First Street Contractors, LLC
Docket: ASBCA 64028
Decision date: 2026-06-10

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
 
On March 20, 2026, the government filed a motion for reconsideration of our 
denial of its motion for summary judgment in First Street Contractors, LLC, ASBCA 
No. 64028, 26-1 BCA ¶ 39,004 (First Street I).*  In its motion for reconsideration, the 
government argues that First Street I erred by:  (1) relying upon an annotated Drawing 
Sheet M-6 in the government’s summary judgment motion reply brief (Annotated 
Drawing); and (2) purportedly asserting in footnote 4 that the government agreed in its 
summary judgment motion that there was a material variation between the expected 
and the encountered conditions (gov’t mot. for recon. at 3-4).  In its motion for 
reconsideration reply brief, the government also argues that First Street I erred by 
failing to analyze whether there was a patent ambiguity (gov’t mot. for recon. reply 
at 6).  As discussed in greater detail below, the government waived the first and last 
arguments.  In any event, none of the government’s arguments satisfy its burden for 
establishing entitlement to reconsideration. 
 
I. Motion for Reconsideration Standard 
 
A motion for reconsideration is only appropriate if it is 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).  “Motions for 
 
* We presume familiarity with First Street I.   
Appeal of - )  
 )  
First Street Contractors, LLC ) ASBCA No. 64028 
 )  
Under Contract No. W912P6-20-C-0021 )  
   
APPEARANCES FOR THE APPELLANT: Jonathan R. Neri, Esq. 
Lauren R. Brier, Esq. 
Josephine R. Farinelli, Esq. 
    PilieroMazza PLLC 
    Washington, DC 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Ian T. McDaniel 
    Engineer Trial Attorney 
    U.S. Army Engineer District, Chicago 

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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 an argument not 
raised earlier in a proceeding has been waived.  Becton Dickinson & Co. v. C.R. Bard, 
Inc., 922 F.2d 792, 800 (Fed. Cir. 1990). 
 
II. The Government Waived its Arguments that First Street I’s Reliance Upon 
the Annotated Drawing Was an Error, Which, in any Event, Are Meritless 
 
The government raises two arguments in support of its assertion that First 
Street I’s reliance upon the Annotated Drawing was erroneous, both of which have 
been waived and, in any event, are meritless.  The government first argues that 
Drawing Sheet M-6 did not depict the concrete floor openings at all, and that the 
Annotated Drawing merely showed where the existing concrete floor openings should 
be located (gov’t mot. for recon. at 3; gov’t mot. for recon. reply at 2-4).  As an initial 
matter, that is a new argument that the government waived by failing to raise during its 
summary judgment briefing (gov’t summ. j. reply); see Dixon, 741 F.3d at 1378; 
Becton Dickinson, 922 F.2d at 800.  Indeed, that new argument is inconsistent with the 
arguments that the government raised in its summary judgment briefing.  In particular, 
the government’s new argument that the Drawing Sheet M-6 did not show concrete 
floor openings is inconsistent with the government’s assertion in its summary 
judgment motion that “Drawing Sheet M-6 . . . provides a section view of the 
[wastewater treatment plant] pump room, depicting the positions of the [Smith & 
Loveless, Inc.] Grit Pumps and the concrete floor openings” (gov’t summ. j. mot. 
at 11, ¶ 14).  Likewise, the government’s summary judgment motion reply brief did 
not state that the Annotated Drawing highlighting indicated where the existing 
concrete openings “should be located” (gov’t mot. for recon. at 3); it stated that the 
highlighting indicated “where the existing concrete openings are located (highlighted) 
in Drawing Sheet M-6” (gov’t summ. j. reply at 2 (emphasis added)). 
 
In any event, the government’s new argument that Drawing Sheet M-6 did not 
depict concrete floor openings at all merely would contribute to the factual dispute as 
to whether First Street’s interpretation of Drawing Sheet M-6 as showing existing 
concrete floor openings that were larger than the Grit Pumps was reasonable; it would 
not resolve that dispute.  Thus, that new argument would not establish that First Street 
I erred when it held that there are genuine issues of material fact as to whether First 
Street reasonably interpreted and relied upon Drawing Sheet M-6.  26-1 BCA ¶ 39,004 
at 189,937-38. 
 
Second, in its reply brief on its motion for reconsideration, the government also 
argues that the Board mistook the Annotated Drawing for part of the Contract, and that 
the Annotated Drawing did not modify Drawing Sheet M-6 (gov’t mot. recon. reply 

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at 2, 4-5).  As an initial matter, the government waived that argument by failing to 
raise it in its motion for reconsideration opening brief (gov’t mot. recon.).  Novosteel 
SA v. United States, 284 F.3d 1261, 1274 (Fed. Cir. 2002); Buck Town Contractors, 
Co., ASBCA No. 60939, 18-1 BCA ¶ 36,951 at 180,059.  In any event, the argument 
is meritless.  Nowhere in the Concrete Floor Openings Claim Statement of Facts did 
First Street I find that the Annotated Drawing was part of, or modified, Drawing Sheet 
M-6.  26-1 BCA ¶ 39,004, at 189,933-35.  Rather, in the Concrete Floor Openings 
Claim Discussion, First Street I relied upon the Annotated Drawing as a party 
admission regarding what Drawing Sheet M-6 showed.  Id. at 189,937.  That is an 
acceptable use of an attorney’s statement.  See Paice LLC v. Toyota Motor Corp., 
504 F.3d 1293, 1312 (Fed. Cir. 2007).  Thus, the government has failed to show that 
First Street I’s reliance upon the Annotated Drawing was erroneous based upon newly 
discovered evidence, involved a mistake in the findings of fact, or involved an error of 
law. 
 
III. The Government’s Argument That First Street I Erred by Purportedly 
Asserting That the Government Agreed That There Was A Material 
Variation Between the Expected and the Encountered Conditions Is 
Meritless 
 
Also meritless is the government’s challenge to First Street I’s alleged assertion 
in footnote 4 that the government agreed in its summary judgment motion that there 
was a material variation between the expected condition of concrete floor openings 
that were larger than the Grit Pumps and the encountered conditions of concrete floor 
openings that were smaller than the Grit Pumps (gov’t mot. for recon. at 4).  In 
particular, the government argues that it did not agree in its summary judgment motion 
that the expected condition included concrete floor openings that were larger than the 
Grit Pumps because its summary judgment motion asserted that Drawing Sheet M-6—
which First Street argued showed the expected conditions—depicted the effort’s post-
installation results instead of the pre-installation expectation of existing conditions 
(id.).  However, First Street I acknowledged the government’s argument that Drawing 
Sheet M-6 depicted the effort’s post-installation results instead of the pre-installation 
expectation of existing conditions, holding that there was a genuine issue of material 
fact as to that issue.  26-1 BCA ¶ 39,004 at 189,937 (“On the one hand, as the Corps 
argues (gov’t [summ. j.]  reply at 3-4), it is reasonable to infer from the fact that 
Drawing Sheet M-6 is entitled ‘NEW WORK’ that it merely depicted the Corps’ 
expectations of the project’s post-installation results . . . .”). 
 
First Street I’s footnote 4 also acknowledged the parties’ dispute regarding 
whether the expected conditions included concrete floor openings that were larger than 
the Grit Pumps by referring to the “alleged indication that the existing concrete floor 
openings were larger than the Grit Pumps.”  Id. at 189,943 n.4 (emphasis added).  The 
motion for reconsideration simply ignores footnote 4’s use of the word “alleged” to 

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qualify the phrase “indication that the existing concrete floor openings were larger 
than the Grit Pumps” (gov’t mot. for recon. at 4).  Footnote 4 merely noted the lack of 
a dispute as to whether that alleged existing condition materially differed from the 
conditions encountered of existing concrete floor openings that were smaller than the 
Grit Pumps.  First Street, 26-1 BCA ¶ 39,004 at 189,937 n.4.  Because the government 
has failed to show that its summary judgment motion argued that the alleged indication 
that the existing concrete floor openings were larger than the Grit Pumps did not 
materially differ from the condition encountered of concrete floor openings that were 
smaller than the Grit Pumps (id.), the government has failed to show that footnote 4 
erred in its characterization of the argument in the government’s summary judgment 
motion. 
 
IV. The Government Waived Its Patent Ambiguity Argument, Which, in any 
Event, Is Meritless 
 
The government waived its patent ambiguity argument, which, in any event, is 
meritless.  In its motion for reconsideration reply brief, the government argues that the 
Board erred as a matter of law in failing to decide whether any ambiguity was patent 
because, under Korte Constr. Co., ASBCA No. 63148, 23-1 BCA ¶ 38,454 at 186,909 
(quoting Newsom v. United States, 676 F.2d 647, 650 (Ct. Cl. 1982)), the: 
 
existence of a patent ambiguity in itself raises the duty of 
inquiry, regardless of the reasonableness vel non of the 
contractor’s interpretation. . . .  The court may not consider 
the reasonableness of the contractor’s interpretation, if at 
all, until it has determined that a patent ambiguity did not 
exist. 
 
(Gov’t reply mot. recon. at 6) As an initial matter, the government waived that 
argument by failing to raise it in its motion for reconsideration opening brief (gov’t 
mot. recon.); Novosteel, 284 F.3d at 1274; Buck Town Contractors, 18-1 BCA ¶ 
36,951 at 180,059. 
 
In any event, the argument is meritless because the government’s reliance upon 
Newsom and Korte ignores the fact that the reasonableness of a contractor’s 
interpretation of contract language is a factor we consider in both determining whether 
there is an ambiguity in the first place, and whether that ambiguity is patent—which 
we only analyze if we determine that there was an ambiguity.  First, as we correctly 
held in First Street I, the Board considers the reasonableness of a contractor’s 
interpretation in deciding whether a contract is ambiguous.  26-1 BCA ¶ 39,004 
at 189,936.  Indeed, Korte acknowledged that we must analyze whether a contractor’s 
interpretation of a contract is reasonable in deciding if it is ambiguous.  23- 1 BCA ¶ 
38,454 at 186,908.  Second, as Newsom held, the patent ambiguity analysis contains 

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two steps—namely whether an ambiguity is patent and, if not, whether the contractor’s 
interpretation was reasonable.  676 F.2d at 650. 
 
Newsom merely held that a tribunal will not conduct the second step of the 
patent ambiguity analysis of determining the reasonableness of the contractor’s 
interpretation until after it has determined that the ambiguity was not patent under the 
first step.  676 F.2d at 650.  Newsom did not analyze whether the contract was 
ambiguous in the first place, and, as a result, did not hold that we may not conduct the 
reasonableness inquiry that we perform as part of that ambiguity determination before 
we determine whether any ambiguity is patent.  Id.  Indeed, such a reading of Newsom 
would contradict the well-established precedent that we must determine whether a 
contract is ambiguous before we analyze whether any ambiguity is patent, see 
Grumman Data Sys., Corp. v. Dalton, 88 F.3d 990, 997 (1996); Interwest Const. v. 
Brown, 29 F.3d 611, 614-15 (1994), and that that analysis of whether a contract is 
ambiguous includes a consideration of the reasonableness of a contractor’s 
interpretation. CDM Constructors, Inc., ASBCA No. 60454 et al., 18-1 BCA ¶ 37,190, 
at 181,012 (quoting E.L. Hamm & Assocs., Inc. v. England, 379 F.3d 1334, 1341 (Fed. 
Cir. 2004); NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004); 
Hol-Gar Mfg. Corp. v. United States, 351 F.2d 972, 975 (Ct. Cl. 1965)).  In fact, it 
would be a logical impossibility to determine that an ambiguity was patent before we 
first decided that there was an ambiguity.  Because there is a genuine issue of material 
fact as to whether the Contract is ambiguous based upon a genuine dispute regarding if 
First Street’s interpretation of the Contract is reasonable, First Street I properly 
declined to reach the subsequent question of whether any ambiguity was patent in 
deciding the cross-motions for summary judgment.  26-1 BCA ¶ 39,004 at 189,936-37. 
 
CONCLUSION 
 
For the reasons discussed above, we deny the government’s motion for 
reconsideration. 
 
 Dated:  June 10, 2026 
 
 
 
 
 
 
 
(Signatures continued) 
 
 
 
JAMES R. SWEET 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

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I concur 
 
 
 
J. REID PROUTY 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 MICHAEL N. O’CONNELL 
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. 64028,
 Appeal of First Street 
Contractors, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  June 10, 2026 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals