CBCA 6477

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON AUGUST 23, 2022 DENIED: August 17, 2022 CBCA 6477 MISSION SUPPORT ALLIANCE, LLC, Appellant, v. DEPARTMENT OF ENERGY, Respondent. Marisa M. Bavand and Allison L. Murphy of Groff Murphy PLLC, Seattle, WA, counsel for Appellant. Paul R. Davis and Andrew J. Unsicker, Office of Chief Counsel, Department of Energy, Richland, WA, counsel for Respondent. Before Board Judges GOODMAN, DRUMMOND, and CHADWICK. CHADWICK, Board Judge. This appeal involves the final 2.2% of what was once a larger cost-reimbursement dispute. The appellant, Mission Support Alliance, LLC (MSA), challenges disallowances by the respondent, Department of Energy (DOE), of a total of $333,895 paid by MSA to subcontractors in connection with MSA’s work at the Hanford (Nuclear) Site near Hanford, Washington. We reject MSA’s argument that the claim is partially barred by the statute of limitations, and we deny the appeal, thereby sustaining DOE’s claim for $333,895. CBCA 6477 2 Background The Board previously addressed this appeal in Mission Support Alliance, LLC v. Department of Energy, CBCA 6477, 22-1 BCA ¶ 38,033 (2021), and Mission Support Alliance, LLC v. Department of Energy, CBCA 6477, 20-1 BCA ¶ 37,657. We repeat facts from earlier decisions to the extent necessary to explain the current decision. MSA provided various services to DOE at the Hanford Site under a cost-type contract from 2009 to 2020. Costs of work performed by three subcontractors are at issue. (1) Federal Engineers & Constructors, Inc. (FE&C) provided on-site technical and administrative support to MSA under a labor-hour subcontract. DOE contends that FE&C invoices paid by MSA totaling $169,405 lack adequate supporting documentation. (2) EnergX, LLC (EnergX)1 taught training courses for MSA under a subcontract with fixed unit prices. DOE contends that a total of $61,160 invoiced by EnergX and paid by MSA lacks adequate documentation. (3) DGR Grant Construction, Inc. (DGR Grant) provided miscellaneous construction services under fixed-price subcontracts. DOE challenges a total of $103,330 paid to DGR Grant as not justified under the terms of the subcontracts or as passed through by lower-tier subcontractors without proper documentation. We discuss the record support for the respective costs as pertinent below. MSA incurred the disputed costs in fiscal years 2009 through 2011. MSA’s own internal audit division (or a subcontracted accounting firm) performed the relevant audits of costs paid to FE&C, EnergX, and DGR Grant starting in approximately 2017,2 and MSA presented the audit findings to DOE in December 2018. On February 19, 2019, “a DOE contracting officer issued a decision asserting a claim against MSA” based on recent audit results for “$15,419,830 in allegedly ‘unallowable subcontract costs,’” including costs charged by other subcontractors. See Mission Support Alliance, 22-1 BCA at 184,710. MSA appealed to the Board in May 2019. Over time, the parties reduced the amount in dispute 1 Some documents in the appeal file suggest that this subcontractor was named “Energx,” as DOE sometimes calls it. 2 We previously described the 2016 change in law that led to MSA’s taking over the audit function from the Defense Contract Audit Agency. See Mission Support Alliance, 20-1 BCA at 182,834. CBCA 6477 3 from $15.4 million to $333,895. We deem the remainder of the claim withdrawn. Only a claim for the latter amount remains before us to be resolved. The parties submitted the case for decision in mid-2022. MSA presented evidence at a one-day hearing in May 2022. DOE made a hybrid election under Board Rule 18(b) (48 CFR 6101.18(b) (2021)) and submitted its case on the record under Rule 19 but appeared at the hearing to cross-examine witnesses. The case is fully briefed. Discussion Statute of Limitations MSA argues that DOE did not assert the claim regarding the payments to FE&C or EnergX, and regarding three of the DGR Grant invoices, within the six years allowed by 41 U.S.C. § 7103(a)(4)(A) (2018).