Case: 19-1931    Document: 58     Page: 1   Filed: 08/07/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

            PARSONS EVERGREENE, LLC,
                     Appellant

                             v.

          SECRETARY OF THE AIR FORCE,
                   Cross-Appellant
               ______________________

                   2019-1931, 2019-1975
                  ______________________

    Appeals from the Armed Services Board of Contract
 Appeals in Nos. 58634, 61784, Administrative Judge J.
 Reid Prouty, Administrative Judge Craig S. Clarke, Ad-
 ministrative Judge Richard Shackleford.
                 ______________________

                 Decided: August 7, 2020
                 ______________________

     CAMERON HAMRICK, Miles & Stockbridge PC, Washing-
 ton, DC, argued for appellant. Also represented by
 RAYMOND MONROE.

     ROBERT R. KIEPURA, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, argued for cross-appellant. Also represented
 by ETHAN P. DAVIS, STEVEN JOHN GILLINGHAM, ROBERT
 EDWARD KIRSCHMAN, JR.; LORI R. SHAPIRO, Office of Gen-
 eral Counsel, United States General Services Administra-
 tion, Washington, DC.
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 2    PARSONS EVERGREENE, LLC   v. SECRETARY OF THE AIR FORCE



                   ______________________

     Before DYK, CLEVENGER, and HUGHES, Circuit Judges.
 DYK, Circuit Judge.
     Parsons Evergreene, LLC (“Parsons”) appeals from two
 decisions by the Armed Services Board of Contract Appeals
 (“Board”). The Board granted in part and denied in part
 Parsons’ claims for equitable adjustment on a contract for
 the design and construction of two buildings at McGuire
 Air Force Base. The government cross-appeals, contending
 that the Board lacked jurisdiction; that we lack jurisdiction
 in part; and, on the merits, that the Board erroneously re-
 quired it to disprove the reasonableness of Parsons’
 claimed costs. We affirm in part, reverse in part, dismiss
 in part, and remand.
                         BACKGROUND
      On December 12, 2003, the government awarded Par-
 sons a $2.1 billion indefinite-delivery, indefinite-quantity
 contract (“Contract”) for planning and construction work. 1
 The work was to be described in subsequent task orders.
 On July 13, 2005, the government issued a $34 million task
 order (“Task Order”) under the Contract to complete an ex-
 isting, concept-level design and construct two facilities,
 known as the Temporary Lodging Facility and the Visiting
 Quarters, at the McGuire Air Force Base in New Jersey.
 The Temporary Lodging Facility was to be a 50-unit tran-
 sitional housing facility for use by military and civilian per-
 sonnel. The Visiting Quarters was to be a 175-unit facility
 similar to a hotel with individual rooms and private bath-
 rooms. Design and construction were completed, and the



      1  The contract was originally awarded to Parsons In-
 frastructure and Technology Group Inc. The contract was
 transferred to Parsons via novation on September 7, 2004.
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 PARSONS EVERGREENE, LLC   v. SECRETARY OF THE AIR FORCE    3



