MOTION FOR RECONSIDERATION DENIED: January 14, 2016
CBCA 4594(3048)-REM-R
RELIABLE CONTRACTING GROUP, LLC,
                                                         Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
                                                             Respondent.
Reginald A. Williamson and William E. Dorris of Kilpatrick Townsend & Stockton
LLP, Atlanta, GA; and Gregory C. Thomas, General Counsel of Fisk Electric Company,
Houston, TX, counsel for Appellant.
Benjamin Diliberto and Charlma Quarles, Office of General Counsel, Department of
Veterans Affairs, Washington, DC, counsel for Respondent.
Before Board Judges DANIELS (Chairman), HYATT, and SHERIDAN.
SHERIDAN, Board Judge.
Appellant has filed a motion for reconsideration of the Board’s decision in Reliable
Contracting Group, LLC v. Department of Veterans Affairs, CBCA 4594(3048)-REM, 15-1
BCA ¶ 36,114.  Familiarity with that decision is presumed.  For the reasons below, we deny
the motion.  
Background
This appeal arose from a claim in which Reliable Contracting Group, LLC (Reliable)
sought additional costs for the Department of Veterans Affairs’ (VA’s) alleged rejection of
back-up emergency generators provided for a project at the VA medical center in Miami,


CBCA 4594(3048)-REM-R 2
Florida.  The parties in this appeal elected, pursuant to Rule 19 of the Board’s Rules of
Procedure, to submit the case for decision on the written record without a hearing.  48 CFR
6101.19 (2013).  
The Board concluded that the generators, which had been in storage for four years,
could not be factory-tested and did not meet the requirement of being “new.”  We also found
that at the time the units were delivered, and the VA questioned whether the generators were
in compliance with the applicable contractual requirements, neither Reliable nor its electrical
subcontractor, Fisk Electric Company (Fisk), characterized the generators as “new” or
asserted that the units met the specification in response to the VA’s specific request for
confirmation that this was the case.  Reliable Contracting Group, LLC v. Department of
Veterans Affairs, CBCA 3048, 14-1 BCA ¶ 35,475 (2013).  Reliable appealed that decision.
The United States Court of Appeals for the Federal Circuit, in Reliable Contracting
Group, LLC v. Department of Veterans Affairs, 779 F.3d 1329, 1334 (Fed. Cir. 2015), held
that Reliable was required to install “new” generators and stated that this term meant that the
generators were to be in “fresh condition,” “not . . . used,” and “free of significant damage,
i.e., damage that was not cosmetic.”  The Court vacated the Board’s decision and remanded
the appeal to the Board with instructions “to determine whether the damage to the generators
during the four-year period between the original manufacture and the date of delivery to the
VA site was significant enough to render the generators not ‘new.’”  Id. at 1335.  
Following the remand, the Board issued another decision denying Reliable’s claim,
concluding, among other things, that there was insufficient evidence in the written record to
make a finding that the generators were “new” when they were delivered to the VA site and
that when the VA asked Reliable about the generators, both Reliable and Fisk characterized
the generators as unacceptable, were either unwilling or unable to represent the generators
as “new,” abandoned the generators shortly after delivery, and only began arguing that the
generators should have been accepted approximately three years later when Reliable filed its
claim.  Reliable, 15-1 BCA at 176,308-10.  After the issuance of the decision Reliable filed
this motion.  
In the motion Reliable reveals that after the remand, but prior to the Board issuing its
decision, the parties engaged in settlement negotiations.  As a culmination of these settlement
negotiations, on September 15, 2015, the parties reached an agreed settlement amount of
“$550,000 ‘all in’ from Reliable’s claimed quantum of $1,138,662.95, plus CDA [Contract
Disputes Act] interest . . . shook hands on the deal, and committed to getting the paperwork
finalized as soon as possible.”  Appellant’s Motion ¶¶ 10, 11. 

