In the Justice Department’s first significant filing to the U.S. Court of Federal Claims on a challenge to a $45-billion Department of Energy contract award, the agency said the winner’s failure to ensure continuous registration in a procurement tracking system is significant.
U.S. Court of Federal Claims Judge Marian Horn ordered the government and the winning bidder, BWX Technologies-led Hanford Tank Waste Operations & Closure, to respond this week to an issue raised in Count Six of the complaint filed by an Atkin-led rival bidder.
Although the BWXT-led winner of the tank management contract at DOE’s Hanford Site in Washington state is downplaying the error, the Justice Department said the failure to ensure continuous registration in a procurement tracking system is more than a paperwork error.
Hanford Tank Waste Operations & Closure, made up of BWXT, Amentum and Fluor, was registered with the System for Award Management (SAM.gov), when it submitted its initial offer on the Integrated Tank Disposition Contract in 2022 —but the registration had lapsed when it submitted its amended offer in January 2023, according to a filing from the government in the Court of Federal Claims.
Federal Acquisition Regulation standards make SAM a vital tool for contracting officers to “review the annual representations and certifications to evaluate the offers,” according to the redacted Justice filing.
Because a lack of SAM registration hurts “the ability of an agency to evaluate offerors, it is critical and not a triviality,” according to the filing by the office of Brian Boynton, principal deputy assistant attorney general.
Aside from federal rules, the solicitation itself “unambiguously required bidders to continuously be registered with SAM from the time of submission of an offer through award and performance,” the government said. Because the BWXT group “was not registered at all required times, its offer was not responsive to the solicitation.”
The government’s four-page filing could hurt the contract winner’s argument that the lapse was a minor administrative error and DOE has discretion to overlook it.
A rival group, Hanford Tank Disposition, made up of Atkins, Jacobs and Westinghouse, has said in its contract challenge to the Court of Federal Claims this is a fatal flaw that makes the BWXT group ineligible for the biggest-ever contract from the DOE’s Office of Environmental Management.
Federal Claims Judge Horn has not ruled on the registration issue and could hold a hearing before doing so. Thus far, the judge has not instructed the federal government and the BWXT group, which is intervening in the case, to file briefs on other issues raised in the contract challenge.
For its part, contract winner Hanford Tank Waste Operations & Closure argued in its Tuesday filing it was registered, “when it submitted its original proposal and on the date of award” last month.
The winner also argued using a minor administrative lapse to toss out a $45-billion contract, which DOE deemed the best value, would set a bad precedent. Making such a glitch disqualifying “would harm the U.S. procurement system and create havoc,” according to the BWXT group.
“Such a rule would rob agencies of discretion, reduce the amount of available purchasing options, and presumably create a new requirement that agencies must terminate a contractor mid-performance for even a momentary lapse in its SAM registration,” the contract winner said.