 U.S. Department of the Air Force (“Air Force”) accepted the
 completed facilities for “beneficial use” on September 11,
 2008. J.A. 96.
      On June 29, 2012, Parsons submitted a claim to the Air
 Force seeking approximately $34 million in additional
 costs that Parsons allegedly incurred in the design and con-
 struction process. The contracting officer issued a final de-
 cision on March 27, 2013 almost entirely denying Parsons’
 claim, which Parsons appealed to the Board under the Con-
 tract Disputes Act (“CDA”). In separate decisions in
 ASBCA Nos. 58634 and 61784, the Board denied in part
 and sustained in part Parsons’ claim, awarding Parsons
 about $10.5 million plus interest.
     Parsons appeals. The government cross-appeals, con-
 tending that the Board lacked jurisdiction; that we lack ju-
 risdiction in ASBCA No. 61784; and that on the merits the
 Board erroneously required it to disprove the reasonable-
 ness of Parsons’ claimed costs. We review the Board’s legal
 conclusions de novo and its factfinding for substantial evi-
 dence. 41 U.S.C. § 7107(b).
                         DISCUSSION
                               I
     At the outset, we must resolve a jurisdictional chal-
 lenge. The government contends that the Board lacked
 CDA jurisdiction over this case. We disagree.
     The CDA provides a process for dispute resolution of
 certain contract claims against the government. As rele-
 vant here, the CDA applies to contracts “made by an exec-
 utive agency” for “the procurement of services” or “the
 procurement of construction . . . of real property.” 41
 U.S.C. § 7102(a)(1), (3). Claims by contractors are first
 submitted to a contracting officer, who issues a decision on
 the claim. 41 U.S.C. § 7103(a)(1), (d). The contractor may
 appeal the contracting officer’s decision to a Board of
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 4   PARSONS EVERGREENE, LLC   v. SECRETARY OF THE AIR FORCE



 Contract Appeals. Id. § 7104(a). The Board’s decision may,
 in turn, be appealed to this court. Id. § 7107(a)(1).
                              A
     The government first contends that the Board lacked
 jurisdiction under the so-called “NAFI doctrine.” The
 Board concluded that it had jurisdiction because the NAFI
 doctrine had been abrogated by this court’s decision in
 Slattery v. United States, 635 F.3d 1298 (Fed. Cir. 2011) (en
 banc).
     Beginning in the late 1960s, our predecessor court held
 in a line of cases that neither the Court of Federal Claims
 (“Claims Court”) nor the Boards of Contract Appeals had
 jurisdiction over contract disputes with nonappropriated
 fund instrumentalities (“NAFIs”). Kyer v. United States,
 369 F.2d 714 (Ct. Cl. 1966). “A ‘nonappropriated fund in-
 strumentality’ is one which does not receive its monies by
 congressional appropriation.” United States v. Hopkins,
 427 U.S. 123, 125 n.2 (1976). As relevant to Board juris-
 diction, these cases construed the phrase “executive
 agency” in the CDA to exclude contracts made by NAFIs.
 See, e.g., Furash & Co. v. United States, 252 F.3d 1336,
 1343 (Fed. Cir. 2001); Strand Hunt Const., Inc. v. West, 111
 F.3d 142 (Fed. Cir. 1997) (unpublished table decision). As
 to Claims Court jurisdiction, these cases construe the
 Tucker Act’s authorization of suits against “the United
 States” to exclude NAFIs. See 28 U.S.C. § 1491(a)(1); Kyer,
 369 F.2d at 719 .
     In 2011, in our en banc decision in Slattery, we held
 that the Claims Court had Tucker Act jurisdiction over a
 dispute between a contractor and the Federal Deposit In-
 surance Corporation (“FIDC”), even though the FDIC was
 a NAFI. 635 F.3d at 1310, 1314. In so holding, we abro-
 gated the NAFI doctrine for Tucker Act claims. Id. at 1321.
 We have not yet decided whether Slattery also abrogated
 the NAFI doctrine for CDA disputes appealed to a Board of
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 PARSONS EVERGREENE, LLC   v. SECRETARY OF THE AIR FORCE   5



