A U.S. Court of Federal Claims judge is scheduled to hear oral arguments today on whether Department of Energy contractor Swift & Staley exceeds size limits for the $160-million Paducah Infrastructure Support Services set-aside contract awarded in December 2020 for the former gaseous diffusion plant in Kentucky.
Although today’s hearing set for 11 a.m. Eastern Time is deemed a “sealed proceeding” in online court documents, redacted filings by incumbent Swift & Staley made public this week shed some light on the lawsuit that involves DOE, the Small Business Administration and a rival bidder, Akima Intra-Data.
The incumbent provider of landlord services said in the filings Judge Thompson Dietz has already rejected the primary thrust of Akima’s case. The rival bidder argues Swift & Staley is not small enough for the set-aside deal because of the combined receipts from its own operations and its ownership interest in the service contractor at the Portsmouth Site in Ohio, North Wind-led Portsmouth Mission Alliance.
In late August, Dietz ruled a Small Business Administration (SBA) appeals panel was mistaken in finding Swift & Staley too large for the set-aside contract for infrastructure services at Paducah. The claims court judge ordered the SBA panel to reconsider the issue. After doing so, however, the SBA panel again decided Swift & Staley is too big to qualify for the contract. Swift & Staley filed an amended complaint.
“Akima’s size protest was filed more than thirteen months ago, and the Court has rejected the only argument that Akima raised in its size protest,” Swift & Staley said. The Kentucky-based Swift & Staley said it is too late in the game for Akima to argue that the concept of “negative control,” refers to whether an individual or company has the power to change company operations.
“Although the issue of negative control could be raised in a future size protest challenging SSI’s [Swift & Staley Inc] size status, it was not raised in Akima’s December 2020 size protest, and it is outside the scope of this litigation,” Swift & Staley contends.
Swift & Staley has been the Paducah Sites service provider, acting as a town manager of the DOE site, under the existing contract, now valued at $280-million, since October 2015. Thanks to short-term extensions during the litigation, Swift & Staley is staying until at least March 31. The new contract would be for five years.
