ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--

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_ ) ASBCANO.60829

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Under Contract No. W9 l B4M-07-C-7167

APPEARANCE FOR THE APPELLANT: Mr.
President

APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders_. Esq.
Army Chief Trial Attomey
CPT Douglas A. Reisinger. JA
Trial Attomey

OPINION BY ADMINISTRATIVE JUDGE MClLMAIL
ON THE GOVERNMENT’S MOTION FOR RECONSIDERATlON

On 6 December 2016, the government timely moved for reconsideration of our
29 November 2016 denial of the govemment`s 24 October 2016 motion for summary
judgment. _, ASBCA No. 60829, slip op. (Nov. 29, 2016).
The government contended that appellant’s claim for payment for allegedly delivered
crushed stone was time-barred by the six-year statute of limitations set forth in the
Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. We denied the motion including
because, despite arguing that “there is no evidence that the appellant ever submitted a
signed. certified claim for the allegedly unpaid amount prior to 8 September 2016," the
government “point[ed] to no evidence of the date that appellant presented its claim to the
contracting officer.” Slip op. at 2.

Where litigants have once battled for a decision, they should neither be
required, nor without good reason permitted, to battle for it again. Avant Assessmem,
LLC, ASBCA No. 58867, 15-1 BCA 11 36,137 at 176,384. Motions for reconsideration
do not afford litigants the opportunity to take a “second bite at the apple.” ld. ln
particular, as a general rule, such motions do not provide a vehicle for the introduction
of new evidence. Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014) (citing
cases). In support of its reconsideration motion (and without addressing the standard
of review for reconsideration), the government states that, since the Board denied the
motion for summary judgment, "errors of fact” in the record have been corrected with
the submission to the Board of appellant’s 8 September 2016 certified claim. The
government presumably could have, in support of its summary judgment motion,
presented the evidence that it points to now, but did not. For these reasons, we deny
the motion to reconsider the denial of the govemment’s motion for summary

judgment. Of course nothing in this decision precludes the filing of a new motion for
summary judgment that relies upon evidence referenced here.

TIMoTHY P. MCIKMA!L
Administrative Judge
Armed Services Board

of Contract Appeals

Dated: 2 February 2017

 

 

 

1 concur /_/.
/%//% M "\

MARK N. sTEMPLER / RlCHARD`sHACKLEFoRD
Administrative Judge Administrative Judge

Acting Chairman Vice Chairman

Armed Services Board Armed Services Board

of Contract Appeals of Contract Appeals

1 certify that the foregoing is a true copy of the Opinion and Decision of the
Armed services Board efcomracr Appeals in ASBCA No. 60829, Appeal of-

_, rendered in conformance with the Board’s Charter.

Dated:

 

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

