### ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of-- MOQA-AQYOL JV, LTD. Under ContractNo. W5J9JE-10-C-0031 APPEARANCE FOR THEAPPELLANT: ) ) 

### ) ) 

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### APPEARANCES FORTHE GOVERNMENT: ASBCA No. 60456

Thomas J. Fraser, Jr., Esq.

Eavenson, Fraser, Lunsford 

### & Ivan Jacksonville, FL Thomas J. Warren, Esq.

Acting Engineer ChiefTrial Attorney Daniel B. McConnell, Esq. Rebecca L. Bockmann, Esq.

EngineerTrial Attorneys U.S. Army Engineer District, Middle East Winchester, VA
OPINION BYADMINISTRATIVE JUDGE O'CONNELL ONAPPELLANT'S MOTION FORRECONSIDERATION 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 defaulttermination and its money claim. MOQA's motion concerns only the money claim, ASBCANo. 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., 

### ASBCANo. 58135, 16-1 BCA 

### ,i 36,504 at 177,860. The movant must establish a compellingreason to modify the earlier decision. Id. 

### We look to whetherthe movant presents newly discovered evidence, mistakes in findings offact, or errors oflaw. Id. 

### A motion for reconsideration does not provide a litigant a "second bite at the apple" orthe opportunity to advance arguments that properly should have been presented in an earlierproceeding. Dixon v. Shinseki, 

### 741 F.3d 1367, 1378 (Fed. Cir. 2014). While MOQA sought damages in four discrete categories, it challenges our determination with respectto only one: $842,587.23 for workperformed through the date oftermination. 

### It does not seekreconsideration ofour decision with respect tomaterials 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-hearingbrief, which was devoted mainly to the termination for default. Butthere 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 amountthat it has beenpaid. As detailed in our opinion, the project was in a remote area ofAfghanistan and none ofthe witnesses testifying at the hearing-had spent any significant time atthe site. 

### MOQA, 17-1 BCA 136,909 at 179,811, findings 3, 5. As the party withthe burden ofproofon its money claim, this presented a challenge to MOQAthat it could not overcome. None ofMOQA's witnesses testified as to any specific facts that would allow us to award MOQA more money thanthe Corps paid.
In calculatingthe final payment due MOQA, we found that there was internal disagreement at the Corps as to whether MOQA had completed 20 or 25% ofthe work, but it wentwith 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 ofthese problems, we held thatthe contracting officer did not abuse his discretion in having the replacement contractorremove most ofMOQA's work, including the foundation for the headquarters building, the perimeterwall and foundation, and the guard tower support columns. 

### Id. Our conclusion was, and remains, that MOQA was paid 25% ofthe contractprice even though it accomplishedrelatively little. 1 There is no basis for the Board to increase the amountpaid. MOQA contends in its briefthat we misunderstood testimony by the Corps quality assurance representative, ChesterLawrence. 

### It contends that when he testified as toproblems 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 higherpaymentto MOQA. To the contrary, it was 

### Mr. Lawrence who concludedthat MOQA had completed only 20% ofthe projectbased on all ofthe defective work that had to be removed. 

### MOQA, 17-1 BCA 136,909 at 179,823, finding 100. Moreover, MOQA is also incorrect in contendingthat Mr. Lawrence was testifying only aboutmaterials left

1Thus, although MOQA contends that it is entitled to about $320,000 more because it completed all ofthe work for the compound size modification, we found that the largest component ofthis was the wall around the new perimeter that had to beremoved. 

### Id. at 179,825, findings 114-15. 2on site. The testimony werelied upon for finding 110 concerned the document found at Rule 4, tab 419 at 18, which was a photo ofthe building foundation. Hetestified:

(Tr. 2/58) Some ofthis stufffrom the pictures that I got showcracks, and deformedwork, and rebar laying on the ground which shows me that it wasn'tproperly inspected by them. It was justput in and thrown in there. And we were going to rejectthat.

Finally, MOQA also challenges the Corps' reduction ofearlierpayments for mobilization and securitypayments. MOQA is correct when it observes that contracting officer's representative, Theodore Champine, testified inaccurately thatthe contract required MOQAto be paid 60% for mobilization and 40% for demobilization. Butthe evidence in the record does not go much beyondthat. Otherthan a contract line item number (CLIN) for Defense BaseAct 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. Theparties apparently reached an agreement where they broke down CLIN 0001 into "cost loaded" items or "sub-CLINs" (tr. 1/138), butneitherparty presented evidence as to howthis was done orwhathadto be accomplished for MOQAto paid in full for the sub-CLINs.
Theparties 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. Neitherparty has directed us to a provision in the contract or other documents that supports its position. Because MOQA has the burden ofproofon its money claim, wehold that MOQAhas not met its burden on the mobilization issue. 

### Wilner v. UnitedStates, 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. 3

### MOQA's motion is denied. Dated: 27 March 2018

RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContractAppeals CONCLUSION 

# ·m~r(\J!J'L-OJJ M1CfIAELN. O'CONNELL Admini~trative Judge Armed Services Board ofContract Appeals

I concur 

# £)1_---

.. OWEN C. WILSON 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 ofContract 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 ofContract Appeals