Board of Contract Appeals General Services Administration Washington, D.C. 20405 RECONSIDERATION DENIED: May 4, 1999 GSBCA 14340-R CLARK CONCRETE CONTRACTORS, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Michael Evan Jaffe, Richard J. Webber, and Debra M. Daumit of Arent Fox Kintner Plotkin & Kahn, PLLC, Washington, DC, counsel for Appellant. Gerald L. Schrader and Kevin J. Rice, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), NEILL, and GOODMAN. DANIELS, Board Judge. Among the hundreds of issues presented by the parties and addressed by the Board in its decision in Clark Concrete Contractors, Inc. v. General Services Administration, GSBCA 14340 (Mar. 15, 1999), respondent, the General Services Administration (GSA), asks us to reconsider our determinations as to three. The motion cites no valid ground for reconsideration as to any of these matters. We consequently deny the motion. The first issue is whether the contractor completed concrete work on the north half of the B2 slab on August 18, 1995, as contended by the contractor, or five days later, as maintained by the agency. Our determination on this issue affects the percentage of the delay in construction which should be attributed to each party and consequently, the proportion of delay damages each side must bear. The B2 slab was laid out in twenty pours of roughly equal size, arranged in a checkerboard pattern consisting of five columns and four rows. The Board held for the contractor for the simple reason that as of August 18, all of the eight pours at the northern end of the floor, and two of the four pours in the next row, had been made. See Exhibit 552 at pour area illustration. This matter was previously briefed, Respondent's Brief at 19; Appellant's Reply Brief at 7, and our determination was made after considering the points made by the parties. As our Rules of Procedure state, "Arguments already made and reinterpretations of old evidence are not sufficient grounds for granting reconsideration." Rule 132(a) (48 CFR 6101.32(a) (1998)). GSA's motion falls afoul of this rule. In any event, the agency's position on this point is silly. GSA thinks that the north half of the floor may not be considered to have been completed until pours one through ten were finished, and although pours 1-8, 10, and 11 were done by August 18, pour 9 was not. We cannot imagine how the numerical designation of a pour area might affect whether half of a floor was finished or not. Because of the way in which the pours were arranged, no true "north half" could ever have been completed; before the middle row was approached, only forty percent of the pours were finished, and after it was completed, sixty percent were done. The end of work on two of the four pours in that row (being ten of twenty pours on the floor) is the only conceivable place to consider half of the concrete work finished. The second issue as to which GSA seeks reconsideration is the extent to which stripping formwork from concrete is more productive above ground than below. The Board concluded that the answer is fifty percent. We based this finding on the only evidence in the record on the matter, the testimony of an expert witness, David R. Tortorello of Peterson Consulting LLC, who had been presented by the contractor. GSA asserts that our conclusion "is not supported by any credible evidence in the record and is contrary to law." Motion at 12. Credibility is a matter which is within the province of the Board to determine. We found Mr. Tortorello's testimony to be credible. The witness testified that he had reached his conclusion after considering, in addition to his own experience, information provided by Raymond E. Sowers, Jr., the contractor's concrete project manager; Peter Kaye, an assistant concrete project manager; and George Zacharkiw, a colleague of Mr. Tortorello's at Peterson Consulting who provided scheduling assistance to the contractor during the work and who testified as an expert in construction management, construction management of cast-in-place concrete, and scheduling. Transcript at 494-95. Mr. Sowers also testified as to this matter, and although he did not mention a specific percentage as the extent to which stripping formwork is more productive above ground than below, his testimony was supportive of the general proposition that stripping is much more productive above ground. Id. at 56-58. Wesley Reynolds, another assistant concrete project manager, also gave testimony in support of this point. Id. at 213-16. Mr. Zacharkiw testified at the hearing, too, though he was not questioned about this subject. GSA did not cross-examine any of these witnesses on this matter and did not ask any of its own witnesses about it. We remain convinced that in light of this record, our assessment of Mr. Tortorello's credibility on the point was correct. GSA's argument that our acceptance of Mr. Tortorello's testimony was contrary to law apparently relies on three court and board of contract appeals decisions, Luria Brothers & Co. v. United States, 369 F.2d 701 (Ct. Cl. 1966); R. W. Contracting, Inc., ASBCA 24627, 84-2 BCA 17,302; and Commerce International Co. v. United States, 338 F.2d 81 (Ct. Cl. 1964). None of these decisions supports the proposition advanced by the agency. In Luria Brothers, the court discounted an expert witness's testimony, because it felt the testimony had been influenced by the witness's prior, long-term employment by one of the parties, and because the estimates he gave were much higher than those testified to in other cases involving similar conditions. 369 F.2d at 712-14. Similarly, in R. W. Contracting (which cites Luria Brothers) the board did not accept a witness's broad generalizations which it found to be without basis. 84-2 BCA at 86,213, 86,217-18. The fact that a court or board did not accept expert testimony in one case does not mean, of course, that every court and board must not accept expert testimony in any case. These two cases do not establish a controlling guide for us here; they are merely examples of instances in which tribunals considering other expert testimony had reasons for coming to an opposite conclusion about the credibility of the testimony than we came to here. Mr. Tortorello's testimony, unlike those of the witnesses in these two cases, was not tainted by long-term employment by a party and was supported by other evidence of record. Furthermore, GSA, by failing to object to the basis of the testimony at hearing, may not do so later. Wright & Gold, Federal Practice and Procedure: Evidence 6275 at 354 (1997). The cited portion of Commerce International deals with another subject altogether -- whether a contractor may recover delay damages in instances of concurrent or intertwined delays -- and is not applicable to the form stripping issue. See 338 F.2d at 89-90. GSA also contends that Mr. Tortorello's testimony is "refuted by other more reliable evidence." Motion at 13. The supposedly "more reliable evidence" has to do with the relative efficiency of stripping formwork composed of plywood frames and stripping formwork composed of fiberglass pans. This is a different matter from the above/below ground issue, and in the underlying decision, we treated it as such. It is related to the issue under discussion in that with small exceptions, the contractor used plywood frame formwork below ground and fiberglass pan formwork above ground. We found that the relative inefficiencies in stripping of fiberglass pans counter-balanced, to some uncertain degree, the relative efficiencies in stripping formwork above ground. The contractor used Mr. Tortorello's estimate as the basis for an adjustment in the calculations of cost increases in stripping of formwork which resulted from the agency's actions. In part because of the existence of the counter-balancing consideration, we declined to make the adjustment the contractor proposed. In light of our rejection of the contractor's position on this matter, the reason for the request for reconsideration is unclear. GSA's current suggestion that because stripping pan formwork is less efficient than stripping plywood formwork, the Board must adjust recovery all the way down to zero makes no sense whatsoever. The third and last issue as to which GSA seeks reconsideration is whether the Board may consider as sufficient basis for awarding claimed costs incurred by subcontractor KTLH Engineers, P.C., the testimony of KTLH's executive vice president and the document he developed which lists the elements of this part of the claim. GSA maintains that all costs associated with KTLH must as a matter of law be denied because this subcontractor provided the agency's cost expert with "no basis for its claimed estimates and no data to support the accuracy of the claimed costs." Motion at 16. In support of the request for reconsideration on this matter, GSA cites Bath Iron Works Corp. v. United States, 34 Fed. Cl. 218 (1995), which contains, at 232-34, considerable discussion of Rule 1006 of the Federal Rules of Evidence. This Rule states: The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. There are two significant problems with the agency's argument. First, we have no reason to believe that any "voluminous writings" support the claim for KTLH's costs. If such documents do not exist, Rule 1006 is not applicable to this part of the contractor's claim. As the vice president's testimony and the document he created demonstrate, each element of the claim consists simply of the vice president's estimate of additional hours required to perform a function, multiplied by the subcontractor's unit price for the performance of that task. Whether the estimates of hours were developed through any process other than the witness's highly informed experience is not apparent from the record. Second, even if "voluminous writings" do support the claim, we have no reason to believe that there was any violation of Rule 1006's requirement that those documents "be made available for examination or copying." Neither the agency's expert's report, nor the agency itself, have suggested that anyone associated with GSA ever asked to see the documentation. See Exhibit 551 at 128. Significant problems found by the court in Bath Iron Works -- the contractor did not make available the documents in question and did not call as witnesses any of the individuals who prepared them (thereby precluding verification of the accuracy of the documents and cross-examination about them), and it did not announce an intention to offer those documents as summaries until closing argument -- did not occur in our case. The fact remains that GSA never objected to the KTLH vice president's testimony or to the inclusion in the record of the document he prepared, never cross-examined this witness in any detail about the substantiation for his conclusions, and never asked any other witness (including its own experts) about KTLH's claimed costs. Whether KTLH provided any documentation after the GSA experts prepared their report, but before hearing (as at least one other subcontractor, Performance Contracting, Inc., did, see Exhibits 551 at 115-16, 118; 1350-78; Transcript at 908- 29) is unknown to us. In any event, we concluded that the unquestioned evidence which was presented as to KTLH's increased costs was sufficient to serve as a basis for recovery, and GSA has given us no reason to modify that conclusion. Decision GSA's motion for reconsideration is DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ EDWIN B. NEILL ALLAN H. GOODMAN Board Judge Board Judge