David Boland, Inc.
Docket: ASBCA 63007, ASBCA 63008
Decision date: 2023-03-30

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
ON APPELLANT’S MOTION FOR RECONSIDERATION 
 
On December 14, 2022, appellant David Boland, Inc. (Boland) moved for 
reconsideration of our November 14, 2022, decision in David Boland, Inc., ASBCA 
Nos. 63007, 63008, 23-1 BCA ¶ 38,242 (Decision), which denied Boland’s motions for 
summary judgment, and granted the government’s cross-motions for summary judgment.  
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.  “Motions 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). 
 
The gist of our earlier opinion was that the task order at issue, which required 
Boland to provide trailers for use by military personnel while their offices were being 
repaired and expanded, also required the provision of appropriate telecommunications for 
those trailers, despite the fact that the government had initially, erroneously approved 
Appeals of - )  
 )  
David Boland, Inc. ) ASBCA Nos. 63007, 63008 
 )  
Under Contract No. W91278-16-D-0013  
  Task Order No. W912QR-18-F-0567 
) 
) 
 
   
APPEARANCES FOR THE APPELLANT: Denis L. Durkin, Esq.  
  Baker & Hostetler LLP 
  Orlando, FL 
 
W. Barron A. Avery, Esq.  
Brian V. Johnson, Esq. 
    Baker & Hostetler LLP 
    Washington, DC 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 David C. Brasfield, Jr., Esq. 
Kristine M. Knodel, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Mobile 

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Boland’s plans which did not include the provision of such telecommunications.  Here, 
Boland argues that we should reconsider the Decision because we improperly dismissed 
Boland’s claims regarding the Base Defense Operations Center (BDOC), and Counts III 
(Unabsorbed Overhead) and IV (Breach of Contract—Compensable Delay) of ASBCA 
Nos. 63007 and 63008.  As discussed below, Boland fails to establish that reconsideration 
of the Decision’s dismissal of Boland’s BDOC claims is appropriate.  However, the 
Decision made an error of law to the extent that it dismissed Counts III and IV of 
ASBCA Nos. 63007 and 63008 in their entirety because we had not read the allegations 
in those counts of Boland’s complaints as expansively as we should have.  Therefore, the 
motion for reconsideration is granted in part, and denied in part. 
 
DISCUSSION 
 
 I. BDOC Claims 
 
Boland fails to establish that reconsideration of the Decision’s dismissal of 
Boland’s BDOC claims is appropriate.  Boland first argues that the dismissal was 
inappropriate because a November 30, 2021, supplemental contracting officer final 
decision (COFD) admitted that the addition of a BDOC constituted a compensable 
change (app. mot.1 at 4-5, ex. A).  However, the supplemental COFD is not new evidence 
because it is dated November 30, 2021 (app. mot. at ex. A)—well before Boland moved 
for summary judgment on April 22, 2022.  Boland, 23-1 BCA ¶ 38,242 at 185,696.  Nor 
did the Decision make a mistake in its findings of fact or an error of law by not 
addressing whether the supplemental COFD admitted that the addition of a BDOC 
constituted a compensable change, id., because Boland failed to even mention the 
supplemental COFD in its motions for summary judgment and responses to the 
government’s cross-motions for summary judgment; let alone argue that the supplemental 
COFD admitted that the addition of a BDOC constituted a compensable change. 
(63007 app. msj at 26-28; 63008 app. msj at 29-32; see generally app. reply in support of 
msj).  Therefore, arguing now that the supplement COFD admitted that the addition of a 
BDOC constituted a compensable change constitutes an improper attempt to take a 
second bite at the apple by advancing arguments that properly should have been—but 
were not—presented earlier.  Dixon, 741 F.3d at 1378.  In any event, we would not be 
bound by the COFD’s findings.  Sand Point Services, LLC, ASBCA Nos. 61819, 61820, 
19-1 BCA ¶ 37,412 at 181,860 n.1. 
 
1 For ease of understanding, we cite to:  (1) appellant’s motion for reconsideration as 
“app. mot. at_”; (2) appellant’s motion for summary judgment in ASBCA 
No. 63007 as “63007 app. msj at_”; (3) appellant’s motion for summary judgment 
in ASBCA No. 63008 as “63008 app. msj at _”; and (4) appellant’s reply in 
support of its motion for summary judgment and response to the government’s 
cross-motion for summary judgment in ASBCA Nos. 63007 and 63008 as “app. 
reply in support of msj at _”. 

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Second, Boland argues that the Decision erroneously found that Boland had failed 
to make any arguments about the BDOC separate from its telecommunications systems 
arguments, Boland, 23-1 BCA ¶ 38,242 at 185,896 n.2, because Boland stated in its 
ASBCA No. 630082 motion for summary judgment that: 
 
(1)  “[T]he B-353 Task Order did not require the installation or construction of 
a Base Defense Operations Center (‘BDOC’) in the project’s Trailers,” 
(63008 app. msj at 1);  
 
(2)  “The Base RFP did not provide for a BDOC,” (id. at 12);  
 
(3)  “[T]he Government expressly removed the requirement for a BDOC,” (id.);  
 
(4)  “USACE’s Directive to Design and Build a Telecommunications System 
and the BDOC Temp Requirement Constituted Constructive Change[s] 
as a Matter of Law,” (id. at 33 (emphasis added));  
 
(5)  “[T]he Government’s directive to design and install the 
Telecommunications System and the BDOC Temp Requirement for the 
Security Facility Trailers constituted constructive change[s],” (id. 
(emphasis added)); and  
 
(6)  “USACE compelled Boland to perform work not required under the terms 
of the B-353 Security Facility Task Order when it directed Boland to design 
and install the Telecommunications System and the BDOC Temp 
Requirement in the Security Facility Trailers,” (id. at 34 (emphasis added); 
see also app. mot. at 5-6). 
 
However, those first three statements merely are general factual assertions about the 
BDOC in the Introduction or Statement of Undisputed Material Facts, which are devoid 
of any argument (63008 app. msj at 1, 12).  Moreover, the last three statements confirm 
that Boland’s arguments about the BDOC were intertwined with its arguments about the 
telecommunications systems because, as the bolded language indicates, Boland addressed 
the BDOC and telecommunications systems together (id. at 33-34).  Thus, the Decision 
did not make a mistake in its findings of fact or an error of law by concluding that Boland 
 
2 Boland’s ASBCA No. 63007 motion for summary judgment contained even fewer 
references to the BDOC, only referring to it twice in the Introduction, and once in 
a footnote (63007 app. msj at 1, 15). 

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failed to make any arguments about the BDOC separate from the telecommunications 
systems.3 
 
 Third, Boland argues in its reply brief that a BDOC is fundamentally different than 
a telecommunications system because a BDOC is a physical structure or a room, while a 
telecommunications system is a system (app. reply at 6-8).  That is an argument that 
properly should have been—but was not—presented in connection with the summary 
judgment motions (see 63007 app. msj at 29-40; 63008 app. msj at 33-44; app. reply in 
support of msj at 5-57).  Therefore, it is not an appropriate basis for a motion for 
reconsideration.  Dixon, 741 F.3d at 1378. 
 
 II. Counts III and IV of ASBCA Nos. 63007 and 63008 
 
 The Decision made an error of law to the extent that it dismissed Counts III and IV 
of ASBCA Nos. 63007 and 63008 in their entirety.  Allegations in a complaint should be 
liberally construed.  Scotch Whisky Ass’n v. U.S. Distilled Products Co., 952 F.2d 1317, 
1319 (Fed. Cir. 1991).  Counts III and IV of ASBCA Nos. 63007 and 63008 are based 
upon alleged government delay, but the nature of that alleged government delay is not 
clear (compl. ¶¶ 124, 137, 163, 176).  When we granted summary judgment on these 
counts in the Decision, we read the delay claims as being dependent upon the 
constructive change and properly dismissed them.  Boland, 23-1 BCA ¶ 38,242 
at 185,696.  This was a mistake because, liberally construing the complaint, Counts III 
and IV also allege a different cause of government delay—namely delay caused by the 
government’s having initially approved the design of the trailers without the 
telecommunications gear and only much later informing Boland of its revised 
understanding of what the task orders required.  (See compl. ¶¶ 47-58, 69-82, 124, 163).  
The Decision did not address this form of delay and the government did not raise it in its 
motion for summary judgment.  Thus, the Decision erred in dismissing Counts III and IV 
of ASBCA Nos. 63007 and 63008 to the extent that those claims allege that Boland is 
 
3 Boland also complains that the government failed to rebut its BDOC arguments (app. 
mot. at 7).  However, since Boland failed to make any BDOC arguments separate 
from its telecommunications systems arguments, there were no BDOC arguments 
for the government to rebut separately from the telecommunications systems 
arguments.  Likewise, the fact that the government did not specifically cross-move 
for summary judgment on the BDOC claims does not help Boland (id. at 8-10).  
Given Boland’s intertwining of its BDOC and telecommunications systems 
arguments in its motions for summary judgment, it was reasonable for the 
government to conclude that Boland was treating the BDOC claims as part its 
telecommunications systems claims, and for the government to address the BDOC 
claims, and telecommunications systems claims together.  Thus, the arguments 
that the government raised regarding the telecommunications systems claims in its 
cross-motions for summary judgment applied equally to the BDOC claims. 

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entitled to compensable delay and unabsorbed overhead for alleged government delay in 
issuing the modifications when the government thought that the Contracts required those 
features. 
 
CONCLUSION 
 
 The motion for reconsideration is granted in part and denied in part.  To the extent 
that the Decision dismissed Counts III and IV of ASBCA Nos. 63007 and 63008 in their 
entirety, we amend the Decision to strike the allegations in Counts III and IV regarding 
delay caused by the government directing Boland to add telecommunications systems and 
a BDOC, instead of dismissing Counts III and IV.  Boland may proceed with Counts III 
and IV of ASBCA Nos. 63007 and 63008 regarding alleged delay caused by the 
government failing to issue timely modifications to add telecommunications systems and 
a BDOC when the government thought that the Contracts required those features.  The 
remainder of the motion for reconsideration is denied. 
 
 Dated:  March 30, 2023 
 
 
 
 
 
 
 
 
 
 
 
JAMES R. SWEET 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
RICHARD SHACKLEFORD 
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 
 
  


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 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 63007, 63008, Appeals of 
David Boland, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  March 30, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals