MOQA-AQYOL JV, LTD. ( 2018 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of-- )
)
MOQA-AQYOL JV, LTD. ) ASBCA No. 60456)
Under Contract No. W5J9JE-10-C-0031 )
APPEARANCE FOR THE APPELLANT: Thomas J. Fraser, Jr., Esq.
Eavenson, Fraser, Lunsford & Ivan
Jacksonville, FL
APPEARANCES FOR THE GOVERNMENT: Thomas J. Warren, Esq.
Acting Engineer Chief Trial Attorney
Daniel B. McConnell, Esq.
Rebecca L. Bockmann, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Middle East
Winchester, VA
OPINION BY ADMINISTRATIVE JUDGE O'CONNELL
ON APPELLANT'S MOTION FOR RECONSIDERATION
MOQA-AQYOL JV, LTD. (MOQA) has filed a motion for reconsideration of
our decision in MOQA-AQYOL JV, LTD., ASBCA Nos. 57963, 60456, 17-1 BCA
,i 36,909, in which we denied MOQA's challenge to the default termination and its
money claim. MOQA's motion concerns only the money claim, ASBCA No. 60456.
DECISION
The standards for deciding a motion for reconsideration are well established.
Reconsideration does not provide a party an opportunity to reargue issues that were
previously raised and decided. Precision Standard, Inc., ASBCA No. 58135, 16-1
BCA ,i 36,504 at 177,860. The movant must establish a compelling reason to modify
the earlier decision. Id. We look to whether the movant presents newly discovered
evidence, mistakes in findings of fact, or errors of law. Id. A motion for
reconsideration does not provide a litigant a "second bite at the apple" or the
opportunity to advance arguments that properly should have been presented in an
earlier proceeding. Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014).
While MOQA sought damages in four discrete categories, it challenges our
determination with respect to only one: $842,587.23 for work performed through the
date of termination. It does not seek reconsideration of our decision with respect to
materials and equipment left on site or consulting fees paid to Kevin Cato. (App. mot.
at 23)
We conclude that MOQA's motion falls squarely in the "second bite at the
apple" category: its 30-page motion for reconsideration contains far more facts and
arguments relating to damages than it presented in its post-hearing brief, which was
devoted mainly to the termination for default. But there is nothing in MOQA's motion
that leads us to change our opinion.
The crux ofMOQA's motion is that it accomplished more work than reflected
in the amount that it has been paid. As detailed in our opinion, the project was in a
remote area of Afghanistan and none of the witnesses testifying at the hearing-had
spent any significant time at the site. MOQA, 17-1 BCA 136,909 at 179,811,
findings 3, 5. As the party with the burden of proof on its money claim, this presented
a challenge to MOQA that it could not overcome. None of MOQA's witnesses
testified as to any specific facts that would allow us to award MOQA more money
than the Corps paid.
In calculating the final payment due MOQA, we found that there was internal
disagreement at the Corps as to whether MOQA had completed 20 or 25% of the work,
but it went with the higher number. Our opinion detailed the many problems the Corps
discovered with MOQA's work. See MOQA, 17-1BCA136,909 at 179,828-29. In
light of these problems, we held that the contracting officer did not abuse his discretion
in having the replacement contractor remove most of MOQA's work, including the
foundation for the headquarters building, the perimeter wall and foundation, and the
guard tower support columns. Id. Our conclusion was, and remains, that MOQA was
paid 25% of the contract price even though it accomplished relatively little. 1 There is
no basis for the Board to increase the amount paid.
MOQA contends in its brief that we misunderstood testimony by the Corps
quality assurance representative, Chester Lawrence. It contends that when he testified
as to problems with the concrete and rebar it pertained only to MOQA's claim for
materials left on site, which is a separate issue (app. mot. at 28). MOQA is incorrect
to the extent it suggests that Mr. Lawrence's testimony supports a higher payment to
MOQA. To the contrary, it was Mr. Lawrence who concluded that MOQA had
completed only 20% of the project based on all of the defective work that had to be
removed. MOQA, 17-1 BCA 136,909 at 179,823, finding 100. Moreover, MOQA is
also incorrect in contending that Mr. Lawrence was testifying only about materials left
1
Thus, although MOQA contends that it is entitled to about $320,000 more because it
completed all of the work for the compound size modification, we found that
the largest component of this was the wall around the new perimeter that had to
be removed. Id. at 179,825, findings 114-15.
2
on site. The testimony we relied upon for finding 110 concerned the document found
at Rule 4, tab 419 at 18, which was a photo of the building foundation. He testified:
Some of this stuff from the pictures that I got show cracks,
and deformed work, and rebar laying on the ground which
shows me that it wasn't properly inspected by them. It was
just put in and thrown in there. And we were going to
reject that.
(Tr. 2/58)
Finally, MOQA also challenges the Corps' reduction of earlier payments for
mobilization and security payments. MOQA is correct when it observes that
contracting officer's representative, Theodore Champine, testified inaccurately that the
contract required MOQA to be paid 60% for mobilization and 40% for demobilization.
But the evidence in the record does not go much beyond that. Other than a contract
line item number (CLIN) for Defense Base Act insurance, the contract as awarded
contained only one CLIN, which was to site adapt the design and build the project
(CLIN 0001). (R4, tab 7 at 3) There was no mobilization CLIN. The parties
apparently reached an agreement where they broke down CLIN 0001 into "cost
loaded" items or "sub-CLINs" (tr. 1/138), but neither party presented evidence as to
how this was done or what had to be accomplished for MOQA to paid in full for the
sub-CLINs.
The parties agree that there was a sub-CLIN for mobilization for $250,000.
MOQA contends that the entire sum was due on mobilization while the Corps
contends it was split between mobilization and demobilization. Neither party has
directed us to a provision in the contract or other documents that supports its position.
Because MOQA has the burden of proof on its money claim, we hold that MOQA has
not met its burden on the mobilization issue. Wilner v. United States, 24 F.3d 1397,
1401 (Fed. Cir. 1994) (en bane). The same holds true for MOQA's project security
issue. The evidence is inadequate for us to award MOQA any money. 2
2
MOQA's did not make its arguments concerning mobilization and security payments
in its post-hearing briefs.
3
CONCLUSION
MOQA's motion is denied.
Dated: 27 March 2018
·m~r(\ J!J'L-OJJ
M1CfIAELN. O'CONNELL
Admini~trative Judge
Armed Services Board
of Contract Appeals
I concur
£)1_---..
RICHARD SHACKLEFORD OWEN C. WILSON
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 No. 60456, Appeal of
MOQA-AQYOL JV, LTD., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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