March 30, 1994
Appeal of
ALTINA TRUCKING
Under Contract No. HCR 78182
PSBCA No. 3341
APPEARANCE FOR APPELLANT:
Ernestine M. McGee
APPEARANCE FOR RESPONDENT:
Patrice R. Dickey, Esq.
OPINION
OF THE BOARD ON AMENDED MOTION FOR RECONSIDERATION AND MOTION TO RECONSIDER OPINION DENYING MOTION FOR RECONSIDERATION
The Board's Opinion denying Appellant's appeal was issued July 22, 1993, Altina Trucking, PSBCA No. 3341, 93-3 BCA ¶ 26,256, and received by Appellant on July 26, 1993. By facsimile transmission dated and received on August 26, 1993, Appellant filed a motion for reconsideration ("First Motion") in which it requested that the Board reconsider and reverse its July 22, 1993 decision. On September 24, 1993, the Board issued an Opinion on Motion for Reconsideration denying Appellant's motion as untimely filed, August 26 being the thirty-first day after Appellant's receipt of the Board's July 22 Opinion and good cause not having been shown for extending the time for filing the motion. Additionally, the Board denied Appellant's motion because it failed to set forth specifically the grounds on which Appellant relied in seeking reconsideration and, thus, did not meet the requirements of the Board's rules for such motions, 39 C.F.R. § 955.30. The facts of this appeal are set out in the July 22, 1993 Opinion and will not be repeated here.
On September 28, 1993, before it received a copy of the Board's September 24 Opinion denying its motion for reconsideration, Appellant filed a Motion for Leave to Amend, an Amended Motion for Reconsideration ("Amended Motion") and supporting affidavits. Appellant received the Opinion of the Board on Motion for Reconsideration on or about September 30, 1993, and on October 3, 1993, filed a Motion to Reconsider Opinion Denying Appellant's Motion for Reconsideration ("Second Motion"). Respondent has filed an opposition to the Amended Motion and Second Motion.
In its Second Motion, Appellant argues that its First Motion should have been considered even though filed one day late because (1) Appellant contends it relied on advice from the Board that filing the First Motion by facsimile transmission on August 26, 1993, would be timely under the Board's rules, (2) the cases cited in the Board's July 22 Opinion were not available to Appellant locally and (3) Respondent would not be prejudiced by consideration of Appellant's First Motion filed one day late. It also argues that any failure of the First Motion to set forth specific grounds for reconsideration was corrected by the filing of the Amended Motion.
There is no provision in the Board's rules for reconsidering a decision on a motion for reconsideration. Lawrence D. Bane, PSBCA Nos. 1440, 1491, 86-3 BCA ¶ 19,276. Nevertheless, we have considered Appellant's submissions, and we are not persuaded that the denial of its First Motion was incorrect. Appellant has not presented evidence to support its assertion that it was misled by advice from the Board as to the deadline for filing its claim, and it has not stated any reason why it failed to request an extension of time to file its motion if it experienced difficulty finding the resources to file on time. Finally, that the filing of the motion for reconsideration one day late may not have prejudiced Respondent does not excuse the late filing. Buckner & Moore, Inc., ASBCA No. 44113, 93-3 BCA ¶ 26,085. Appellant has not shown any excusable cause for its failure to file the motion within the time allowed by the rules or to seek an extension before the time expired, and, thus, its First Motion was untimely. See Alta Constr. Co., PSBCA No. 1463, 92-3 BCA ¶ 25,128; Hugo Auchter GmbH, ASBCA No. 39642, 91-2 BCA ¶ 23,777; F.W.H. Motor Transit, Inc., PSBCA No. 1317, 1985 WL 17161, November 22, 1985.
Additionally, Appellant's First Motion, when filed on August 26, did not set forth the specific grounds on which it relied in seeking reconsideration, and the Board's September 24 Opinion properly recognized this failure as a separate reason for denying the motion. 39 C.F.R. § 955.30; N.J. Hastetter, PSBCA No. 3064, 94-1 BCA ¶ 26,421; Lawrence D. Bane, supra; U.S. Optics Corp., ASBCA No. 21941, 1979 WL 2359, June 4, 1979. The later filing of specific reasons for reconsideration does not salvage the inadequate First Motion. See Time Contractors, J.V., DOT BCA Nos. 1669, 1691, 87-2 BCA ¶ 19,786 at 100,117.
Moreover, most of the arguments raised in the Amended Motion challenge the legal and factual findings made by the Board in the original decision and reiterate arguments previously made by Appellant, which arguments were fully considered by the Board in reaching its decision. Reargument of the issues that were previously raised and fully considered in the Board's Opinion does not provide a basis for changing the decision. See Scott Company of California, PSBCA Nos. 1733, 2202, 88-3 BCA ¶ 21,181. The Board's decision turned on the refusal of Appellant's principals to deliver the route on October 20, 1992, after being told to do so by the contracting officer. Appellant continues to argue that it was justified in refusing to perform the contract by the contracting officer's refusal to allow it to recase the mail. As fully addressed in the decision, the law is otherwise. Disagreement with the contracting officer about Appellant's contract duties was not an excuse for refusing to deliver the mail. Roger Dean Barrett, PSBCA No. 2490, 90-1 BCA ¶ 22,526.
Appellant's remaining evidence and arguments could have been raised at the hearing and during briefing prior to the Board's July 22 Opinion. Appellant had its opportunity at the oral hearing to present the evidence it seeks to introduce now through affidavits. The Board's rules provide, "Except as the Board may otherwise order in its discretion, no proof shall be received in evidence after completion of an oral hearing ...." 39 C.F.R. § 955.14 (b); see Pascal Redfern, PSBCA No. 1512, 87-3 BCA ¶ 19,983; Edward K. Dilworth, ADA Contractors, Inc., PSBCA Nos. 1205, 1248, 84-2 BCA ¶ 17,346 at 86,431.
Appellant has given no reason why the evidence could not have been presented at the hearing. Two of the affiants testified at the hearing. The other affidavits are offered to show the speed limits on some of the roads on the route. Appellant argues that the route was impossible or hazardous to perform because the contract schedule allegedly could not be met without exceeding local speed limits. Not only has Appellant failed to suggest any connection between the speed limits on the route and its refusal to carry the mail when directed by the contracting officer, but this argument could have been made and the evidence on which it is based offered at the hearing. Consequently, it is not a basis for reconsideration. HTC Industries, Inc., ASBCA No. 40562, 93-2 BCA ¶ 25,701; Eagle Contracting, Inc., AGBCA No. 92-197-R, 93-1 BCA ¶ 25,320 at 126160; Montgomery-Ross-Fisher, Inc., PSBCA No. 1096, 84-3 BCA ¶ 17,607.
Appellant has failed to show any legal or factual errors which would warrant changing our decision. See E. Gerald Hanes, PSBCA No. 3082, 93-1 BCA ¶ 25,553. Accordingly, Appellant's Amended Motion for Reconsideration and Motion to Reconsider Opinion Denying Appellant's Motion for Reconsideration are denied.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur
James D. Finn, Jr.
Administrative Judge
Vice Chairman