Tpmc-Energysolutions Environmental Services 2008, LLC v. United States

In the United States Court of Federal Claims

No. 19-102C

Filed: March 28, 2025

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TPMC-ENERGY SOLUTIONS *

ENVIRONMENTAL SERVICES 2008, *

LLC, *

Plaintiff, *

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v. *

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UNITED STATES, *

Defendant. *

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*

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Ryan Klein, Taft Stettinius & Hollister LLP, Colorado Springs, CO, for plaintiff.

Patrick Angulo, Trial Counsel, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, DC, for the defendant. With him was

Patricia M. McCarthy, Director, Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, DC. Gary M. Fremerman, Senior Counsel,

Natural Resources and Environment Division, Office of the General Counsel, United

States Department of Agriculture, Washington, DC, and Major Estefania Mishkin,

Litigation Attorney, Legal Services Agency, United States Army, Fort Belvoir, VA, of

counsel.

OPINION

HORN, J.

Plaintiff, TPMC-EnergySolutions Environmental Services 2008, LLC (TPMC or

TES), is a limited liability company and Small Business Administration-approved (SBA)

Mentor Protégé Joint Venture formed between TerranearPMC, LLC, which, at the

relevant time, was an 8(a) certified small, disadvantaged business approved by the SBA

and EnergySolutions Federal Services, Inc., which is an SBA-approved mentor.

Defendant is the United States of America, acting by and through the Department of the

Army.1

1 This case involves multiple Army commands, including Army Contracting Command-

Rock Island (ACC-RI) and Joint Munitions Command (JMC). While the parties and

witnesses may refer to a specific Army command, the court simply refers to the Army.

On September 8, 2009, defendant issued Solicitation W52P1J-09-R-0118 to

procure remediation services for the decommissioning and license termination of the Low-

Level Radioactive Burial Site (LLRBS) at the United States Department of Agriculture’s

(USDA) Agricultural Research Service, Henry A. Wallace Beltsville Agricultural Research

Center (BARC), located in Beltsville, Maryland. Under the Nuclear Regulatory

Commission’s (NRC) final rule titled “Timeliness in Decommissioning of Material

Facilities,” the process to decommission the LLRBS required the USDA to submit a

decommissioning plan. The NRC would not terminate a license unless remediation

activities had been completed in accordance with an approved decommissioning plan.

See Timeliness in Decommissioning of Material Facilities, 59 Fed. Reg. 36026, 36039

(Jul. 15, 1994) (to be codified at 10 C.F.R. pts. 2, 30, 40, 70, 72).

In response to the Solicitation issued by the Army, plaintiff submitted a proposal,

and defendant awarded Contract Number W52P1J-11-D-0001 (Contract) to plaintiff on

November 9, 2010. The awarded contract was a firm-fixed-price, three-year Indefinite

Delivery Indefinite Quantity (IDIQ) service contract, with task orders, to perform the nine

tasks outlined in the Performance Work Statement (PWS), to be awarded later. The

Solicitation, and later the Contract, established that Tasks 1, 2, 8, and 9 were to be “Firm

Fixed-Price Line item[s]” and Tasks 3, 4, 5, 6, and 7 were to be “Fixed Unit Rate line

item[s.]” (alterations added; capitalization in original). Defendant issued three Task

Orders under the base contract, each with subsequently issued modifications. Following

completion of its work at the site, plaintiff submitted a request for equitable adjustment to

the contracting officer on August 11, 2015. Prior to the contracting officer issuing a final

decision on plaintiff’s request for equitable adjustment, plaintiff filed a Complaint with the

United States Court of Federal Claims 135 days after requesting an equitable

adjustment.2 Almost two and one-half years later, on June 17, 2018, defendant filed a

motion to dismiss for lack of subject matter jurisdiction. On July 2, 2018, plaintiff filed a

motion for dismissal without prejudice. The court granted plaintiff’s motion for dismissal

without prejudice on July 9, 2018.

Following dismissal of its first Complaint, plaintiff submitted a certified claim to the

contracting officer on July 19, 2018, requesting an equitable adjustment of $7,177,045.68.

The contracting officer issued a timely, final decision on November 20, 2018.3 The

2 Case No. 1:15-cv-01566-MBH was filed on December 23, 2015.

3 The statute at 41 U.S.C. § 7103(f)(2) provides that:

(2) Claim of more than $100,000.--A contracting officer shall, within 60

days of receipt of a submitted certified claim over $100,000--

(A) issue a decision; or

(B) notify the contractor of the time within which a decision will be issued.

41 U.S.C. § 7103(f)(2) (2018) (emphasis in original).

2

contracting officer’s final decision evaluated fourteen distinct claims for compensation,

determining that none of plaintiff’s claims warranted compensation.

Thereafter, plaintiff filed a Complaint in the United States Court of Federal Claims,

case number 19-102C, which alleged five claims for relief: (1) equitable adjustment based

upon Type I Differing Site Conditions, (2) breach of contract based upon Superior

Knowledge, (3) breach of contract based upon breach of the Covenant of Good Faith and

Fair Dealing, (4) equitable adjustment based upon Changes, and (5) Defective

Specifications.4 Plaintiff filed an Amended Complaint on March 11, 2022, which does not

include plaintiff’s claim of Defective Specifications. Plaintiff subsequently withdrew its

claim for equitable adjustment based upon Changes.

After withdrawing its claims for Defective Specifications and an equitable

adjustment based upon Changes, plaintiff’s remaining claims pursue damages for breach

of contract, including attorney fees and permitted interest, plus monetary relief in the

amount of $7,177,045.68.5 Plaintiff argues TPMC is entitled to breach of contract relief

under the Tucker Act, 28 U.S.C. § 1491, FAR 52.236-2 (1984), and the Contract Disputes

Act, 41 U.S.C. §§ 7101-7109.

The parties engaged in extensive and time-consuming discovery. Discovery was

also impacted by the length of time between when plaintiff completed the work and the

initiation of discovery and the subsequent, twelve-day trial.

4 The statute at 41 U.S.C. § 7104(b) provides in part:

(b) Bringing an action de novo in Federal Court.--

(1) In general.--Except as provided in paragraph (2), and in lieu of

appealing the decision of a contracting officer under section 7103 of this title

to an agency board, a contractor may bring an action directly on the claim

in the United States Court of Federal Claims, notwithstanding any contract

provision, regulation, or rule of law to the contrary.

…

(3) Time for filing.--A contractor shall file any action under paragraph (1)

or (2) within 12 months from the date of receipt of a contracting officer's

decision under section 7103 of this title.

(4) De novo.--An action under paragraph (1) or (2) shall proceed de novo

in accordance with the rules of the appropriate court.

41 U.S.C. § 7104(b) (2018) (emphasis in original).

5 Plaintiff’s post-trial brief requests monetary relief in the amount of $7,177,584.92.

3

FINDINGS OF FACT

The facts in this case are largely uncontested. In 1910, the USDA purchased a

475-acre farm near Beltsville, MD, and the BARC was established in 1934. See OFFICE

OF TECHNOLOGY ASSESSMENT, AN ASSESSMENT OF THE UNITED STATES FOOD AND

AGRICULTURAL RESEARCH SYSTEM (1981). Today, the facility is known as the Henry A.

Wallace BARC, encompasses 6,600 acres, and is designated by the Environmental

Protection Agency (EPA) as a superfund site.

The BARC is used to conduct research involving soil, water, and air conservation,

plant sciences, animal sciences, commodity conversion and delivery, and human

nutrition. The research on plant and animal sciences generated low-level radioactive

wastes (LLRWs) which were disposed at LLRBS. The LLRWs generated at the BARC

“included dry solid materials such as gloves, paper, and syringes; other solid materials in

the form of sealed sources and electron capture detectors; glass and plastic liquid

scintillation vials [(LSVs)] containing scintillation liquids; aqueous and organic bulk liquids,

plastic bags containing decomposed rat and chicken carcasses, bedding, and excreta;

and other radioactively contaminated laboratory wastes.” (alteration added).

The USDA was permitted to dispose of LLRWs at the LLRBS under NRC License

Number 19-00915-03, originally issued by the Atomic Energy Commission (AEC). While

the South Field does not appear to have been used for burials, LLRW burials in the North

Field began in 1949, and the last burial pit was closed May 28, 1987. Each of the two

fields is approximately 150 feet by 200 feet. Reportedly, the North Field contained fifty

areas designated for use as burial pits, forty-six of which were believed to have been

used for waste disposal.

Under the NRC regulations at 10 C.F.R. Parts 2, 30, 40, 70, and 72, the USDA

was required to decommission the LLRBS because “[n]o principal activities ha[d] been

conducted for a period of 24 months in any separate building or outdoor area that contains

residual radioactivity such that the building or outdoor area is unsuitable for release in

accordance with NRC requirements.” See 10 C.F.R. § 72.54(d)(3) (1994) (alterations

added); see also Timeliness in Decommissioning of Material Facilities, 59 Fed. Reg.

36026, 36039 (Jul. 15, 1994). Because the USDA could not verify that the LLRBS met

the unrestricted radiological criteria for release for unrestricted use, the USDA was

required to initiate the NRC decommissioning process under the regulation at 10 C.F.R.

30.36(d). See 10 C.F.R. 20.1402.

At trial, the parties jointly moved to admit into evidence the “REVISED FINAL

DECOMMISSIONING PLAN,” which described the NRC decommissioning process, as

the process applied to the LLRBS:

The steps in the process (based on current regulations and

guidance) are as follows:

4

1. Stop operations, either in a specific area or building or for the entire

facility.

2. Notify NRC of the decision within 60 days.

3. Determine locations and concentrations of remaining radiological

contamination.

4. If necessary, develop a Decommissioning Plan that includes all of the

following:

a) the current radiological contamination at the site;

b) the criteria for the final condition of the site;

c) the activities to remediate existing contamination that are not

currently authorized by the license;

d) procedures to protect workers;

e) decommissioning cost estimates;

f) the final survey method to demonstrate compliance with NRC

criteria; and

g) the schedule for remediation activities and license termination.

5. If necessary, provide environmental information for NEPA [National

Environmental Policy Act] Compliance.

6. Clean up contamination, as needed.

7. Conduct Final Status Survey (FSS) to show compliance with dose

limits for license termination.

8. Request that NRC terminate the license (NRC, 2006).

(alteration added; capitalization in original).

At trial John Jensen, a radiation safety officer at the USDA and the employee who

personally submitted the Decommissioning Plan to the NRC for approval,6 testified that

6 Mr. Jensen testified that the Decommissioning Plan, when submitted to the NRC, would

be accompanied by a cover letter. Mr. Jensen further testified that the cover letter would

5

the USDA, contracting through Army Contracting Command-Rock Island (ACC-RI), hired

Cabrera Services, Inc. (Cabrera) “to get a sense of the materials in the site.” Pursuant to

their contract to survey the LLRBS, Cabrera produced the “DRAFT FINAL LOW LEVEL

RADIATION BURIAL SITE WASTE CHARACTERIZATION SURVEY” (Draft Waste

Characterization Survey) and the “FINAL LOW LEVEL RADIATION BURIAL SITE FINAL

STATUS SURVEY DESIGN PLAN” (Final Status Survey Design Plan). (capitalization in

original). The Waste Characterization Survey,7 which the parties jointly moved to admit

into evidence, states that Cabrera’s Waste Characterization Survey work plan included

the following tasks:

• Geophysical surveys in the North Field to delineate the footprint of

individual burial cells, and in the South Field to confirm the widely-held

belief that no burials have taken place there

• Gamma and beta walkover surveys to map potential near-surface

radiological materials

• Groundwater sampling and analysis of selected wells around the Site to

assess migration of contaminants away from source materials

• Excavation, radiological characterization, segregation, and packaging of

soils and waste materials in 4 of the 50 documented waste cells (one of

the cells designated during this field program was extended to an adjacent

area prior to completion of the field program)

• Sampling surface and subsurface soil along the floor of each excavation

(from 0 to 2 ft below the excavation floor), and installing a temporary well

in each pit to sample groundwater

• Backfilling all excavations with clean fill and restoring the site to pre-

characterization survey conditions

(formatting in original). The Final Status Survey Plan,8 which the parties jointly moved to

admit into evidence, included the following tasks:

• Beta and gamma walkover surveys to map potential near-surface

radiological materials

state: “Attached is our decommissioning plan” and the sender would be identified as “John

T. Jensen, radiation safety officer, USDA.”

7 The Draft Waste Characterization Survey, Joint Ex. 002, is dated July 2008 on the title

page, but most of all other pages are individually dated August 2007.

8 The Final Status Survey Design Plan, Joint Ex. 003, is dated October 2008 on the title

page, but most of all other pages are individually dated July 2008.

6

• Excavation, radiological characterization, segregation, and packaging of

soils and waste materials in the remaining waste cells or disposal pits

• Sampling surface and subsurface soil along the floor of each excavation

(from 0 to 2 feet below the excavation floor), and installing a temporary

well in each disposal pit to sample groundwater

• Backfilling all excavations with clean fill and restoring the site to pre-

disposal conditions

(formatting in original).

Cabrera executed field operations at the LLRBS from November 2005 until March

2007. Cabrera’s field operations included the excavation of at least four of the LLRBS’s

fifty designated pits, including Pits 1, 14, 26, and 34. Additionally, Cabrera excavated Pit

34C, which may have been an extension of Pit 34 or a separate pit altogether; Mr. Jensen

testified that “we called one area of excavation 34 and then another area 34C because

we thought it was perhaps part of 34, but we weren't too sure.”9 According to the testimony

of Dana Jackson, the senior remedial project manager for the USDA Superfund Program

at the BARC, Cabrera and the USDA chose to excavate Pits 1, 14, 26, and 34 “to get a

cross-section of materials [in the pits] through time” because, “if you’re trying to reduce –

to do a removal action, you’d like to get a very good estimate of what you might be

anticipated to encounter in the subsurface for costing purposes.” (alteration added).