CBCA 4594(3048)-REM-R 3
On September 16, 2015, respondent’s counsel sent appellant’s counsel a draft
settlement agreement.  Appellant’s Motion ¶ 12.  Over the next ten days respondent’s counsel
reviewed the draft settlement agreement with Fisk’s counsel and prepared a draft joint motion
for judgment on stipulation of settlement.  On September 28, the Board issued its decision
denying the claim.  On September 29, the VA informed Reliable that it was withdrawing the
draft settlement agreement. 
Appellant’s motion for reconsideration references Rule 27(a)(1) and (6) and asks the
Board “to reconsider its decision in light of the compelling circumstances of the parties’
settlement negotiations [asserting that] where both parties agreed to settle this case for
$550,000 before the decision, strong equitable factors justify relief from the decision so that
the parties may proceed with settlement.”  The motion was styled as “joint.”
Respondent responded to the motion noting that the VA “has not joined appellant in
its motion for reconsideration and any characterization of the motion for reconsideration as
‘joint’ is inaccurate.”  Respondent also clarified certain facts not pertinent to this discussion.
A conference call was conducted on November 12, 2015, between the presiding judge
and parties’ counsel to discuss the motion for reconsideration.  During that call, respondent’s
counsel advised that the VA was willing to continue with finalization of the settlement if the
Board would vacate its decision.  The VA asserted that it needed the decision to be vacated
so that a stipulated judgment could be entered and payment could be made from the
permanent indefinite judgment fund, 31 U.S.C. § 1304 (2012) (judgment fund). 
Discussion
While styled as a motion for reconsideration, appellant asks that the Board vacate its
decision denying Reliable’s claim for extra costs associated with providing the electrical
generators on the VA Miami project.  Reliable asks us to vacate our decision so that the
“handshake” settlement it negotiated with the VA, prior to the issuance of the decision, can
be finalized and ultimately a “stipulated judgment” be entered by the Board so that the
$550,000 that the VA agreed to pay Reliable can be paid out of the judgment fund.  While
the VA does not “join” in the motion, it has indicated that it is willing to continue with
finalization of the settlement agreement if the Board vacates the decision.  According to the
VA, it is critical that the agency be able to access the judgment fund for the payment, and the
fund cannot be accessed if the decision remains in place.  
Pursuant to Board Rule 26, “[r]econsideration may be granted, a decision or order
may be altered or amended, or a new hearing 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

CBCA 4594(3048)-REM-R 4
as between private parties in the courts of the United States.”  (Emphasis added.)  Rule 27(a)
provides the following grounds, which appellant asserts apply here, for relieving a party from
the operation of a final decision or order:
1.  Newly discovered evidence which could not have been earlier discovered,
even through due diligence;
. . . .
6.  Any other ground justifying relief from the operation of the decision or
order.
Appellant asserts that:
the parties’ current situation appears to fall within the ambit of CBCA [Rule]
27(a)(1) as the fact that the parties had engaged in extensive settlement
discussions culminating in a mutually satisfactory, “handshake” agreement is
new evidence and new facts to be considered by the Board.  Otherwise, the
general catch-all grounds of CBCA [Rule] 27(a)(2) [sic][1] provides the Board
justification for reconsidering its decision.  Under either factor, Reliable asks
the Board to reconsider its decision in light of the parties’ settlement
agreement, allowing the parties to move forward with a Joint Motion for
Judgment on Stipulation of Settlement.
Other than characterizing the “extensive settlement discussions culminating in a
mutually satisfactory, ‘handshake’ agreement” as “new evidence and new facts,” appellant’s
motion does not explain what “[n]ewly discovered evidence which could not have been
earlier discovered, even through due diligence” that it is asking the Board to consider. 
Clearly, the “handshake” agreement which occurred well after the record had been closed
and two Board decisions had been issued is not newly discovered evidence as envisioned by
Rule 27(a)(1).  See Accurate Information Systems, Inc. v. Department of the Treasury,
GSBCA 12978-P-R, 95-1 BCA ¶ 27,348, at 136,283 (1994) (newly discovered evidence is
such that if the case were retried, a new outcome would likely result).
In arguing that Rule 27(a)(6) serves as a catch-all ground for reconsidering or vacating
our decision in “extraordinary circumstances,” appellant references what it characterizes as
an “analogous situation” in which the Federal Circuit upheld a vacatur of a judgment when
1 Based on appellant’s motion, the Board concludes that appellant intended to
reference Rule 27(a)(6).

