The Civilian Board of Contract Appeals (CBCA) is again telling the U.S. Energy Department to pay a former cleanup contractor at the Idaho National Laboratory more than $33 million in fees.
In an Aug. 8 ruling, a three-judge panel for the CBCA said the federal agency’s reasoning for failing to pay CH2M-WG Idaho (CWI) the full amount is little more than warmed-over arguments the board already rejected in a 2017 decision involving the fee payments.
The contractor asserted the Energy Department is seeking “to upend the decision” in the prior case “that was not appealed and is final and binding on DOE, by rearguing the very same facts and law that it presented.”
The contract appeals board concurred. “The Board denies DOE’s motion for reconsideration because it does nothing more than advance the same facts and arguments that were already addressed.”
The Energy Department issued the Idaho cleanup contract to CWI on March 23, 2005. The core work included treatment and disposal of radioactive waste, management of spent nuclear fuel, and various environmental remediation projects.
The agreed-upon cost for the work was $2.38 billion, with potential fees of $175 million (7.36% of cost). The contract was originally scheduled to close on Sept. 30, 2012, but various extensions kept CWI on the job through March 2016. Fluor Idaho took over the work in 2016 under a $1.6 billion, five-year contract.
In 2009, the Barack Obama administration’s American Reinvestment and Recovery Act (ARRA) made an additional $423 million available for environmental-related work at the Idaho National Laboratory by 2012. This included areas specifically spelled out in the cleanup contract, as well as certain “non-target” activities, often related to operation or repairs, which CWI would do under mutual agreement with the Department of Energy.
In May 2014, an Energy Department contracting officer disallowed select fees and the vendor promptly filed its case with the appeals board. Some of the disputed fees stemmed from the ARRA work.
The Civilian Board of Contract Appeals originally said the Energy Department must pay CWI more than $27.3 million in incentive fees and almost $6 million in safety fees, also known as safe units.
But the DOE contracting officer subsequently held that $4.79 million of the $27.3 million would represent a double fee payment, saying the company was wrongly shifting some general and administrative costs into the non-target side of the ledger. The same contracting officer said the department could withhold the entire amount for the safety units due to documentation issues.
But the appeals board held the Energy Department failed to prove this point in the 2017 proceeding, or in the subsequent motion for reconsideration.
The burden rests with the Department of Energy to prove the 2017 decision had substantial errors that justify reconsideration, the CBCA said. The appeal process is not meant to retry a case or introduce arguments that could have been made before.
The decision denying the motion for reconsideration was drafted by Board Judge Patricia Sheridan. Judges Jeri Kaylene Summers and Jonathan Zischkau concurred.
The Energy Department can appeal the decision to the U.S. Court of Federal Claims. The agency declined comment on the case.
