K-Con, Inc. ( 2017 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
K-Con, Inc. ) ASBCA Nos. 60686, 60687
)
Under Contract Nos. W912SV-13-F-0100 )
W912SV-13-F-0121 )
APPEARANCES FOR THE APPELLANT: Robert J. Symon, Esq.
Aron C. Beezley, Esq.
Bradley Arant Boult Cummings LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
MAJ Christopher M. Coy, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE WOODROW
ON APPELLANT'S MOTION FOR RECONSIDERATION
On 6 February 2017, appellant, K-Con, Inc., timely moved for reconsideration of
the Board's 12 January 2017 decision. K-Con, Inc., ASBCA Nos. 60686, 60687, 17-1
BCA ~ 36,632. In its motion for reconsideration, K-Con contends that the Board
improperly ignored K-Con's argument in its brief concerning the United States District
Court for the Northern District of Illinois' opinion in Faerber Elec. Co. v. Atlanta
Tri-Com, Inc., 795 F. Supp. 240 ( 1992). In addition, K-Con requests that the Board
reconsider its ruling in light of FAR 12.301, which addresses the clauses to be
incorporated into commercial item contracts.
DISCUSSION
In deciding a motion for reconsideration, we examine whether the motion is based
upon newly discovered evidence, mistakes in our findings of fact, or errors of law. Zulco
International, Inc., ASBCA No. 55441, 08-1BCA~33,799 at 167,319. A motion for
reconsideration does not provide the moving party the opportunity to reargue its position
or to advance arguments that properly should have been presented in an earlier
proceeding. See Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014). We do not
grant motions for reconsideration absent a compelling reason. JF. Taylor, Inc., ASBCA
Nos. 56105, 56322, 12-2 BCA ~ 35,125 at 172,453.
I. Faerber Electric Does Not Compel a Different Result
K-Con first contends that the Board improperly ignored K-Con' s argument in its
initial brief concerning the U.S. District Court's opinion in Faerber Electric. Although
K-Con acknowledges that decisions of United States District Courts are not binding on
the Board, it contends that we should find the Court's decision persuasive, particularly
given the absence of Board precedent on the precise issue.
Faerber Electric holds that, absent a bond being obtained, there is no claim
directly under the Miller Act statute. We did not hold that the Miller Act is self-
implementing in the sense that it creates a cause of action. Instead, we held that, pursuant
to the Christian doctrine, the bonding requirements set forth in the Miller Act (and
codified at FAR 52.228-15) are mandatory clauses that must be included in government
construction contracts if they are omitted. We did not reach the further question - at
issue in Faerber Electric - of whether a subcontractor possesses a right of action to sue
the prime contractor ifthe prime contractor did not obtain a bond in connection with its
contract with the government.
While it is true that Faerber Electric concluded that the Miller Act is not
implicitly incorporated into any federal contract covered by the Act, it did so in the
context of determining whether a subcontractor possessed a right of action against a
prime contractor based on the presumption that the prime contractor would have obtained
a bond pursuant to the Miller Act. 795 F. Supp. at 246 (citing, inter alia, G.L. Christian
& Assocs. v. United States, 320 F.2d 345, 350-51 (1963)). Because the prime
contractor's contract with the government did not include a bonding requirement, and the
prime contractor did not obtain a bond, there was no bond on which the subcontractor
could sue. The Court refused to create an implied cause of action to fill the lacuna
created when both the contractor and the government contracting officer ignore the
bonding requirement.
The conclusion in Faerber Electric - that the Miller Act bonding requirement is
not implicitly incorporated into federal contracts covered by the Act - did not rest on
analysis of the Christian doctrine. Specifically, Faerber Electric did not delve into
whether the bonding requirement is a mandatory contract clause that expresses a
significant or deeply ingrained strand of public procurement policy. G.L. Christian &
Associates v. United States, 312 F.2d 418, 424, 427 (Ct. Cl. 1963). Instead, Faerber
Electric 's analysis focused on whether the Miller Act bonding requirement should be
incorporated into the government contract for the purpose of creating a private right of
action. Faerber Electric cited the Supreme Court's ruling in Universities Research
Association, Inc. v. Coutu, 450 U.S. 754 (1981) for a precedential test to determine
whether a statute may create an implied right of action.
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For these reasons, we did not consider Faerber Electric persuasive and did not
rely on it in our analysis of the Christian doctrine.
II. Consideration of FAR 12.301 Does Not Alter Our Holding
K-Con next contends that FAR 52.228-15 should not be incorporated into the
contracts at issue because they are commercial items contracts (app. mot. at 3). K-Con
relies on FAR 12.301, Solicitation Provisions and Contract Clauses for the Acquisition of
Commercial Items, which sets forth the solicitation provisions and clauses to be included
in a contract for the acquisition of commercial items (app. mot. at 3). K-Con contends
that, because FAR 52.228-15 is not among the clauses listed in FAR 12.301, it is not
mandatory in commercial items contracts (id.).
We rejected this very argument in our original decision when we held that "[b]oth
contracts at issue in this appeal were for the 'construction, alteration, or repair of any
public building"' as that phrase is defined in the Miller Act. 17-1 BCA ii 36,632 at
178,413. We further held that "the Miller Act applies to construction contracts, even
when those contracts are solicited as commercial items, and requires those contracts to
contain FAR 52.228-15." Id. at 178,414. We see no reason to abandon this holding
merely because the Army elected to use commercial items procurement procedures to
contract for the construction of these buildings.
Moreover, by its terms, FAR 12.301 does not preclude the extant incorporation of
FAR 52.228-15 into commercial items contracts. FAR 12.30l(a) states that commercial
items contracts "shall, to the maximum extent practicable, include only those clauses -
( 1) Required to implement provisions of law or executive orders applicable to the
acquisition of commercial items; or (2) Determined to be consistent with customary
commercial practice" (emphasis added). As we concluded in our original decision, the
record evidence demonstrates that these contracts were for construction-related activities
and involved the types of risks generally associated with construction projects. 17-1
BCA ii 36,632 at 178,413-14. Therefore, we properly concluded that the contracts must
include FAR 52.228-15.
Ultimately, K-Con recycles arguments made in its original motion. A motion for
reconsideration is not the place to present arguments previously made and rejected.
"[W]here litigants have once battled for the court's decision, they should neither be
required, nor without good reason permitted, to battle for it again. Motions for
reconsideration do not afford litigants the opportunity to take a 'second bite at the apple'
·or to advance arguments that properly should have been presented in an earlier
proceeding." Dixon, 741 F.3d at 1378 (citations omitted); see also Avant Assessment,
LLC, ASBCA No. 58867, 15-1BCAii36,137 at 176,384.
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CONCLUSION
For these reasons, K-Con' s motion for reconsideration is denied.
Dated: 8 May 20 I 7
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
~·
MARK N. STEMPLER / RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman 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 Nos. 60686, 60687, Appeals of
K-Con, Inc. rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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