Appendix F of the Waste Characterization Survey contains a selection of Cabrera’s

daily and weekly field reports. The daily reports for April 19-27, 2006, detail Cabrera’s

excavation of Pit 1. Pertinent to this case, the Daily Report for April 19, 2006, states that

Cabrera discovered “a layer of stone found at 3.5’ depth, noticed some dark soil on what

may be the edges of the pit,” but the Daily Report for April 20, 2006, states that “continue

[to determine] pit location” and that “at about 5.5’ depth we spot some ceramic & glass

debris on pit edges,” with no mention of debris found between the surface and five and

one-half feet. (alteration added). The Daily Report for April 20, 2006, eventually places

the “[p]it depth at about 8’.” (alteration added). The Daily Report for April 25, 2006,

characterizes the quantity of debris buried in Pit 1 as “[v]ery minimal debris or waste items

found.” (alteration added). The quantity of debris found in Pit 1 was so little that the USDA

asked Cabrera “to fluff the soils some more & continue contaerizing [sic] a few more soil

drums to ensure a thorough investigation of the pit area.” (alteration added).

Cabrera’s Weekly Project Summary for the weeks ending April 21 and April 28,

2006, further characterize Cabrera’s survey of Pit 1. These two project summaries state

that Cabrera identified Pit 1 “by small pieces of glass and metal debris” that were “located

about 5 feet below ground surface.” Cabrera removed material from Pit 1 that filled forty

9 According to TPMC’s certified claim, Pits 26 and 34C were mislabeled by Cabrera: “Pit

26 was actually Pit 19. Pit 34C was actually Pit 27.”

7

55-gallon drums, of which were “2 drums of debris and 38 drums of soil.” Cabrera

characterized Pit 1’s waste as “primarily of dry soil with small amounts (less than 10%) of

glass, rusted metal, and ceramic. No indications have been found of liquids, carcasses,

biological materials, or sealed sources.”

Cabrera’s daily reports covering May 3-5, 2006, discuss the excavation and

characterization of Pit 14.10 Cabrera found that “[t]he top [sic] Pit #2 is about 6-7’ below

surface grade” and “[t]here are no signs of liquids or other solid material other than

bones.” (alterations added). Cabrera noted that:

The only true signs of any biological contamination, besides the bones,

appears [sic] to be the plastic that lines the pit. the plastic is covered with a

reddish brown substance presumably blood. Anyone working near this

plastic is given green nitriles to handle the plastic. We have also

encountered very minimal debris other than bones. We have discovered a

35 gallon trash can lid, and a few pieces of terracotta pipe.

The Project Summary for the week ending May 5, 2006, states that the Pit 14 excavation

lasted only two days and “revealed no liquids or scintillation vials, as had been expected.

Instead, the pit contained bones representing the apparent remains of three cows, along

with some plastic wrapping.”11

Cabrera’s excavation of Pit 26 began May 17 and ended May 25, however, only

the Daily Reports covering May 22-25 and the two corresponding weekly summaries are

included in Appendix F of the Waste Characterization Survey. The Weekly Project

Summary for the week ending May 19 states that the “[w]aste encountered in the pit

included liquid scintillation vials, 1-gallon glass jugs full of liquid, needles and other

biological materials, and other debris,” including “[d]rums and fiber boxes.” (alterations

added). This summary also identifies a changed field condition of perched water,

explaining that “[u]pon breaking the wall of Pit 26, water poured out in a heavy stream,

and continued to flow through Thursday morning.” (alteration added). According to the

summary, “[t]he water level at approximately 8 foot depth, and thus saturates waste within

the pit.” (alteration added). This summary also states that Cabrera encountered waste

“within 1 foot of the surface” and that “there was no clear boundary of 5 feet of clear soil

separating Pit 26 from the next pit to the west. “There may initially have been a boundary,

but the boundary has been saturated with water and undergone slumping over the years,

resulting in elimination of clear pit boundaries.” Because “the volume [of water] continued

to flow” and “as it became clear that there was no soil boundary between Pit 26 and

10 The Daily Report for May 3, 2006, initially refers to Pit 14 as Pit 2, but adopts the name

“Pit 14” within the report and for all subsequent reports.

11 Cabrera expected to find liquid waste and “1000 vials” in Pit 14. A liquid scintillation vial

(LSV) may be made from glass or plastic, is approximately two and one-eighth inches tall,

is approximately eleven-sixteenths of an inch in diameter and utilizes a screw-on top.

8

adjacent pits,” Cabrera speculated “that the water is a larger volume reservoir that

saturates numerous pits.” (alteration added).

The Daily Report for May 22, 2006, states that “[w]ater is still infiltrating the pit”

such that Cabrera “laid pallets of wood onto the pit floor to give our entrants a working

platform.” (alteration added). The May 22, 2006, Daily Report also states that “[t]he debris

in the north wall and pit floor is consistent with that found in earlier activities. LSV[s]

(bagged & boxed), loose pipettes & other broken glass debris, lab packs with

containerized liquid waste, plastic bottles and misc. debris.” (alterations added). The Daily

Report for May 23, 2006, states in part:

Pit #26 is now defined by an area ~ 10’ squared and to a depth of about 8’.

The bottom of this pit lies on top of perch water, and if excavated further

could lead to situations for which we aren't suited to handle. USDA

personnel has seen pit #26 and is aware of the perch water situation. The

volume of waste is equal to earlier pit excavations and the type of waste

has been consistent during characterization activities for this pit (LSV & Lab

packs). Client reps agree that we have met our goals for characterization

activities for this pit and accepted our proposed methods for sampling the

pit floor.

The southern wall of this pit shows no debris within the visual plane of the

wall which indicates a defined boundary. The western wall shows signs of

debris, as does the northern wall, indicating undefined boundary, thus there

exists a potential of increasing the size of this pit. It is assumable that the

pit floor is actually a layer of soil covering ~2’ layer of waste. As with earlier

pits, before backfilling begins we will bind our activities with a layer of

geotech fabric.

...

We were able to segregate four Pit #26 debris drums into 6 categories of

Sharps/Animals, Soil (wet/dry), LS vials, Macro debris (wire, pipe, wood,

plastic, metals), DAW [Dry Active Waste] (PPE/RCRA M/T containers), &

paint waste.

(capitalization in original; alteration and omission added). The Weekly Project Summary

for the week ending May 26 states that “the volume of waste removed was increased due

to the presence of waste materials within 1 foot of the surface, instead of at 5 feet, as

planned. Overall, the volume of waste materials removed exceeded the planned volume.”

Only Cabrera’s Daily Report for June 6, 2006, of the daily reports included in the

Waste Characterization Survey, discusses the excavation and characterization of Pit 34,

stating in part:

9

Started searching for Pit #34. Locating activities started at the southern

most [sic] boundary of the proposed location and proceeded in a northerly

direction. The pit was found about 20’ from this southern boundary line. Top

of the pit was aprox 4’ below grade and the pit is aprox. 10’x 12’ square, as

proposed by USDA personnel. Waste contents are mainly DAW [Dry Active

Waste] w/some lab packs and LSV. Animal/Biological wastes have not been

identified in this pit. Pit# 34 is the best defined pit we have characterized to

this point. The edges are clearly definable and we have no water infiltration

at this time.

(abbreviations and capitalization in original; alterations added). According to the Weekly

Project Summary for the week ending June 9, 2006, Cabrera excavated “70 drums of

debris, scintillation vials, and other wastes” from Pit 34 and “DIFFICULTIES

ENCOUNTERED” were “[n]one.” (alteration added; capitalization emphasis in original).

Appendix C of the Waste Characterization Survey, prepared by Cabrera, contains

six relevant photographs captured during Cabrera’s site investigation. These six relevant

photographs include one photograph that appears to depict a vial among the Pit 1 debris

and five photographs that appear to depict vials and LSVs among the Pit 26 debris. The

six photographs are:

10

11

12

None of the photographs included in the Waste Characterization Survey depict Pits 34 or

34C, or any of the waste that was buried in Pits 34 or 34C. According to the

Decommissioning Plan, Pits 34 and 34C accounted for more than two-thirds of all LSVs

remediated by Cabrera during the LLRBS Waste Characterization Survey.12

Cabrera prepared the Waste Characterization Survey and Final Status Survey

Design Plan, following its field operations at the LLRBS. The information contained in the

Waste Characterization Survey and the Final Site Survey Design Plan was used to

develop a draft decommissioning plan for submission to the NRC. Cabrera also

developed, with the USDA, the 2009 Draft Decommissioning Plan, incorporating the

findings of the Waste Characterization Survey. Of note, Mr. Jackson stated, in a

December 11, 2008 email, that “I found that the DP [Decommissioning Plan] was

prepared by someone who was never actually on site and the on site PM [Project

Manager] has since left the company.” Mr. Jackson testified at trial that his opinion – that

the author of the Decommissioning Plan was never actually at the LLRBS – was “because

some of the information seemed to not – not to be exactly as some site conditions

existed.”

12 According to the 2009 Decommissioning Plan, “Table 4 summarizes the volumes of

wastes recovered [by Cabrera].” (alteration added). According to Table 4, the remediation

efforts during the Waste Characterization Survey yielded 1.9 cubic yards (CY) from Pit

26, 2.7 CY from Pit 34, and 1.9 CY from Pit 34C.

13

About two years and nine months after Cabrera completed its field operations and

about nine months before the Army issued the Solicitation, Mr. Jackson conducted a

“surface visual survey” of the LLRBS. During the survey, conducted after the LLRBS had

been recently mowed, Mr. Jackson discovered what he described as “some broken

glassware.” At the time, according to Mr. Jackson’s testimony, Mr. Jackson “still didn’t

know what scintillation vials were.” Therefore, according to Mr. Jackson, when he sent an

email on December 2, 2008, to Pete Jovanovich, who at the time was an environmental

protection specialist at the USDA, describing the discovered glassware, he stated he “was

objective in what I saw on the ground in a few places.” In the email, Mr. Jackson stated

that “there seems to be a statistically significant amount of broken and intact lab

glassware on the surface on areas of [Cabrera’s] excavation.” (alteration added). Mr.

Jackson later testified that “I think we saw a total of, like, three scintillation vials that were

broken or intact at the surface in one location” and that “from my recollection, the entire

site was not littered with debris. It was just a small area.”

Having created a draft decommissioning plan13 and developed a PWS, the USDA

determined to engage a contractor to execute the decommissioning plan. “[R]ather than

blazing its own path,” according to defendant’s counsel, the USDA “asked the Army

Contracting Command at Rock Island to help it out” because the ACC-RI is “a part of the

Army that deals a fair bit with cleaning up and disposing of dangerous and hazardous

waste.” (alteration added). Additionally, according to Mr. Jensen, the USDA “had been

working with them [ACC-RI] for many years on many of these types of projects, and other

more routine radioactive waste disposals from various facilities.” (alteration added).

On January 23, 2009, Derek Cornette, a health physicist14 formerly employed by

the Army, emailed a revised memorandum to USDA and Army personnel, which was

created for the purpose of requesting a solicitation for the “Decommissioning and License

Termination of the” LLRBS. (capitalization in original). The memorandum specified that

responsive proposals should include “a cost estimate and technical proposal based on

the SOW [statement of work] and DP attached to this letter.” (alteration added). Also

attached to the memorandum was the Final Site Survey Design Plan and Waste

Characterization Survey generated by Cabrera. The SOW states that “[t]he contractor will

bid on all aspects of work in the DP and FSS [Final Site Survey]. The SCS [Waste

13 The USDA first submitted a draft Decommissioning Plan to the NRC on December 1,

2005.

14 As a health physicist, Mr. Cornette was responsible for “[t]he safe handling of

radioactive material, disposal, packaging of radioactive material,” providing training

related to “site remediations” to personnel on military bases, and “decommissioning

[radioactive burial sites].” (alterations added).

14

Characterization Survey] is provided for historical information and to assist with the

proposal.”15 (alterations added).

Defendant issued Solicitation Number W52P1J-09-R-0118 on September 08,

2009.16 The Solicitation states that “[t]he solicitation will result in a single award of a three-

year Indefinite Delivery Indefinite Quantity Contract. Task orders may be awarded as firm

fixed-price or Labor Hour or Time and Material Effort, such as a fixed unit rate.”

(capitalization in original). The Solicitation also states:

The PWS is currently supported by a draft Decommissioning Plan (DP) that

is under review by the Nuclear Regulatory Commission (NRC). Offerors are

instructed to develop their proposals based on the information contained in

the draft plan, however some of the work will not commence on this contract

until final approval is obtained from the NRC. If there are significant changes

contained in the final DP that impact price, the contractor may submit a

request for equitable adjustment.

The Solicitation later reiterates that “[o]fferors shall submit their proposed approach for

completing the work called out for each task in the Performance Work Statement (PWS)

based on the guidelines in the draft Decommissioning Plan (DP).” (alteration added).

Section J of the Solicitation lists the following documents as attachments: PWS, Technical

Estimate Spreadsheet, and Price Estimate Spreadsheet.

Section I of the Solicitation identifies clauses applicable to the Solicitation,

including FAR 52.216-18 Ordering (OCT 1995), FAR 52.216-22 Indefinite Quantity (OCT

1995), FAR 52.236-2 Differing Site Conditions (APR 1984), FAR 52.243-1 Changes-

Fixed-Price (AUG 1987) – Alternate I (APR 1984),17 and FAR 52.243-3 Changes-Time-

15 The court notes that Joint Ex. 003, the “FINAL LOW LEVEL RADIATION BURIAL SITE

FINAL STATUS SURVEY DESIGN PLAN,” is dated “October 2008” on the title page, is

dated “July 2008” on pages i through forty-two, includes Figures 1-4, and includes

Appendix A, “Estimation on Minimum Detectable Concentrations (MDC),” and the final

two pages of Appendix A appear to be incorrectly sequenced. (capitalization and

emphasis in original). The court also notes that Joint Ex. 005, “REVISED FINAL

DECOMMISSIONING PLAN,” is dated July 2009 and labels Appendix C as the “Final

Status Survey Plan.” (capitalization in original). The Final Status Survey Plan appended

to Joint Ex. 005 is titled “LOW LEVEL RADIATION BURIAL SITE FINAL STATUS

SURVEY DESIGN PLAN,” is dated “August 2007” on the title page, is dated “August 2007

on pages i through forty-two, includes Figures 1-3, and includes Appendix A, “Estimation

on Minimum Detectable Concentrations (MDC).” (capitalization and emphasis in original).

