MOTION FOR RECONSIDERATION DENIED: July 17, 1996 GSBCA 12639-REM-R JAY P. ALTMAYER, NANCY HIRSCHLER, JANE BESKIN, AMSOUTH BANK, N.A., AS TRUSTEE UNDER THE WILL OF CLAIRE POLLOCK, AND JAY P. ALTMAYER AND AMSOUTH BANK, N.A., AS CO-TRUSTEES UNDER THE WILL OF MARVIN C. ALTMAYER, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. W. Alexander Moseley of Hand Arendall, L.L.C., Mobile, AL, counsel for Appellant. Robert W. Schlattman, Office of General Counsel, General Services Administration, Washington, DC; and Diana Parks Curran, Office of Regional Counsel, General Services Administration, Atlanta, GA, counsel for Respondent. Before Board Judges DANIELS (Chairman), NEILL, and DeGRAFF. DANIELS, Board Judge. The General Services Administration (GSA), respondent, moves for reconsideration of our decision in Jay P. Altmayer, et al. v. General Services Administration, GSBCA 12639-REM (May 31, 1996). In that decision, we granted to the appellant -- Jay P. Altmayer, Nancy Hirschler, Jane Beskin, AmSouth Bank, N.A., as trustee under the will of Claire Pollock, and Jay P. Altmayer and AmSouth Bank, N.A., as co-trustees under the will of Marvin C. Altmayer -- $29,185.92 in extended home office overhead costs of a subcontractor, Haas Construction, Inc., calculated in accordance with the Eichleay formula. The basis for the motion is GSA's belief that "the Board failed to consider respondent's argument that appellant cannot recover home office overhead damages because it used incomplete financial data for its Eichleay formula, rather than actual figures." The agency urged in its posthearing brief, and now urges again, that the appellant's use of prorated annual overhead figures for the period of delay (actually, the period of contract performance), rather than the actual amounts for that period, was unacceptable. GSA considers this use the sort of "gross approximation which lacks credibility" that the Board found in Colorado Piping & Mechanical, Inc., GSBCA 8254, 91-2 BCA 23,684, at 118,608, aff'd, 951 F.2d 1266 (table) (Fed. Cir. 1991), to justify disallowance of a claim for extended home office overhead costs. We deny the motion.[foot #] 1 A party may not base a motion for reconsideration on arguments already made. Rule 32(a). GSA candidly admits that it made the argument on which it bases its motion in its posthearing brief. The agency maintains, however, that the motion may be considered because "the Board apparently failed to consider that argument." GSA's assumption is incorrect. The Board accepted the home office overhead figures presented by appellant. We cited in support of the figures the testimony of Victor Streed, Haas Construction's secretary-treasurer. Mr. Streed explained that the figures were accurate and based on information he received and entered into a computer program in the normal course of business, and that the stream of expenses was constant throughout each year involved. GSA did not cross-examine Mr. Streed as to this testimony. Nor did the agency present any evidence suggesting that the figures were incorrect. We found Mr. Streed's testimony and documentation credible. On the other hand, we considered GSA's argument so lacking in support as not to be worth discussing. Cf. Contel Federal Systems, Inc., GSBCA 9743-P-R, 89-1 BCA 21,458, 1988 BPD 311 (witness's unsubstantiated allegations had so little credibility, in the face of overwhelming evidence, that we did not even mention ----------- FOOTNOTE BEGINS --------- [foot #] 1 We reject appellant's contention that the motion was untimely filed. A motion for reconsideration in an appeal must be filed within thirty calendar days after the date of receipt by the moving party of the decision. Rule 32(c) (48 CFR 6101.32(c) (1995)). If the last day of the period is a Saturday, a Sunday, or a legal holiday, it is not counted; the period includes the next working day. Rule 2(c). When a party sends a document to the Board, it must at the same time send a copy to any other party. Rule 3(a). GSA received the decision on May 31 and filed the motion on Monday, July 1. It sent a copy of the motion to appellant's counsel on July 2. The motion was filed on the last day of the permissible period. The fact that a copy was sent to appellant one day beyond the period is a de __ minimis violation of our Rules of Procedure. Filing occurs upon _______ receipt by the Office of the Clerk of the Board. Rule 1(b)(5)(i). ----------- FOOTNOTE ENDS ----------- them). We did address specifically the only arguments GSA made which we considered viable, and we made adjustments to the figures based on some of them. Colorado Piping involved a completely different situation. There, in attempting to establish the amount of home office overhead expenses during a contract period, the contractor extrapolated from partial 1983 records to show its expenses during 1984 and 1985. The record suggested that the amount of overhead was not constant over the period preceding, during, and after the period of performance. The Board found that the testimony of witnesses explaining the figures lacked credibility, "in large part because of a lack of documentary support." Here, Haas Construction presented documented figures from the years during which the contract was performed, and the unchallenged testimony was that the figures were accurate and the expenses were constant in each of those years. The fact that some of the categories of expense were different in one year from another is of no moment; GSA has not given us any reason to question the validity of any particular figure. Perhaps the agency now wishes that it had done so, but the record has long been closed. The appellant proposed that the Board calculate the total amount of home office overhead expenses during the contract period, August 31, 1992, to May 28, 1993, by prorating the total expenses for each of 1992 and 1993 by the number of days of performance during that year, and then adding the two prorated amounts together. We accepted this suggestion as reasonable, in light of the credibility and constancy of the figures for the two years. GSA has cited no court or board decisions which would indicate that such a methodology is impermissible. The appellant has directed our attention to 48 CFR 31.203(e), which indicates to the contrary that the methodology is normal, but deviations may be appropriate. We can imagine that using a different technique may lead to more accurate results in other circumstances. For example, if Haas Construction had vastly increased the size of its home office on July 1, 1993, for the purpose of marketing itself to take on new, large projects, restricting the home office overhead expenses for our purposes to the period of contract performance would have been sensible. Prorated expenses for all of 1993 would then not fairly represent the expenses which were incurred during the latter part of the period of performance of this contract. GSA has not even suggested, however, that circumstances like these occurred in this case. Thus, even if we were to accept the agency's argument as a general proposition, we could not apply it here. Decision GSA's motion for reconsideration is DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ EDWIN B. NEILL MARTHA H. DeGRAFF Board Judge Board Judge