Parsons Evergreene, LLC
Docket: ASBCA 56105, ASBCA 56322
Decision date: 2019-01-23

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. 58634 
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 
Lori R. Shapiro, Esq. 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE CLARKE 
ON APPELLANT'S MOTION FOR RECONSIDERATION 
The Board issued its decision in this appeal on September 5, 2018. Parsons 
Evergreene (PE) received the decision on September 10, 2018, and timely filed its motion 
for reconsideration on October 10, 2018. PE requests reconsideration of the Board's 
decision concerning Structural Brick, Triarch and Claim Preparation/REA Modification 
Costs (app. mot. at 1 ). We will deal with each separately. We have jurisdiction pursuant to 
the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We deny the motion. 
DISCUSSION 
Standard/or Reconsideration 
Parsons Evergreene (PE) must demonstrate a compelling reason for the Board to 
modify its decision. JF. Taylor, Inc., ASBCA Nos. 56105, 56322, 12-2 BCA ,i 35,125. 
The standard we apply for reconsideration is "[t]o prevail on reconsideration, the moving 
party must generally establish that the underlying decision contained mistakes in our 
findings of facts or errors of law or that newly discovered evidence warrants vacating our 
decision." DODS, Inc., ASBCA No. 57667, 13 BCA ,J 35,203 at 172,711. Motions for 
reconsideration are not intended to provide a party with an opportunity to reargue issues 
previously raised and denied. Cl2, Inc., ASBCA No. 56257, 15-1 BCA ,i 35,829 at 175,194. 

Structural Brick Claim 
Contentions of the Parties 
PE contends that the Board made a mistake of fact and error of la,v when it failed to 
use Mr. Tengler's estimate of the cost PE would have avoided had it been allmved to use 
its single-wall structural brick design rather than the double-wall (8-inch CMU 1 block and 
4-inch brick veneer). Parsons Evergeene, LLC. ASBCA No. 58634. 18-1 BCA ~ 37.137 
at 180. 734. finding 6. More specifically PE writes: 
[TJhe Board has made a mistake in fact where it finds: .. we 
are unable to calculate the amount PE is entitled to .. for the 
added costs due to Government rejection of the "Structural 
Brick .. Design. Moreover. the Board has made an error of 
law by applying a legal standard that rejects use of an 
estimate in circumstances that effectively require reliance on 
an estimate. 
(App. mot. at 10) PE seeks $2,195.588 (id. at 15). 
In its opposition the Air Force (AF) presents a table with a side-by-side comparison 
of sections in PE's motion and PE's post-hearing brief (gov·t resp. at 13-14). The AF 
argues that this comparison proves that the structural brick argument in PE· s motion is ··an 
attempt to re litigate the issues already heard and decided by the Board'' (id. at 13 ). The 
AF also contends that PE "fails to cite any testimony or evidence that ,vas overlooked in 
the Board's Opinion." Additionally there was .. no legal error in denying the costs claimed 
by Appellant based on the Estimate:· (Id. at 15) 
Discussion 
PE's argument misses the point we clearly made in our decision. PE apparently 
believes the Board found entitlement for the total increased cost of having to build to the 
double-wall design rather than the structural-brick design. That is not what we held. We 
held ... The AF is responsible for the additional design and construction costs incurred to 
change the Baker 35% design to resist progressive collapse.'' Parsons. 18-1 BCA ~ 37.137 
at 180,794. The entirety of PE's basis for reconsideration is PE's mischaracterization of 
the Board's structural brick decisions. 
The decision dealt with structural brick in two parts - design and construction. We 
found the AF liable for the additional costs PE incurred to design changes required to make 
the Baker 35% design resist progressive collapse. 18-1 BCA ~ 37,137 at 180.794. 
1 Concrete masonry unit. 
2 