16Solicitation W52P1J-09-R-0118, Joint Ex. 008 in the record before the court, is

unsigned.

17 The clause at FAR 52.243-1 – Alternate I provides, in pertinent part:

15

and-Materials or Labor-Hours (SEPT 2000).18 (capitalization in original). The clause at

FAR 52.216-18, as written in the Solicitation, which was incorporated into the Contract,

and the Contract, provides in pertinent part:

(a) The Contracting Officer may at any time, by written order, and without

notice to the sureties, if any, make changes within the general scope of this

contract in any one or more of the following:

(1) Description of services to be performed.

(2) Time of performance (i.e., hours of the day, days of the week,

etc.).

(3) Place of performance of the services.

...

(c) The Contractor must assert its right to an adjustment under this clause

within 30 days from the date of receipt of the written order. However, if the

Contracting Officer decides that the facts justify it, the Contracting Officer

may receive and act upon a proposal submitted before final payment of the

contract.

FAR 52.243-1 Changes-Fixed-Price (AUG 1987) – Alternate I (APR 1984).

18 The clause at FAR 52.243-3 provides in pertinent part:

(a) The Contracting Officer may at any time, by written order, and without

notice to the sureties, if any, make changes within the general scope of this

contract in any one or more of the following:

(1) Description of services to be performed.

(2) Time of performance (i.e., hours of the day, days of the week,

etc.).

(3) Place of performance of the services.

(4) Drawings, designs, or specifications when the supplies to be

furnished are to be specially manufactured for the Government in

accordance with the drawings, designs, or specifications.

(5) Method of shipment or packing of supplies.

(6) Place of delivery.

(7) Amount of Government-furnished property.

...

(c) The Contractor shall assert its right to an adjustment under this clause

within 30 days from the date of receipt of the written order. However, if the

Contracting Officer decides that the facts justify it, the Contracting Officer

16

(a) Any supplies and services to be furnished under this contract shall be

ordered by issuance of delivery orders or task orders by the individuals or

activities designated in the Schedule. Such orders may be issued for a

period of three (3) years from the date of contract award.

(b) All delivery orders or task orders are subject to the terms and conditions

of this contract. In the event of conflict between a delivery order or task order

and this contract, the contract shall control.

The sub-clause at FAR 52.216-22(d), as written in the Solicitation (and Contract),

provides:

“(d) Any order issued during the effective period of this contract and not

completed within that period shall be completed by the Contractor within the

time specified in the order. The contract shall govern the Contractors and

Governments rights and obligations with respect to that order to the same

extent as if the order were completed during the contracts effective period;

provided, that the Contractor shall not be required to make any deliveries

under this contract after three (3) years.

The clause at FAR 52.236-2, which was incorporated by reference, provides:

(a) The Contractor shall promptly, and before the conditions are disturbed,

give a written notice to the Contracting Officer of-

(1) Subsurface or latent physical conditions at the site which differ

materially from those indicated in this contract; or

(2) Unknown physical conditions at the site, of an unusual nature, which

differ materially from those ordinarily encountered and generally

recognized as inhering in work of the character provided for in the

contract.

(b) The Contracting Officer shall investigate the site conditions promptly

after receiving the notice. If the conditions do materially so differ and cause

an increase or decrease in the Contractor’s cost of, or the time required for,

performing any part of the work under this contract, whether or not changed

as a result of the conditions, an equitable adjustment shall be made under

this clause and the contract modified in writing accordingly.

may receive and act upon a proposal submitted before final payment of the

contract.

FAR 52.243-3 Changes-Time-and-Materials or Labor-Hours (SEPT 2000). (emphasis in

original).

17

(c) No request by the Contractor for an equitable adjustment to the contract

under this clause shall be allowed, unless the Contractor has given the

written notice required; provided, that the time prescribed in paragraph (a)

of this clause for giving written notice may be extended by the Contracting

Officer.

(d) No request by the Contractor for an equitable adjustment to the contract

for differing site conditions shall be allowed if made after final payment

under this contract.

FAR 52.236-2 Differing Site Conditions (APR 1984) (emphasis in original).

The PWS provides nine specific tasks which “shall be performed in accordance

with the applicable requirements of Section 3.0 ‘GENERAL REQUIREMENTS.’”

(capitalization in original). The specified tasks are: (1) Work Plan, (2)

Mobilization/Demobilization, (3) Site Remediation, (4) Site Sampling, (5)

Packaging/Staging, (6) Transport Contaminated Soil, Mixed Waste, and LLRW to the

Appropriate Treatment/Disposal Facility, (7) Treatment/Disposal, (8) Final Status Survey

Report, and (9) Human Health Baseline Risk Assessment. The PWS instructs that “[a]ll

submittals for the above ‘Specific Tasks’ will be reviewed for accuracy and compliance

with the DP [Decommissioning Plan], PWS and regulations.” (alterations added).

Pertinent to this case, the PWS provides that:

The contractor shall conduct the work efforts under a formally approved

NRC decommissioning plan. The USDA has submitted a draft

decommissioning plan to NRC Region I which the contractor shall update,

as required after award, to comply with the Multi-Agency Radiation Survey

and Site Investigation Manual (MARSSIM, NUREG- 1575) and the NRC

dose-based release criteria of 25 mrem/yr Total Effective Dose Equivalent

(TEDE). The contractor shall conduct their decommissioning activities in

accordance with this performance work statement and the final NRC-

approved decommissioning plans. Any deviation from those plans must be

coordinated with JMC/USDA [Joint Munitions Command/United States

Department of Agriculture] to be approved by the NRC prior to action being

taken by the contractor.

The Contractor should be prepared to attend and participate in at least 4

public meetings regarding this project. These meetings will be to inform the

public of proposed operations, objectives, and methods of operation.

The Contractor is advised to conduct the work in a manner that insures [sic]

compliance with the schedule, as it is essential to the successful completion

of this project. Any failure to meet milestones will be addressed in the

Quality Assurance Survelliance [sic] Plan.

18

(alterations added).

Critical to the case at bar, the PWS describes the measurement method of Task 1

as:

The Government will review the WP [work plan] for its ability to meet project

objectives, specific requirements, and for proper and safe application of

procedures and equipment utilized. The Government will review the WP and

provide comments to the Contractor, which will require a written response

from the Contractor and/or possible changes to the WP. The comments will

focus primarily on compliance with the draft DP and all references contained

within. These comments are to be addressed in detail by the Contractor.

Additional comments may be provided for the Contractor's review and

consideration that relate to economy and efficiency, which the Contractor

may choose to incorporate; however, the Contractor is responsible for any

impact this may have, positive or negative.

(alteration added). The PWS also relates the objective for Task 5 as:

Package, containerize, stage and prepare to transport contaminated soil,

liquids, mixed waste, etc. to the appropriate disposal site in accordance with

the approved DP and WP. Any material that is found to be hazardous waste,

during the excavation, will be radiologically free released and prepared for

packaging, storage and treatment/disposal at an approved facility. All waste

will be segregated, packaged and staged based on sample analysis results.

The Solicitation was amended seven times, and each of the amendments, except

for Amendment 0007, included offeror questions and government responses. Pertinent

to the case at bar, contractor question and government response “o” of Solicitation

Amendment 0001 states:

Contractor Question (o)

In order to demonstrate cost efficiencies and innovative approaches,

changes from the procedures outlined in the decommissioning plan may be

necessary.\~ [sic] Are changes to the DP permissible?

Government Response (o)

Offerors are instructed to develop their proposals based on the information

contained in the draft DP. Changes to the draft DP are not permissible.

(alteration added). The section of Solicitation Amendment 0002 titled “SECTION A -

SUPPLEMENTAL INFORMATION” states that “[t]he first burial pit was dug in the 1950s

and there are no clear records as to exactly what materials are present or how they were

packaged up th[r]ough pits dug in the 1970s.” (alterations added). Amendment 0002 also

provides government responses to contractor questions “g” and “i” as follows:

19

Contractor Question (g)

What task orders will be time-and-material or labor-hour contract types?

Government Response (g)

Fixed unit rate (time-and-material/labor-hour) task orders are called out in

section L of the solicitation.[19]

Contractor Question (i)

Is the soil immediately above (backfill material) [overburden20] considered

as radioactive waste or is it part of the Class 3 excavations?

Government Response (i)

The back fill material is probably not contaminated; however, offerors

should consider it as part of the total volume for disposal.

(alteration and footnote added). Government responses to contractor questions (e), (o),

(ae), (al), and (ar), provided in Amendment 0003, state:

Contractor Question (e)

The answer to question 6i in Amendment 2 states that the back fill material

[overburden] should be considered as part of the total volume for disposal.

Please clarify that if characterization indicates the backfill material is not

contaminated, can it be used to back fill the hole instead of being managed

as waste.

Government Response (e)

For additional clarification to question 6i of Amendment 0002, the backfill

material will be identified as either clean or waste. If the offeror chooses to

sample the back fill material and analysis determines the material to be

clean, then yes, it can be used to backfill the hole instead of being managed

as waste; however the clean backfill material may not be blended with the

wastes to lower the concentration on [sic] contamination. If the offeror

19 Section L of the Original Solicitation states that Tasks 1, 2, 8, and 9 “will be incorporated

into the contract on a Firm-Fixed-Price basis,” and, for Tasks 3, 4, 5, 6, and 7, “[t]he offeror

shall be held to all of the proposed fully-burdened fixed unit rates for contract pricing.”

Also, the Acquisition Strategy Checklist, signed by Chief, Installation Contracting Division,

indicates the contract type is both “Firm Fixed Price” and “T&M/LH [time and

materials/labor-hour]” and states that “[t]ask orders may be awarded as firm fixed-price

or time-and-materials, such as a fixed unit rate (see time-and-materials determination and

findings).” (alterations added). However, each of the Solicitation’s amendments does

display a “Contract ID Code” (Block 1 of Standard Form 30) of “Firm-Fixed-Price.”

20 The overburden is considered the first five feet of material below ground surface.

20

decides to assume the back fill material is contaminated/waste, then the

material shall be handled as such.

Contractor Question (o)

Regarding contractor question h of Amendment 0001, please confirm that

the radioactive only [sic] contaminated materials can be stored up to 18

months at the site, and that hazardous/mixed wastes need to comply with

the RCRA [Resource Conservation and Recovery Act] 90-day storage

requirements.

Government Response (o)

It is a CERCLA site. Yes, the intent is to have the hazardous and mixed

waste off site within the 90[-day] requirement.

Contractor Question (ae)

Section L-6 classifies the type of contracts being, firm fixed price, time and

materials [T&M], and labor hour contract. The price sheets however do not

support this classification. For example, we do not see any price sheet that

is based on T&M. Price sheets that are not firm fixed price are often based

on firm fixed unit rate (volume, drum, sample, etc). In other words, we do

not see any price sheet representing T&M. Please clarify.

Government Response (ae)

Fixed unit rate is a form of T&M and Labor Hour; therefore, T&M effort will

not specifically be addressed on any pricing sheets.

Contractor Question (al)

Draft Decommissioning Plan–Section 1.0, Facility Operations History,

Subparagraph 1.1, License Status and Authorized Activities, fifth

paragraph, page 2, and Section 4.1.1., Potential Application of Screening

Levels, third paragraph, page 30, refers to the pit depth being 10 feet thick

and separated approximately 6 feet horizontally from one another.

However, Section 5.0, Planned Decommissioning Activities, second

paragraph, page 36, refers to the 5 feet thick layer of waste, which is

separated horizontally by 5 feet of sidewalls. Are the waste pits 5 or 10 feet

thick? Do 5 or 6 feet of sidewall materials separate the pits horizontally?

Government Response (al)

All dimensions are estimates; however, assume the pits to be 12 x 10 x 10

with 5 of cover and 6 of side wall material.

Contractor Question (ar)

Item L-2 is a regulatory cite incorporating clause 52.216-29 TIME-AND-

MATERIALS/LABOR-HOUR PROPOSAL REQUIREMENTS – NON

COMMERCIAL ITEM ACQUISITION WITH ADEQUATE PRICE

COMPETITION. This clause calls for fully burdened, fixed hourly rates by

21

labor category. There is no place in the Attachment 0003 to enter fully

burdened prices for the various labor categories. Shall we add a sheet on

which to enter these rates? Or, perhaps, was the clause included

inadvertently?

Government Response ar)

The clause is applicable. The contact [sic] line items that are considered

Time-and-Material/Labor-Hour are in the form of fixed unit rates based on a

unit of issue. Therefore, fully burdened fixed unit rates are to be provided in

Attachment 0003 where identified in the respective task worksheets.

(alterations added). Additionally, the government response to contractor question (ab) of

Amendment 0003 states that “[t]he successful offeror may place a barrier in the pit and

backfill if they want to while waiting on the EPA to confirm the area, or they may leave it

open.” (alteration added). Finally, Amendment 0004 provides the contractor question and

government response to question (i), stating:

Contractor Question (i)

Based on JMC’s response to Question i (Amendment 0002) on September

8, 2009, are bidders to assume that this volume increase (i.e., which now

includes backfill material) has no impact to the total volume percent ages

(i.e., 81% of Contaminated Soil/Debris/Water; 10% of Mixed Waste, 8% of

LLRW, 1% of Hazardous Waste) we are required to bid to [sic] on the

Price/Estimate and Technical Estimate worksheets for Tasks 5, 6, and 7?

Government Response (i)

As stated in the response to Question i of Amendment 0002, the backfill

material is probably not contaminated; therefore, it should be assumed that

it has no impact to the total volume percentages of the waste material.

(alteration added).

Regarding the first five feet of dirt below ground level, or overburden, the July 2009

Revised Final Decommissioning Plan, attached to the Solicitation, is more definitive,

stating that “[b]ased on historical records provided by the BARC and the 2006

Characterization survey, the top five feet of overburden associated with each burial pit is

considered uncontaminated soil. There is no known surface contamination.” One of the

historical records provided by the BARC was “a draft summary of the LLRBS produced

by Mr. Horner of USDA in the early 1990s.”21 Plaintiff’s exhibit 1003, a memorandum from

Mr. Horner to an EPA employee, is dated February 4, 1993, and appears to have been a

source for the Decommissioning Plan because much of the language is the same. For

example, Mr. Horner’s 1993 memorandum states in part:

21 According to the Beltsville Agricultural Research Center, W.G. Horner was the Deputy

Area Director, Facilities Management and Operations Division, at the BARC.

22

. . . The site is permitted under USDA's Nuclear Regulatory Commission

(NRC) license, No. 19-00915-03, held by the Agency's [USDA] Radiological

Safety staff (RSS). . . .

...

Through September 17, 1984, waste buried at the site consisted of a variety

of BARC research laboratory wastes contaminated with radioactivity. This

included dry solid materials such as gloves, paper, and syringes; other solid

materials in the form of sealed sources and electron capture detectors;

glass and plastic liquid scintillation vials containing liquid scintillant;

aqueous and organic bulk liquids; animal carcasses, bedding, and excreta;

and all other radioactive contaminated laboratory wastes. . . . The enclosed

inventory of radioactive material includes only those materials which have

not decayed to background levels. Inventory records of burials from 1949

through 1960 could not be located, thus are not included in the enclosure.

The USDA's license required only the maintenance of radionuclide and

activity records for wastes disposed of at the site. As a result, no record of

waste container type, waste type, chemical form, or physical form was

maintained. Through interviews with employees present during the active

life of the site it was determined that the majority of wastes placed in the

pits were contained in cardboard boxes. Bulk liquid wastes were contained

in plastic or glass carboys and packaged in cardboard boxes with some

cushioning and absorbent material. Liquid scintillation vials were either

returned to the vial trays and packaged in cardboard boxes, or placed loose

in large plastic bags which were packaged in cardboard boxes (often the

case for mini-vials used in later years). Depending on the volume of wastes

generated, disposal pits were left uncovered until a sufficient volume of

waste was contained. No animal carcasses or excreta were placed in the

pits until immediately before closure. After September 17, 1984 no liquids

were disposed of at the site. After September 24, 1985 only dry solid wastes

and animal carcasses, packaged in 55-gallon steel drums, were disposed

at the site. Radioactive waste shipment and disposal manifests prepared

and maintained for disposals after September 1985, thus providing

supplementary waste information for these disposals.

Twenty-three disposal pits were dug from April 6, 1951 to September 7,

1973, and twenty-seven pits from 1974 to 1987. The pits were dug with

approximate dimensions of 10 feet wide by 12 feet long by 10 feet deep,

with 6 feet of separation between pits and 5 feet of fill on top of each

disposal pit. It is estimated that 33,000 cubic feet of waste is buried at the

site. Four of the pits contain only dry solid or animal wastes, disposed after

1985, packaged in steel drums.

(omissions added).

23

Mr. Jensen was listed as receiving a carbon copy of Mr. Horner’s 1993

memorandum. At trial, Mr. Jensen was asked whether the 1993 memorandum’s

statement that “[l]iquid scintillation vials were either returned to the vial trays and

packaged in cardboard boxes or placed loose in large plastic bags which were packaged

in cardboard boxes” reflects how “LSVs were buried, to your knowledge.” Mr. Jensen

response was:

Ah, it reads – I guess it reflects maybe the USDA's thinking about how those

materials were buried if that's what this all refers to. I assume that's what it

all refers to, and certainly I didn't witness any of those burials, so I don't

know for sure how they were buried. So it may be an interpretation of our

records or something like that.

Mr. Jensen’s testimony also included the following exchange regarding the dimensions:

Q: "The pits were dug with approximate dimensions 10 feet wide by 12 feet

long by 10 feet deep, with 6 feet of separation and five feet of fill on top of

each disposal pit." Do you see that, Mr. Jensen?

A. Yes, sir.

Q. Again, would you agree that that reflects the understanding of the USDA

at this time on how the LRRBS was situated, the condition of it?

A. Configuration, yes.

Q. Okay. Was there anything magical about the five feet of fill on top of each

disposal pit? Does that have any meaning – special meaning according to

your understanding?

A. All of those dimensions are in – to my understanding would be in

accordance with the regulatory requirement for the burial.

Q. Okay. So that's how it was required to be done?

A. Correct.

Conversely, defendant called Dr. Steve Brauner, an environmental engineer, to testify as

an expert witness. When asked his “expert opinion to a reasonable degree of engineering

certainty about the overburden at the LLRBS,” Dr. Brauner stated that “it would have been

more reasonable to have expected to encounter waste material within five feet of the

ground surface and that there was not going to be a clean five feet of material over the

waste at all at the LLRBS” because, in part, Cabrera’s Daily Report for June 6, 2006,

“stat[es] that the top of the waste pit was less than five feet below the existing grade

surface.” (alteration added). In response to Dr. Brauner’s deposition testimony, plaintiff’s

24

expert, John Fulton and a senior executive and program consultant, stated at trial that he

did not agree with Dr. Brauner because “I didn’t find any data that to me would counteract

what was put in the solicitation and its attachments.”22 Mr. Fulton also stated that, “[i]n the

narrative of the WCS [Waste Characterization Survey],” he did not “find anything that

stated there would be waste in the overburden.” (alterations added).

Carl Young, a former Cabrera employee who prepared the Draft Decommissioning

Plan, portions of the Waste Characterization Survey, and the Final Decommissioning

Plan, stated at trial that the Decommissioning Plan’s statement regarding the overburden

being uncontaminated and that there was no known surface contamination were

accurate.23 Regarding the Decommissioning Plan’s statement that LSVs were “either

placed on vial trays and packaged in cardboard boxes for disposal, or place loose in large

plastic bags, then in cardboard boxes,” Mr. Young explained that, according to his

understanding, when Cabrera removed the cardboard boxes containing LSVs from Pit

#26, “they were saturated with water and had to be carefully removed because they would

fall apart . . . but all of the LSCs [LSVs] were either – as I recall, most of them – I mean,

they were largely intact, but they had to be carefully removed and segregated so that they

wouldn’t break. (alteration added).

Defendant issued Amendment 0005 to the Solicitation on October 15, 2009,

announcing that “Cabrera Services is hereby prohibited from participating in this

solicitation as a prime contractor, subcontractor, team member or partner with any other

offeror” to avoid an “organizational conflict of interest.” The conflict existed because “this

solicitation includes a Decommissioning Plan, Final Site Survey Plan, and Site

Characterization Survey which were prepared by Cabrera.”

Mr. Young also testified that, prior to Amendment 0005’s removal of Cabrera from

competition for award of the procurement at issue, Mr. Young “work[ed] on a proposal for

Cabrera for the LLRBS remediation.” (alteration added). When working on Cabrera’s

proposal in response to the Solicitation, an effort that only lasted “perhaps two weeks,”

Mr. Young relied upon Cabrera’s first-hand experience gained during the waste

characterization effort at the LLRBS, the Decommissioning Plan, and “the references that

were in the DP, the Apex reports, EnTech report, and the WCS itself.” Among the

assumptions relied upon by Cabrera when preparing a proposal for the Solicitation, Mr.

Young recalled at trial that “assum[ing] five feet of overburden” and that the LSVs “would

be grouped to some extent in the soil,” basing this later assumption “on the single pit that

we [Cabrera] encountered with a large volume of in situ water and a large volume of vials.”

(alterations added). Regarding the Decommissioning Plan’s statement that “the nature

22 Plaintiff’s expert, John Fulton, testified at trial that his opinion was informed by the

deposition transcripts of the contracting officer, Mr. Jackson, the USDA Project Manager,

and Mr. Young, Cabrera’s employee, as well as Dr. Brauner’s written, expert opinion. Mr.

Fulton testified, at trial, prior to Dr. Brauner.

23 Mr. Young added that “‘[s]urface’ to the NRC means the upper six inches or – what is

it? – X number of centimeters, of the surface soil to the NRC in most states.”

25

and extent of the waste in the pits will be highly variable,” Mr. Young testified that “‘nature’

means the type of contaminants” and “‘[e]xtent’ means how far those contaminants –

where are they located in the subsurface,” meaning the Decommissioning Plan could

fairly be interpretated to mean “the types and distribution of the waste would vary across

the site.” (alteration added).

On September 21, 2009, defendant provided prospective offerors an opportunity

to visit the LLRBS, and the site visit began with a PowerPoint presentation provided by

the contracting officer and was followed by an opportunity to ask questions; plaintiff

participated in the site visit. One slide of the presentation provided to prospective offerors

states that “[p]roposals should be based on the PWS and the Draft Decommission [sic]

Plan.” (alterations added). Offerors were not authorized to conduct subsurface

investigations of the LLRBS, and the single site visit was the offeror’s only opportunity to

visit the LLRBS prior to performance. At trial, the contracting officer testified that she could

not recall whether offerors were authorized to walk upon the North Field of the LLRBS

during the site visit or whether the North Field was fenced. When the contracting officer

was asked, however, “did you look at either the north or the south field,” the contracting

officer stated: “I viewed it from the outside.” When asked “whether offerors were permitted

the opportunity to walk in the south field,” the contracting officer replied: “I believe they

were.” The contracting officer did not observe any LSVs visible on the surface of the North

Field during the site visit.

Plaintiff submitted a timely proposal, dated December 11, 2009, employing a

technical approach designed to “perform all work and final radiological release survey

within the guidelines of the site Decommissioning Plan (DP) (July 2009), Final Status

Survey (FSS) Plan (October 2008), and Waste Characterization Survey (July 2008).”

TPMC’s proposal included the following figure, which, according to plaintiff, “showed the

conditions at the LLRBS that TPMC anticipated based on the Solicitation, amendments,

and attachments” below:

26

Based on these anticipated conditions, plaintiff proposed a 9-Phase Remediation

Approach: (1) Removal of Overburden, (2) Remediate Waste Pits, (3) Remediate and

Remove Sidewall Soils, (4) Characterize Underlying Soils, (5) Remediate Underlying

Soils, (6) Remove Underlying Soils, (7) Conduct Final Status Surveys, (8) Backfill, and

(9) Site Restoration. Generally, plaintiff intended to “bulk excavate the soils for either

direct loading into waste packaging or processing for potential reuse for backfill” when

removing the “overburden, pit sidewalls, and underlying materials.” The proposal

“acknowledge[s] that actual site conditions may vary from” the conditions anticipated by

plaintiff. (alteration added).

Plaintiff’s proposed bulk excavation strategy was to remove the overburden one

foot of soil at a time, conducting a beta-gamma walkover survey following the removal of

each layer, down to five feet below ground surface, as required by the decommissioning

plan.24 Plaintiff’s proposal clarifies that “[a]lthough the overburden is presumed clean, the

24 The July 2009 Revised Final Decommissioning Plan directs:

Soil will then be excavated from the top five feet of clean cover fill material

in one foot lifts. As each one-foot-lift is excavated, the newly-exposed

ground surface will be surveyed via beta and gamma walkover survey. Beta

27

DP requires a MARSSIM [Multi-Agency Radiation

Survey and Site Investigation Manual] FSS [Final Site

Survey] to confirm this understanding.” (alterations

added). But the proposal does state that

“[u]nconsolidated surface soils (i.e., overburden) will be

removed using a bulldozer and front-end loader for

transport to the clean soils staging area.” (alteration

added). Plaintiff proposed “to sequence the excavation

consistent with the burial pit numbering sequence

provided in the pit locations figure in the DP (i.e., Pit 1,

2, 3…46).” (emphasis and omission in original). The

proposed “west to east and north to south” excavation

would “ensure rainwater does not accumulate in low-

lying areas by minimizing natural surface water flow

disruption along the natural land contours” and

“prevent[] contamination during excavation

operations.” (alterations added). Dr. Daniel Caputo,

25

plaintiff’s Vice President responsible for radiation

remediation projects, testified that the proposed

excavation strategy encompassed “the whole LLRBS

North Field.” Included in the proposal was the picture copied below, which appears to

depict the North Field of the LLRBS following the proposed excavation of the first row,

Pits 1-7, of overburden:26

and gamma walkover surveys will be performed at the undisturbed, original

ground surface, then at one foot below original surface grade, then at two

feet below original surface grade, all the way down to five feet below original

surface grade.

Beta and gamma walkover surveys were “used to identify areas of elevated radioactivity.”

25 Plaintiff’s proposal included a “Water Management and Erosion Control” Plan that

included “cover[ing] any exposed face of the contaminated areas every night and/or at

such times that rain may be predicted,” “install[ing] engineered barriers to minimize the

migration of surface water runoff onto the areas where waste material has been exposed,”

and a water collection system, including sump pumps and storage tanks to address “the

potential impact of rainwater collecting in the excavation pits above the waste material.”

(alterations added).

26 The acronym BGS, as used in the image, represents Below Ground Surface.

28

Plaintiff’s proposal acknowledges that “the pit contents are of a highly hetero-

geneous nature with the potential for a wide variety of waste types (i.e., containerized

waste, liquids, sealed radioactive sources, laboratory glassware, animal carcasses, etc.).”

Plaintiff understood, and acknowledged in its proposal, that this “complex waste mix

presents a unique challenge in preventing cross-contamination of hazardous and

radioactive waste to minimize the generation of mixed waste.”

According to Dr. Caputo, “one of our driving requirements or conditions in our

proposal was to minimize breakage [of LSVs].” Dr. Caputo testified that, if glass LSVs

containing “toluene or xylene as a matrix, which were both RCRA hazardous materials,”

were to break and spill their contents onto radioactive soil, the result would be radioactive

soil mixed with RCRA soil. Dr. Caputo stated that “the cost of disposing of radioactive soil

versus radioactive soil mixed with RCRA soil, the difference is about somewhere between

ten to twenty times as expensive,” adding that “[t]he mixed waste is much more

expensive.” (alteration added). Seemingly as a precaution against this scenario, plaintiff

proposed to have an Army-approved Certified Waste Broker27 onsite during remediation

27 According to the Decommissioning Plan, the Certified Waste Broker was to report

directly to Mr. Jensen, the USDA project manager, and was responsible for:

• Developing the waste profiles for the disposal site(s) of choice,

based on sample data generated at the site;

• Ensuring all generated waste materials are inspected and

properly prepared for shipment as per applicable regulations;

• Manifesting the wastes;

29

activities to “direct precision excavation whenever any containerized wastes or potentially

hazardous materials are encountered.”

Applying this excavation approach, plaintiff intended to remove the overburden to

a “clean soils staging area” and to “load and transport waste soils, debris, containers, and

liquids from the excavation to the appropriate on-site processing area for screening and

packaging.” “The two primary options for on-site waste loading and transport are 1)

loading bulk soils into articulated dump trucks for transport to the power shaker screen

and conveyor for direct waste or 2) loading waste materials and debris into a containment

bin or overpacked for transport.”

After on-site loading and transport, plaintiff’s proposal describes “a highly

innovative and robust waste scanning, sorting, and segregating process” designed “[t]o

minimize project cost and risk.” (alteration added). The proposed segregating process

utilized “two distinct approaches to scanning, sorting, and segregating waste removed

from the LLRBS.” The first approach was to use the Waste Sorting and Segregation

Facility, a building located at the LLRBs, “for the hand sorting and segregation of all

containerized waste and liquids, LSVs, radioactive sources, and other heterogeneous

materials.” The second approach was to use the power shaker screen and conveyor for

direct waste, known as the Conveyor Scan System, “for in-process debris separation, soil

scanning, and waste minimization sorting during excavation activities.”

The Conveyor Scan System was described by plaintiff as “an innovative approach

to segregate debris from soil, then to segregate the soil based on the gross beta/gamma

radiation levels,” and was depicted in plaintiff’s proposal as:

• Obtaining generator certification from proper BARC/ARS

personnel;

• Procuring all necessary permits;

• Ensuring that the waste hauler is properly certified;

• Witnessing all waste shipments from the site; and

• Acting as support oversight for waste disposal activities.

30

Plaintiff proposed that bulk soils could be fed into the Conveyor Scan System, which

would shake the soils over a screen in the trommel to sift the soil, diverting and

containerizing oversized material. Continuing through the system, the remaining soil

would be shaped by a scraper before passing through a detector array. The detector

array, in conjunction with the system’s Control Center, would command a reversing

conveyor belt to direct the soil on a certain path based on the soil’s radiation level. Thus,

according to plaintiff, the Conveyor Scan System would “segregate soil into two

disposition pathways: direct load of soil material that exceeds the DP/FSS DCGLs

[Decommissioning Plan/Final Status Survey Design Plan Derived Concentration

Guideline Limit] into transport containers for off-site disposal and stockpiles of soil for

potential reuse on-site.” (alteration added). According to plaintiff’s proposal, “[t]his

technical approach, coupled with directed precision excavation, allows for near real-time

assessment of excavated soils, which assists in minimizing overexcavation [sic] and

reducing the volume of soil material below the DP/FSS [Decommissioning Plan/Final

Status Survey Design Plan] criteria to be shipped off-site for waste disposal.” (alterations

added).

Plaintiff’s Volume I – Technical – of its proposal also states that:

The scanning, sorting, and segregation subtask will address the following

waste types; each processing approach is discussed in the following

phased remediation approach:

 bulk clean soils (Zone 1 overburden, 0-5’ bgs [below ground

surface], nominally);

 waste pit contents (Zone 2 soils, debris, liquids, DAW [Dry

Active Waste], LSVs, bulk water);

31

 interstitial sidewall Soils (Zone 2 soils);

 underlying contaminated soils (Zone 3 radioactive or

hazardous soils); and

 underlying clean soils (Zone 3 non-contaminated soils).

(formatting in original; alterations added). Plaintiff’s “Phase 2–Remediate Waste Pits

(Zone 2)” proposed approach states in part:

Following removal of the overburden, excavation will continue as directed

by the CWB [Certified Waste Broker] and/or HP [Health Physicist] staffing

to identify the perimeter of each burial pit. A visual inspection will be

performed using process knowledge to direct the excavation of the waste,

thereby minimizing the potential for breaking the LSVs or other containers

with liquids.

Containerized wastes will be segregated and staged for further hand-sorting

in the WSSF [Waste Sorting and Segregation Facility]. TES will utilize a

power-actuated box screen and a variable speed-sorting conveyor to

separate loose soil from debris, including DAW [Dry Active Waste], and LSC

vials.

(alterations added). Plaintiff’s “Phase 3–Remediate and Remove Sidewall Soils (Zone 2)”

proposed, after having remediated a pit, to remediate the pit’s sidewalls “through direct

radiation measurements and biased sampling [targeted sampling],” after which “the

excavation operator will remove impacted soils. (alteration added). These contaminated

soils will be screened using the Conveyor Scan System and directly loaded into the waste

packaging for off-site disposal.” “Once all of the pit waste has been removed and the

sidewalls remediated, all remaining sidewall soils will be bulk excavated. This soil will be

power screened and 100% scanned using the CSS [Conveyor Scan System].”28

(alteration added). Finally, plaintiff’s “Phase 6–Remove Underlying Soils to 15 Feet BGS

(Zone 3)” proposed approach states that, having remediated the overburden, pits, and

interstitial soils,

“TES will then remediate all remaining soils to a depth of 15 feet bgs [below

ground surface]. These soils will be bulk-excavated as described in Phase

3, with all soils processed through the CSS [Conveyor Scan System] and

sampled in compliance with MARSSIM [Multi-Agency Radiation Survey and

Site Investigation Manual] Class 1 survey requirements.”

28 Plaintiff’s Phases 4 and 5 of its proposed approach also characterize and remediate

the pits’ underlying soils in a targeted manner, similar to how plaintiff proposed to

characterize and remediate the sidewalls.

32

(alterations added).

Plaintiff’s initial price proposal included a Fully Burdened Price Roll-up for

Evaluation Purposes, totaling $4,167,853 and replicated below:29

Fully Burdened Price Roll-up for Evaluation Purposes

WBS Task # Description Total

BARC.01 1 Work Plan $ 73,263

BARC.02 2 Mobilization + Demobilization $ 246,102

BARC.03 3 Site Remediation $ 1,615,996

BARC.04 4 Site Sampling $ 395,712

BARC.05 5 Packaging + Staging $ 326,369

BARC.06 6 Transportation $ 619,022

BARC.07 7 Treatment + Disposal $ 804,069

BARC.08 8 Final Status Survey Report $ 43,194

BARC.09 9 Baseline Risk Assessment $ 44,126

Total Evaluated Price: $ 4,167,853

To calculate an evaluated price for Task 3 – Site Remediation, plaintiff states that “[a]ll

material in the designated North Field LLRBS area (150’ x 200’) will be excavated down

to 15 feet below ground surface. This results in a 16,667 cy [cubic yards] insitu volume

being excavated.” (emphasis in original). The price proposal also states that “[a]ll

overburden material down to 5 feet below ground surface will be surveyed clean and

available for reuse.” (alteration added). Underneath the overburden, the proposal

assumes that “1040 cy of waste material in the burial pits,” containing “81% Contaminated

soil/debris/water, 10% Mixed waste, 8% LLRW, and 1% Hazardous Waste,” and an

additional 924 cy would be excavated to “meet NRC and EPA release criteria” and to

account for “contaminated soil containing only hazardous wastes.” (alteration added).

Therefore, the proposal states that “[t]he total exsitu volume of material shipped offsite is

1964 cy based on the above information provided.” (emphasis in original). Finally, the

proposal assumes “[n]ormal weather conditions will exist during field efforts. TES has

included normal weather delays in planning.” (alteration added).

Initially, plaintiff’s proposal was found to be not technically acceptable. Plaintiff

received a letter from the Army, dated March 12, 2010. The March 12, 2010, letter

identified three “deficiencies, weaknesses and comments” related to plaintiff’s proposal.

The first identified deficiency was that plaintiff’s “proposal did not provide a Technical

Estimate Spreadsheet using the waste stream percentage estimates as stated in

Attachment 0002 of the RFP.” Instead, plaintiff appears to have included internally derived

waste streams in its Technical Estimate Spreadsheet, as opposed to those specified in

the Solicitation, making defendant’s comparison of the different technical approaches

proposed by the offerors difficult. The second deficiency identified was that “[t]he proposal

29 As defined above, BARC stands for “Henry A. Wallace Beltsville Agricultural Research

Center.”

33

did not clearly state that TES will not engage directly with the NRC or EPA without USDA

knowledge and approval.”30 (alteration added).

Plaintiff provided a “second submittal while in the ‘discussions phase’ related to

TES’ [sic] Technical/Cost Proposal.” (alteration added). To correct the first identified

deficiency, plaintiff provided new Technical Estimate Worksheets for Tasks 5-7, utilizing

the required waste stream percentages, and “further acknowledge[d] that these estimated

percentages are for proposal evaluation purposes and may not relate directly to our

technical approach or total cost estimates.” (alteration added). Plaintiff corrected the

second identified deficiency, stating in part:

It is TES’ intent to work closely with and take direction from our client

(JMC/USDA) regarding any and all communications with the NRC and/or

the EPA. Any communications will be documented in writing and at no time

during the project lifecycle will any TES representative initiative [sic]

communications with the NRC and/or the EPA unless authorized by

JMC/USDA.

(alteration added).

“After discussions closed,” according to the contracting officer’s testimony at trial,

“all the offerors were given the opportunity to update their pricing proposal to reflect – to

incorporate anything that may have changed through the open discussion session.” The

contracting officer also stated that “[b]ecause the percentages [plaintiff used in its original

proposal were incorrect] – they needed to include their fixed unit rates based on the waste

characterization percentages on the pricing sheets,” i.e., plaintiff’s update to the technical

estimate spreadsheet necessitated plaintiff submitting updated pricing spreadsheets.

(alterations added). Instead of simply updating the pricing spreadsheets, however,

plaintiff submitted two new pricing proposals, both dated April 7, 2010. Plaintiff’s two

pricing proposals are referred to as the Revised Price Proposal and the Alternate Price

Proposal. Plaintiff’s Revised Price Proposal reflected its original price proposal, except

for revised prices for Tasks 5-7 using the waste streams specified in the Solicitation, and

plaintiff’s Alternate Price Proposal reflected its original price proposal.31 A comparison of

the fully burdened, fixed unit rates listed in the Revised and Alternate Price Proposals, for

Tasks 5-7, is reflected here:

30 The third deficiency identified related to the Conveyor Scan System’s documented

effectiveness but is not pertinent to this case.

31 Plaintiff’s Alternate Price Proposal, Joint Ex. 029, displays plaintiff’s price proposal by

task on Bates 001529 of the trial record. Bates page 001529 is not displayed in its entirety

because the top of the page has been cutoff. Nevertheless, the prices proposed for each

task and the sum of the proposed prices can be discerned.

34

Proposed Fully Burdened Fixed Unit Rates

Unit Revised Alternate

Task 5

Contaminated Soils (81%) cu yd $ 150.77 $ 212.84

Mixed Waste (10%) 55-gal $ 110.07 $ 123.57

LLRW (8%) cu ft $ 9.27 $ 5.41

Hazardous Waste (1%) 55-gal $ 173.77 $ 147.79

Task 6

Contaminated Soils (81%) cu yd $ 292.72 $ 497.12

Mixed Waste (10%) 55-gal $ 131.36 $ 132.51

LLRW (8%) cu ft $ 28.41 $ 10.33

Hazardous Waste (1%) 55-gal $ 39.38 $ 36.84

Task 7

Contaminated Soils (81%) cu yd $ 118.90 $ 118.90

Mixed Waste (10%) 55-gal $ 486.91 $ 487.18

LLRW (8%) cu ft $ 23.10 $ 12.83

Hazardous Waste (1%) 55-gal $ 27.30 $ 27.31

Defendant evaluated the proposals from all offerors, determining that, according

to the contracting officer, that “all three offerors were technically equal” but that, with

“TPMC, their approach with using the surveyor – conveyor system and the lower price,

they were determined to be the best value to the government.” Following the evaluation

phase of the procurement, defendant awarded Contract W52P1J-11-D-0001 to plaintiff,

with an effective date of November 9, 2010, to plaintiff. The contract language described

it as a “3-year Indefinite Delivery Indefinite Quantity (IDIQ) contract”32 awarded to plaintiff

“for remediation services for the free release/decommissioning, and license termination

of the Beltsville Agricultural Research Center (BARC) burial site located in Beltsville, MD.”

The Contract identified the following CLINs:

CLIN Description Contract Type

0001 Work Plan Firm Fixed Price

0002 Mobilization/Demobilization Firm Fixed Price

0003 Site Remediation Fixed Unit Rate

0004 Site Sampling Fixed Unit Rate

0005 Packaging/Staging Fixed Unit Rate

0006 Transportation Fixed Unit Rate

0007 Treatment/Disposal Fixed Unit Rate

0008 Final Status Survey Report Firm Fixed Price

0009 Human Health Baseline Risk Assessment Firm Fixed Price

32 Without explanation, the Contract states: “Contract Expiration Date: 2015 OCT30.” The

underlying IDIQ contract is a three-year contract, with an effective date of November 9,

2010.

35

The Contract states “CONTRACT TYPE: Firm-Fixed-Price” and the “KIND OF

CONTRACT: Service Contracts.” (capitalization in original). The Contract specifies that

“Task Orders will be awarded for remaining tasks in the PWS utilizing rates agreed to in

the Pricing Sheet found at Attachment 0002 (not electronically posted).” The contracting

officer testified that “[o]ur contract writing system only allows us to select firm fixed price

or cost type for the type of contract.” Because the contracting officer believed “firm fixed

rates are similiter to what’s used with a firm fixed price line item or contract CLIN” and

“[b]ecause within each of the line items, we indicate whether it is firm fixed price or fixed

unit rate, and I consider fixed unit rate to be a form of firm fixed price,” the contracting

officer testified that she does not believe that “having a base IDIQ contract listed as firm

fixed price but including some fixed unit rate CLINs . . . presents an inconsistency within

the document.” (alteration and omission added).

Attached to the Contract are the PWS (Attachment 0001), Price Spreadsheet

(Attachment 0002), Quality Assurance Surveillance Plan (Attachment 0003), Draft

Decommissioning Plan (2009)33 (Attachment 0004), plaintiff’s Proposal (Attachment

0005), and Open Discussion Questions and Answers (Attachment 0006).34 In addition to

including FAR 52.216-18 Ordering (OCT 1995), the Contract states that “[a]ll task orders

and modifications executed under this contract shall refer to this contract and shall be

subject to the applicable terms and conditions incorporated in this contract.” (alteration

added). Finally, defendant issued the Contract and its four modifications, Task Order

0001 and its four modifications, Task Order 0002 and its sole modification, and Task

Order 0003 and its thirteen modifications.35

Defendant awarded Task Order 0001, dated the same day as the Contract,

satisfying “the guaranteed minimum requirement for the basic IDIQ contract.” Task Order

0001 required plaintiff to create a work plan and obligated $73,263.00 under CLIN

0001AA, as well as identified the contract type as “Firm-Fixed-Price.” The task order

states, “[t]his task order is firm-fixed price.” (alteration added). Task Order 0001 facilitates

the PWS and Draft Decommissioning Plan’s requirement to create a work plan prior to

33 The Contract states that “[t]he final Decommission [sic] Plan will be incorporated upon

approval from the Nuclear Regulatory Commission (NRC).” (alterations added). The

parties agree that the Final Decommissioning Plan (2012) is not materially different from

the Draft Decommissioning Plan (2009), as the plans pertain to this case.

34 When asked to specify which of the two price proposals, Revised or Alternate, was

accepted by the Government, the contracting officer stated “[t]he Alternate.” (alteration

added). Plaintiff claims it cannot confirm which proposal was in Attachment 0002 and that

“a March 28, 2012, internal TPMC email identified that the Contracting Officer never sent

the Attachments to the Contract.”

35 Task Order 0003 has been modified a total of twenty-five times, but, according to the

parties, only the thirteen modifications identified in the trial record are relevant to the case

currently under review.

36

initiating work at the LLRBS. The work plan created by plaintiff under Task Order 0001

became known as Work Plan Revision 0.

On November 23, 2010, defendant held a post-award meeting with plaintiff, at

which the parties “reviewed the CLIN structure” of the contract and plaintiff was allowed

“to ask questions regarding the project.” At the meeting, the parties established that “there

is not much that TES can get started on besides portions of the Work Plan” while the

parties were “waiting on the Decommissioning Plan (DP) to be finalized by the NRC.” Also

at the meeting, the following was part of the question-and-answer exchange:

Q: What will happen if the waste streams change or the amounts of material

changes from what is anticipated via the DP and TES proposal?

A: We will use the unit rates in the contract but would adjust for price for the

amount/type of waste.

...

Q: Does the DP or Final Status Survey (FSS) take precedence?

A: The DP would be the better document to use as the FSS is more of a

guide.

...

Q: Who approves the work plan?

A: The NRC does not approve it. Derek, Dana, John and Matt will review

and approve it.

(omissions added).36

On September 1, 2011, defendant issued Task Order 0001, Modification 01, to

extend the period of performance to May 31, 2012. On January 5, 2012, defendant

unilaterally issued Contract Modification P00001, amending the underlying IDIQ Contract;

Contract Modification P00001 provided administrative instructions to Army contractor

holders regarding invoicing and is not at issue in this case.37

36 Defendant’s reference to Derek, Dana, and John appears to refer to Derek Cornette,

the contracting officer representative, Department of the Army, Dana Jackson, project

manager, USDA, and John Jensen, Chief of Radiation Safety Division, USDA. The court

is not aware of to whom “Matt” refers.

37 Contract Modification P0001, in Block 14 and without explanation, states: “Contract

Expiration Date: 2015OCT30.”

37

On February 28, 2012, about fifteen months after award of the Contract, defendant

emailed to plaintiff a technical memorandum that revised calculations used to determine

the Derived Concentrations Guideline Levels, a metric “utilized during the final status

survey in support of site decommissioning activities at the LLRBS.” The technical

memorandum was created by Cabrera and appended to the Draft Decommissioning Plan.

The resulting document became the “REVISED FINAL DECOMMISSIONING PLAN,”

dated “January 2012,” and appears to have been submitted by the USDA to the NRC in

March 2011. (capitalization in original).

While the NRC reviewed the proposed Decommissioning Plan, plaintiff continued

to develop Work Plan Revision 0. On May 1, 2012, defendant issued bilateral Modification

02 to Task Order 0001. Task Order 0001, Modification 02, served, in part, as “an official

notice to begin work to initiate the work plan for the excavation and other remediation

activities at the LLRPS [sic] to ensure timely mobilization after Nuclear Regulatory

Commission (NRC) approval of the LLRBS Decommissioning Plan (DP)” and to “extend[]

the period of performance to 30 November 2012.” (alterations added).

On October 18, 2012, defendant awarded Task Order 0002, which states “[t]his

task order is firm fixed price.” Nevertheless, while “CLIN 0001AA, Project Cost,” was

“established as a Firm Fixed Price CLIN,” “CLIN 0002AA, Travel Cost,” was “established

as a Cost Reimbursable CLIN.” Task Order 0002 appears to establish reimbursement to

plaintiff for its participation and support of a presentation provided by the USDA to

stakeholders, including members of the public, that occurred in October 2012 because

Task Order 0002 states “[t]he on-site period of performance is 16 October 2012 thru 17

October 2012.” The USDA presentation utilized information that appears to have been

provided by plaintiff, including the figure provided above that depicted plaintiff’s

anticipated conditions at the LLRBS.38

On October 24, 2012, defendant emailed plaintiff to determine whether plaintiff

“wish[ed] to update the fully burdened rates for Task 2 through Task 9 of the awarded

contract, W52P1J-11-D-0001.” (alteration added). According to the contracting officer at

trial, “we sent or we may have discussed, but there was an email that was sent to TPMC

asking them if they would like to update their pricing because it had been almost two

years since the proposal or the contract was awarded.” Plaintiff’s response, a letter dated

November 1, 2012, requested an increase of $506,286.51 to “TES’ original proposed

price of $4,216,365,”39 appearing to result in an escalation rate of 12.22 percent.

38 The Title Slide is dated October 16, 2012, and contains the logos of plaintiff, the USDA,

and the USDA’s Agricultural Research Service, whereas the remaining slides contain only

plaintiff’s logo.

39 Plaintiff’s original proposal, also known as the Alternate Proposal, was priced at

$4,167,853 and was not technically acceptable. Plaintiff’s Revised Price Proposal totaled

$4,216,365, but plaintiff’s Alternate Price Proposal, totaling $4,167,853, was the proposal

accepted by defendant.

38

The “Lead Contract Price/Cost Analyst” of the “Contract Pricing Division,” reviewed

plaintiff’s escalation request and created a memorandum dated November 9, 2012. The

memorandum limits the scope of the review, appearing to characterize the escalation

proposal as a fixed price proposal:

Field Pricing Assistance was not required for this effort. Defense Federal

Acquisition Regulation Supplement (DFARS) Procedures, Guidance, and

Information (PGI) 215.404-2(c)(i)(A) states, “The contracting officer should

consider requesting audit assistance from DCAA for fixed price proposals

exceeding $10 million.” The proposal does not exceed the threshold for

obtaining audit assistance. DFARS PGI 215.404-2(a)(i)(A) states, “The

contracting officer should consider requesting field pricing assistance for

fixed price proposals exceeding the cost or pricing data threshold.” The

proposal does not exceed the threshold for obtaining field pricing

assistance.

The analyst summarized his review as follows:

Based on the preceding review, the methodology utilized by TES in

determining an escalation factor appear [sic] reasonable and the calculated

weighted average escalation of 12.22% appears mathematically accurate.

However, the analysis questions the reasonableness of simply applying an

escalation factor to a contract price that is 2½-3 years old without any

recognition or review of the underlying costs and factors (such as labor

rates, indirect rates, etc.). As such, this analysis makes no assessment of

the escalated contract price.

This analysis recommends that the contracting officer consider obtaining an

updated proposal from TES to ensure that the proposed escalation factor is

reflective of all of the changes that have occurred in the 2½-3 years since

the proposal was originally priced.

(alteration added).

Despite plaintiff stating its escalation request was based upon the “original

proposed price,” which totaled $4,167,853, had been found not technically acceptable,

and which became known as the Alternate Price Proposal, plaintiff’s escalation request

appears to be based upon plaintiff’s Revised Price Proposal. Plaintiff’s escalation request,

dated November 1, 2012, includes “Table 2: Escalation Presented by Task,” which is

replicated, in relevant part, here:

39

Task [Revised Escalated Weighted Escalation

Task Description

# Price] Price Escalation Rate

1 Work Plans $73,263 $73,263 $0

Mobilization &

2 Demobilization $246,102 $276,176 $30,074 12.22%

3 Site Remediation $1,615,996 $1,813,470 $197,474 12.22%

4 Site Sampling $395,712 $444,068 $48,356 12.22%

5 Packaging & Staging $370,520 $415,797 $45,277 12.22%

6 Transportation $743,831 $834,727 $90,896 12.22%

7 Treatment & Disposal $683,621 $767,159 $83,538 12.22%

8 Final Status Survey Report $43,194 $48,472 $5,278 12.22%

9 Baseline Risk Assessment $44,126 $49,518 $5,392 12.22%

Total $4,216,365 $4,722,652 $506,287 12.01%

(alteration and column six, “Escalation Rate,” added).40 The prices listed in column three,

“[Revised Price],” match those listed in the Revised Price Proposal.

The parties subsequently signed Contract Modification P00002, effective

November 26, 2012. Contract Modification P00002’s “Contract ID Code” is “Firm-Fixed-

Price.” The Contract Modification states, in Section A: “Kind of Modification: Change

Order/Funding Action/Administrative Change.” Narrative Section A0003 of the contract

modification states:

1. The purpose of this contract modification is to update the fully burdened

rates for Task 2 through Task 9 of contract W52P1J-11-D-0001, Beltsville.

This pricing revision request is the result of a 2 year delay in finalization of

the Decommission [sic] Plan.

2. Task Orders will be awarded for remaining tasks in the PWS utilizing the

new rates agreed to in the Pricing Sheet found in Attachment 0007 – TES

BARC Escalation Request Letter_1NOV12. All task orders and

modifications executed under this contract shall refer to this contract and

shall be subject to the applicable terms and conditions incorporated in this

contract.

3. All other terms and conditions of W52P1J-11-D-0001 remain unchanged.

(alterations added).

40 To determine the value of column six, “Escalation Rate,” the court divided column five,

“Weighted Escalation,” by column three, “[Revised Price].” The court renamed column

three, which is “Initial Price” in the original, to clarify that the by-task prices listed in the

Table come from plaintiff’s Revised Price Proposal, not the Alternate Price Proposal.

40

In December 2012, the NRC approved the Revised Final Decommissioning Plan,

dated January 2012. Additionally, the NRC issued a Safety Evaluation Report Related to

Approval of the Decommissioning Plan License No. 19-00915-03, Docket No. 03004530,

dated December 2012. According to Mark Roberts, the NRC’s lead inspector assigned to

the LLRBS, the information in the safety evaluation report was “accurate to the best of

our knowledge at the time it was prepared.” The report states in part:

The BARC LLRBS is made up of a total of 50 designated waste burial pits,

of which, only 46 were reportedly used. The pits are approximately 10 feet

wide by 12 feet long by 10 feet deep and are separated approximately five

feet horizontally from one another. Each pit was reportedly backfilled to

surface grade with at least 5 feet of clean soil.

...

Inventory records of burials from 1949 through 1960 could not be located

and thus the estimated radionuclide activities in the BARC LLRBS may to

be greater than the tabulated values listed in Section 4.4.1. The

characterization study of the pits initiated in 2005 included one of the pits

where the disposal records could not be located. The radioactive isotopes

identified and the types of waste were not different than the contents of the

pits for which records were available.

...

Based on historical records provided by the USDA and data from the 2005

waste characterization study, the top five feet of soil overburden associated

with each burial pit and the soil between the pits is considered

uncontaminated soil. There is no known surface contamination. Upward

migration of radiological contamination or undocumented spills into the

clean overburden will be evaluated through testing of these soils. The

overburden is to be removed in one-foot lifts and segregated from the waste

removed from the LLRBS. The over burden may be suitable for use as clean

backfill pending analytical results.

...

The USDA estimates that it will cost approximately $7M to complete the

decommissioning project at the LLRBS. This estimate is largely dependent

on the amount of mixed waste in the burials [sic] pits and the associated

costs of disposal or treatment. Based on this cost estimate, the

decommissioning will be executed within approximately 12 months

following approval of the DP by the NRC.

(alteration and omissions added).

41

Plaintiff’s LLRBS project manager, Brian Clayman, submitted a draft of Work Plan

Revision 0 to defendant for review on September 10, 2012. Defendant provided

comments regarding Work Plan Revision 0, and plaintiff submitted Work Plan Revision 0,

dated January 2013.41 Work Plan Revision 0 was accepted by defendant on March 7,

2013.

Work Plan Revision 0, according to defendant, “was mostly consistent with the

technical approach it proposed in response to the solicitation, with one glaring exception:

TPMC was no longer using the innovative CSS [Conveyor Scan System] to sort debris

and scan soil.” (alteration added). According to the minutes of a meeting attended by

employees of plaintiff and its venture partner, EnergySolutions (ES), “ES determined to

bid work using [the Conveyor Scan System],” which was “[o]riginally envisioned to operate

on three jobs and split costs among the three jobs.” (alterations added). EnergySolutions

“won BARC [the contract to remediate the LLRBS] but did not win the other two jobs,”

and then “made [the decision] not to buy the soil sorter [Conveyor Scan System].”

(alterations added).

