Board of Contract Appeals General Services Administration Washington, D.C. 20405 __________________________________________ RECONSIDERATION DENIED: January 27, 2000 __________________________________________ GSBCA 14149-R PROGRAM AND CONSTRUCTION MANAGEMENT GROUP, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Leonard A. White and Julia A. Novina, Bethesda, MD, counsel for Appellant. Martin A. Hom, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, NEILL, and GOODMAN. NEILL, Board Judge. Program and Construction Management Group, Inc. (PCMG) has moved that we reconsidered our decision of September 30, 1999, in which we denied the firm's claim for additional compensation for contract extensions. Program and Construction Management Group, Inc. v. General Services Administration, GSBCA 14149, 99-2 BCA 30,579. The contract in question was awarded by the General Services Administration (GSA) to PCMG for the upgrade of the fire safety system in three buildings occupied by the Department of State. For the reasons set out below, the motion is denied. Throughout these proceedings, appellant has contended that its claim is not based upon any alleged Government delays but simply upon the fact that the contract performance period was extended. The extensions for which appellant originally sought additional compensation were three in number. The first extension was for thirty days and was covered by contract modification AS-01. In requesting reconsideration, appellant accepts the Board's ruling denying additional compensation for this first extension. The second contract extension was for seventy-two days. It was called for in contract modification AS-02. This modification extended the contract performance time from 180 days to 252 days. The contracting officer testified at trial that this extension was authorized when the Government discovered, after contract award, that, although the contract solicitation had called for a 252-day performance period, the contract was negotiated on the basis of a 180-day performance period. In providing for the seventy-two day extension, the contracting officer recognized that appellant would be entitled to some compensation for this change. Appellant eventually submitted a claim. The claim consisted of labor and on-site overhead costs covering the period of the extension. The total claim was subject to the usual markup, which included a percentage markup for general and administrative expenses (G&A) (home office overhead). The Government had several objections to some of the individual components of PCMG's claim. At trial we found these objections to be reasonably based. Nevertheless, GSA did not object to the format of the contractor's claim. A counter- proposal was made but agreement remained out of reach. Eventually, after the start of this litigation, PCMG accepted payment of the sum proffered by the Government but with the understanding that it reserved the right to press for additional compensation in this appeal. The third extension was for sixty-two days and was called for in contract modification AS-03. This modification covered numerous changes and was the subject of prolonged negotiations between the parties. An agreement was eventually reached on the figure of $9000. When the contracting officer submitted the modification to PCMG for signature, however, appellant refused to sign on the ground that the $9000 figure did not cover the costs associated with the time extension of sixty-two days. As in the case of the seventy-two day extension, the parties, after this case entered the litigation phase, agreed to payment of the $9000 but with the understanding that PCMG reserved the right to press for additional compensation in this appeal. In its request for reconsideration, PCMG continues to insist that it is entitled to recovery of more G&A for the second and third time extensions than it was paid through standard G&A percentage markup on the amounts already paid by the Government since the initiation of this litigation. Such markups, according to appellant, are intended to relate only to changed work and do not compensate the contractor for home office overhead associated with the actual extension of the contract performance period. To recoup this cost, appellant has urged -- and continues to urge - - that the Board make it whole by awarding additional compensation based upon a constructive daily rate calculation such as that used in the Eichleay formula. We remain unconvinced of the correctness of appellant s major assumption that a fixed percentage markup for G&A applies only to changed work. We explained in our decision of September 30, 1999, that the burden of proving this fact rested with the claimant, and concluded that it had not been met. Appellant has not presented any new arguments in this regard and our conclusion consequently remains the same. Furthermore, even if PCMG were to prove that the G&A markups paid by the Government did not adequately compensate it for the two extensions still in question, we remain unconvinced that the requested form of relief, based as it is upon the use of a daily rate calculation such as that used in the Eichleay formula, would be appropriate. We noted in our decision that, under existing case law, a constructive daily rate for recovery of home office overhead such as that used in Eichleay cannot be used for pure extensions such as those which appellant alleges to exist in this case. We also noted that the use of a daily rate to compute extended home office overhead is an extraordinary remedy specifically limited to contracts affected by Government-caused suspensions, disruptions, and delays of work. C.B.C. Enterprises, Inc. v. United States, 978 F.2d 669 (Fed. Cir. 1992). In this case, appellant has alleged no such suspensions, disruptions or delays as the basis for its claim.[foot #] 1 The Government notes that in asking for reconsideration appellant has failed to distinguish C.B.C. Enterprises from the facts in this case or to cite contrary case law which might support PCMG's position. We agree. PCMG contends that our decision in this case appears to imply that a contractor is not entitled to any compensation when the Government simply extends the duration of a contract without changing the scope of work -- as might occur, for example, in the event of a mutual mistake. PCMG seeks clarification on this point. Appellant reads more into our decision than it should. Our decision simply stands for the proposition that, given the facts in this case, the Board has not been persuaded that PCMG is entitled to recover any more G&A than what GSA had already paid ----------- FOOTNOTE BEGINS --------- [foot #] 1 In its request for reconsideration, PCMG appears to accept the Board's finding that thirty-four days of the sixty- two day extension provided for in AS-03 were attributable to the Government's admitted delay. We denied compensation for this period of time on the ground that PCMG had repeatedly assured us that its claim was not a delay claim. In its request for reconsideration, PCMG again confirms this fact but nevertheless continues to seek compensation for these thirty-four days of delay. Appellant's Motion for Reconsideration at 3. We fail to perceive appellant's distinction between this continuing claim for compensation and a traditional delay claim. ----------- FOOTNOTE ENDS ----------- through a fixed percentage markup on amounts found due under the contract modifications providing for the extensions. As stated in the original decision, we did not find that the facts in this case support a finding of mutual mistake on the estimated duration of contract performance. PCMG s president and vice president both testified that, at the time the contract was negotiated, neither believed that the contract could be performed in the estimated number of days (180) used as the basis of negotiations. Any mistake as to the estimated duration of contract performance, therefore, was unilateral on the part of the Government negotiator. The mistake of appellant's management was to stand mute on this issue and to offer and permit acceptance of their offer fully knowing that it was based on an incorrect estimate. Appellant also apparently believes that our decision stands for the proposition that use of a fixed percentage markup must always be accepted as adequately compensating a contractor for the time extension associated with any contract change. This too is incorrect. The conclusion reached in our decision is simply that appellant failed to convince us in this case that the markup used did not provide adequate compensation. A brief theoretical discussion without citation to statute, regulation, or applicable case law is not enough to convince us that a such a markup for G&A applies only to changed work but not to the time component of a change. Such treatment hardly does justice to the complex issue it addresses. In short, we find nothing in appellant s request for reconsideration that has not already been considered. Our rules provide that arguments already made are not sufficient ground for granting reconsideration. Board Rule 132(a); Hof Construction Inc., GSBCA 8354-R , 92-1 BCA 24,669. Decision Appellant s motion for reconsideration is DENIED. _______________________ EDWIN B. NEILL Board Judge We concur: _____________________________ _______________________ ROBERT W. PARKER ALLAN H. GOODMAN Board Judge Board Judge