ARMED SERVICES BOARD OF CONTRACTAPPEALS

Appeals of

-- ) ) John C. Grimberg Co., Inc. ) ) Under Contract No. W912DR-09-C-0038 )

APPEARANCES FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA Nos. 58791, 59717

Edward J. Parrott, Esq. Stephanie M. Rochel, Esq.

Watt, Tieder, Hoffar & Fitzgerald, LLP McLean, VA

Michael P. Goodman, Esq.

Engineer ChiefTrial Attorney Scott C. Seufert, Esq. David B. Jerger, Esq.

Engineer Trial Attorneys U.S. Army Engineer District, Baltimore

OPINION BYADMINISTRATIVE JUDGE PEACOCK ONTHE GOVERNMENT'S MOTIONFORRECONSIDERATION

The governmenttimely moves for reconsideration ofour decision in ASBCA No. 58791 and the relevantportion ofASBCA No. 59717, as issued in 

### John C. 

### Grimberg Co., Inc., ASBCANo. 58791 

### etal., 2018 WL 6113411 (Oct. 25, 2018), contending that the Board erred in concluding that appellant encountered a Type I differing site condition (DSC). Familiarity with that decision is presumed. The · government maintains that appellant failed to reasonably interpret contractual indications ofthe quantity ofincompetent rock that would be encountered in drilling into the Karst prevalent at the site. Therefore, according to the government, appellant failed to establish all requisite elements essential to establish a DSC and satisfy its burden ofproving entitlement. The government also challenges ouruse ofa "jury verdict" approach in evaluating the quantity ofrock drilling reasonably indicated and developing our "allowance" adjusting appellant's estimate to reflect the results ofour evaluation, emphasizingthat quantum was not an issue.

Standards for resolving a motion for reconsideration are well established. Such motions do notprovide a party an opportunity to reargue issues thatwere previously raised and decided. 

### Precision Standard, Inc., ASBCA No. 58135, 16-1 BCA,36,504 at 177,860. A motion for reconsideration does notprovide a litigant a "secondbite at the apple" or the opportunity to advance arguments that properly should have beenpresented in an earlierproceeding. 

### Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014). We

### grant motions for reconsideration "ifwe have made a genuine oversightthat affects the
outcome ofthe appeal." 

### Relyant, LLC, ASBCANo. 59809, 18-1BCA137,146 at 180,841. This is not such a case. The request for reconsideration is denied.

The government continues to place great emphasis on a series ofborings 300 to 500 feet away from the site ofthe Biolab foundation, while ignoring more proximate and relevant borings, in particular DH-11 and DH-12, aligned on the site. Moreover, the government's analysis thereofwas refuted. Appellant persuasively established that the actual Biolab subsurface drilling conditions were far worse (and different) than one would predict even based on the USAMRIID borings. JCG actually drilled through approximately 3.75 times the amount ofrock that could have been anticipated based

on the USAMRIID borings. 

### Grimberg, 2018 WL 6113411 at 29.

In addition, the government's subsurface exploration and resultant boring data provided to offerors in the solicitation were flawed and deficient. They omitted 

### specific data directly at the site where the drilling for the Biolab foundation would

occur. Despite the emphasis on the highly variable nature ofthe karst

### generally in the solicitation's Geotechnical Report, thatreport failed to take that emphasis "to heart" and provide meaningful, 

### specific boring data (otherthan DH-11 and DH-12) at, or reasonably proximate to, the critical drilling site. The greater the variability ofthe subsurface, the greater the need for the latter data. In short, the government failed to put into practice what it preached. Moreover, despite the considerable variability of subsurface rock conditions inherent in Karst topography, the contract contained no provisions for pricing extreme variations in the quantity ofrock drilling required. Although there was a plethora ofgeneralized (often repetitive) information concerning Karst variability, contributing significantly to development ofour "allowance,"there

was apaucity ofproximate, site-specific boring data, one factor contributingto our sustention ofthe appeal.

With respect to developing our "allowance," we exercised our discretion and best judgment after careful consideration and analysis ofthe entire record with emphasis on particularly relevant findings identified in the principal opinion. Thatjudgment, based

as it was on numerous factors and findings necessarily was in the nature ofa "jury verdict." The government now questions ourjudgmentrelying on essentially the same arguments that it made previously. We decline to revisit in detail the complete rationale for our determination 

### (see, e.g., Grimberg, 2018 WL 6113411 at 30). Although "jury verdict" determinations arise most commonly in the context ofquantum determinations offinal dollar amounts, there is nothing thatprohibits or inhibits Boardjudges from performing similar equitable analyses in an "entitlement" context. Obviously, our allowance also provides guidance and has significant implications for quantum negotiations on remand. Rather than remand issues related to development and amount ofthe allowance for quantum negotiations, we deemed it more efficientto "jury verdict"

2the allowance given the great disparity in the views ofthe parties as to what was reasonably indicated in the contract regarding subsurface rock.

The primary contentions originally raised bythe parties and consideredby us in reaching our conclusions centered on whether an "allowance" constituted a disfavored "contingency." The concept and necessity ofdeveloping an "allowance"recognizing the extensive variability ofrock was a primary tenet ofthe Corps' position. We essentially agreed with the government's position that such an allowance was a valid distinction with critical differences in the context ofthis case. 

### Grimberg, 2018 WL 6113411 at 30-31. On reconsideration, the Corps now argues that the Board should refrain from developing its own "allowance," in legal parlance denominated a "jury verdict," based onthe same data furnished to offerors, supplemented by detailed testimony, expert analyses, and the complete documentary record developed at trial. The obvious relevance ofour "allowance"to quantumphase negotiations illustrates that any line between "entitlement" and quantum "jury verdicts" is blurred and indistinct at best. There was no more reliable method ofdeveloping a precise estimate ofthe amount that should have been anticipated. Moreover, the Board considered

numerous pertinent countervailing factors and the entire record in rendering its best judgmentto fairly and reasonably approximate what it considered to bethe appropriate "allowance" with patentimplications for quantum phase negotiations on remand. 

### CfGrummanAerospace Corp. v. Wynn, 497 F.3d 1350, 1358 (Fed. Cir. 2007) (citations omitted); 

### see also GreatLakesDredge andDock Co., ENG BCANo. 5606, 91-1 BCA

## il 23,613 at 118,339 (and cases cited). In appropriate cases such as this, our conclusory assessments are essential to rendering a fairjudgment after careful scrutiny ofpertinent factual considerations bearing on the issues in dispute, regardless of whetherthey may be classifiable as "entitlement-related" evaluations. Giventhe extensive poorrock encountered by appellant, rejection ofappellant's claim for failure
to reasonably interpret contractual indications as a whole was unfair and inequitable. On the other hand, failure to develop our "allowance" adjusting appellant's bid to reflect whatthe Board considered to be an amount reasonably indicatedwouldhave been unfair to the government. An "all ornothing" resolution ofthis casewould have been overly legalistic and unjust.

3The motion for reconsideration is denied.

Dated: January 2, 2019

I concur

RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContractAppeals / // ,,/1 /

# ~~~~**~** V ROBERT T. PEACOCK Administrative Judge Armed Services Board ofContractAppeals

I concur

J. REID PROUTY Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCA Nos. 58791, 59717, Appeals of John C. Grimberg Co., Inc., rendered in conformance with the Board's Charter.

Dated:

4 JEFFREYD. GARDIN Recorder, Armed Services Board ofContractAppeals