The opinion
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
Kellogg Brown & Root Services, Inc. ) ASBCA Nos. 57530, 58161
)
Under Contract No. DAAA09-02-D-0007 )
APPEARANCES FOR THE APPELLANT: E. Sanderson Hoe, Esq.
Herbert L. Fenster, Esq.
Raymond B. Biagini, Esq.
Alejandro L. Sarria, Esq.
Covington & Burling LLP
Washington DC
APPEARANCES FOR THE GOVERNMENT: Arthur M. Taylor, Esq.
DCMA Chief Trial Attorney
Carol Matsunaga, Esq.
Senior Trial Attorney
Kara M. Klaas, Esq.
Trial Attorney
Defense Contract Management Agency
Carson, CA
Russell B. Kinner, Esq.
Patrick M. Klein, Esq.
David W. Tyler, Esq.
Trial Attorneys
U.S. Department of Justice
Washington, DC
OPINION BY ADMINISTRATIVE JUDGE MELNICK ON APPELLANT'S
MOTION FOR RECONSIDERATION AND REQUEST FOR REFERRAL TO THE
SENIOR DECIDING GROUP
Kellogg Brown & Root Services, Inc. (KBR), seeks referral of these appeals to
the Board's Senior Deciding Group, and seeks reconsideration of the Board's
November 19, 2018 decision denying the appeals.*
* The Professional Services Council and the National Defense Industrial Association
filed a supporting brief as amici curiae. KBR was also supported by a letter
from the International Stability Operations Association. KBR also seeks oral
argument upon its motion for reconsideration, which is denied.
Requests that an appeal be referred to the Board's Senior Deciding Group are
addressed in the Board's Rules and Charter. ASBCA Rules, Preface,§ II(c); ASBCA
Charter, 84 Fed. Reg. 4360-0L 4361 (Feb. 15, 2019) (to be codified at 48 C.F.R .. ch.
2, appx. A, pt. 1. i13). The Chairman has considered KBR's request pursuant to those
provisions and denies it.
Motions for reconsideration do not grant "an opportunity to reargue issues that
were previously raised and decided." John C. Grimberg Co., ASBCA Nos. 58791,
59717, 19-1BCAi137,227 at 181,211 (citing Precision Standard, Inc., ASBCA
No. 58135, 16-1BCAi136,504 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. (quoting Dixon v. Shinseki, 741 F.3d 1367, 1378
(Fed. Cir. 2014)). Motions for reconsideration are granted "ifwe have made a genuine
oversight that affects the outcome of the appeal." Id. (quoting Relyant, LLC, ASBCA
No. 59809, 18-1BCAi137,146 at 180,841). KBR's motion reargues some points
already considered by the Board, raises new arguments it could have previously
advanced but did not, and substitutes prior contentions with new ones that it now
prefers. But mostly, it does not persuade us that we have made an oversight that affects
the outcome of the appeal
CONCLUSION
KBR's motion for reconsideration is denied.
Dated: May 1, 2019
2Lt{~
MARK A. MELNICK
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
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
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I
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. 57530, 58161, Appeals of
Kellogg Brown & Root Services, Inc., rendered in conformance with the Board's
Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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