MOTION FOR RECONSIDERATION DENIED: December 15, 1993 GSBCA 12306-R KOLL CONSTRUCTION COMPANY, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Richard Lee Brown of Bishop, Payne, Williams & Werley, L.L.P., Fort Worth, TX, counsel for Appellant. Thomas Y. Hawkins, Office of Regional Counsel, General Services Administration, San Francisco, CA, counsel for Respondent. Before Board Judges DANIELS (Chairman), PARKER, and NEILL. DANIELS, Board Judge. This case required us to determine the amount by which contract payments should be adjusted as a consequence of the Government's having permitted the contractor to supply and install interior doors somewhat different in design from the ones originally contemplated. We concluded that the amount should be between the sums advocated by the parties; we directed the General Services Administration (GSA) to return to Koll Construction Company (Koll) $26,428, rather than the $67,621 claimed by the latter. The contractor has filed a timely "Motion for Reconsideration, Amended Order and/or New Hearing" pursuant to Board Rule 32, 48 CFR 6101.32 (1993). In support of the motion, Koll maintains that "[a]ppellant has newly discovered evidence bearing on the issues" and "[t]he Decision of the Board is contrary to the great weight of the evidence." Two affidavits and a letter -- the additional evidence -- accompany the motion. The Government opposes the request, contending that appellant's supplemental evidence is not newly discovered, but rather, newly obtained; according to GSA, Koll could have submitted these documents with its brief, "but for unknown reasons chose not to." The Government urges that the finality of a Board decision should not be disturbed "simply because a party desires another chance to shore up a position which failed." Background At the joint request of the parties, this case was decided on the basis of a written record. That record consisted of documents submitted by the parties and affidavits submitted by Koll. Among the determinations the Board made in its decision were the following: (1) The contract called for the installation of wood doors with magnetic seals. Because the parties agreed that Koll would not supply doors with these seals, GSA was entitled to a credit in the amount of the value of the seals. The list price of the seals was $4 per linear foot. Koll maintained, on the basis of its subcontractor's representations, that the price it would actually have had to pay for the seals was much less than the list price. The actual price asserted by the subcontractor, however, was cited variously as three different amounts. We held: "No proof (such as an affidavit from a supplier) has been produced for any of these discounted prices, however. In the absence of any justification for selecting a price other the one in the manufacturer's catalog, we find that the figure of four dollars per linear foot should be used for the magnetic seals." Koll Construction Co. v. General Services Administration, GSBCA 12306 (Oct. 12, 1993), slip op. at 9. (2) GSA and Koll agreed that substitute doors would be provided with compression seals instead of magnetic seals. The sealing mechanism actually supplied was in dispute, however -- GSA pointed to statements in the record that the doors were installed with fibre weatherstripping, while Koll urged us to accept other statements which could have been taken to mean that the doors came with compression seals. We found "that GSA's assertion of the mechanism actually used is more credible than Koll's position. The agency's contention is backed by contemporaneous memoranda written during the course of construction; the contractor did not contest this conclusion until more than two months after the contracting officer had issued his decision, and although Koll has submitted three affidavits in the course of this litigation, none of them contains any support for the contractor's position on this disputed issue. On the basis of the record before us, we conclude that the doors were actually supplied with fibre weatherstripping, not compression seals." Slip op. at 5. (3) Contract drawings showed that metal strips had to be inlaid in the doors, apparently to "marry with the specified magnetic seals" so that when closed, the doors would remain in that position. Koll maintained that this requirement was in conflict with contract specifications. Consequently, appellant urged, referring to a contract provision, the requirement for metal strips must be read out of the contract -- and the Government was not entitled to a credit resulting from the contractor's not installing the strips in the doors. We rejected the argument, finding that "to the extent there was any inconsistency in contractual requirements, it was among specifications, not between specifications and drawings." We commented additionally that "[t]he best spin that can be put on Koll's position is that the contract was marred by a patent ambiguity," and that the contractor could not recover on any grounds of ambiguity because it had known about the problem before bidding, but had failed to inquire about it. Slip op. at 8. Koll asks us now to revisit each of these determinations. With regard to the first, Koll "readily admits that it has created most of the confusion regarding pricing of [the magnetic] seals." Motion at 3. It requests that we reopen the record to include new affidavits from its subcontractor's project manager and the vice president of the seal manufacturer, both stating that one of the discounted prices previously mentioned would have been the true price had Koll actually purchased the seals. With regard to the second determination, Koll says that the question whether weatherstripping or compression seals were actually installed "from inception, has been most troubling for the Contractor"; "[i]t seems clear to the Appellant now that we are dealing with both." Id. at 6. One of the new affidavits is offered in support of this position. In addition, Koll maintains that the doors could not have passed