In a just-unsealed public version of a decision last month, a Federal Claims Court judge agrees Swift & Staley is too big to qualify for a new Department of Energy Infrastructure Support Services contract at the Paducah Site in Kentucky because of its “negative control” of a joint venture doing similar work at the time at the Portsmouth Site in Ohio.
U.S. Federal Claims Court Judge Thompson Dietz agreed with earlier findings by the Small Business Administration and rival bidder Akima Intra-Data, ruling incumbent Swift & Staley “other than small” due to its minority stake in Portsmouth Mission Alliance, headed by North Wind Group.
Initially filed with the court under seal on March 31, a redacted version of the opinion was made public Tuesday, with the exact percentage of Swift & Staley’s ownership stake in Portsmouth Mission Alliance deleted, as was the number of Swift & Staley people on the Portsmouth Mission board.
In the 12-page ruling Dietz said that “despite SSI’s [Swift & Staley Inc.’s] contention, PMA’s [Portsmouth Mission Alliance] operating agreement does, in fact, permit SSI to prevent a quorum and to block ordinary actions,” by the Portsmouth contract.
So, in the end, the judge found Swift & Staley exceeded the $41.5-million size limit and should not have been awarded the new contract in December 2020 potentially worth more than $160 million over five years.
Soon after DOE announced the contract award to Swift & Staley, which has provided landlord services at Paducah since December 2015, Akima filed a protest with the Small Business Administration, arguing Swift & Staley exceeded the size limit for the set-aside contract. The Small Business Administration Office of Hearings and Appeals backed that finding.
Although an early ruling by Dietz went in favor of Swift & Staley, Akima’s argument eventually prevailed in the case. Swift & Staley, which is appealing, continues on in charge at least through July 30 thanks to the latest extension of the existing contract, now valued at $298 million.
