Board of Contract Appeals General Services Administration Washington, D.C. 20405 RECONSIDERATION DENIED: July 22, 1999 GSBCA 14402-R ROI INVESTMENTS, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Larry I. Hanson and Jon C. Manzo of Hanson & Clark, Madison, WI, counsel for Appellant. Kevin J. Rice, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), NEILL, and HYATT. DANIELS, Board Judge. ROI Investments (ROI), appellant, seeks reconsideration of our decision in ROI Investments v. General Services Administration, GSBCA 14402, 99-1 BCA 30,353. We deny the motion. ROI maintains that the Board's decision "was not equitable and was contrary to the spirit of fairness and justness within the law." Motion at 1-2. Appellant does not explain the basis for this assertion, however. Instead, it for the most part simply restates contentions it made earlier and points to evidence which was in the record at the time. Our Rules of Procedure state explicitly, "Arguments already made and reinterpretations of old evidence are not sufficient grounds for granting reconsideration." Rule 132(a) (48 CFR 6101.32(a) (1998)). ROI does ask that we modify the opinion in the case to include three findings of fact from sources not in the record. Two of these proposed findings are based on deposition testimony provided by Nancy C. Hajne, the General Services Administration (GSA) contracting officer responsible for the contract in question during most of the time relevant to this case. The presiding judge sustained the Government's objection to including in the record the transcript of Ms. Hajne's deposition, noting that Ms. Hajne would testify at hearing and stating, "If there's anything important to hear from [this witness], I'd prefer to hear it myself." Transcript at 9-10. Appellant's counsel accepted this ruling. Id. at 10 ("That's fine."). ROI had full opportunity to question Ms. Hajne at hearing, and if it neglected to elicit from her testimony about something it believed would advance its position, that is not an omission for the Board to cure on reconsideration. The third newly-proposed finding of fact is based on a ruling of the Court of Appeals of the State of Wisconsin in litigation between ROI and Community National Bank. We will return to this subject later. We sense in reading the motion for reconsideration that ROI does not fully understand the Board's opinion in this case. In the hopes that a more concise statement of our conclusions will be more comprehensible, we set forth the following, on an issue- by-issue basis: 1. ROI and GSA modified the lease by entering into Supplemental Lease Agreement (SLA) 7. Under SLA 7, ROI was entitled to "unit cost" adjustments stemming from the build-out of space newly added to the leased area only if the number of telephone or electrical outlets, interior partitions, or interior doors ordered by GSA was more than the number included in the "approved layout which the Government attached to the Special Requirements."[foot #] 1 ROI was not entitled to such adjustments, as it thinks, if GSA ordered a number of any of these items which was more than the number calculated in accordance with ratios included in the original lease. ROI did not prove that GSA ordered more of any of the items than was included in the approved layout. Therefore, ROI's claim for unit cost adjustments was denied. 2. SLA 7 increased the rate for rental of space in the building beginning on May 1, 1993. Under the lease, however, ROI was entitled to receive rent "only when the entire premises or suitable units are ready for occupancy. If the agency occupies the space in partial increments, rent will accrue or be paid on a pro rata basis." Because Block B was not ready for occupancy ----------- FOOTNOTE BEGINS --------- [foot #] 1 The motion for reconsideration asks, "Why would ROI agree to this arrangement before having first obtained a final interior layout prepared by GSA?" Motion at 5. This question is better posed to ROI than to the Board. The fact is that ROI did agree to the arrangement by signing SLA 7. ----------- FOOTNOTE ENDS ----------- until February 1, 1994, the lease required GSA to pay rent at the new rate only for the Block A space, on a pro rata basis, from May 1, 1993, until February 1, 1994.[foot #] 2 SLA 7 also allowed GSA to assess liquidated damages at the rate of $150 per day from August 24, 1993, until February 1, 1994, because delivery of Block B was delayed during this time and the delay was for reasons not beyond ROI's control. The lease does not require that GSA choose between not paying rent on unoccupied space and imposing liquidated damages; it provides for both. 3. GSA paid to ROI, not Community National Bank of Oregon, Wisconsin, all rent required by the lease for the months of September, October, and November, 1995. In accordance with ROI's instructions, GSA put the money in ROI's account at that bank. If the bank withdrew for its own benefit funds from the account, that does not affect our finding that GSA complied with its obligations. 4. The portion of ROI's claim involving recovery of attorney fees awarded by a Wisconsin court from ROI to the bank does not involve GSA. Because the Board adjudicates matters between certain Government agencies (including GSA) and their contractors, not between private parties, we cannot grant this element of the claim. Even if we could, ROI would not prevail. The appellant now makes explicit its contention that "GSA caused these damages [the attorney fees] by sending the $32,596.70 to Community National Bank instead of ROI." Motion at 4. We have found (see 3 above) that GSA paid the rent to ROI, not the bank. In an amendment to its motion for reconsideration, ROI informs us that it prevailed at the Court of Appeals of the State of Wisconsin in its litigation against the bank. ROI says that contingent on the bank not filing a petition for review of the court's decision by the Wisconsin Supreme Court, "ROI . . . acknowledges that the rent claim . . . for the months of September, October and November, 1995 should be considered dismissed." Such a petition was not filed within the time allowed by Wisconsin law. To the extent that ROI may be saying that it is no longer pursuing the rental payments, and therefore does not seek reconsideration of our original decision as to that matter, that is of no moment, since the appellant never gave any good reason for reconsideration. To the extent that ROI may be seeking a dismissal, rather than a denial, of this portion of the appeal, that would involve vacating part of our earlier decision. We do not take this course of action because absent some extraordinary circumstance (which is not present here) the public ----------- FOOTNOTE BEGINS --------- [foot #] 2 ROI now maintains that by not paying as much in rent as SLA 7 required, beginning on May 1, GSA breached the contract. Motion at 1-2, 6. Whether a breach occurred is immaterial, however, since ROI's claim is for moneys it believes it is owed under the contract, not for breach of contract. _____ ----------- FOOTNOTE ENDS ----------- interest would not be served by allowing a losing party to have a loss washed away by erasing a published decision. Cf. U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994) (rejecting vacatur of subordinate court decision in case settled after review sought); see also Computer Data Systems, Inc. v. Department of Energy, GSBCA 12824-P-REM, 95-2 BCA 27,605 (applying U.S. Bancorp in context of settlement); Ordnance Devices, Inc., ASBCA 42709, 99-1 BCA 30,304 (same). Decision The motion for reconsideration is DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _______________________ _________________________ EDWIN B. NEILL CATHERINE B. HYATT Board Judge Board Judge