A batch of documents were made public Monday after previously being under seal in the ongoing legal battle on whether Swift & Staley should have been disqualified for the new Paducah Infrastructure Support Services Contract awarded by the Department of Energy in December 2020.
Swift & Staley, the Justice Department and a rival bidder for the landlord contract at the DOE’s Paducah Site in Kentucky, waived protection under a prior protective order on the papers, according to the notice filed in the U.S. Court of Federal Claims.
The end result is roughly 260 pages of documents, many previously unavailable for public viewing. The court papers date back to the initial protest filed by Akima Intra-Data on Dec. 17, 2020, days after DOE awarded the incumbent Swift & Staley Inc. (SSI) a new five-year contract at Paducah, potentially worth $160 million.
Many of the documents are still redacted with certain passages blacked out.
Akima said while SSI’s annual revenue from the prior Paducah contract from 2017 through 2019 averaged about $39.8 million, Swift & Staley exceeded the $41.5-million size cap for the new set-aside contract when its stake in a joint venture was considered.
Swift & Staley was, at the time of the Paducah request for proposals, a minority partner to North Wind Group in Portsmouth Mission Alliance, as previously noted in court documents. Portsmouth Mission Alliance provided site services at the Portsmouth Site in Ohio.
In its initial bid protest, Akima argued because the five-year average income for Portsmouth Mission Alliance was about $25 million, SSI’s ownership stake must be less than 18% for Swift & Staley to say below the $41.5-million size cap set by the Small Business Administration (SBA) for the new Paducah contract.
“It is likely that Swift & Staley owns a sizeable stake in the joint venture of at least 20-30%,” Akima said in its initial bid protest.
Over time the SBA, the SBA Office of Hearings and Appeals and U.S. Federal Claims Court Judge Thompson Dietz agreed SSI’s stake in Portsmouth Mission Alliance should be counted against the size limit because Swift & Staley could exert “negative control” over the joint venture. Even though Swift & Staley was a minority partner, the Portsmouth venture’s operating agreement stipulates “certain types of transactions instead require the unanimous, written, advance approval of both North Wind and SSI,” SBA Administrative Judge Kenneth Hyde said in a November 2021 finding.
Swift & Staley filed a brief this month with the U.S. Court of Appeals for the Federal Circuit, arguing the lower courts erred in finding it “other than small.”
