John Shaw LLC d/b/a Shaw Building Maintenance ( 2018 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
John Shaw LLC d/b/a Shaw Building Maintenance ) ASBCA Nos. 61379, 61585
)
Under Contract No. AAFES REZ-09-002-10-026 )
APPEARANCE FOR THE APPELLANT: Mr. John Shaw, Jr.
Owner
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
CPT John M. McAdams III, JA
MAJ Jason W. Allen, JA
Trial Attorneys
OPINION BY ADMINSTRATIVE JUDGE OSTERHOUT
ON THE GOVERNMENT'S PARTIAL MOTION TO DISMISS
AND APPELLANT'S MOTIONS FOR RECONSIDERATION
The appeals at issue concern Contract No. AAFES REZ-09-002-10-026 (the
contract), which was awarded by the United States Army (Army or government) to
John Shaw LLC d/b/a Shaw Building Maintenance (Shaw LLC or appellant) to furnish all
personnel, supervision, equipment, tools, materials, supplies and services at Eielson Air
Force Base in Alaska. On March 20, 2017, and March 27, 2018, Shaw LLC submitted
claims to the Army contracting officer. The contracting officer denied both claims in full
and appellant appealed both decisions. Several motions followed. This decision resolves
the several outstanding motions concerning ASBCA Nos. 61379 and 61585.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS
1. Contract No. AAFES REZ-09-002-10-026, was awarded by the Army to Shaw
LLC on May 2, 2010, for an estimated amount of$358,000.00 (R4, tab 1 at 3). The
contract was to furnish all personnel, supervision, equipment, tools, materials, supplies and
services for janitorial services in the shoppette and shopping center at Eielson Air Force
Base in Alaska (id. at 7, 37). On May 31, 2012, the government exercised the option in the
contract to extend services to cover June 1, 2012 through May 31, 2013 (R4, tab 2 at 1).
2. On March 20, 2017, Shaw LLC submitted a claim to the Army contracting
officer in the amount of$419,781.01, broken down as follows:
a. Total losses amounted to $40,872.54 but Mr. Shaw stated, "Exchange paid good
faith amount of $31,826.70 to offset a portion of losses." Thus, Shaw LLC claimed
$9,045.84 for the outstanding balance of losses for explosion proof equipment;
b. $2,009.77 in Prompt Payment Act interest; and
c. $408,725.40 for punitive damages.
(R4, tab 13) The claim alleged that the government failed to update account
information which caused a failure to timely pay two invoices for services provided by
Shaw LLC. Shaw LLC also alleged that the government's failure to pay the invoices
forced appellant to use funds from a contract unrelated to the contract in question in
this appeal. This caused Shaw LLC to store equipment in Alaska that it could not
afford to ship back to North Carolina. Shaw LLC also alleged that the failure of the
government to pay the two invoices resulted in other financial hardships for appellant,
such as failure to financially secure future contracts, a sale of the stored equipment,
and withheld payments on other contracts. (Id.)
3. On August 16, 2017, the contracting officer denied the claim in full. The
contracting officer determined that Shaw LLC failed to inform the contracting officer
directly of the updated account information to which Shaw LLC desired to be paid, as
required by the contract. Thus, the contracting officer denied Shaw LLC's requests for
Prompt Payment Act interest and storage fees. Further, the contracting officer denied
punitive damages because the claim failed to provide a basis in the contract to support
those damages. The letter stated that the decision was final and provided appeal rights.
(R4, tab 14) On October 24, 2017, Shaw LLC appealed to the Board, which was docketed
as ASBCA No. 613 79.
4. On December 21, 2017, the government moved to dismiss and strike counts III
and IV from the docket and stay the proceedings in ASBCA No. 61379. Count III was
for punitive damages and count IV was for consequential damages for "missed
opportunities." On January 27, 2018, appellant responded and requested that the Board
remove the word "punitive" from the docket to resolve the issue that the Board had no
authority to award punitive damages. Appellant again stated that it was the
government's fault that Shaw LLC had outstanding debts and financial problems and
reasserted that Shaw LLC was entitled to Prompt Payment Act interest. Further the
response detailed phone calls made between John Shaw and the government. (App.
resp.) On January 29, 2018, appellant amended its response to the motion to include a
debt owed to the Internal Revenue Service in the amount of $14,635.57, with the same
conclusion paragraph as the original response (app. amended resp.). On February 7,
2018, the government stated that it was not submitting a reply. On February 21, 2018,
the Board denied the government's request for a stay and deferred dispositive motions.
On February 22, 2018, the Board issued a show cause order, directing appellant to show
cause as to why its $1,882,002 claim for "missed opportunities" should not be dismissed
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for lack of jurisdiction for failing to first present the claim to the contracting officer. On
February 26, 2018, Shaw LLC responded to the show cause order, stating that he was
actually owed $2.2 million but in fairness to the parties he applied an "80/20 rule" so he
was claiming $1.8 million and outlined the amounts (app. resp. to order). On
February 28, 2018, the government responded by reiterating its arguments made in its
motion to dismiss and strike. Specifically, the government stated that missed
opportunities were too speculative to be compensable damages and the Board lacked
jurisdiction over punitive damages claims. On March 1, 2018, Shaw LLC responded
that missed opportunities were not speculative. On March 8, 2018, the Board granted
the government's motion to dismiss punitive damages and "missed opportunities." John
Shaw LLC d/b/a Shaw Building Maintenance, ASBCA No. 61379, 18-1 BCA ,i 37,003.
5. On March 16, 2018, appellant moved for leave to amend its claim and
complaint. Appellant also requested a three-month extension of the schedule. On
March 20, 2018, the government responded, requesting that the Board deny the motion
in full because: 1) appellant failed to show good cause for the Board to grant the
motion; 2) appellant's motion improperly sought to circumvent the Board's decision
without requesting reconsideration; and 3) the government argued it would be unfairly
prejudiced if the motion were granted. On March 22, 2018, the Board denied the
motion to extend the proceedings for three months. On March 25, 2018, appellant
replied to the government's response, stating that because the Board's rules are vague,
he was not sure of the process and that he had submitted an amended claim to the
contracting officer.
6. On March 25, 2018, appellant moved for reconsideration of the decision
dismissing its claims for punitive damages and "missed opportunities" and listed
several reasons, including to provide additional time for the Board and the parties; that
the government failed to notify appellant of its intention to move to dismiss; that
damages are in the Board's jurisdiction and removing punitive damages does not
eliminate damages that occurred; that appellant made the decision to amend its claim
before it received the Board's ruling on March 16, 2018; that the amended claim was
forwarded to the contracting officer; and for equal justice. On April 3, 2018, the
Board denied the motion for reconsideration. On the same day by separate decision,
the Board also denied appellant's motion for leave to amend its complaint because the
proposed amended complaint requested punitive or exemplary damages, which the
Board previously determined that it did not have jurisdiction to award. Shaw LLC,
18-1 BCA ,i 37,026.
7. On March 27, 2018, Shaw LLC submitted an amended claim to the contracting
officer in the amount of $2,916,323.61 (R4, tab 23). Appellant's amended claim basically
restated the original claim and complaint, including the portions that the Board previously
dismissed. Appellant's new appeal (ASBCA No. 61585) adds the $31,826.70 for
outstanding invoices not originally claimed and which appellant admitted, in the initial
claim, was previously paid. It also adds $2,986.81 for the Alaska Department of Labor,
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f
$14,636.00 for the Internal Revenue Service (IRS), $4,662.00 for telephone costs, and a
different amount for "missed opportunities." A chart is helpful to demonstrate the
similarities in the appeals:
Item Claimed March 20, 2017 November 23, 2017 March 27, May 7, 2018
Claim to CO Complaint 2018 Claim to Complaint
ASBCA No. 61379 co ASBCA
No. 61585I. Invoices "My total losses Not claimed $31,826.70 $31,826.70
with AAFES (Count I)
amounted to
$40,872.54.
Exchange paid
good faith
amount of
$31,826.70 to
offset a portion
oflosses." (R4,
tab 13 at 2)
II. Equipment $9,045.84 $9,045.84 (Count I) $9,045.84 $9,045.84
III. Prompt $2,009.77 $2,009.77 (Count II) $2,009.77 $3,691.17
Payment Interest
IV. Alaska Not claimed Not claimed $2,986.81 $2,986.81
Department of
Labor
V. IRS Not claimed Not claimed $14,636.00 $14,636.00
VI. Telephone Not claimed Not claimed $4,662.00 $4,662.00
Cost
VII. Exemplary/ $408,725.40 $408,725.40 (Count III) $645,154.49 $661,800.00
Punitive Dama~e (Count VIII)
VIII. "Missed Not claimed $1,882,002.00 (Count IV) $2,206,002.00 "Missed
opportunities" opportunities" of
$2,206,002 were
introduced as
punitive damages
in original claim.
In amended claim
punitive damages
was excluded.
(Count VII)
8. On March 29, 2018, the contracting officer denied the amended claim in full.
Also on March 29, 2018, Shaw LLC appealed the decision to the Board, which was
docketed as ASBCA No. 61585.
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9. On April 11, 2018, appellant requested discovery assistance and moved to
stay proceedings. Appellant stated that it submitted 50 discovery questions to the
government and did not receive appropriate answers. On April 17, 2018, the
government responded, requesting that the Board deny the motion.
10. On April 16, 2018, appellant requested subpoenas for personnel at
American Telephone and Telegraph Co., Earthlink, and CenturyLink for emails during
2010 through 2016.
11. The Board decided the discovery issues over the following week. On
April 23, 2018, the Board denied the April 16, 2018 request for subpoena. On
April 26, 2018, the Board held a conference call with the parties, where we denied
appellant's April 11, 2018 motion for discovery assistance. The Board was not
persuaded that appellant's request for discovery was proportional to the appeals
because nearly all of the requests for additional discovery pertained to punitive
damages, exemplary damages, or "missed opportunities."
12. On April 18, 2018, the government moved to consolidate ASBCA
No. 61585 with ASBCA No. 61379 and moved to dismiss and strike counts I
($31,826.70 for outstanding invoices), VII ($2,206,002.00 for "missed opportunities"),
and VIII ($645,154.49 in "exemplary damages") from the docket. On April 26, 2018,
the Board held a conference call with the parties, where appellant agreed with
consolidating the appeals. Accordingly, the Board ordered the appeals consolidated.
The Board also allowed appellant until April 30, 2018, to respond to the motion to
dismiss.
13. On May 14, 2018, appellant moved to separate ASBCA No. 61585 from
ASBCA No. 61379 for a variety of reasons. On May 15, 2018, the government
responded to the motion, requesting that the Board deny the motion. On May 21,
2018, appellant submitted a response to the government's verbal opposition to
separate. On May 22, 2018, the government replied that it did not intend to file a
response.
14. On May 21, 2018, appellant filed a motion to reconsider the rulings in
ASBCA Nos. 61379 and 61585 regarding exemplary damages. Appellant also requested
reconsideration of the ruling in Erwin Pfister General-Bauunternehmen, ASBCA
No. 43980 et al., 01-2 BCA ,i 31,431 at 155,225 ("Appellant is requesting
reconsideration of ruling regarding ASBCA NO. 43980, ASBCA NO. 61379 and
ASBCA NO. 61585 regarding exemplary damages.") (app. mot.). Specifically, appellant
lists particular paragraphs (34-36) of Erwin Pfister, 01-2 BCA 'i! 31,431 at 155,225;
particular paragraphs (22-24) of Schneider Haustechnik GmbH, ASBCA Nos. 43969,
45568, 01-1 BCA ,i 31,264 at 154,438-39; and particular paragraphs (19-21) of Andreas
Boehm Malergrossbetrieb, ASBCA No. 44017, 01-1 BCA ,i 31,354 at 154,838 (app.
mot.). On May 22, 2018, the government replied that it did not intend to file a response.
