An unsealed status report filed with the U.S. Court of Federal Claims by the Department of Justice says the Department of Energy might seek updated proposals for the legally embattled liquid waste contract for the Hanford Site in Washington state, potentially worth $45-billion.
This time around, a DOE contract officer would have discretion to treat flaws in a bidder’s online federal procurement registration as “a correctable matter,” according to a Sept. 1 Justice filing, unsealed and posted online Wednesday.
“Since the court’s final judgment, DOE has been taking steps to reassess the procurement,” awarded in April to Hanford Tank Waste Operations & Closure, a joint venture of BWXT, Amentum and Fluor, according to the six-page filing. After a legal challenge by the losing bidder, Court of Federal Claims Judge Marian Horn ruled in June the award was improper and should be reviewed by DOE.
“The agency currently intends to seek updated proposals for the work subject to the challenged procurement,” But to date, DOE “has not set forth a deadline or finalized any updates to any request for proposals,” according to the status report.
Hanford Tank Disposition Alliance, a team of Atkins Nuclear, Jacobs and Westinghouse, is the losing bidder.
In a move that could erase one of the pillars of Hanford Tank Disposition Alliance’s legal argument, DOE is considering issuing a deviation from the Federal Acquisition Regulation that would in essence prevent a company from being ineligible to bid for a contract just because it did not register, or maintain its registration, with the government’s procurement database.
Under the change, “a failure to register in SAM [the System for Award Management] or a lapse in SAMs registration may be treated by the contracting officer as a correctable matter of responsibility,” according to the court filing published Wednesday.
“Based upon the findings, I hereby determine that SAM registration requirements pursuant to FAR 52.204-7, System for Award Management, are in need of revision for DOE procurements,” John Bashista, the director of DOE’s Office of Acquisition Management said in the report. “This class deviation is effective upon the date of signature [Aug. 31] and remains in effect indefinitely or until there are further changes to the provision.”
Justice had asked Judge Horn to send the dispute back to DOE given both parties had issues with their SAM registrations. The BWXT-led winning team let its registration lapse for months, according to Justice. But plaintiff Hanford Tank Disposition Alliance at one point failed to disclose that Atkins’ ultimate owner is Montreal, Canada-based SNC-Lavalin.
While Judge Horn sent the matter back to DOE, she retained jurisdiction in the case. Last month, however, the BWXT-led team appealed Judge Horn’s ruling, blocking execution of the new contract, to the U.S. Court of Appeals for the Federal Circuit.
A DOE spokesperson and BWXT spokesperson both declined comment Wednesday afternoon. An Atkins spokesperson did not immediately respond by deadline.
