Watts Constructors, LLC
Docket: ASBCA 63753
Decision date: 2026-01-15

DOCUMENT FOR PUBLIC RELEASE                                                                                           
The decision issued on the date below is subject to an ASBCA Protective Order.          
This version has been approved for public release. 
 
ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
ON APPELLANT’S MOTION FOR RECONSIDERATION 
 
On October 21, 2025, the appellant Watts Constructors, LLC (Watts) filed a 
motion (Motion) to reconsider our September 25, 2025 decision (Decision), which, 
inter alia, granted the government summary judgment on Watts’ Delay to 
Appeal of - )  
 )  
Watts Constructors, LLC ) ASBCA No. 63753 
 )  
Under Contract No. W91238-14-C-0040 )  
   
APPEARANCES FOR THE APPELLANT: Michael E. Wagner, Jr., Esq. 
Jeffrey M. Hummel, Esq. 
  Seyfarth Shaw LLP 
  Washington, DC 
 
Zachary F. Jacobson, Esq. 
  Seyfarth Shaw LLP 
  San Francisco, CA 
 
Anthony J. LaPlaca, Esq. 
    Seyfarth Shaw LLP 
    Boston, MA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Anna F. Kurtz, Esq. 
  Engineer Trial Attorney 
 
Colby K. Stewart, Esq. 
Amanda R. Chase, Esq. 
Kevin A. Cullen, Esq. 
Eric Wright, Esq. 
Schuyler Lystad, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Sacramento 

DOCUMENT FOR PUBLIC RELEASE                                                                                           
The decision issued on the date below is subject to an ASBCA Protective Order.          
This version has been approved for public release. 
 
2 
 
Modification No. R00004 Issuance claim (Claim).1  Watts Constructors, ASBCA 
No. 63753, 25-1 BCA ¶ 38,938.  
 
Motions for reconsideration are only appropriate if they are based upon newly 
discovered evidence, mistakes in the findings of fact, or errors of law.  Green Valley 
Co., ASBCA No. 61275, 18-1 BCA ¶ 37,044 at 180,330 (citing Alliance Roofing & 
Sheet Metal, Inc., ASBCA No. 59663, 15-1 BCA ¶ 36,063).  “Reconsideration is not 
intended to provide a party with the opportunity to reargue its position.”  Id. (quoting 
Robinson Quality Constructors, ASBCA No. 55784, 09-2 BCA ¶ 34,171 at 168,911).  
Thus, “[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 v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 
2014) (citations and quotations omitted).  As a result, in our discretion, we may find 
that arguments not raised in an opening brief have been waived.  Becton Dickinson & 
Co. v. C.R. Bard, Inc., 922 F.2d 792, 800 (Fed. Cir. 1990).  Here, we deny the Motion 
because, as discussed below, it reargues Watts’ positions; raises arguments that Watts 
should have presented earlier; and/or does not establish that there is newly discovered 
evidence, mistakes in the findings of fact, or errors of law.
2 
 
I. Watts’ Arguments that the Decision Misapplied FAR 33.201 and Controlling 
Precedent Are Reargument, Waived Argument, and/or Meritless 
 
Watts’ arguments that the Decision misapplied Federal Acquisition Regulation 
(FAR) 33.201 and controlling precedent are reargument, waived argument, and/or 
meritless.  Watts first argues that the delays to the Project were inherently unknowable 
in the fall of 2015 because that effect was contingent upon the issuance of 
Modification No. R00004 (app. mot. at 11-12).  However, that merely reargues the 
position that Watts took in its opposition to the government’s summary judgment 
motion (Opposition) (app. SJ opp’n at 15 (“[t]he delays and impacts associated with 
the addition of the [Equipment] were not known (or reasonably knowable) until, 
at earliest, 06 July 2016 when [the government] issued Modification No. R00004 
adding the [Equipment] to Watts’ Contract.”)).  Thus, Watts improperly seeks to use 
the Motion to take a second bite at the apple.  See Dixon, 741 F.3d at 1378. 
 
1 We presume familiarity with the Decision. 
2 As Watts correctly notes, the Decision mistakenly stated that the Claim accrual date 
was “September or October of 2016” instead of “September or October of 
2015” (app. mot. at 25-26 (citing Watts, 25-1 BCA ¶ 38,938 at 189,513)).  
However, that was a clerical mistake, or a mistake arising from oversight or 
omission.  Therefore, we correct that mistake pursuant to Federal Rule of Civil 
Procedure (FED. R. CIV. P.) 60(a). 

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In any event, that argument is meritless.  As the Decision correctly held in 
rejecting that argument the first time: 
 
[T]hat argument ignores the nature of Watts’ Delay to 
Modification No. R00004 Issuance claim. . . . [T]he legal 
basis for the Delay to Modification No. R00004 Issuance 
claim is not that Watts’ fulfilling its new duty to provide 
the Equipment pursuant to Modification No. R00004 after 
July 6, 2016 caused delay. . . . Rather, the legal basis for 
the Delay to Modification No. R00004 Issuance claim is 
that delay in either delivering—or modifying the Contract 
to require Watts to procure—the Equipment and the 
supporting submittal information adversely impacted 
construction from when Watts was ready to start the Ops 
Building foundation on September 23, 2015, until the 
government issued Modification No. R00004 on July 6, 
2016 (SOF ¶ 16).  As discussed above, Watts knew, or 
should have known, of all the events necessary to fix the 
alleged liability for that claim when the delay in either 
delivering—or modifying the Contract to require Watts to 
procure—the Equipment began delaying the Ops Building 
foundation work in September or October of 2015. 
 
Watts, 25-1 BCA ¶ 38,938 at 189,514.   
 
Second, Watts argues that the Decision misapplied FAR 33.201 and controlling 
precedent because its reliance upon “pre-modification forecasts” (Pre-Modification 
Documents)
3 skipped the first FAR 33.201 analysis step of analyzing when all of the 
events fixing liability had occurred (app. mot. at 15-19).  Again, that improperly seeks 
to take a second bite at the apple by rearguing the position that Watts took in its 
Opposition that the Pre-Modification Documents did not establish that the Claim 
 
3 While Watts is unclear about precisely what it means by “pre-modification 
forecasts,” (app. mot. at 15-19), and the only specific document it cites is the 
October 30, 2015 cost proposal (id. at 15), we understand Watts’ use of the 
term “pre-modification forecasts” to mean the September 30, 2015 schedule 
narrative report, the October 28, 2015 meeting, and/or the October 30, 2015 
letter because those are the pre-modification documents upon which the 
Decision relied.  See Watts, 25-1 BCA ¶ 38,938 at 189,513.  Moreover, we 
avoid Watts characterization of those documents as “forecasts” because, as 
discussed above Watts’ characterization of them as mere forecasts is inaccurate. 

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The decision issued on the date below is subject to an ASBCA Protective Order.          
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accrued in September or October of 2015 (app. SJ opp’n at 10-11, 13-14; app. resp. 
stmt. undisputed material fact ¶¶ 17-19); see also Dixon, 741 F.3d at 1378. 
 
In any event, that argument is meritless because it overstates the Decision’s use 
of the Pre-Modification Documents and understates the content of the Pre-
Modification Documents.  Contrary to Watts’ assertion, the Decision analyzed when 
all of the events fixing liability for the Claim had occurred under the first FAR 33.201 
analysis step, stating that: 
 
Here, Watts’ Delay to Modification No. R00004 Issuance 
claim is that the government’s alleged delay in either 
delivering—or modifying the Contract to require Watts to 
procure—the Equipment and the supporting submittal 
information adversely impacted the start of the critical-path 
foundation rebar activity in OPS Building Area B from 
September 23, 2015 to July 6, 2015 (SOF ¶ 16).  Thus, the 
events that fixed the government’s alleged liability and 
permitted the assertion of the claim were the government’s 
alleged delay in either delivering—or modifying the 
Contract to require Watts to procure—the Equipment and 
the supporting submittal information, adversely impacting 
the start of critical-path foundation rebar activity in OPS 
Building Area B.  According to the Claim and the [Time 
Impact Analysis (TIA)], the government’s delay in either 
delivering—or modifying the Contract to require Watts to 
procure—the Equipment and the supporting submittal 
information began adversely impacting the critical path 
foundation rebar activity in the Ops Building Area B by 
September 2015 (id.).     
 
Watts, 25-1 BCA ¶ 38,938 at 189,513 (emphasis added).  Then, under the second 
FAR 33.201 analysis step, the Decision held that Watts knew, or should have known, 
of those events fixing the government’s alleged liability by September or October of 
2015 because there was no evidence suggesting that the government concealed that 
purported delay or its purported impact upon the critical-path, and there was no 
evidence that those purported facts were inherently unknowable at the time.  Id.   
 
Only then did the Decision rely upon the Pre-Modification Documents as an 
alternative basis for finding that Watts knew, or should have known, of the events 

DOCUMENT FOR PUBLIC RELEASE                                                                                           
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fixing the government’s alleged liability by September or October of 2015 under the 
second FAR 33.201 analysis step.  Id.  As the Decision stated: 
 
On the contrary, the undisputed evidence shows that Watts 
demonstrated its awareness of the fact that the alleged 
delay obtaining the Equipment and the supporting 
submittal information was delaying construction by 
notifying the government in the September 30, 2015 
schedule narrative report that the “drop dead date for 
submittal information” had passed (SOF ¶ 8).  Further, 
at an October 28, 2015 meeting, “Watts again notified the 
Government that the UPS/Switchgear supplier will not 
release any shop drawings or information without a 
Purchase Order.  Without approved show drawings Helix 
is unable to install the electric conduits for the gear, which 
impacts installation of plumbing, concrete footings and 
slab work.”  (SOF ¶ 9).  Moreover, in the October 30, 2015 
letter, Watts notified the government that, “[t]he conduit 
installation within quadrant ‘B’ of the SATCOM building 
is the current delay . . . .” (id. (emphasis added)).  Indeed, 
in the TIA, Watts acknowledged that, while the full extent 
of delay was unknown on September 20, 2015, “it was 
clear that United States Army Corps of Engineers 
(USACE) had extended the overall required duration for 
the Ops Building because of [the] lack of information 
needed by Watts to perform its critical path work.”  (SOF ¶ 
15).    
  
Id. (emphasis, omissions, and modifications in original).4  That holding was 
appropriate because the Pre-Modification Documents were not mere “forecasts,” but 
 
4 In a footnote, Watts criticizes the Decision for relying upon its TIA (app. mot. at 15 
n.7).  However, as the Decision correctly recognized, “‘[t]o determine when the 
alleged liability was fixed, we begin by examining the legal basis of the 
particular claim’” Watts, 25-1 BCA ¶ 38,938 at 189,514 (quoting Hanley 
Indus., Inc., ASBCA No. 58198, 14-1 BCA ¶ 35,500 at 174,016).  Here, Watts 
relied upon the TIA to state the basis for its claim by attaching the TIA to the 
claim (R4, tab 9 at 11-103), and stating in the claim that “Watts’ Claim is 
supported by the Time Impact/Schedule Delay Analysis (‘TIA’)” (id. at 1).  
Because the TIA established the basis for the Claim, the Decision properly 
relied upon the TIA. 

DOCUMENT FOR PUBLIC RELEASE                                                                                           
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6 
 
also expressly stated Watts’ current knowledge in September and October of 2015, 
that the governments’ alleged delay in either delivering—or modifying the Contract to 
require Watts to procure—the Equipment and the supporting submittal information 
was adversely impacting the start of the critical-path foundation rebar activity in 
Operations (OPS) Building Area B.  Id. 
 
Third, Watts argues that our holding that the Claim accrued prior to the 
issuance of Modification No. R00004 is inconsistent with our holding that the 
Submittals and Procurement Delay claim did not accrue until the issuance of 
Modification No. R00004 (app. mot. at 16).  However, as the Decision correctly 
recognized, “‘the statute of limitations runs against each distinct liability-creating 
event having its own associated damages.’”  Watts, 25-1 BCA ¶ 38,938 at 189,514 
(quoting Patricia I. Romero, Inc. d/b/a Pacific Builders, ASBCA No. 63093, 23-1 
BCA ¶ 38,362 at 186,289).  Thus, as the Decision correctly held: 
 
[T]he legal basis for the Delay to Modification 
No. R00004 Issuance claim is not that Watts’ fulfilling its 
new duty to provide the Equipment pursuant to 
Modification No. R00004 after July 6, 2016 caused delay.  
That is the legal basis for the Submittals and Procurement 
Delay claim discussed below (SOF ¶ 17).  Rather, the legal 
basis for the Delay to Modification No. R00004 Issuance 
claim is that delay in either delivering—or modifying the 
Contract to require Watts to procure—the Equipment and 
the supporting submittal information adversely impacted 
construction from when Watts was ready to start the OPS 
Building foundation on September 23, 2015, until the 
government issued Modification No. R00004 on July 6, 
2016 (SOF ¶ 16).   
 
Id.  The Decision correctly held that, due to those different legal bases, the Claim and 
the Submittals and Procurement Delay claim had different accrual dates.  Id. 
at 189,512-15. 
 
Fourth, Watts argues that the Decision misapplied controlling precedent 
because the Claim is a “modification-issuance delay” claim—instead of a government 
furnished equipment delay claim—and the liability-fixing events for such claims are 
the government actions that committed the parties to the changed approach and 
addressed the amount of delay under Lockheed Martin Aeronautics Co., ASBCA 
No. 62209, 22-1 BCA ¶ 38,112 and Patricia I. Romero, 23-1 BCA ¶ 38,362 (app. mot. 
at 11, 19-20).  Watts waived that argument because it properly should have raised—

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but did not raise—it in the Opposition (see app. SJ opp’n), and a motion for 
reconsideration does not afford Watts the opportunity to advance that argument.  See 
Dixon, 741 F.3d at 1378; Becton Dickinson, 922 F.2d at 800.   
 
