Ford Lumber & Building Supply, Inc.
Docket: ASBCA 61618
Decision date: 2019-12-18

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
Ford Lumber & Building Supply, Inc. 
Under Contract No. DACA27-1-96-9 
APPEARANCES FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 61618 
Timothy D. Hoffman, Esq. 
Lee A. Slone, Esq. 
Dinsmore & Shohl LLP 
Dayton, OH 
Michael P. Goodman, Esq. 
Engineer Chief Trial Attorney 
Nicole E. Angst, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, Louisville 
OPINION BY ADMINISTRATIVE JUDGE D'ALESSANDRIS 
ON APPELLANT'S MOTION FOR RECONSIDERATION 
In an opinion dated August 1, 2019, the Board granted in part the motion to 
dismiss filed by respondent, the United States Army Corps of Engineers (Corps or 
government) and dismissed ASBCA Nos. 61617 and 61618, but denied the Corps' 
motion with regard to ASBCA No. 61619. Ford Lumber & Building Supply, Inc., 
ASBCA No. 61617 et al., 19-1 BCA, 37,407 at 181,850 (familiarity with the facts is 
presumed). Appellant, Ford Lumber & Building Supply, Inc. (Ford), timely filed a 
motion for reconsideration with respect to ASBCA No. 61618 alleging that its claim 
letter asserted a claim for interpretation of the lease terms or for other relief (app. mot. 
at 2). For the reasons stated below, Ford's motion for reconsideration is denied. 
A motion for reconsideration is not the place to present arguments previously 
made and rejected. "[W]here litigants have once battled for the court's decision, they 
should neither be required, nor without good reason permitted, to battle for it again." 
Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014) (quoting Official Comm. of 
the Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 
167 (2d Cir. 2003)). Moreover, "[m]otions for reconsideration do not afford litigants 
the opportunity to take a 'second bite at the apple' or to advance arguments that 
properly should have been presented in an earlier proceeding." Dixon, 741 F.3d 
at 1378; see also Avant Assessment, LLC, ASBCA No. 58867, 15-1 BCA, 36,137 
at 176,384. On the other hand, if we have made mistakes in the findings of fact or 
conclusions of law, or by failing to consider an appropriate matter, reconsideration 

may be appropriate. See Robinson Quality Constructors, ASBCA No. 55784, 09-2 
BCA 1 34,171 at 168,911; L&C Europa Contracting Co., ASBCA No. 52617, 04-2 
BCA ,-r 32,708 at 161,816. The Board recently summarized the standard for 
reconsideration stating "[i]n short, if we have made a genuine oversight that affects the 
outcome of the appeal, we will remedy it." Relyant, LLC, ASBCA No. 59809, 18-1 
BCA ,-r 37,146 at 180,841. Here, as in Relyant, no such mistakes have been identified. 
Relevant to the pending motion for reconsideration, the Corps transferred 
certain portions of the former Jefferson Proving Ground, in Jefferson County, Indiana 
to Ford pursuant to a lease in furtherance of conveyance (LIFOC). The lease provided 
that the Corps would transfer the property once environmental clean-up made the 
property suitable for transfer. The LIFOC additionally indicated that the transferred 
property might be subject to environmental restrictions. Ford Lumber, 19-1 BCA 
,-r 37,407 at 181,844. By letter dated November 14, 2017, Ford filed a claim with the 
Corps seeking removal of the environmental restrictions or an unspecified reduction in 
the purchase price of the transferred property. Id. at 181,846. The next day, Ford 
accepted a quitclaim deed of conveyance transferring the property (R4, tab 16). 
The Board dismissed ASBCA No. 61618 for failure to state a sum certain. 
Ford Lumber, 19-1 BCA ,-r 37,407 at 181,848-49. The Board additionally held that 
"[t]o the extent Ford seeks a Board award compelling the government to remove the 
residential restrictions from the deed, such a request would constitute a valid claim; 
however it would be a request for specific performance which we lack jurisdiction to 
entertain" (id. at 181,848). 
Ford now seeks reconsideration of our dismissal of this claim, alleging that its 
claim letter properly stated a claim for contractual interpretation and for other relief 
(app. mot. at 2). Specifically, Ford does not dispute that the LIFOC provided the 
Corps with the ability to impose environmental restrictions on the property (id. ("Dean 
and Debbie Ford always knew that restrictions would be placed on some of the parcels 
or portions of some parcels of the former Jefferson Proving Ground")). Instead Ford 
raises a new argument, not presented in its opposition to the government's motion, 
contending that the restrictions imposed were not "necessary and appropriate to protect 
human health and the environment" (id.). Ford further concedes that its "[c]laim 
makes no demand for payment of money in a sum certain" (id. at 5). 
As noted above, a motion for reconsideration is not the appropriate place to 
raise an argument that should have been raised in an earlier proceeding. Dixon, 7 41 
F.3d at 1378. For that reason alone, Ford's motion for reconsideration should be 
denied. However, even ifwe were to consider its newly raised argument, it would not 
change the outcome. In our earlier opinion, we actually agreed with Ford's new 
position that a request for modification of the environmental restrictions could state a 
valid claim under the Contract Disputes Act; however, we also noted that such a 
2 

