CROSS-MOTIONS FOR SUMMARY RELIEF DENIED:  November 7, 2008 
CBCA 708 
CH2M HILL HANFORD GROUP, INC., 
Appellant, 
v.
 DEPARTMENT OF ENERGY, 
Respondent. 
Kenneth B. Weckstein and Shlomo D. Katz of Brown Rudnick  LLP, Washington, 
DC, and Stanley J. Bensussen of CH2M HILL Hanford Group, Inc., Richland, WA, counsel 
for Appellant. 
Joseph B. Schroeder and Holly Kay Botes, Office of River Protection, Department 
of Energy, Richland, WA, counsel for Respondent. 
Before Board Judges POLLACK , McCANN, and DRUMMOND. 
McCANN, Board Judge. 
CH2M HILL Hanford Group, Inc.(CH2M HILL) claims entitlement to an additional 
fee on this cost-reimbursement contract.  It claims that the Department of Energy (DOE) 
changed the contract when it directed CH2M HILL to perform additional non-fee-bearing 
work (additional safety related work).  Allegedly, this change substantially reduced the 
amount of fee-bearing work CH2M HILL could perform, and was entitled to perform, under 
the contract.  The parties have cross-moved for summary relief. 

  
 
       
 
 
         
 
         
 
   
     
     
  
     
          
2 CBCA 708 
Background 
CH2M HILL is the prime contractor to the Department of Energy (DOE), Office of 
River Protection (ORP), under contract no. DE-AC27-99RL14047.  Appellant’s Statement 
of Uncontested Facts (AUF) 1. Under the contract CH2M HILL is responsible for managing 
and executing the contract projects, operations, and other activities as described in section 
C.3 of the contract.  AUF 3.  The contract involves cleanup of waste contained in tanks at 
DOE’s Hanford Site in Washington State.  AUF 4. 
The original mission of the Hanford Site related to the production of weapons-grade 
nuclear material.  The production of weapons material generated both solid and liquid 
radioactive waste which was stored in 177 large (50,000 to 1,000,000 gallon) capacity 
underground single-shell and double-shell tanks.  The waste in these tanks must be retrieved, 
treated, and disposed of in a permanent waste repository. AUF 5. The material in these 
tanks has the potential to generate vapors that are not radiological, but contain ammonia and 
various volatile organic compounds.  AUF 6.  Vapors can escape from the tanks through 
normal venting and leaks.  The escaped vapors can cause strong odors and, in sufficient 
concentration, could be harmful to human health.  AUF 8.  
CH2M HILL is one of a succession of contractors that, under contracts with DOE, 
have had certain responsibilities for managing the Hanford Site Tank Farm.  Westinghouse 
Hanford Company (Westinghouse) was the tank farm contractor from 1986 until September 
1996.  In 1996, Fluor Hanford, Inc. assumed management of the Project Hanford 
Management Contract. Its subcontractor, Lockheed Martin Hanford Corporation (LMHC), 
had responsibility for the tank farm. AUF 17. LMHC became the tank farm prime contractor 
in 1998.  LMHC and DOE entered into contract no. DE-AC06-99RL14047 on September 30, 
1999.  AUF 18.  CH2M HILL purchased LMHC in December 1999.  AUF 19.  Modification 
M026 changed the contract number to DE-AC27-99RS14047.  DOE extended the contract 
period of performance through September 30, 2008.  AUF 20-21. 
On or about July 10, 1996, Westinghouse issued a report entitled “Tank Waste 
Rededication System Resolution of Potentially Hazardous Vapor Issues.” That report is 
commonly referred to as the “Hewitt Report.” AUF 27.  DOE placed a copy of the Hewitt 
Report in ORP’s Reading Room.  AUF 28. 
The executive summary of the Hewitt Report summarizes its findings, in part, as 
follows: 
After four years, sufficient information has been collected to evaluate the 
effectiveness of the strategy and the resulting control measures.  The 

 
 
 
 
  
   
 
    
      
        
   
3 CBCA 708 
conclusion is that the issues associated with protecting employees from 
overexposure to vapors during tank farm work are defined and controlled. 
Employee exposure incidents have virtually ceased due to the implementation 
of controls around potential vapor release points and as a result of better 
communications regarding vapor orders and risks.  Additional studies are not 
needed to verify these conditions. . . . 
It is concluded that tank farm worker health and safety considerations caused 
by the inhalation of potentially hazardous vapors have been resolved. 
AUF 35.  The Hewitt Report was the primary document that formed the technical basis for 
CH2M HILL’s industrial hygiene strategy, including decisions about whether to monitor for 
certain chemicals or require the use of supplied air.  AUF 37.  (“Supplied air” is like scuba 
gear.)  LHMC’s Health and Safety Plan (HASP) did not require the full-time use of supplied 
air when working in the tank farms.  AUF 38. 
The Contract 
The contract is a performance-based, cost-reimbursement contract with incentives. 
Complaint ¶ 1; Respondent’s Statement of Uncontested Facts (RUF) 14. CH2M HILL earns 
fees by completing specified incentified work set forth in the contract.  Complaint ¶ 31; RUF 
15.  Section B.3 of the contract, entitled Estimated Cost and Fee, sets forth the estimated 
budget authority for each fiscal year (FY) from FY 2001 through FY 2006 and the fee.  The 
total fee pool established for FYs 2003 through 2006 was $72 million. AUF 42.  Section 
C.2(a)(2) of the contract required the contractor to: 
Complete and maintain an integrated life-cycle baseline which reflects:  (a) 
technical scope of work specified in this Contract, (b) project/schedules with 
critical paths identified, and (c) a cost profile based on a resource-loaded 
schedule. . . . The baseline shall be the basis of budget development, input to 
risk analysis, and prioritization of work. 
Supplemental Appeal File, Exhibit 8 at CHG0809. 
Section C.3(a) of the contract stated, in part: 
The River Protection Project (RPP) scope of this Contract encompasses 
activities identified in the Tank Farm Contract River Protection Project 
Baseline (hereafter “Tank Farm Contract River Protection Project Baseline” 

     
 
 
    
 
  
 
     
          
  
 
4 CBCA 708 
or “Baseline”) as amended by approved Baseline Change Requests (BCRs) 
needed to: (1) safely store, operate and interim stabilize tank waste within an 
approved authorization basis for such operations applying appropriate life 
cycle asset management; (2) retrieve and dispose waste from and interim close 
single shell tanks consistent with the TPA [Tri-Party Agreement] and other 
applicable Federal or State laws, regulations; and retrieve and dispose waste 
from double shell tanks, including completion of upgrades and waste retrieval 
and transfer systems; (3) construct, operate, and maintain facilities necessary 
for storage/disposal of immobilized waste whether onsite or offsite, including 
balance of plant construction; (4) stabilize facilities and preparation of tank 
closure plans for SSTs [single-shell tanks] as contemplated in the TPA; (5) 
execute supporting project management responsibilities including strategic 
analysis, baseline management, contracting functions, compliance, finance and 
administration, and (6) perform decommissioning and decontamination to 
support improved long term operational efficiencies, as set forth in the 
following sections: . . . . 
Supplemental Appeal File, Exhibit 8 at CHG0818. 
Section C.2(d)(2)(i) of the contract required the contractor to: 
Take necessary actions to prevent serious injuries/illnesses and/or fatalities and 
prevent radiological or chemical exposures to worker and environmental 
releases in excess of established limits; . . . . 
Supplemental Appeal File, Exhibit 8 at CHG0815. 
CH2M HILL was required by DOE Order 440.1A to protect workers from exposure 
to the lesser of the OSHA Permissible Exposure Limits or the Threshold Limit Values 
specified by the American Conference of Government Industrial Hygienists. AUF 71. 
Section C.3(a)(1)(i) of the contract indicated: 
Contractor shall provide an adequate, comprehensive, and reliable safety basis 
for the management and storage of waste managed by Contractor under the 
scope of this contract. This will be accomplished by developing, operating to 
[sic] and maintaining an integrated Authorization Basis (AB), and by resolving 
outstanding safety issues and unreviewed safety questions to ensure safe 
storage and retrieval of waste. 
Supplemental Appeal File, Exhibit 8 at CHG0818. 

       
 
         
   
 
  
 
      
  
  
   
 
 
 
5 CBCA 708 
Vapors Issue 
In early 2002 and continuing into 2003, CH2M HILL tank farm workers voiced 
concerns over the risks of vapor exposure. Employees exposed to vapors and odors reported 
experiencing temporary physical effects, primarily headaches and nausea, which they 
attributed to the exposure. AUF 78. In 2002 and 2003, CH2M HILL did not require 
supplied air for routine tank farm activities.  The baseline prior to March 2004 did not 
schedule or include costs for full-time use of supplied air when performing routine work in 
the tank farms.  AUF 83.  
CH2M HILL’s executive summary of the March 2004 ORP monthly report states: 
As part of the response to vapor issues in tank farms, CH2M HILL’s 
management announced that, effective March 25, 2004 and until further 
notice, tank farm work would be performed with respirators. 
Respondent’s Exhibits to Cross-Motion For Summary Judgment Dismissal, Exhibit l0. 
On March 27, 2004, CH2M HILL’s president and general manager issued a 
memorandum to all CH2M HILL employees and subcontractors which states, in part: 
On Thursday [March 25, 2008], the Vice Presidents of Waste Feed Operations 
and Closure projects made the decision to require the use of respirators for all 
work within tank farm boundaries.  I fully support their actions. . . . 
. . . . 
There are two primary reasons for this action now.  First, as you know, on 
Thursday there were three additional situations where members of our 
workforce were concerned enough about the odors they encountered that they 
requested and received medical evaluations.  The odors experienced by our 
employees did not result in detectable levels of chemicals by monitoring 
instruments at the job site.  All three employees were released back to work 
without restrictions.  The fact that the events occurred at all cause [sic] us 
concern.  We need to ensure that our processes are at least adequate to provide 
all employees the assurance and confidence necessary to perform their duties 
without hesitation or anxiety.  Second, our client agreed with our decision. 
Additionally, they told us to complete the extensive reviews and assessments 
currently underway and review the conclusions and recommendations with 
them before resuming routine activities without respirators. 

       
 
 
  
        
6 CBCA 708 
Respondent’s Exhibits to Cross-Motion For Summary Judgment Dismissal, Exhibit 9. 
On March 26, 2004, ORP’s manager, Mr. Schepens, issued a letter to CH2M HILL 
entitled “DIRECTION ON TANK FARM WORK.”  In that letter Mr. Schepens wrote: 
Before performing work in the tank farms without respiratory protection, I am 
directing that CH2M HILL: 
•	 Re-evaluate the technical basis for monitoring organic and non-organic 
tank vapors; 
•	 Re-evaluate the adequacy of the monitoring equipment and the 
procedures directing its use; 
•	 Re-evaluate engineered features that have the potential to reduce or 
eliminate exposures; 
•	 Re-evaluate the adequacy of tank farm worker personal monitoring for 
tank vapors; 
•	 Increase its industrial hygiene monitoring of work activities; and 
•	 Evaluate expanded use of personal protective equipment. 
Before performing work in the tank farms without respiratory protection, 
please review the results of these actions with me. 
AUF 115. 
During February and March 2004, DOE’s Office of Independent Oversight and 
Performance Assurance (OA) investigated worker complaints at Hanford, including those 
relating to vapors.  AUF 108.  OA issued a report in April 2004 entitled “Investigation of 
Worker Vapor Exposure and Occupational Medicine Program Allegations at the Hanford 
Site” (OA Report) which identified perceived weaknesses in CH2M HILL’s industrial 
hygiene program.  AUF 110.  Among the findings in the report were the following: 
Finding # C-1:  CH2M HILL tank vapor characterization is not sufficient to 
support industrial hygiene exposure assessment and respiratory protection 
programs. 
Finding # C-2: Compliance with OSHA and DOE exposure limits for 
chemical vapors cannot be sufficiently demonstrated due to weaknesses in the 
CH2M HILL Exposure assessment program. 

