Weapons Complex Monitor Vol. 34 No. 21
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Weapons Complex Monitor
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May 25, 2023

Courtroom showdown imminent in protest of $45B Hanford contract

By Wayne Barber

A judge will hear arguments Tuesday on whether a BWX Technologies-led team should be stripped, on a technicality, of perhaps the biggest nuclear-weapons-cleanup contract ever issued by the Department of Energy.

Judge Marian Horn on Thursday scheduled a hearing for May 30 in the U.S. Court of Federal Claims in Washington, specifically to deal with the contractor registration issues raised in the case brought by Hanford Tank Disposition Alliance: the losing bidder led by Atkins with Jacobs and Westinghouse. 

Earlier this month, the team filed a lawsuit contesting DOE’s award to BWX Technologies (BWXT)-led Hanford Tank Waste Operations & Closure of a $45 billion liquid-waste cleanup contract at the Hanford Site in Washington state.

A notice filed by the plaintiff on Thursday asks for a court status conference and reiterates that it should be awarded the contract because the winning bidder failed to maintain its registration in the federal government’s procurement system.

Hanford Tank Waste Operations & Closure said in its own Thursday filing there is no basis for the Court of Federal Claims to order a new award, but “agrees the question of its eligibility is ripe for the Court’s consideration.” 

The failure of BWXT-led Hanford Tank Waste Operations & Closure to stay continuously registered with a federal procurement tracking system is enough for the court to disqualify the winner and replace it with the runner-up, the Atkins-led alliance said in a May 12 filing, only made public in a redacted form Wednesday. 

The Atkins-led plaintiff said in a Thursday filing the Department of Justice has effectively conceded this point. 

Hanford Tank Waste Operations & Closure, which also includes Amentum and Fluor, was registered with the System for Award Management (SAM.gov), when it made its initial offer on the Integrated Tank Disposition Contract in 2022 — but the registration had lapsed when it submitted its amended offer on Jan. 25, 2023, according to filings from the Justice Department and the Atkins group.

This problem cannot be fixed by DOE “reopening discussions or amending the solicitation,” according to the Atkins group filing made public Wednesday. “The only remedy to cure this defect is for the DOE to cancel its award” and make Hanford Tank Disposition Alliance the winner instead.

The plaintiff said in the unsealed filing that its challenge on the registration issue “remains viable and is, in fact, dispositive of this bid protest.” A dispositive fact is something that if clearly proven can end the lawsuit on its own, according to Cornell Law School.

The Atkins-led alliance raised the issue under Count Six of its initial complaint, saying continuing registration in SAM is mandatory under the Federal Acquisition Regulations System. While DOE contracting officers previously had leeway in such matters, a federal rules change in 2018 took away this discretion, the plaintiff added. 

The plaintiff said the BWXT-Amentum-Fluor team was formed in July 2021 and registered with SAM the following month. The registration lapsed a year later in August 2022 and was not re-upped until Jan. 25, 2023, a couple of weeks after the amended contract offer was made, the plaintiff maintains. 

In the Justice Department’s first significant filing to the U.S. Court of Federal Claims on the $45-billion contract challenge, the agency said the winner’s failure to ensure continuous registration in a procurement tracking system is significant.

Because a lack of SAM registration hurts “the ability of an agency to evaluate offerors, it is critical and not a triviality,” according to the filing by the office of Brian Boynton, principal deputy assistant attorney general.

BWXT declined comment Wednesday.

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