A federal judge will resume consideration of CB&I AREVA MOX Services’ argument that it should quickly receive a partial award in a $200 million lawsuit it filed against the Department of Energy’s National Nuclear Security Administration for alleged mismanagement of a multibillion-dollar nuclear nonproliferation contract.
In an order filed Thursday, U.S. Court of Federal Claims Judge Thomas Wheeler said he would lift a stay requested by the department on a motion for summary judgment the company filed earlier this year. MOX Services initially did not oppose the stay because, the company said in court papers, the agency said it might want to talk about settling.
Then, late last month, MOX Services told the court the National Nuclear Security Administration (NNSA) never initiated settlement talks and had merely been stalling the lawsuit. In a Wednesday filing aimed at bolstering that claim, the company told the court that while the semiautonomous DOE branch made no move to enter settlement talks, the agency has continued to “aggressively” deny MOX Services money it is owed under a 1999 contract to build a massive plutonium disposal facility at the Savannah River Site in Aiken, S.C.
For the last three years, the NNSA has wanted to cancel the long-delayed and over-budget Mixed Oxide Fuel Fabrication Facility (MFFF). The facility is intended to turn 34 metric tons of plutonium into commercial reactor fuel under an arms-control pact finalized with Russia in 2010.
At the time of the contract award, the NNSA though MFFF would cost around $4 billion and be built by 2016. Well before then, cost spikes and schedule delays began piling up, and MOX Services now estimates the plant will be completed by 2029 at a cost of about $10 billion.
In 2015, the NNSA decided it wanted to cancel MFFF and instead dilute the plutonium at a different — and presently unfunded — Savannah River Site facility for later burial at the Waste Isolation Pilot Plant near Carlsbad, N.M.
The NNSA blamed MOX Services for these delays, but the contractor said the agency was responsible. The company was so convinced that, in August 2016, it filed suit in the Court of Federal Claims, alleging the NNSA was responsible for the delays and cost overruns it subsequently used as grounds to withhold contract fees.
MOX Services seeks around $200 million in the suit, including what it says are improperly withheld fees, compensation for expenses it incurred fighting for the return of those fees, and damages for breach of contract.
The next big salvo in the dramatic legal confrontation between customer and contractor might not come for another month. Wheeler, in his Thursday order, gave the NNSA until March 28 to explain why MOX Services should not get the partial payment — about 10 percent of the total damages sought — that it asked for last month. MOX Services, in turn, has until April 11 to rebut the NNSA’s argument.
