______________________________________________ MOTION FOR RECONSIDERATION GRANTED IN PART: February 26, 1996 ______________________________________________ GSBCA 10627-NHI-R, 11411-NHI-R MICHAEL WELLER, INC., Appellant, v. OFFICE OF NAVAJO AND HOPI INDIAN RELOCATION, Respondent. Paul M. Meador, Las Vegas, NV; and Gilbert J. Ginsburg and Shlomo D. Katz of Epstein Becker & Green, P.C., Washington, DC, counsel for Appellant. Margaret Lee Baskette and Edward E. Risha, Civil Division, Department of Justice, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, VERGILIO, and GOODMAN. BORWICK, Board Judge. Appellant, Michael Weller, Inc. (Weller), pursuant to Rule 32, seeks reconsideration of our decision in Michael Weller, Inc. v. Office of Navajo & Hopi Indian Relocation, GSBCA 10627-NHI, et al., 94-2 BCA 26,849. For the reasons below, we grant the motion to correct a mathematical error. In other respects, we deny the motion. Background The appeal involved two time and material contracts for repair and renovation of thirty-one houses on the Navajo/Hopi Indian reservation. The Board granted the appeal in the amount of $17,271.04. Weller, 94-2 BCA at 133,616. In Count I of the appeal, Weller sought $297,133.73 on one contract and $164,849.46 on another for alleged unpaid amounts by respondent. Id. at 133,611. In Count I, Weller alleged that respondent's contracting officer's technical representative (COTR), in directing performance of the work, constructively changed the basic nature of the contract work from minor to major repair. Weller also alleged that respondent constructively changed individual items of repair work on some houses. Weller alleged Government-caused delay. Weller alleged that contract changes were not subject to the Limitation of Cost clause and that, in any event, the respondent had waived the Limitation of Cost clause. Weller alleged that the work it had performed, for which respondent refused to pay, was reasonable. The Board denied that claim, finding that the respondent's "should cost" study for the labor hours worked proved more reliable than Weller's cost verification presented at trial. Id. In its motion for reconsideration, Weller takes exception to the Board's use of respondent's "should cost" study. Weller maintains that under the contracts' Payments clause, cost- reasonableness is to be applied only to materials and not to direct labor hours. Motion for Reconsideration at 9. Weller also maintains that equitable adjustments for changes in time and materials contracts have usually been exempt from Limitation of Cost clauses. Id. at 17-18. As to the Payments clause issue, Weller admits that it raised this issue for the first time on reconsideration. Motion for Reconsideration at 12 n. 6. We do not address matters raised for the first time in a motion for reconsideration and, for that reason, we deny this ground of reconsideration. Al-Henco Enterprises, GSBCA 9673-R, 91-1 BCA 23,503. However, since Weller briefed this issue at great length in its memorandum in support of its motion, we will explain why this new argument lacks merit and would not change our decision even if we had considered it. The Payments clause of the contracts provided that the Government "shall pay" "upon submission of invoices approved by the contracting officer" the amounts computed by "multiplying the appropriate hourly rates" prescribed in the schedule "by the number of direct labor hours performed." Weller, 94-2 BCA at 133,596. The Payments clause did not require the contracting officer to abandon discretion and pay direct labor hours only as invoiced by the contractor. The language of the Payments clause strongly suggests that the contracting officer could make an independent determination of the number of direct labor hours performed. The Payments clause provided that the "contractor shall substantiate the vouchers by evidence of actual payment and by individual daily job timecards, or other substantiation approved by the contracting officer." Appeal File, Exhibit 2 at 28. The Government was required to pay each substantiated voucher promptly, subject to the terms of subsection (e) of the Payments clause. Id. Under subsection (e), at any time before final payment, the contracting officer could request an audit of the invoices or vouchers under the contract, seek refunds of payments previously made, and approve the final completion voucher for payment. Id. at 30. Under the Payments clause, the contracting officer, therefore, could request substantiation and adjust amounts paid or to be paid after an audit. As to the Limitation of Cost clause, Weller argues, relying on Bendix Field Engineering Corp., ASBCA 10124, 66-2 BCA 5959, that the clause does not apply to the constructive changes allegedly ordered by the COTR. The contract in Bendix provided that the agreed ceiling price would be the maximum obligation of the Government "subject only to action pursuant to the Changes Clause of this contract. . . ." Bendix, 66-2 BCA at 27,567. The Limitation of Cost clause in the contracts at issue before this Board did not have this condition. The contracts, moreover, explicitly stated that any direction by the COTR could not "constitute . . . changes to expressed terms [of] the contract," and was not authorization for Weller to incur costs "in excess of the estimated cost [or] other limitations of funds set forth in this contract document." See Appeal File, Exhibit 7, Article VII; Weller, 94-2 BCA at 133,597. Weller argues that this case is similar to Dynamic Concepts, Inc., ASBCA 44738, 93-2 BCA 25,689. Motion for Reconsideration at 20-21. In Dynamic Concepts, the Board found waiver of the Limitation of Cost clause where the Government paid invoices for work performed, knowing that the added work was above the ceiling price. Dynamic Concepts, 93-2 BCA at 127,804. Weller argues that in this case, the contracting officer induced "continued performance" on November 6, 1987, by issuing a cure notice demanding continued performance. Motion for Reconsideration at 24. We have found, however, that the "continued performance" was merely correction of Weller's defective work, which respondent and Weller agreed was to be at Weller's cost. Weller, 94-2 BCA at 133,613. Weller does note a mathematical error in the opinion; the total of amounts withheld should have been $168,524 as found by a Defense Contract Audit Agency audit, rather than the $81,468.49 as found in the opinion. Weller, 94-2 BCA at 133,609, 133,612; Appeal File, Exhibit 122. We correct the opinion to reflect this figure. The mathematical correction does not change the result. Weller's other reasons for reconsideration also do not meet the test for reconsideration. Weller simply re-argues the evidence and legal issues it presented the first time. "Arguments already made and reinterpretations of old evidence are not sufficient grounds for granting reconsideration." Rule 32; see also American Water Cooling Equipment Corp., GSBCA 9083-TD-R, 89-2 BCA 21,883. We had already considered these arguments and are no more persuaded by their repetition than we were the first time. Decision The motion for reconsideration under Rule 32 is GRANTED IN PART, to the extent stated above. _____________________________ ANTHONY S. BORWICK Board Judge I concur: _____________________________ ALLAN H. GOODMAN Board Judge VERGILIO, Board Judge concurring in part and dissenting in part. The majority grants the motion for reconsideration filed by Michael Weller, Inc., when it purports to correct a mathematical error in its opinion. It also resolves a legal argument raised for the first time in the motion for reconsideration. I dissented from the underlying decision; the submissions on reconsideration do not entice me to alter my opinion. In two principal respects, I disagree with the majority's conclusions at this stage of the proceedings. First, a motion for reconsideration is not the appropriate vehicle to raise previously available legal arguments. Neither a lengthy brief nor a vigorous argument is a touchstone measure for the Board to address previously unraised legal arguments in the guise of denying those aspects of a motion for reconsideration. Rules 32, 33. I do not comment further on the discussion by the majority of the issue. Second, in the underlying opinion, the majority found as a fact, with itemized support, that the agency disallowed $81,486.49 of subcontractor overhead and profit that Weller had invoiced to the agency. Michael Weller, Inc. v. Office of Navajo & Hopi Indian Relocation Commission, GSBCA 10627-NHI, et al., 94- 2 BCA 26,849, at 133,609 (Finding 99). The majority mentioned this monetary figure in its legal discussion. Id. at 133,612. The dissent pointed out erroneous aspects of the finding. Id. at 133,617-18. The itemized amounts in the finding total $81,486.49, not the figure now deemed correct by the majority. The actual, accurate figure is not material to the majority's result or my opinion; I would not grant reconsideration to revisit the issue. _____________________________ JOSEPH A. VERGILIO Board Judge