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.