Ch2m Hill Hanford Group, Inc. v. United States

82 Fed. Cl. 139, 2008 U.S. Claims LEXIS 173, 2008 WL 2500739
CourtUnited States Court of Federal Claims
DecidedMay 8, 2008
DocketNo. 07-494 C
StatusPublished
Cited by1 cases

This text of 82 Fed. Cl. 139 (Ch2m Hill Hanford Group, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ch2m Hill Hanford Group, Inc. v. United States, 82 Fed. Cl. 139, 2008 U.S. Claims LEXIS 173, 2008 WL 2500739 (uscfc 2008).

Opinion

OPINION AND ORDER

DAMICH, Chief Judge.

This action arises from a cost reimbursement incentive contract (“the Contract”) between Plaintiff CH2M Hill Hanford Group, Inc. (“Plaintiff”), an engineering, construction, and operations services company headquartered in Meridian, Colorado, and the United States Department of Energy (“DOE”). The Contract concerned Plaintiffs management of nuclear cleanup efforts at a decommissioned federal complex in southeastern Washington state (“the Hanford Site”) where weapons grade nuclear materials were once produced. This case focuses on whether Plaintiff was entitled to $10,515,000 in incentive fees from fiscal years 2003 through 2006.

Plaintiff has also instituted a separate claim regarding the same contract before the Civilian Board of Contract Appeals (“CBCA”). Contending that the issues underlying the case pending in the CBCA (“CBCA claim”) extensively overlap with those involved in the instant ease, Defendant United States (“Defendant”), acting on the DOE’s behalf, now moves to consolidate the two cases in this Court pursuant to the Contract Disputes Act (“CDA”), 41 U.S.C. § 609(d) (2007). Defendant has also, on two occasions, moved this Court for expedited consideration of its consolidation motion, warning of the duplication of discovery efforts that having two related claims concurrently pending before two different fora risks. The Court did not immediately rule on these motions to expedite for the reasons discussed below.

After careful review of the parties’ briefing, pleadings, arguments heard at the joint preliminary status conference for this case, and all other information submitted, the Court concludes that consolidation of these two actions would indeed serve the interests of justice and the convenience of the parties and witnesses. However, the Court also finds that the CBCA, in which this Court cannot order consolidation but to which this Court can transfer the instant case, is the proper forum for both cases. For the reasons stated herein, then, the Court DENIES Defendant’s motion to consolidate both of Plaintiffs cases in this Court and ORDERS the transfer of the instant case to the CBCA. Defendant’s motions to expedite consideration of its consolidation motion are DENIED as moot.

I. BACKGROUND1

A. The Contract

Plaintiff entered into the Contract by assuming the obligations of a company it acquired, Lockheed Martin Hanford Corporation, in December 1999. See Complaint (“Compl.”) 111113-14; CBCA Complaint (“CBCA Compl.”) HIT 11-13. The Contract was a cost reimbursement incentive contract that included a pool for performance incentive fees. Id. 1117. In a cost reimbursement incentive contract, the contractor is reimbursed for the cost of doing the work the contract specifies. See 48 C.F.R. § 16.301-1 (2007). Such contracts “establish an estimate of total cost for the purpose of obligating funds and establishing a ceiling that the contractor may not exceed (except at its own risk) without the approval of the contracting officer.” Id.

The specific cost reimbursement incentive contract involving Plaintiff and the DOE was a “cost plus incentive fee” contract. Id. § 16.405-1; Declaration of Daniel B. Cart-mell (“Cartmell Decl.”) 115.2 In these contracts, work is either fee-bearing or non-fee-bearing. Id. For fee-bearing work, the contractor is paid a certain fee in addition to compensation for costs incurred, thereby enabling the contractor to make a profit. Id. Non-fee-bearing work, however, only allows for cost reimbursement and no other payment. Id.

[141]*141Under the Contract, then, which was labeled DE-AC27-99RL14047, Plaintiff committed to managing the retrieval, treatment, and disposal of solid and liquid radioactive waste stored at the Hanford Site in 177 large (50,000 to 1,000,000 gallon) capacity underground single- and double-shell (wall) tanks, located on sites called tank farms. Compl. 11118-9. Non-fee-bearing work under the Contract generally involved the maintenance of the tank farms in a safe and environmentally sound condition (i.e., regular maintenance, security). Fee-bearing work, in contrast, mainly consisted of achieving specified tank farm cleanup milestones known as Performance Based Incentives (“PBI”). Contract (Modification A066) §§ C.3; H.l(a), (h); J, App. D;3 see also Cartmell Deck 116.

Pursuant to the Contract, the DOE was to make available to Plaintiff a certain sum of money every year, with specific amounts allocated for funding non-fee-bearing work, fee-bearing work, and the award of fees for meeting given PBIs. Contract (Modification A096) § B.3; Compl. H 21. Plaintiff contends that if the DOE did not provide enough funds to perform both non-fee-bearing work and fee-bearing work, its workers would have had to give precedence to non-fee-bearing work “because that work maintain[ed] the site in a safe state.” Cartmell Deck H 8. As a consequence, Plaintiff would purportedly have been unable to perform fee-bearing work and earn the resulting fees or receive compensation for the costs that such work entañed. See id. H 7.

The Contract required Plaintiff to prepare and the DOE to approve a series of planning and management guidelines called an “integrated life-cycle baseline” (“baseline”), which was to reflect the technical scope of the work the Contract specified, project and program schedules, and cost profiles, as well as serve as a basis for Plaintiff’s budget development, risk analysis inputs, and work prioritization. Contract (Modification A066) §§ C.2(a)(2), H.l. During the course of performance, Plaintiff was to document any changes to the baseline through a baseline change request, complete with a proposed figure for a new aUocation of funds for the next fiscal year if needed. Id. § C.2(a)(2)(vin). This request had to be authorized by a DOE contracting officer in charge of the Hanford Site project. Compl. 1131; Joint Response to Order for Supplemental Information (“Supplemental Report”) at 24.

Additionañy, the Contract, incorporating Section 52.243-2 of the Federal Acquisition Regulations (“FAR”), specified that a contracting officer could “make changes within the general scope” of the Contract. Contract (Modification M082) § 1.64 (citing FAR § 52.243-2); see also 48 C.F.R. § 52.243-2(a) (incorporating the corresponding section of the Federal Acquisition Regulations). But if such a change increased or decreased “the estimated cost of, or the time required for, performance of any part of work” under the Contract or otherwise affected the Contract’s terms and conditions, Plaintiff was to receive an equitable adjustment in the 1) estimated cost, delivery, or project completion schedule; 2) amount of any fixed fee; and 3) other affected terms. 48 C.F.R. § 52.243-2(b). The parties were to modify the Contract accordingly. See id.

B. Plaintiffs’ Claims Before The CBCA And This Court

The cases that Defendant seeks to consolidate in this Court each concern two issues:

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Bluebook (online)
82 Fed. Cl. 139, 2008 U.S. Claims LEXIS 173, 2008 WL 2500739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ch2m-hill-hanford-group-inc-v-united-states-uscfc-2008.