BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, DC 20401
In the Matter of )
)
the Appeal of )
)
STERLING PRINTING, INC. ) Docket No. GPO BCA 20-89
Jacket No. 226-948 )
Purchase Order 812288 )
DECISION DENYING SECOND MOTION FOR RECONSIDERATION AND ORDER
On July 5, 1994, the Board issued its Decision on Motion for
Reconsideration and Order (Decision on Motion) denying the U.S.
Government Printing Office's (Respondent or GPO or Government)
motion for reconsideration and alternative request to reopen the
record, in the above-captioned appeal of Sterling Printing, Inc.
See, Sterling Printing, Inc., GPO BCA 20-89, Decision on Motion
for Reconsideration and Order (July 5, 1994), Sl. op. at 16.
Thereafter, on August 5, 1994, the Respondent filed a second
motion for reconsideration with the Board contending that the
Decision on Motion was based "on material oversights of fact and
erroneous conclusions of law."1 See, Respondent's Second Motion
for Reconsideration, dated August 5, 1994, p. 1 (Second Motion).
For the reason which follows, the Second Motion is also DENIED.
DISCUSSION
Motions for reconsideration are authorized by Rule 29 of the
Board's rules of practice and procedure, which provides:
A motion for reconsideration, if filed by either party, shall set
forth specifically the ground or grounds relied upon to sustain
the motion, and shall be filed within 30 days from the date of
the receipt of a copy of the decision of the Board by the party
filing the motion.
See, Board Rules, Rule 29.
Rule 29 of the Board Rules is a verbatim adoption of the
corresponding rule of practice followed by the Postal Service
Board of Contract Appeals (PSBCA). See, 39 CFR � 955.30.
Furthermore, except for a minor variation in wording, the Board's
rule governing reconsideration closely follows procedural Rule 29
of the Armed Services Board of Contract Appeals (ASBCA). See, 48
CFR Chap. 2, Subchap. 1, App. A, � 29. Both the PSBCA and the
ASBCA have held that their procedural rules provide for only one
motion for reconsideration. See, Clyde P. Thomas, ASBCA No.
28296, 88-3 BCA � 21,179; P.T. Sarana Daya Taruna, ASBCA No.
26240, 88-3 BCA � 21,002; Lawrence D. Bane, PSBCA Nos. 1440 and
1491, 86-3 BCA � 19,276.
As indicated several times in the past, where GPO adopts the
regulatory language followed by other agencies as its own, in
this case the procedural rules governing contract appeals, under
settled rules of construction, the Board must presume that the
uniform interpretation given to those words has also been
accepted. See, Banta Company, GPO BCA 03-91 (November 15, 1993),
Sl. op. at 34. See also, McDonald & Eudy Printers, Inc., GPO BCA
40-92 (January 31, 1994), Sl. op. at 11-12; Shepard Printing, GPO
CA 37-92 (January 28, 1994), Sl. op. at 21-22. Accordingly, in
agreement with the PSBCA and the ASBCA, the Board holds that Rule
29 of the Board Rules allows a party to file only one motion for
reconsideration.
ORDER
The Respondent's Second Motion for reconsideration is DENIED and
the Clerk of the Board is instructed not to accept any further
filings by the Government relative to this appeal. Clyde P.
Thomas, supra, 88-3 BCA � 21,179, at 106,881; P.T. Sarana Daya
Taruna, supra, 88-3 BCA � 21,002, at 106,101; Lawrence D. Bane,
supra, 86-3 BCA � 19,276, at 97,442.
It is so Ordered.
August 12, 1994 STUART M. FOSS
Administrative Judge
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1 To the extent that the Second Motion disputes the Board's
analysis of the record, factual findings and legal
conclusions, the Respondent's objections are little more
than an expression of its disagreement with the Decision on
Motion, which is not a sufficient ground to grant
reconsideration in any event. See, J.W. Bateson Company,
Inc., VABCA No. 3460R, 93-3 BCA � 26,118; Luther Benjamin
Construction Company, ASBCA Nos. 40401, 40606, 93-3 BCA �
25,918; Zinger Construction Company, Inc., GSBCA No. 11039-
R, 92-3 BCA � 25,039. However, Counsel for GPO also uses
the Second Motion as a vehicle to lecture the Board on what
he sees as a "disturbing trend at the [Board]", namely, a
willingness to decide cases "on issues not decided by the
Contracting Officer, not raised in the appeal and not
litigated by the parties." Second Motion, pp. 4-6. Apart
from the fact that the cases cited by Counsel for GPO are
irrelevant here, the Board finds his gratuitous criticism
both offensive and presumptuous. Contrary to what Counsel
for GPO may believe, the Board is not a "rubber stamp" for
the actions of GPO Contracting Officers nor a protective
shield for the mistakes made by the parties in litigating
cases. Furthermore, the Board interprets its charter,
which allows it to go beyond the grounds asserted by the
Contracting Officer in his/her final decision and "hear,
consider, and decide all questions of law necessary for the
complete adjudication of an appeal", as a clear signal that it is
empowered to give a de novo review of the claims made by the
parties in all cognizable cases. See, GPO Instruction 110.10C,
Subject: Establishment of the Board of Contract Appeals, dated
September 17, 1984, � 7.b (GPO Instruction 110.10C); GPO
Instruction 110.12, Subject: Board of Contract Appeals Rules of
Practice and Procedure, dated September 17, 1984, Preface to
Rules, � V (Board Rules). In taking such a "new look" at the
issues, the Board, as a matter of policy, conducts its own
research to ensure that its decisions are in harmony with the
latest developments in the law of Government contracts to the
maximum extent possible, considering that the Board is not a
creature of statute. See, e.g., Scalf Engineering Co. & Pike
County Construction Co., a Joint Venture, IBCA No. 2328, 89-3 BCA
No. 22,221; Sequal, Inc., ASBCA No. 29119, 85-3 BCA � 18,366. As
a consequence, while the Board recognizes the exercise of this
independent role may be disturbing to some, it is satisfied that
it has been "impartial, fair and just" in the exercise of its
authority and in its adjudications. GPO Instruction 110.10C, �
7.a.
2 The only difference between the Board's Rule 29 and the
ASBCA's is that the latter consists of three sentences,
rather than one. Thus, the ASBCA's Rule 29 states: "A
motion for reconsideration may be filed by either party. It
shall set forth specifically the grounds relied upon to
sustain the motion. The motion shall be filed within 30
days from the date of the receipt of a copy of the decision
of the Board by the party filing the motion." See, 48 CFR
Chap. 2, Subchap. 1, App. A, � 29.