The U.S. Court of Appeals for the Federal Circuit is being asked to weigh a Government Accountability Office decision in considering litigation over a potential $45-billion liquid waste contract at the Department of Energy’s Hanford Site in Washington state.
In an April 1 decision, the Government Accountability Office (GAO) sustained a bid protest by TLS Joint Venture. TLS successfully challenged the award of a U.S. Navy custodial services contract to Silas Frazier Realty after the loser argued Silas was ineligible “because its registration in the System for Award Management (SAM) lapsed prior to award.”
Lawyers for an AtkinsRéalis Nuclear-led team, Hanford Tank Disposition Alliance, passed over by DOE twice in the past year for the mega billion-dollar Hanford Integrated Tank contract, cited the GAO decision in an April 5 filing with the appeals court.
But the BWX Technologies-led group that twice won the prized Hanford contract said SAM registration policy is becoming “a circus” where a paperwork error can trump cost savings to taxpayers.
Last June the AtkinsRéalis group, which also includes Jacobs and Westinghouse, convinced a U.S. Court of Federal Claims Court to throw out the award issued in April 2023 to the BWXT-led group. Court of Federal Claims Judge Marian Blank Horn ruled BWXT-led Hanford Tank Waste Operations and Closure (H2C) should have been ineligible for failure to stay registered in SAM, the online procurement tracking system.
H2C, which also has Amentum and Fluor as team members, appealed the Claims Court judge’s decision to the federal appeals court. Also, around the same time, Horn remanded the case to DOE for further evaluation. After reconsidering the matter, DOE deemed the lapse in registration a fixable error. The agency then invited the teams to submit updated proposals in October 2023.
That set the stage for DOE’s decision at the end of February to re-award the contract to the BWXT group.
In its April 5 filing with the appeals court, the AtkinsRéalis group said the April 1 GAO decision furthers its argument that SAM registration is a big deal.
“In reaching this conclusion, the GAO rejected the agency’s argument that its duty to monitor compliance with the SAM registration requirement should be excuse[d],” the AtkinsRéalis group said. “The same reasoning undermines H2C’s argument that agencies can waive violation of a regulation by weighing its burdens and benefits and deeming it immaterial.”
In a Wednesday filing, the U.S. Department of Justice, which represents the federal government in court, seems to agree with AtkinsRéalis.
“Although the GAO decision is not binding on this Court, it confirms that the GAO agrees with the position that the United States took in this appeal, namely that compliance with the SAM registration requirement in [the Federal Acquisition Regulation] is mandatory,” the Justice Department said.
Lawyers for H2C, however, said the GAO decision is not as meaningful as AtkinsRéalis and its partners want it to be.
“Although GAO entertains other arguments raised by the agency, it does not address whether an agency may waive a SAM registration lapse as an immaterial defect,” H2C said in its filing.
The joint venture also targets GAO’s reasoning in the case. “TLS illustrates what an unintended circus SAM registration enforcement has become,” H2C said. “It requires taxpayers to bear the cost of a higher-priced contract, and an underlying legal dispute, all because the government was hours too late processing a perfunctory registration renewal.”
Since the litigation started, Amentum and the governing contracting branch of Jacobs have announced a merger plan, meaning the merged company will be represented on the ultimate winner of the Hanford waste contract.