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15. On May 21, 2018, appellant moved for reconsideration of the decision
denying its request to compel discovery. Appellant stated that it received discovery by
a zip drive that it could not access. Further, appellant stated that Shaw LLC required
information from Invoice Nos. 2701 and 2863. Appellant stated that the information
received confirmed information provided to Shaw LLC on previous occasions. (App.
mot.) On May 22, 2018, the government replied that it did not intend to file a
response.
16. On June 12, 2018, appellant again moved for discovery assistance and for a
hearing date to be scheduled after May of 2019 or 2020. This appears to be a duplicate
request of appellant's prior requests. In the brief motion, appellant claims that the
government has ignored its 50 discovery requests, which is the same number appellant
discussed at the last conference call between the Board and the parties.
DECISION
At issue before the Board are an initial government partial motion to dismiss
and appellant's motion to reconsider several of the Board's prior decisions. While
moving to consolidate ASBCA No. 61585 with ASBCA No. 61379, which the Board
previously granted, the government also moved to dismiss and strike counts I
($31,826.70 for outstanding invoices), VII ($2,206,002.00 of "missed opportunities"),
and VIII ($645,154.49 in "exemplary damages") from the docket. Appellant moved
for reconsideration of exemplary damages in its appeal as well as reconsideration of
17 years of existing Board precedent in matters regarding the Board's previous rulings
on the issue of exemplary damages (SOF ,i 14 ), and reconsideration of the denial of its
motion to compel discovery (SOF ,i 15).
The Board has carefully considered the various motions. The Board decides the
various issues as stated below.
I. Government's Partial Motion to Dismiss for Failure to State a Claim upon
Which Relief can be Granted (ASBCA No. 61585 Count I)
When deciding a partial motion to dismiss for failure to state a claim upon
which relief can be granted, as we are for count I here, dismissal "is appropriate when
the facts asserted by the claimant do not entitle him to a legal remedy." Lindsay v.
United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). "The Board will grant a motion
to dismiss for failure to state a claim when the complaint fails to allege facts plausibly
suggesting (not merely consistent with) a showing of entitlement to relief." IBM
Corp., ASBCA No. 60332, 18-1 BCA ,J 37,002 at 180,194 (citing Cary v. United
States, 552 F.3d 1373, 1376 (Fed. Cir. 2009)).
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When deciding a motion to dismiss for failure to state a claim, we "must accept
well-pleaded factual allegations as true and must draw all reasonable inferences in
favor of the claimant." Kellogg Brown & Root Services, Inc. v. United States,
728 F.3d 1348, 1365 (Fed. Cir. 2013). Further, "[w]e decide only whether the
claimant is entitled to offer evidence in support of its claims, not whether the claimant
will ultimately prevail." Matcon Diamond, Inc., ASBCA No. 59637, 15-1 BCA
,i 36,144 at 176,407 (citing Chapman Law Firm Co. v. Greenleaf Construction Co.,
490 F.3d 934, 938 (Fed. Cir. 2007)).
"The scope of our review is limited to considering the sufficiency of allegations
set forth in the complaint, 'matters incorporated by reference or integral to the claim,
items subject to judicial notice, [and] matters of public record."' IBM, 18-1 BCA
,i 37,002 at 180,195 (citing A&D Auto Sales, Inc. v. United States, 748 F.3d 1142,
1147 (Fed. Cir. 2014)). In Lockheed Martin Integrated Systems, Inc., ASBCA
Nos. 59508, 59509, the Board stated:
For purposes of assessing whether the claim before us
states a claim upon which relief can be granted, the
primary document setting forth the claim is not the
complaint, per se, but is either the contractor's claim or the
government's claim, the letter asserted in a contracting
officer's final decision as required by the Contract
Disputes Act, 41 U.S.C. § 7103(a)(3).
