CROSS-MOTIONS FOR PARTIAL SUMMARY RELIEF
 
DENIED:  November 12, 2008
 
CBCA 1187
 
CH2M HILL HANFORD GROUP, INC., 
Appellant, 
v.
 DEPARTMENT OF ENERGY, 
Respondent. 
Kenneth B. Weckstein and Shlomo D. Katz of Brown Rudnick LLP, Washington, 
DC; and Stanley J. Bensussen of CH2M HILL Hanford Group, Inc., Richland, WA, counsel 
for Appellant. 
Joseph B. Schroeder and Holly Kay Botes, Office of River Protection, Department 
of Energy, Richland, WA, counsel for Respondent. 
Before Board Judges POLLACK , McCANN, and DRUMMOND. 
McCANN, Board Judge. 
CH2M HILL Hanford Group, Inc. (CH2M HILL) claims that the Department of 
Energy (DOE) breached its duty to cooperate under a contract when it failed to request and 
obtain sufficient funds from Congress to fully finance the project.  The parties have 
cross-moved for summary relief. 

                
         
   
 
       
       
 
 
 
      
 
  
           
2 CBCA 1187 
Background 
CH2M HILL is the prime contractor to the Department of Energy (DOE), Office of 
River Protection (ORP), under contract no. DE-AC27-99RL14047.  Appellant’s Statement 
of Uncontested Facts (AUF) 1. Under the contract CH2M HILL is responsible for managing 
and executing the contract projects, operations, and other activities as described in section 
C.3 of the contract. AUF 3.  The contract involves cleanup of waste contained in tanks at 
DOE’s Hanford Site in Washington State.  AUF 4. 
The original mission of the Hanford Site related to the production of weapons-grade 
nuclear material.  The production of weapons materials generated both solid and liquid 
radioactive waste which was stored in 177 large (50,000 to 1,000,000 gallon) capacity 
underground single-shell and double-shell tanks.  The waste in these tanks must be retrieved, 
treated, and disposed of in a permanent waste repository.  AUF 5. 
Section B.3 of the contract, entitled Estimated Cost and Fee, set forth the estimated 
budget authority for each fiscal year (FY) from FY 2001 through FY 2006 and the fee.  AUF 
14. Effective with modification A096, dated August 12, 2004, table B-1 in section B.3 of 
the contract stated the following regarding FYs 2001 through 2006: 
Table B-1
 
Estimated Budget Authority [BA] for Fiscal Years 2001-2006
 
FY01    FY02          FY03     FY04    FY05    FY06    TOTAL 
New BA  $402.7*  $355* $410* $386* $387* $388* $2,328.7* 
Includes 
Fee 
Fee $19,769,849  $16,351,536  $16* $22* $20* $14* $108.1* 
* Amounts stated in Millions of dollars. 
AUF 15;  Appeal File, Exhibit 20 at DOE/ORP 000604. 
Section C.2(a)(2) of the contract required CH2M HILL to: 
Complete and maintain an integrated life-cycle baseline which reflects: (a) 
technical scope of work specified in this Contract, (b) project/program 
schedules with critical paths identified, and (c) a cost profile based on a 

 
 
    
 
   
      
  
     
 
    
     
  
  
   
      
        
      
    
3 CBCA 1187 
resource-loaded schedule. . . .  [T]he Baseline shall be the basis for budget 
development, input to risk analysis and prioritization of work. 
Appeal File, Exhibit 1 at DOE/ORP 0007-0008. 
When ORP submitted its budget request for FY 2006 to DOE headquarters it 
requested approximately $393 million for tank farm activities.  AUF 53.  When DOE 
submitted its budget request for FY 2006 to the President, it requested a total of $382 
million ($376 million in budget authority) for tank farm activities.  AUF 55.  When the 
President submitted his budget request for FY 2006 to Congress, the President requested 
$302 million ($296 million in budget authority) for tank farm activities.  AUF 57.  DOE 
obligated approximately $319.9 million to the contract for FY 2006.  AUF 62; Appellant’s 
Exhibit 3, at 4. 
On November 23, 2005, CH2M HILL submitted a request for equitable adjustment 
for recovery of lost fee opportunity arising from DOE’s failure to provide the budget 
authority set forth in the contract.  AUF 64.  On October 12, 2006, CH2M HILL filed a 
certified claim for recovery of the lost fee opportunity arising from DOE’s failure to provide 
the budget authority set forth in the contract.  AUF 66.  On February 28, 2007, DOE issued 
a final decision denying CH2M HILL’s claim in its entirety.  AUF 67. 
Discussion 
Summary relief is appropriate only if no material facts are in dispute and the moving 
party is entitled to judgment as a matter of law.  Mingus Constructors, Inc. v. United States , 
812 F.2d 1387, 1390 (Fed. Cir. 1987). The burden is on the moving party to establish “that 
there are no genuine issues of material fact and that it is entitled to judgment as a matter of 
law.”  Kokosing Construction Co ., EBCA 439-2-90, 91-1 BCA ¶ 23,508, at 117,869 (1990). 
A material fact is a fact which will affect the outcome of the case.  Anderson v. Liberty 
Lobby, Inc ., 477 U.S. 242, 248 (1986).  Evidence sufficient to establish the existence of a 
genuine dispute of a material fact need not be admissible at trial.  Celotex Corp. v. Catrett , 
477 U.S. 317, 322, 324 (1986).  The evidence presented, including all inferences, is 
construed in favor of the party opposing summary relief.  Automated Services, Inc ., EBCA 
386-3-87, et al., 87-3 BCA ¶ 20,157, at 102,027. Significant doubts are to be resolved in 
favor of the non-moving party.  Golden West Refining Co. , EBCA C-9208134, et al., 94-3 
BCA ¶ 27,184, at 135,468. Contract interpretation is a question of law, P.J. Maffei Building 
Wrecking Corp. v. United States , 732 F.2d 913, 916 (Fed. Cir. 1984), which may, therefore, 
be resolved by summary relief if the criteria for summary relief are present. 

   
   
 
  
    
 
 
 
    
  
 
 
        
      
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CH2M HILL is claiming here that the DOE breached its duty under the contract to 
cooperate with CH2M HILL. It claims that the project was delayed and the contractor’s 
earnings were impacted because the DOE failed to request and secure sufficient funds from 
Congress to finance the project.  Specifically, CH2M HILL claims that CH2M HILL and 
the DOE, in anticipation of receiving the full funding set forth in Table B-1, agreed in the 
baseline on how the money was to be spent.  In support of its position CH2M HILL relies 
predominantly upon S. A. Healy Co. v. United States , 576 F.2d 299 (Ct. Cl. 1978). 
In Healy the plaintiff sought a monetary award under a fixed price construction 
contract for losses incurred in a shutdown of work.  The Court held that the shutdown, and 
thus the damages, were caused, at least in part, by the Government’s failure to properly 
inform the contractor of the status of its request to secure sufficient funds from Congress. 
(Had the contractor known that funding was not requested, it could have planned 
accordingly, and reduced or eliminated its damages.)  The court indicated that: 
It seems to us not unreasonable to require either that the agency request the 
amounts it has approved for earnings under the contract, or, alternatively, to 
disapprove the construction program or otherwise promptly furnish such 
information about the flow of funds as the contractor will need to plan its own 
operations.  This is simply part and parcel of the implied duty of cooperation 
and noninterference which is inherent in any contract. 
Healy, 576 F.2d at 306 (citations omitted).  The Government defended on the ground that 
the “Funds Available for Earnings” clause placed the entire risk of the unavailability of 
funds for any reason on the contractor.  The Court found that the clause did not place the 
entire risk of loss on the contractor under the circumstances.  The Court went on to state: 
In order not to be misunderstood, we add at this point we are not holding that 
under this contract the defendant’s executive branch was contractually 
obligated to request from defendant’s legislative branch appropriations 
adequate to fund continued performance. It may well have been free to 
decide it would request any level it pleased.  
Id. at 307.  Accordingly, it is clear that Healy does not support the proposition that the 
contract, per se, required the DOE to request or obtain the specific funding set forth in table 
B-1.  Healy simply holds that the Government has an obligation to keep a contractor 
informed in some circumstances. 
Nevertheless, CH2M HILL asserts that the parties, in anticipation of receiving the full 
funding level set forth in table B-1, agreed upon a baseline for performing the work.  It 

  
    
 
 
   
       
 
    
      
      
  
  
    
 
 
 
 
 
 
 
     
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contends that, just as in Healy, the DOE had an obligation to request full funding so CH2M 
HILL could perform in accordance with the agreed upon baseline.  CH2M HILL contends 
that without the full funding it was deprived of the ability to earn the fee to which it was 
entitled under the baseline. 
Summary relief is not appropriate here. Material facts are in dispute.  Among them 
are the terms of the baseline and their meaning and effect.  As has been pointed out in 
CH2M HILL Hanford Group, Inc. v. Department of Energy , CBCA 708 (Nov. 7, 2008), 
the parties are very much in disagreement over the meaning of the baseline.  Whether the 
fee is earned on all work or just some work in the baseline is in dispute.  It is even unclear 
as to whether the baseline was approved by the DOE.  It certainly is unclear whether the 
baseline was approved “in anticipation of receiving full funding.”  Only parts of the 
baseline have been put into the record.  At this point in the proceedings, without a clear 
understanding of the meaning and effect of the baseline, the granting of summary relief 
would be inappropriate. 
CH2M HILL’s arguments here also are unclear.  It is not clear whether it is arguing 
that under Healy DOE’s funding request to the President is insufficient and a violation of 
DOE’s duty to cooperate even though it was for 97% ($376 million out of $388 million) 
of the estimated  amount set forth in table B-1.  It is unclear whether CH2M HILL is 
arguing that the President’s request to Congress of $296 million (71% of $388 million) 
was insufficient and a violation of DOE’s duty to cooperate under the contract.  And it is 
unclear whether CH2M HILL is arguing that regardless of DOE’s request and the 
President’s request, DOE had an obligation to fully fund to table B-1 as long as DOE was 
appropriated funds equal to, or in excess of, the amount shown in table B-1.  CH2M 
HILL’s positions are unclear, material facts relating to them are in dispute, and 
accordingly, summary relief would be inappropriate. 
CH2M HILL also alleges that DOE was obligated to cooperate in mitigating the 
consequences of the funding shortfall.  It alleges that DOE could have and should have 
made other funds available from other sources.  Whether this was possible or appropriate 
is very much in dispute.  If CH2M HILL is able to establish that there was an obligation 
on the part of DOE to request and obtain all of the funds set forth in table B-1, then the 
facts relating to mitigating the shortfall must be further developed and presented.  Material 
facts are in dispute on this issue. 
In considering motions for summary relief, we cannot try issues of fact, i.e., weigh 
evidence or judge credibility, but only determine whether there are issues to be tried. 
Anderson, 477 U.S. at 249.  On the facts presented in the cross-motions, and drawing all 

  
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6 CBCA 1187 
reasonable inferences in favor of the non-moving party, we conclude that neither appellant 
nor respondent is entitled to judgment as a matter of law. 
Decision 
Appellant’s motion for partial summary relief and respondent’s cross-motion for 
partial summary relief are DENIED . 
R. ANTHONY McCANN 
Board Judge 
We concur: 
HOWARD A. POLLACK JEROME M. DRUMMOND 
Board Judge Board Judge