In court papers Wednesday, the Department of Energy doubled down on its argument that the contractor on an over-budget plutonium-disposal plant targeted for cancellation contorted the language of its deal in an attempt to convince a federal judge the company should keep $20 million in contested fees.
The $20 million is only a small part of more than $200 million in damages and awards CB&I AREVA MOX Services seeks in a 2016 lawsuit that alleges the Energy Department is responsible for cost and schedule overruns that have, by the most optimistic estimates in the public sphere, put the Mixed Oxide Fuel Fabrication Facility (MFFF) about $5 billion over budget and a decade behind schedule.
The plant is designed to turn 34 metric tons of plutonium into commercial reactor fuel under an arms-control pact finalized with Russia in 2010.
MOX Services’ MFFF contract includes three options. The first of these included funding and possible fees for building the plant by 2016. When the option period expired with the MFFF unbuilt, DOE moved to take back $20 million in fees.
MOX Services claimed its contract prohibited DOE from making final decisions about fee awards until the facility was built. The department says the contract may not specify what should happen to the MFFF if it wasn’t built by the end of the first option period, but insists the pact allows the agency to make fee decisions by the end of the option period.
“The contract included a specific time for the determination to be made – the end of the Option 1 period of performance – and that date must be afforded its plain meaning,” DOE stated Wednesday in a reply to its own March 28 motion for a summary judgment.
The summary judgment motion, essentially a request for U.S. Court of Federal Claims Judge Thomas Wheeler to uphold DOE’s decision to claw back the $20 million in fees, was the first forum in which the agency argued MOX Services was incorrectly applying contract language in an effort to keep unearned fees.
In March filings, MOX Services argued DOE could not possibly decide whether the company had earned its MFFF construction fees yet, because according to the company’s legal filings, the contract requires DOE to base its fee awards in part on the total construction cost: something that remains unknown, since the plant remains unfinished.
The Energy Department said that part of the contract was written to explain how the agency should calculate a fee award, not when the agency should award a fee.
At deadline Friday for Nuclear Security & Deterrence Monitor, Wheeler had not ruled in the matter of the $20 million. MOX Services has asked to proceed to oral arguments about the sum, something to which DOE has not objected. The court had not scheduled oral arguments at deadline Friday.
