Garco Construction, Inc.
Docket: ASBCA 57796, ASBCA 57888
Decision date: 2016-01-27

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
Garco Construction, Inc. ) 
) 
Under Contract No. W912DW-06-C-0019 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 57796, 57888 
Steven D. Meacham, Esq. 
John V. Leary, Esq. 
Peel Brimley, LLP 
Seattle, WA 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Francis X. Eugenio, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, Seattle 
OPINION BY ADMINISTRATIVE JUDGE CLARKE 
ON APPELLANT'S MOTION FOR RECONSIDERATION 
Garco Construction, Inc. (Garco), timely moves the Board to reconsider its 
22 September 2015 decision denying Garco's appeals. 1 In order to succeed in a 
motion for reconsideration the moving party must demonstrate a compelling reason for 
the Board to modify its decision. We look to whether the party presents newly 
discovered evidence or whether there were mistakes in the decision's findings of fact 
or errors of law. Motions for reconsideration are not intended to provide a party with 
an opportunity to reargue issues previously raised and denied. C!2, Inc., ASBCA 
No. 56257, 15-1BCA~35,829 at 175,194. 
Garco presents two arguments in support of its motion, both suggesting errors 
oflaw. The first is essentially an argument that the Board's regulatory interpretation 
was erroneous. The language we interpreted was: "[a] 911 Dispatcher will run the 
employees name through the National Criminal Information Center system for a wants 
and warrants check. Unfavorable results will be scrutinized and eligibility will be 
determined on a case-by-case basis by the 341 SFG/CC." Garco Construction, Inc., 
ASBCA Nos. 57796, 57888, 15-1BCA~36,135 at 176,381. We concluded that 
1 Garco's motion caption references ASBCA Nos. 57796, 57888 and 57889. Our 
22 September 2015 decision concerns only ASBCA Nos. 57796 and 57888. 
ASBCA No. 57889 was settled and dismissed with prejudice on 6 September 
2012. We have no reason to believe Garco's reference of ASBCA No. 57889 
was intentional. 

although a literal reading of this language might support appellant's interpretation, the 
fact that no one with wants or warrants would be allowed to enter the base renders the 
rest of the language inconsistent with the regulatory scheme and leads to the "absurd" 
result that convicted felons not currently wanted by law enforcement would be allowed 
access to Malmstrom Air Force Base (MAFB). Id. at 176,382. Garco complains that 
the language does not notify it that individuals with "wants and warrants" would be 
detained (app. mot. at 1). Although Mr. Ward provided testimony to that effect, we 
consider it self-evident that an individual wanted by law enforcement would not be 
allowed entrance to MAFB. In its reply brief the Air Force argues that Garco's 
interpretation fails to take into consideration Space Wing Pamphlet 31-101 
(15 October 2002) and Space Wing Pamphlet 31-103 (21 July 2005) "maintain the 
Base Commander's flexibility in granting base access" (gov't opp'n at 2). We agree. 
Garco raises nothing new in its reply brief to change our opinion. 
We reject Garco's argument that "[a] reasonable and natural reading without 
bias would lead the reader, in this case JTC, £21 to interpret it to mean that not all 
individuals with a want or warrant would be immediately detained, but rather 
scrutinized and eligibility determined on a case by case basis" (app. mot. at 2). As we 
found in our decision, it is unreasonable to 
adopt an interpretation that would allow an 
individual currently wanted by law enforcement to be allowed access to MAFB. There 
was no error of law in our regulatory interpretation. 
In its second argument Garco suggests that the Board should allow 
compensation for constructive acceleration (app. mot. at 3). In its opposition brief the 
Air Force argues that Garco cites to no clause or case that allows for monetary 
compensation for delay caused by a sovereign act (gov't opp'n at 3). It also points out 
that the contract was completed early (id.). In its reply brief Garco reiterates the 
argument made in its motion for reconsideration (app. reply at 2; app. mot. at 3-5). 
In our decision, we recognized a contractor harmed by a sovereign act might be 
entitled to additional time but not compensation: 
It is true that Garco might have been able to specifically 
request additional time to perform as a result of the 
sovereign acts. Troy Eagle Group, ASBCA No. 56447, 
13 BCA, [35,258] at 173,060 ("Actions taken by the 
United States in its sovereign capacity shield the 
government from liability for financial claims resulting 
from those acts, although a contractor is allowed additional 
time to perform.") (citations omitted). However, even if 
appellant had a right to a time extension it does not provide 
2 James Talcott Construction, Inc. (JTC), was the subcontractor with a pass-through 
claim. Garco, 15-1BCA,36,135 at 176,372. 
2 

it a path to entitlement to monetary damages resulting 
directly from the sovereign act of limiting access to 
MAFB. 
Garco, 15-1BCA~36,135 at 176,383-84. Garco relies upon Dougherty Overseas, 
Inc., ENG BCA No. 2625, 68-2 BCA ~ 7165 stating, with respect to that case that "the 
government's order to continue construction by whatever means possible despite 
difficulties imposed by a border closure was an acceleration order because at that time 
appellant would have been within its legal rights to suspend or pace its operations to 
adapt them to the situation in which it found itself with its supply line cut-off' (app. 
mot. at 4-5). Garco failed to mention that the "border closure" was Afghanistan 
closing its border with Pakistan, "[a ]ppellant was well along in contract performance 
on 6 September 1961 when the 
Afghanistan Government decided for political reasons 
to close the border without notice." Dougherty, 68-2 BCA ~ 7165 at 33,245. There 
was no sovereign act on the part of the United States involved in Dougherty. 
Garco provided no support for its argument that it should be compensated for 
the harm caused by the sovereign act of enforcing entrance screening requirements at 
MAFB. We are unwilling to establish a new limit on the breadth of the sovereign act 
doctrine by agreeing with Garco that because it might be entitled to additional time 
and was not given any3, it somehow avoids the provisions of the default clause and the 
doctrine. There was no error of law in our analysis of this argument. 
CONCLUSION 
There being no errors of law in our decision, Garco's motion for reconsideration 
is denied. 
Dated: 27 January 2016 
(Signatures continued) 
CRAIG S. 
Administr ive Judge 
Armed Se ices Board 
of Contract Appeals 
3 While there is evidence that Garco notified the Air Force that it was delayed by the 
access restrictions (15-1 BCA ~ 36,135 at 176,376, finding 19), there is no 
evidence in the record or argument in appellant's briefs that JTC asked for more 
time. 
3 

I concur 
MARK N. STEMPLER 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
RIC CKLEFORD 
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 Nos. 57796, 57888, Appeals of 
Garco Construction, Inc., rendered in conformance with the Board's Charter. 
Dated: 
4 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals