MOTION FOR RECONSIDERATION DENIED:  December 1, 2023
CBCA 6453-R, 6560-R
BES DESIGN/BUILD, LLC,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Todd A. Jones and Peyton D. Mansure of Anderson Jones, PLLC, Raleigh, NC,
counsel for Appellant.
Jennifer L. Hedge, Office of General Counsel, Department of Veterans Affairs,
Pittsburgh, PA; and Laetitia C. Coleman, Office of General Counsel, Department of Veterans
Affairs, Lakewood, CO, counsel for Respondent.
Before Board Judges RUSSELL and ZISCHKAU.1
RUSSELL, Board Judge.
1 This appeal was initially decided in April 2023 by a three-judge panel for
which Judge Jerome M. Drummond served as the presiding judge.  Sadly, in June 2023,
while appellant’s motion for reconsideration was pending, Judge Drummond passed away. 
“On reconsideration, a board of contract appeals may not change the panel of judges to which
the case is assigned.  This decision is consequently being issued by the two remaining
members of the original panel.”  Dieker v. General Services Administration, GSBCA
16050-R, 03-2 BCA ¶ 32,375, at 160,188 n.1.

CBCA 6453-R, 6560-R 2
Appellant, BES Design/Build, LLC (BES), seeks reconsideration under Board Rule 26
(48 CFR 6101.26 (2022)) of the Board’s April 7, 2023, decision.  See BES Design/Build,
LLC v. Department of Veterans Affairs, CBCA 6453, et al., 23-1 BCA ¶ 38,319.  That
decision upheld the termination for default of the contract and denied BES’s claims for
compensation under pay application number 32 and for a fifty-nine-day delay.  Familiarity
with the decision is presumed.
BES argues that testimony given on January 27, 2023, from the contracting officer’s
representative (COR) in a separate matter, Mountain Mechanical Contractors, Inc. v. BES
Design/Build, LLC, No. 5:20-CV-05141 (W.D. Ark.) (Mountain Mechanical Contractors),
is newly discovered evidence which provides valid grounds for reconsideration.  BES also
argues that the Board erred in applying case law, including DeVito v. United States, 413 F.2d
1147 (Ct. Cl. 1969); AmerescoSolutions, Inc., ASBCA 56811, 10-2 BCA ¶ 34,606; and
Technocratica, ASBCA 47992, et al., 06-2 BCA ¶ 33,316, to the termination for default.
Discussion
Standard for Reconsideration
Decisions by the United States Court of Appeals for the Federal Circuit and this Board
have established that there are three primary grounds that justify reconsideration:  (1) an
intervening change in the law; (2) the availability of new evidence; and (3) the need to
correct clear error or prevent injustice.  Delaware Valley Floral Group, Inc. v. Shaw Rose
Nets, LLC, 597 F.3d 1374, 1383 (Fed. Cir. 2010); Stobil Enterprise v. Department of
Veterans Affairs, CBCA 5698-R, 20-1 BCA ¶ 37,513, at 182,217.  It is not the purpose of
reconsideration to give litigants “a second bite at the apple.”  Dixon v. Shinseki, 741 F.3d
1367, 1378 (Fed. Cir. 2014).
BES’s Motion for Reconsideration is Denied
BES was sued by one of its subcontractors in Mountain Mechanical Contractors.  On
January 27, 2023, the COR gave testimony at trial in the case.  BES claims that this
testimony is newly discovered evidence.  Newly discovered evidence must have been
unavailable prior to resolution of the matter for which reconsideration is being denied.  See
Delaware Valley Floral, 597 F.3d at 1384 (finding that witness declarations were not newly
discovered evidence because the defendant could have made efforts to locate the witnesses
prior to judgment); see also Ingham Regional Medical Center v. United States, 155 Fed. Cl.
1, 12-13 (2021) (interpreting the Federal Circuit’s decision in Delaware Valley Floral).
The COR’s testimony in Mountain Mechanical Contractors was not new to BES
when the Board issued its decision in April 2023.  BES was the defendant in Mountain

CBCA 6453-R, 6560-R 3
Mechanical Contractors and conducted cross-examination of the COR at trial.  That
testimony occurred more than two months before the Board issued the decision for which
BES now seeks reconsideration.  Thus, the testimony was not unavailable prior to the
Board’s decision and does not constitute newly discovered evidence.
BES also argues that the Board erred in its legal rulings when it upheld the
termination for default and denied BES’s claims for payment under pay application number
32 and for a fifty-nine-day delay.  BES’s arguments on reconsideration do not establish that
the Board’s decision contains “substantive errors . . . substantial enough to warrant relief,”
SRM Group, Inc. v. Department of Homeland Security, CBCA 5194-R, et al., 21-1 BCA
¶ 37,869, at 183,885, aff’d, No. 2021-2104, 2022 WL 1089228 (Fed. Cir. Apr. 12, 2022), but,
instead, reflect a request for reinterpretation in its favor of already-considered evidence. 
Here, BES previously advanced its arguments on the termination for default and its claims
based on the pay application and delay, and the Board rejected them.  “Reconsideration is
not granted when a party reargues facts and theories upon which the Board has previously
ruled.”  Power Wire Constructors v. Department of Energy, CBCA 2057-R, 12-2 BCA
¶ 35,165, at 172,559.  It is not “available to retry a case.”  Bryan Concrete & Excavation, Inc.
v. Department of Veterans Affairs, CBCA 2882-R, 16-1 BCA ¶ 36,549, at 178,033. 
Therefore, we deny BES’s motion.
Decision
Appellant’s motion for reconsideration is DENIED.
  Beverly M. Russell          
BEVERLY M. RUSSELL
Board Judge
I concur:
  Jonathan D. Zischkau  
JONATHAN D. ZISCHKAU
Board Judge