ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of--

MOQA-AQYOL JV, LTD. 

Under Contract No. W5J9JE-10-C-0031 

APPEARANCE FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 60456 

Thomas J. Fraser, Jr., Esq. 

Eavenson, Fraser, Lunsford & Ivan 

Jacksonville, FL 

Thomas J. Warren, Esq. 

Acting Engineer Chief Trial Attorney 

Daniel B. McConnell, Esq. 

Rebecca L. Bockmann, Esq. 

Engineer Trial Attorneys 

U.S. Army Engineer District, Middle East 

Winchester, VA 

OPINION BY ADMINISTRATIVE JUDGE O'CONNELL 

ON APPELLANT'S MOTION FOR RECONSIDERATION 

MOQA-AQYOL JV, LTD. (MOQA) has filed a motion for reconsideration of 

our decision in MOQA-AQYOL JV, LTD., ASBCA Nos. 57963, 60456, 17-1 BCA 

,i 36,909, in which we denied MOQA's challenge to the default termination and its 

money claim. MOQA's motion concerns only the money claim, ASBCA No. 60456. 

DECISION 

The standards for deciding a motion for reconsideration are well established. 

Reconsideration does not provide a party an opportunity to reargue issues that were 

previously raised and decided. Precision Standard, Inc., ASBCA No. 58135, 16-1 

BCA ,i 36,504 at 177,860. The movant must establish a compelling reason to modify 

the earlier decision. Id. We look to whether the movant presents newly discovered 

evidence, mistakes in findings of fact, or errors of law. Id. 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). 

While MOQA sought damages in four discrete categories, it challenges our 

determination with respect to only one: $842,587.23 for work performed through the 

date of termination. It does not seek reconsideration of our decision with respect to 
materials and equipment left on site or consulting fees paid to Kevin Cato. (App. mot. 

at 23) 

We conclude that MOQA's motion falls squarely in the "second bite at the 

apple" category: its 30-page motion for reconsideration contains far more facts and 

arguments relating to damages than it presented in its post-hearing brief, which was 

devoted mainly to the termination for default. But there is nothing in MOQA's motion 

that leads us to change our opinion. 

The crux ofMOQA's motion is that it accomplished more work than reflected 

in the amount that it has been paid. As detailed in our opinion, the project was in a 

remote area of Afghanistan and none of the witnesses testifying at the hearing-had 

spent any significant time at the site. MOQA, 17-1 BCA 136,909 at 179,811, 

findings 3, 5. As the party with the burden of proof on its money claim, this presented 

a challenge to MOQA that it could not overcome. None of MOQA's witnesses 

testified as to any specific facts that would allow us to award MOQA more money 

than the Corps paid. 

In calculating the final payment due MOQA, we found that there was internal 

disagreement at the Corps as to whether MOQA had completed 20 or 25% of the work, 

but it went with the higher number. Our opinion detailed the many problems the Corps 

discovered with MOQA's work. See MOQA, 17-1BCA136,909 at 179,828-29. In 

light of these problems, we held that the contracting officer did not abuse his discretion 

in having the replacement contractor remove most of MOQA's work, including the 

foundation for the headquarters building, the perimeter wall and foundation, and the 

guard tower support columns. Id. Our conclusion was, and remains, that MOQA was 

paid 25% of the contract price even though it accomplished relatively little. 1 There is 

no basis for the Board to increase the amount paid. 

MOQA contends in its brief that we misunderstood testimony by the Corps 

quality assurance representative, Chester Lawrence. It contends that when he testified 

as to problems with the concrete and rebar it pertained only to MOQA's claim for 

materials left on site, which is a separate issue (app. mot. at 28). MOQA is incorrect 

to the extent it suggests that Mr. Lawrence's testimony supports a higher payment to 

MOQA. To the contrary, it was Mr. Lawrence who concluded that MOQA had 

completed only 20% of the project based on all of the defective work that had to be 

removed. MOQA, 17-1 BCA 136,909 at 179,823, finding 100. Moreover, MOQA is 

also incorrect in contending that Mr. Lawrence was testifying only about materials left 

1 Thus, although MOQA contends that it is entitled to about $320,000 more because it 

completed all of the work for the compound size modification, we found that 

the largest component of this was the wall around the new perimeter that had to 

be removed. Id. at 179,825, findings 114-15. 

2 
on site. The testimony we relied upon for finding 110 concerned the document found 

at Rule 4, tab 419 at 18, which was a photo of the building foundation. He testified: 

(Tr. 2/58) 

Some of this stuff from the pictures that I got show cracks, 

and deformed work, and rebar laying on the ground which 

shows me that it wasn't properly inspected by them. It was 

just put in and thrown in there. And we were going to 

reject that. 

Finally, MOQA also challenges the Corps' reduction of earlier payments for 

mobilization and security payments. MOQA is correct when it observes that 

contracting officer's representative, Theodore Champine, testified inaccurately that the 

contract required MOQA to be paid 60% for mobilization and 40% for demobilization. 

But the evidence in the record does not go much beyond that. Other than a contract 

line item number (CLIN) for Defense Base Act insurance, the contract as awarded 

contained only one CLIN, which was to site adapt the design and build the project 

(CLIN 0001). (R4, tab 7 at 3) There was no mobilization CLIN. The parties 

apparently reached an agreement where they broke down CLIN 0001 into "cost 

loaded" items or "sub-CLINs" (tr. 1/138), but neither party presented evidence as to 

how this was done or what had to be accomplished for MOQA to paid in full for the 

sub-CLINs. 

The parties agree that there was a sub-CLIN for mobilization for $250,000. 

MOQA contends that the entire sum was due on mobilization while the Corps 

contends it was split between mobilization and demobilization. Neither party has 

directed us to a provision in the contract or other documents that supports its position. 

Because MOQA has the burden of proof on its money claim, we hold that MOQA has 

not met its burden on the mobilization issue. Wilner v. United States, 24 F.3d 1397, 

1401 (Fed. Cir. 1994) (en bane). The same holds true for MOQA's project security 

issue. The evidence is inadequate for us to award MOQA any money.2 

2 MOQA's did not make its arguments concerning mobilization and security payments 

in its post-hearing briefs. 

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MOQA's motion is denied. 

Dated: 27 March 2018 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

CONCLUSION 

·m~r(\ J!J'L-OJJ 

M1CfIAELN. O'CONNELL 

Admini~trative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

£)1_---.. 

OWEN C. WILSON 

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 No. 60456, Appeal of 

MOQA-AQYOL JV, LTD., rendered in conformance with the Board's Charter. 

Dated: 

4 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals