CBCA 6147-R

MOTION FOR RECONSIDERATION DENIED: August 8, 2019 CBCA 6147-R 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. Margaret B. Hinman, William C. Harvey, and Eva M. Auman, Office of Chief Counsel, Department of Energy, Idaho Falls, ID, counsel for Respondent. Before Board Judges SOMERS (Chair), SHERIDAN, and ZISCHKAU. SHERIDAN, Board Judge. Respondent, Department of Energy (DOE), has filed a motion asking us to reconsider our decision in CH2M-WG IDAHO, LLC v. Department of Energy, CBCA 6147, 19-1 BCA ¶ 37,339. In that decision we found that “DOE’s claims [in CBCA 6147 were] premised on precisely the same issues litigated and decided by the Board in CBCA 3876.” Id. at181,595; CH2M-WG IDAHO, LLC v. Department of Energy, CBCA 3876, 17-1 BCA ¶ 36,849. The Board concluded that the principles of res judicata barred proceeding on CBCA 6147 and dismissed the appeal. We deny DOE’s current motion because the motion for reconsideration makes precisely the same arguments that were made in CBCA 6147 which we considered and denied. CBCA 6147-R 2 Background At issue in this motion, as well as in CBCA 3876 and CBCA 6147, 1 are certain sums that DOE seeks to withhold from CH2M-WG IDAHO (CWI). These sums relate to incentive fee payments and payments for safe units provided under an employee incentive plan. The Board found the withholdings improper and ordered DOE to pay CWI $27,359,380 in incentive fees and $5,985,811 for safe units. See CH2M-WG IDAHO, LLC, 17-1 BCA at 179,572. We note that after we rendered our decision in in CBCA 3876, DOE neither requested Board reconsideration nor appealed the decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). Consequently, the Board’s decision became final. 41 U.S.C. § 7107(b) (2012); Rule 31(c) (48 CFR 6101.31(c) (2018). Sometime after the Board’s decision in CBCA 3876 became final, a DOE contracting officer issued another final decision pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. This final decision informed 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 to avoid what she referred to as a “double fee payment.”2 The contracting officer also claimed DOE’s 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. CWI appealed the final decision, seeking payment of the full award in CBCA 3876, and the matter was docketed as CBCA 6147. After concluding that DOE’s claims were premised on the same issues as those litigated and decided by the Board in CBCA 3876, the Board granted summary judgment in favor of CWI in CBCA 6147, again ordering DOE to pay CWI $27,359,380 for incentive fees and $5,985,811 for safe units, along with applicable CDA interest. 19-1 BCA at 181,595. More specifically, we concluded that the double fee payment argument advanced by DOE in CBCA 6147 mirrored the unpersuasive argument DOE made in the CBCA 3876 litigation. Id. We also found that DOE had made the same argument in 1 Familiarity with the decisions in CBCA 3876 and CBCA 6147 is assumed and necessary for a 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 CBCA 6147 we refered 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-R 3 CBCA 3876, that CWI had not properly disbursed safe unit payments and that “DOE was given a full and fair opportunity to present any evidence it had relating to the payment of safe units [in CBCA 3876].