___________________________________________________ MOTION FOR RECONSIDERATION DENIED : MAY 12, 1995 ___________________________________________________ GSBCA 12432-R AMERICAN TOOL & SUPPLY, INC. Appellant, v. GENERAL SERVICE ADMINISTRATION Respondent. James P. Rome, Chicago, IL, counsel for Appellant. David L. Frecker, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, DEVINE, and GOODMAN. DEVINE, Board Judge. Appellant has moved to set aside our decision denying its appeal, which issued on January 27, 1995. We treat the motion as one for reconsideration of that decision. The appeal was submitted for decision on the record without a hearing on January 6, l995, by agreement of the parties. The original submission date was November 25, l994, which was extended, at the request of appellant, to December 7, 1994, and extended again, also at the request of appellant, to January 6, 1995. The Government submitted additional argument on that date, relying on the already filed appeal file for its factual evidence, but appellant filed no evidence or argument of any kind. On February 1, shortly after the issuance of the Board's January 27th decision, Mr. Rome, appellant's counsel, advised the hearing judge by telephone that he had telephoned chambers on January 5 or 6 seeking a further extension of the submission date to April 30, Government counsel not objecting, but that no one had answered so he had left a voice mail message on the telephone of the hearing judge's staff assistant, to the same effect. The assistant denies that any such message was received by her on voice mail or from any other source. Government counsel confirms that he received a telephone call from Mr. Rome a day or two before January 6, 1995; that he stated to him that he would not object to an extension, but wanted it much shorter than April 30; and suggested a conference call with the hearing judge. No conference call ever occurred. Mr. Rome was asked, during the February 1 telephone call, to produce some evidence, such as a telephone bill, that the call was made. He has not yet done so. Appellant's motion for reconsideration was filed on February 21, 1995. Its principal ground is that appellant needed an opportunity to present evidence of commercial impracticability, which Mr. Eskew, appellant's president, was assembling, but which work had been hindered, according to the motion, by Mr. Eskew's sickness, beginning on December 15, 1994, and continuing into January l995. However, appellant had sought and obtained two continuances prior to Mr. Eskew's sickness, and no evidence of impracticability was offered with appellant's motion. This appeal has been pending since May 18, 1993. Appellant has been represented by counsel from the outset. Counsel must have known from the beginning that the only defense with any chance of success was commercial impracticability in a case where the seller had no other excuse for not producing a product which conformed to the contract requirements. We see no reason to reconsider the original decision. Decision The motion to reconsider is DENIED. ________________________ DONALD W. DEVINE Board Judge We concur: __________________________ _________________________ ROBERT W. PARKER ALLAN H. GOODMAN Board Judge Board Judge