Todd Jacobson
NS&D Monitor
2/28/2014
Babcock & Wilcox-led Nuclear Production Partners is weighing its options after the Government Accountability Office late this week rejected its latest protest of the National Nuclear Security Administration’s Y-12/Pantex contract award. The GAO upheld NNSA’s selection of Bechtel-led Consolidated Nuclear Security for the new contract, whittling down the potential moves for Nuclear Production Partners, which has three times protested the NNSA’s actions. In a statement, B&W Technical Services Group President George Dudich did not reveal the company’s plans, but he also didn’t rule out continuing to fight for the $22.8 billion contract. “Each of the NP2 protests raised issues that our team believed were valid,” Dudich said. “While we are disappointed with the GAO decision, we will evaluate the decision and consider our options. The B&W-led teams currently in place at Y-12 and Pantex remain focused on operating both sites safely and securely.”
Nuclear Production Partners argued in its latest protest that NNSA unfairly allowed CNS to alter its proposal, made mathematical errors in calculating the cost savings contained in its bid, and improperly evaluated CNS’ key personnel. The GAO did not release its decision pending a review by the parties in the protest, but in a statement, GAO Managing Associate General Counsel for Procurement Law Ralph White said the organization “concluded that the agency’s corrective action was consistent with the requirements of the Federal Acquisition Regulation and properly limited to address the specific defects in the prior source selection process. In addition, our decision rejected NPP’s various complaints about the substance of the agency’s evaluation and the source selection decision.” A public version of the GAO’s full decision is expected to be released shortly.
Options Dwindling for NP2
After three protests through the GAO, B&W and NP2 have few options left in that venue. The team has 10 days to file a Request for Reconsideration with the GAO, which is a rare move that would involve an error or incorrect application of a fact of law by the GAO. More likely is a lawsuit in the U.S. Court of Federal Claims, which handles financial claims against the government. A lawsuit in the Court of Federal Claims, however, does not trigger the same automatic stay that a protest with GAO initiates. The NNSA has not said when transition will take place, but suggested it could begin quickly. “We are glad that GAO dismissed the protest and will begin the contract transition at Y-12 and Pantex as soon as possible,” NNSA spokeswoman Keri Fulton said. “The men and women at each site have done their jobs admirably despite the distractions the contract process brought with it, and we are moving forward with our work to keep the American people safe.”
The NNSA has twice awarded the contract to CNS, once in January 2013 and again in November after an initial protest by B&W-led Nuclear Production Partners forced the NNSA to reopen the solicitation and seek more information from bidders. NP2 unsuccessfully protested the NNSA’s corrective actions during the summer.
Bechtel Eager to Begin Work
Bechtel spokesman Jason Bohne said CNS was eager to begin work at the sites. “We are pleased with the GAO’s decision to dismiss the latest protest of the NNSA’s contract award to Consolidated Nuclear Security,” Bohne said. “Once we receive authorization from NNSA, we will resume the transition. We look forward to working with the employees of Pantex and Y-12 to ensure safe, secure, and effective delivery of these very critical missions.”
NP2 would have to request an injunction to prevent transition from beginning, and a procurement law expert told NS&D Monitor that the bar to clear to delay transition is high. “One of the elements that the court looks at when deciding whether to grant a stay is the likelihood of success on the merits,” the expert said. “They’d have to convince the judge that something is going to break differently.”