In any event, the argument fails factually and legally.  Factually, the Claim here 
is not purely a “modification-issuance delay” claim because, as the Decision correctly 
held, the delay was the government’s alleged failure to either modify the Contract to 
require Watts to procure the Equipment and supporting submittal information—or 
provide that Equipment and supporting submittal information as required by the 
original Contract—on a timely basis.  Watts, 25-1 BCA ¶ 38,938 at 189,509-11 (citing 
R4, tab 19 at 1-2, 5; app. supp. R4, tab 189 at 76-77; ASUMF ¶ 35).  Thus, the delay 
addressed in the Claim involved aspects of both modification-issuance delay and 
government furnished equipment delay.  Legally, Lockheed Martin and Patricia I. 
Romero did not involve a claim that the government’s delay in issuing a modification 
delayed a project; let alone hold that the liability-fixing events for a “modification-
issuance delay theory” are the government actions that committed the parties to the 
changed approach and addressed the amount of delay.  Lockheed Martin Aeronautics 
Co., ASBCA No. 62209, 22-1 BCA ¶ 38,112; Patricia I. Romero,  23-1 BCA ¶ 
38,362.  Indeed, as Watts concedes, “the issues before the Board in Romero were 
entirely distinct from those raised here” (app. mot. at 18). 
 
II. Watts’ New Evidence Argument Is Meritless 
 
Watts’ argument that new evidence—namely government emails and internal 
documents, and deposition testimony—regarding the delay in issuing Modification 
No. R00004 raises genuine issues of material fact as to when the Claim accrued is 
meritless (app. mot. at 2-3, 12-14, 20-22).  As an initial matter, Watts has failed to 
show that the government emails and internal documents are new evidence (id.).  On 
the contrary, the government submits evidence with its opposition to the Motion 
showing that it produced its emails and documents on April 17, 2025 (gov’t 
reconsideration opp’n, ex. 1), which was before Watts submitted its Opposition on 
May 5, 2025 (app. SJ opp’n at 26).  Watts did not submit a reply brief contradicting 
that evidence. 
 
In any event, the purportedly new evidence regarding the delay in issuing 
Modification No. R00004 does not raise a genuine issue of material fact as to when the 
Claim accrued because, as discussed above, the Claim accrued when Watts knew, or 
should have known, that the government’s alleged delay in either delivering—or 
modifying the Contract to require Watts to procure—the Equipment and the 
supporting submittal information was adversely impacting the start of the critical-path 
foundation rebar activity in OPS Building Area B; not when the government issued 

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The decision issued on the date below is subject to an ASBCA Protective Order.          
This version has been approved for public release. 
 
8 
 
Modification No. R00004.  Watts, 25-1 BCA ¶ 38,938 at 189,513-14.  Thus, the 
purportedly new documents regarding the delay issuing Modification No. R00004 are 
not relevant to determining the Claim accrual date. 
 
III. Watts’ Waived its Continuing Claim Argument, and Has Failed To Show That 
That Argument Has Merit 
 
Watts waived its argument that we should reconsider the dismissal of the last 
26 days—between June 10, 2016 and July 6, 2016—of the Claim because those days 
fall within the statute of limitations period under a continuing claim theory (app. mot. 
at 3, 24-25).  However, Watts properly should have presented—but did not present—a 
continuing claim theory in the Opposition (see app. opp’n SJ).  Therefore, Watts 
waived that argument, and a motion for reconsideration does not afford Watts the 
opportunity to advance that argument.  See Dixon, 741 F.3d at 1378; Becton 
Dickinson, 922 F.2d at 800. 
 
In any event, Watts has failed to show that its argument has merit because it did 
not submit a reply brief in response to the government’s argument in its opposition to 
the Motion that the Motion provides no basis to support Watts’ implied position that 
the Board should treat each individual day as a new, distinct, liability-creating event 
(gov’t reconsideration opp’n 16-17). 
 
CONCLUSION 
 
For the reasons discussed above, the motion for reconsideration is denied.  
However, under FED. R. CIV. P. 60(a), we amend the statement that the Claim accrual 
date was “September or October of 2016,” Watts, 25-1 BCA ¶ 38,938 at 189,515, to 
state that the Claim accrual date was “September or October of 2015.”  
 
 
 Dated:  January 15, 2026 
 
 
 
 
 
 
 
 
(Signatures continued) 
 
 
 
JAMES R. SWEET 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

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9 
I concur 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
J. REID PROUTY
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals
I c
ertify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 63753, Appeal of Watts 
Constructors, LLC, rendered in conformance with the Board’s Charter. 
D
ated:  January 16, 2026 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals