With extensive bid protest arguments now filed by the Department of Justice and the winning and losing teams for a $45 billion Department of Energy tank waste contract, it will be up to a U.S. Court of Federal Claims judge to decide the next move.
As of Thursday night, Judge Marian Blank Horn had not ruled whether to take Justice’s recommendation and assign DOE to clear up questions about each joint ventures System for Award Management (SAM) registration; rule in favor of plaintiff and award it the contract; uphold the winner’s award or tell the feds to restart the solicitation.
Citing potentially fatal procedural flaws on both sides, the Department of Justice on Tuesday asked the federal judge to suspend a lawsuit over a recently awarded liquid waste contract and let the Department of Energy try to fix the mess.
Hanging in the balance is the $45-billion Department of Energy Hanford Integrated Tanks Contract at the Hanford Site in Washington, which DOE in April awarded to the BWX Technologies (BWXT)-led team of Hanford Tank Waste Operations & Closure. The team also includes Amentum and Fluor.
But DOE help up transition to the new contract, which could be the biggest in nuclear-weapons-cleanup history, after the winner’s rival for the business, the Atkins-led Hanford Tank Disposition Alliance, sued the agency in the Court of Federal Claims, bypassing the usual protest at the Government Accountability Office.
Now, the losing bidder and the winning bidder have each accused the other of improperly registering their respective teams with the federal government’s procurement database, the System for Award Management.
The Justice Department, representing the government in the suit, has appeared in court filings to agree that there are serious problems with the registrations and is now scrambling to get the enormous contract on an off-ramp back to DOE.
If DOE is not allowed to clear things up, “it may face a scenario where neither proposal in this $45 billion radioactive waste cleanup solicitation can be selected for an award,” Justice said in the filing. The Justice Department asked Judge Marian Blank Horn to keep the lawsuit pending rather than dismiss it.
Justice said the winning proposal submitted by Hanford Tank Waste Operations & Closure is clearly defective because the BWXT-led team let its federal procurement registration lapse in the middle of the DOE’s contract competition.
Likewise the proposal by Hanford Tank Disposition Alliance, which also includes Jacobs and Westinghouse, has a big problem because at one point in the procurement process the company misidentified the “ultimate” owner of the joint venture’s lead partner as U.S.-based Atkins Nuclear Secured. It is actually owned by Montreal, Canada-based SNC-Lavalin, Atkins’ corporate parent, the Justice Department said in a Tuesday filing.
The Justice Department adds that while the plaintiff said this was merely an administrative error, it must show evidence this was not an effort to manipulate DOE contract evaluators.
“The record evidence demonstrates that both the awardee and protestor’s proposals at the very least raise significant issues that the agency should address in the first instance,” Justice said. “Both proposals contain significant issues.”
