_____________________________________________________________ MOTION FOR RELIEF FROM DECISION AND RECONSIDERATION DENIED: August 11, 1994 _____________________________________________________________ GSBCA 11909-R ADELAIDE BLOMFIELD MANAGEMENT COMPANY, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Darryl L. Thompson, Anchorage, AK, counsel for Appellant. Sharon A. Roach, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), HENDLEY, and BORWICK. BORWICK, Board Judge. Background Adelaide Blomfield Management Co. (ABM), pursuant to Rule 33, seeks reopening of the record in, and pursuant to Rule 32, reconsideration of, our decision in Adelaide Blomfield Management Co. v. General Services Administration, GSBCA 11909, 94-2 BCA 26,679. The appeal involved a claim of $1,498,000 for overtime heating, ventilating, and air conditioning (HVAC) electricity services to a computer room provided under ABM's lease to the Government (through the General Services Administration (GSA)) of a general purpose office building in Anchorage, Alaska. ABM's claim was based on paragraph fifteen of the lease, wherein GSA agreed to pay ABM $30.00 per hour for overtime electricity services for "all or any part of the building." That rate was only effective for the first year of the lease, and was to be renegotiated annually thereafter. The parties did not renegotiate that rate after the first year. In a split decision we awarded ABM $32,362.88 for the overtime services. Judge Daniels found that ABM had not demonstrated that it had provided the HVAC unit; thus he determined that ABM had not proved that it actually provided the HVAC services to the computer room during overtime hours. He nevertheless awarded the market value of the electricity the HVAC unit consumed over the claim period. Judge Hendley concurred. Judge Borwick dissented from the majority's position, concluding that appellant was entitled to overtime electricity services for the first year of the claim period at the $30.00 rate of paragraph 15, since GSA had agreed to pay for overtime services at that rate for "all or any part of the building" and because the computer room was "part of the building." Because that rate was not renegotiated, however, Judge Borwick, relying on David Nassif Associates v. United States, 557 F.2d 249, 258 (Ct. Cl. 1977), would have supplied a missing term of the lease and granted only the actual cost of electricity beyond the first year of the claim period. ABM seeks reopening of the record to consider newly discovered evidence, i.e., invoices, which it says establish that it provided the HVAC equipment for the computer room. ABM admits that ownership of the cooling equipment was a subject of discovery in the case; thus "several times during the discovery phase of the appeal," the keeper of the company's records, Shelby Blomfield, "searched for documents relating to ownership of this unit by pouring through all of [ABM's] stored records - 20 boxes." Motion for Reconsideration at 5. ABM admits that ownership of the unit was a subject raised at the hearing. Motion for Reconsideration at 6-7. After receipt of the Board's decision, Ms. Blomfield looked again and found Appellant's Exhibits 8 through 10 to the motion for reconsideration. She states in her affidavit: These documents were in an unmarked box located under other boxes of our personal records. All of [ABM's] boxes are marked as [ABM's] office records and were stored on the other side of the storage room. These documents were intermingled in a unmarked box with a variety of our personal records. Affidavit of Shelby Blomfield 29 (Mar. 8, 1994). Exhibit 8 is a shipping invoice dated March 18, 1985, from Air-King, Alaska to Mard's Plumbing and Heating for the shipment for a Data-Aire dry-cooler, a Data-Aire room air conditioner, an expansion tank and a pump.[foot #] 1 Exhibit 9 is an invoice from Walt Pease & Associates dated April 1, 1985, to ABM for $88,368.40 (less prepayment of $10,000) for unspecified labor and material for the job entitled "9th & Barrow." Mr. Pease of ----------- FOOTNOTE BEGINS --------- [foot #] 1 Data-Aire models were used to supply cooling to the computer room which was the subject of the claim. See Finding 17, 94-2 BCA at 132,708. ___ ----------- FOOTNOTE ENDS ----------- Walt Pease & Associates swears in an affidavit that based on those documents, his firm installed the equipment in the computer room for ABM. Affidavit of Walter Pease (Mar. 9, 1994). Discussion Rule 33 provides in pertinent part: (a) Grounds. The Board may relieve a party from the operation of a final decision or order for any of the following reasons: (1) Newly discovered evidence which could not have been earlier discovered, even through due diligence; . . . . (c) Time for filing. Any motion under this rule shall be filed as soon as practicable after the discovery of the reasons therefor, but in any event no later than 120 calendar days or, in protests and in appeals under the small claims procedure of Rule 13, no later than 30 calendar days after the date of the moving party's receipt of the decision or order from which relief is sought.2 Rule 32 provides in pertinent part: (a) Grounds. Reconsideration may be granted, a decision or order may be altered or amended, or a new hearing may be granted, for any of the reasons stated in Rule 33(a) and the reasons established by the rules of common law or equity applicable as between private parties in the courts of the United States. Reconsideration, or a new hearing, may be granted on ____________________ 2 Respondent argues the motion for reconsideration is untimely as it was received here on March 11, 1994, more than thirty calendar days after ABM's receipt of the decision. ABM says it received the Board's decision on February 7, and that it mailed the motion with a postmark on March 9. ABM argues it relied on our old Rule 1(b)(3), 48 CFR 6101.1(b)(3)(1993), that in appeals, "the filing date of a document that has been mailed through the United States Postal Service is the date that it has been mailed." Our new Rule 1(b)(5)(i), 58 Fed. Reg. 69246, 69251 (Dec. 30, 1993), states that any document, other than a notice of appeal, is filed when it is received by the Office of the Clerk of the Board during the Board's working hours. Our new rules were effective on January 3, 1994, but ABM says it was supplied with our new Rules only after it had submitted its motion for reconsideration. In that ABM was unaware of the subtle, but important, change in the filing Rule, we will apply the old procedure and deem ABM's motion timely. Rule 1(a). all or any of the issues. Arguments already made and reinterpretations of old evidence are not sufficient grounds for granting reconsideration. For granting relief either under Rules 32 or 33 on the basis of "newly discovered evidence," we have held that a moving party must show that the evidence at issue: (1) was discovered after the decision; (2) could not have been discovered earlier by the exercise of due diligence; (3) is not merely cumulative or impeaching; (4) is material; and (5) would probably produce a different result. Gilroy-Sims and Associates, GSBCA 6277-R, et al., 90-3 BCA 22,986, at 115,449. Here, ABM cannot introduce the new evidence--the invoices purporting to show ABM's ownership of the HVAC units--because it has not shown that the evidence "could not have been discovered earlier by the exercise of due diligence." Indeed, the record establishes that these invoices could have been discovered before trial had ABM employees searched more diligently. These documents were the subjects of respondent's discovery request. ABM employees, prior to the hearing, searched for documents in a storage room; unfortunately, they did not look in all of the boxes in the storage room, but only in boxes stored in one part of the room and marked as containing ABM's business papers. Before trial, had they looked in all of the boxes, as they did after receipt of the decision, they would have found the invoices. ABM had possession of the invoices, but simply did not find them in a timely manner. See Koll Construction Co. v. General Services Administration, GSBCA 12306-R, 94-2 BCA 26,599, at 132,345 (evidence which is in contractor's possession and routinely accessible not "newly discovered"). Therefore, we do not reopen the record to consider the invoices in determining whether appellant owned the HVAC unit. Decision ABM's motion for relief from and reconsideration of the decision is DENIED. ________________________________ ANTHONY S. BORWICK Board Judge We concur: ____________________________ STEPHEN M. DANIELS Board Judge _____________________________ JAMES W. HENDLEY Board Judge