MOTION TO RECONSIDER AND REOPEN
 
THE RECORD DENIED:  November 9, 2011
 
CBCA 1495-R
 
W. G. YATES AND SONS CONSTRUCTION COMPANY, 
Appellant, 
v. 
GENERAL SERVICES ADMINISTRATION, 
Respondent. 
Stephen B. Hurlbut and Pavan I. Khoobchandani of Akerman Senterfitt LLP, 
Washington, DC, counsel for Appellant. 
Lesley M. Busch, Office of General Counsel, General Services Administration, 
Washington, DC, counsel for Respondent. 
Before Board Judges DANIELS  (Chairman), HYATT, and STEEL. 
HYATT, Board Judge. 
Respondent, the General Services Administration (GSA), moves the Board to 
reconsider its decision granting the claim of appellant, W.G. Yates and Sons Construction 
Company (Yates), on behalf of its electrical subcontractor, KenMor, Inc. (KenMor). W.G. 

    
          
        
             
            
            
     
      
    
        
    
       
      
      
       
       
 
        
       
      
        
    
  
   
     
      
    
  
  
  
       
  
2 CBCA 1495-R 
Yates & Sons Construction Co. v. General Services Administration, CBCA 1495, 11-1 BCA 
¶ 34,638 (2010). GSA also asks the Board to reopen the record to permit it to submit new 
evidence. 
Yates appealed a contracting officer’s decision with respect to the calculation of an 
equitable adjustment for the impact of a revised Davis-Bacon Act wage adjustment that was 
incorporated after award into its contract to build the Federal Bureau of Investigation’s 
(FBI’s) field office in Houston, Texas. 
Ken-Mor’s bid was based on an out-of-date wage 
determination incorporated into the contract by the Government. Subsequently, the 
contractor was directed to pay the higher wage rates to its laborers, both retroactively and 
prospectively. Ken-Mor submitted a request for equitable adjustment based on the actual 
hours it expended on the project. The contracting officer requested an audit from the 
Regional Office of the Inspector General (IG). The IG auditor determined the hours that had 
been proposed in Ken-Mor’s bid and advised the contracting officer that the equitable 
adjustment must be restricted to the hours originally planned by Ken-Mor. Those hours 
were less than the hours actually worked. The IG auditor did not audit the actual hours 
worked for any purpose, including whether they were actually devoted to the contract or had 
been properly documented. The Board granted the appeal, holding that, as a matter of law, 
the equitable adjustment reflecting the increased amount of wages Ken-Mor was required 
to pay should not be limited to the hours planned in Ken-Mor’s bid, but should include the 
hours actually worked by the subcontractor’s affected labor force.  
GSA contends that the Board should grant reconsideration and reopen the record for 
two reasons. First, it asserts that there is newly discovered evidence that could limit the 
number of hours for which Ken-Mor would be paid in connection with the project. Second, 
GSA argues that certain of the Board’s conclusions, in particular its inference that the parties 
were not contesting the actual number of hours Yates worked under the higher wage rate, 
were not supported by substantial evidence. 
These motions are subject to the standards enunciated in the Board’s Rules of 
Procedure.  As the Board has stated: 
The Board’s Rule 26 [48 CFR 6101.26 (2010)] explains that 
reconsideration 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 

       
      
      
    
       
  
     
    
      
   
 
      
   
       
 
    
 
    
     
    
      
     
      
     
       
        
      
   
3 CBCA 1495-R 
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); see also Springcar Co. v. General Services Administration, CBCA 1310-R, et al., 10­
2 BCA ¶ 34,534, at 170,332. Rule 26(a) further cautions that “[a]rguments already made 
and reinterpretations of old evidence are not sufficient grounds for granting reconsideration, 
for altering or amending a decision, or for granting a new hearing.” Accord Springcar Co.; 
Beyley Construction Group Corp. v. Department of Veterans Affairs, CBCA 5-R, et al., 08-1 
BCA ¶ 33,784, at 167,203.  As the Board observed in Beyley: 
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. 
Id. at 167,203-04. Further, reconsideration is not available to retry a case or introduce 
arguments that could have been made previously. Confederated Tribes of Coos, Lower 
Umpqua,& Siuslaw Indians v. Department of Health and Human Services , CBCA 237­
ISDA-R, 10-2 BCA ¶ 34,476, at 170,043. 
New Evidence 
Respondent advises that a second certified claim on the project was submitted by 
Yates to the GSA contracting officer in September 2010, subsequent to the filing of the 
parties’ reply briefs in this case in August 2010, and prior to the issuance of the Board’s 
decision in December. According to GSA, this additional claim demonstrates that appellant 
“misrepresented” that the “actual hours worked on the project were reasonable.” 
Respondent states that: 

     
    
     
    
 
     
 
       
   
       
      
     
   
     
   
      
      
     
      
      
          
      
   
      
      
    
    
      
       
        
4 CBCA 1495-R 
[T]he submission of KenMor’s second certified claim creates a situation 
where the representations and arguments made by Appellant regarding the 
reasonableness of the hours worked on the project were in fact not true and 
unsupported. Furthermore this evidence would likely have changed the 
Board’s decision. Therefore the proper equitable adjustment for the increased 
wage rates must be awarded based on the planned hours at the time of bid 
until the dispute between the parties regarding delay and inefficiency on the 
project is settled. 
GSA maintains that the filing of a claim for delay completely contradicts the assertion that 
the hours Ken-Mor spent on the project were reasonably spent. 
Appellant disagrees that this “new” claim, which was filed after a request for an 
equitable adjustment had been pending with the contracting officer for approximately fifteen 
1months, presents any new evidence relevant to the subject appeal. Appellant also clarifies
that KenMor does not, in this claim, seek compensation for delay other than extended job 
site and home office overhead costs attributable to Government-caused delay.  It does not 
seek labor inefficiency costs or compensation for electrician labor hours on account of 
delays, other than for specific and discrete change order costs. KenMor acknowledges that 
any amounts allowed for those electrician labor hours would need to reflect a credit for the 
incremental wage costs awarded in the Board’s decision. 
The second claim is simply immaterial to the issue resolved by the Board’s decision. 
Even assuming, as GSA contends, that none of the electrician labor hours expended over 
and above those estimated in Ken-Mor’s bid are compensable, the risk of loss that Ken-Mor 
assumed under the contract was that it would have to absorb the cost of labor hours needed 
in excess of its bid at the wage rate GSA told it to use in calculating its bid. The 
Government directed a change to the wage rate. The analysis adopted by the Board simply 
compensated Ken-Mor for costs it would not have incurred but for the Government’s 
directive. GSA has not offered any persuasive evidence or argument to support its 
contention that KenMor misrepresented any facts or somehow obtained an unfair judgment 
in its favor.  The mere existence of a newly certified claim, given that the existence of the 
underlying request for equitable adjustment was known by respondent prior to the hearing, 
does not establish a convincing basis for reopening the record to entertain additional 
evidence on this issue. 
1 Indeed, because this delay and inefficiency claim was in the works, GSA filed 
a motion in limine prior to the trial, seeking the exclusion of any evidence pertaining to 
delay. 

       
      
        
     
    
     
   
      
      
      
      
      
        
    
   
   
 
      
  
     
  
    
      
      
  
    
      
   
  
5 CBCA 1495-R 
Substantial Evidence 
GSA also asserts that certain statements made by the Board in its discussion and 
analysis are not supported by substantial evidence in the record. With respect to the Board’s 
conclusions, GSA points to three statements on page ten of the slip opinion. To provide 
these sentences in context, we reproduce the paragraph in full, with the language singled out 
by GSA highlighted in bold: 
Although GSA is correct that this was a fixed price contract and that 
KenMor should not be permitted to use the Davis-Bacon Act adjustment to 
compensate it for a loss position in performing the contract, KenMor’s 
approach does not in fact change KenMor’s position with respect to its 
bid. GSA included a wage determination in the contract that bidders were 
required to comply with. It then modified the contract, retroactively, to 
require that wages be paid in accord with a substantially revised wage 
determination that was in effect at the time of award but had been overlooked. 
This caused KenMor to have to pay more than the base salary it offered in 
compliance with the initial wage determination. KenMor was obligated to pay 
the higher wages for all hours worked, whether included in the planned hours 
or not. Whether the planned hours were more or less than the actual hours is 
immaterial; both parties agree that the actual hours were reasonably 
devoted to the project . KenMor is not asking to be reimbursed anything 
other than the incremental increase above the rate for which it was responsible 
to pay its workers under the old determination. Payment of the incremental 
costs for all hours worked leaves KenMor’s profit or loss position 
unchanged. With that payment, KenMor is in the same position it would 
have been in but for the revised wage determination. 
11-1 BCA at 170,705. GSA further argues that there is no substantial evidence to support 
the statement in Finding 
25 that “Yates presented considerable evidence at the hearing in support of its claimed 
costs.” 
2 Id. at 170,704. 
2   Finding 25 provided: 
Yates presented considerable evidence at the hearing in support of its 
claimed costs. KenMor’s bid was formulated using the wage rate included in 
the original RFP. Transcript at 60. The increase sought by Yates represents 
the baseline difference between the wages paid under the contract as it was 

    
      
        
       
       
        
     
      
     
      
     
       
        
       
      
     
       
       
     
    
      
       
     
    
   
       
  
      
      
   
  
    
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GSA takes particular exception to the Board’s inference in its legal analysis that “the 
parties agreed that the hours were reasonably devoted to the project.” This conclusion was 
based on the Board’s finding that the contracting officer had recognized that she had no 
basis to dispute that the actual hours included in the claim were associated with contract 
work that Ken-Mor was required to perform. The testimony was clear that no audit was 
undertaken to show that the hours actually worked by the electricians were inflated or in any 
other way inaccurate. Nor did GSA make a significant effort to discredit the hours as not 
appropriately attributable to contract work. In contrast, as appellant points out in its 
response to GSA’s motion, KenMor offered credible sworn testimony from the executive 
in charge of field operations with respect to its strategies in planning, deployment, and 
management of the project so as to maximize labor productivity. KenMor also provided 
documentary and testimonial evidence of how it tracked and calculated the hours expended 
on the contract. The Board relied on this evidence in its findings and conclusions. It 
reasoned that the parties agreed on this point because GSA, apparently choosing to rely on 
its position that the increased wage costs must be limited to the planned hours in KenMor’s 
bid, offered virtually no testimonial or documentary evidence showing that the hours were 
inaccurate or somehow inflated. 
Presumably GSA understood that the merits hearing covered both entitlement and 
quantum and that all relevant evidence and arguments should be presented.  If GSA had a 
basis to disagree with the number of hours actually claimed by KenMor other than that they 
exceeded the planned hours, it should have adduced the appropriate evidence during the 
hearing. Even if we concede GSA’s point that it did not “agree” the hours were reasonable, 
the preponderance of the evidence available to the Board established that the hours were 
actually devoted to the project. The award did not address Ken-Mor’s entitlement to 
compensation for the additional hours beyond those planned. It held only that it was entitled 
to recover the additional cost of paying its workers the difference between the original and 
the higher Davis-Bacon Act wages for all electrician labor hours attributable to the project. 
With respect to the highlighted phrases and sentences, GSA simply disagrees with the 
Board’s legal determination that the equitable adjustment should include the Davis-Bacon 
awarded and the increased wage rate that KenMor was required to pay 
following the adoption of the revised wage determination. The claimed costs 
were based on the incremental increase in the wage rate plus labor burden 
incurred on these costs, project management cost, project accountant cost, 
overhead, profit and bond costs. Appellant’s Hearing Exhibit 1; Transcript 
at 192-94.  

    
      
       
      
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7 CBCA 1495-R 
wage increase applicable to actual hours worked by the electrical subcontractor and not just 
hours estimated in Ken-Mor’s bid, and continues to press this argument in its motion. This 
does not justify reconsideration. Nor does the filing of the omnibus delay claim by Yates 
constitute “new evidence” that would warrant reopening the record. 
Decision 
Accordingly, the motion to reconsider the Board’s decision and to reopen the record 
is DENIED. 
CATHERINE B. HYATT 
Board Judge 
We concur: 
STEPHEN M. DANIELS CANDIDA S. STEEL 
Board Judge Board Judge