Todd Jacobson
NS&D Monitor
1/24/2014
With the clock ticking on the Government Accountability Office’s review of Babcock & Wilcox’s protest of the National Nuclear Security Administration’s Y-12/Pantex procurement, the agency has scheduled a hearing for next week, NW&M Monitor has learned. Babcock & Wilcox-led Nuclear Production Partners pushed for a hearing on its third protest of the NNSA’s award to Bechtel-led Consolidated Nuclear Security, and the GAO weighed its options before deciding to convene a hearing at 9 a.m. Jan. 29 to seek more details about the protest. The GAO has until Feb. 28 to rule on the protest, 100 days from the date B&W filed its first challenge. Ralph White, the GAO’s Managing Associate General Counsel for Procurement Law, confirmed that the hearing would take place, but declined to elaborate on why it is being held.
Nuclear Production Partners and the NNSA have traded legal filings since NP2 filed the protest in November, with NP2 filing comments to the NNSA’s Dec. 23 response on Jan. 8. The GAO convened a hearing during NP2’s first protest of the contract, which it sustained, and heavily mentioned the hearing in its decision document, but it did not hold a hearing in NP2’s second protest, which was rejected. In its protest, NP2 argued that the NNSA allowed Consolidated Nuclear Security to unfairly alter its proposal, made mathematical errors in calculating the cost savings contained in its bid, and improperly evaluated CNS’ key personnel.
What Would a Hearing Mean for Outcome?
Some industry officials have said that a hearing could suggest GAO is strongly considering the merits of NP2’s protest, increasing the chance that it could rule in favor of NP2. But one official told NW&M Monitor that it’s hard todraw any conclusions simply from a hearing being scheduled. “I wouldn’t make any guess as to what it means in terms of outcome, other than to say if they have a hearing it’s because they want to either supplement or establish a record on which they can make a decision,” the official said.
The official suggested that in the Y-12/Pantex case, the GAO could want to explore the decision-making process of Source Selection Authority Bob Raines, who replaced Michael Lempke as the SSA after NP2’s initial protest was upheld. Like Lempke, Raines used Bechtel’s experience consolidating management of Bettis and Knolls atomic power laboratories as part of the rationale for selection Consolidated Nuclear Security. “If there is a question about how did this SSA get to accepting the conclusion of the former SSA about past performance, the drafting attorney for GAO may not know and there may not be anything in the record to indicate that,” the official said. “He could very well want to have some testimony on that.”
