MOTION FOR RECONSIDERATION DENIED:  November 16, 2016
CBCA 2882-R
BRYAN CONCRETE & EXCAVATION, INC.,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Bradley W. Andersen and Timothy J. Calderbank of Landerholm, P.S., Vancouver,
WA, counsel for Appellant.
Brian R. Reed, Kristin Langwell, Glenn Sebesta, and Brent Pope, Office of Regional
Counsel, Department of Veterans Affairs, Chicago, IL, counsel for Respondent.
Before Board Judges SOMERS, DRUMMOND, and ZISCHKAU.
SOMERS, Board Judge.
Bryan Concrete & Excavation, Inc. (BCE) seeks reconsideration under Board Rule
26 (48 CFR 6101.26 (2015)) of the Board’s August 26, 2016, decision granting summary
relief to respondent, the Department of Veterans Affairs (VA).  The facts underlying this
dispute are laid out in detail in the Board’s earlier opinion.  See Bryan Concrete &
Excavation, Inc. v. Department of Veterans Affairs, CBCA 2882, 16-1 BCA ¶ 36,475.  After
filing this motion, BCE filed an appeal from our decision to the United States Court of
Appeals for the Federal Circuit (CAFC).  For the reasons explained below, we first find that
we possess jurisdiction to consider BCE’s motion, despite the fact that BCE has appealed to


CBCA 2882-R 2
the CAFC.  Next, upon consideration of appellant’s brief and the VA’s opposition, we deny
the motion. 
The Board Possesses Jurisdiction Over BCE’s Motion for Reconsideration
On November 8, 2016, BCE filed an appeal from our decision with the United States
Court of Appeals for the Federal Circuit, which was docketed on November 8, 2016.  “[A]s
a general proposition, once final judgment is entered and a timely notice of appeal has been
filed, the trial tribunal loses jurisdiction over the case except to act in aid of the appeal or to
correct clerical errors.”  Travel Centre v. General Services Administration, GSBCA 14057-R,
00-2 BCA ¶ 31,129, at 153,769 (quoting A.C. Nielsen Co. v. Defense Commissary Agency,
GSBCA 13466-P-R, et al., 97-1 BCA ¶ 28,774, at 143,594); see also Zinger Construction
Co.,  GSBCA 6568-R, 87-1 BCA ¶ 19,444 (1986), (citing Chore-Time Equipment, Inc. v.
Cumberland Corp., 713 F.2d 774, 781 (Fed. Cir. 1983));  Yachts America, Inc. v. United
States, 8 Cl. Ct. 278, 281, aff’d, 779 F.2d 656 (Fed. Cir. 1989). Generally, the only things left
for the lower tribunal to rule upon are those matters vested in the lower tribunal by statute
or mandatory rule which are appropriate for post-trial or post-hearing disposition.  Id. (citing
Chemical Engineering Corp. v. Essef Industries, Inc., 795 F.2d 1565, 1574-75 (Fed. Cir.
1986); see also Signal Contracting, Inc., ASBCA 44963, 93-3 BCA ¶ 26,058 (citing
Hattersley v. Bollt, 512 F.2d 209, 215 (3rd Cir. 1975).  
However, at least one of our predecessor boards determined that it is appropriate to
hear and deny a motion for relief even after an appellant has filed a notice of appeal, without 
leave of the appellant court.  A.C. Nielsen Co., 97-1 BCA at 143,594.   As the General
Services Board of Contract Appeals (GSBCA) explained:  
In Yachts America, the Federal Circuit recognized that it was appropriate for
the Claims Court1 to assume jurisdiction over a motion for relief from decision
while an appeal was pending.  There, the Federal Circuit affirmed the Claims
Court’s denial of a Rule 60(b) motion filed after the Claim’s Court decisions
had been appealed.  In assuming jurisdiction, the Claims Court recognized:
[c]onceptually, it is awkward for a court to rule in a case when
jurisdiction lies elsewhere.  But practically, it is helpful to the
appellate court to know whether the record it has is complete,
1 The United States Claims Court was renamed the United States Court of
Federal Claims by the Federal Courts Administration Act of 1992, Pub. L. No. 102-572, 106
Stat. 4516.    

CBCA 2882-R 3
whether the proposed new evidence makes a difference and
whether judicial and litigation time and resources are likely to
be misspent by unnecessary transferral of the case between
courts.  To the extent the trial court can provide this information
about a case with which it is so far more familiar than is the
court of appeals, it acts “in furtherance of the appeal.”
Id.; Accord Placeway Construction Corp. v. United States, 19 Cl. Ct. 484, 488 (1990).  The
grant or denial of a motion for relief from decision is discretionary.  Yachts America, 779
F.2d at 662.  
Factors which prompted the GSBCA to assume jurisdiction over the motion for relief
in A.C. Nielsen persuade us that is appropriate for us to consider BCE’s motion for
reconsideration, even though an appeal is pending. 
BCE’s Motion for Reconsideration is Denied
Rules 26 and 27 of the Board’s rules set forth the standards by which a motion for
reconsideration will be evaluated:
[R]econsideration may be granted for any of the following reasons. . . : newly
discovered evidence which could not have been earlier discovered, even
through due diligence; justifiable or excusable mistake, inadvertence, surprise,
or neglect; fraud, misrepresentation, or other misconduct of an adverse party;
the decision has been satisfied, released or discharged, or a prior decision upon
which it is based has been reversed or otherwise vacated, and it is no longer
equitable that the decision should have prospective application; the decision
is void, whether for lack of jurisdiction or otherwise; or any other ground
justifying reconsideration, including a reason established by the rules of
common law or equity applicable as between private parties in the courts of the
United States.
Oregon Woods, Inc. v. Department of the Interior, CBCA 1072-R, 09-1 BCA ¶ 34,063, at
168,431-32, aff’d sub nom. Oregon Woods, Inc. v. Salazar, 355 F. App’x 403 (Fed. Cir.
2009). 
Reconsideration is not a vehicle for retrying a case or introducing arguments that
could have been made previously.  See Ryll International, LLC v. Department of
Transportation, CBCA 1143-R, 12-1 BCA ¶ 35,029, at 172,144.  “Arguments already made

CBCA 2882-R 4
and reinterpretations of old evidence are not sufficient grounds for granting reconsideration.” 
Rule 26. 
 
 Here, BCE moves for reconsideration “to prevent manifest injustice” and then argues
three legal arguments to support its motion for reconsideration.  First, BCE asserts that the
VA is equitably estopped from now claiming that the contract is void ab initio.  Second, BCE
contends that the VA waived its right to claim the contract is void ab initio.  Finally, BCE
states that “laches prohibits the VA from claiming the contract is void ab initio.”  
BCE presented the first argument in its opposition to the VA’s motion for summary
relief, and we expressly rejected it.  Bryan Concrete & Excavation, 16-1 BCA at 177,732-33. 
The other arguments could have been made on the basis of the documents in the record but
were not.  Neither variety of argument is appropriately put before us now.  Ocwen Loan
Servicing, LLC v. Department of Veterans Affairs, CBCA 1073, 09-1 BCA ¶ 34,121, at
168,716 (citing Watson v. United States, 281 F.App’x 970, 971 (Fed. Cir. 2008) (“a new
legal argument cannot be raised in a motion for reconsideration under RCFC [Rules of the
Court of Federal Claims] 59(a)(1) when the plaintiff knew of the facts giving rise to the
argument during the pendency of the case”));  National Westminister Bank, PLC v. United
States, 512 F.3d 1347, 1352 (Fed. Cir. 2008) (argument made on reconsideration but not
presented during briefing stage held to have been waived).  “Reconsideration is not available
to retry a case or introduce arguments that could have been made previously.”  URS Energy
& Construction, Inc. v. Department of Energy, CBCA 2260-R, 12-2 BCA 35,147, at 172,524
(citing W.G. Yates & Sons Construction Co. v. General Services Administration, CBCA
1495-R, 12-1 BCA ¶ 35,038, at 172,153 (2011)).
Decision
After careful review of the points raised by BCE, we see no basis for granting its
motion for reconsideration.  BCE’s motion for reconsideration is DENIED.  
___________________________
JERI KAYLENE SOMERS
Board Judge

CBCA 2882-R 5
We concur:  
__________________________ ____________________________
JEROME M. DRUMMOND JONATHAN D. ZISCHKAU
Board Judge Board Judge