Appeal of Graphic Litho, Inc.
Docket No. GPO BCA 17-85
September 30, 1988

MICHAEL F. DiMARIO, Administrative Law Judge


Appellant has filed a timely Motion for Reconsideration of this
Board's February.23, 1988, decision on the grounds that it:  (1)
Disagreed with this Board's finding of fact that the Hammermill
Paper Company, Inc., 54" x 57"  "South Shore White Wove" paper
purchased by it for performance of the contract was a "common
use" item of supply was incorrect; (2) Believed that this Board
did not consider certain "evidence showing non-usability of the"
paper in rendering its decision; and (3) Believed that the Board
is mistaken in stating that "neither the Appellant nor its
supplier paper mill will guarantee [the paper] to meet specified
paper standards.  Additionally, Appellant proffers three signed
statements (which it styles as "sworn affidavits") to support its
first two allegations.

Respondent in turn has filed a timely Opposition on the grounds
that "[t]he motion presents no evidence that was not considered
by the Board, nor does it show that the Board ruled incorrectly
on a question of fact or law.  The motion has not raised an issue
justifying reconsideration and seeks to do no more than re-argue
the case."

The Board agrees with Respondent and adopts its reasoning and
conclusion as its own.

Generally, Boards of Appeals, such as this, will not reopen an
appeal record once it is settled. 1  Polerad Electronics Corp.,
ASBCA 20636, 79-1 BCA  13,777 (1979); see also Cal Constructors,
ASBCA 21179, 78-1 BCA  12,992 (1977); Harold Benson, AGBCA 384,
77-1 BCA  12,490 (1972).  However, on occasion they will
exercise discretion and do so in order to receive significant
newly-discovered evidence.  Key, Inc. & Jones-Robertson, Inc.,
IBCA 690-12-67, 69-1 BCA  7,447 (1969 ), or non-newly discovered
evidence, G . M . Co. Manufacturing, Inc., ASBCA 5345, 60-2 BCA 
2,759 (1960), when it is clear that injustice will be done if the
evidence is not considered.  K-Square Corp., IBCA 959-3-72, 73-2
BCA  10,146 (1973); Turner Construction Co., GSBCA 3549, 75-1
BCA  11,106 (1975).

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 4983, 78-2 BCA
 13,390 (1978); or where it is claimed that the decision was
founded in a legal theory which neither party had espoused.

1  See  Nash, Ralph C., Jr. and John Cibinic, Jr., Federal
Procurement Law, 3d ed., Vol. II, Chap. 30, Sec. 3, 2132,  7 et
seq (Washington, DC 1980) from which this summary of law has been

Kaminer Construction Corp., ENGBCA 2833, 70-1 BCA  8,257 (1970).

But, "[m]ere allegations in pleadings and briefs, or in
statements in lieu of briefs, unsupported by probative evidence
in the record, are insufficient basis for allowing a claim
against the Government or for setting aside the decision of a
Contracting Officer.  Such allegations and statements lack
evidentiary force or quality." Harold Benson, supra, at 60,539.

Examining Appellant's Motion in light of this case law, we
conclude that the reasons enunciated therein for this Board to
exercise its discretion are inadequate and unpersuasive for the
following reasons:

First, Appellant's assertion that the bare designation of JCP
E-30 paper as  "Offset Map, Lithographic Finish" in the
"Government's Paper Specification Standards" evidences that such
paper "is not a common use item" because it indicates that the
paper is intended for specific map use, is a conclusion of fact
falling squarely within the category of being a "mere allegation
. . . unsupported by probative evidence."  It is simply illogical
to conclude that the paper is not of "common use" solely because
there is a specific designated use for it.  Butter knives are
clearly intended for specific use, but they are certainly "common
use" items.  Accordingly, it is the conclusion of this Board that
Appellant's purported "evidence" is nonprobative respecting the
question of whether or not the paper is of "common use."
Additionally, it is the opinion of this Board that the
dictionary definition of the word "common" quoted by Appellant
(Motion at 3) is not inconsistent with, nor does it invalidate, a
finding of fact that paper which is regularly manufactured and
sold by product brand name is a "common use" item under the cited
case law.  The only probative evidence in the record respecting
the question of "common use" was that furnished by the Hammermill
Paper Company representative to the effect its South Shore White
Wove paper was not a special order item.  This Board, as the duly
constituted finder of fact, found such evidence to be substantial
and supportive of a finding that the paper was of common use.
That finding is undisturbed by Appellant's present assertion.

Second, Appellant's accusation that this Board did not consider
certain "evidence showing non-usability of the subject paper
stock" (numbered paragraph 2, Motion at 1) is without merit.  The
Board examined the cited statements and likewise found them to be
"mere allegations . . . unsupported by probative evidence."
There is simply no evidence in the record supporting (i.e.,
tending to prove) Appellant's assertion that "[b]y not using this
paper for the job intended, Graphic Litho was stuck with 25,000
lbs. of paper made to special size for which it had no job.  It
is not too far off the mark to describe such stock as useless."
(Motion at 1.)  The same is true of Appellant's unsupported
allegation that the mere readvertisement of the terminated job
somehow rendered the retained paper "useless."  Likewise, the
cited portion of the GPO IG Report which is merely the
speculative, idle, and inappropriate commentary of the
investigator respecting the potential for argument by Appellant.

Third, the three post-decision signed statements proffered by
Appellant in numbered paragraphs 3, 4, and 5 of the Motion as
proof of its contention that the purchased paper was not usable
because of its unusual size, lack necessary jurats to validate
them as affidavits and are composed of argument, opinion, and
materials which were or should have been readily available for
presentation to the Board before the original decision was

Fourth, the Board's statement respecting the lack of willingness
of Appellant or its supplier to guarantee the purchased paper
cited by Appellant was not a finding of fact.  It was merely a
recitation of background information in the appeal file
respecting events leading up to the Contracting Officer's
decision to terminate the contract for the convenience of the
Government.  As such, the statement is of no importance to the
issues presented by the appeal.  The same is true respecting
whether or not the purchased paper met specifications, since this
Board's decision expressly found that such question had no
bearing on entitlement under a convenience termination.

Accordingly, Appellant's Motion for Reconsideration is denied.

It is so ordered.