                 ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
RLB Contracting, Inc.                          )      ASBCA No. 57638
                                               )
Under Contract No. W912P8-07-C-0102            )

APPEARANCES FOR THE APPELLANT:                        Christopher B. Conley, Esq.
                                                      Daniel J. Caruso, Esq.
                                                      Herman C. Hoffmann, Jr., Esq.
                                                       Simon, Peragine, Smith & Redfearn, L.L.P.
                                                       New Orleans, LA

APPEARANCES FOR THE GOVERNMENT:                       Thomas H. Gourlay, Jr., Esq.
                                                       Engineer Chief Trial Attorney
                                                      William G. Meiners, Esq.
                                                       Engineer Trial Attorney
                                                       U.S. Army Engineer District, New Orleans

                  OPINION OF ADMINISTRATIVE JUDGE THRASHER
                 ON APPELLANT'S MOTION FOR RECONSIDERATION

       On 4 February 2014, appellant, RLB Contracting, Inc., timely filed a motion for
reconsideration of our 3 January 2014 decision. RLB Contracting, Inc., ASBCA
No. 57638, 14-1 BCA if 35,486. In that decision, the government conceded entitlement
and our decision applied a jury verdict method to determine quantum, finding appellant
was entitled to recover 65 percent of its total incurred embankment costs ($3,307,339.75
x 65% = $2,149,770.84) as a result of the government's actions. We then subtracted the
amounts appellant had already been paid under the contract, $1,234,800, sustaining
appellant's appeal in the amount of $914,970.84. RLB Contracting, 14-1 BCA if 35,486
at 173,983. Appellant requests the Board reconsider its decision on the basis that there
was an alleged error in the jury verdict calculation made by the Board and that the proper
calculation of the amount due appellant is $1,347,170.80. Appellant has also requested a
hearing on its motion. 1 The government opposes the motion.

       We do not grant a reconsideration absent a compelling reason. TMS Envirocon,
Inc., ASBCA No. 57286, 13 BCA if 35,204 at 172,717 (citing Zulco International, Inc.,
ASBCA No. 55441, 08-1BCAif33,799 at 167,319). In evaluating a motion for
reconsideration, we examine whether the motion is based on newly discovered evidence,

1
    Appellant requests a hearing on its motion (app. mot. at 1). We consider appellant's
        request as a request for oral argument on the motion and deny the request.
mistakes in the findings of fact, or errors of law. American AquaSource, Inc., ASBCA
Nos. 56677, 57275, 13 BCA ~ 35,365. A motion for reconsideration does not provide the
moving party the opportunity to reargue its position. Robinson Quality Constructors,
ASBCA No. 55784, 09-2 BCA ~ 34,171 at 168,911.

Basis for Appellant's Motion

       While appellant recognizes the Board possesses discretion under the jury verdict
method to apportion costs on the basis of 65 percent attributable to the government and
35 percent attributable to appellant, appellant argues that the apportionment should be
applied only to the costs being sought by appellant which were in excess of the firm fixed
contract price paid by the government. Appellant argues that we should have removed
the contract price paid by the government from appellant's total incurred costs prior to
applying our jury verdict 65/35 apportionment of responsibility for cost. Appellant's
suggested calculation is:

                  $3,307,339.75    total cost incurred as found by the Board
                  -1.234.800.00    amount RLB was paid
                  $2,072,539.75    gross excess cost
                  x          .65
                  $1,347,150.80    amount due RLB

(App. mot. at 2-3) The government responds that appellant's calculation would result in
appellant not being held responsible for its 35 percent share of its costs in an amount
equal to the contract price paid (gov't br. at 1).

                                        DECISION

        Appellant's claim sought its total incurred embankment costs in excess of what it
had already been paid ($1,234,800) in the nature of a total cost claim. We acknowledged
this fact in our decision. However, it was unclear whether appellant was arguing the
amount it had already been paid represented just that, what it had already been paid, or
the contract price for the embankment work as bid (unchanged). We addressed both
possibilities in our decision and rejected both. RLB Contracting, 14-1BCA~35,486 at
173,982. Here, given the fact the contract was a firm fixed-price contract, appellant
equates in its total cost claim the amount already paid under the contract with what it
would be paid for the work as unchanged (app. mot. at 1-2). In our decision, we found
that there was no accurate measure in the record of the cubic yards of dirt actually placed
and therefore, no way to determine the actual cost of the work as unchanged. RLB
Contracting, 14-1 BCA ~ 35,486 at 173,982. Since it was impossible to know the value
of the work as unchanged, rather than deny appellant any recovery, we applied a jury
verdict calculation against the total incurred embankment costs finding appellant entitled
to 65 percent of those costs, $2,149,770.84. Although unknown with specificity,


                                              2
appellant's 65 percent recovery necessarily included its share of the cost of the work as
unchanged under the contract. To hold otherwise would be to charge the government
with 100 percent of the costs of the unchanged work, which would be contrary to our
65135 apportionment of the total costs.

                                     CONCLUSION

       We conclude appellant has not shown any compelling reason to modify our
original decision as requested. Therefore, we deny appellant's motion.

       Dated: 8 May 2014




                                                 Adminis ative Judge
                                                 Armed Services Board
                                                 of Contract Appeals

I concur                                         I concur



/~
Administrative Judge                             Adminis ative Judge
Acting Chairman                                  Acting 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 No. 57638, Appeal ofRLB
Contracting, Inc., rendered in conformance with the Board's Charter.

      Dated:



                                                 JEFFREY D. GARDIN
                                                 Recorder, Armed Services
                                                 Board of Contract Appeals




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