CROSS-MOTIONS FOR SUMMARY RELIEF DENIED: April 10, 2015
CBCA 3632
URS ENERGY & CONSTRUCTION, INC.,
Appellant,
v.
DEPARTMENT OF ENERGY,
Respondent.
Daniel R. Frost of Snell & Wilmer L.L.P., Denver, CO, counsel for Appellant.
Brady L. Jones, III, Office of Chief Counsel, Environmental Management
Consolidated Business Center, Department of Energy, Cincinnati, OH, counsel for
Respondent.
Before Board Judges SOMERS, HYATT, and SHERIDAN. 
SOMERS, Board Judge.
URS Energy & Construction, Inc. (URS) submitted a certified claim in the amount of
$1,051,166.76 for attorney fees and costs incurred under a cost reimbursement contract with
the Department of Energy (DOE).  When the contracting officer failed to act on its claim,
URS appealed to this Board on the basis that the claim had been denied.  
Pending before the Board are the parties’ cross-motions for summary relief.  Upon
extensive review of the parties’ papers, the relevant legal authorities, and the entire record
in this case, we find that genuine issues of material fact prevent us from granting either
motion for summary relief.  


CBCA 3632 2
Background1
Pursuant to the Uranium Mill Tailings Radiation Control Act of 1978, Public
Law 95-605, DOE is responsible for remediation of twenty-four inactive uranium mill
tailings sites contaminated with residual radioactive materials.  In 1983, DOE entered into
a cost reimbursement contract with URS.2  The contract required URS to manage remediation
projects throughout the United States.   
The contract contained various standard clauses.  One clause, entitled “Allowable
Cost, Fixed Fee, Payments and Advances,” provides that the Government will pay the
contractor for any cost that is determined to be allowable by the contracting officer in
accordance with Federal Acquisition Regulation (FAR) subpart 31.2 (48 CFR subpt. 31.2
(1994)), as modified by 48 CFR 931.2 .  These  provisions authorize contractors to, among
other things, engage lawyers to defend lawsuits, subject to such conditions as the contracting
officer deems appropriate and with prior written authorization of the contracting officer.  See
48 CFR 970.5204-31.  
Standard regulatory provisions also authorize contracting officers to determine
whether the costs charged are reasonable and therefore allowable when allocable to contract
work.  See 48 CFR 970.5204-13.  48 CFR 970.5204-31(g), also applicable to the contract,
states that a contractor shall not be reimbursed for liabilities and expenses incident to such
liabilities, including litigation costs, counsel fees, judgments, and settlements.  
The contract also incorporated FAR 52.232-20, Limitation of Costs (APR 1984)
(LOC), and 52.232-22, Limitation of Funds (APR 1984) (LOF).  The contract specifically
notes that the LOC clause “shall apply to the contract whenever the contract is fully funded
to the contract face value.”  
On March 1, 1995, with the approval of the DOE contracting officer, URS
subcontracted with Ground Improvement Techniques, Inc. (GIT), for “remediation and site
1 This appeal follows a previous appeal submitted to the Board, CBCA 2260. 
There, we granted URS’s claim for reimbursement for the cost of the supersedeas, or surety,
bond mentioned in this decision.  See URS Energy & Construction, Inc. v. Department of
Energy, CBCA 2260, 12-2 BCA ¶ 35,094, reconsideration denied, 12-2 BCA ¶ 35,147.  
2 During the course of the contract, the contractor changed names and legal
entities.  These names include MK Ferguson, Morrison Knudsen Corp., Washington Group
International, and URS Energy & Construction.  For simplicity, this opinion similarly refers
to the prime contractor and real party in interest as URS.   

