A federal court was wrong in June 2023 to block the Department of Energy’s award of a $45-billion liquid waste contract, the BWX Technologies-led team that won the work argued this week.
Federal Claims Judge Marian Blank Horn’s decision to block the DOE’s April 2023 issuance of the contract to Hanford Tank Operations and Closure (H2C), a venture of BWXT, Amentum and Fluor, was not required by procurement rules and served no public interest, lawyers for the team told the U.S. Court of Appeals for the Federal Circuit Monday.
The claims court’s injunction forced H2C to cut its original contract price, which was revealed to rival bidder Hanford Tank Disposition Alliance (HTDA), an AtkinsRéalis-led team that includes Jacobs and Westinghouse. No financial figures were disclosed in the public version of a 99-page package of legal documents filed this week.
H2C’s Monday filing was meant to refute the Department of Justice position that H2C no longer has a live dispute before the appeals court because DOE re-awarded the Hanford Integrated Tank contract to the BWXT-led group at the end of February.
The appeal is one of two active court cases related to the contract. The other is a second suit in the court of federal claims that the AtkinsRéalis-led group promptly filed after DOE’s re-award to H2C. This week, after the appeals court filing, H2C challenged the claims court’s jurisdiction to hear the Atkins group’s second protest.
On Thursday in its new claims court filing, H2C said HTDA’s main argument in the new protest needs to be filed in a federal district court, not Federal Claims Court, which is the venue for settling business matters with the U.S. government.
The thrust of HTDA’s current claims court protest is whether a DOE procurement official had authority to issue a “class deviation” in August 2023. That deviation held that registration errors in a government procurement system are correctable. HTDA says DOE should have held notice and comment proceedings, before such issue that deviation.
In the appeal, the BWXT team re-asserted that its temporary lapse in registration in the System for Award Management or SAM, did not justify the claims court’s blocking of an award that was cheaper and better than a rival’s. The claims court’s ruling, which told DOE to reconsider the award, led to the agency seeking updated offers from the two bidders, and eventually to February’s reward.
The new award “is markedly different than H2C’s original award because, following the court’s injunction of the original award, H2C was forced to compete against itself,” according to the team’s Monday brief. “That is, H2C’s price and technical ratings were disclosed to H2C’s only competitor in this procurement, HTDA,” which allowed HTDA to readjust its competitive position for the re-award.
The public interest should be weighed against blocking the initial award, H2C said. This is because “an injunction forces the public to either bear the substantial additional costs of reopening and reevaluating one of the very largest federal contracts or to pay a tremendous price premium to obtain inferior services from HTDA,” H2C said.
Should DOE elect to disqualify contract proposals over SAM registration problems, then HTDA’s proposal is also fatally flawed, according to the BWXT-led group. The AtkinsRéalis-led group at one point filed SAM documents that failed to disclose that its parent company is Canadian-owned.
Meanwhile, last fall, months after the DOE initial award to H2C, Amentum announced merger plans with the government contracting branch of Jacobs. As a result, the merged company would seem assured of a share of the Hanford tank waste business, no matter which joint venture prevails in the pending court cases.
While a new liquid waste contract is litigated, Amentum-led Washington River Protection Solutions continues to manage the roughly 56 million gallons of radioactive waste held in underground tanks at Hanford.
The waste resulted from decades of plutonium production for nuclear weapons. The contract now before the courts combines that storage work with eventual operation of the Waste Treatment and Immobilization Plant, built by Bechtel National.
