MOTION FOR RECONSIDERATION DENIED:  January 30, 2008 
CBCA 5-R, 763-R 
BEYLEY CONSTRUCTION GROUP CORPORATION,
                                                                              Appellant, 
v. 
DEPARTMENT OF VETERANS AFFAIRS,
                                                                                 Respondent. 
Eileen M. Rivera-Amador of Nevares & Sánchez-Alvarez, PSC, San Juan, PR, counsel 
for Appellant. 
Kenneth B. MacKenzie, Charlma J. Quarles, and Phillipa L. Anderson, Office of the 
General Counsel, Department of Veterans Affairs, Washington, DC, counsel for Respondent. 
Before Board Judges PARKER , SHERIDAN , and WALTERS . 
SHERIDAN , Board Judge. 
The Board granted in part appeals by Beyley Construction Group Corporation (BCG) 
under a contract with the Department of Veterans Affairs (VA) for development of burial 
areas at the Puerto Rico National Cemetery in Bayamón, Puerto Rico.  Beyley Construction 
Group Corp. v. Department of Veterans Affairs , CBCA 5, et al., 07-2 BCA ¶ 33,639. 
Familiarity with that decision is presumed.  The appellant has submitted a motion for 
reconsideration, which we deny for the reasons set forth below. 
Rule 26 of the Board rules provides, in pertinent part, that reconsideration “may be 
granted for any of the reasons stated in Rule 27(a) and the reasons established by the rules 
of common law or equity applicable between private parties in the courts of the United 
States.”  The rule states, “Arguments already made and reinterpretations of old evidence are 

 
 
 
 
   
   
  
   
 
   
       
 
  
   
   
      
  
  
 
  
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not sufficient grounds for granting reconsideration.”  Among the reasons listed in Rule 27 
for which the Board may grant reconsideration are newly discovered evidence that could not 
have been earlier discovered, even through due diligence, and justifiable or excusable 
mistake, inadvertence, surprise, or neglect. 
Reconsideration is a matter within the discretion of the Board.  Flathead Contractors, 
LLC v. Department of Agriculture , CBCA 118-R, 07-2 BCA ¶ 33,688 at 166,778.  In 
exercising our discretion, and in evaluating a request for reconsideration, a tribunal must 
“strike a delicate balance between two countervailing impulses: the desire to preserve the 
finality of judgments and the incessant command of the [tribunal’s] conscience that justice 
be done in light of all the facts.”  Advanced Injection Molding, Inc. v. General Services 
Administration, GSBCA 16504-R, 05-2 BCA ¶ 33,097 at 164,063, cited in Flathead 
Contractors , 07-2 BCA at 166,778; see also Tidewater Contractors, Inc. v. Department of 
Transportation, CBCA 50-R, 07-2 BCA ¶ 33,618. 
The underlying claims in these appeals arose from the VA’s decision to delete certain 
contract work involving the excavation of a limestone hill, commonly and scientifically 
referred to in Puerto Rico as a “mogote.” The limestone in a mogote can range from softer 
limestone materials to hard, recrystallized limestone.  The facts established that, at the time 
of contract award, although the parties knew the mogote was made of limestone, they did not 
know how much soft limestone, as opposed to hard limestone, the mogote contained.  The 
actual softness or hardness of the materials in this limestone mogote remains a mystery today, 
because most of the mogote was never excavated.  
BCG planned to use the limestone excavated from the mogote as a source of fill for 
other parts of the project by using a bulldozer to break up the limestone into usable fill. 
Immediately upon beginning excavation of the mogote, BCG realized that the material at 
least at the surface of the mogote was harder than it anticipated based on its initial excavation 
efforts, and informed the VA it had encountered a differing site condition.  Shortly thereafter, 
the VA deleted the mogote excavation work from the contract. BCG sought an equitable 
adjustment, asserting that it was required to import fill onto the site, since its intended source 
for fill, the mogote excavation, was deleted from the contract.  
In these appeals, we heard several days of conflicting testimony that established to the 
Board’s satisfaction that a mogote could be composed of anywhere from 100% soft limestone 
to 100% hard limestone, and could yield anywhere from 0 to 100% usable fill.  The testimony 
also established that one could not reliably tell the softness or hardness of the limestone 
material in a mogote by merely looking at the vegetation on its surface.  
The Board found, however, that the deletion of the excavation work constructively 

   
    
  
  
 
   
  
 
   
      
    
 
  
 
