CBCA 4985

DENIED: November 8, 2016 CBCA 4985 MISSION SUPPORT ALLIANCE, LLC, Appellant, v. DEPARTMENT OF ENERGY, Respondent. Kenneth B. Weckstein and Shlomo D. Katz of Brown Rudnick LLP, Washington, DC; and Stanley J. Bensussen, General Counsel of Mission Support Alliance, LLC, Richland, WA, counsel for Appellant. Paul R. Davis, Office of Chief Counsel, Department of Energy, Richland, WA, counsel for Respondent. Before Board Judges SOMERS, WALTERS, and LESTER. SOMERS, Board Judge. This matter comes before the Board on cross-motions for summary relief. The issue is whether certain costs are allowable under the terms of the contract. For the reasons explained below, we conclude that the costs are not allowable. Accordingly, we deny appellant’s motion for summary relief, grant the Government’s motion for summary relief, and deny the appeal. CBCA 4985 2 Background Beginning in 1940 with the Manhattan Project, Hanford, Washington (the Hanford Site) played a pivotal role in the nation’s defense through the production of nuclear materials. With the signing of the Hanford Federal Facility Agreement and Consent Order, the Department of Energy (DOE) is engaged in the world’s largest environmental cleanup project at the Hanford Site. In support of this project, in April 2009, DOE and Mission Support Alliance, LLC (MSA) entered into a performance-based cost-plus-award-fee contract, contract no. DE-AC06-09RL14728 (the Mission Support Contract, MSC, or contract), in the amount of $3,059,369,580.1 Under this contract, MSA provides mission support services, including furnishing personnel, equipment, material, supplies, and services. MSA does “all things necessary for, or incident to, providing its best efforts to manage, operate, and deliver mission support services.” The statement of work provides that MSA will accomplish the following: The Contractor shall directly provide time-phased ready-to-serve capability to all Hanford Site environmental cleanup missions, including protective forces, physical security systems, information security, personnel security, nuclear materials control and accountability (MC&A), cyber-security, program management, Hazardous Materials Management and Emergency Response (HAMMER) facility operations, site-specific safety training, fire and emergency response services, emergency operations, maintenance of a selected set of Hanford Site safety standards, radiological assistance program (RAP) operations, environmental regulatory management, and public safety and resource protection. These services are integral to the Hanford Site environmental cleanup mission. The contract included various clauses from the Federal Acquisition Regulation (FAR) and Department of Energy Acquisition Regulation (DEAR). The regulations relevant to this appeal are identified below. 1 MSA is a joint venture of Lockheed Martin Integrated Technology, LLC; Jacobs Engineering Group Inc.; and Centerra Group, LLC (formerly Wackenhut Services, Inc.). DOE initially awarded the contract to MSA on September 3, 2008, following a competitive procurement under Federal Acquisition Regulation (FAR) part 15. Following resolution of a bid protest to the Government Accountability Office, on April 28, 2009, DOE awarded the contract to MSA. CBCA 4985 3 Relevant Contract Clauses FAR 52.216-7/DEAR 952.216-7, Allowable Cost and Payment (Dec 2002), Alternate 2 I, provided that “[t]he Government will make payments to the Contractor . . . in amounts determined to be allowable by the Contracting Officer in accordance with [FAR] subpart 31.2 in effect on the date of this contract and the terms of this contract.” Likewise, section H.24(j) of the contract required the contracting officer to “determine allowable costs in accordance with the [FAR] Subpart 31.2 and [DEAR] Part 931, Contract Cost Principles and Procedures in effect on the date of this Contract and other provisions of this Contract.” In turn, FAR subpart 31.2 defined the allowability and allocability3 of costs incurred in cost reimbursement contracts.