90-1 BCA ¶ 22,572; Scalf
Engineering Co. & Pike County Construction Co., a Joint Venture,
IBCA No. 2328, 89-3 BCA ¶ 21,950, reconsid. denied 89-3 BCA ¶
22,221 (hereinafter Scalf); USD Technologies, Inc., ASBCA No.
31305, 87-2 BCA ¶ 19,680, aff'd 845 F.2d 1033 (Fed. Cir. 1988);
Jim Davis, AGBCA Nos. 86-103-1, 86-104-1, 86-1 BCA ¶ 18,634 (the
rule applies equally to an appeal without a hearing); Sequal,
Inc., ASBCA No. 29119, 85-3 BCA ¶ 18,366. The reason for the
rule is clear-it promotes finality of litigation by precluding a
party who poorly tried its case in the beginning from using the
motion for reconsideration to rectify the situation; e.g., by
presenting evidence it possessed at the time of the initial
hearing, but which it failed to introduce when it had a chance.
One contract appeals board explained, in pertinent part:
. . . [T]he criteria upon which a decision to admit evidence,
newly discovered or not, have been clearly established by this
Board and the Courts. Specifically, we have traditionally denied
motions for reconsideration which do not allege newly discovered
evidence, and have held that a motion for reconsideration is not
a proper vehicle for correcting procedural errors or omissions by
a party in the presentation of his case. COAC, INC., IBCA No.
1004-9-73 (Feb. 19, 1975), 75-1 BCA [¶] 11,104; South Portland
Engineering Company, IBCA-771-4-69 (Jan. 29, 1970), 70-1 BCA [¶]
8092. As we stated in COAC, supra "even if we were to abandon
the rule concerning newly discovered evidence, the losing party
should not lightly be given a second opportunity to try his
case."
It is this latter theme that underlies the current thinking in
the Courts as to whether a party be allowed to reopen the record
to present additional evidence. In 1776 K Street Associates v.
United States, 221 Ct.Cl. 256 (1979), the Court of Claims held
that "a party who submits a case on incomplete or inaccurate
testimony [evidence] cannot, reopen [the case] with new evidence
unless he convinces the court that the defects in the previous
testimony [or evidence], were present without his fault or
negligence." Supra at 262.
See Scalf, supra, 89-3 BCA at 111,741. [Emphasis added.] In a
nutshell, this well-established principle is really nothing more
than a judicial proscription against a party having "two bites at
the apple." See Goetz Demolition Co., supra, 93-2 BCA at
128,768.
The Board Rules specifically incorporate this precept. In that
regard, Rule 13(b) states:
Except as this Board may otherwise order in its discretion, no
proof shall be received in evidence after completion of an oral
hearing, nor in cases submitted on the record will proof be
received after notification by the Board that the case is ready
for decision.
Furthermore, the Board has applied the principle in appropriate
circumstances. See Professional Printing of Kansas, Inc., GPO
BCA 02-93 (May 19, 1995), slip op. at 29, fn. 43, 1995 WL 488488;
Sterling, supra, slip. op. at 12. However, by its terms, the
rule operates only against a party who wishes to introduce
additional evidence, and the Board is not a party to the
litigation. See Sterling, supra, slip. op. at 6 (citing Zinger
Construction Co., Inc., supra, 92-3 BCA at 124,815). Stated
otherwise, while a party may be foreclosed from presenting pre-
existing evidence after the record is closed, there is nothing in
the principle which would, directly or by implication,
circumscribe or deny the Board's inherent power to reopen the
record on its own. Indeed, when the Board remanded the matter to
the Respondent for submission of additional evidence on the issue
of excess reprocurement costs, it was simply following a course
already laid out by the Armed Services Board of Contract
Appeals.3 See Marmac Industries, Inc., supra, 84-1 BCA at
85,108. Moreover, it should be obvious that in exercising its
discretion pursuant to Rule 13(b), the Board may reopen the
record altogether, as the Appellant requests, or only for a
limited purpose, as it has done here. Accordingly, grounds 4 and
5 of the Motion fail to establish any error on the part of the
Board which would justify a reversal of its opinion. See
Sterling, supra, slip op. at 5-6; Graphic Litho, Inc., supra,
slip. op. at 4-5. See also Castillo Printing Co., GPO BCA 10-90
(March 30, 1992), Decision on Motion for Reconsideration and
Order, slip. op. at 7; Pennsylvania Printed Products, Inc., GPO
BCA 29-87 (June 7, 1990), Order Denying Respondent's Motion for
Reconsideration, slip op. at 2-3. At best, the Appellant is
merely expressing its disagreement with the Board's decision, and
that is not a sufficient basis for granting reconsideration. See
Sterling, supra, slip op. at 16. Accord J.W. Bateson Co., Inc.,
supra; Luther Benjamin Construction Co., supra; Blake
Construction Co., supra. Therefore, the Motion is DENIED.
Finally, as previously noted the Respondent complied with the
Board's remand order on August 29, 1995, by submitting the
additional evidence related to the question of excess
reprocurement costs, including proof of assessment.4 The Motion
was filed by the Appellant on September 6, 1995. The Board
believes that the eight (8) days between these two filings was
inadequate for the Contractor to marshall any arguments it may
have regarding the excess cost issue, particularly since that
time period included the Labor Day holiday. Therefore, even
though the Board has denied the Motion, it believes that
fundamental notions of justice and fair play dictate that the
Appellant should be afforded an opportunity to review and respond
to the Government's evidence concerning excess costs. See Board
Rules, Preface to Rules, ¶ VI.C. (Administration and
Interpretation of Rules). Accordingly, the Board will allow the
Appellant an additional thirty (30) days from the date it
receives this Order to submit any evidence or arguments it may
have on the question of excess reprocurement costs only. Any
Government reply must be filed with the Board within fifteen (15)
days after receiving the Contractor's submission. Copies of each
filing should be simultaneously served on the other party. Board
Rules, Rule 16. Thereafter, the Board will review the material
submitted by both parties and issue a supplemental decision
resolving their dispute over excess reprocurement costs.
