Parsons Evergreene, LLC

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Parsons Evergreene, LLC ) ASBCA No. 58634
)
Under Contract No. FA8903-04-D-8703 )
APPEARANCES FOR THE APPELLANT: Douglas S. Oles, Esq.
James F. Nagle, Esq.
Adam K. Lasky, Esq.
Howard W. Roth III, Esq.
Oles Morrison Rinker & Baker, LLP
Seattle, WA
APPEARANCES FOR THE GOVERNMENT: 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.
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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.
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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.
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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
Administ tive Judge
Armed Services Board
of Contract Appeals
I concur I concur
LEFORD J. REII1PROUTY
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
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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:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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