a sound-retardancy test without the compression seals; a letter from the door manufacturer is newly provided to bolster this position. As to the third matter in dispute, Koll restates the legal argument we rejected. Discussion Under Rule 32(a), "Reconsideration may be granted, a decision or order may be altered or amended, or a new hearing may be granted, for any of the reasons stated in Rule 33(a) and the reasons established by the rules of common law or equity applicable as between private parties in the courts of the United States." Rule 33(a) lists six grounds, which are essentially those specified in Federal Rule of Civil Procedure 60(b). Appellant does not specify which of these might justify its motion, but from the argument, we suspect that it means to rely on paragraphs (1), "Newly discovered evidence which could not have been earlier discovered, even through due diligence," and (6), "Any other ground justifying relief from the operation of the decision or order." The motion is easily resolved with regard to the third matter: Koll does no more than to reargue a position we have already considered fully and rejected. This is insufficient basis for reconsideration. Universal Development Corp. v. General Services Administration, GSBCA 11252-R, 93-2 BCA 25,845 (citing Contel Federal Systems, Inc., GSBCA 9743-P-R, 89-1 BCA 21,510 at 108,352, 1989 BPD 30 at 2 (citing eight other decisions)). Disposition of the motion as to the first two matters requires more thought. Koll has presented new evidence which, if we were to consider and ultimately accept it, would have a material impact on the result of the litigation. Decreasing the price of the magnetic seals from $4 per linear foot to $1.50 (the amount supported by the supplementary affidavits) would increase the credit due the contractor by $9,788. Accepting Koll's entirely new position that the doors were supplied with compression seals and fibre weatherstripping would also increase the credit -- by $7,830, if we also agree with Koll that the compression seals are worth $2 per linear foot. Federal Rule of Civil Procedure 60(b) "seeks to strike a delicate balance between two countervailing impulses: the desire to preserve the finality of judgments and the 'incessant command of the court's conscience that justice be done in light of all the facts.'" Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 401 (5th Cir. 1981) (quoting Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir.), cert. denied, 399 U.S. 927 (1970)). Koll's principal reason for striking the balance as to two matters against the desire to preserve the finality of our judgment is that we should consider the contractor's "newly discovered evidence which could not have been earlier discovered, even through due diligence." The problem with this position is that the evidence which Koll seeks to have us review now is the contractor's own evidence. One of the affidavits is by the project manager of Koll's door subcontractor -- the same gentleman who earlier provided two other affidavits taken into evidence in this case. The other information comes from suppliers to the door subcontractor. Koll has given us no indication that the points made in the affidavits and letter were not in the contractor's possession, or routinely accessible to that firm, before the record was closed. Thus, appellant has not even attempted to make the requisite showing that the evidence could not have been discovered earlier through due diligence. Koll has consequently provided no basis for reopening the record on this account. Gilroy-Sims & Associates, GSBCA 6277-R, et al., 90-3 BCA 22,986 at 115,449; see also Elden-Rider, Inc. v. General Services Administration, GSBCA 8643-R, 92-2 BCA 25,005. Appellant must therefore fall back on Rule 33(a)'s residual clause -- "[a]ny other ground justifying relief from the operation of the decision or order" -- as reason for reconsidering our decision as to the two matters in question. Courts have been especially prone to invoke this clause where an attorney's errors in representation contributed to a default judgment, such that the client never had an opportunity to present its case to the tribunal. See, e.g., Seven Elves; Jackson v. Washington Monthly Co., 569 F.2d 119 (D.C. Cir. 1977); Primbs v. United States, 4 Cl. Ct. 366 (1984), aff'd, 765 F.2d 159 (Fed. Cir.) (table), cert. denied, 471 U.S. 1068 (1985). The rule, however, is "not designed to operate as an insurance mechanism for clients." Where a judgment on the merits was had, "the policy of favoring final judgments looms larger in the scheme of factors the court considers" on a motion for reconsideration. Crutcher v. Aetna Life Insurance Co., 746 F.2d 1076, 1083 (5th Cir. 1984). The Supreme Court has explained, "There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from." Ackermann v. United States, 340 U.S. 193, 198 (1950). Extraordinary circumstances must be presented to justify a grant of reconsideration. Id. at 202. Koll has not shown any extraordinary circumstances in support of its motion. It has only demonstrated that it is unhappy with the result of the litigation and believes that if it had provided additional evidence earlier, the outcome might have been somewhat different. The determination not to include in the record evidence appellant now believes important was, of course, a "free, calculated, deliberate choice." The motion for reconsideration itself contains admissions that the contractor "has created most of the confusion" regarding one issue and found the other issue, "from inception," to be "troubling." The contractor was aware of its problems long before the record was closed; it has presented insufficient cause for reopening that record now. Solitron Devices, Inc. v. United States, 16 Cl. Ct. 561, 564-66 (1989); 11 C. Wright & A. Miller, Federal Practice & Procedure 2858 (1973). Decision Appellant's motion for reconsideration is DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ ROBERT W. PARKER EDWIN B. NEILL Board Judge Board Judge