Weapons Complex Monitor Vol. 35 No. 22
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Weapons Complex Monitor
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May 31, 2024

Judge sets closed-door hearing in $45B DOE Hanford contract battle

By Wayne Barber

A federal judge will soon hear arguments in a Washington, D.C., courtroom in litigation over a $45-billion Department of Energy liquid-waste contract at the Hanford Site in Washington state.

According to online court documents, a “sealed” or closed proceeding on June 14, U.S. Court of Federal Claims Judge Marian Blank Horn will consider cross-motions for judgment on the administrative record in the protest over the Hanford Integrated Tank Disposition Contract.

Extensive filings were submitted to the court over the past week by the Department of Justice, a BWX Technologies-led contractor group that has won the contract twice, and a rival team led by an AtkinsRéalis subsidiary, which has twice protested the contract with the claims court.

The Justice Department and BWXT-led Hanford Tank Operations and Closure (H2C) asked the court to toss the current protest by Hanford Tank Disposition Alliance (HTDA), made up of AtkinsRéalis Nuclear Secured, Jacobs and Westinghouse.

On Feb. 29, DOE essentially decided to re-award the 10-year contract to H2C, which in addition to BWXT includes Amentum and Fluor. With Amentum set to merge with Jacobs’ government contracting business by September, the combined entity appears assured of a stake in the contract.

About a year ago, Horn blocked DOE’s April 2023 award to H2C, saying the joint venture failed to stay registered with the government procurement tracking system, the System for Award Management, SAM. The judge told DOE to re-examine the proposals.

After the court enjoined performance on the contract last June, DOE decided that H2C’s failure to stay registered was a fixable error. The agency instructed both joint ventures to file updated offers, which resulted in the second award to H2C.

The second award quickly led to a second protest lawsuit by HTDA.

In filings this week, H2C defended its second win, arguing that it prevailed against its rival in spite of what the team characterized as a competitive advantage that its rival gained through litigation.

“Over the last year, DOE engaged in a new round of competition that gave HTDA not just an equal chance to compete but an advantage over H2C,” the BWXT-led joint venture said in a Tuesday filing. 

According to H2C’s filing, HTDA cut its price in the recompete but H2C won again partly due to a “significant” technical edge. Bidders’ cost figures are redacted in the public versions of the legal filings.

“An agency is allowed to prefer the technical capability of one offeror over another,” H2C wrote in the filings.

HTDA said, among other things, that DOE lacks the authority to allow bidders to deviate from SAM requirements, as the agency did when evaluating the updated proposals that resulted in the second award, without first going through notice-and-comment rulemaking.

The Hanford Integrated Tank Disposition Contract entails emptying about 56 million gallons of radioactive and hazardous waste from underground tanks at Hanford and eventually operating the Waste Treatment and Immobilization Plant built by Bechtel. 

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