 Contract Appeals. We expressly reserved that the question
 in one later case. See Minesen Co. v. McHugh, 671 F.3d
 1332, 1337 (Fed. Cir. 2012).
     The government asserts that the Board lacked CDA ju-
 risdiction under the NAFI doctrine. It points out that the
 Board found that the Task Order was made by the Air
 Force Services Agency (“AFSVA”), a NAFI. We need not
 decide the current status of the NAFI doctrine as applied
 to the Boards of Contract Appeals because, even under pre-
 Slattery precedent, the dispute here would not be barred.
 Contrary to the Board’s finding, the contract is not a NAFI
 contract.
     The contracting documents show that the Task Order
 was made by the Air Force and not by the AFSVA. The
 Contract on which the Task Order is based was “Issued By”
 the “Air Force Materiel Command” (“AFMC”), a part of the
 Air Force that the government admits is not a NAFI, and
 was to be “Administered By” the “Department of the Air
 Force.” J.A. 733. The request for proposal (“RFP”) that led
 to the Task Order uses “Department of the Air Force” let-
 terhead and states that “[t]he USAF intends to issue a com-
 petitive [Task Order].” J.A. 4823 (emphasis added). The
 Task Order, like the Contract, was “Issued By” the “Air
 Force Materiel Command” and “Administered By” the “De-
 partment of The Air Force.” J.A. 798. The contracting of-
 ficer who signed the Task Order was from the AFMC. The
 government has not identified any mention of the AFSVA
 or any other NAFI in either the Contract or the Task Order.
     The contractual terms further support the conclusion
 that this was not a NAFI contract. Air Force Manual 64-
 302, which “provid[es] guidance and procedures for Air
 Force NAF contracting,” states that “when FAR clauses are
 used in NAFI contracts, the contracting officer will delete
 references to ‘Government’ and substitute ‘NAFI.’” Depart-
 ment of the Air Force, Manual 64-302, Nonappropriated
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 6   PARSONS EVERGREENE, LLC     v. SECRETARY OF THE AIR FORCE



 Fund (NAF) Contracting Procedures, at 1, 15 (Nov. 3,
 2000), http://afpubs.hq.af.mil. Yet the Contract includes
 many FAR clauses referring to “Government” and no refer-
 ences to the contracting entity’s being a “NAFI.”
      The government contends that the Task Order is a
 NAFI contract because the Air Force did not and could not
 have lawfully funded it with appropriations. The govern-
 ment points out that the funds used for the Task Order
 were “non-appropriated funds.” Cross-Appellant’s Reply 4
 (citing J.A. 804). The government contends that “a military
 department must make a specific request to Congress for
 funding for a specified building project, and Congress must
 grant funding authority for that project, in order for a mil-
 itary department to be allowed to expend appropriated
 funds for a military construction project.” Id. at 11. 2


     2     For this proposition, the government relies on 10
 U.S.C. § 2802(a), which provides that “the Secretaries of
 the military departments may carry out such military con-
 struction projects . . . as are authorized by law.” See also
 10 U.S.C. § 114(a) (“No funds may be appropriated . . . to
 or for the use of any armed force or obligated or expended
 for . . . military construction . . . unless funds therefor have
 been specifically authorized by law.”); G. James Herrera,
 Cong. Rsch. Serv., R44710, Military Construction: Author-
 ities, Process, and Frequently Asked Questions 2 (2019)
 (“In practical application of [sections 2802 and 114], Con-
 gress has required project-by-project authorization and ap-
 propriation for military construction projects.”).
      The government also cites to the 2005 National De-
 fense Authorization Act, Pub. L. 108–375, 118 Stat. 1811,
 2108–11 (2004) (“Authorization Act”). The Authorization
 Act listed and provided appropriations for construction at
 dozens of Air Force bases, but did not authorize construc-
 tion at McGuire Air Force Base, where the Visiting
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 PARSONS EVERGREENE, LLC   v. SECRETARY OF THE AIR FORCE   7



