OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

Appellant, AFV Enterprises, Inc., has filed a motion seeking reconsideration[1] of the Board's decision in these appeals, AFV Enterprises, Inc., PSBCA Nos. 2691, 3316, 01-1 BCA ¶ 31,388. Respondent opposes the motion.

"Point I" in Appellant's motion relates to the Board's conclusion with respect to the date on which the contract between the parties came into being. In its original Opinion, the Board determined that the contracting officer's March 15, 1988 letter constituted a counteroffer, and that Appellant accepted the counteroffer no later than August 9, 1988, when changes to the site plan (including moving the building elsewhere on the site) were completed. The Board's holding was consistent with Appellant's position during the initial litigation that August 9, 1988, was the date acceptance occurred.[2] Appellant now argues that the Board was incorrect when it determined that acceptance of Respondent's counteroffer occurred no later than August 9, 1988. Appellant contends that because of the contingency contained in the counteroffer relating to clearance by the State Historic Preservation Officer (SHPO), acceptance actually occurred no earlier than September 18 or 19, 1988, when SHPO issued a "no effect" determination concerning the project.[3] As a result, Appellant argues, the required completion date was later than July 5, 1989, and the contracting officer's default termination of the contract on that date was improper.[4]

In "Point II" of its motion, Appellant argues that the contracting officer's March 1989 show-cause letter had the same practical effect as a "stop work" order, and as a result Appellant reasonably ceased its efforts while it awaited Respondent's reaction to its response to the letter. Appellant argues that the Board unfairly ignored the impact of the letter on Appellant's performance when the Board found that Appellant did not do much after receiving the letter.

We do not accept Appellant's position with regard to its Point I. At the time of termination on July 5, 1989, Appellant had not yet received approval from the Planning Board and had not begun construction. Appellant's own estimate, reflected in its response to the show-cause notice, was that construction would take approximately three months after it received that approval (Opinion, Finding 20). Therefore, even if we were to accept Appellant's current argument that acceptance actually occurred in mid-September 1988 and the completion date should have been extended to mid-July 1989, the record indicates that there was no possibility that Appellant could have completed construction by that date. Therefore, the contracting officer's termination of the contract on July 5, 1989, would have been proper even though it would have preceded the extended completion date. See, e.g., Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987).

With respect to Appellant's Point II, the Board noted in the original Opinion that although Appellant argued it was not in technical default when the show-cause letter was issued, it had not argued that such "premature" issuance of the show cause letter had any practical effect on its performance.[5] Appellant's Point II is apparently an attempt to provide that argument.

In general, arguments that could have been made in the initial proceeding do not provide a basis for reconsideration. LDG Timber Enterprises, Inc., AGBCA No. 92-198-R, 93-1 BCA ¶ 25,319; Montgomery-Ross-Fisher, Inc., PSBCA No. 1096, 84-3 BCA ¶ 17,607. Even on the merits, however, we do not accept Appellant's argument.

Appellant argues that the show-cause letter would have caused any reasonable business person not "to pursue at great legal, mechanical, and labor costs anything further on the project" until it knew Respondent's reaction to its answer to the show-cause. However, Appellant has not shown, based on the record before us, that the show-cause letter actually had the effect of causing it to cease its efforts to perform. There is no indication in its answer to the show-cause letter that Appellant intended to stop its efforts because of that letter and wait for Respondent's reaction. In fact, Appellant indicated that it expected it would present its proposal to the Planning Board and receive approval in April or May 1989. Appellant has not argued that the wording of the show-cause letter constituted express direction by the contracting officer to Appellant to suspend its efforts, and Appellant still has not demonstrated that the show-cause letter issued in March 1989 actually had any practical effect on its performance. In any event, under these facts Appellant was obligated by the contract's Claims and Disputes clause to continue work pending resolution of disputes between it and Respondent. See, e.g., Max M. Stoeckert v. United States, 391 F.2d 639, 645 (Ct. Cl. 1968); Technocratica, ASBCA Nos. 46006, et al., 94-2 BCA ¶ 26,606 at 132,370.

Appellant has not shown any factual or legal errors that would warrant changing our decision. Accordingly, Appellant's motion for reconsideration is denied, and the original Opinion of the Board is affirmed.

David I. Brochstein

Administrative Judge

Vice Chairman

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

Norman D. Menegat

Administrative Judge

Board Member

[1] After the motion was filed, the Board received a letter directly from Appellant's president questioning why what she termed an "appeal" of the initial decision should be decided by the same Board members who issued that decision. In fact, what was filed here was a motion seeking reconsideration of the initial decision, not an appeal of that decision. The United States Court of Appeals for the Federal Circuit is the forum which considers appeals from final decisions of this Board.

[2] Appellant's initial brief, page 43; reply brief, page 3.

[3] Appellant uses September 18 and 19, 1988, in different parts of its motion. The date on the SHPO "no effect" letter was actually September 13, 1988 (Appellant's Appeal File, Tab T). Resolving this conflict is not necessary to a ruling on the motion.

[4] Although not entirely clear, Appellant also seems to be arguing that acceptance and contract formation may not have occurred (and Appellant's time for performance did not commence) until as late as sometime in 1989 (or, perhaps, not at all), because of Respondent's failure to obtain a further SHPO clearance for the project with the building at the revised location. However, in our original Opinion, we concluded that no further SHPO clearance had been shown to be necessary in connection with this "undertaking" (Opinion, footnote 13). Therefore, we do not address this part of Appellant's argument.

[5] 01-1 BCA ¶ 31,388 at 155,023.