ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeals of -- ) 

) 

John C. Grimberg Co., Inc. ) 

) 

Under Contract No. W912DR-09-C-0038 ) 

APPEARANCES FOR THE APPELLANT: 

APPEARANCES FOR THE 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 Chief Trial Attorney 

Scott C. Seufert, Esq. 

David B. Jerger, Esq. 

Engineer Trial Attorneys 

U.S. Army Engineer District, Baltimore 

OPINION BY ADMINISTRATIVE JUDGE PEACOCK 

ON THE GOVERNMENT'S MOTION FOR RECONSIDERATION 

The government timely moves for reconsideration of our decision in ASBCA 

No. 58791 and the relevant portion of ASBCA No. 59717, as issued in John C. 

Grimberg Co., Inc., ASBCA No. 58791 et al., 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 of the quantity of incompetent 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 of proving entitlement. The government also challenges our use of a "jury 

verdict" approach in evaluating the quantity of rock drilling reasonably indicated and 

developing our "allowance" adjusting appellant's estimate to reflect the results of our 

evaluation, emphasizing that quantum was not an issue. 

Standards for resolving a motion for reconsideration are well established. Such 

motions do not provide a party an opportunity to reargue issues that were previously 

raised and decided. Precision Standard, Inc., ASBCA No. 58135, 16-1 BCA, 36,504 

at 177,860. A motion for reconsideration does not provide a litigant a "second bite at the 

apple" or the opportunity to advance arguments that properly should have been presented 

in an earlier proceeding. Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014). We 
grant motions for reconsideration "if we have made a genuine oversight that affects the 

outcome of the appeal." Relyant, LLC, ASBCA No. 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 of borings 300 to 

500 feet away from the site of the 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 thereof was 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 of rock 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 of the karst generally in the 

solicitation 's Geotechnical Report, that report failed to take that emphasis "to heart" 

and provide meaningful, specific boring data (other than DH-11 and DH-12) at, or 

reasonably proximate to, the critical drilling site. The greater the variability of the 

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 of rock drilling required. 

Although there was a plethora of generalized ( often repetitive) information concerning 

Karst variability, contributing significantly to development of our "allowance," there 

was a paucity of proximate, site-specific boring data, one factor contributing to our 

sustention of the appeal. 

With respect to developing our "allowance," we exercised our discretion and best 

judgment after careful consideration and analysis of the entire record with emphasis on 

particularly relevant findings identified in the principal opinion. That judgment, based 

as it was on numerous factors and findings necessarily was in the nature of a "jury 

verdict." The government now questions our judgment relying 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 of quantum determinations 

of final dollar amounts, there is nothing that prohibits or inhibits Board judges 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 

of the allowance for quantum negotiations, we deemed it more efficient to "jury verdict" 

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the allowance given the great disparity in the views of the parties as to what was 

reasonably indicated in the contract regarding subsurface rock. 

The primary contentions originally raised by the parties and considered by us in 

reaching our conclusions centered on whether an "allowance" constituted a disfavored 

"contingency." The concept and necessity of developing an "allowance" recognizing 

the extensive variability of rock was a primary tenet of the Corps' position. We 

essentially agreed with the government's position that such an allowance was a valid 

distinction with critical differences in the context of this 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 on the same data furnished to offerors, supplemented by detailed 

testimony, expert analyses, and the complete documentary record developed at trial. 

The obvious relevance of our "allowance" to quantum phase negotiations illustrates 

that any line between "entitlement" and quantum "jury verdicts" is blurred and 

indistinct at best. There was no more reliable method of developing a precise estimate 

of the amount that should have been anticipated. Moreover, the Board considered 

numerous pertinent countervailing factors and the entire record in rendering its best 

judgment to fairly and reasonably approximate what it considered to be the appropriate 

"allowance" with patent implications for quantum phase negotiations on remand. 

Cf Grumman Aerospace Corp. v. Wynn, 497 F.3d 1350, 1358 (Fed. Cir. 2007) 

( citations omitted); see also Great Lakes Dredge and Dock Co., ENG BCA No. 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 fair judgment after careful scrutiny 

of pertinent factual considerations bearing on the issues in dispute, regardless of 

whether they may be classifiable as "entitlement-related" evaluations. Given the 

extensive poor rock encountered by appellant, rejection of appellant'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 what the Board considered to be an amount reasonably indicated would have 

been unfair to the government. An "all or nothing" resolution of this case would have 

been overly legalistic and unjust. 

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The motion for reconsideration is denied. 

Dated: January 2, 2019 

I concur 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

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~~~~ ~ V 

ROBERT T. PEACOCK 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

J. REID PROUTY 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA Nos. 58791, 59717, Appeals of 

John C. Grimberg Co., Inc., rendered in conformance with the Board's Charter. 

Dated: 

4 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals