The opinion
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
Frontline Support Solutions, LLC ) ASBCA No. 64022
)
Under Contract No. W9126G-19-C-0163 )
APPEARANCE FOR THE APPELLANT: Mr. Bronson Lerma
President
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Lisa M. Haywood, Esq.
Elliott A. Stanley, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Fort Worth
OPINION BY ADMINISTRATIVE JUDGE WILSON
ON APPELLANT’S MOTION FOR RECONSIDERATION
Frontline Support Solutions, LLC (Frontline or appellant) moves for
reconsideration of the Board’s April 3, 2025 decision (Frontline Support Sols., LLC,
ASBCA No. 64022, 25-1 BCA ¶ 38,803) dismissing its appeal for lack of jurisdiction
due to a lack of privity of contract with the government. Familiarity with that decision
is presumed.
In its motion, Frontline alleges for the first time that it had an implied-in-fact
contract with the government (app. mot. at 4). Frontline asserts that the U.S. Army
Corps of Engineers (government or USACE) “knowingly benefited [sic] from
Frontline’s completed work [on the project], permitted that work to be fraudulently
credited to another party, and then deliberately relied upon that fraud to secure
performance from the surety . . . after the prime contractor’s termination” (id. at 1).
Frontline contends that these “unjust” actions established an implied-in-fact
contractual relationship with USACE and as such, triggered the Board’s jurisdiction
(id.).
In support of its motion, Frontline relies upon a government memorandum
dated January 10, 2024 (Exhibit 1), which it submitted to the Board prior to the release
of the aforementioned April 3, 2025 decision 1. Obtained through a Freedom of
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Frontline submitted a “motion for leave to file supplemental evidence . . .” on
March 24, 2025. Attached to appellant’s motion was a copy of the
Information Act (FOIA) request, the purpose of Exhibit 1 was to “document details
regarding time and duties for Subcontractor ‘Frontline’ under the subject contract”
(app. mot., ex. 1 at 1). In addition to describing Frontline’s time and activities on the
jobsite, Exhibit 1 lists billing and payments to the prime contractor for work performed
by Frontline (id. at 1-3). Frontline argues Exhibit 1 confirms USACE knew the prime
contractor fraudulently claimed credit for Frontline’s completed work. Frontline then
alleges that when the prime contractor defaulted, USACE executed a takeover
agreement with the surety, relying on the alleged fraudulent records to complete the
project and thereby “ratifying” Frontline’s uncompensated performance. Frontline
asserts that this purported ratification created a “direct and legally recognizable
implied contractual relationship” between it and USACE. (App. mot. at 1-2, 4, 8)
Frontline also alleges that the government’s “intentional delays” in responding
to its FOIA requests prevented it from “presenting these jurisdictional facts at the
appropriate procedural juncture, specifically during the initial claim and early
jurisdictional arguments” (id. at 2-3, 6). Frontline contends that the government’s
“deliberate procedural misconduct compromised the fairness, completeness, and
accuracy of the jurisdictional record, directly influencing the Board’s decision to
dismiss the appeal without a full and proper evaluation of this vital evidence” (id.
at 3).
USACE counters that Frontline’s motion fails to introduce any newly
discovered evidence that was not available at the time of our original decision,
including Exhibit 1, which it points out identifies Frontline as a subcontractor.
USACE further argues that Frontline has not shown any material errors of fact or law
warranting reconsideration. (Gov’t resp. at 5-6) USACE notes that even if we were to
grant the motion for reconsideration, Frontline must still show that the Board
possesses jurisdiction over any new issues that would be considered if reconsideration
were granted. According to USACE, “[s]ince no new issues have been submitted to
[the] contracting officer, this Board only needs to determine if there was an error in
finding no jurisdiction over the claims that were in fact the subject of” our original
decision. (Id. at 6) USACE also points out that the Board does not possess
jurisdiction over fraud actions where it would first need to make factual determinations
with respect to the alleged fraudulent conduct 2 (id. at 7 (citations omitted)).
government’s memorandum dated January 10, 2024 (“Exhibit 1”). In rendering
our decision, the Board considered all the parties’ arguments and cited
evidence, including arguments set forth in Frontline’s March 24, 2025, motion
for leave to file supplemental evidence.
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Given our disposition of this motion, we need not address this argument.
