An Atkins-led team’s decision to bypass the Government Accountability Office and take a Department of Energy bid protest straight to the Court of Federal Claims is rare but not shocking given that $45 billion hangs in the balance, industry people told Exchange Monitor this week.
Hanford Tank Disposition Alliance, which also includes Jacobs and Westinghouse Government Services, filed its bid protest under seal on Monday. The action challenges DOE’s April award to a BWX Technologies-led venture of the $45-billion Integrated Tank Contract at the Hanford Site in Washington state.
BWXT-led Hanford Tank Waste Operations & Closure, promptly filed a motion to intervene in the case on Tuesday. It was granted by the court the next day. The winning team also has Amentum and Fluor, plus subcontractors DBD, DSS Sustainable Solutions USA, INTERA and Longenecker & Associates.
The teams involved, and DOE, declined to comment on the case.
In a Wednesday scheduling order, Claims Court Judge Marian Blank Horn set an Aug. 8 trial date in Washington, D.C. The protester, along with the U.S. government and defendant-intervenor Hanford Tank Waste Operations and Closures, have until July 24 to finish filing motions for summary judgment and related items.
An industry consultant who has seen many protests over time could not recall another instance of a bidder skipping the Government Accountability Office (GAO) and going straight to court. But at the same time, it is the biggest procurement ever by the DOE Office of Environmental Management, so the stakes are high, the source said.
Likewise, eight industry sources who Exchange Monitor spoke with this week, some affiliated with teams involved in the protest, some not, none could cite a recent case where a major DOE award protest went straight to the Court of Federal Claims.
An industry executive with a big government contractor who has talked to colleagues about the issue recalled a number of protests that started at GAO and escalated to the Federal Claims court, but none that skipped GAO.
GAO only tracks cases that move through its pipeline, not those that might bypass it, so it is hard to say exactly how rare the practice might be, said an attorney who has worked on contract challenges.
According to a Court of Federal Claims website, the court’s jurisdiction includes money claims founded upon the Constitution, federal statutes, executive regulations, and contracts with the federal government. The court, in one form or another, dates to the nineteenth century.
A 2018 guide to bid protests at GAO only mentions the Court of Federal Claims a few times in 72 pages. The document says material obtained through a GAO protective order “may be used in a bid protest filed with the United States Court of Federal Claims without GAO’s prior authorization” if certain steps are taken to prevent public disclosure.
The Atkins team’s court protest “seems smart” given the GAO often sides with the federal agency that awarded the contract more often than not, said a third industry manager not affiliated with either team. The Claims Court might have a “higher probability” of success for a contract challenge, the source said.
This week GAO rejected a challenge of Centerra’s security contract award at the Savannah River Site in South Carolina, although that case has a long and complex history. In November, the government watchdog rejected the second of two bid protests, from different teams, for the prime contract at the Waste Isolation Pilot Plant in New Mexico. In October, GAO rejected a challenge to a relatively small contract at the Y-12 National Security Complex in Oak Ridge, Tenn. In February 2022, GAO denied a challenge to the major remediation contract won by United Cleanup Oak Ridge.
Had there been no protest, the BWXT-led group could have taken over tank management from incumbent Washington River Protection Solutions, an Amentum-Atkins team, within 120 days after receiving a notice to proceed from DOE.
The GAO typically decides on bid protests within 100 days, the federal watchdog agency says. There were 123 bid protests filed with the Court of Federal Claims during fiscal 2022, according to the court’s website.
A business law firm, Watkins & Associates, said in a blog post there are reasons to opt for a contract challenge at Court of Federal Claims rather than GAO.
“As a general rule, if you have a high-profile and complex case” then contractors might prefer the court rather than GAO, the law firm wrote.
The Watkins law firm also said that while the Court of Federal Claims has authority to take a fresh look at decisions made by GAO, “the judges will tend to follow the decisions made at the GAO levels.” So consequently contractors skipping GAO would not have to show “a clear abuse of discretion” or the feds acted unreasonably.
In recent years, companies seem less hesitant to file bid protests than was once the case, an industry source told Exchange Monitor last week. About two years ago a then-Environmental Management procurement boss, Norbert Doyle, told an online forum the agency now assumes that most awards will be protested. Doyle has since left to become a DOE faculty chair at the National War College.
“Protests seem to be the flavor of the day right now,” Fluor CEO David Constable said during his company’s earning’s conference call last week.
