SUMMARY JUDGMENT GRANTED: May 20, 2019
CBCA 6147
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.
William C. Harvey, Margaret B. Hinman, and Eva M. Aumen, Office of Chief
Counsel, Idaho Operations Office, Department of Energy, Idaho Falls, ID, counsel for
Respondent.
Before Board Judges SOMERS (Chair), SHERIDAN, and ZISCHKAU.
SHERIDAN, Board Judge.
At issue in this appeal are certain sums that the Department of Energy (DOE) seeks
to withhold from CH2M-WG IDAHO (CWI).  These sums, $27,359,380 in incentive fees
and $5,985,811 for safe units provided under an employee incentive plan, were awarded by
this Board in CH2M-WG IDAHO, LLC v. Department of Energy, CBCA 3876, 17-1 BCA


CBCA 6147 2
¶ 36,849.1  We note that DOE neither requested Board reconsideration nor appealed our
decision in CBCA 3876 to the United States Court of Appeals for the Federal Circuit
(Federal Circuit).  Consequently, the Board’s decision became final.  Rule 31(c) (48 CFR
6101.31(c) (2008); 41 U.S.C. § 7107(b) (2012).      
On March 22, 2018, a DOE contracting officer issued a final decision (March 2018
final decision) pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109
(2012), informing 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 by the Board to avoid what she
referred to as a “double fee payment.”2  The final decision also claimed a 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.  DOE informed CWI that it
intended to perform an audit to ensure that all disbursements were followed in accordance
with the approved employee incentive compensation plan and that upon a successful audit,
DOE would reimburse CWI its share of safe units, together with appropriate interest. 
CWI appealed the March 2018 final decision, seeking payment of the full award in
CBCA 3876, and the matter was docketed as CBCA 6147.  CWI now moves for summary
judgment arguing that DOE’s alleged double fee payment claim in the new appeal is barred
by res judicata because it is based on the same transactional facts that formed the bases of
the CBCA 3876 decision.  Appellant also seeks summary judgment on DOE’s attempt to
withhold payment of the safe units award addressed in the CBCA 3876 decision, asserting
that res judicata and collateral estoppel apply barring relitigation of that issue.  
DOE argues that res judicata does not apply to the instant appeal because the
$4,790,066 at issue was specifically excluded from CWI’s claim litigated in CBCA 3876, and
CWI’s claim for payment of safe units in CBCA 3876 did not include or address the non-
monetary contract interpretation that DOE currently asserts in its March 2018 final decision. 
1 Familiarity with the decision in CBCA 3876 is assumed and necessary for 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 this
decision we refer 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 3
DOE also posits that the affirmative claim currently before the Board in CBCA 6147 arises
out of additional and distinct facts not previously litigated. 
We grant appellant’s motion for summary judgment for the reasons set forth below. 
Background
The contract giving rise to this matter is referred to as the ICP [Idaho Cleanup Project]
contract, and involved the clean-up of nuclear sites located in and around Idaho.  The ICP
contract was structured two ways and contained: 1) target work which was specified in the
contract and paid on a cost plus incentive fee (CPIF) basis under clause B.4 - Incentive Fee,
and 2) non-target work which was added to the contract by negotiated modifications and paid
for on a cost plus fixed fee (CPFF) basis pursuant to clause B.5 - Items not included in target
cost.  
Early in the contract, CWI, in agreement with DOE, reallocated some general and
administrative (G&A) costs earned under the CPIF contract into the CPFF portion of the
contract.  This, and CWI’s continued allocation of G&A costs into the CPFF contract,
allowed it to earn greater fees in the CPIF portion of the contract than DOE anticipated.  The
issues giving rise to this appeal, as well as the issues litigated and decided in CBCA 3876
have percolated between CWI and DOE for many years.  DOE and CWI began talking about
what they referred to as the double fee payment issue, and DOE’s contention that G&A was
being double counted in fee calculations by at least the year 2007, but the parties were unable
to reach a mutually amicable resolution.
  
Attempting to close out the ICP contract, DOE issued unilateral contract modification
260 on October 31, 2013, containing DOE’s final fee determination.  Modification 260
unilaterally reduced CWI’s target cost and fee based on certain G&A costs that had been
allocated to non-target work.  The final fee determination provided: “In addition to the
appropriate target cost and fee adjustments, DOE recognizes that CWI is entitled to an
increase to the fixed fee for the G&A costs estimated to non-target work.  Having already
paid a portion of this fee, DOE in its final fee determination included the fixed-fee balance
of $4,790,066.”  As for the safe units, the final fee determination stated: “The employee safe
unit (SU) calculation is a component of the final fee calculation, based on the amount owed
by DOE on the final fee calculation.”  Based on her calculations, including the deduction for
the double fee payments, the contracting officer calculated DOE owed CWI $17,495,136 for
the safe units.  The contracting officer did not provide CWI the right to appeal the final fee
determination so CWI filed a certified claim on March 6, 2014, seeking among other things,
$27,359,380 for DOE’s reduction to the target cost and fee based on G&A cost allocations
and a $5,985,811 payment for safe units. 

CBCA 6147 4
As is noted in our CBCA 3876 decision, significant evidence offered in CBCA 3876
addressed the respective positions of the parties on the double fee payment issue.    Extensive 
testimony about the issue was elicited at hearing from both DOE and CWI, and both parties
discussed the issue in their pre- and post-hearing briefs.  In its post-hearing brief, DOE
argued an alternative basis to support awarding nothing to CWI and pointed to, among other
things, DOE’s budget director’s report and testimony as proof that CWI had double counted
the target fee related to the G&A costs, and DOE’s reduction in modification 260 was
appropriate and equitable.
We discussed DOE’s double fee payment theory, including the budget director’s
opinions on that topic at various points in our decision.  17-1 BCA at 179,554, 557, 562-33. 
We did not explicitly address the double fee payment arguments in the discussion.  However,
after fully considering all the evidence presented, we disposed of the double fee payment
argument as well as various other arguments made by DOE as to why it should be allowed
to make a reduction via modification 260 by stating:  
DOE, while presenting equitable arguments, has provided no compelling legal
basis to support its unilateral actions. To the extent that various other
arguments were made by the parties in relation to the B.5 allocation issue[3]
including, but not limited to the impact of the LCB [life cycle baseline] and
severability, we did not find them to be sufficiently compelling to merit
detailed discussion.  CWI is entitled to recover $27,359,380 in incentive fees
for the target work it performed. 
17-1 BCA at 179,570.
Regarding its argument that it should not be required to pay the $5,985,811 that the
Board ordered in CBCA 3876, DOE’s complaint in the instant appeal asserts that CWI did
not comply with the employee incentive agreement, that CWI is not entitled to the safe units
until it proves compliance with the employee incentive agreement, and that CWI does not
plan to properly distribute the safe units.  See Complaint ¶¶ 28-38.  Contentions that CWI
was not in compliance with the employee incentive agreement were raised in DOE’s May 5,
2015, final decision giving rise to CBCA 3876, in which the contracting officer voiced
concerns she had with safe unit payments, and noted “it is unclear whether CWI paid its
3 As noted earlier in this decision, “the B.5 allocation issue” refers to the same
issue that DOE now calls the “double fee payment issue.”  

CBCA 6147 5
employees the full $17,495,136” that DOE had determined was owed to CWI for safe units
in its final fee determination.”4 
In the May 2015 final decision the contracting officer concluded that “DOE’s portion
of the safe units is based upon a predetermined formula related to CWI’s final fee earned
under the contract.” 17-1 at 179,563.  The contracting officer went on to state:  
As CWI stated in its claim, the employee SU [safe units] calculation is a
component of the final fee calculation. DOE does not dispute CWI’s
methodology in calculating the value of the safe units. CWI’s claim of
$4,382,504 in additional safe units is based solely on CWI’s final fee request
of $288,418,320.12.  The DOE final fee calculation of $252,672,59413
equates to a final safe unit payment of $17,495,136.  The DOE position has not
changed.
During the litigation of CBCA 3678, DOE had ample opportunity to develop its
theories as to the payment of safe units.  DOE made several arguments as to why it should
not be required to pay for safe units at all or should only be required to pay the safe units at
a reduced percentage.  While DOE briefed its position that it “should only be required to pay
CWI for safe units actually distributed to the beneficiaries of the [safe unit] program,” it
failed to provide convincing evidence supporting its conjecture that CWI had failed to
properly distribute safe unit payments to its employees.
  