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DECISION
To prevail on a motion for reconsideration, a party “must demonstrate a
compelling reason for the Board to modify its decision.” Golden Build Co., ASBCA
No. 62294, 20-1 BCA ¶ 37,742 at 183,161 (quoting Bruce E. Zoeller, ASBCA
No. 56578, 14-1 BCA ¶ 35,803 at 175,103). “[If] we have made mistakes in the
findings of fact or conclusions of law, or by failing to consider an appropriate matter,
reconsideration may be appropriate.” Chugach Fed. Sols., Inc., ASBCA No. 61320,
23-1 BCA ¶ 38,456 at 186,918; Robinson Quality Constructors, ASBCA No. 55784,
09-2 BCA ¶ 34,171 at 168,911. “In short, if we have made a genuine oversight that
affects the outcome of the appeal, we will remedy it.” Relyant, LLC, ASBCA
No. 59809, 18-1 BCA ¶ 37,146 at 180,841. Reconsideration might also be appropriate
in the event of newly discovered evidence. Afghan Premier Logistics, ASBCA
No. 62938 et al., 23-1 BCA ¶ 38,373 at 186,402. Motions for reconsideration,
however, are “not the place to present arguments previously made and rejected.” Id.;
Potomac Elec. Corp., ASBCA No. 61371, 20-1 BCA ¶ 37,663 at 182,862 (“A motion
for reconsideration is not intended to present a ‘post-decision bolstering of contentions
which we have already rejected.’”) (quoting Charitable Bingo Assocs., Inc., d/b/a
Mr. Bingo, Inc., ASBCA Nos. 53249, 53470, 05-2 BCA ¶ 33,088 at 164,014). They
“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 v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014).
Frontline has not demonstrated that reconsideration of our original decision is
warranted. It has not shown any mistakes in the findings of fact or conclusions of law
in our decision, nor has it shown the existence of newly discovered evidence.
Although Frontline makes much of the purported significance of Exhibit 1, the fact
remains that it submitted Exhibit 1 to the Board before we issued our original decision.
It could have asserted the existence of an implied-in-fact contract at that time, but it
did not. See (app. resp. to govt’s mot. to dismiss).
Frontline is clearly attempting to take a second bite the apple by arguing that it
had an implied-in-fact contract directly with the government. As Frontline itself
admits, “the existence of an implied-in-fact contractual relationship through
constructive ratification[] was not directly argued or addressed during the original
proceedings” (app. mot. at 3). Frontline has failed to show a compelling reason for us
to modify our original decision.
Moreover, even if we granted the motion, Frontline would still have to establish
our jurisdiction over its allegation of an implied-in-fact contract. To do so, it would
have to demonstrate, by a preponderance of the evidence, that the new allegation
“derive[] from the same set of common or related operative facts” as those contained
in the claim and “seek[s] the same or similar relief.” Parwan Grp. Co., ASBCA
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No. 60657, 18-1 BCA ¶ 37,082 at 180,495 (citing Scott Timber Co. v. United States,
333 F.3d 1358, 1365 (Fed. Cir. 2003)). Allegations presenting a new legal theory of
recovery, or the introduction of additional facts that do not alter the nature of the
original claim, do not constitute a new claim if they are based on the same set of
operative facts included in the original claim. Id. (citing Trepte Constr. Co., ASBCA
38555, 90-1 BCA ¶ 22,595 at 113,385-86). “Where proof of the new legal theory
includes operative facts differing from those in the original claim, however, ‘the
essential nature of the claim has been changed and we do not have jurisdiction over the
new claim until it has been presented to the contracting officer for decision.’” Id.
(quoting Shams Eng’g and Contracting Co. and Ramli Co., ASBCA Nos. 50618,
50619, 98-2 BCA ¶ 30,019 at 148,525).
Frontline argues its assertion of an implied-in-fact contract “refin[es] legal
theories, grounded in the same underlying facts” (app. reply at 6). However, here,
Frontline bases its claim on a new set of operative facts derived from Exhibit 1, which
was neither part of the original claim nor submitted to the contracting officer for a
final decision. Accordingly, we conclude that this new legal theory is not grounded in
the same underlying facts and, as such, is a new claim. We cannot exercise
jurisdiction over new claims asserted here that were not previously presented to the
contracting officer. Conrad Shipyard, LLC, ASBCA No. 63869, 25-1 BCA ¶ 38,796
at 188,686, citing Wilwood Eng. Inc., ASBCA No. 62773, 22-1 BCA ¶ 38,116
at 185,144. (explaining the action before the Board must arise from the same operative
facts as the claim submitted to the contracting officer, seek essentially the same relief,
and not advance a materially different legal theory). Thus, Frontline’s argument must
fail.
Finally, with respect to Frontline’s allegation of “procedural” misconduct by
USACE personnel, we have seen no evidence of any misconduct on the part of
USACE counsel in this appeal. Frontline’s complaints about the handling of its FOIA
requests are not relevant to the proceedings before this Board, as our jurisdiction does
not extend to an agency’s FOIA actions. See 41 U.S.C. §7105(e).
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CONCLUSION
The motion for reconsideration is denied.
Dated: January 14, 2026
OWEN C. WILSON
Administrative Judge
Acting Chairman
Armed Services Board
of Contract Appeals
I concur I concur
MICHAEL N. O’CONNELL DAVID B. STINSON
Administrative Judge Administrative Judge
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. 64022, Appeal of Frontline
Support Solutions, LLC, rendered in conformance with the Board’s Charter.
Dated: January 14, 2026
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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