February 20, 1998

Appeal of

NATIONWIDE POSTAL MANAGEMENT

LEASE AGREEMENT

PSBCA No. 4068

APPEARANCE FOR APPELLANT:

Alan B. Rich, Esq.

Friedman, Driegert & Hsueh, L.L.C.

570 Preston Commons West

8117 Preston Road

Dallas, TX  75225-6332

APPEARANCE FOR RESPONDENT:

Gary S. Shapiro, Esq.

Robert P. Faust, Esq.

Salt Lake City Office

United States Postal Service

448 East 6400 South, Suite 450

Salt Lake City, UT  84107-7591

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

On August 22, 1997, this appeal was dismissed with prejudice for Appellant's failure to prosecute.  On Appellant's motion for reconsideration, the dismissal with prejudice was vacated, and the appeal was dismissed for lack of jurisdiction on December 16, 1997, the Board concluding that Appellant had not appealed the contracting officer’s final decision (1997 PSBCA LEXIS 26).  Respondent has now requested that the Board reconsider its December 16 dismissal for lack of jurisdiction.  The facts and procedural background are set forth in the December 16 Opinion and will not be repeated here.

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.  While in compelling circumstances, the Board in its discretion may revisit a reconsideration decision, Respondent’s repetition of the contentions it made in response to Appellant’s motion for reconsideration does not merit the exercise of such discretion.  Respondent’s contentions were fully considered by the Board and decided adversely to Respondent, and their reargument does not provide a basis for reconsideration.  See Betty and Eddie Jackson, PSBCA No. 3624, 96-2 BCA ¶ 28,456; E. Gerald Hanes, PSBCA No. 3082, 93-1 BCA ¶ 25,553; Montgomery-Ross-Fisher, Inc., PSBCA No. 1096, 84-3 BCA ¶ 17,607.  We find the December 16 Opinion to be clear, and we do not intend to repeat the reasons for rejecting Respondent’s contentions.^[1]

Respondent suggests in its motion that depositions should have been allowed to determine whether Appellant intended to appeal.  We note that Respondent did not request depositions or a hearing on Appellant's motion for reconsideration, and Respondent has shown no basis for reopening the record at this stage.

Respondent has not offered any previously-unavailable evidence or shown any factual or legal errors which would warrant changing our decision.  See Betty and Eddie Jackson, PSBCA No. 3624, 96-2 BCA ¶ 28,456.  Accordingly, Respondent's motion for reconsideration is denied.

Norman D. Menegat

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

David I. Brochstein

Administrative Judge

Vice Chairman

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^[1]  We will clarify an issue not decided in the December 16 Opinion that has apparently caused Respondent much concern.  We noted that Appellant's principal had advised Respondent's counsel that an appeal was not intended, a fact admitted by Respondent in its briefs.  Respondent argues that the Board has unfairly placed a burden on Respondent to bring such information to the attention of the Board.  Respondent seriously misapprehends the Opinion in this regard.  That communication was cited as one of many circumstances that were consistent with and that supported the conclusion that Appellant did not intend its March 21, 1997 letter to be an appeal to the Board.  What Respondent did with the information so conveyed had no bearing on the decision.