CBCA 4594(3048)-REM-R 5
a settlement mooted the action on appeal.  See U.S. Philips Corp. v. Windmere Corp., 971
F.2d 728, 731 (Fed. Cir. 1992).
Reliable also posits that:
[g]iven the extraordinary circumstances of the timing of the decision in light
of the parties’ settlement negotiations, Reliable requests the Board grant this
joint motion for reconsideration of its decision.  Granting this motion will
allow the parties to proceed with a joint motion for judgment on stipulation of
settlement, such that the decision on the parties’ joint motion for judgment on
stipulation of settlement would serve as an adjudication of the case on the
merits pursuant to Rule 25(b).[2]  
When Philips was issued in 1992, the Federal Circuit noted that “[a]lthough in the
Federal Circuit vacatur is the general rule, we do not hold that vacatur must always be
granted, whatever the circumstances.”  971 F.2d at 731.3  Two years later, in U.S. Bancorp
Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994), the Supreme Court took a
less expansive view of vacatur that changed the legal landscape on whether an appellate court
should vacate a lower court opinion.  Bancorp has become the seminal case for federal
appellate courts, trial courts, and tribunals considering vacatur of decisions due to mootness.4 
2 Board Rule 25(b) provides that: 
When an appeal or application is settled, the parties may file with the Board
a stipulation setting forth the amount of the award.  The Board will adopt the
parties’ stipulation by decision, provided the stipulation states the parties will
not seek reconsideration of, or relief from, the Board’s decision, and they will
not appeal the decision.  The Board’s decision under this paragraph (b) is an
adjudication of the case on the merits.
3 It is worth noting that under the facts of this case settlement has not mooted the
appeal.  Neither party has asserted that the settlement agreement was ever finalized. 
Nevertheless, the Board has elected to address the issue of vacatur and case precedent as if
a settlement agreement had been finalized. 
4 After the mortgagor of a mall which had been scheduled for a foreclosure sale
filed in the United States Bankruptcy Court for the District of Idaho, the mortgagee argued
that the plan was unconfirmable as a matter of law and moved to suspend the automatic stay

CBCA 4594(3048)-REM-R 6
When a case is moot, the Supreme Court in Bancorp explained that “[t]he principal condition
to which we have looked [in determining whether vacatur is appropriate] is whether the party
seeking relief from the judgment below caused the mootness by voluntary action.”  Id. at 24. 
The Supreme Court held:
[M]ootness by reason of settlement does not justify vacatur of a judgment
under review.  This is not to say that vacatur can never be granted when
mootness is produced in that fashion.  As we have described, the determination
is an equitable one, and exceptional circumstances may conceivably counsel
in favor of such a course.  It should be clear from our discussion, however, that
those exceptional circumstances do not include the mere fact that the
settlement agreement provides for vacatur – which neither diminishes the
voluntariness of the abandonment of review nor alters any of the policy
considerations we have discussed.  
Id. at 29. 
The Federal Circuit, has subsequently cited Bancorp in addressing the relationship
among settlement agreements, mootness, and vacatur, noting that the Supreme Court in
Bancorp rejected a request for vacatur, “holding that absent exceptional circumstances,
‘[w]here mootness results from settlement, . . . the losing party has voluntarily forfeited his
legal remedy by the ordinary process of appeal or certiorari, thereby surrendering his claim
to the equitable remedy of vacatur.’”  Aqua Marine Supply v. AIM Machining, Inc., 247 F.3d
1216, 1217 (Fed Cir. 2001) (quoting Bancorp, 513 U.S. at 25 (footnote omitted))5.  See also
of foreclosure imposed by 11 U.S.C. § 362(a).  The Bankruptcy Court granted the motion,
the United States District Court for the District of Idaho reversed the judgment of the
Bankruptcy Court, and the United States Court of Appeals for the Ninth Circuit affirmed the
judgment of the District Court.  After the United States Supreme Court granted the
mortgagee’s petition for a writ of certiorari and received briefing on the merits, the parties
stipulated to a consensual plan of reorganization which was approved by the Bankruptcy
Court.  The parties agreed that confirmation of the plan constituted a settlement that mooted
the case.  However, the mortgagee filed a motion requesting that the Supreme Court exercise
its power under 28 U.S.C. § 2106 to vacate the judgment of the Court of Appeals, which
motion the mortgagor opposed.  As discussed above, the Supreme Court denied the motion
to vacate. 
5 Typically, federal appellate courts have reviewed the vacatur of federal district
courts and other specialized court decisions pursuant to Federal Rule of Civil Procedure
(FRCP) 60(b).  In Valaro Terrestrial Corp. v. Paige, 211 F.3d 112, 117 (4th Cir. 2000), the

