Appeals of
JODY BUILDERS CORPORATION

PSBCA Nos. 5047 and 5178

Under Contract No. 232098-02-B-0108

APPEARANCE FOR APPELLANT:
Peter L. Agovino, Esq.
Agovino & Asselta, LLP

APPEARANCES FOR RESPONDENT:
Ruth L. Gottlieb, Esq.
Northeast Law Office
United States Postal Service
8 Griffin Road North  
Windsor, CT  06006-0170

Alfred J. Zwettler, Esq.
Atlanta Law Office
United States Postal Service
3980 DeKalb Technology Pkwy.
Atlanta, GA 30340-2887

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

            Respondent, United States Postal Service, has filed a motion seeking reconsideration of the Board’s Opinion in the captioned appeals, Jody Builders Corp., PSBCA Nos. 5047, 5178, 08-2 BCA ¶ 33,959.  Appellant filed an opposition to the motion that addresses all of Respondent’s objections.  As the arguments of the parties are adequately developed in their written submissions, Respondent’s request for oral argument is denied.  The facts are stated in the Opinion and will be repeated here only as necessary to address Respondent’s Motion.

            Respondent terminated for default Appellant’s contract to build a postal facility in Bushkill, Pennsylvania because Appellant failed to complete the project by the completion date stated in the contract.  However, Appellant’s initial work at the site had been delayed because the erosion and sedimentation control plans issued as part of the solicitation had not been approved by the Pike County Conservation District (“PCCD”), and, as a result, local officials stopped Appellant’s work.  The Board found Appellant entitled to an extension of the performance period for the time its work was prevented by the absence of an approved Erosion and Sedimentation Plan (“E&S Plan”).  Additionally, because the delay pushed project earthwork into severe winter weather when the soil was unworkable, Appellant was found entitled to an extension reflecting the time its work was delayed by winter weather conditions.  As Respondent did not meet its burden of demonstrating that Appellant could not have finished within an appropriately extended performance period, the Board converted the termination to one for Respondent’s convenience and remanded the matter to the parties.

            In its Motion, Respondent argues that a number of the facts found by the Board were not supported in the record.  It is the function of the Board “to weigh the documentary evidence, testimony of the witnesses, and expert presentations and to choose among the competing facts, opinion and theories.”  See Dominion Eng’g Works, ENG BCA No. 6140-R, 97-1 BCA ¶ 28,850; 39 C.F.R. §955.14 (c).  We did so in reaching the findings of fact underpinning our decision.  Respondent disagrees with our evaluation of the evidence, but arguing that upon a second look at the same evidence we should make different findings is not a basis for reconsideration.  See M.E.S., Inc., PSBCA No. 4462, 06-2 BCA ¶ 33,430; Patricia J. Stevens, PSBCA No. 3272, 94-2 BCA ¶ 26,951 at 134,210.  We confirm our findings of fact, specifically reaffirming our findings that Respondent was responsible for obtaining approval of the E&S Plan and that in advance of the Plan’s approval Appellant could proceed with work on the site only in the limited way it did.

            Respondent challenges certain of the Board’s legal conclusions as well.  It argues that the Board mistakenly relied on cases that are inapplicable and failed to rely on cases that Respondent believes compel a decision that the contract’s Permits and Responsibilities clause placed responsibility for obtaining approval of the E&S Plan upon Appellant.^[1]

            The plans in the solicitation and contract, including Drawings C1.3, Erosion and Sedimentation Control Plan, and C2.3, Site Details, were prepared by Respondent’s architect and defined in detail the erosion and sedimentation controls Appellant was to install.  Respondent gave no notice that the plans had not received the required approval of the PCCD and no notice that Respondent expected Appellant to have any role in obtaining their approval.  As with the electrical design, plumbing design, or any of the other elements of the building project, Appellant had no reason to know that Respondent’s erosion and sedimentation controls plans did not comply with local requirements.  “[W]here the Government has included in the bid package design details in drawings . . .  prospective bidders can reasonably presume that such details will not conflict with incorporated local requirements.”  Huber, Hunt & Nichols, Inc., GSBCA No. 4311, 75-2 BCA ¶ 11,457 at 54,572.  Respondent’s drawings, including the erosion and sedimentation control drawings, were complete on their face, and Appellant had no responsibility to verify their correctness and adequacy prior to submitting its offer.  See Corner Constr. Co., ASBCA No. 20156, 75-1 BCA ¶ 11,326; Dale Constr. Co. v. United States, 168 Ct. Cl. 692, 698 (Ct. Cl. 1964).  Appellant’s duty under the contract to comply with applicable laws did not shift to Appellant responsibility for the delay lasting until the E&S Plan was approved.^[2]  See Middlesex Contractors & Riggers, Inc., IBCA No. 1964, 89-1 BCA ¶ 21,557 at 108,560; Castle Constr. Co., ASBCA No. 28509, 84-1 BCA ¶ 17,045 at 84,859.

            In its Motion, Respondent argues that the cases cited by the Board are distinguishable and do not support the Board’s Opinion, and cites as support for its Motion many of the cases it cited in its post-hearing brief.  Respondent’s arguments were considered fully by the Board in reaching its Decision, and repeating the same arguments is not a basis for reconsideration.  See M.E.S., Inc., PSBCA No. 4462, 06-2 BCA ¶ 33,430; Patricia J. Stevens, PSBCA No. 3272, 94-2 BCA ¶ 26,951 at 134,210; Montgomery-Ross-Fisher, Inc., PSBCA No. 1096, 84-3 BCA ¶ 17,607.  To the extent the arguments in the Motion differ slightly from those made in the post-hearing brief, Respondent has not shown that they could not have been made before.  Reconsideration is not meant to provide an opportunity to re-brief the case, and Respondent has shown no basis for granting reconsideration.  See West Wilson Enter., PSBCA Nos. 5203, 5219, 08-2 BCA ¶ 33,977; Environmental Safety Consultants, Inc., ASBCA No. 53485, 05-2 BCA ¶ 33,073 at 163,935-936.

            We have reviewed our findings of fact and application of law and have fully considered all of Respondent’s arguments.  Respondent has not shown any factual or legal errors that would warrant changing the Decision, or identified any newly discovered or unavailable evidence that would support reconsideration. See Patricia J. Stevens, PSBCA No. 3272, 94-2 BCA ¶ 26,951 at 134,210; Montgomery-Ross-Fisher, Inc., PSBCA No. 1096, 84-3 BCA ¶ 17,607.

            Respondent’s Motion for Reconsideration is denied.

Norman D. Menegat
Administrative Judge
Board Member

I concur:                                                                      I concur:
William A. Campbell                                                     David I. Brochstein
Administrative Judge                                                  Administrative Judge
Chairman                                                                    Vice Chairman

[1]  Respondent also criticizes the Board for finding Respondent liable for damages for a delay Respondent contends was caused by a third party, the PCCD.  In that regard, Respondent misreads the Opinion.  The Board did not address Appellant’s claims for extended overhead or other damages.

[2]  Under the contract’s Permits and Responsibilities clause, Appellant was “responsible, without additional expense to the Postal Service, for obtaining any necessary licenses and permits, and for complying with any applicable federal, state and municipal laws, codes and regulations in connection with the prosecution of the work.”  The approval process before the PCCD did not involve application for or issuance of a license or permit at any stage.