17-1 BCA ii 36,597 at 178,281.
The government moved to dismiss count I of ASBCA No. 61585 because it
alleged that appellant previously acknowledged that the government issued payment for
the $31,826.70 it now claims it is owed for outstanding invoices. In appellant's initial
certified claim to the government, dated March 20, 2017, appellant stated, "Exchange
paid good faith amount of $31,826.70 to offset a portion of losses." (SOF ,i 2a)
Because appellant has already been paid, appellant is not entitled to any further relief.
Accordingly, the government's motion to dismiss count I is granted. Thus, the
claim for unpaid invoices in the amount of $31,826.70 is dismissed.
II. Government's Motion To Dismiss "Missed Opportunities" (ASBCA
No. 61585 Count VII)
In order to recover lost profits for breach of contract, appellant must demonstrate,
by a preponderance of the evidence, that:
(1) [T]he loss was the proximate result of the breach;
(2) the loss of profits caused by the breach was within the
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contemplation of the parties because the loss was
foreseeable or because the defaulting party had knowledge
of special circumstances at the time of contracting; and
(3) a sufficient basis exists for estimating the amount of
lost profits with reasonable certainty.
Energy Capital Corp. v. United States, 302 F.3d 1314, 1325 (Fed. Cir. 2002); see also
CACI Int'/, Inc., ASBCA Nos. 53058, 54110, 05-1 BCA ,J 32,948 at 163,254.
The Board decided the issue of "missed opportunities" in count IV of ASBCA
No. 61379 regarding this contract, 1 in a decision that was decided by three Board
judges. Shaw LLC, 18-1 BCA ,J 37,003 (citing Simplix, ASBCA No. 52570, 06-1
BCA ,i 33,240 at 164,727) ("[T]he attenuation of the connection between the
government's administration of the contract and appellant's claim, essentially for
monies allegedly lost under contracts that appellant did not enter with third-parties, is
one for a type of consequential damages that are too remote and speculative to be
recovered against the government.").
The government has now filed a motion to dismiss count VII of ASBCA
No. 61585, which again concerns "missed opportunities" (SOF ,i 12). The situation
concerning "missed opportunities" in ASBCA No. 61585 is exactly the same as in
ASBCA No. 61379, except that appellant presented a different amount in the new
appeal (SOF ,i 4). In ASBCA No. 61585, appellant still fails to demonstrate by a
preponderance of the evidence that the government's actions caused appellant's
"missed opportunities" during the administration of the contract or, in other words,
"the attenuation of the connection between the government's administration of the
contract and appellant's claim, essentially for monies allegedly lost under contracts
that appellant did not enter with third-parties, is one for a type of consequential
damages that are too remote and speculative to be recovered against the government."
Shaw LLC, 18-1 BCA ,J 37,003.
Therefore, the government's motion to dismiss count VII is granted. Thus,
appellant's claim for "missed opportunities" in the amount of $2,206,002.00, is dismissed.
III. Government's Motion to Dismiss Punitive Damages (ASBCA No. 61585Count VIII)
When deciding a motion to dismiss for lack of subject matter jurisdiction as we
are for count VIII here, "we only accept as true an appellant's uncontroverted factual
1
While appellant requested reconsideration of exemplary damages specifically, and
did not mention "missed opportunities," the Board has also reviewed its prior
decision on "missed opportunities" because appellant pled the same count in
ASBCA No. 61585.
