Board of Contract Appeals General Services Administration Washington, D.C. 20405 RECONSIDERATION GRANTED: March 23, 1999 GSBCA 14639-R TWIGG CORPORATION, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Fred A. Mendicino of Watt, Tieder, Hoffar & Fitzgerald, L.L.P., McLean, VA, counsel for Appellant. Kathleen M. McCartney, Office of Regional Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), NEILL, and GOODMAN. DANIELS, Board Judge. The General Services Administration (GSA), respondent, moves us to reconsider our decision in this case, Twigg Corp. v. General Services Administration, GSBCA 14639 (Jan. 12, 1999). We grant the motion, modifying the decision, vacating the relief ordered, and reopening the record to accept additional evidence. The case involves a construction contract between GSA and Twigg Corporation (Twigg). A Department of Labor Davis-Bacon Act wage determination was included in the invitation for bids to which Twigg responded. Before the contract was awarded -- more than ninety days after bid opening -- the Department of Labor issued a new wage determination which was applicable to the work to be performed, incorporating higher wages and benefits for electricians in the relevant jurisdiction. The question posed by the parties was whether the contract price should be equitably adjusted to compensate Twigg for increased labor costs which were incurred by a subcontractor, Walker/Seal Joint Venture (Walker/Seal), and associated with the change in wage determinations. Twigg maintained that it should be paid an amount consisting of the difference in wage and benefit rates between the two wage determinations, multiplied by the number of hours Walker/Seal expected to devote to this project, with appropriate markups. GSA had no quarrel with Twigg's calculation of the amount to be paid in the event we found for the contractor on entitlement. The agency objected to payment on a single ground: Because Walker/Seal is a union contractor which pays wages at rates specified in collective bargaining agreements, it had to pay higher wages due to the collective bargaining agreement whose terms were incorporated in the new wage determination, and not because of the new wage determination itself. We rejected GSA's argument. We concluded that Twigg was entitled to be paid the difference between the wage and benefit rates envisioned in Walker/Seal's bid and rates prescribed for equivalent labor in the later wage determination, multiplied by an appropriate number of hours and supplemented by markups. Noting that GSA had not objected to Twigg's calculations of damages, we awarded the amount sought. In asking us to reconsider our decision, GSA primarily reargues its original contention that because Walker/Seal raised its wage and benefit rates to comply with the terms of a collective bargaining agreement, the contractor should not receive any compensation for the substitution in the contract of one wage determination for another. Our Rules of Procedure explain that "[a]rguments already made and reinterpretations of old evidence are not sufficient grounds for granting reconsideration." Rule 132(a) (48 CFR 6101.32(a) (1998)). We will not revisit this issue. The agency also raises a new issue in its motion, however. It alleges that the Board's finding that Walker/Seal's bid to Twigg (and consequently, Twigg's bid to GSA, since Twigg's bid incorporated the subcontractor's) was based on the wage and benefit rates in the wage determination in effect at the time of bidding is not supported by the record. The agency now desires discovery on this matter. The new assertion deserves attention. The one and only piece of evidence in the record on this matter is a statement in an affidavit by Michael Walker, Walker/Seal's principal. The statement is: As part of the estimating process, Walker/Seal utilized the prevailing wage rate for electricians of $22.70 set forth in [the earlier wage determination] in order to assist in formulating a baseline labor rate for pricing the labor component of its estimate. Twigg . . . utilized Walker/Seal's estimate in conjunction with the submission of its bid for the Project. GSA did not comment directly on this statement in briefing the case. The agency's only statement which may have relevance to the wage rates which Walker/Seal considered in making its bid is that as a union contractor, this subcontractor pays union wages. (The rates stated in each wage determination were identical to those specified in collective bargaining agreements applicable in the jurisdiction in question.) When reconsideration of a decision is requested, a tribunal must "strike a delicate balance between two countervailing impulses: the desire to preserve the finality of judgments and the 'incessant command of the court's conscience that justice be done in light of all the facts.'" Koll Construction Co. v. General Services Administration, GSBCA 12306-R, 94-2 BCA 26,599, at 132,344 (1993) (quoting Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 401 (4th Cir. 1981)). Where a judgment on the merits has been rendered, the balance is tipped toward respecting finality. Id. at 132,345. Reconsideration is not appropriate where a party