  
    
    
     
     
    
    
  
  
   
   
  
 
     
      
       
     
  
        
   
7 CBCA 708 
Finding # C-3: Chemical vapor exposure data obtained by CH2M HILL 
through the use of field instrumentation, particularly direct-reading instruments 
is in some cases unreliable and may not accurately reflect exposures of 
workers to some chemical vapors being released from the tanks. 
Appeal File, Exhibit 18, at DOE/ORP at 000306. By letter of June 9, 2004, DOE directed 
CH2M HILL to prepare a corrective action plan (CAP) in response to the OA Report.  AUF 
121.   By letter of July 28, 2004, CH2M HILL submitted its CAP.  Supplemental Appeal File, 
Exhibit 3. 
Discussion 
Summary relief is appropriate only if no material facts are in dispute and the moving 
party is entitled to judgment as a matter of law.  Mingus Constructors, Inc. v. United States , 
812 F.2d 1387, 1390 (Fed Cir. 1987).  The burden is on the moving party to establish “that 
there are no genuine issues of material fact and that it is entitled to judgment as a matter of 
law.”  Kokosing Construction Co ., EBCA 439-2-90, 91-1 BCA ¶ 23,508, at 117,869 (1990). 
A material fact is a fact which will affect the outcome of the case.  Anderson v. Liberty 
Lobby, Inc ., 477 U.S. 242, 248 (1986).  Evidence sufficient to establish the existence of a 
genuine dispute of a material fact need not be admissible at trial.  Celotex Corp. v. Catrett , 
477 U.S. 317, 322, 324 (1986).  The evidence presented, including all inferences, is 
construed in favor of the party opposing summary relief.  Automated Services, Inc ., EBCA 
386-3-87, et al., 87-3 BCA ¶ 20,157, at 102,027.  Significant doubts are to be resolved in 
favor of the non-moving party.  Golden West Refining Co. , EBCA C-9208134, et al., 94-3 
BCA ¶ 27,184, at 135,468.  Contract interpretation is a question of law, P.J. Maffei Building 
Wrecking Corp. v. United States , 732 F.2d 913, 916 (Fed. Cir. 1984), which may, therefore, 
be resolved by summary relief if the criteria for summary relief are present. 
The parties disagree on a number of key issues and the surrounding facts. The parties 
disagree on the work that was required under the contract and the baseline.  They also 
disagree on the work that was fee-bearing and the work that was non-fee-bearing, if, in fact, 
any work was non-fee-bearing.  CH2M HILL alleges that the Government changed the 
contract when it required CH2M HILL to perform additional non-fee-bearing work.  CH2M 
HILL alleges that this reduced the amount fee-bearing work it could perform, entitling it to 
an additional fee. CH2M HILL alleges that it is entitled to $7.235 million in compensation 
for lost fees.  The Government disagrees.  It contends that it did not change the contract or 
the baseline, and did not increase or decrease the fee-bearing and non-fee-bearing work. 
Furthermore, it contends that all work under the contract is fee-bearing work.  

        
 
 
 
 
  
      
 
 
    
  
      
 
      
  
     
     
 
  
 