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allegations." Elizabeth Construction Company, ASBCA No. 60723, 17-1 BCA
,i 36,839 at 179,517 (citing Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1354
(Fed. Cir. 2011); Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 n.13 (Fed.
Cir. 1993)). Here, the Army does not request that we use anything but appellant's
filings in which it requests exemplary damages, which we interpret as punitive
damages, and "missed opportunities," which we interpret as lost profits.
This Board cannot award punitive damages. "Absent express consent of
Congress, no punitive damages can be recovered against the United States." Janice
Cox dlb/a Occupro Limited, ASBCA No. 50587, 01-1 BCA ,i 31,377 at 154,930-31
(citations omitted). Congress has not expressly consented to the Board awarding
punitive damages. Thus, we do not possess subject matter jurisdiction. Where we do
not have jurisdiction, we have no power to do anything other than strike the matter
from our docket. Id.While pro se litigants, such as appellant, are often held to less stringent
pleading standards than by those represented by counsel, they are not exempt from
meetingjurisdictional prerequisites. Elizabeth Construction, 17-1 BCA ,i 36,839
at 179,517. Appellant bears the ultimate burden of establishing jurisdiction for the
Board to resolve its appeal; therefore, it must allege facts sufficient to articulate a
claim that falls within our jurisdiction. Id. (citations omitted).
The government moved to dismiss count VIII, exemplary damages, from
ASBCA No. 61585. 2 The Board already decided the issue of punitive or exemplary
damages in count II of ASBCA No. 613 79 regarding the same contract. See Shaw LLC,
18-1 BCA ,i 37,003. The situation concerning exemplary damages in ASBCA
No. 61585 is exactly the same as in ASBCA No. 61379, except that appellant presented
a different amount in the new appeal (SOF ,i 4). This Board does not have subject
matter jurisdiction over punitive or exemplary damages, as requested again in ASBCA
No. 61585. See Shaw LLC, 18-1 BCA ,i 37,003; Consolidated Defense Corp., ASBCA
No. 52315, 03-1 BCA ,i 32,099 at 158,668; Janice Cox, 01-1 BCA ,i 31,377; Daiei
Denki Co., ASBCA No. 29756, 86-2 BCA i! 18,840 at 94,951.
The government's motion to dismiss count VIII is granted. Thus, appellant's
claim for "exemplary damages" for $645,154.49 is dismissed.
2
Based on appellant's complaint for ASBCA No. 61585, it is unclear whether
appellant is still claiming "missed opportunities" as part of its appeal; however,
we address it here to avoid any confusion and to dispose of the government's
motion.
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IV Appellant's Motions for Reconsideration
Appellant has moved for the Board to reconsider our previous decisions: (1) to
strike exemplary damages in ASBCA No. 61379; (2) denial of appellant's motion to
compel discovery; and (3) the Board's precedent regarding exemplary, or punitive,
damages.
Standard for Motions for Reconsideration
ASBCA Rule 20 sets forth the requirements for reconsideration. The rule states:
A motion for reconsideration may be filed by either
party. It shall set forth specifically the grounds relied upon
to grant the motion. The motion must 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. An
opposing party must file any cross-motion for
reconsideration within 30 days from its receipt of the
motion for reconsideration. Extensions in the period to file
a motion will not be granted. Extensions to file a
memorandum in support of a timely-filed motion may be
granted.
When evaluating a motion to reconsider, the Board examines 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." Robinson Quality Constructors, ASBCA No. 55784, 09-2
BCA ,r 34,171 at 168,911 (citations omitted).
A motion for reconsideration does not meet the requirements of Rule 20 if the
motion lacks specificity in the alleged grounds upon which the motion is based. Anis
Avasta Constr. Co., ASBCA No. 61107, 18-1 BCA ,r 37,060 at 180,408 (citations
omitted). "Thus, we repeatedly have denied purported motions for reconsideration
that do not specifically allege the grounds upon which the motion is based." Id. (citing
Taj Al Rajaa Co., ASBCA No. 58801, 14-1 BCA ,r 35,555 at 174,229; Southwest
Marine Inc., ASBCA No. 33208, 89-1 BCA ,r 21,197 at 106,972).