seeks to have us consider evidence relevant to a matter in dispute which the party had in its possession, while the record was open, but failed to introduce. Singleton Contracting Corp., GSBCA 9615-R, et al., 91-1 BCA 23,344 (1990); Gilroy-Sims & Associates, GSBCA 8720-R, et al., 88-3 BCA 21,085, aff'd, 878 F.2d 1447 (Fed. Cir. 1989) (table). Reconsideration is also inappropriate for the purpose of introducing issues which could have been raised earlier, but were not. Principal Mutual Life Insurance Co. v. General Services Administration, GSBCA 13088-R, et al., 97-2 BCA 29,328. Nor may a party seek on reconsideration to object to another party's portrayal of facts to which it did not object while the case was pending. Sysorex Information Systems, Inc., GSBCA 10642-P-R, 91-1 BCA 23,334 (1990), aff'd, SMS Data Products Group, Inc. v. Austin, 940 F.2d 1514 (Fed. Cir. 1991). Reopening the record to receive additional evidence is appropriate only where exceptional circumstances have been shown. Examples of such circumstances are the following: the defects requiring reconsideration were not due to the moving party's "fault or negligence"; the issues needing further attention could not have been anticipated prior to the closing of the record; and material evidence exists to indicate that findings of fact central to the ultimate decision are in error and that inclusion of the new evidence would probably produce a different result. Reconsideration is always appropriate where the tribunal is convinced that correcting the original decision may be necessary to avoid a manifest injustice. Sperry Corp., GSBCA 8208-P-R, 86-2 BCA 18,821, at 94,842; Hof Construction, Inc., GSBCA 7027-R, 85-2 BCA 17,938, at 89,856-57 (1984). Although Mr. Walker's affidavit statement is clearly material to a proper resolution of this case, and GSA could and should have commented on it earlier, the motion for reconsideration is well taken insofar as it addresses the baseline from which an equitable adjustment should be made to the contract price. Neither party's having focused on this matter in its brief is perhaps understandable in light of the way in which the case was approached -- Twigg thought it should receive all the money it sought simply because one wage determination was substituted for another, and GSA believed the contractor was entitled to no money because of the impact of the new collective bargaining agreement. More important, we are concerned that on second look, the affidavit statement is not as broad as we had assumed, given GSA's lack of comment on it. Walker/Seal's having used the wage rate in the earlier wage determination "to assist in formulating a baseline labor rate for pricing the labor component of its estimate" does not establish that the specified wage rate was itself a component of the subcontractor's bid, and it does not support our finding that Walker/Seal "did not include in its price any contingency for having to pay higher wages and benefits." The finding we made earlier is an essential condition to the amount of recovery we prescribed. Although the record does not contain any evidence that Walker/Seal did include a contingency in its price, this in itself is a questionable foundation for the finding we made on this key point. In opposing the motion for reconsideration, Twigg has not provided any justification for the finding, casting into doubt the accuracy of our conclusion. Since the finding is not soundly based, the measure of recovery which followed from it may not be correct, and the decision may be unjust. Twigg correctly maintains, in response to the motion for reconsideration, that GSA's request for additional discovery constitutes nothing more than a fishing expedition. This weakens GSA's contention that reconsideration should be granted, since the agency has no evidence on which to suggest that our finding is not accurate. Nevertheless, the agency's motion raises a more fundamental problem: without conclusive proof of the wage and benefit rates on which Walker/Seal's bid was based, encompassing a demonstration as to the extent (if any) of the bid's inclusion of a contingency for increased labor rates, we cannot properly determine the amount of the contractor's recovery. The burden is on Twigg, as the party making the claim, to provide that proof. Twigg may have come much closer to the mark than GSA, in its briefing of this case, but that does not mean that the Board may (as it earlier did) conclude without substantial evidence that the contractor should recover all the money it seeks. Decision GSA's motion for reconsideration is GRANTED. The Board's decision in this case is modified to delete the finding that Walker/Seal "did not include in its price any contingency for having to pay higher wages and benefits" and to vacate the relief ordered. The Board reopens the record to accept additional evidence on the matter addressed in the deleted finding. The presiding judge will convene a telephonic conference with counsel in the near future to schedule further proceedings as to the presentation of such evidence. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ EDWIN B. NEILL ALLAN H. GOODMAN Board Judge Board Judge