The Department of Energy denied late Monday it illegally stalled a lawsuit filed by contractor CB&I AREVA MOX Services, which seeks about $200 million in fees and damages for its customer’s alleged mismanagement of a multibillion-dollar nuclear nonproliferation contract.
In a court filing last month, MOX Services said DOE’s semiautonomous National Nuclear Security Administration (NNSA) tried to delay the company’s request for a quick, partial award in the suit by dangling the possibility of settlement talks, but never setting a date for negotiations.
MOX Services said this stall tactic violated federal law, but the NNSA, in a response filed Monday, said “the parties have a right to decide when and whether to engage in settlement negotiations while litigation is pending.”
MOX Services is building the long-delayed Mixed Oxide Fuel Fabrication Facility (MFFF) at DOE’s Savannah River Site in Aiken, S.C., under a contract awarded in 1999. The facility is intended to turn 34 metric tons of plutonium into commercial reactor fuel under an arms-control pact finalized with Russia in 2010.
At the time of the contract award, DOE though MFFF would cost around $4 billion and be built by 2016. Well before then, cost and schedule delays began piling up, and MOX Services now estimates the plant will be completed by 2029 at a cost of about $10 billion.
So, in 2015, the NNSA decided it wanted to cancel MFFF and instead dilute the plutonium at a different — and presently unfunded — Savannah River Site facility for later burial at the Waste Isolation Pilot Plant near Carlsbad, N.M.
In 2016, MOX Services sued NNSA, alleging the agency was responsible for the delays that were used as grounds to withhold contract fees. The company seeks the return of improperly withheld fees, compensation for expenses it incurred fighting for the return of those fees, and damages for breach of contract.
In Monday’s filing, the agency accused MOX Services of hypocrisy, saying the company did not bother to initiate internal NNSA dispute-resolution processes until more than a year after the agency decided to withhold some fees.
“MOX’s own lack of urgency until now on this point undermines its claims,” attorneys for DOE wrote in Monday’s filing.
More drama in the lawsuit is in the cards, as MOX Services was scheduled to file its rebuttal to NNSA’s latest filing in the case by Wednesday.
