The opinion
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of - )
)
North Wind Construction Services, LLC ) ASBCA Nos. 63641, 63642, 63733
) 63750, 63751, 63759
) 63760, 63761, 63762
)
Under Contract No. W91237-21-C-0003 )
APPEARANCES FOR THE APPELLANT: Dana W. Lang, Esq.
Womble Bond Dickinson (US) LLP
Charleston, SC
Joshua A. Mullen, Esq.
Joshua R. Funderburke, Esq.
Womble Bond Dickinson (US) LLP
Nashville, TN
Stephen J. McBrady, Esq.
Skye Mathieson, Esq.
John Nakoneczny, Esq.
Crowell and Moring LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Matt D. Coakley, Esq.
Joshua J. McCarroll, Esq.
Jack D. Myers, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Huntington
Bonnie B. Jagoditz, Esq.
Engineer Trail Attorney
U.S. Army Engineer District, Nashville
OPINION BY ADMINISTRATIVE JUDGE MELNICK DENYING THE
GOVERNMENT’S MOTION FOR RECONSIDERATION OF THE BOARD’S
APRIL 3, 2024, DECISION DENYING THE GOVERNMENT’S MOTION TO
DISMISS ASBCA NOS. 63760 AND 63761, AND DENYING THE
GOVERNMENT’S REQUEST FOR SENIOR DECIDING GROUP
CONSIDERATION
The government seeks reconsideration of the Board’s April 3, 2024, decision
denying the government’s motion to dismiss ASBCA Nos. 63760 and 63761. Motions
for reconsideration do not “provide a party an opportunity to reargue issues that were
previously raised and decided.” John C. Grimberg Co., ASBCA Nos. 58791, 59717,
19-1 BCA ¶ 37,227 at 181,211 (citing Precision Standard, Inc., ASBCA No. 58135,
16-1 BCA ¶ 36,504 at 177,860). Nor do they allow a “second bite at the apple” or an
“opportunity to advance arguments that properly should have been presented in an
earlier proceeding.” Id. (citing Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir.
2014)). ∗ Motions for reconsideration are granted “if we have made a genuine
oversight that affects the outcome.” Id. (quoting Relyant, LLC, ASBCA No. 59809,
18-1 BCA ¶ 37,146 at 180,841). The government reargues some points already
considered by the Board, raises new arguments it could have previously advanced but
did not, and substitutes prior concessions and contentions of law with new ones that it
now prefers. But mostly, it does not persuade us that we have committed an oversight
that affects the outcome of the motion. Accordingly, the government’s motion is
denied.
The government seeks referral of its motion to the Board’s Senior Deciding
Group to overturn Fru-Con Construction Corp., ASBCA No. 53544, 02-1 BCA
¶ 31,729, and decisions following that precedent. Requests that an appeal be referred
to the Board’s Senior Deciding Group are governed by the Board’s Rules and Charter.
ASBCA Rules, Preface § II(c); ASBCA Charter, 48 C.F.R., ch. 2, app’x A, pt.1 § 3.
The Chairman has considered the government’s request pursuant to those provisions
and denies it.
Dated: July 2, 2024
MARK A. MELNICK
(Signatures continued) Administrative Judge
Armed Services Board
of Contract Appeals
∗
To be sure, new subject matter jurisdictional challenges may be raised at any point in
litigation, see, e.g., Henderson v. Shinseki, 562 U.S. 428, 434-45 (2011), but the
motion before us here is one seeking reconsideration of a particular motion
already denied and we apply our normal standard of review.
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I concur I concur
OWEN C. WILSON J. REID PROUTY
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. 63641, 63642, 63733,
63750, 63751, 63759, 63760, 63761, 63762, Appeals of North Wind Construction
Services, LLC, rendered in conformance with the Board’s Charter.
Dated: July 3, 2024
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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