MOTION FOR RECONSIDERATION DENIED: August 8, 2019
CBCA 6147-R
CH2M-WG IDAHO, LLC,
Appellant,
v.
DEPARTMENT OF ENERGY,
Respondent.
Mark J. Meagher, Phillip R. Seckman, and K. Tyler Thomas of Dentons US LLP,
Denver, CO, counsel for Appellant.
Margaret B. Hinman, William C. Harvey, and Eva M. Auman, Office of Chief
Counsel, Department of Energy, Idaho Falls, ID, counsel for Respondent.
Before Board Judges SOMERS (Chair), SHERIDAN, and ZISCHKAU.
SHERIDAN, Board Judge.
Respondent, Department of Energy (DOE), has filed a motion asking us to reconsider
our decision in CH2M-WG IDAHO, LLC v. Department of Energy, CBCA 6147, 19-1 BCA
¶ 37,339.  In that decision we found that “DOE’s claims [in CBCA 6147 were] premised on
precisely the same issues litigated and decided by the Board in CBCA 3876.”  Id. at181,595;
CH2M-WG IDAHO, LLC v. Department of Energy, CBCA 3876, 17-1 BCA ¶ 36,849.  The
Board concluded that the principles of res judicata barred proceeding on CBCA 6147 and
dismissed the appeal.  We deny DOE’s current motion because the motion for
reconsideration makes precisely the same arguments that were made in CBCA 6147 which
we considered and denied.  


CBCA 6147-R 2
Background
At issue in this motion, as well as in CBCA 3876 and CBCA 6147, 1 are certain sums
that DOE seeks to withhold from CH2M-WG IDAHO (CWI).  These sums relate to 
incentive fee payments and payments for safe units provided under an employee incentive
plan.  The Board found the withholdings improper and ordered DOE to pay CWI
$27,359,380 in incentive fees and $5,985,811 for safe units.  See CH2M-WG IDAHO, LLC, 
17-1 BCA at 179,572. 
We note that after we rendered our decision in  in CBCA 3876, DOE neither requested
Board reconsideration nor appealed the decision to the United States Court of Appeals for
the Federal Circuit (Federal Circuit).  Consequently, the Board’s decision became final.  41
U.S.C. § 7107(b) (2012); Rule 31(c) (48 CFR 6101.31(c) (2018).
Sometime after the Board’s decision in CBCA 3876 became final, a DOE contracting
officer issued another final decision pursuant to the Contract Disputes Act (CDA), 41 U.S.C.
§§ 7101-7109.  This final decision informed CWI that DOE would only be paying a portion
of the amounts the Board had awarded in CBCA 3876.  The contracting officer determined
that DOE was entitled to withhold payment of $4,790,066 of the $27,359,380 awarded to
avoid what she referred to as a “double fee payment.”2  The contracting officer also claimed
DOE’s right to withhold all of the $5,985,811 the Board awarded to CWI for safe units,
positing that prior to paying the awarded safe unit funds, DOE was entitled to receive a plan
for disbursement to former employees who held safe unit shares as of September 30, 2012. 
CWI appealed the final decision, seeking payment of the full award in CBCA 3876, and the
matter was docketed as CBCA 6147.  After concluding that DOE’s claims were premised on
the same issues as those litigated and decided by the Board in CBCA 3876, the Board granted
summary judgment in favor of CWI in CBCA 6147, again ordering DOE to pay CWI
$27,359,380 for incentive fees and $5,985,811 for safe units, along with applicable CDA
interest.  19-1 BCA at 181,595.  More specifically, we concluded that the double fee payment
argument advanced by DOE in CBCA 6147 mirrored the unpersuasive argument DOE made
in the CBCA 3876 litigation.  Id.  We also found that DOE had made the same argument in
1 Familiarity with the decisions in CBCA 3876 and CBCA 6147 is assumed and
necessary for a full understanding of our decision here. 
2 Throughout the contract and subsequent litigation, the parties have referred to
this issue in various ways, including “the G&A allocation issue,” “the double fee payment
issue,” “the double payment issue,” “the B.5 G&A allocation issue,” and  “the G&A issue.” 
In CBCA 3876 we generally referred to the issue as “the B.5 allocation issue.”  In CBCA
6147 we refered to the issue as “the double fee payment” issue, because that is how the DOE
contracting officer referred to it in her final decision.

CBCA 6147-R 3
CBCA 3876, that CWI had not properly disbursed safe unit payments and that “DOE was
given a full and fair opportunity to present any evidence it had relating to the payment of safe
units [in CBCA 3876].  For the safe units dispute, DOE litigated all the contentions in CBCA
3876 that it now seeks to relitigate in CBCA 6147.”  Id.  We concluded that “DOE has shown
no sound bases that would permit it to get another chance in CBCA 6147 to relitigate the
positions taken in CBCA 3876 which the Board implicitly rejected.”  Id. 
DOE still resists full payment of the award in CBCA 3876, now moving the Board to
reconsider its decision in CBCA 6147.  DOE posits that the Board made mistakes of fact that
were material to the decision in CBCA 6147.  It argues that the Board failed to consider that
CWI’s claim submitted in CBCA 3876 expressly excluded the $4,790,066, and that the
decision in CBCA 3876 was a “new fact/circumstance impacting the payment of the
[$4,790,066] fee invoice.”  Positing that the Board’s CBCA 6147 decision failed to consider
these “facts,” DOE concludes that: 
(a) res judicata cannot apply because the Board did not have jurisdiction to
consider any issues pertaining to a Government CDA monetary or
non-monetary claim which did not exist and had not been subject to a
[contracting officer’s] final decision; and
(b) res judicata cannot apply because [the decision in CBCA 3876] created
new transaction facts which were contingent on, but distinct from, those
considered in [CBCA 3876].
DOE also continues to assert that res judicata cannot preclude it from performing an audit
and requiring contract compliance before disbursement of the $5,985,811 for safe units.
CWI requests that DOE’s motion be denied, asserting that the motion does nothing
more than attempt to upend the decision in CBCA 3876, a decision that was not appealed and
is final and binding on DOE, by rearguing the very same facts and law that it presented in
opposition to CWI’s motion for summary judgment in CBCA 6147.  CWI posits that DOE
has not established any viable grounds for reconsideration and its motion should be denied.
Discussion
The burden to prove that the Board’s decision contains substantive errors warranting
reconsideration rests with DOE.  The question of whether to grant or deny a motion for
reconsideration is left to the considerable and sound discretion of the Board.  See URS
Energy & Construction, Inc. v. Department of Energy, CBCA 2260-R, 12-2 BCA ¶ 35,147,
at 172,522; see also Rule 26.

CBCA 6147-R 4
Reconsideration is not a vehicle for retrying a case, advancing arguments that were
already made, or introducing arguments that could have been made previously.  See
ThinkGlobal, Inc. v. Department of Commerce, CBCA 4410, 17-1 BCA ¶ 36,642, at 178,457;
Americom Government Services, Inc. v. General Services Administration, CBCA 2294-R,
17-1 BCA ¶ 36,590, at 178,212 (2016); Tidewater Contractors, Inc. v. Department of
Transportation, CBCA 50-R, 07-2 BCA ¶ 33,618, at 166,501.  Advancing reinterpretations
of old evidence likewise is not sufficient grounds for reconsideration.  See Americom
Government Services, 17-1 BCA at 178,212; see also URS Energy & Construction Inc.,
12-2 BCA at 172,522-23.
In exercising our discretion, and in evaluating a request for reconsideration, we must
“strike a delicate balance between two countervailing impulses: the desire to preserve the
finality of judgments and the incessant command of the [tribunal’s] conscience that justice
be done in light of all the facts.”  Flathead Contractors, LLC v. Department of Agriculture,
CBCA 118-R, 07-2 BCA ¶ 33,688, at 166,770 (quoting  Advanced Injection Molding, Inc.
v. General Services Administration, GSBCA 16504-R, et al., 05-2 BCA ¶ 33,097). 
The Board has no doubt that DOE deeply regrets its failures in CBCA 3876.  Its
actions in CBCA 6147 and its motion for reconsideration show a desperate attempt to
provide evidence that should have been provided in CBCA 3876 to justify its withholdings. 
There is no reason the evidence could not have been provided in CBCA 3876.  During the
extensive litigation and a hearing lasting approximately two weeks, DOE had ample
opportunity to develop compelling evidence to bolster its double payment and improper
disbursement arguments.  It failed to support its arguments with sufficient evidence and the
Board’s decision reflected that failure by ordering DOE to release the amounts improperly
withheld.  DOE does not now get another chance to relitigate the same arguments it made in
CBCA 3876.
The Board denies DOE’s motion for reconsideration because it does nothing more
than advance the same facts and arguments that were already addressed in CBCA 3876.  The
facts and law that DOE advances in its motion were extensively litigated by the parties in
CBCA 3876 and were considered and rejected by the Board.  DOE’s contention that the
Board failed to properly consider certain facts and arguments in CBCA 6147 is meritless. 
In the motion for reconsideration, DOE does nothing more than, once again, reargue the same
alleged facts and arguments that run throughout the dispute about incentive fee payments and
payment of safe units. 

CBCA 6147-R 5
Decision
 
Respondent’s motion for reconsideration is DENIED.
  Patricia J. Sheridan       
PATRICIA J. SHERIDAN
Board Judge
We concur:
Jeri Kaylene Somers                                      Jonathan D. Zischkau     
JERI KAYLENE SOMERS        JONATHAN D. ZISCHKAU                  
Board Judge                                                                       Board Judge