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1. Request for Reconsideration of Exemplary Damages Decision for ASBCA
No. 61379Regarding the motion to reconsider allowing exemplary damages in ASBCA
No. 61379, the Board has previously ruled on the motions, see Shaw LLC, 18-1 BCA
,r 37,026, appellant has requested this reconsideration later than is allowed by our
rules. The Board granted the government's motion to dismiss on March 8, 2018
(SOF ,r 4). Appellant filed this motion for reconsideration on May 21, 2018
(SOF ,r 15). This is outside the 30-day window for reconsideration.
Additionally, appellant failed to offer any allegations or grounds upon which to
base the motion other than "to prevail equal justice." Appellant solely asked for
reconsideration. Therefore, the motion fails to comply with the specificity requirements
in Rule 20. See Anis Avasta, 18-1 BCA ,r 37,060 at 180,408.
Finally, appellant's motion is not based upon newly discovered evidence,
mistakes in the findings of fact, or errors of law. Instead, it appears to be an attempt
by appellant to reargue its position, which we have repeatedly denied. Anis Avasta,
18-1 BCA ,r 37,060 at 180,408. While appellant stated that he received new evidence,
in the same paragraphs, he also stated that it confirmed information the government
previously provided (SOF ,r 16).
For all of these reasons, appellant's request for reconsideration regarding
exemplary damages for ASBCA No. 61379 is denied.
2. Appellant's Motion to Reconsider the Board's Decision to Compel Discovery
Appellant requested reconsideration of the Board's decision denying appellant's
motion to compel discovery (SOF ,r 15). The Board previously denied appellant's
request for discovery assistance for proportionality reasons because the request mainly
dealt with information that supported appellant's claims for punitive damages,
exemplary damages, and "missed opportunities" (SOF ,r 11 ). Given that those counts
have all been dismissed, and remain dismissed after being reconsidered in both appeals,
the Board maintains that appellant's discovery request is not proportional to the appeals.
Additionally, appellant failed to offer any allegations or grounds upon which to
base the motion. While appellant stated that new evidence was provided in April and
May, the motion for reconsideration states that this new information confirmed prior
information provided to the appellant. (App. mot. ,r,r 4-5) Because appellant is
requesting relief based on new evidence that is duplicative and simply confirms
evidence already provided, the motion fails to comply with the specificity
requirements in Rule 20. See Anis Avasta, 18-1 BCA ,r 37,060 at 180,408.
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Thus, appellant's motion to reconsider the Board's decision to compel
discovery is denied.
3. Request for Reconsideration ofBoard Precedent Regarding Exemplary Damages
As part of appellant's motion to reconsider ruling of ASBCA Nos. 61379 and
61585, appellant specifically requested the Board reconsider Erwin Pfister, 01-2 BCA
,r 31,431, and appears to have also requested reconsideration of particular paragraphs
(22-24) of Schneider Haustechnik, 01-1 BCA ,r 31,264, and particular paragraphs
(19-21) of Malergrossbetrieb, 01-1 BCA ,r 31,354 (SOF ,r 14). This request is clearly
improper. Appellant cannot, as a non-party in the above-cited appeals, request the
Board reconsider our decision in these appeals, which were denied nearly 17 years
ago. To the extent Shaw LLC requests that we overrule the holdings in those cases,
such request is denied.
Accordingly, appellant's request for reconsideration of previously-decided Board
precedent to which it was not a party is denied
Dated: November 29, 2018
TERHOUT
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
FJ~:~EFORD OWEN C. WILSON
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
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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. 61379, 61585, Appeals of
John Shaw LLC d/b/a Shaw Building Maintenance, rendered in conformance with the
Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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