request would be a claim for specific performance that would be beyond the 
jurisdiction of the Board. Ford Lumber, 19-1 BCA ,T 37,407 at 181,848. 
As always, we determine our jurisdiction as of the time that a notice of appeal is 
filed. See, e.g., Keene Corp. v. United States, 508 U.S. 200,207 (1993) (quoting 
Mollan v. Torrance, 6 L.Ed. 154 ( 1824)) ("the jurisdiction of the Court depends upon 
the state of things at the time of the action brought"). Here, the property in question 
had already been transferred from the Corps to Ford (R4, tab 16). Thus, an 
interpretation of contractual terms would not change the terms of the quitclaim deed 
which Ford had already accepted. Moreover, Ford concedes that the Corps was 
permitted to place environmental restrictions in the lease. Thus, Ford's remedy, if any, 
would be a claim for money damages. Ford cannot convert its monetary claim into a 
nonmonetary claim for contract interpretation. "If 'the only significant consequence' 
of the declaratory relief sought 'would be that [ the plaintiff] would obtain monetary 
damages from the federal government,' the claim is in essence a monetary one." 
Securiforce International America, LLC v. United States, 879 F.3d 1354, 1360 (Fed. 
Cir. 2018) (quoting Brazos Elec. Power Coop., Inc. v. United States, 144 F.3d 784, 
787 (Fed. Cir. 1998)). Instead Ford seeks specific performance - an order directing the 
Corps to modify the terms of the deed- an action that is beyond the Board's 
jurisdiction. 
The Board may possess jurisdiction to entertain money claims based upon a 
diminution in the value of the property. However, for us to entertain such a claim, 
Ford first needs to file a proper claim with the contracting officer, asserting damages 
in a sum certain. Ford has not done so, and thus, the motion for reconsideration is 
denied. 
Contrary to its statement in its motion for reconsideration that its claim did not 
assert a sum certain (app. mot. at 5 ("Ford's Claim makes no demand for payment of 
money in a sum certain")), Ford asserts in its reply brief that its claim noted that 
"across all three of our claims, we do not seek any compensation above the amount 
that is remaining to be paid on the remaining parcels at [Jefferson Proving Ground]" 
and, thus, that the remaining lease balance would be an ascertainable sum certain 
vesting jurisdiction in the Board (app. reply at 2, quoting R4, tab 4 at GR4-20). Even 
if Ford had not waived this argument, both by failing to raise the issue in its opposition 
to the government's motion to dismiss treated as a motion for summary judgment, or 
in its motion for reconsideration, and even if Ford should not be estopped from taking 
the exact opposite position in its reply brief as in its motion for reconsideration, Ford 
still fails to state a sum certain. The claim document refers to a possible amount for 
three claims, and does not provide an ascertainable sum certain for which Ford would 
be willing to settle this specific claim. Without an allocation of the amount to the 
specific claims, Ford's purported sum certain is logically similar to the "pick one" 
claim asserting multiple proposed claim amounts that we rejected in Southwest 
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Marine, Inc., ASBCA No. 39472, 91-3 BCA 124,126 at 120,744. Moreover, stating a 
ceiling to the claim amount does not state a sum certain. The Board has long held that 
qualifications to a numerical amount, such as the use of the word "approximately," 
prevent its consideration as a sum certain. See, e.g., MJ. Hughes Constr. Inc., 
ASBCA No. 61782, 19-1BCA137,235 at 181,235 (citing cases holding that 
expressing a minimum amount for a claim does not state a sum certain and suggesting, 
but not holding, that an amount stating a maximum amount for a claim would also fail 
to state a sum certain). Ford's statement that three claims combined "do not seek any 
compensation above" an unstated but calculable amount is not sufficient to state a sum 
certain. Ford's vague statement is less definite than the statement of an "approximate" 
claim amount rejected by the Board in J.P. Donovan Constr., Inc., ASBCA No. 55335, 
10-2 BCA 134,509 at 170,171, ajf'd 469 Fed. Appx. 903, 908 (Fed. Cir. 2012) 
(non-precedential). If the rule were otherwise, every contractor could assert a claim of 
not more than one trillion dollars, rendering the sum certain requirement meaningless. 
CONCLUSION 
For the reasons stated above, Ford's motion for reconsideration is denied. 
Dated: December 18, 2019 
0 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
4 
DAVID D' ALESSANDRIS 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
J.~ 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 61618, Appeal of Ford 
Lumber & Building Supply, Inc., rendered in conformance with the Board's Charter. 
Dated: 
5 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals