DENIED: March 23, 2017
CBCA 5395
CB&I AREVA MOX SERVICES, LLC,
Appellant,
v.
DEPARTMENT OF ENERGY,
Respondent.
Noah M. Hicks II and James A. Ouellette Jr. of CB&I AREVA MOX Services, LLC,
Aiken, SC, counsel for Appellant.
Matthew Butsick, Office of the General Counsel, National Nuclear Security
Administration, Department of Energy, Washington, DC; and Mary-Ellen Noone, Office of
the General Counsel, National Nuclear Security Administration, Department of Energy,
Aiken, SC, counsel for Respondent.
Before Board Judges DANIELS (Chairman), KULLBERG, and SULLIVAN.
DANIELS, Board Judge.
CB&I AREVA MOX Services, LLC (MOX Services) claims that it is entitled to a fee
of .25% more than the Department of Energy’s (DOE’s) National Nuclear Security
Administration (NNSA) paid, during a specified period of time, for work performed under
a contract between the two parties.  The parties have filed cross-motions for summary relief
as to the dispute.   We grant DOE’s motion, deny MOX Services’s motion, and thereby deny
the appeal. 


CBCA 5395 2
Background
On March 22, 1999, DOE awarded to a predecessor in interest to MOX Services a
contract for mixed oxide (MOX) fuel fabrication and reactor irradiation services.  The
contract contemplated that the services would include the design and planning of a domestic
MOX fuel fabrication facility [MFFF] and could also include, if options were exercised,
acquisition of materials, construction, installation, and cold start-up (option 1); hot start-up
and MFFF operations (option 2); and deactivation of the MFFF (option 3).1  DOE had the
unilateral right to exercise the options.  The contract was awarded on a cost-plus-fixed-fee
basis.
In 2008, after option 1 had been exercised, the parties entered into discussions
regarding the early exercise of a limited portion of the option 2 scope of work: the hot start-
up of the MFFF.  NNSA designated the hot start-up scope of work as Early Option II or
“EO2.”  In February 2008, the agency authorized MOX Services to begin incurring costs for
development of an EO2 proposal.
On May 20, 2008, NNSA and MOX Services bilaterally executed contract
modification A124 (mod A124), definitizing option 1.  The modification includes, in clause
H.29, “Advance Understandings,” the following language in paragraph (g):
DOE has determined an early exercise of the hot start-up portion of Option II
is in the best interest of the project to ensure that all aspects of the MFFF are
operational before acceptance of the MFFF.  DOE commits to immediate
review [of] all of the issues associated with an early exercise of the hot start-up
and begin the process of placing hot start-up on contract.  Part of these
activities will include the market research to determine whether or not the
Contractor is the only company that is capable of performing these activities. 
If DOE determines that the Contractor is the only company capable of
performing the additional work scope, then both parties agree to enter into
good faith negotiations to add the additional work in accordance with H.6,
1 These four phases are described in a paragraph of DOE’s statement of
uncontested facts.  MOX Services objects that “[t]o the extent [this paragraph] is a general
characterization of the options contained with the contract, the words and generalizations
used to describe the contract options are not, in and of themselves, relevant facts that may
be substituted for the text of the actual contract.”  Nevertheless, MOX Services includes a
virtually identical description of the option phases in its own statement of uncontested facts. 
Thus, the parties agree that the description is accurate.  

CBCA 5395 3
Options To Extend Services.  It is agreed that the following parameters shall
apply to the early exercise of hot start-up:
1) In recognition of the increased performance risk, an increased fee rate
of 1 percentage point shall be applied to the negotiated value of
Option 1, plus any fee bearing changes executed prior to definitization
of the Hot-start scope, thus increasing the total fee to 7%.
On November 25, 2008, a DOE contracting officer wrote to MOX Services, “As
negotiated in Option 1, the Government has agreed to partially exercise Option 2, MFFF
Operations.  The portion of scope being exercised is entitled Early Option 2 (EO2). . . . 
Request you submit a proposal for the attached Scope of Work (SOW) by January 20, 2009.”
MOX Services submitted such a proposal on January 26, 2009.  From then until September
2011, the parties negotiated the terms for EO2.  During this time, DOE requested, and MOX
Services submitted, several revisions to the proposal.
While negotiations were continuing, on September 1, 2011, the parties bilaterally
executed contract modification 183 (mod 183).  “The purpose of this modification,” mod 183
stated, “is to increase the Option 1 fee amount. . . .  The fee will immediately increase to
6.75% with a subsequent increase of .25% occurring with the exercise of Early Option 2 for
a total increase in fee from 6% to 7%.”  The modification deleted clause H.29(g), as included
in mod A124, and replaced the portions of it quoted above with the following (with bolded
portions in the original):
DOE has determined an early exercise of the hot start-up portion of Option II
is in the best interest of the project to ensure that all aspects of the MFFF are
operational before acceptance of the MFFF.  It is agreed that the following
parameters shall apply to the early exercise of hot start-up:
1) In recognition of the increased performance risk, an increased fee rate
of 1 percentage point shall be applied to the negotiated value of Option 1, plus
any fee bearing changes executed prior to definitization of the Hot-start scope,
thus increasing the total fee to 7%.  Modification 183 incrementally
increased the fee percentage for Option 1 to 6.75% in recognition of
delays in exercising the Early Option 2 (EO2) scope.  The remaining .25%
recognizing a total fee rate of 7% will be added to Option 1 with the
exercise of EO2.
Negotiations regarding implementation of EO2 continued after the execution of mod
183.  By letter dated April 26, 2013, however, NNSA told MOX Services that “considering

CBCA 5395 4
the preliminary cost increases and current budget environment, NNSA is beginning to assess
alternative plutonium disposition strategies.  As a result, NNSA will slow down the MOX
project and activities supporting the current plutonium disposition strategy during the
assessment period.”  With specific reference to the matters discussed in previous paragraphs
of this decision, NNSA said:
NNSA does not intend to continue negotiation of the Early Option II
contractor modification proposal, or exercise any portion of Option II at this
time.  MOX Services need not maintain or otherwise update this proposal for
potential future negotiation.  NNSA recognizes that at the time it becomes
appropriate to add operations to the MOX Services contract, the Early Option
II proposal will either be updated as necessary, or a new proposal will be
requested.
By letter dated April 1, 2015, MOX Services wrote to NNSA:
It has been almost 24 months since receiving the direction [to cease
negotiations regarding EO2], and more than 6 years since submittal of the EO2
proposal.  Due to these inordinate delays that were not within MOX Services’
control, MOX Services respectfully requests that the fee percentage for the
subject contract be increased from 6.75% to 7.00%.
NNSA did not respond in writing.  By letter dated September 2, 2015, MOX Services
reiterated its request.  Again, NNSA did not respond.
By letter dated February 8, 2016, MOX Services “submit[ted] a certified claim for the
increase in previously paid fee from 6.75% to 7% along with an associated claim for payment
of Award Fee associated with the increase in fee.”  The claim was “for $6,358,811.00 in
additions to CLIN [contract line item number] 0007 and immediate payment of $702,048 in
additional FY13 [fiscal year 2013] Award Fee.”  MOX Services said, “This claim requests
relief arising under (i) Contract Clause H.29 Advance Understandings (increase in fee
percentage) and (ii) the Contract Disputes Act (payment of FY13 Award Fee).”  The
contractor explained:
Using the date of NNSA’s decision not to exercise EO2 (26 April 2013) as
determinative for when the fee should have been increased from 6.75% to 7%
means that the above fee adjustments would have been issued in FY13.  Had
that happened, the Award Fee pool for FY13 would have been $1,231,663.00
greater.  Because Award Fee for FY13 already was paid under the existing

CBCA 5395 5
contract at 57% of the Award Fee pool at that time, MOX Services is claiming
the sum certain of $702,048.00 ($1,231,663 X 0.57).