CBCA 3632 3
restoration of Union Carbide and North Continent uranium mill sites, and construction of a
disposal cell, located in Burro Canyon, near Slick Rock, Colorado,” for an estimated price
of $9,294,051.30.  The subcontract provided that disputes between the prime contractor and
the subcontractor would be decided in Colorado state or federal court. 
In 1995, URS, with DOE’s approval, terminated the GIT contract for default.  URS
asked the contracting officer for authority to engage a law firm to assist it with the default
termination, and DOE agreed.  URS submitted a series of cost proposals for legal services
necessary to litigate the termination action in court.  DOE approved the proposals.  URS filed
suit against GIT in the United States District Court for the District of Colorado (the district
court), and GIT countersued.  DOE reimbursed URS for litigation expenses arising from this
litigation.
On November 26, 1996, a jury rendered its verdict in favor of GIT for wrongful
termination, and awarded GIT damages in the amount of $5,600,000.  The district court
entered judgment on December 4, 1996.  DOE reimbursed URS for litigation expenses
arising from this litigation. 
While DOE and URS discussed whether to appeal the decision, the parties sought to
stay enforcement of the judgment.  As a condition for staying enforcement of the judgment
pending appeal, the district court required URS provide a supersedeas, or surety, bond.  With
DOE approval, URS posted the bond and filed its appeal.  URS submitted a cost proposal for
estimated legal expenses required to appeal the district court judgment.  DOE approved the
proposal and reimbursed the costs related to the appeal.  
In 1999, the appellate court affirmed the district court’s judgment, but vacated the
damages award and remanded the case for a new trial limited to the issue of damages.  The
contracting officer agreed that URS could retain outside legal counsel for the new trial.  
In a letter dated April 20, 2005, in preparation for the new trial, URS requested an
increase in the not-to-exceed amount for legal fees.  The contracting officer informed URS
that due to an impending reorganization of DOE, oversight and administration of the contract
would be transferred to another office.  The contracting officer cautioned URS that:
You are advised to not exceed the current contract value.  You are entitled by
the contract terms to stop work when the funding or cost limit is reached, and
any work beyond the funding or cost limit will be at the contractor’s risk. 
After receiving the contracting officer’s warning not to exceed the current contract
value, URS engaged a new law firm and submitted a litigation management plan to the same

CBCA 3632 4
contracting officer.  The plan proposed to expend an anticipated $627,000 in legal expenses. 
On July 18, 2005, URS acknowledged the order not to exceed the current contract value, and
requested reconsideration of that decision on the grounds that if a court found the judgment
to be valid, “[URS] would incur an allowable cost under the contract that could potentially
far exceed the cost of defense.”  The contracting officer did not respond to URS’s request
for reconsideration at that time. 
 By letter dated February 22, 2006, the contracting officer forwarded a contract
modification to URS, reflecting the transfer of administrative responsibility of the contract
from the National Nuclear Security Administration to the Department of Energy
Environmental Management Consolidated Business Center (CBC), located in Cincinnati,
Ohio.  The modification did not increase funding for legal services. 
URS contacted a contracting officer at CBC to obtain approval and payment for
outstanding invoices for legal services, as well as reconsideration of the previous contracting
officer’s order not to exceed the current contract value.  URS explained that funding should
be increased because, among other things, URS intended to litigate the issue of whether the
surety bond remained in effect during remand. 
The second trial began in May 2006.  Again, URS submitted cost proposals to the
contracting officer for these legal services.  The contracting officer approved the proposals,
and reimbursed URS as required.  On May 24, 2006, the jury rendered a verdict of
$15,644,587 in favor of GIT.  Ultimately, DOE reimbursed URS $502,451.89 for the outside
counsel fees and expenses arising from the second trial.    
 
