Parsons Evergreene, LLC
Docket: ASBCA 61784
Decision date: 2018-09-05

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
Parsons Evergreene, LLC 
Under Contract No. FA8903-04-D-8703 
APPEARANCES FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 61784 
Douglas S. Oles, Esq. 
James F. Nagle, Esq. 
Adam K. Lasky, Esq. 
Howard W. Roth III, Esq. 
Oles Morrison Rinker & Baker LLP 
Seattle, WA 
Jeffrey P. Hildebrant, Esq. 
Air Force Deputy Chief Trial Attorney 
Michelle D. Coleman, Esq. 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE PROUTY 
REGARDING ALLEGEDLY TARDY REQUESTS FOR PAYROLL RECORDS 
As stated in footnote 1 of the majority opinion for ASBCA No. 58634 and in 
our order issued today on the matter, for reasons of clarity and judicial efficiency, 
we *issue this separate opinion under a new appeal number upon the subject of 
appellant, Parsons Evergreene, LLC's (PE's), demand for compensation of costs 
associated with the Air Force's (AF's) allegedly tardy requests for payroll records. 
Judge Clarke, who presided over the hearing in this matter, believes, for those 
reasons set forth in his dissent, that the AF's failure to engage in a "prompt" investigation 
of the payroll matter should entitle PE to compensation pursuant to Federal Acquisition 
Regulation (FAR) 22.406-1. As we explain below, although we adopt the material 
findings of fact made by Judge Clarke's majority opinion in ASBCA No. 58634, 
concurrently filed today, PE's appeal based upon FAR 22.406-1 is denied. 
* Because the two judges who reviewed Judge Clarke's original opinion in ASBCA 
No. 58634 (Judges Shackleford and Prouty) came to a different conclusion than 
Judge Clarke on the payroll review issue, the remaining two judges from 
Judge Clarke's division were asked to consider it, consistent with Board practice and 
procedure. As reflected below, they concurred with Judges Shackleford and Prouty. 

We deny this appeal because FAR 22.406-1 does not provide a remedy to a 
contractor for the government's untimely investigation of complaints relating to labor 
standards. Under longstanding law: 
In order for a private contractor to bring suit against 
the Government for violation of a regulation, that 
regulation must exist for the benefit of the private 
contractor. 
Freightliner Corp. v. Caldera, 225 F.3d 1361, 1365 (Fed. Cir. 2000) (citing Cessna 
Aircraft Co. v. Dalton, 126 F.3d 1442, 1451 (Fed. Cir. 1997); and Rough Diamond Co. 
v. United States, 351 F .2d 636, 640-42 (Ct. Cl. 1965)). Cessna was particularly clear: 
The primary intent of a statute or regulation must be to 
protect or benefit a class of persons in order for that class 
to be able to bring suit against the government for violating 
the statue or regulation. 
126 F.3d at 1451 (citing Rough Diamond, 351 F.2d at 640, 642). To be sure, a regulation 
may be intended to benefit more than one class of persons, see, e.g., Todd Cons tr., L.P. v. 
United States, 656 F.3d 1306, 1314 (Fed. Cir. 2011) (performance evaluation regulation 
meant to benefit both government and contractor), but Freightliner and Cessna make 
clear that the operative test is not that application of the regulation merely be to the 
benefit of the contractor in the particular controversy for which it is bringing suit, but that 
the contractor has been an intended beneficiary all along. 
With this in mind, we tum to the text of FAR 22.406-1. That FAR provision is 
entitled, "Policy," which underscores, to us, that the section is meant as a broad explanation 
of later FAR provisions as well as an instruction for contracting agencies about the goals of 
their labor standards programs. Subsection (a) of FAR 22.406-1 provides, in full: 
General. Contracting agencies are responsible for 
ensuring the full and impartial enforcement of labor 
standards in the administration of construction contracts. 
Contracting agencies shall maintain an effective program 
that shall include -
(I) Ensuring that contractors and subcontractors are 
informed, before commencement of work, of their 
obligations under the labor standards clauses of the 
contract; 
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(2) Adequate payroll reviews, on-site inspections, 
and employee interviews to determine compliance by the 
contractor and the subcontractors, and prompt initiation of 
corrective action when required; 
(3) Prompt investigation and disposition of 
complaints; and 
( 4) Prompt submission of all reports required by 
this subpart. 
The remainder of FAR 22.406-1, subsection (b), directs the issuance ofpreconstruction 
letters and the arrangement of preconstruction conferences with contractors. 
Reviewing the full text confirms our view that the FAR' s requiring "prompt 
investigation and disposition of complaints," see FAR 22 .406-1 ( a )(3 ), was, at most, for the 
benefit of labor, for whose advantage labor standards are required to be enforced, not for 
the benefit ofthe contractor. See Freightliner, 225 F.3d at 1365. Moreover, nothing in the 
language of the FAR provision comes close to suggesting that its "primary intent" was to 
"protect or benefit" the contractor class. See Cessna, 126 F.3d at 1451. 
Alternatively, we could conclude that FAR 22 .406-1, in setting out general policies 
for contracting agencies to follow, but not specifics, was meant merely for the benefit of 
the government as a "housekeeping regulation," providing guidance to government 
employees about how to establish their labor standards programs, and thus its violation 
gives no class any enforceable rights. See, e.g., Hartman v. Nicholson, 483 F.3d 1311, 
1315-16 (Fed. Cir. 2007). Ultimately, we need not decide between whether labor or the 
government was the intended beneficiary to determine that the subject provision was not 
intended for the benefit of the contractor. Creation of a cause of action against the 
government does not occur by happenstance, and there is not enough here to create one 
anew. Thus, we respectfully disagree with our colleague and deny the portion of PE's 
appeal seeking compensation for the allegedly tardy AF request for payrolls. 
Dated: September 5, 2018 
(Signatures continued) 
3 
J .' REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 

I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
ALEXANDER 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
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I concur 
DA YID D' ALESSANDRIS 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I dissent (see separate opinion) 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

DISSENTING OPINION BY ADMINISTRATIVE JUDGE CLARKE 
REGARDING ALLEGEDLY TARDY REQUESTS FOR PAYROLL 
I respectfully disagree with my colleagues. 
PE claims $762,130 for the government's violation of FAR 22.406-1 Policy, 
dealing with enforcement of labor standards, in particular payroll reviews. In order for 
a contractor to have a cause of action against the government for violation of a 
regulation, it must prove that the regulation exists for the benefit of the contractor. 
Freightliner Corp. v. Caldera, 225 F.3d 1361, 1365 (Fed. Cir. 2000). 
FAR 22.406-1 requires that if a problem is found during payroll reviews, on-site 
inspections and employee interviews there will be "prompt initiation of corrective action," 
"Prompt investigation and disposition of complaints," and "Prompt submission of all reports 
required by this subpart" (finding 201 ).* I infer from this that the payroll reviews themselves 
must also be prompt or the entire regulatory scheme becomes meaningless. 
PE and its subcontractors submitted payrolls commencing in 2005 (finding 203). 
The Air Force (AF) "sampled" payrolls and found no problems until the first labor 
interview on 6 December 2007 (id.). The interview caused the AF to look closer at the 
payrolls. This started the lengthy process of the AF requiring PE to resubmit past payrolls 
and respond to AF questions between 2008 and as late as 2012 (findings 203-07). The 
AF took beneficial occupancy on 11 September 2008 (finding 197). I accept PE's 
position that the AF's waiting to commence interviews and detailed payroll reviews until 
2008, when the contract was almost over, made it much more difficult and expensive for 
PE to comply. 
PE has proven that the government failed to conduct payroll reviews promptly and 
as a result it was much more difficult and expensive for PE to respond. I conclude that 
proof of such direct and predictable harm to a contractor is prima facie evidence that a 
regulation, in this case FAR 22.406-1, exists for the benefit of the contractor. The 
government is then required to come forward with evidence to contest the prima facie 
case. If the government fails to do so, the prima facie case stands uncontroverted and the 
party with the burden of proof will have established its case by a preponderance of the 
evidence. Environmental Safety Consultants, Inc., ASBCA No. 53485, 05-1 BCA 
~ 32.903 at 163,019. In this case. the government presented no evidence or argument on 
the benefit issue. I agree with my colleagues that FAR 22.406-1 also benefits workers, 
* References to findings are to the companion decision issued simultaneously with this 
decision. 
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but it is unlikely workers will ever avail themselves of the cause of action so my 
colleagues concession is academic. I sustained this claim and awarded PE $571,598 for 
the government's violation of FAR 22 .406-1. 
Dated: September 5, 2018 
CRAIG CLJ\E 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 61784, Appeal of Parsons 
Evergreene, LLC, rendered in conformance with the Board's Charter. 
Dated: 
6 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals 
I