Board of Contract Appeals General Services Administration Washington, D.C. 20405 ___________________________________________________ MOTION FOR RECONSIDERATION DISMISSED AS UNTIMELY FILED, MOTION FOR RELIEF FROM DECISION DENIED: May 5, 2000 ___________________________________________________ GSBCA 12961-R HERMAN B. TAYLOR CONSTRUCTION CO., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Christina Stone of Gaughan & Stone, Houston, TX, counsel for Appellant. Sharon Chen, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before BORWICK, NEILL, and HYATT, Board Judges. BORWICK, Board Judge. Respondent seeks reconsideration under Board Rule 132 and relief from decision under Board Rule 133 of certain of our findings of fact in Herman B. Taylor Construction Co. v. General Services Administration, GSBCA 12961, 98-2 BCA 29,836, rev'd sub nom., Herman B. Taylor Construction Co. v. Barram, 203 F.3d 808 (Fed. Cir. 2000). Respondent's motion for reconsideration is untimely and, in any event, respondent has not shown cause for reconsidering the findings under Rule 132 or for relief from the decision under Rule 133. We dismiss respondent's motion for reconsideration and deny respondent's motion for relief from the decision. In the underlying case, we sustained respondent's termination for default of a renovation contract for the Federal Office Building and Courthouse, Galveston, Texas. We concluded that respondent had prevailed in the appeal for the termination for default on the basis of alleged violations of the Davis-Bacon Act, but had been unsuccessful in sustaining the three other grounds of termination. We issued our decision in the underlying case on June 24, 1998.[foot #] 1 Seventy-one days after the Board issued its decision, respondent moved for reconsideration, arguing that "even though these findings of fact are not critical to the ultimate decision of the Board, these particular facts act as collateral estoppel against the Government and prejudice the Government in GSBCA No. 13884.[[foot #] 2] The Government respectfully asks that these findings of fact be corrected." Respondent's Motion for Reconsideration at 2. Respondent disputes our finding 15 regarding pay applications seventeen and eighteen. We found that appellant had submitted pay application seventeen for $148,867.69, that by check dated March 25, the Government, without explanation, paid $96,353.64, and that if the Government had taken proper retainage, the payment would have been $133,980.93. Herman B. Taylor Construction Co. v. General Services Administration, GSBCA 12961, 98-2 BCA at 147,710-11. As to that pay application, respondent merely restates arguments that it made originally that the withholding was proper. We also concluded that appellant submitted pay application eighteen for $63,149.48, of which the Government agreed to pay only $20,419.60. Respondent correctly notes that the appellant never submitted the pay application for payment, and that the application was a draft "working copy," which was reviewed by the Government's management and inspection contractor and sent back to appellant for correction. Respondent's Motion for Reconsideration at 3; Transcript (GSBCA 13884) at 932-33. Respondent does not dispute our finding as to that application, be it preliminary or final, that the Government was prepared to cut the requested payment of $63,149.48 to $20,419.60. ----------- FOOTNOTE BEGINS --------- [foot #] 1 After an appeal by appellant, the United States Court of Appeals for the Federal Circuit has reversed our ruling on the Davis-Bacon Act issue and has remanded the matter to the Board for further proceedings, consistent with its opinion. Herman B. Taylor Construction Co. v. Barram, 203 F.3d 808, 815 _____________________________________________ (Fed. Cir. 2000). We suspended proceedings on respondent's motion for reconsideration until a decision had been rendered by the Federal Circuit. Herman B. Taylor Construction Co. v. ________________________________________ General Services Administration, GSBCA 12961-R, Board Order (May _______________________________ 13, 1999). The Federal Circuit having ruled, and its mandate of April 19, 2000, having been issued, the Board resumes consideration of this matter. [foot #] 2 The appeal referred to is Herman B. Taylor _________________ Construction Co. v. General Services Administration, GSBCA 13884, ----------- FOOTNOTE BEGINS --------- which is the contractor's equitable adjustment claim arising out of alleged Government-caused delay and Government-caused inefficiencies relating to the project. ----------- FOOTNOTE ENDS ----------- Discussion Respondent's motion for reconsideration was untimely, being filed seventy-one days after the Board issued its decision. Board Rule 132 provides that motions for reconsideration shall be filed within thirty calendar days of the date of receipt of the decision by the moving party. Rule 132(c). The Rule also provides that "arguments already made and reinterpretations of old evidence are not sufficient grounds for granting reconsideration." In addition to being untimely, appellant has not demonstrated that grounds for reconsideration exist, since the record supports the finding. The Board did take additional evidence on pay application eighteen in the hearing on the merits of the equitable adjustment claim, GSBCA 13884, and the distinction between a draft pay application and a final pay application will be considered in connection with that appeal. Appellant also seeks relief from the decision under Rule 133, but has not demonstrated the existence of "newly discovered evidence," or the parties' "justifiable or excusable mistake, inadvertence, surprise, or neglect." Rule 133(a)(1), (2). Decision The motion for reconsideration is dismissed and for relief from decision is denied. ____________________________ ANTHONY S. BORWICK Board Judge We concur: ________________________________ _____________________________ EDWIN B. NEILL CATHERINE B. HYATT Board Judge Board Judge