Plaintiff’s Work Plan Revision 0 states: “There is a possibility that waste pits were

buried at more shallow depths than the approximate five foot depth that is anticipated

through review of historical data. Should TES discover this condition, removal of

overburden soil will be halted and the waste pit will be immediately remediated.” To

replace the function of the Conveyor Scan System, Work Plan Revision 0 apparently

contemplated a significant amount of hand sorting; the plan states that “[w]hen the debris

contents become visible, the remainder of the pit will be performed by hand until the item

has been uncovered” and “[b]agged and containerized wastes will be removed from the

burial locations by hand, and lifted out with the assistance of heavy equipment, to

minimize the potential for rupture.” (alterations added). Defendant argues that “Work Plan

Revision 0 also contemplated that TPMC would find non-containerized waste and broken

LSVs.” The work plan, however, characterizes “container punctures, items found outside

of container, broken Liquid Scintillation Vials (LSV), etc [sic]” as “abnormalities.”

(alteration added). Finally, the work plan appears to propose processing bulk soils with

an unfavorable waste determination, as made by the Certified Waste Broker, by using a

“shaker screen” to separate potential waste material from the soil.

Effective February 1, 2013, defendant issued Task Order 0001, Modification 03, a

bilateral modification, “to extend the period of performance to 31 March 2013 to allow for

completion of the workplan.” Six days later, defendant issued Contract Modification

41 Asked if she read Work Plan Revision 0 at all, the contracting officer responded, “No.”

42

P00003,42 “to incorporate [FAR] clause 52.232-37 and [DFARS clause] 252.204-0001 for

multiple payment arrangements.”43 (alterations added).

On April 4, 2013, the contracting officer awarded Task Order 0003 to plaintiff “for

tasks 2-9 for the Beltsville Agricultural Research Center, [Project Number] AG 2005-002

described in the PWS dated 17 August 2009, Attachment 00001 [sic] of the base contract

W52P1J-11-D-0001.”44 (alterations added). Task Order 0003 incorporates a change to

plaintiff’s proposal, necessitated by the EPA changing the LLRBS’s sampling

requirements, and establishes CLINs 0002AA – 0009AA, listing their respective values.

The following table compares the price of the tasks, as escalated by Contract Modification

P00002, with the price of the CLINs, as listed in Task Order 0003.

42 Contract Modification P00003 appears to be a unilateral modification because the copy

of the document in the record before the court is not signed by plaintiff. Nevertheless, the

Narrative Section of the modification includes the following statements:

The contractor hereby waives any and all rights and claims for equitable

adjustment attributable to such facts and circumstances giving rise to the

incorporation of the above stated change [Contract Modification P00003].

The contractor specifically waives any and all claims which it has or may

have against the Government related to any delay resulting from the

incorporation of the stated changes into the contract.

(alteration added).

43 The clause at FAR 52.232-37 Multiple Payment Arrangements provides that: “[t]his

contract or agreement provides for payments to the Contractor through several alternative

methods. The applicability of specific methods of payment and the designation of the

payment office(s) are either stated-

(a) Elsewhere in this contract or agreement; or

(b) In individual orders placed under this contract or agreement.”

FAR 52.232-37 Multiple Payment Arrangements (MAY 1999) (alteration added).

44 DD Form 1155, DEC 2001 is titled “ORDER FOR SUPPLIES OR SERVICES” and

Block 2 is labeled “DELIVERY ORDER/CALL NO.” (capitalization in original). In this case,

the terms Delivery Order and Task Order have been used interchangeably. Because the

contract procured services, not supplies, the court uses the term Task Order.

43

Task/CLIN Modification P00002 Task Order 0003

2/0002AA $276,176 $276,175

3/0003AA $1,813,470 $1,813,471

4/0004AA $444,068 $486,059

5/0005AA $415,797 $415,798

6/0006AA $834,727 $834,727

7/0007AA $767,159 $767,160

8/0008AA $48,472 $48,472

9/0009AA $49,518 $49,518

Total $4,649,387 $4,691,380

(alterations added). Task Order 0003 also specifies that “[a]ll terms and conditions of

contract W52P1J-11-D-0001 remain unchanged.” While Task Order 0003 states in the

Narrative Section that “[t]he total task order amount is $4,764,643.00,” the sum of the

CLINs is $4,691,380.00. The disparity of $73,263.00 does not identify a readily apparent

explanation, in the exhibits or after the trial.

The Supplemental Information Section of Task Order 0003 identifies the contract

type as “Firm Fixed Price,” and each of the CLINs’ contract type is individually identified

as “Firm Fixed Price.” At trial, the contracting officer explained that CLINs 0003AA-

0007AA contract types are each listed as firm-fixed price because of a software limitation,

explaining that:

When we’re adding funding to the contract, we’re required to add a CLIN

contract type, and our options are firm fixed price or cost type. So since this

was a firm – a fixed unit rate, we decided and made the determination that

it was closer to a firm fixed price than what it was a cost type.

In addition to identifying CLINs 0003AA-0007AA as firm fixed price, each of the CLINs

orders a quantity of “1” and does not specify a unit price, but according to the contracting

officer, unit prices for CLINs 0003AA-0007AA were “not specified because the basic

contract states that the offerors’ [sic] agreed-to proposal would reflect the unit prices.”

Additionally, the Federal Procurement Data System45 states that Task Order 0003 is a

“Firm Fixed Price” contract.

Plaintiff’s personnel internally questioned the language of Task Order 0003. The

following portions of four emails were exchanged between Dr. Caputo and another of

plaintiff’s employees, Eileen Hegarty, each of which was sent on May 3, 2013:

Hegarty: I left you a voice message, can you confirm that the awarded

Tasks 2 thru 9 are are [sic] all FFP [firm fixed price]. If so, Sara can then

45The Federal Procurement Data System (FPDS) “is a U.S. General Services

Administration Federal Government computer system that is “FOR OFFICIAL USE

ONLY.” Contracts whose estimated value is $10,000 or more” are “reported to FPDS.

Every modification to that contract, regardless of dollar value, must be reported to FPDS.”

44

just set up one line for each with the award amount. Our original proposal

shows Fixed unit rates for many tasks but I do not see any mention of that

in the DO#3 [Task Order] award.

Just want to reconfirm.

Caputo: Tasks 2, 8, and 9 are fixed price.

Tasks 3-7 are fixed unit rate, with each defined in the attached pricing

spreadsheet (not escalated or with the additional sampling cost).

Hegarty: Why isn’t the client showing the unit rates in the Task order similar

to HPS? They are only showing the CLINS, dollar amounts and FFP.

Caputo: I saw that and we are trying to reconcile this difference with the

client. They do incorporate our proposal by reference, so I'm assuming they

will want us to invoice by units (per the proposal).

As you recall, this is the issue I brought up earlier regarding setting up the

contract by CLIN or SubCLINs.

I would consider the contract fixed price with fixed unit rate invoicing to

provide basis for progress payments. Not sure how the system handles this,

but that's likely how it will be managed.

(alterations added).

Prior to performance of Task Order 0003, Michael Kurth, the contracting officer’s

representative, sent an undated teleconference invitation, with the subject line “Beltsville

Project Status – Questions and Answer Session Regarding Schedule,” scheduling the

teleconference for April 16, 2013. (capitalization in original). The email invitation states

that “Dan[iel Caputo] and Brian [Clayman], I ask that you invite other key TES staff that

will be involved with the Beltsville project.”46 The email invitation from Mr. Kurth,

addressed to “[e]veryone,” also states that:

So everyone is aware, I have received feedback that the mobilization

schedule seems a little aggressive and that more days might need to be

added. Dana Jackson will be leading that discussion. Also from May 28-

June 3 the “Removal of Overburden” is proposed. The team needs to

consider that some of the waste pit debris could have migrated up towards

the surface and that careful consideration is needed when removing the

overburden. This might impact the approach to removing the overburden.

Something to consider.

46 The email invitation does not include a list of recipients.

45

(alteration and omission added). At trial, the contracting officer’s representative testified

that, prior to plaintiff’s mobilizing to the LLRBS, he told plaintiff that there might be “debris

or material” in the overburden. The contracting officer’s representative also testified that

he stated in the email invitation that pit debris could have migrated to the surface because

“[t]here was concern based on materials that we found on the surface of the north field,

also from the waste characterization survey report. There was some information in there

about materials that may be on the surface of the excavated or dig area.” (alteration

added). Finally, the contracting officer’s representative testified that the discovery of

materials on the surface occurred after the Contract was awarded to plaintiff but before

April 2013.47

Following award of Task Order 0003 and on May 9, 2013, defendant issued Task

Order 0001, Modification 04, a bilateral modification, revising the PWS. The modification

incorporated a revised PWS, dated May 9, 2013, into the contract and “add[ed] a separate

soil and erosion plan to Task 1: Work Plan for the Beltsville remediation project.”

(alteration added). The revised PWS also specifies that “[t]he Beltsville staff must approve

the [soil and erosion] plan prior to the contractor starting soil excavation work.” (alterations

added).48 Plaintiff began Task 2 – Mobilization on May 29, 2013.

According to defendant, “[a]s of the June 2013 approval date of the soil and erosion

plan, TPMC was authorized to begin excavation work under CLIN 0003[AA] because it

had a fully approved work plan – Work Plan Revision 0 – and contractual authorization,

including obligated funds.” (alterations added). According to Dr. Caputo, although, plaintiff

needed approval of a revised work plan, which became known as Work Plan Revision 1,

because of the concern for contamination in the overburden, as relayed to plaintiff by the

contracting officer’s representative during the teleconference. Plaintiff submitted a

“Notification of Intent to Revise Work Plans at the Low-Level Radioactive Burial Site

Remediation Project at the Beltsville Agricultural Research Center – Contract No.

W52P1J-11-D-0001, Delivery Order 0003,” dated July 18, 2013, “in response to a change

in anticipated soil cover depth due to the recently communicated potential for impacted

debris to be present in the cover due to frost heave or previous characterization activities.”

Plaintiff’s notification of intent to revise also stated that:

The presumption that the overburden material is free of contaminated

material has been challenged, however, by the fact that the initial gamma

47 Mr. Jackson’s discovery of “broken and intact lab glassware on the surface” of the

LLRBS was reported to Mr. Jovanovich on December 2, 2008, which was prior to the

September 8, 2009, issuance of the Solicitation.

48 After the Soil and Erosion Plan was approved, Mr. Jackson of the USDA testified that

“I requested a change from the fabric silt fence, which has a three-month survival rate

under UVs, to the super silt fence, which is a -- a chain-link fence type of product that has

fabric woven onto it, which is a lot more durable and lasts for years.” On May 20, 2013,

defendant issued Task Order 0003, Modification 01, to add CLIN 0002AB, “in the amount

of $44,456.67,” to upgrade the silt fencing.

46

scan over the surface of the north field indicates the presence of radioactive

material in the overburden. The primary risk in following this original strategy

[Work Plan Revision 0] is that it results in the removal of protective cover

over all the waste pits prior to remediating any of the waste; therefore the

majority of the pits will be exposed during waste pit remediation. This results

in a greater potential, when compared to the alternative strategy [Work Plan

Revision 1], for the migration of contamination due to erosion and

particularly during precipitation events due to the high mobility of the primary

contaminants of concern; Hydrogen-3 and Carbon-14.

The alternative excavation strategy only diverges from the original strategy

in that it does not dictate removal of the six feet of cover over the entire

north field prior to excavating waste pits. Instead, cover material is removed

in smaller areas and exposed pits are remediated as they are located and

exposed. Once all waste pits are removed in this manner, the two strategies

merge again as soil beneath the remediated pits is removed to a depth of

fifteen feet below grade. When compared to the original strategy, the

alternative strategy has a relatively elevated risk of contaminating

overburden material with waste pit material because the operation will cycle

from cover removal to waste pit remediation until waste pit remediation is

complete. TES’ alternative strategy mitigates this risk by segregating

excavation equipment (track hoe for soil and back hoe for waste pits) as

much as is practicable and increasing the survey and sampling rigor applied

to the cover material. The alternative strategy offers the benefit of

preserving the six feet of protective cover, including a vegetative layer, until

the project is ready to remediate the waste beneath the cover. The cover

protects the waste from erosion, unnecessary migration of contamination

with water, and shifting of the pit due to the proximity of heavy equipment.

Regardless of which excavation strategy is employed for the LLRBS, the

expected amount of material requiring excavation remains the same;

therefore TES’ level of effort and proposed cost also remains the same.

(alterations added). Of importance in this case, the notification of intent to revise further

states that “[w]hen compared to the original strategy, the alternative strategy has a

relatively elevated risk of contaminating overburden material with waste pit material

because the operation will cycle from cover removal to waste pit remediation until waste

pit remediation is complete.” (alteration added).

Previously, on June 26, 2013, Mr. Clayman, plaintiff’s project manager, had

emailed the contracting officer’s representative a draft memorandum that identified the

weaknesses of Work Plan Revision 0 and proposed Work Plan Revision 1’s

implementation strategy. According to Mr. Clayman, the identified weaknesses of Work

Plan Revision 0 were:

• There is a potential for impacted material/contaminated material to be

present in the overburden strata due to frost heave or disturbance during

47

previous excavation work onsite. This is contrary to the assumption that all

overburden material is non-impacted. When performing a walkover survey

of a 1-foot thick lift, the instruments deployed for soil surveys on this project

can not [sic] reliably detect even Cs-137 contamination at the Derived

Concentration Guidance Level (DCGL) calculated for this project. Reliable

depth is 6-inches.

• The sampling frequency for excavated soils purposed for reuse/backfill is

lowest (1 sample for every 398 CY) for soils to be excavated that have the

highest potential for contamination.

• Removing the entire overburden and transition soils as initial excavation

activities will result in uncovering contaminated material weeks prior to

excavation of contaminated material –scheduled duration of waste

excavation and remediation is approximately 8-10 weeks.

• Removing the entire overburden and transition soils as initial excavation

activities will result in a larger disturbance of soil at the onset of the

excavation phase, and lead to more risk and effort to mitigate risk with

respect to erosion/sediment control as well as water management.

(alteration added). The draft memorandum proposed to address the identified

weaknesses by changing from “removing the entire overburden, followed by the entire

transition lift,49 and then pit-by-pit remediation” and, instead, plaintiff would “excavate

overburden, transition, interstitial, and contaminated material pit-by-pit from the onset.”

The forwarded draft memorandum concludes:

If all stakeholders agree that the alternative strategy would offer benefit

without requiring revision to the DP, TES will include this memorandum in

the project record and revise project specific plans to reflect the new

strategy. If concurrence with all stakeholders is not achieved, TES will

implement the technically sound original technical approach successfully.