Our decision in CBCA 3876 fully considered the evidence presented and determined
CWI’s entitlement to safe units in the amount of $5,985,811.  Now, DOE attempts to place
caveats on our decision, stating that it will pay this portion of the award only if CWI first
provides DOE a plan for disbursement of all safe unit funds to employees, DOE approves the
plan, CWI independently pays another $11,432,899 in safe units to employees, and CWI
successfully passes a DOE audit of the disbursement of all the safe unit funds.  
We review our decision in CBCA 3876 in the context of the allegations set forth in
motion before us to determine whether the allegations set forth in this appeal are precluded
by res judicata and/or collateral estoppel. 
4 The contracting officer’s final decision of May 5, 2015, is part of the record
in CBCA 3876. 

CBCA 6147 6
Discussion
I. Standard for Summary Relief
 
The summary relief stage requires that the Board determine whether the moving party
has demonstrated the absence of a genuine issue of material fact, and thus is entitled to
judgment as a matter of law.  Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
non-moving party may successfully defeat a motion for summary relief by showing that a
disputed material fact exists; however, the non-moving party cannot simply rely on the
parties’ pleadings but must support its argument with evidence such as affidavits,
depositions, answers to interrogatories, admissions, and other admissible documents under
Rule 8 (48 CFR 6101.8 (2016)).  See id.; see also Crown Operations International, Ltd. v.
Solutia, Inc., 289 F.3d 1367, 1375 (Fed. Cir. 2002) (opposing party cannot rest on mere
allegations to establish a genuine issue of material fact but must present actual evidence);
Rule 8(g)(3). When both parties have moved for summary relief, as here, each party’s motion
will be evaluated on its own merits and all justifiable inferences will be resolved against the
party whose motion is under consideration.  Turner Construction Co. v. Smithsonian
Institution, CBCA 2862, et al., 15-1 BCA ¶ 36,139, at 176,392.
II.  Issue before the Board
CWI has moved for summary relief, which DOE opposes.  The issue in this matter is
whether the Board’s decision in CBCA 3876 precludes DOE from attempting another
withholding, as set forth in the contracting officer’s March 2018 final decision, on the
grounds of res judicata and/or collateral estoppel.  CWI argues that res judicata and collateral
estoppel bar DOE from claiming a $4.7 million offset from the Board’s incentive fee award
to avoid a double fee payment, and that the double fee payment claim is barred by res
judicata because it is based on the same transactional facts which were the basis of the
Board’s decision in CBCA 3876 granting the incentive fee award.  CWI argues that if res
judicata does not apply, DOE’s double fee payment claim is barred by collateral estoppel
because the same issue was litigated and necessary to the Board’s CBCA 3876 decision.  As
for DOE’s safe units claim, CWI argues that DOE’s attempt to withhold CWI’s recovery of
the safe units award, based on its alleged noncompliance with the employee incentive plan,
is barred by res judicata and collateral estoppel.
The principles of res judicata (also  known as claim preclusion) and collateral estoppel
(also known as issue preclusion) are well established at the Board.  SBBI, Inc., v.
International Boundary and Water Commission, CBCA 4994, 17-1 BCA ¶ 36,722; Optimum
Services, Inc. v. Department of the Interior, CBCA 4968, 16-1 BCA ¶ 36,357.  Under res
judicata, a final judgment on the merits precludes the parties from re-litigating claims that

CBCA 6147 7
were or could have been raised in the prior action.  Federated Department Stores, Inc. v.
Moitie, 452 U.S. 394, 398 (1981).  Res judicata applies when the following factors are met:
(1) the parties are identical or in privity; 
(2) the first suit proceeded to a final judgment on the merits; and
(3) the second claim is based on the same set of transactional facts as the first.
Phillips/May Corp. v. United States, 524 F.3d 1264, 1268 (Fed. Cir. 2008) (citations
omitted).
The doctrine of collateral estoppel bars a party from raising issues that have been
litigated and decided in a prior proceeding.  Unlike claim preclusion, there is no requirement
that the claim or cause of action in the two suits be identical, the rationale being that a party
who has litigated an issue and lost should not be allowed to relitigate it.  In re Freeman, 30
F.3d 1459, 1465 (Fed. Cir. 1994); Mother’s Restaurant, Inc. v. Mama’s Pizza, Inc., 723 F.2d
1566, 1569 (Fed. Cir. 1983).  For collateral estoppel to apply, the moving party must
establish the following:
(1) identity of the issues in a prior proceeding;
(2) the issues were actually litigated;
(3) the determination of the issues was necessary to the resulting judgment;
and,
(4) the party defending against preclusion had a full and fair opportunity to
litigate the issues. 
Jet, Inc. v. Sewage Aeration Systems, 223 F.3d 1360, 1366 (Fed. Cir. 2000); see Freeman,
30 F.3d at 1465 (citations omitted).
For the reasons stated below, we conclude that DOE’s claims are barred by res
judicata because they arise from the same transactional facts as the prior appeal.  Further, the
claims involve the same parties, the same contract, and the same issues of CWI’s entitlement
to payment under the contract.  
The claim presented by DOE for the alleged double fee payment was clearly addressed
in the litigation of CBCA 3876 and in that decision.  The Board did not find the double fee
payment rationale compelling in CBCA 3876.  The appeal in CBCA 6147 involves a mirror
claim of that in CBCA 3876, this time applied to the G&A associated with the non-target
work.  Apparently, because it did not prevail in its argument that it had double paid on the
target work, DOE has elected to apply the same argument to the non-target work.  DOE, by

CBCA 6147 8
seeking to apply the double fee payment rationale to another type of costs, simply seeks an
opportunity to relitigate the issue.  The principle of res judicata precludes such action.
DOE incorrectly postures that the decision in CBCA 3876 “undid” modification 260. 
Our decision addressed only the portion of modification 260 where DOE unilaterally
attempted to “correct” the inequities it perceived were associated with the G&A allocation
issue by a downward adjustment of fee.  We stated:
We conclude that DOE, at its own peril, waited too long to resolve the G&A
allocation issue with CWI, both because it was not an issue DOE was
contractually allowed to address unilaterally, and because, by the time DOE
decided to address the issue, CWI’s position on an equitable adjustment for the
G&A allocation issue had changed.  We find more compelling a line of cases
which holds that the Changes clause does not provide an agency an unfettered
right to change any and every clause in a contract.  Longstanding case law
establishes that an agency is not entitled to unilaterally change the terms and
conditions of a contract, including the payment terms. 
17-1 BCA at 179,567 (citations omitted).  This holding puts to rest any further machinations
on the part of DOE as far as its double fee payment arguments go.  DOE’s current attempt
to adjust payments associated with non-target work downward using the double fee payment
argument it used in CBCA 3876 cannot be sustained. 
As for the safe units, by finding the contracting officer’s conclusions in the final
decision compelling, the Board implicitly rejected other arguments made by DOE during the
litigation.  Most, if not all, of DOE’s arguments are the same as those used to defend against
payment of safe units in CBCA 3876.  DOE was given a full and fair opportunity to present
any evidence it had relating to the payment of safe units.  For the safe units dispute, DOE
litigated all the contentions in CBCA 3876 that it now seeks to relitigate in CBCA 6147. 
Specifically, its position that CWI was obligated to show compliance with the incentive fee
plan before DOE was obligated to pay was addressed at hearing.  DOE offered no compelling
evidence to convince the Board in CBCA 3876 that it should not have to pay safe units (or
only pay a reduced amount).  DOE has shown no sound bases that would permit it to get
another chance in CBCA 6147 to relitigate positions taken in CBCA 3876 which the Board
implicitly rejected.5
5 As noted earlier, the decision in CBCA 3876 became final when DOE failed
to appeal it to the Federal Circuit.

CBCA 6147 9
To the extent that DOE makes various other arguments positing that its claim is not
barred by res judicata, we did not find those arguments compelling.
Decision
In essence, in CBCA 3876, CWI filed a claim to seek payments of monies that were
contractually due and owing.  Protracted litigation ensued, and at the end of that litigation
the Board awarded CWI $27,359,380 for incentive fees and $5,985,811 for safe units, along
with applicable CDA interest.  In the appeal now before us, CBCA 6147, DOE’s claims are
premised on precisely the same issues litigated and decided by the Board in CBCA 3876. 
The principles of res judicata therefore bar proceeding on CBCA 6147.  CWI’s motion for
summary relief is GRANTED and CBCA 6147 is DISMISSED WITH PREJUDICE.
  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