ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of --
CDM Constructors, Inc. 
Under Contract No. W9 l 2PL- l 2-C-0022 
APPEARANCES FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 60454, 60455, 60669 
Bret S. Wacker, Esq. 
Jeffrey M. Gallant, Esq. 
Emily J. Baldwin, Esq. 
Clark Hill PLC 
Detroit, MI 
Michael P. Goodman, Esq. 
Engineer Chief Trial Attorney 
John F. Bazan, Esq. 
Gilbert H. Chong, Esq. 
Brian M. Choe, Esq. 
Engineer Trial Attorneys 
U.S. Army Engineer District, Los Angeles 
OPINION BY ADMINISTRATIVE JUDGE SWEET ON THE 
GOVERNMENT'S MOTION FOR RECONSIDERATION 
The government moves to reconsider our October 24, 2018 decision on entitlement 
as to the standby generator in ASBCA Nos. 60455 and 60669.* Motions for 
reconsideration are only appropriate if they are based upon newly discovered evidence, 
mistakes in the findings of fact, or errors oflaw. Green Valley Co., ASBCA No. 61275, 
18-1 BCA ,i 37,044 at 180,329 (citing Alliance Roofing & Sheet Metal, Inc., ASBCA 
No. 59663, 15-1 BCA ,i 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 ,i 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). 
* The government does not seek reconsideration of our decision regarding the evaporation 
ponds in ASBCA No. 60454. 

Here. the government first improperly seeks to reargue the position it advanced in 
its post-hearing reply brief that appellant CDM Constructors, Inc. (CDM) abandoned its 
defective specification claim (gov·t post-hearing reply at 1; gov't mot. at 3-4 ). In any 
event, the government's argument ignores the fact that defective specification is a category 
of constructive change. Grunley-Walsh Constr. Co., ASBCA No. 33004, 90-1 BCA 
,i 22,362 at 112,343; see also John Cibinic, Jr., James F. Nagle & Ralph C. Nash, Jr., 
ADMINISTRATION OF GOVERNMENT CONTRACTS, 399 (5th ed. 2016). It also ignores the 
discretion we possess to consider issues, even abandoned ones. Becton Dickinson & Co. v. 
C.R. Bard, Inc .. 922 F.2d 792. 800 (Fed. Cir. 1990). 
Second. the government mischaracterizes the decision· s findings of fact by asserting 
that we found that "there was no defect in the [Southern California Edison (SCE)] drawings 
design'' (gov't mot. at 4 (citing findings. 47-49)). In the decision, we merely found that the 
SCE drawings were consistent with Contract No. W912PL-12-C-0022's (0022 Contract's) 
appendix A,§ 9.1.3, and SCE's Electrical Service Requirements ,i 12. CDM Constructors, 
Inc., ASBCA No. 60454, 18-1 BCA ,i 37,190 at 181,010. It does not follow from those 
findings that the SCE drawings design were error free. Id. On the contrary, as we found, 
the drawings were defective because the government and SCE rejected CDM's design based 
upon those drawings. Id. at 181,010, 181,014. 
Third, the government's argument that there was no government action or omission 
because it was SCE-and not the government-that rejected the design fails legally and 
factually (gov't mot. at 4-5). Legally, the government's issuance of a misleading 
solicitation itself is the basis for a price adjustment under a defective specification claim. 
BECO Constr. Co., ASBCA No. 57483, 11-2 BCA ,i 34,817 at 171,338; F.J. Stokes Corp., 
ASBCA No. 6532, 1963 BCA ,i 3944 at 19,542. Factually, the government also rejected 
the design by adopting SCE's position in a memorandum. CDM, 18-1 BCA ,i 37,190 
at 181,010. Indeed, the testimony of the government's electrical engineer-upon which 
the government relies-confirms that the government also rejected CDM's design (gov't 
br. at 5) (quoting tr. 4/38). Therefore, we deny the government's motion for 
reconsideration. 
Dated: May 7, 2019 
(Signatures continued) 
2 
JAMESR. SWEET 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

I concur 
RI~EFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
OWEN C. WILSON 
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. 60454, 60455, 60669, Appeals of CDM 
Constructors, Inc., rendered in conformance with the Board's Charter. 
Dated: 
3 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals