Swift & Staley, the incumbent landlord contractor at the Department of Energy’s Paducah Site in Kentucky, is urging an appeals court to set a hearing so the company can argue a lower court and the federal government were wrong to find the contractor too large to qualify for a follow-on contract.
Swift & Staley Inc. (SSI) made the filing Monday, in the U.S. Court of Appeals for the Federal Circuit, in litigation against the Small Business Administration and Akima Intra-Data, a rival bidder for the new $160-million Paducah Infrastructure Support Services Contract that the Department of Energy awarded to incumbent SSI in December 2020.
The roughly five-year contract has been tied up in legal battles since, starting with the Small Business Administration (SBA) area office, then the SBA Office of Hearings and Appeals and later the U.S. Court of Federal Claims and the U.S. Court of Appeals for the Federal Circuit.
In the 39-page reply brief, Swift & Staley said Federal Claims Judge Thompson Dietz erred by ruling in favor of the government and Akima, and the decision should be reversed.
The claims court judge agreed with the Justice Department and Akima that Swift & Staley is too large for the new set-aside contract by virtue of its potential “negative control” of Portsmouth Mission Alliance.
While SSI had only a minority stake in the North Wind Group-led site services contractor at the Portsmouth Site in Ohio, the trial judge agreed Swift & Staley could exert negative control by impeding normal business operations.
Swift & Staley said the concept of negative control was not raised by Akima back in the early going of the size protest before the SBA area office. The issue was inserted into the dispute after Swift & Staley made a “passing reference” to it in a case filing.
The “central question” should be whether Swift & Staley minority stake ownership in the joint venture makes it “other than small” and ineligible for the new Paducah. Swift & Staley said that is not the case and “North Wind has exclusive control” of Portsmouth Mission Alliance. Swift & Staley lacked the ability to block normal business operations at the Portsmouth contractor, according to the brief.
Although Judge Dietz ruled in favor of the government and Akima, he stayed imposition of his own order, saying it would not take effect until the appeals court rules.
Swift & Staley’s existing contract for site services at Paducah started in October 2015 and currently valued at $335-million, is currently scheduled to run through March 2023, according to the latest contract chart from the DOE Office of Environmental Management, which was updated this week.
