CBCA 5395

DENIED: March 23, 2017 CBCA 5395 CB&I AREVA MOX SERVICES, LLC, Appellant, v. DEPARTMENT OF ENERGY, Respondent. Noah M. Hicks II and James A. Ouellette Jr. of CB&I AREVA MOX Services, LLC, Aiken, SC, counsel for Appellant. Matthew Butsick, Office of the General Counsel, National Nuclear Security Administration, Department of Energy, Washington, DC; and Mary-Ellen Noone, Office of the General Counsel, National Nuclear Security Administration, Department of Energy, Aiken, SC, counsel for Respondent. Before Board Judges DANIELS (Chairman), KULLBERG, and SULLIVAN. DANIELS, Board Judge. CB&I AREVA MOX Services, LLC (MOX Services) claims that it is entitled to a fee of .25% more than the Department of Energy’s (DOE’s) National Nuclear Security Administration (NNSA) paid, during a specified period of time, for work performed under a contract between the two parties. The parties have filed cross-motions for summary relief as to the dispute. We grant DOE’s motion, deny MOX Services’s motion, and thereby deny the appeal. CBCA 5395 2 Background On March 22, 1999, DOE awarded to a predecessor in interest to MOX Services a contract for mixed oxide (MOX) fuel fabrication and reactor irradiation services. The contract contemplated that the services would include the design and planning of a domestic MOX fuel fabrication facility [MFFF] and could also include, if options were exercised, acquisition of materials, construction, installation, and cold start-up (option 1); hot start-up and MFFF operations (option 2); and deactivation of the MFFF (option 3).1 DOE had the unilateral right to exercise the options. The contract was awarded on a cost-plus-fixed-fee basis. In 2008, after option 1 had been exercised, the parties entered into discussions regarding the early exercise of a limited portion of the option 2 scope of work: the hot start- up of the MFFF. NNSA designated the hot start-up scope of work as Early Option II or “EO2.” In February 2008, the agency authorized MOX Services to begin incurring costs for development of an EO2 proposal. On May 20, 2008, NNSA and MOX Services bilaterally executed contract modification A124 (mod A124), definitizing option 1. The modification includes, in clause H.29, “Advance Understandings,” the following language in paragraph (g): DOE has determined an early exercise of the hot start-up portion of Option II is in the best interest of the project to ensure that all aspects of the MFFF are operational before acceptance of the MFFF. DOE commits to immediate review [of] all of the issues associated with an early exercise of the hot start-up and begin the process of placing hot start-up on contract. Part of these activities will include the market research to determine whether or not the Contractor is the only company that is capable of performing these activities. If DOE determines that the Contractor is the only company capable of performing the additional work scope, then both parties agree to enter into good faith negotiations to add the additional work in accordance with H.6, 1 These four phases are described in a paragraph of DOE’s statement of uncontested facts. MOX Services objects that “[t]o the extent [this paragraph] is a general characterization of the options contained with the contract, the words and generalizations used to describe the contract options are not, in and of themselves, relevant facts that may be substituted for the text of the actual contract.” Nevertheless, MOX Services includes a virtually identical description of the option phases in its own statement of uncontested facts. Thus, the parties agree that the description is accurate. CBCA 5395 3 Options To Extend Services. It is agreed that the following parameters shall apply to the early exercise of hot start-up: 1) In recognition of the increased performance risk, an increased fee rate of 1 percentage point shall be applied to the negotiated value of Option 1, plus any fee bearing changes executed prior to definitization of the Hot-start scope, thus increasing the total fee to 7%. On November 25, 2008, a DOE contracting officer wrote to MOX Services, “As negotiated in Option 1, the Government has agreed to partially exercise Option 2, MFFF Operations.