CBCA 6147

SUMMARY JUDGMENT GRANTED: May 20, 2019 CBCA 6147 CH2M-WG IDAHO, LLC, Appellant, v. DEPARTMENT OF ENERGY, Respondent. Mark J. Meagher, Phillip R. Seckman, and K. Tyler Thomas of Dentons US LLP, Denver, CO, counsel for Appellant. William C. Harvey, Margaret B. Hinman, and Eva M. Aumen, Office of Chief Counsel, Idaho Operations Office, Department of Energy, Idaho Falls, ID, counsel for Respondent. Before Board Judges SOMERS (Chair), SHERIDAN, and ZISCHKAU. SHERIDAN, Board Judge. At issue in this appeal are certain sums that the Department of Energy (DOE) seeks to withhold from CH2M-WG IDAHO (CWI). These sums, $27,359,380 in incentive fees and $5,985,811 for safe units provided under an employee incentive plan, were awarded by this Board in CH2M-WG IDAHO, LLC v. Department of Energy, CBCA 3876, 17-1 BCA CBCA 6147 2 ¶ 36,849.1 We note that DOE neither requested Board reconsideration nor appealed our decision in CBCA 3876 to the United States Court of Appeals for the Federal Circuit (Federal Circuit). Consequently, the Board’s decision became final. Rule 31(c) (48 CFR 6101.31(c) (2008); 41 U.S.C. § 7107(b) (2012). On March 22, 2018, a DOE contracting officer issued a final decision (March 2018 final decision) pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012), informing CWI that DOE would only be paying a portion of the amounts the Board had awarded in CBCA 3876. The contracting officer determined that DOE was entitled to withhold payment of $4,790,066 of the $27,359,380 awarded by the Board to avoid what she referred to as a “double fee payment.”2 The final decision also claimed a right to withhold all of the $5,985,811 the Board awarded to CWI for safe units, positing that prior to paying the awarded safe unit funds, DOE was entitled to receive a plan for disbursement to former employees who held safe unit shares as of September 30, 2012. DOE informed CWI that it intended to perform an audit to ensure that all disbursements were followed in accordance with the approved employee incentive compensation plan and that upon a successful audit, DOE would reimburse CWI its share of safe units, together with appropriate interest. CWI appealed the March 2018 final decision, seeking payment of the full award in CBCA 3876, and the matter was docketed as CBCA 6147. CWI now moves for summary judgment arguing that DOE’s alleged double fee payment claim in the new appeal is barred by res judicata because it is based on the same transactional facts that formed the bases of the CBCA 3876 decision. Appellant also seeks summary judgment on DOE’s attempt to withhold payment of the safe units award addressed in the CBCA 3876 decision, asserting that res judicata and collateral estoppel apply barring relitigation of that issue. DOE argues that res judicata does not apply to the instant appeal because the $4,790,066 at issue was specifically excluded from CWI’s claim litigated in CBCA 3876, and CWI’s claim for payment of safe units in CBCA 3876 did not include or address the non- monetary contract interpretation that DOE currently asserts in its March 2018 final decision. 1 Familiarity with the decision in CBCA 3876 is assumed and necessary for full understanding of our decision here. 2 Throughout the contract and subsequent litigation, the parties have referred to this issue in various ways, including, “the G& A allocation issue,” “the double fee payment issue,” “the double payment issue,” “the B.5 G&A allocation issue,” and “the G&A issue.” In CBCA 3876 we generally referred to the issue as “the B.5 allocation issue.” In this decision we refer to the issue as “the double fee payment” issue, because that is how the DOE contracting officer referred to it in her final decision. CBCA 6147 3 DOE also posits that the affirmative claim currently before the Board in CBCA 6147 arises out of additional and distinct facts not previously litigated. We grant appellant’s motion for summary judgment for the reasons set forth below. Background The contract giving rise to this matter is referred to as the ICP [Idaho Cleanup Project] contract, and involved the clean-up of nuclear sites located in and around Idaho.