MOTION FOR RECONSIDERATION DENIED:  October 9, 2025
CBCA 8151-R, 8162-R, 8163-R
GDM A-E, INC.,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Italia A. Carson, Polaris Law Group, P.C., North Pole, AK, counsel for Appellant.
Neil S. Deol, Office of General Counsel, Department of Veterans Affairs, Decatur,
GA; and Kathleen Ramos, Office of General Counsel, Department of Veterans Affairs,
Arlington, TX, counsel for Respondent.
Before Judges GOODMAN, KULLBERG, and KANG.
GOODMAN, Board Judge.
Appellant, GDM A-E, Inc., moves for reconsideration of our decision GDM A-E, Inc.
v. Department of Veterans Affairs, CBCA 8151, 8162, 8163, 25-1 BCA ¶ 38,911, dismissing
these consolidated appeals for failure to state a claim.  We deny the motion.
Grounds for Reconsideration
The Board stated the grounds for reconsideration in Y2Fox, Inc. v. Department of
State, CBCA 7805-R, 24-1 BCA ¶ 38,647 at 187,873, dismissed, No. 25-1001 (Fed. Cir.
Nov. 14, 2024):


CBCA 8151-R, 8162-R, 8163-R 2
A motion for reconsideration is not an opportunity for a litigant to reargue its
case.  Reconsideration is warranted only in “extraordinary circumstances.” 
Caldwell v. United States, 391 F.3d 1226, 1235 (Fed. Cir. 2004).  “The three
primary grounds that justify reconsideration are:  (1) an intervening change in
the controlling law; (2) the availability of new evidence; and (3) the need to
correct clear error or prevent manifest injustice.”  Delaware Valley Floral
Group, Inc. v. Shaw Rose Nets, LLC, 597 F.3d 1374, 1383 (Fed. Cir. 2010)
(internal quotation marks omitted).  The Board “will not address new
arguments or evidence that the moving party could have raised before the
[original] decision issued.”  Banister v. Davis, 590 U.S. 504, 508 (2020).
Arguments that were forfeited because they were not timely asserted cannot
be resurrected on reconsideration.  See Philip Morris Products S.A. v.
International Trade Commission, 63 F.4th 1328, 1336-37 (Fed. Cir. 2023);
Caldwell, 391 F.3d at 1235; Hazani v. United States International Trade
Commission, 126 F.3d 1473, 1476-77 (Fed. Cir. 1997).
Appellant’s Motion
First Basis for Reconsideration
Appellant presents three bases for its motion.  The first basis was titled:
The Board Misapprehended Appellant’s “Totality of the Circumstances”
Argument that Drastic Increases in ECCs[1] Necessitating Additional Drawings
Indicate Scope Changes Were Required in Each Contract.
Motion for Reconsideration at 3.
Appellant states in support of this assertion:
[Appellant] did not assert that either increased ECC prices or design drawings
necessitated [that the contracting officers (COs)] change the scope of work in
the three contracts.  Rather, Appellant offered these grounds, in toto, as indicia
of a change from the scope of work at contract award.  In other words, the
combination of these facts supported a finding of a change to the contracts
1 ECC is the abbreviation of “estimated construction contract.”  We assume
appellant is indicating “estimated construction contract price.”

CBCA 8151-R, 8162-R, 8163-R 3
necessitating a change in scope of work to address the increased magnitude of
the project.
. . . .
Appellant asserts the increased ECCs and design drawings greatly modified
the original scope such that the COs should have modified the contracts to
change the scope of the work or materials to account for the increased work. 
Such changes to the contracts entitled Appellant to additional compensation.
Id. at 3-4.
Appellant is rearguing evidence and issues previously considered by the Board. 
Appellant states:
The Board’s decision addressed Appellant’s argument that the Agency should
have changed the scope of work or materials by focusing separately on the
grossly elevated ECC prices and the increased number of designs required
under the three contracts during performance.  The Board concluded that an
increase in ECC alone is not a ground for an increase in design fee. 
Separately, the Board concluded that an increase in the actual number or
complexity of design drawings did not support the conclusion that there had
been a change in the scope of work entitling the contractor to an additional fee. 
“Accordingly, there was no change, actual, constructive, or cardinal.”
Id. at 3.
Appellant concludes that the Board “misapprehended” what it now characterizes as
its  “totality of the circumstances” argument because the Board “focused separately” on the
issues.  Appellant has merely reargued issues and evidence previously presented and then
disagreed with the Board’s conclusion, which is not sufficient to justify reconsideration. 
Y2Fox, Inc., 24-1 BCA at 187,873.
Second Basis for Reconsideration
In its motion for reconsideration, appellant states the second basis for reconsideration
as “The Board Misapplied FAR 52.236-22 and Legal Precedent When It Failed to
Acknowledge the Limits of a CO’s Discretion.”  Appellant argues:

CBCA 8151-R, 8162-R, 8163-R 4
Given the flawed ECCs resulted in an increase in design drawings of almost
50%, this should have prompted the COs to consider whether the original
scope of work should be modified.  Appellant asserts it was both unfair and
unreasonable for the Agency to benefit from this increased work without
authorizing a change in scope or materials or adjusting the ECC as is permitted
under the Design Within Funding Limitations clause.
Motion for Reconsideration at 5-6.
In GDM A-E, Inc., 25-1 BCA at 189,404, the Board considered appellant’s arguments
with respect to the funding limitations clause and concluded otherwise, citing Michael Roth
& Associates, Architects & Planners Inc., 133 Fed. Cl. 279 (2017), which interpreted the
regulation at issue and which appellant also cites in its motion.  Again, rearguing issues and
evidence previously presented and merely disagreeing with the Board’s conclusion does not
justify reconsideration.  Y2Fox, Inc., 24-1 BCA at 187,873.
Third Basis for Reconsideration
As appellant’s third basis for reconsideration, it argues that reinstating appellant’s
claims will prevent manifest injustice from the Board’s misapprehension of the facts.  Motion
for Reconsideration at 6.  In support of this basis for reconsideration, appellant reiterates its
argument for its second basis:
[T]he agency [benefitted] by receiving additional work without paying
Appellant’s 6% fee on the increased ECCs.  In other words, the agency
received additional services without having to increase funding.
Motion for Reconsideration at 6.
This Board did not misapprehend facts; rather, we drew conclusions from those facts
that were not favorable to appellant.  Once again, rearguing issues and evidence previously
presented and disagreeing with the Board’s conclusion does not justify reconsideration. 
Y2Fox, Inc., 24-1 BCA at 187,873.
Decision 
The motion for reconsideration is DENIED.

CBCA 8151-R, 8162-R, 8163-R 5
    Allan H. Goodman        
ALLAN H. GOODMAN
Board Judge
We concur:
    H. Chuck Kullberg             Jonathan L. Kang         
H. CHUCK KULLBERG JONATHAN L. KANG
Board Judge Board Judge