        
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There is disagreement between the parties pertaining to the nature and effect of the 
contract baseline. It is clear that the contract baseline was submitted by CH2M HILL, as was 
required by the contract.  It is unclear, however, just how this baseline was created, and 
whether it was negotiated or approved, if, indeed, it was.  CH2M HILL alleges that the 
baseline constitutes a binding modification to the contract defining the work to be 
accomplished.  The Government, on the other hand, contends that it is just a deliverable 
under the contract created in accordance with the statement of work, and used to measure 
contract performance.  It contends that the baseline is a planning tool and not a contractually 
binding document. 
The precise meaning and effect of the baseline in this case is not apparent or obvious 
from a perusal of the documents in the record.  In fact, it appears that only parts of the entire 
baseline have been put into the record.  For the Board to correctly interpret the intent, 
purpose, and effect of the baseline, the facts surrounding its creation and its approval, if there 
was an approval, must be presented, and possibly the entire baseline must be reviewed. 
Material facts regarding the representations made, and the understandings of the parties 
regarding the contract, the baseline, and how the fee is earned are in dispute and summary 
relief under such circumstances would not be appropriate. 
In addition, CH2M HILL is contending that at the time of contract award the parties 
understood and agreed upon the extent of the safety precautions that were needed to perform 
the contract.  CH2M HILL contends that the Hewitt Report was the primary document that 
formed the basis for CH2M HILL’s industrial hygiene strategy.  This strategy included 
decisions about monitoring for certain chemicals, the use of respiratory protection, and the 
use of supplied air.  CH2M HILL contends that the Government provided this document to 
CH2M HILL and understood and agreed that CH2M HILL would rely on it in forming 
CH2M HILL’s industrial hygiene strategy.  The Government, on the other hand, disputes 
this. It contends that there was nothing in the statement of work or anywhere in the contract 
that referred to the Hewitt Report.  It contends that CH2M HILL was required to investigate 
the premises, perform whatever tests were necessary, and formulate a proper industrial 
hygiene strategy.  It also contends that CH2M HILL’s industrial hygiene program was not 
in compliance with contract requirements and applicable regulations. The significance of 
this difference of opinion may bear directly upon the contract baseline.  If CH2M HILL 
improperly relied on the Hewitt Report and improperly formulated the industrial hygiene 
strategy, then the contract baseline may have been improperly formulated.  The material facts 
surrounding this issue are not clear and certainly are not agreed upon.  
Furthermore, CH2M HILL seems to take the position that conditions regarding vapors 
at the site would remain exactly the same during the course of the contract.  It contends that 
it was only required to follow the safety procedures set forth in its industrial hygiene strategy, 

 
   
   
   
    
  
 
     
   
    
  
    
 
      
  
  
 
     
9 CBCA 708 
which only addressed the conditions present at the time the Hewitt Report was issued in 
1996.  The Government strongly disagrees.  The facts surrounding this issue are unclear and 
certainly not agreed upon.  Accordingly, summary relief would not be appropriate. 
CH2M HILL also contends that the Government changed the contract when it directed 
CH2M HILL to re-evaluate various aspects of its tank monitoring program, to not work in 
the tank farms without respiratory protection until the re-evaluation was completed, and to 
prepare a corrective action plan.  CH2M HILL contends that none of this was necessary as 
its safety program was perfectly adequate. The Government, on the other hand, contends that 
its direction was proper and in accordance with the contract under the circumstances, which 
included recent employee complaints of the smell of toxic vapors.  The material facts 
surrounding whether there was sufficient evidence of the existence of harmful vapors to 
warrant such direction by the Government and whether such a direction was in accordance 
with the contract, or was a change to the contract, are in dispute. Thus summary relief would 
be inappropriate. Further, there is a factual dispute as to whether the Government directed 
the use of contained air for safety reasons. 
There are other material facts in dispute in this case.  Among them are facts relating 
to: 
a.  Whether DOE’s direction to re-evaluate safety measures, use respiratory protection, 
and prepare a corrective action plan required CH2M HILL to protect workers from exposure 
to a more stringent standard of vapor detection and control than was required by the contract 
or whether such a direction imposed on CH2M HILL the requirement to meet the subjective 
standard of someone simply being able to smell vapors; 
b. Whether the Government breached its duty to cooperate with CH2M HILL when 
it rejected CH2M HILL’s baseline change requests and certified claim;  
c.  Whether the parties were mutually mistaken at the time of contract award about the 
adequacy of the existing vapor protections; 
d.  Whether the fee pool was properly created and allocated under the contract; and 
e.  Whether CH2M HILL’s claim for fees not earned is barred by accord and 
satisfaction. 
In considering motions for summary relief, we cannot try issues of fact, i.e., weigh 
evidence or judge credibility, but only determine whether there are issues to be tried. 
Anderson, 477 U.S. at 249. Here there are genuine disputes about the meaning and effect of 

       
     
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10 CBCA 708 
the baseline, the safety requirements of the contract, and many other things.  On the facts 
presented in the cross-motions, and drawing all reasonable inferences in favor of the non­
moving party, we conclude that neither appellant nor respondent is entitled to judgment as 
a matter of law. 
Decision 
Appellant’s motion for summary relief and respondent’s cross-motion for summary 
relief are DENIED . 
R. ANTHONY McCANN 
Board Judge 
We concur: 
HOWARD A. POLLACK JEROME M. DRUMMOND 
Board Judge Board Judge