THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND
IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON 
DECEMBER 17, 2020
GRANTED: December 8, 2020
CBCA 6476, 6811
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 SOMERS (Chair), LESTER, and CHADWICK.
SOMERS, Board Judge.
Pending before us is a motion for summary judgment by Mission Support Alliance,
LLC (MSA).  MSA seeks a ruling as a matter of law that the Department of Energy (DOE)
is not entitled to disallow $11,424,602 in Parent Office Support Plan (POSP) costs
reimbursed by DOE during fiscal years (FYs) 2009–2012 and $5,247,135 during FYs
2013–2018.  DOE opposes the motion, contending genuine issues of material fact preclude
summary judgment.  We agree with MSA and grant the motion and the appeal.


CBCA 6476, 6811 2
Background 
In April 2009, DOE and MSA entered into a performance-based cost-plus-award-fee
contract with a value of $3,059,369,580.  Under the contract, MSA provided infrastructural
support to the Hanford Site, a decommissioned nuclear production complex located adjacent
to the Columbia River in Washington State.  The scope of work required MSA to provide,
among other things, laboratory services, security services, transportation infrastructure,
utilities, telecommunications and IT support, and various business administrative services. 
MSA subcontracted a portion of the work.  
As a cost-reimbursement contract awarded under Federal Acquisition Regulation
(FAR) part 15 (48 CFR pt. 15 (2008)), the contract included various clauses from the FAR
and Department of Energy Acquisition Regulation (DEAR) requiring MSA to document and
support its costs.  For example, FAR 31.201-2(d) required MSA to “account for costs and
maintain records, including supporting documentation, adequate to demonstrate that the costs
claimed have been incurred, are allocable to the Contract, and comply with the applicable
cost principles.”  48 CFR 31.201-2(d).
In addition, the contract provided a mechanism whereby MSA, a joint venture, could
receive technical support from its parent organizations1:
H.39 Parent Organization Support2
(a) For on-site work, U.S. Department of Energy (DOE) fee generally
provides adequate compensation for parent organization expenses incurred in
the general management of this Contract.  The general construct of this
Contract results in minimal parent organization investment (in terms of its own
resources, such as labor, material, overhead, etc.) in the Contract work.  The
1 Originally, the parent organizations were Lockheed Martin Integrated
Technology (LLC) (Lockheed Martin); Jacobs Engineering Group, Inc. (Jacobs); and
Wackenhut Services, Inc. (Wackenhut).  During FYs 2013–2018, the parent organizations’
corporate identities changed.  Lockheed Martin became known as Leidos.  Wackenhut
became G4S and then Centerra.  As a result, over FYs 2013–2018, Jacobs, Wackenhut,
Centerra/G4S, Lockheed Martin, and Leidos all billed MSA pursuant to the POSPs. 
2 DOE summarizes section H.39 as follows:  “[The clause] allows MSA to
utilize services from its Parent Organizations to perform Contract work under certain limited
circumstances, and expressly provides that Parent Organization allocation costs are
unallowable.”

CBCA 6476, 6811 3
Contract is largely financed by DOE advance payments, and DOE provides
government-owned facilities, property, and other needed resources. 
Accordingly, allocations of parent organization expenses are unallowable for
the prime contractor, major subcontractors, and/or teaming partners, unless
authorized by the Contracting Officer in accordance with this Clause. 
(b) The Contractor may propose, or DOE may require, parent organization
support to: 
(1) Monitor safety and performance in the execution of
Contract requirements; 
(2) Ensure achievement of Contract environmental clean-up
and closure commitments;
(3) Sustain excellence of Contract Key Personnel;
(4) Ensure effective internal processes and controls for
disciplined Contract execution; 
(5) Assess Contract performance and apply parent
organization problem-solving resources on problem areas; and
(6) Provide other parent organization capabilities to facilitate
Contract performance.
© The Contracting Officer may, at its unilateral discretion, authorize
parent organization support, and the corresponding indirect or direct costs, if
a direct-benefiting relationship to DOE is demonstrated.  All parent
organizational support shall be authorized in advance by the Contracting
Officer.
(d) If parent organization support is proposed by the Contractor or required
by DOE, the Contractor shall submit for DOE review and approval, an annual
Parent Organization Support Plan (POSP).  The Contractor shall submit its
initial POSP 60 days prior to: (1) the end of the Contract Transition Period; or
(2) the commencement date of parent organization support proposed by the
Contractor or required by the Government.  Any subsequent POSP shall be
submitted 90 days prior to the start of each year of Contract performance.  
In June 2012, MSA submitted a POSP to DOE (the “2013 POSP”).  The 2013 POSP
identified MSA’s parent organizations and enumerated the ways in which the parent
organizations would support MSA’s mission.  The 2013 POSP included two forms of parent
organization involvement.  One included a “members committee,” comprised of executive
level leaders from the parent organizations, which would provide advice and oversight of
MSA’s activities.  The second also contemplated the use of “direct support” from the parent

CBCA 6476, 6811 4
organization, which would enable MSA to gain expert assistance from the parent
organizations on an as-needed basis.  
In August 2012, DOE approved the 2013 POSP, authorizing the use of the members
committee and direct support totaling $5,732,298.  A similar process happened in FYs
2014–2018.  Once DOE authorized the POSPs, MSA billed against the total authorized
POSP costs, allocating the cost of parent organization support, as billed to MSA by the
parents, to the contract.  DOE approved POSPs for all years relevant to this dispute. 
DOE required MSA to maintain records, with supporting documentation, adequate
to demonstrate that any costs claimed were incurred, were allocable to the contract, and
complied with the applicable cost principles.  MSA implemented a cost-review system of the
invoices from the POSPs.  At various times during performance, MSA asked the parent
organizations to confirm that no unallowable costs were being billed or had been billed in
the past.  External audits conducted by KPMG led MSA to respond by identifying what
corrective action would be applied to any items requiring corrective action.  MSA alleges
that it interpreted the results of the audits to indicate that MSA’s use of the POSPs met
contract requirements.  MSA notes in a brief that “none of the audits suggested either that
MSA’s use of the POSP was problematic or that visibility into the parent organizations’ rate
buildup was a necessary precondition to avoid 100% disallowance of costs.”  
In August 2018, MSA provided DOE with an internal audit of the POSP for fiscal
year 2017.  A DOE employee asked the MSA director of internal audit whether MSA had
obtained payroll cost information for each person in the POSP and what audit steps MSA had
taken to ensure that the costs billed by the parent organizations were defensible.  Discussions
between DOE and MSA commenced.  DOE exchanged internal emails concerning the POSP
costs.  DOE received email inquiries from the parent organizations regarding the data sought. 
Ultimately, while discussions continued, DOE issued a contracting officer’s decision on
February 19, 2019, withholding $1,046,467 in parent organization support costs for FY
2010, $5,346,183 in parent organization support costs for FY 2011, $4,354,859 in parent
organization support costs for FY 2012, and estimated general and administrative costs of
$677,093.  
MSA appealed this decision in May 2019 (CBCA 6476).  In March 2020, DOE issued
a subsequent final decision, disallowing $5,247,136 in POSP costs reimbursed by DOE
during FYs 2013–2018.  MSA appealed that decision as well (CBCA 6811), and we granted
a joint motion to consolidate the appeals.  MSA filed the instant motion in March 2020.

CBCA 6476, 6811 5
Discussion 
Summary judgment is appropriate when “there is no genuine issue as to any material
fact (a fact that may affect the outcome of the litigation) and the moving party is entitled to
judgment as a matter of law.”  Marine Metal, Inc. v. Department of Transportation, CBCA
537, 07-1 BCA ¶ 33,554 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). 
We must view all inferences in a light most favorable to the non-movant.  See Walker
Development & Trading Group Inc. v. Department of Veterans Affairs, CBCA 5907, 19-1
BCA ¶ 37,376 (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 599 (1986)).  Here, although the parties disagree sharply about a variety of facts, we
agree with MSA’s legal argument, and it follows from our legal conclusion that any facts in
dispute are immaterial.
MSA contends that the “various rules and contract provisions” on which DOE relies
“contain[] no requirement that MSA provide” the parent-entity cost information that DOE
has demanded.  MSA states that because the parent organizations are distinct from MSA,
“any audits would need to be performed by a cognizant auditing agency and would need to
come from an audit request from DOE, not MSA, with the findings of the audit delivered to
DOE, not MSA.”  In response, DOE contends that the record “is replete with conflicting
evidence about whether MSA’s performance conformed with contract requirements, and
conflicting evidence about what MSA reasonably knew, didn’t know, or could have known
about the costs being charged by its parent organizations.” 
DOE cites five regulatory provisions and two contract sections in its brief to support
its position that “MSA must verify that the costs charged by its Parent Organizations are at
cost only and do not include either expressly unallowable profit/fee or expressly unallowable
Parent Organization allocations.”  We see no such requirement set forth in the language cited
by DOE.
Four of the cited regulations—three FAR provisions, 48 CFR 31.201-2(d), 52.215-2,
and 52.216-7 (2012); and one DEAR clause, id. 970.5232-3—require MSA to maintain cost
records to support its invoices and to make those records available to the agency on request. 
Such record keeping rules do not, in and of themselves, make any incurred costs either
allowable or unallowable as a matter of law.  Moreover, MSA undisputedly has the records
of its own costs.  DOE argues that allowability further depends on records of costs that other
companies incurred when selling services to MSA.  The DEAR cost regulation does obligate
MSA in many instances to “either conduct an audit of [a] subcontractor’s costs or arrange
for such an audit to be performed by the cognizant government audit agency through the
Contracting Officer.”  Id. 970.5232-3(c).  We are not certain that an approved POSP creates
a “subcontractor” relationship within the scope of this regulation—indeed, in a supplemental
brief, DOE expressly denies that MSA’s parents are its “subcontractors.”  We need not

CBCA 6476, 6811 6
decide that point, however, since even if the DEAR applies here, the fact remains that MSA
has elected the second option under the regulation by encouraging the agency to conduct its
own audits.3
The fifth regulatory provision cited by DOE is the cost principle of FAR 31.205-
26(e), requiring that “[a]llowance for” sales or transfers “between any divisions,
subdivisions, subsidiaries, or affiliates of the contractor under a common control shall be on
the basis of cost incurred,” with specified exceptions.  48 CFR 31.205-26(e).  This rule is
generally understood as “limit[ing] profits on sales between ‘divisions, subdivisions or
affiliates’ under the common control of a contractor.”  United States ex rel. Kholi v. General
Atomics, 2003 WL 21536816, at *2 n.3 (S.D. Cal. 2003) (emphasis added).  The “contractor”
in this case is MSA.  41 U.S.C. § 7101(7) (2018).  This case does not involve an entity under
MSA’s “control.”  The term in the cost principle that describes the relationship between
MSA and its parents is “affiliate[s].”  See Securus Technologies Inc. v. Global Tel*Link
Corp., 676 F. App’x 996, 999 (Fed. Cir. 2017) (defining the term “affiliate” as including
parent corporations); Materials Science Corp., ASBCA 47067, 96-2 BCA ¶ 28,329 (“[The
principle] applies to sales or transfers of a service from an affiliate under common control.”),
modified in non-relevant part on reconsideration, 96-2 BCA ¶ 28,532.  We agree with MSA
that this cost principle would need to be phrased differently to reflect an intent to require a
joint venture to audit prices that it pays (as its incurred costs) to affiliates that control the
contractor but that the contractor does not control.
3 DOE’s argument that MSA failed in its obligation under the DEAR clause to
“arrange for . . . the cognizant government audit agency” to audit its parents’ costs fails. 
Because MSA has no power itself to order an audit from a government audit agency, the
DEAR clause recognizes that the contractor must “arrange for” any audit “through the
Contracting Officer.”  48 CFR 970.5232-3(c).  FAR 42.102 provides the contracting officer
with the authority to “request audit services directly from the responsible audit agency cited
in the Directory of Federal Contract Audit Offices.”  Id. 42.102(a).  Under the language in
the DEAR clause and in light of the contracting officer’s exclusive authority to request a
government audit, it appears that a contractor has done all that it can do to “arrange for” a
government audit of its subcontractor once it asks the contracting officer to set up that audit;
at the very least, DOE has not identified any other actions that the contractor would need or
be able to take.  In making the request, the contractor effectively shifts responsibility for
arranging the audit to the contracting officer.  The contracting officer’s election in this case
not to make that request does not mean that MSA is required to find a different way to access
and audit its parent companies’ cost records—parent companies that are separate legal
entities from MSA and that MSA does not control—outside the context of a government
audit.  The contracting officer’s election means only that DOE cannot rely on the absence
of an audit to challenge MSA’s parent company costs under the DEAR clause.

CBCA 6476, 6811 7
We turn then to the contract, which “we must interpret . . . as it is written, not as one
party wishes in retrospect that it should have been written.”  Sigal Construction Corp.
v. General Services Administration, CBCA 508, 10-1 BCA ¶ 34,442; see also Turner
Construction Co. v. Smithsonian Institution, CBCA 2862, et al., 17-1 BCA ¶ 36,739
(“Smithsonian cannot reap the benefits of a bargain it wishes it had struck.”).  From its
arguments, it seems that DOE would have us discern, by piecing together separate provisions
of the contract, an overarching policy requiring MSA to produce the cost information that
DOE says it needs.  The difficulty for DOE is that none of the contract language quite says
what DOE wishes it said.
DOE first notes that section B.11 “expressly disallows separate additional fee for
individual team members or affiliates of team members.”  This is true, but since MSA does
not seek a “fee” for its parents, section B.11 is irrelevant. 
The heart of DOE’s argument relies on contract section H.39. This section permits
DOE, “at its unilateral discretion, [to] authorize parent organization support, and the
corresponding indirect or direct costs, if a direct-benefiting relationship to DOE is
demonstrated.”  (Emphasis added.)  In short, section H.39 provides the mechanism for DOE
to approve or disapprove parent office support.  This section would have been the obvious
location in the contract to say so expressly, had DOE intended to place on the joint-venture
contractor the unusual burden to audit and document the “indirect or direct costs” behind the
parent entities’ authorized support prices.  Under this section, DOE probably could have
chosen in its discretion to condition approval of parent office support on MSA’s performing
audits of its parents’ costs.  But that is not what DOE did.  Instead, DOE affirmatively
approved each of MSA’s POSPs from 2013 through 2018.  Having granted the approvals as
it did, DOE cannot now retroactively impose the condition it wishes existed.
If DOE wanted to impose a requirement to produce a non-contractor’s cost
information, it needed to say so expressly, as such a requirement will not be implied or
inferred.  See generally Kellogg, Brown & Root Services, Inc. v. Secretary of the Army, 973
F.3d 1366, 1371 (Fed. Cir. 2020) (“As the government conceded at oral argument, the
amounts paid . . . were ‘costs’ under the prime contract, and there is no provision in the
prime contract that required [the contractor] to submit the actual costs incurred by its
subcontractor. . . . While the failure to collect and submit [subcontractor] costs bears on the
reasonableness of the payments, submission of the subcontractor’s costs is not a separate
requirement.”).  DOE has approved the POSP costs as reasonable.  Because DOE’s
allowability argument rests solely on legal authorities we find do not support it, we grant
MSA’s motion and appeal.

CBCA 6476, 6811 8
Decision
The Board GRANTS MSA’s motion for summary judgment.  
    Jeri Kaylene Somers   
JERI KAYLENE SOMERS
Board Judge
We concur:
    Harold D. Lester, Jr.           Kyle Chadwick            
HAROLD D. LESTER, JR. KYLE CHADWICK
Board Judge Board Judge