ORDER
For all of the foregoing reasons, the Board finds and concludes
that the Appellant has presented no grounds which would warrant
reconsideration of the Board's decision in this case.
ACCORDINGLY, the Motion is DENIED. HOWEVER, the Contractor is
hereby ALLOWED thirty (30) days from the date it receives this
Order to submit any evidence and arguments regarding, and
strictly limited to, the question of excess reprocurement costs.
FURTHERMORE, the Respondent is hereby ALLOWED fifteen (15) days
from the date it receives the Appellant's submission to file its
reply with the Board.
It is so Ordered.
February 7, 1996 STUART M. FOSS
Administrative Judge
_______________
1 By Notice of Filing, dated August 29, 1995, the Respondent
complied with the Board's Order. The Government's evidence
consisted of declarations from the Contracting Officer
Annamarie T. Mierson, Assistant Manager of GPO's
Philadelphia Regional Printing Procurement Office, and the
Chief, Examination and Billing Branch, Phillip Jones, within
the Respondent's Procurement Accounting Division, Financial
Management Services, as well as relevant documents, which
were attached.
2 Where such legal grounds can be shown, the Board is not
shy about reversing itself. See e.g., R.C. Swanson Printing
and Typesetting Co., GPO BCA 15-90 (December 20, 1993),
Decision on Motion for Reconsideration and Order, 1993 WL
668317 (the Board overturned its initial decision declaring
the contractor, who was party to a "requirements" contract,
was entitled to convenience termination costs based on the
estimated contract price over its term, when the Government
showed that the contract in question was a multiple-award
contract, and as such was not a "requirements" contracts, as
that term is understood in procurement law. Citing Media
Press, Inc. v. United States, 215 Ct. Cl. 985, 986 (1977)).
3 Because the remand was based on ripeness rather than a
failure of proof on the merits, the Board supposes that
another alternative might have been to dismiss the
Government's claim without prejudice, and allow the matter
to be raised by the contractor in a separate proceeding once
ripeness was established. Cf. Shepard Printing, GPO BCA
37-92 (January 28, 1994), slip. op. 32, 1994 WL 275077. In
contrast to a Fulford situation, see Fulford Manufacturing
Co., ASBCA Nos. 2143, 2144 (May 20, 1955), 6 CCF ¶ 61,815
(CCH), the Board's holding regarding the default would have
been res judicata in a second proceeding. Cf. Southwest
Marine, Inc., DOT BCA 1891, 96-1 BCA ¶ 27,985, at 139,781
(the main thrust of the so-called "Fulford" Doctrine, which
allows a contractor to await the assessment of excess
reprocurement costs before challenging a default termination
and constitutes an exception to the 90-day filing rule for
appeals from final decisions of Government contracting
officers, is directed at eliminating needless litigation and
furthering the objective of judicial economy). See also
Z.A.N. Co. v. United States, 6 Cl. Ct. 70 (1984); D. Moody &
Co. v. United States, 5 Cl. Ct. 70 (1984) Bullock
International, Inc., ASBCA No. 44210, 93-2 BCA ¶ 25,692;
Primepack Co., GSBCA No. 10514, 90-3 BCA ¶ 23,280; Tom Warr,
IBCA No. 2360, 88-1 BCA ¶ 20,231. Certainly, since the
assessment of excess reprocurement costs is considered a
Government claim, see K.C. Printing Co., GPO BCA 02-91
(February 22, 1995), slip op. at 18, 1995 WL 488531;
Sterling Printing, Inc., GPO BCA 20-89 (March 28, 1994),
slip. op. 50-51, 1994 WL 275104. See also Cascade Pacific
International v. United States, supra, 773 F.2d 287 (Fed.
Cir. 1985); John L. Hartsoe, AGBCA No. 88-116-1, 93-2 BCA ¶
25,614; American Technology Resources, ASBCA No. 38232, 89-3
BCA ¶ 22,239; The Flooring Co., GSBCA No. 8297, 89-3 BCA ¶
22,167; Scalf, supra, the statute of limitations would not
have posed a problem because the Government has six (6)
years from the date on which the cause of action accrued to
bring claims against its suppliers, see B & B Reproduction,
GPO BCA 9-89 (June 30, 1994), slip op. at 17, fn. 19, 1994
WL 488447 (citing 28 U.S.C. § 2415 (1988)), and if the
method of recovery is administrative offset the limitations
period is extended to ten (10) years, id (citing 31 U.S.C. §
3716(c)(1) (1988); 28 U.S.C. § 2415(i) (1988)). However, in
the Board's view, such a dismissal would have needlessly
bifurcated this case without contributing to the "just and
inexpensive determination of appeals without unnecessary
delay," see Board Rules, Preface to Rules, ¶ VI.C.
(Administration and Interpretation of Rules), and would have
served no other purpose than to promote form over substance,
cf. Universal Printing Co., GPO BCA 09-90 (June 22, 1994),
slip op. at 21-22, fn. 20 1994 WL 377586 (citing P.X.
Engineering Co., ASBCA No. 38215, 89-2 BCA ¶ 21,859). The
Board declined to participate in such an unnecessary,
delaying and expensive "charade."
4 See note 1 supra.