September 11, 1987

Appeal of

LAWRENCE D. BANE

Under Contract No. HCR 47233

PSBCA No. 1595

APPEARANCE FOR APPELLANT

Lawrence D. Bane

APPEARANCE FOR RESPONDENT

Maria R. Fuhrmann, Esq.

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

Appellant has filed a timely motion for reconsideration of the Board's decision dated June 8, 1987. Lawrence D. Bane, PSBCA No. 1595, 87-___ BCA ¶_____. In his motion Appellant contests certain factual findings and takes issue with the Board's determination that an accord and satisfaction occurred when Appellant executed the contract amendments.

Respondent has urged that the motion be denied.

Appellant's first two arguments restate, with only slight variations, his contention that the mileage which should have been shown on the amendments was 48, rather than 40, miles. Appellant bases his arguments on the estimated mileages shown in his contract and in a solicitation for a successor contract, which Appellant states was erroneously characterized by the Board as being the successor emergency reprocurement contract rather than the solicitation for permanent service on the route. These arguments were fully considered previously and rejected by the Board. Although the record does not support Appellant's assertion relating to the successor contract, it is immaterial to the Board's decision whether the contract was the immediately succeeding reprocurement or a later one.

Appellant next challenges a Board finding to the effect he did not request an increase in compensation when he submitted a cost statement dated July 30, 1984, for an economic price adjustment. Appellant contends that he in fact sought an increase of $2,676, but was granted $1,899. Appellant misreads the decision. The Board stated correctly that Appellant sought no increased compensation based on the alleged mileage discrepancy, not that he had not requested a price adjustment for other reasons.

Appellant in his final point challenges the Board's conclusion that, under the factual circumstances of this appeal, his execution of the amendments constituted an accord and satisfaction. The basis for this challenge is an allegation that Respondent's counsel discussed settlement with Appellant and made an offer that was unacceptable. This, it is argued, should be taken as an admission by Respondent that additional compensation was due Appellant. Generally, an offer to compromise a claim is not admissible evidence. Rule 408, Federal Rules of Evidence; San Jose Development, Inc., GSBCA No. 5042, 80-1 BCA ¶ 14,276. Moreover, this contention is based on an allegation that goes beyond the facts in the record before the Board. It has not been shown that the facts underlying the allegation were newly discovered or previously unavailable. Since Appellant failed to proffer or adduce evidence on this point prior to our decision, reconsideration of matters which were decided or could have been considered before is not warranted. Montgomery-Ross-Fisher, Inc., PSBCA No. 1096, 84-3 BCA ¶ 17,607.

Appellant has presented no arguments to persuade us that our decision was in error. The decision having been reconsidered is affirmed.

James E. Lemert

Administrative Judge

Board Member

I concur

James A. Cohen

Administrative Judge

Chairman