The contracting officer denied the claim by letter dated April 19, 2016, concluding
that “MOX Services is not entitled to an increased fee pool or immediate payment of award
fee.”  He maintained that EO2, “if added to the Contract, would have increased scheduling
risks due to the interdependent nature of the processes,” and that in 2008, “the parties agreed
that, should the Government accept the Contractor’s future EO2 proposal, the Contractor
would be compensated for this risk through a one-percent increase to Option 1’s available
fee structure of 6.00%.”  The contracting officer noted that the fee percentage for option 1
had been increased in mod 183 to 6.75%, with an additional .25% “added to Option 1 with
the exercise of EO2.”  He determined, “The Claim fails to identify why the express,
negotiated, bilaterally accepted conditions included in Modification 183 should be set aside.
. . .  As EO2 was never exercised, it would be illogical and unreasonable for the Government
to pay the Contractor for a performance risk that the Contractor never assumed.” 
Consequently, “any notion that the Contractor would be equitably entitled to additional fee
is baseless,” notwithstanding the contractor’s position that it was entitled “to the requested
0.25% fee increase [because] it ‘made a good faith effort’ to add more work to its Contract.”
MOX Services appealed this decision on July 7, 2016.
Discussion
Is MOX Services entitled to an additional fee of .25%, pursuant to clause H.29(g) of
the contract, as it maintained in the contractor’s certified claim?  Both parties believe that the
issue is amenable to resolution through motions for summary relief.  They both point to our
decision in Marine Metal, Inc. v. Department of Transportation, CBCA 4740, 16-1 BCA
¶ 36,386, as summarizing the rules applicable to such motions:
Summary relief is appropriate when the moving party is entitled to judgment
as a matter of law, based upon undisputed material facts.  The moving party
bears the burden of demonstrating the absence of genuine issues of material
fact and all justifiable inferences must be drawn in favor of the non-movant. 
A material fact is one that will affect the outcome of the case.  The party
opposing summary judgment must show an evidentiary conflict on the record;
mere denials or conclusory statements are not sufficient.
Id. at 177,365 (citations and quotations omitted).  We note additionally that “[w]hen, as here,
both parties have moved for summary relief, each party’s motion must be evaluated on its
own merits and all reasonable inferences must be resolved against the party whose motion

CBCA 5395 6
is under consideration.”  Charleston Marine Containers, Inc. v. General Services
Administration, CBCA 1834, 10-2 BCA ¶ 34,551, at 170,398  (citing First Commerce Corp.
v. United States, 335 F.3d 1373, 1379 (Fed. Cir. 2003)).
The parties also appreciate that contract interpretation – our task in this case – is
generally a legal question amenable to resolution on summary relief.  Marine Metal, 16-1
BCA at 177,365 (citing Varilease Technology Group, Inc. v. United States, 289 F.3d 795,
798 (Fed. Cir. 2002)).  We must make an objective reading of the contract’s language, giving
that language meaning that would be derived by a reasonably intelligent person acquainted
with the contemporaneous circumstances and viewing the conduct of the parties prior to the
dispute as especially strong evidence of the contract’s meaning.  Jane Mobley Associates,
Inc. v. General Services Administration, CBCA 2878, 16-1 BCA ¶ 36,285, at 176,954 (citing
Varilease, 289 F.3d at 799; Blinderman Construction Co. v. United States, 695 F.2d 552, 558
(Fed. Cir. 1982); Hol-Gar Manufacturing Corp. v. United States, 351 F.2d 972, 975 (Ct. Cl.
1965)).
How do these principles apply to this case?  DOE takes a simple, straightforward
approach to answering the question.  According to the agency, the language of clause H.29(g)
in mod 183 is “clear and unambiguous.”  The increase in the fee percentage “is conditioned
on the exercise of EO2.”  “Under Clause H.29, the only fact that affects the outcome of the
case is whether EO2 was exercised. . . . As EO2 was never exercised, Appellant is not
entitled to the 0.25% increased fee rate (nor its requested immediate payment of $702,048.00
of that increased fee).  Therefore, Respondent is entitled to judgment as a matter of law on
the matters raised in the Appeal.”
MOX Services offers several different theories in approaching an answer.  One is that
EO2 actually was exercised, notwithstanding DOE’s contention to the contrary.  This 
argument proceeds from two documents in the record – first, the contracting officer’s
statement in November 2008 that “[a]s negotiated in Option 1, the Government has agreed
to partially exercise Option 2,” and second, mod A124’s inclusion of a milestone schedule,
one of whose milestones is “Delivery of an acceptable ‘Hot Startup Plan’.  Acceptance is
DOE acceptance of plan.  (This deliverable marks the early exercise of a portion of Option
2 on MOX Services contract.)”  A February 24, 2010, letter from the federal project director
of the MFFF states, “[T]he review for Hot Start-Up Plan is complete and MOX Services has
completed the subject contract deliverable.”  The contractor asserts that it “accrued the right
to the entire payment of the additional percentage point upon meeting its deliverable,” and
that clause H.29 envisioned this, with “actual payment occurring with the definitization of
EO2.”

CBCA 5395 7
A second theory advanced by MOX Services is that “[a] one percent (1%) increase
in the fee was memorialized in MOD A124 as an incentive for MOX Services to negotiate
and submit an EO2 proposal.”   “The language of Clause H.29 clear[ly] and unambiguously
means that Appellant’s entitlement to the remaining 0.25% fee was conditioned only upon
its good faith negotiation of the terms of EO2, and the delivery of a proposal for the EO2
scope of work.”  Thus, “the only fact that affects the outcome of the case is whether the
Appellant complied with its duty to develop and present a proposal for the exercise of EO2,
and whether the Government complied with its obligation to negotiate the terms of EO2 and
definitize them into the Contract.”  “Because EO2 was never definitized, and the Respondent
imposed an indefinite delay, Appellant is entitled to the remaining 0.25% fee (and immediate
payment of $702,048.00 of that remaining fee), as well as a recalculation of all other
allocable fees that apply to work done by Appellant in its performance of Option 1 of the
Contract.”
A variant of this theory is that clause H.29 “clearly indicate[s] the mutual
understanding of the Parties that Respondent was committed to exercise EO2, or at the very
least to provide Appellant with a contract modification to add the remaining 0.25% fee to
Option 1 of the contract in the event of any unreasonable or ‘indefinite’ delay by the
Government in exercising EO2.”  “But for the Government’s unilateral decision to cease
negotiating the changes it desired for the EO2 proposal, it is clear and uncontested that the
Appellant had realized increased risk, and had substantially complied with its required
deliverable to earn[] the remaining fee on Option 1.”  
Another thought offered by MOX Services is, “Despite the fact that the Government
had not yet ‘exercised’ EO2, Respondent awarded a portion of the 1% fee via administrative
modification in MOD 183.  Because the Government has already recognized in the
negotiation and text of MOD 183 that applying an increase in fee was an appropriate remedy
for the Government’s unjustified delay in definitizing EO2, it should be estopped from
asserting to the Board that the same remedy would not be authorized or appropriate in this
instance.”
Finally, apparently on the theory that mod 183’s terms are not self-evident, MOX
Services urges the Board to allow discovery, which “would reveal the actual intent and
mutual understanding of the parties as to the meaning of [mod 183’s] terms, conditions, and
clauses.”
Although MOX Services’ arguments are more numerous and more complex than
DOE’s, the agency’s position is clearly correct.  Clause H.29(g) appears in two contract
modifications which are relevant to this dispute.  In mod A124, the clause provided that upon
“early exercise of hot start-up,” the fee would be increased from 6% to 7%.  Mod 183’s

CBCA 5395 8
clause H.29(g), which replaced mod A124’s version of the clause, stated explicitly that an
increase in the fee percentage from 6.75% to 7% would occur “with the exercise of EO2.” 
Although MOX Services now contends that “Respondent’s assertion that EO2 was not
exercised is a legal conclusion, not an uncontested fact,” numerous statements by the
contractor acknowledge that EO2 was never exercised.  In bilaterally-executed mod 183, the
contractor agreed that the fee percentage would not increase beyond 6.75% until the option
was exercised.   “In the realm of Government contracts, absent mistake or duress not present
here, few things signify knowing and intentional conduct more than does the execution of
a bilateral modification.”  Jane Mobley, 16-1 at 176,955 (citing Eslin Co., ASBCA 34029,
87-2 BCA ¶ 19,854, at 100,454). After execution of mod 183, negotiations regarding
implementation of EO2 continued for more than two years, with the contractor never
objecting, “Hey! Why are we still talking?  The option has already been exercised!”  Two
years after negotiations ended, the contractor requested an increase not on the ground that
the option had been exercised, but due to delays in the negotiations.  The claim itself
references the agency’s “decision not to exercise EO2.”  No reasonable person could
conclude, based on these uncontested facts, that EO2 was ever executed.  Consequently,
pursuant to clause H.29(g), there is no justification for increasing the fee percentage.
The contractor’s theories are unconvincing.  As noted, the evidence is conclusive that
EO2 was never exercised.  The contracting officer’s November 2008 statement that it was
exercised is clearly incorrect, given all that transpired afterwards.  Delivery of a hot start-up
plan may have been a necessary precondition for exercising the option, but it was not the
exercise itself.  This is understood from the milestone schedule, which includes as a note to
the milestone for the plan, “If Hot-Start is not exercised, the total milestone fee amount will
be reduced by” the amount of that fee.  Delivery of the plan milestone did not, by itself,
require payment of an additional .25% fee on contract costs.
Nor have we been shown any evidence that MOX Services’ good faith negotiations
regarding the terms of EO2 was sufficient to trigger an increase in the fee percentage. 
Similarly, the contractor has not presented any evidence (or even proposed uncontested facts)
that delay in completion of negotiations about EO2 (even if caused entirely by DOE) meant
that the fee percentage would become 7%.  To the contrary, the parties agreed in mod 183
that the percentage would increase – but only to 6.75% – “in recognition of delays in
exercising the Early Option 2 (EO2) scope.”  Estoppel is an inapposite argument here for two
reasons: first, because the contractor does not show that the elements of estoppel (see Bryan
Concrete & Excavation, Inc. v. Department of Veterans Affairs, CBCA 2882, 16-1 BCA
¶ 36,475, at 177,732) are present, and second, because the matter as to which the agency is
said to be estopped from asserting – that an increased fee “would not be authorized or
appropriate” – is not at issue.  We are concerned with what the contract says, not what it
might say.  Finally, discovery is not appropriate, for “if the provisions [at issue] are clear and

CBCA 5395 9
unambiguous, they must be given their plain and ordinary meaning, and the court may not
resort to extrinsic evidence to interpret them.”  Douglas P. Fleming, LLC v. Department of
Veterans Affairs, CBCA 3655, et al., 16-1 BCA ¶ 36,509, at 177,879 (citations and
quotations omitted).
In an earlier decision in this case, we held that we do not have jurisdiction to consider
MOX Services’ allegation that DOE’s failure to negotiate in good faith was a material breach
of the MOX contract, entitling the contractor to an additional .25% increase in the fee
percentage.  We reached this conclusion because reviewing the allegation, which had not
been made to the contracting officer in a claim, would require us to “examine different
operative facts . . . from the facts we must examine to resolve the contractor’s claim as
presented to the contracting officer.”  CB&I AREVA MOX Services, LLC v. Department of
Energy, CBCA 5395, 17-1 BCA ¶ 36,591, at 178,218 (2016).  The contractor now tells us
that it intends to submit to the contracting officer a claim making this allegation.  If such a
claim is presented and the contracting officer denies it, the contractor is of course free to
appeal the contracting officer’s decision to us.  The decision we issue today resolves only the
claim which was made on February 8, 2016.
Decision
The motion for summary relief by the Department of Energy is granted.  The motion
for summary relief by CB&I MOX AREVA Services, LLC is denied.  The appeal is
DENIED.
_________________________
STEPHEN M. DANIELS
Board Judge
We concur:
________________________ _________________________
H. CHUCK KULLBERG MARIAN E. SULLIVAN
Board Judge Board Judge