 Congress did not provide the Air Force with the required
 authorization here, the government asserts, so the Task
 Order must have been a NAFI contract.
     Even assuming arguendo that the Air Force could not
 have used appropriated funds for the Task Order, the gov-
 ernment’s argument fails. The government relies on Hop-
 kins and Furash to suggest that a contract paid from
 nonappropriated funds is a NAFI contract. Despite some
 language in prior cases suggesting that the NAFI exclusion
 turns on the “activity” at issue, the exclusion did not de-
 pend on whether the contract itself was to be funded with
 appropriations. See United States v. Gen. Elec., 727 F.2d
 1567, 1570 (Fed. Cir. 1984). Instead, the nature of the con-
 tracting entity governed: namely, whether the contract was
 “made by” a NAFI. And an agency is only a NAFI where
 there is “a clear expression by Congress that it intended to
 separate the agency from general federal revenues.”
 Furash, 252 F.3d at 1339.
     Thus, our predecessor held that a contract made by the
 Agency for International Development (“AID”) did not im-
 plicate the NAFI doctrine—even though the program im-
 plemented by the contract was to be run without
 appropriated funds—because AID (as a whole) received ap-
 propriated funds. McCarthy v. United States, 670 F.2d 996,
 1002 (Ct. Cl. 1982). The court explained that “the nonap-
 propriated funds exclusion is limited to instances when, by
 law, appropriated funds not only are not used to fund the
 agency, but could not be.” Id.; see also L’Enfant Plaza
 Props., Inc. v. United States, 668 F.2d 1211, 1212 (Ct. Cl.
 1982) (explaining that, to implicate the NAFI doctrine,
 “there must be a clear expression by Congress that the
 agency was to be separated from general federal



 Quarters and Temporary Lodging Facility were built. See
 Authorization Act §§ 2301–02.
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 8   PARSONS EVERGREENE, LLC   v. SECRETARY OF THE AIR FORCE



 revenues”). Here, there is no question that the Air Force
 “has authority to use appropriated funds if and to the ex-
 tent appropriated, and that is sufficient to avoid the non-
 appropriated funds exclusion.” See McCarthy, 670 F.2d at
 1002. 3
    The Task Order was made by the Air Force, and not the
 AFSVA. The NAFI doctrine, even if it survives under the
 CDA, is inapplicable.
                              B
      The government argues alternatively that the CDA is
 limited to contracts for “the procurement of services” or
 “the procurement of construction . . . of real property,” and
 the contract here does not qualify. Cross-Appellant’s Br.
 29–30 (citing 41 U.S.C. § 7102(a)). The contract here was
 for the design and construction of two buildings, the Tem-
 porary Lodging Facility and the Visiting Quarters. The
 Task Order falls neatly within the CDA’s “procurement”
 language.
     The government nevertheless contends that this was
 not a “procurement,” relying principally on 31 U.S.C.
 § 6303. Section 6303 provides that:
     An executive agency shall use a procurement con-
     tract . . . when—(1) the principal purpose of the in-
     strument is to acquire . . . property or services for
     the direct benefit or use of the United States Gov-
     ernment; or (2) the agency decides in a specific




     3   Our decision in General Electric supports this con-
 clusion. There, as here, the fact that the governmental
 counterparty to the contract was the Air Force was suffi-
 cient to place the dispute outside the NAFI doctrine. 727
 F.2d at 1570.
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 PARSONS EVERGREENE, LLC   v. SECRETARY OF THE AIR FORCE    9



     instance that the use of a procurement contract is
     appropriate.
 The government asserts that the buildings at issue here
 were built for the purpose of “support[ing] the morale, wel-
 fare, and recreation of the service member[s] or other
 guests,” which the government contends is “a distinct pur-
 pose from that of the Air Force, whose primary function is
 national defense.” Cross-Appellant’s Br. 36. Thus, to the
 government, the Task Order is not “for the direct benefit or
 use of the United States Government,” under the meaning
 of 31 U.S.C. § 6303.
      The government’s argument lacks merit. Section 6303
 is not part of a statutory definition of CDA jurisdiction. It
 is in a separate title of the United States Code. It does not
 control the interpretation of the term “procurement” as
 used in the CDA. In any event, the government’s position
 that a project supporting the morale and welfare of service-
 members is not for the “direct benefit” of the government is
 at odds with the Supreme Court’s holding in Standard Oil
 Co. of California v. Johnson, 316 U.S. 481 (1942), which
 held that military post exchanges were “essential for the
 performance of governmental functions.” Id. at 485. The
 government’s position is also inconsistent with the Secre-
 tary of the Air Force’s responsibility for “the morale and
 welfare of [Air Force] personnel.” 10 U.S.C. § 9013(b)(9).
 Finally, section 6303 does not require that procurement
 contracts be for the “direct benefit or use” of the govern-
 ment. It states that agencies “shall use” procurement con-
 tracts in certain circumstances, but does not otherwise
 foreclose their use. Section 6303 contemplates procure-
 ment contracts even when not for the government’s direct
 benefit so long as “the agency decides” that a procurement
 contract “is appropriate.” The Task Order is a “procure-
 ment” contract under the CDA.
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 10 PARSONS EVERGREENE, LLC v. SECRETARY OF THE AIR FORCE



     The government’s reliance on G.E. Boggs & Assocs.,
 Inc. v. Roskens, 969 F.2d 1023 (Fed. Cir. 1992), and New
 Era Construction v. United States, 890 F.2d 1152 (Fed Cir.
 1989), is similarly unavailing. In each of those cases, we
 held the contractual dispute to be not subject to the CDA.
 But G.E. Boggs and New Era, unlike this case, involved
 contracts with entities—the Syrian Arab Republic and the
 Sac and Fox Tribe of Missouri, respectively—that were not
 executive agencies. G.E. Boggs, 969 F.2d at 1024; New Era,
 890 F.2d at 1153.
     We conclude that the Board had CDA jurisdiction.
                               II
      We next consider the timeliness of Parsons’ appeal
 from ASBCA No. 61784 as it relates to our own jurisdiction.
 Parsons contends that the Board erred in denying recovery
 for costs Parsons allegedly incurred as a result of delays
 caused by a payroll review by the Air Force to determine
 Parson’s compliance with the Davis-Bacon Act. The Act re-
 quires federal construction contractors to pay laborers and
 mechanics at least the prevailing wage for their work. 40
 U.S.C. § 3142(a). Under FAR § 22.406–8, the government
 was authorized to ensure Davis-Bacon Act compliance by
 “[c]onduct[ing] labor standards investigations when avail-
 able information indicates such action is warranted.” Par-
 sons asserts that it is entitled to compensation because the
 Air Force unreasonably delayed initiating and conducting
 such a review. We do not reach the merits of Parsons’ pay-
 roll claim because we lack jurisdiction to consider it.
      The procedural history of Parsons’ payroll claim is as
 follows. On June 29, 2012, Parsons submitted the claims
 at issue here to the contracting officer, including its payroll
 claim. The contracting officer denied recovery and, on
 April 22, 2013, Parsons appealed to the Board. Parsons’
 appeal was initially docketed as ASBCA No. 58634. Liti-
 gation continued and, on September 5, 2018, the Board
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 PARSONS EVERGREENE, LLC    v. SECRETARY OF THE AIR FORCE 11



 issued its decisions on the merits of Parsons’ claims, includ-
 ing the payroll claim. For all claims except the payroll
 claim, the Board issued its decision in the original case,
 ASBCA No. 58634. For the payroll claim, “[f]or reasons of
 judicial efficiency and clarity,” the Board issued a separate
 opinion under a new appeal number, ASBCA No. 61784.
 J.A. 1 n.1. Parsons received the Board’s decisions on Sep-
 tember 10, 2018. On October 10, 2018, Parsons moved for
 reconsideration of the Board’s decision on several claims in
 ASBCA No. 58634. Parsons did not seek reconsideration of
 the payroll claim in ASBCA No. 61784. The Board issued
 its decision denying Parsons’ reconsideration request in
 ASBCA No. 58634 on January 23, 2019, which Parsons re-
 ceived on January 28, 2019. Parsons appealed the Board’s
 decisions on its claims, including the payroll claim, to this
 court on May 23, 2019.
      Parsons’ appeal of its payroll claim was not timely filed.
 The statute governing appeals from the Board to this court
 provides that “a contractor may appeal the decision [of an
 agency board] within 120 days from the date the contractor
 receives a copy of the decision.” 41 U.S.C. § 7107(a)(1)(A).
 The 120-day appeal period runs from contractor’s receipt of
 the Board’s decision on reconsideration, if reconsideration
 is sought. Although Parsons sought reconsideration of the
 Board’s decision in ASBCA No. 58634 (and its appeal in
 that case is timely), Parsons did not seek reconsideration
 in ASBCA No. 61784. Parsons’ appeal in ASBCA No. 61784
 was filed 255 days after it received a copy of the final deci-
 sion in that action. The 120-day deadline was not tolled by
 the request for reconsideration in ASBCA No. 58634.
 Therefore, we lack jurisdiction to review the Board’s deci-
 sion in ASBCA No. 61784. See Placeway Const. Corp. v.
 United States, 713 F.2d 726, 728 (Fed. Cir. 1983) (dismiss-
 ing for lack of jurisdiction an appeal from the Board filed
 after the 120-day deadline).
     We dismiss Parsons’ appeal as to its payroll claim.
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 12 PARSONS EVERGREENE, LLC v. SECRETARY OF THE AIR FORCE



                              III
     We turn to the merits of Parsons’ appeal in ASBCA No.
 58634. Parsons argues that the Board erred in denying re-
 covery on Parsons’ claim that it was not required to apply
 wall coatings from Duroplex-Triarch Industries and Plex-
 ture-Triarch Industries (collectively, “Triarch”) to the Vis-
 iting Quarters. Triarch is not “paint” in the conventional
 sense, though it is a paint-like substance.
     The Board rejected Parsons’ theory that it was required
 to apply Sherwin-Williams instead of Triarch, holding that
 Parsons was required to apply Triarch. The Board found
 dispositive the terms of Request for Proposal No. FA8903-
 05-R-8234 (“RFP”), on which the Task Order was based.
 The RFP “required ‘Duroplex – Triarch Industries’ and
 ‘Plexture – Triarch Industries’ for interior paints.”
 J.A. 132 (quoting RFP § 09911). Parsons does not now
 challenge the determination that it was required to apply
 Triarch.
      The Board, however, introduced a new theory of liabil-
 ity, finding the government liable for Parsons’ costs in ap-
 plying Sherwin Williams paint due to the Air Force’s
 “indecision on what wall coating it wanted, causing [Par-
 sons] to start applying Sherwin Williams paint in the [Vis-
 iting Quarters].” J.A. 132. But because Parsons did not
 argue this theory before the Board and did not quantify its
 cost in using Sherwin Williams, the Board denied Parsons
 recovery. On appeal, Parsons argues that the Board erred
 in denying Parsons recovery under the Board’s theory. We
 disagree.
     A required element of a claim for equitable adjustment
 is proof of damages. The contractor has the “obligation . . .
 to provide a basis for making a reasonably correct approx-
 imation of the damages” for which the government is liable.
 Wunderlich Contracting Co. v. United States, 351 F.2d 956,
 969 (Ct. Cl. 1965). It was Parsons’ burden to prove its
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 PARSONS EVERGREENE, LLC   v. SECRETARY OF THE AIR FORCE 13



 damages, i.e., the costs incurred in applying Sherwin Wil-
 liams paint. The Board did not err in concluding that Par-
 sons did not meet its burden.
      Parsons contends that the record at the time of the
 Board decision included sufficient evidence to calculate
 Parsons’ cost in using Sherwin Williams. But Parsons
 failed to include an alternative argument concerning the
 Air Force’s erroneous direction to apply Sherwin Williams
 in the Visiting Quarters, and did not identify its costs in
 doing so. Nothing in Southwest Electronics & Manufactur-
 ing Corporation v. United States, 655 F.2d 1078 (Ct. Cl.
 1981), or any other authority cited by Parsons suggests
 that the Board was required to scour the tens of thousands
 of pages of record evidence in this case, without any guid-
 ance, to determine the amount of an award. 4
     Parsons also asserts that the Board erred by failing “to
 seek the parties’ input as to whether the record supported
 recovery under the Board’s new theory prior to deciding the
 issue.” Appellant’s Br. 34. “The [Administrative Procedure
 Act] does not require the Board to alert a [claimant] that it
 may find the asserted theory,” or any other theory that the



     4    In Southwest Electronics, the Board overturned the
 contracting officer’s award, on the basis that the contractor
 did not establish the exact amount of its damages. 655
 F.2d at 1088. In reinstating the contracting officer’s
 award, our predecessor reasoned that the contractor “[did]
 supply some evidence of the damages for which [the gov-
 ernment] is liable, and the contracting officer’s award is a
 reasonable approximation of the damages which [the con-
 tractor] has proven.” Id. Here, by contrast, there is noth-
 ing to indicate that the contracting officer awarded Parsons
 the cost of using Sherwin Williams, nor did Parsons pro-
 vide the Board with evidence from which “a reasonable ap-
 proximation” of that cost could be determined. See id.
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 14 PARSONS EVERGREENE, LLC v. SECRETARY OF THE AIR FORCE



 claimant could have argued, “lacking in evidence before it
 actually does so in [an opinion]. Nor is a [claimant] entitled
 to a pre-decision opportunity to disagree with the Board’s
 assessment of its arguments.” Fanduel, Inc. v. Interactive
 Games LLC, No. 2019-1393, 2020 WL 4342681 (Fed. Cir.
 July 29, 2020). While Parsons directed the Board to this
 evidence on reconsideration, this was simply too late. See
 Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008)
 (a motion for reconsideration “may not be used to . . . pre-
 sent evidence that could have been raised prior to the entry
 of judgment”).
                              IV
     We next turn to Parsons’ contention that the Board
 erred in denying Parsons recovery for the added cost of us-
 ing the “Baker design” rather than the “structural-brick”
 design for the Visiting Quarters.
     The Board held that under the contract Parsons was
 entitled to use a structural-brick design to construct the
 Visiting Quarters. The Board also found that the govern-
 ment improperly denied Parsons the use of the structural
 brick design, and instead required Parsons to use what was
 called the “Baker design.” The structural-brick design
 used a single wall made of closure face brick. The Baker
 design used two walls: a first wall of concrete masonry
 units and a second wall of brick veneer. After the award,
 the government directed Parsons to use the Baker design
 and to modify the original Baker design to address prob-
 lems of progressive collapse, 5 a design choice that made
 construction more expensive.



     5  Progressive collapse is a phenomenon that occurs
 when certain structural members of a building are dam-
 aged and weight is transferred to other members that
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 PARSONS EVERGREENE, LLC   v. SECRETARY OF THE AIR FORCE 15



     Parsons sought an equitable adjustment for the in-
 creased design and construction costs of the Baker design
 over that of the structural-brick design. The Board
 awarded Parsons a lesser amount for added construction
 costs: “the additional cost . . . required to make the
 Baker . . . design resist progressive collapse.” J.A. 120–21.
 The Board awarded Parsons $722,176 in design costs.
     The Board erred in not also awarding the full amount
 of Parsons’ additional construction costs for using the
 Baker design over the structural-brick design. The amount
 of an award for an equitable adjustment is “the difference
 between the reasonable cost of performing without the
 change . . . and the reasonable cost of performing with the
 change.” Morrison Knudsen Corp. v. Fireman's Fund Ins.
 Co., 175 F.3d 1221, 1244 (10th Cir. 1999) (quoting Celesco
 Indus., Inc., ASBCA No. 22251, 79–1 B.C.A. (CCH) ¶
 13,604, at 66,683 (1978)). Here, the “cost of performing
 without the change” is the cost of construction using struc-
 tural brick. The “cost of performing with the change” is the
 actual cost of construction (i.e., the cost of using the modi-
 fied double-wall design). Parsons was entitled to the dif-
 ference between these two amounts.
      We reverse the Board’s denial of recovery to Parsons
 for its claim to construction costs. On remand, the Board
 must award Parsons the difference between its cost in con-
 structing the Baker design compared to the cost Parsons
 would have incurred in constructing the structural brick
 design.
                               V
     We turn finally to the government’s cross-appeal chal-
 lenging the Board’s reasonable-costs analysis.



 cannot handle the additional weight. As a result, the build-
 ing collapses.
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 16 PARSONS EVERGREENE, LLC v. SECRETARY OF THE AIR FORCE



     The government contends that the Board erroneously
 shifted the burden as to reasonableness to the government,
 when the burden should have been on Parsons to prove rea-
 sonableness. The government points to Judge Clarke’s
 opinion for the Board, which concluded that Parsons’ costs
 were reasonable in part because the Air Force’s did not pro-
 vide “specific, individualized challenges to each of Parsons’
 claimed costs.” Cross-Appellant’s Br. 38. The government
 contends that this improperly saddled the government
 with the burden of proof. But Administrative Judge
 Clarke’s analysis on this issue was expressly disclaimed by
 the other two panel judges in a concurring opinion written
 by Administrative Judge Shackleford and joined by Admin-
 istrative Judge Prouty. Thus, Judge Shackleford’s opinion,
 not Judge Clarke’s opinion, is the Board’s controlling opin-
 ion on the reasonable-costs issue.
     The government does not contend that Judge Shackle-
 ford’s opinion commits the same purported burden-shifting
 error as Judge Clarke’s opinion. Instead, the government
 asserts that Judge Shackleford’s opinion is “so devoid of
 any analysis that it cannot be plausibly reviewed for legal
 sufficiency on appeal.” Cross-Appellant’s Br. 44. We disa-
 gree. Judge Shackleford clearly stated the governing law
 and its application to this case. The government has not
 shown error in the Board’s reasonable-costs analysis.
     The government’s challenge also fails because it has ar-
 ticulated no prejudice resulting from of the Board’s pur-
 ported error. “[T]he party that ‘seeks to have a judgment
 set aside because of an erroneous ruling carries the burden
 of showing that prejudice resulted.’” Shinseki v. Sanders,
 556 U.S. 396, 409 (2009) (quoting Palmer v. Hoffman, 318
 U.S. 109, 116 (1943)); see also SolarWorld Ams., Inc v.
 United States, No. 2019-1591, 2020 WL 3443470, at *4–*5
 (Fed. Cir. June 24, 2020) (rejecting an appellant’s challenge
 to a purportedly unlawful agency action because the appel-
 lant did not establish that the action was prejudicial).
Case: 19-1931    Document: 58    Page: 17    Filed: 08/07/2020




 PARSONS EVERGREENE, LLC   v. SECRETARY OF THE AIR FORCE 17



 Here, the government has not explained which, if any, of
 the costs awarded to Parsons would have been affected by
 the Board’s purported error or how they would have been
 affected. We conclude that the Board’s purported errors, if
 any, were harmless.
    We affirm the Board’s conclusion that Parsons’ costs
 awarded by the Board were reasonable.
                        CONCLUSION
     We conclude that the Board had CDA jurisdiction over
 ASBCA No. 58634. We dismiss Parsons’ appeal as to its
 claim for costs associated with its payroll review (ASBCA
 No. 61784) as untimely. We affirm the Board’s decision de-
 clining to award Parsons its costs in using Triarch wall
 coatings. We reverse the Board’s decision declining to
 award Parsons its full costs in constructing the Baker de-
 sign over the costs of the structural-brick design. We af-
 firm the Board’s conclusion that Parsons’ claimed costs
 were reasonable. We remand for further proceedings con-
 sistent with this opinion.
      AFFIRMED IN PART, REVERSED IN PART,
       DISMISSED IN PART, AND REMANDED
                           COSTS
     No costs.