PE explained in its post-hearing brief that it .. completed its 100% design within its bid 
budget .. and that its design impact claim was for an ·'overrun ... Id. at 180. 794. The Board 
understood this overrun was directly related to modifications to the design to resist 
progressive collapse. 2 We awarded PE $722.176 for the additional design effort relating to 
progressive collapse. Id. at 180. 795. 
The second part of the structural brick decision \Vas for the actual cost of 
construction of the design changes needed to make the VQ resist progressive collapse. We 
held that the AF was liable for these construction costs but that we could not calculate a 
quantum amount and consequently awarded nothing. 18-1 BCA ': 37.137 at 180.812-13. 
PE attacks our holding stating that we committed both factual and legal error because we 
did not adopt Mr. Tengler's estimate of the cost PE would have avoided had it been 
allmvcd to use its single-\vall structural brick design rather than the double wall. Contrary 
to PE·s argument. we have no problem with the use of estimates. however. Mr. Tengler·s 
estimate was the \Vrong estimate. Mr. Tengler's estimate \Vas for the total cost savings PE 
would have realized had it been allowed to use the structural brick design. This estimate 
was not for the cost of constructing the modifications necessary to make the VQ resist 
progressive collapse, which is what we needed. Looking at Mr. Tengler's estimate. it is 
titled, "Structural Brick in Lieu of Double Wvthe Svstcm - Total Cost Savings.'· We see . . ~ 
that $1,192.725 of the $1,906.401 estimate (63%) was "Decreased Cost of Structural Brick 
vs CMU + Facebrick.'. (R4, tab 3154) We do not see how the cost of facebrick veneer 
over the CMU wall has anything to do \vith progressive collapse. Importantly. if it does. 
PE failed to meet its burden of proof tying the two together. We paraphrase what we said 
in our decision: there is no logical relationship between Mr. Tengler's estimate of total 
cost savings and the increased cost of construction solely attributed to what was needed to 
modify the VQ to resist progressive collapse. 18-1 BCA ~ 37.137 at 180.812. We also 
disagree that it was impossible for PE to either estimate the cost to construct the design 
changes, based on drawing changes, or, better yet, track the actual costs of construction 
limited to the changes needed to resist progressive collapse. We deny PE's motion for 
reconsideration relating to structural brick. 
Triarch Claim 
Contentions of the Parties 
PE argues that the information needed to determine quantum is in the record. PE 
points out that its VQ painting subcontract with KRN had a value of $357.000 and that 
reducing that amount by a $48.400 credit would result in a quantum amount of $308.600 
(app. mot. at 17). PE contends that the Board erred by not considering these facts. PE 
also argues that under the circumstances "it would seem reasonable to add a further 
2 Had we interpreted this portion of the claim otherwise, we may not have awarded PE 
these design costs. 
3 

allowance for PE's management and staff time on this issue.'' (Id.) PE seeks $440,137 
(id. at 18). 
The AF argues that PE in its motion for reconsideration "presents an entirely new 
argument that was not previously presented prior to the close of the record, or even prior to 
the Board's Opinion'' (gov·t resp. at 19). The AF argues that PE's attempt to have the 
Board consider this new argument "falls squarely within the prohibition that parties not use 
the reconsideration procedure to relitigate its claims" (id.). 
Discussion 
The problem here is that PE apparently was so confident in its primary argument 
that the RFP did not require Triarch in the VQ, it failed to include an alternative argument 
concerning the AFs erroneous direction to apply paint in the VQ. We do not criticize PE. 
As evidenced by thousands of Rule 4 tabs, tens of thousands of Rule 4 pages, 1,500 pages 
of briefs and our almost 100-page decision (Parsons, 18-1 BCA ~ 37,137 at 180,733-827), 
the record was massive and the number of issues for the parties and the Board to deal with 
was extraordinary. Although we understand why PE did not argue every possible 
alternative theory of recovery, the failure to argue alternative theories has consequences. 
Having failed to provide us a basis for award in the Triarch claim, the Board had no way to 
quantify the AF's liability for the VQ painting. 
It is well known that the .. burden of proof is upon the party asserting a right," in 
this case PE. Black Tiger Company, ASBCA No. 59819, 18-1 BCA ~ 37,046 at 180,336. 
After our decision was issued, PE has apparently found the evidence of quantum in the 
record that the Board needed. PE presents arguments based on that evidence in its motion. 
PE does not attempt to reargue issues previously raised and denied. We consider the three 
criteria justifying vacating our decision on reconsideration: mistakes in our findings of 
fact, errors of law or newly discovered evidence. PE does not contend we made an error 
of law. Since the evidence was in the record and is not "newly discovered," we cannot see 
how that basis for vacating our decision applies. Turning to mistakes in our findings of 
fact, PE points to no facts in our Triarch decision that are mistaken. Instead, PE contends 
that we "mistakenly" failed to consider the facts it now, for the first time, presents. (App. 
mot. at 16-17) Stating the obvious, it was not the Board's obligation to search the record 
for evidence of quantum to meet PE' s burden of proof. Cf Smithkline Beecham Corp. v. 
Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (quoting United States v. Dunkel. 927 
F.2d 955. 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in 
briefs.")). We were not mistaken in failing to consider facts in the record that PE did not 
bring to our attention. We know of no precedent that provides for successful 
reconsideration resulting from new argument based on evidence in the record that was not 
previously used in the briefs. We deny PE's motion for reconsideration relating to the 
Triarch claim. 
4 