On June 1, 2006, GIT filed its motion for entry of judgment jointly and severally
against the surety and URS.  URS contacted the contracting officer to request an increase in
the contract value, reiterating that “if [URS] should be found liable for any part of the
judgment (including liability to indemnify the surety on the bond), [URS] would incur
allowable costs requiring a substantial increase in the contract’s cost and funding ceiling,
pursuant to FAR 52.232-20 and 52.232-22.”  URS again requested that DOE pay the
outstanding legal expense invoices and sought an increase of $200,000 to the cost ceiling to
cover legal expenses.  
Initially URS advised DOE that it would not appeal the anticipated judgment unless
DOE would agree that all legal expenses for an appeal would be reimbursable under the
contract.  Meanwhile, the surety entered an appearance and challenged the judgment.  The
district court rejected all motions seeking relief from the judgment, which led URS to
reconsider its position regarding an appeal.  By letter dated August 28, 2006, counsel for
URS advised DOE counsel that URS would join the surety in an appeal or would pursue an

CBCA 3632 5
appeal of its own.  URS noted that if GIT succeeded in enforcing the bond, URS would be
required to indemnify the surety for the amount of the bond ($7,075,000).  URS notified
DOE that it would continue to pursue litigation related to the actual bond, and was awaiting
a decision on a motion pending in bankruptcy court. 
In a letter dated September 22, 2006, apparently referring to a plan for settlement, the
Chief Counsel for the DOE Office of Legal Services asked URS to formally submit, in
writing, the proposed terms for a possible settlement.  In addition, counsel stated: “At this
time, the DOE is not authorizing [URS] to appeal any issue arising from the trial and post-
trial rulings made by [the district court judge].”  URS acknowledged receipt of this letter,
confirming in a letter dated October 2, 2006, that: “[URS] understands that the DOE does not
agree to authorize this appeal and may not reimburse [URS] for any costs associated with the
appeal.”
On October 4, 2006, URS and the surety appealed the final judgment issued by the
district court.  By letter dated February 27, 2007, counsel for DOE confirmed that DOE had
not changed its position with response to the appeal of the ruling finding the bond still valid,
and that DOE did not authorize any appeal.  
On July 8, 2008, the United States Court of Appeals for the Tenth Circuit held that the
surety bond remained valid and that the surety’s liability was limited to the penal sum of the
bond.  The district court issued an order on July 29, 2008, directing the surety to deposit the
sum of $7,075,000 plus post-judgment interest into the registry of the court.  
On November 15, 2012, URS submitted a certified claim, seeking reimbursement of
$1,047,503.40, the amount URS had paid for attorney fees from multiple law firms involved
in the second (unauthorized) appeal, as well as other fees arising from litigation ancillary to
the default termination.  When the  contracting officer raised questions about documents
supporting URS’s claim, URS submitted a revised invoice with additional documentation on
May 31, 2013.  The revised invoice sought $1,051,166.78.
When the contracting officer did not act on its claim, URS appealed the deemed denial
of the claim.   
Discussion
Standards for Motions for Summary Relief
The parties have cross-moved for summary relief.  Summary relief is appropriate
when the moving party is entitled to judgment as a matter of law, based upon undisputed

CBCA 3632 6
material facts.  McAllen Hospitals LP v. Department of Veterans Affairs, CBCA 2774, et al.,
14-1 BCA ¶ 35,758, at 174,974, (citing Butte Timberlands, LLC v. Department of
Agriculture, CBCA 3232, 13 BCA ¶ 35,383, at 173,627).  The moving party bears the burden
of demonstrating the absence of genuine issues of material fact, and all justiciable inferences
must be drawn in favor of the non-movant. Government Marketing Group v. Department of
Justice, CBCA 964, 08-2 BCA ¶ 33,955, at 167,990-91.  A material fact is one that will
affect the outcome of the case.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). 
When, 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 is under consideration.  First Commerce Corp. v. United States,
335 F.3d 1373, 1379 (Fed. Cir. 2003); DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d 1314,
1322 (Fed. Cir. 2001); Charleston Marine Containers, Inc. v. General Services
Administration, CBCA 1834, 10-2 BCA ¶ 34,551.  The mere fact that both parties have
moved for summary relief does not impel the grant of one of the motions.  Charleston
Marine, 10-2 BCA at 170,398; Electronic Data Systems, LLC v. General Services
Administration, CBCA 1552, 10-1 BCA ¶ 34,316, at 169,505 (2009).  
The Positions of the Parties
a.  Appellant’s motion for summary relief 
URS contends that it is entitled to receive as an allowable cost under the contract
$1,051,166.76 for attorney fees and costs charged by outside counsel to URS, as well as the
fees and costs charged by the surety’s attorneys.  URS argues that the issue of liability for
costs related to the GIT litigation has already been decided in the case cited in footnote 1, and
that DOE is bound by the doctrine of collateral estoppel.  URS contends that the costs at
issue here fall within the same category and should be found allocable, allowable, and
reasonable under the contract. 
 
b. Respondent’s motion for summary relief
DOE argues that the contracting officer did not agree to reimburse URS for attorney
fees and costs incurred as a result of its decision to challenge the validity of the surety bond
in the second appeal.  These costs, DOE states, exceed the funding allocated for outside
counsel fees and costs under the LOF clause contained in the contract.  In the event that the
LOF clause does not apply, DOE asserts that the fees which URS seeks are unreasonable
and/or not allocable to the contract. 

CBCA 3632 7
c. Appellant’s response to respondent’s motion for summary relief
In response to DOE’s motion for summary relief, URS contends that DOE waived the
affirmative defense that the limitation of funds clause applied to bar recovery of the attorney
fees and costs.  Alternatively, URS asserts the Government has presented no evidence
concerning the total amount allocated to the contract, or that the amount sought by URS
exceeds that amount.  URS also contends that because DOE authorized the original lawsuit,
it is responsible for all fees that have been incurred as a consequence of the initial
authorization.  Finally, URS “had unavoidable issues and obligations arising from the parallel
bankruptcy proceedings as the Plan Committee for the Estate in URS’s bankruptcy
proceeding took the position that URS was legally obligated to continue with the second
appeal.” 
d. Respondent’s response to appellant’s motion for summary relief
DOE questions whether the surety agreement requires URS to reimburse its surety for
attorney fees and costs.  In the event that it does, DOE disputes that URS provided adequate
documentary support for the costs claimed, noting that the invoices do not establish that the
fees charged arose from the GIT litigation.  DOE points out that the invoices are “executed
in block billing style,” making it impossible to determine how much time had been spent on
a particular task.  The invoices presented by the law firms fail to describe the work performed
and appear to bill for tasks related to ancillary litigation, for which DOE is not responsible. 
Analysis
Both parties have separately submitted statements of proposed findings of fact as well
as genuine issues of material fact.  We find that genuine issues of material fact exist,
requiring the development of a more comprehensive record before these issues can be
resolved.  Specifically, at a minimum, the record needs to be developed on the following
matters:  
a. The existence and terms of any agreements that mandated URS
reimburse the surety for attorney fees and costs in whole or in part; 
b. Whether the Limitation of Funds clause applies to preclude the award
of attorney fees and costs under the facts of this appeal; 
c. Whether DOE “partnered” with URS for all the litigation that followed
the remand, to include the second appeal; 

CBCA 3632 8
d. Whether it was in the best interests of both URS and DOE to contest
the validation of the bond; 
e. Whether the plan committee in the bankruptcy proceeding legally
obligated URS to continue with the second appeal; 
f. Whether the fees and costs for which URS seeks reimbursement arise
from the litigation related to the GIT default litigation, or from matters
outside this litigation; 
g. Whether the fees and costs are properly documented in the invoices
submitted by URS under DOE regulations that apply to the
reimbursement of legal fees for outside counsel; and
h. Whether DOE had the right to refuse to participate or to pay for URS’s
litigation fees in the second appeal.  
Decision
At this point, we are unable to make a determination as to which party should prevail. 
Accordingly, the cross-motions for summary relief are DENIED.
___________________________
JERI KAYLENE SOMERS
Board Judge
We concur: 
________________________________ ___________________________
CATHERINE B. HYATT PATRICIA J. SHERIDAN
Board Judge Board Judge