An amended Department of Energy competition for a $45-billion liquid waste contract permitted bidders with gaps in their federal procurement registration, the company twice awarded the work argued last week in court.
That fact alone should sink the losing bidder’s claim that the DOE award should be thrown out because of a ruling in a similar but unrelated federal procurement case, BWXT Technologies-led Hanford Tank Waste Operations and Closure (H2C) said in a redacted filing published online July 26 with the U.S. Court of Federal Claims.
The Justice Department, essentially DOE’s lawyer in the case, took a similar stance, telling the claims court in its own July 26 filing that DOE has the authority to overlook registration lapses, whether the losing bidder Hanford Tank Disposition Alliance (HTDA), an Atkins-led venture, likes it or not.
DOE in February awarded the Hanford Integrated Tank contract to H2C for the second time. That award was based on a retooled competition spurred by an HTDA lawsuit filed in 2023, after DOE awarded the work to H2C the first time. HTDA, meanwhile, had its own registration problems, H2C said in court filings.
DOE held the second competition after the claims court ruled that the first Hanford tanks award was inappropriate because H2C had not stayed registered with the System for Award Management (SAM) during the first competition.
To fix the problem, DOE inserted a clause into the second competition that allowed the agency “to find both HTDA and H2C eligible despite SAM missteps earlier in the procurement,” H2C wrote in its July 26 filing with the Court of Federal Claims.
“HTDA may dislike DOE’s new SAM clause, but there is no question DOE had authority under the FAR [Federal Acquisition Regulations] to create it, and no question that both offerors submitted proposals seeking to form a contract under a solicitation that included it,” the Justice Department said in its filing. “And while HTDA has complained about the clause to GAO [the Government Accountability Office] and this Court, no party has ever challenged the underlying validity of the clause in U.S. District Court—the sole forum where it is appropriate to do so.”
The July 26 filings responded to an earlier argument from HTDA, which said that a separate claims court ruling in July demonstrated that an agency cannot waive non-compliance with regulations the way HTDA said the Department of Energy did.
The case HTDA leaned on to prove this point was Independent Rough Terrain Center versus the United States and Taylor Defense Products. The former lost a competition for a contract with Army Materiel Command in 2023 and eventually sued over the Army’s decision.
But when Independent Rough Terrain Center’s case got to the claims court, a judge threw it out because the company had not stayed registered with SAM during the Army’s competition for the work.
That proved, HTDA said, that a registration lapse should be enough to rule out a contractor’s right to an award.
HTDA includes AtkinsRéalis, Jacobs and Westinghouse. H2C is made up of BWXT, Amentum and Fluor, the same set of partners that also have a liquid waste contract at DOE’s Savannah River Site in South Carolina.
The claims court had not ruled on any of the competitors’ latest filings as of deadline Friday for Weapons Complex Monitor.
Meanwhile, H2C member Amentum announced plans to merge with the government contracting and cyber arm of Jacobs, a member of HTDA, around November 2024. The combined company would seem destined to have some role on the eventual Hanford tanks contractor.
Editor’s note: Second graph modified Aug. 6 to provide full name of bidding team.
