Nauset Construction Corporation ( 2022 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of - )
)
Nauset Construction Corporation ) ASBCA Nos. 61673, 61674, 61675
)
Under Contract No. W912SV-13-C-0007 )
APPEARANCES FOR THE APPELLANT: John J. McNamara, Esq.
Elise M. Kuehn, Esq.
Lane McNamara LLP
Southborough, MA
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq.
Army Chief Trial Attorney
CPT Philip L. Aubart, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE YOUNG
ON APPELLANT’S MOTION FOR RECONSIDERATION
On May 5, 2021, we issued a decision on the government’s motion to dismiss for
lack of jurisdiction, denying the challenge to our jurisdiction on grounds that the claims
involved fraud, and granting the motion to dismiss the termination for default on grounds
that it was untimely filed with the Board. On May 26, the appellant filed a motion for
reconsideration, and on June 25, the government filed its opposition and cross motion for
reconsideration. The appellant appealed to the Federal Circuit on August 31, 2021. We
had not, at that point, decided either motion. The government withdrew its motion for
reconsideration on September 17, 2021, in “an effort to avoid parallel litigation and
possibl[y] bifurcated proceedings in front of the Board and the Court of Appeals for the
Federal Circuit” (gov’t ltr. dtd. September 17, 2021 at 1). Appellant’s motion is still
pending before us.
JURISDICTION
Prior to resolving appellant’s motion for reconsideration, we consider, sua sponte,
whether the filing of the notice of appeal at the Court of Appeals for the Federal Circuit
divests us of jurisdiction. In Nucleus Corp., ASBCA No. 39612, 94-2 BCA ¶ 26,862, in
a fact pattern similar to the one before us, appellant filed a motion for reconsideration and
before the Board could resolve it, appealed to the Federal Circuit. The Board held that it
had jurisdiction to consider the motion because the decision on the merits did not become
final due to the timely filing of a motion for reconsideration. The Board observed that,
unlike where an appeal is filed with the Circuit prior to filing a motion for
reconsideration, the Board retained jurisdiction to consider appellant’s motion because
the decision on the merits had not yet become final. See also Bruce E. Zoeller, ASBCA
No. 56578, 11-1 BCA ¶ 34,720. As in Nucleus, in the case at hand our decision on the
merits is not final due to appellant’s filing of a motion for reconsideration. Accordingly,
we conclude that we have jurisdiction to resolve the pending motion for reconsideration. ∗
RECONSIDERATION ON THE MERITS
The moving party on a motion for reconsideration must establish a compelling
reason for us to modify our original decision. In deciding whether that standard is met,
we look to see whether there is newly discovered evidence, mistakes in our findings of
fact or errors of law. J.F. Taylor, Inc., ASBCA Nos. 56105, 56322, 12-2 BCA ¶ 35,125at 172,453 (citing American AquaSource, Inc., ASBCA No. 56677, 10-2 BCA ¶ 34,590;
SplashNote Systems, Inc., ASBCA No. 57403, 12-1 BCA ¶ 35,003). In evaluating a
motion to reconsider, an examination is performed into whether the motion is based upon
newly discovered evidence, mistakes in the findings of fact, or errors of law.
“Reconsideration is not intended to provide a party with the opportunity to reargue its
position.” Alliance Roofing & Sheet Metal, Inc., ASBCA No. 59663, 15-1 BCA ¶ 36,063at 175,803 (quoting Robinson Quality Constructors, ASBCA No. 55784, 09-2 BCA ¶
34,171 at 168,911).
Appellant challenges the portion of our decision concluding we have no
jurisdiction over the termination for default because appellant appealed the termination
after the statutory 90-day period had elapsed. Appellant argues that it was prejudiced by
the termination letter’s omission of language regarding its right to appeal to the Board
within 90 days, and thus the 90-day period did not start running. Appellant reargues that
it was prejudiced because, due to this omission, it was reasonable in its belief that it
needed to first file a claim with the contracting officer regarding the termination for
default before appealing the termination to the Board (app. mot. at 7-9; gov’t opp’n at 4).
∗
We are aware of a ruling by the Civilian Board of Contract Appeals, Summit
Commerce Pointe, LLC v. General Services Administration, CBCA Nos. 2652-R,
2845-R, 14-1 BCA ¶ 35,581, where appellant filed a motion for reconsideration of
the Board’s decision dismissing the appeal for lack of jurisdiction, and before the
Board could resolve the motion, appealed the decision on the merits to the Federal
Circuit. The Board decided it would not render a decision on appellant’s motion
for reconsideration unless requested or directed to do so by the Court of Appeals.
Although we read with interest the holdings of our sister Board, we are not bound
by its rulings. We are, however, bound by the clear and undisturbed precedent
cited above. Cf. BES Constr., ASBCA No. 60608, 19-1 BCA ¶ 37,455 at 181,990
n.3.
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In our decision, we found that the record did not support that appellant had been
prejudiced by the contracting officer’s failure to include appeal language in the
termination decision. The termination letter directed appellant’s attention to the
Disputes Clause, and the record supports that appellant’s counsel conducted extensive
research on termination rights. We stated:
“Given the amount of research conducted by counsel, and
counsel’s involvement throughout the performance and
termination of the contract, we find it hard to believe that
appellant was unaware of its appeal rights under the Disputes
clause even if the termination letter did not include the
language required by the FAR. Considered together, these
facts do not support appellant’s assertion that it was
prejudiced by the termination letter’s omission of appeals
rights language.”
Nauset Constr., ASBCA Nos. 61673, 61675, 21-1 BCA ¶ 37,852 at 183,820. In its
request for reconsideration, appellant has not provided additional case law or evidence
supporting it was prejudiced by the omission of the appeal language, but restates that it
was reasonable in its belief that a claim disagreeing with the termination for default had
to be filed with the contracting officer prior to appealing the termination to the Board.
Disagreements with the trier of fact as to the weight accorded certain evidence and the
inferences to be drawn from such evidence are not appropriate grounds for
reconsideration. J.F. Taylor, Inc., ASBCA Nos. 56105, 56322, 12-2 BCA ¶ 35,125at 172,453 (citing Walsky Constr., ASBCA No. 41541, 94-2 BCA ¶ 26,698; Grumman
Aerospace Corp., ASBCA No. 46834 et al., 03-2 BCA ¶ 32,289, aff’d, 497 F.3d 1350(Fed. Cir. 2007)).
CONCLUSION
The motion is denied.
Dated: January 26, 2022
LIS B. YOUNG
Administrative Judge
Armed Services Board
of Contract Appeals
(Signatures continued)
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I concur I concur
RICHARD SHACKLEFORD OWEN C. WILSON
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 61673, 61674, 61675,
Appeals of Nauset Construction Corporation, rendered in conformance with the Board’s
Charter.
Dated: January 27, 2022
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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