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changed BCG’s method and manner of performance and deprived it of a source of fill that 
it intended to use to complete other parts of the contact work.  We concluded the appellant 
was entitled to an equitable adjustment of $232,821.48, plus interest.   BCG’s recovery was 
based on the Board’s determination that the contractor reasonably should have expected the 
mogote to produce 20% usable fill per cubic yard of material excavated.  We obtained the 
20% yield factor by looking at the composition of the material that BCG testified it excavated 
from a nearby similar geological formation, the northeast trending ridge.  That area, which 
was the site of an earlier landslide, included the slopes of the northeast trending ridge, as well 
as a pond and a canal.  BCG witnesses testified that when they excavated that area, the 
material excavated yielded 20% usable fill. 
BCG now asks the Board to reconsider our application of the 20% per cubic yard yield 
factor, arguing that we erred in determining that the mogote would only yield 20% usable fill. 
The appellant posits that the Board had “more reliable or trustworthy evidence” that 
established the mogote would have yielded “softer material,” and that BCG was reasonable 
to expect that “at least 60% of the mogote could be used as fill.” The factors or evidence that 
the appellant references include: 
(1) the soil borings (OW-13 through OW-16) contained in a report from 
GeoCim Geotechnical Engineering Consultants; 
(2)  the test cuts performed on the slope of the mogote; 
(3)  the landslide at the lower part of the northeast trending ridge; 
(4)  the vegetation on the mogote; and 
(5)  the expectations of the mogote’s composition as testified by Messrs. 
Beyley, Jurado and Ortiz. 
That the soil borings, test excavation, and landslide factors serve as bases for 
reconsideration of our decision, and a finding that the mogote contained at least 60% usable 
fill, are new arguments from BCG that were not made in previous filings.  To support these 
new arguments, the appellant generates additional proposed findings of fact not articulated 
or focused on during the case-in-chief.  
At no time during the case-in-chief did the appellant assert that the soil borings were 
representative of the amount of usable fill that should have been expected to be obtained 
from the mogote.
1   The appellant only used evidence regarding the test excavation to dispute 
1 In fact, the appellant proposed as a finding of fact “The data from the boring located 
closest to the ‘mogote’ (labeled as OW-16 . . .) cannot be extrapolated to the ‘mogote.’” 
Appellant’s Main Brief at 5. The appellant also noted that its consultant concluded that “the 

  
   
  
   
     
 
 
  
  
   
   
 
   
 
  
  
 
4 CBCA 5-R, 763-R 
the timing of the issuance of the change order deleting the mogote excavation work. 2   Citing 
testimony not argued earlier, BCG also now seems to posit that excavations in the area of the 
landslide “established that the inside of the mogote contains lots of usable fill.”  The 
landslide area is the same area that we referred to in our decision as the “slope of the 
northeast trending ridge.”
3 
An appellant’s belated conclusion that additional arguments might have been made 
or other evidence might have been highlighted is not a basis for the Board to allow 
reconsideration.  Mitchell Enterprises, Ltd. v. General Services Administration, CBCA 
402-R, 07-2 BCA ¶ 33,644.  “While the Board will look at clear errors, be they of fact or law, 
the Board will not use reconsideration to allow a party to retry a case or introduce facts and 
arguments that it failed to present at the original hearing or put forward in its briefing.” 
Flathead Contractors , 07-2 BCA at 166,778. 
As to the appellant’s re-arguments that the vegetation on the mogote and its witnesses’ 
expectations serve as a basis for reconsideration, and a finding that the mogote contained at 
least 60% usable fill, we disagree.  What the appellant is actually positing is that we should 
rely on the post-dispute testimonial estimates of Messrs. Beyley, Jurado, and Ortiz that, based 
on their experience and observation of the vegetation on the mogote, they expected this 
mogote to yield more than 60% usable fill. The arguments in the motion are essentially the 
same arguments, based on the same facts, that the Board thought carefully about and 
discussed extensively in its original decision.  BCG provides no new, additional, or 
compelling insight into these matters that we have not previously considered.  The Board will 
not grant reconsideration based on reinterpretations of old evidence and interpretations of 
matters already considered by the Board.  Tidewater ; see also Hook Construction, Inc. v. 
General Services Administration, CBCA 423-R, 07-1 BCA ¶ 33,488, at 165,994 (citing Long 
Lane Limited Partnership v. General Services Administration, GSBCA 15334-R, 04-2 BCA 
soil study (containing the borings) was not applicable to the scope of work for the project 
because it [did] not cover the ‘mogote.’”  Appellant’s Main Brief at 8; see also  Appellant’s 
Rebuttal Brief at 6. 
2 The appellant argued:  “The COTR [contracting officer’s technical representative] 
testified that the basis of the [change order] was the test cuts he requested to be performed at 
the base of the mogote, but his testimony showed that these test cuts were made well over one 
month after the issuance of the change order.”  Appellant’s Main Brief at 14-15. 
3 Ironically, in reaching our decision we relied on BCG testimony that it “cut material 
from [the area containing the landslide] but it wasn’t suitable for fill because it was full of 
rocks, full of muck,” and yielded only 20% usable fill.  07-2 BCA at 166,599. 

    
5 CBCA 5-R, 763-R 
¶ 32,751). 
The facts and issues presented by these appeals were fully and adequately considered 
in the Board’s original opinion and the appellant has not shown grounds for reconsideration. 
Decision 
The appellant’s motion for reconsideration is DENIED . 
PATRICIA J. SHERIDAN 
Board Judge 
We concur: 
ROBERT W. PARKER RICHARD C. WALTERS 
Board Judge Board Judge 

6 CBCA 5-R, 763-R