Even after a judge stayed his earlier ruling finding incumbent Swift & Staley is too big for the small business set-aside contract awarded by the Department of Energy in late 2020, the parties are still arguing over how long the company should remain the landlord at the Paducah Site in Kentucky.
Swift & Staley, the incumbent landlord contractor under a previous award, filed a motion Monday specifically asking Court of Federal Claims Judge Thompson Dietz to reject a request by the federal government earlier this month to end the company’s tenure in March 2023, unless the United States Court of Appeals for the Federal Circuit overturns the trial court’s ruling.
Dietz on May 11 agreed to issue an injunction delaying his March 31 ruling that would have seen Swift & Staley run off the site because, Dietz said, the company was ineligible for the $160-million follow-on landlord contract. But that injunction did not specifically address the government’s request that Swift & Staley’s current contract extension end on March 31, 2023.
In its Monday filing, Swift & Staley Inc. (SSI) said the government’s motion is premature.
“In the unlikely event that SSI’s appeal is not resolved by March 31, 2023, the Government can move to modify the injunction at that time, based on facts known at that time, as opposed to the Government’s current predictions as to what it believes will happen by March 2023,” the company wrote in the filing.
Further, Swift & Staley said the government is not recognizing Judge Dietz’s finding that “SSI will suffer irreparable harm if DOE terminates the contract” while the issue is still pending before the appeals court.
“SSI has spent considerable time and resources pursuing this litigation because it still believes that it qualifies as a small business,” the incumbent wrote in the Monday filing. “Although SSI is willing to perform short-term bridge contracts while the litigation is pending, its goal, and, in SSI’s view, its legal right, is to perform the five-year contract it was awarded in December 2020.”
In Dietz’s March 31, ruling, made public after the fact, the Federal Claims judge agreed with an earlier ruling by the Small Business Administration and its office of appeals that Swift & Staley was not small enough for the solicitation because of its stake in a North Wind-led partnership at DOE’s Portsmouth Site in Piketon, Ohio.
The joint venture held the Portsmouth Site landlord services contract at the time of the Paducah solicitation and the judge agreed Swift & Staley could exert “negative control” over the Portsmouth venture.