CBCA 4594(3048)-REM-R 7
King v. Corporacion Habansos, S.A., 560 F. App’x 999 (Fed. Cir. 2014) (vacatur denied
because party should not be permitted to benefit by vacatur for mootness caused by its own
willful noncompliance with the Patent Board’s orders); Ohio Willow Wood Co. v. Thermo-
Ply, Inc, 629 F.3d 1374, 1376 (Fed. Cir. 2011) (Moore, J., concurring) (vacatur is an
“extraordinary remedy” that should not be granted merely at the request of the litigants); see
also Reidell v. United States, 47 Fed. Cl. 209, 213-14 (2000) (the court denied vacatur,
concluding that its decision serves the public interest even though the settlement was
conditioned on the vacatur); MAPCO Alaska Petroleum, Inc. v. United States, 30 Fed. Cl.
153, 154 (1993) (vacatur denied because the parties’ settlement did not depend on the
granting of vacatur).  But see Tessera, Inc. v. International Trade Commission, 646 F.3d
1357, 1371 (Fed. Cir. 2011) (vacatur appropriate where the mootness occurs through
happenstance); Tafas v. Kappos, 586 F.3d 1369, 1371 (Fed. Cir. 2009) (vacatur “is
appropriate if the mootness arises from external causes over which the parties have no
control”).
Citing Bancorp for authority, the Board has previously addressed vacatur in
circumstances similar to those found here.  In Libbey Physical Medicine Center & Hot
Springs Health Spa v. Department of the Interior, CBCA 1305, 09-2 BCA ¶ 34,249, the
parties jointly moved to vacate an earlier Board ruling, attaching a stipulation for conditional
settlement.  In denying the motion, we found that the parties had failed to demonstrate the
existence of “exceptional circumstances” that justify vacatur and noted:
The Supreme Court, in Bancorp, addressed how and when vacatur is to be
used and underscored the fundamental value of judicial precedent to our
system of law, even where a matter has been settled after the decision is
issued:
Judicial precedents are presumptively correct and valuable to the
legal community as a whole.  They are not merely the property
of private litigants and should stand unless a court concludes
that the public interest would be served by a vacatur.
The Court explained that, barring “exceptional circumstances,” vacatur should
only apply to cases involving mootness that has been brought about by
“happenstance,” i.e., mootness resulting from “circumstances unattributable
court concluded that the standard the Supreme Court used  in Bancorp in addressing vacatur
due to mootness, 28 U.S.C. § 2106, was “essentially the same” as FRCP 60(b).  While the
Board is not bound by the FRCP, we use the FRCP as guidance and note that FRCP 60(b)
is substantively the same as our Rule 27(a).

CBCA 4594(3048)-REM-R 8
to any of the parties,” rather than mootness that is the result of the parties’
decision to settle and thereby forego their rights of appeal.  
Id. at 169,249 (citations omitted).
Under the principles established in Bancorp and its progeny, the Board reviews the
facts of the case now before us in terms of the reasons for vacatur proffered and the public
interest and determines that the facts and law do not favor vacating our decision.  In this
matter, both parties caused the mootness by waiting too long to settle the appeal.  The Board
recognizes that its refusal to vacate the decision will likely have the consequence of
preventing the proposed settlement as it is currently structured.  The Board’s decision may
also result in an appeal to the Federal Circuit and further litigation even though the Board
encourages settlements.  Nevertheless, the decision contains important clarifications to our
original decision, in compliance with the remand by the Federal Circuit.  
Both our original decision and our decision on remand (that which appellant asks us
to vacate) concluded that Reliable was not entitled to extra costs associated with providing
back-up emergency generators at the VA Miami project.  Vacating the decision would leave
standing the Federal Circuit decision on this matter which we believe raised issues that
needed to be fleshed-out and discussed for future precedent, namely, whether a contractor
who acquiesces without complaint to the Government’s concerns that equipment to be
installed on a construction project is non-conforming should be able later to recover the extra
costs associated with providing conforming equipment.  We consistently concluded that such
were the circumstances in this case and that Reliable is not entitled to recovery.  We also
conclude that the discussion and conclusions in our decision on remand are valuable to the
legal community as a whole.
Finally, it seems to us that to vacate our decision denying recovery, and then enter a
judgment in favor of Reliable for the stipulated amount of $550,000, where we have
concluded that no recovery is due, would weaken the judicial process.  We are unwilling to
do so.

CBCA 4594(3048)-REM-R 9
Decision
Appellant’s motion for reconsideration is DENIED.
                                                 
PATRICIA J. SHERIDAN
Board Judge
We concur:
                                                                                                  
STEPHEN M. DANIELS CATHERINE B. HYATT
Board Judge Board Judge