Claim & REA Proposal Claims 
Contentions of the Parties 
PE presents a six-page factual analysis in support of its contention that "the record 
included clear evidence that REA preparation, revision and negotiation continued from the 
project Beneficial Occupancy Date (BOD) of 11 September 2008 at least through around 
the end of 2011 and submission of the last REA on November 30. 2011 ·· ( app. mot. at 20 ). 
PE cites to record evidence. including Work Breakdown System ( WBS) codes and expert 
evidence. it contends proves that the claim and REAs supported active negotiations (id. 
at 22-23 ). In its five-page legal analysis PE cites Bill Strong Ente,prises, Inc. v. Shannon. 
49 F.3d 1541 (Fed. Cir. 1995). arguing there is a "strong presumption'" that ifa contractor 
submits REAs rather than CDA claims it is for the purpose of "materially furthering the 
negotiation process .. (app. mot. at 25-26). PE includes an argument that the Board should 
employ jury verdict to calculate and award costs (id. at 31-33). 
The AF argues that PE initially rejected the argument "that it must prove that these 
costs were incurred in furtherance of an ongoing negotiation process .. and now admits its 
obligation to do so (gov·t resp. at 23). According to the AF. PE's motion presents a 
revised claim and new evidence in Exhibit 1, without satisfying prerequisites to re-open 
the record. The AF submits that PE's Exhibit 1 should "be stricken.'' (Gov't resp. at 24) 
The AF contends that PE continues to fail to meet its burden of proof and that jury 
verdict is not appropriate (id. at 26-27. 29). 
Discussion 
PE's entitlement argument for these claims consisted of one short paragraph for 
each claim (app. br. at 314-15). PE's entitlement argument is essentially that the costs 
,vere not challenged/questioned (id.). PE's quantum section adds nothing more to 
support entitlement (id. at 4 73-74 ). 
In our decision we pointed out that to prove entitlement PE must prove that the 
claimed costs were incurred to materially further the negotiation process. 18-1 BCA 
~ 37.137 at 180.808-10. In its post-hearing brief PE presented no argument and directed 
us to no evidence that the costs were incurred to materially further the negotiation 
process. As a result. we found in both cases that PE failed to meet its burden of proof. 
NO\v. in its motion for reconsideration. PE presents a new argument based on .. old" 
evidence that was in the record "vhen it wrote its post-hearing briefs to prove the claimed 
costs were incurred to materially further negotiations. (App. mot. at 20-31) In its motion 
PE states: 
Where the Board· s Opinion finds that ·'PE totally 
failed in its burden of proof that the costs were incurred 'for 
5 

purposes of materially furthering negotiation process· ... that 
finding is not supported by the record. 
(Id. at 27) 
Our analysis is very similar to our Triarch decision above. PE does not attempt to 
reargue issues previously raised and denied. We consider the three criteria justifying 
vacating our decision on reconsideration: mistakes in our findings of fact, errors of law or 
newly discovered evidence. PE does not contend we made an error oflaw. As we stated 
above, since the evidence was in the record and is not "newly discovered," we cannot see 
how that basis for vacating our decision applies. The only findings of fact for these claims 
were findings 171-76 that quoted the two paragraphs from PE's post-hearing brief 
referenced above. 18-1 BCA ~ 37,137 at 180,777. PE does not contend there are mistakes 
in findings 171-76. PE again asks us to consider new arguments based on evidence in the 
record but not used in its post-hearing briefs. As explained in our Triarch decision above, 
we decline to do so. We deny PE's motion for reconsideration relating to the claim 
preparation and REA modification claims. 
CONCLUSION 
For the reasons stated above PE's motion for reconsideration is denied. 
Dated: January 23, 2019 
I concur 
LEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
6 
Administ tive Judge 
Armed Services Board 
of Contract Appeals 
I concur 
J. REII1PROUTY 
Administrative Judge 
Vice Chairman 
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. 58634, Appeal of Parsons 
Evergreene LLC, rendered in conformance with the Board's Charter. 
Dated: 
7 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals