U.S. Court of Federal Claims Judge Thompson Dietz appears unlikely to set an end date for Swift & Staley’s tenure as landlord of the Department of Energy’s Paducah Site in Kentucky, based on an online court filing last week.
The June 2 decision, filed under seal but described in the online docket for the Court of Federal Claims, clears the way for Swift & Staley to keep working at Paducah even as it appeals a Small Business Administration decision — which Dietz actually agreed with — that the company is too large to qualify for a follow-on Paducah landlord contract that DOE awarded it in 2020 and which the government now may recompete.
Swift & Staley only filed its 80-page opening brief in the appeals court on Monday. DOE had asked Dietz to put a hard stop of March 31, 2023 on the incumbent Paducah landlord services contract, but Dietz’s order last week dashed that motion.
DOE asked for a clean end for Swift & Staley’s current contract, which started in October 2015 after Dietz in May took the somewhat unusual step of enjoining his own order that Swift & Staley was not qualified for the follow-on landlord contract.
The court fights were touched off after Akima Intra Data, a rival bidder for the new Paducah services contract, complained to the Small Business Administration that Swift & Staley was too big for what was supposed to be a small business set-aside contract worth up to $160-million.
Dietz initially disagreed with that decision and sent it back to the Small Business Administration for review. When the agency upheld its own call and sent the case back to Dietz, the judge agreed that Swift & Staley was too big for the follow-up deal.
However, Dietz also bought Swift & Staley’s argument that the company would suffer irreparable financial injury, possibly going out of business, if forced to relinquish it the current site services business before the appeals court rules — something that might or might not happen before the end of March 2023.
The trial court’s ruling that Swift & Staley was ineligible to qualify for the follow-on Paducah Services contract was issued under seal on March 31 before a public version, expunged of certain business secrets, was released by the court in late April.
In its recent brief to the appeals court, Swift & Staley said the issue of whether it exerted any “negative control” of a partnership with North Wind Group for landlord services at the Portsmouth Site in Ohio should not have been considered by the trial court because it was raised too late in the process. Negative control refers to a minority shareholder’s ability to block actions by other shareholders or the board of directors.