(alteration added).

In an email dated July 8, 2013, from Mr. Clayman to Dr. Caputo, Mr. Clayman

stated that, “[a]s of now the only radioactive material identified in the overburden is

documented by the walkover survey – as you know similar data was available to us from

the characterization survey report, therefore I don’t feel that a change condition exists.”

(alterations added). When asked about the July 8, 2013, email at trial, Mr. Clayman

explained his reason for requesting the work plan change, stating:

49 The transition layer is the one-foot layer of soil from five feet below ground surface to

six feet below ground surface.

48

I believe what I’m referring to there, and I’m not sure, was our original

technical approach was to come and clear the entire overburden of soil, and

I changed that early in the project when I arrived because I felt that removing

five feet of soil from the entire field would have created a – it would remove

all the vegetation and topsoil and it would create a wet sloppy mess, versus

excavating the overburden and kind of make the pit as we go and we had a

safer work surface.

Because I didn’t want to – if you can imagine the way – the way the waste

is supposed to look is it’s five feet of cover with this overburden and then all

these pits, you know, and I didn’t want to shave all the way to the top of the

pits, and then as I dug the rest I would have the other pits exposed to the

environment. I did not want that situation, so I did change the technical

approach for the excavation of the overburden. Instead of sweeping the

entire overburden, I took it off piece by piece, pit by pit.

Plaintiff prepared Work Plan Revision 1, which was dated July 2013 and accepted

by defendant on July 30, 2013. On August 7, 2013, defendant issued Task Order 0003,

Modification 02 – a bilateral modification – to incorporate plaintiff’s “Alternative Excavation

Approach,” to note the changes in plaintiff’s revised sampling distribution, and to state

that “this modification will be completed at no additional cost to the Government.”

Defendant argues that the modification results in no additional cost to the government

because Mr. Clayman represented to the government that “[r]egardless of which

excavation strategy is employed for the LLRBS, the expected amount of material requiring

excavation remains the same; therefore TES’ level of effort and proposed cost also

remains the same.” (alteration added). Plaintiff began excavation work the day prior, on

August 6, 2013.

Plaintiff’s excavation of the LLRBS occurred during two distinct periods, with a

work hiatus encompassing February and March of 2014. During its excavation work,

plaintiff maintained a handwritten Excavation Log and produced Daily Activity Reports.

Defendant argues, however, that there are “some gaps in its [plaintiff’s] record-keeping.”

(alteration added). A review of plaintiff’s Excavation Log and Daily Activity Reports

demonstrates that plaintiff engaged in work at the LLRBS on 109 days during the first

excavation period, from August 6, 2013, to January 31, 2014, but produced only forty-

nine Daily Activity Reports.50

During the first excavation period, defendant issued Modifications 3-5 to Task

Order 0003. Task Order 0003, Modification 03, added CLIN 0010AA “in the amount of

$10,759.62” for the purpose of “relocate[ing] an existing cable that is buried in the work

50 Pertinent to the case at bar, the record reflects that after plaintiff produced a Daily

Activity Report on the first day of excavation, August 7, 2013, plaintiff’s next Daily Activity

Report was not until September 17, 2013.

49

zone.”51 (alteration added). Task Order 0003, Modification 04, effective November 20,

2013, “[e]xtend[ed] the period of performance completion date on CLIN 0010AA to

November 30, 2013.” (alterations added).

Plaintiff argues that plaintiff encountered waste in the overburden within a week of

beginning its excavation activities. The Excavation Log for August 12, 2013, states that

plaintiff encountered “broken glass, caps, metal punch outs, ceramic piping, LSVs,

bottles” at “3 feet (ft) below ground surface (bgs).” (capitalization in original). Plaintiff’s log

entry for August 21, 2013, states that plaintiff also “[e]ncountered [waste] at 3.5ft bgs,”

and the log entry for August 28, 2013, states that plaintiff encountered waste “at 3ft bgs.”

(alterations added).

Plaintiff also argues that its excavation of the LLRBS uncovered LSVs “dispersed

in the soil,” “in the interstitial soil,” i.e., between pits, and “in numerous pits.” Asked

whether he personally observed LSVs dispersed in the soil and in which parts of the soil,

Dr. Caputo testified at trial that “I mean, we excavated pit contents, pit sidewalls, with

various liquid scintillation vials spread throughout. And in some cases, the cover material

overburden.” Plaintiff’s second Daily Activity Report after beginning excavation

operations, dated September 17, 2013, states that “Pit #12 has more vials [LSVs] per unit

volume than any previous pit.” (alteration added). Furthermore, plaintiff’s Daily Activity

Report for October 21, 2013, states that “Volatile Organic Compounds (VOCs) and Liquid

Scintillation Vials (LSVs) have been identified in the majority (10 of 12) pits excavated to

date.”52 Furthermore, the Daily Activity Report for December 31, 2013, also states that

“Volatile Organic Compounds (VOCs) and Liquid Scintillation Vials (LSVs) have been

identified in the majority (17 of 21) pits excavated to date.”

On December 31, 2013, Dr. Caputo submitted to the contracting officer’s

representative, with a carbon copy to the contracting officer, a memorandum notifying

defendant “of a change condition which is likely to lead to schedule and cost increases.”53

Dr. Caputo’s memorandum states that “[t]he quantity and concentration of liquid

scintillation vials (LSVs) have been significantly greater than the quantity and

concentrations that were described in historical documentation resulting in greater mixed

51 Task Order 0003, Modification 03, was signed by plaintiff on September 9, 2013, but

the copy in the record before the court does not appear to have been signed by the

contracting officer. Task Order 0003, Modification 03, appears to be the last Task Order

issued during the three-year ordering period of the underlying contract.

52 Apparently, elevated VOC levels may have negatively impacted efficiency because the

Excavation Log for August 21, 2013, states that “[i]dentified elevated Volitile [sic] Organic

Compound (VOC) readings that required stopping excavation activities.” (alterations

added). Plaintiff states that “[f]or instance, TPMC discovered LSVs in Pits #2-3, 6-7, 9-11,

11A, 12-13, 15-18, and 21-25.” (alteration added).

53 Discussed below, the contracting officer treated TPMC’s notice of a “Change Condition”

as a notification of a differing site condition.

50

waste volume and delays in remediation schedule.” (alteration added). The memorandum

also states that:

Sorting and segregation of the LSVs is the most time intensive activity in

the pit remediation; since the LSVs are small, usually made of fragile glass,

contain mixed waste, and were essentially dumped into the waste pits

versus being containerized prior to disposal. LSVs must be delicately

extricated from the waste matrix in such a manner to prevent breakage and

needlessly exposing personnel to hazards as well as spreading the

chemical and radioactive material inside the vials and creating larger mixed

waste volumes. The waste matrix consists of soil/mud and several other

types of debris so extraction of individual vials with the required diligence to

safety and health concerns is extremely time consuming. Once a LSV is

sorted, project staff determines whether or not the vial contains residual

cocktail and then segregates the vial into the appropriate waste stream

according to its contents. This technical approach was included in our

proposal and plans, however we have encounters [sic] a much greater

volume of LSVs is [sic] many more waste pits than initial [sic] anticipated

based on available historical documentation.

TES expected to encounter LSV containing waste pits during remediation

of the BARC LLRBS, and we planned for extended durations for

remediation of this pit type. We based the LSV pit density on the historical

documentation (Draft Decommissioning Plan, Table 1, July 2009) provided

during the proposal phase. This [sic] documentation, attached to this letter,

identified LSVs in 3 of the 46 waste pits. Currently, 24 pits have been

remediated for the presence of LSVs (based on TES and prior contractor

efforts) and 19 of the pits contain significant quantities of LSVs. At this point

in the project, TES does not anticipate the ratio of pits containing LSVs to

total pits will change significantly during the remainder of the project, thus

we expect a significant schedule and cost overrun due to this change in

anticipated conditions. TES developed its original operating schedule based

on available information; overburden, waste pit, interstitial and underlying

soil excavation had a total planned duration of 20 weeks for 42 pits, or ~2.4

days per pit on average. The week ending January 3, 2014 will mark the

conclusion of the 20th week of excavation on the project. TES’ actual

average rate of pit remediation is ~3.8 days per pit. This difference in

average time to process a waste pit, if held constant through the remainder

of the remediation, would result in an overall schedule slip of (3.8 days/pit -

2.4 days/pit) x 42 pits = 59 days. TES’ daily operating cost is $17,670 per

day; therefore TES’ estimated additional cost due to the high concentration

of LSVs is just over one million dollars.

A second cost impact associated with LSVs relates to waste treatment and

disposal. The LSV waste stream requires thermal treatment (i.e.

incineration) to remove its characteristic hazard per the Resource

51

Conservation and Recovery Act and subsequent disposal of the residual

ash in a facility permitted to accept treated radioactive material. The

described treatment and disposal regimen for mixed waste LSV drums is

priced at $2,900 per drum by the competitively chosen vendor for this

material. This is well above TES’ per drum disposal pricing for mixed waste

($548.41). The $548.41, as required by the proposal, is a blended price

based on different mixed waste streams. TES estimates generating a total

of ~90 LSV drums for the BARC remediation project. TES anticipates

requesting to be able to cover the cost of disposal for LSV drums. This will

result in an estimated adjustment of ($2,900- $548.41) x 90 = $211,643.10.

(alterations added).

On January 23, 2014, plaintiff’s project manager emailed the contracting officer

and contracting officer’s representative,

proposing an operational hiatus during the months of February and March

to allow time for weather conditions to become more amenable to safe and

efficient sorting and segregation. Since the onset of winter, TES has had

challenges maintaining its exemplary safety performance (no recordable

injuries during the entire duration of field work) due to the combination of

precipitation and cold weather. Weather conditions have made it

increasingly difficult to reliably plan and execute work. TES production has

been significantly impacted as well[.]

(alteration added). Subsequently, defendant issued Task Order 0003, Modification 05, a

bilateral modification effective January 30, 2014, that,

allow[ed] TES to temporarily shut down operations at Beltsville during the

months of February 2014 and March 2014, as requested in [sic] email dated

23 January 2014 from Mr. Brian Clayman, TES. The purpose of the shut

down [sic] request is to allow time for weather conditions to become more

amenable for safe and efficient sorting and segregation.”

(alterations added). Modification 05 also states that the “shutdown will be at no additional

cost to the government” and “the Period of Performance is being extended from 26 March

2014 to 30 June 2014.”54 (capitalization in original).

On January 29, 2014, the contracting officer responded to plaintiff’s notification of

a differing site condition, stating “the Government’s position is that there is no valid basis

54 Task Order 0003, Modification 05, also states that “[a]ll other terms and conditions of

contract W52P1J-11-D-0001-0003 remain unchanged” and continues to identify CLINs

0003AA, 0004AA, 0005AA, 0006AA, and 0007AA as “Firm Fixed Price.” (alteration

added).

52

for TES’s allegation of FAR 52.236-2, Differing Site Conditions at the BARC Project.” The

basis of the contracting officer’s determination was, in part:

FAR 52.236-2, Differing Site Conditions, paragraph (a) states “The

Contractor shall promptly, and before the conditions are disturbed, give a

written notice to the Contracting Officer…”. Even though TES has not

properly submitted their notification to the Contracting Officer in accordance

with the FAR requirements, the Government is providing a response to your

notification.

The Government believes that the Decommissioning Plan and the

solicitation provided adequate documentation to support the quantity of the

liquid scintillation concentration (LSC) vials that is currently being generated

at the LLRBS Waste Pits.

TES stated in the notification letter that it is anticipated that TES will

generate a total of approximately 90 LSV drums. The July 2009

Decommissioning Plan on page 36, Section 5.0, Planned Decommissioning

Activities, stated “The ex-situ volume of waste is estimated to be

approximately 1040 CY [cubic yards], comprised of approximately 600-660

CY of waste soil, 200-240 CY of contaminated debris, 80-100 CY of LSC

vials, 80-100 CY of dry active waste, and 10-12 CY of bulk liquids.” In

addition, the solicitation proposal price evaluation sheet estimated 90 CY of

Mixed Waste due to the liquid scintillation vials (LSVs), which equates to

approximately 324 55-gal drums.

(emphasis in original; alteration added).

Plaintiff acknowledged receipt of the contracting officer’s January 29, 2014

response and replied with a memorandum, dated February 14, 2014. In its reply,

plaintiff states that:

TES assumes your assertion of impropriety relates to the timeliness and

disruption of condition clauses of this paragraph, since we provided written

notice of the differing site condition to the Contracting Officer and

Representative in our 31 December 2013 memorandum. As such, TES

takes the position that in order to determine whether or not a differing site

condition has occurred, by the nature of soil excavation, it is necessary to

disturb the soil in order to properly characterize the underlying waste types.

Thus, it was not until late Dec 13 and after our initial planned excavation

period had expired, that TES was convinced of a change in liquid

scintillation vial (LSV) concentrations and distribution that exceeded our

expectations and those outlined in the request for proposal documentation.

In addition, TES has produced daily reports, held weekly project conference

calls, and produced monthly status summaries that all referenced the high

concentrations of LSV in over 80% of the waste pits excavated. To state

53

that TES did not promptly notify the Contracting Officer of this differing site

condition or that we disturbed the condition prior to written notification is

done so without considering the numerous written statements regarding the

LSV issues in project status report [sic] and without regard for the nature of

soil excavation and waste site remediation. Thus, we feel we provided

significant written documentation on the potential for differing site condition,

and once we were convinced of a continuing trend materially affecting

project execution, we formally provided our 31 December 2013 written

notification.

(alteration added). Plaintiff’s reply also highlights that defendant’s determination that

plaintiff had not identified a valid basis for a differing site condition was “center[ed] around

the volume of LSVs present at the BARC site and disregards our [plaintiff’s] assertion

regarding the concentration and distribution of the LSVs that are [sic] basis for our

notification.” (alterations added). Plaintiff’s reply further explains that,

The DP clearly states that LSVs were packaged in trays or placed in plastic

bags and cardboard boxes (ref DP page 2 statement, “Liquid scintillation

vials were either placed on vial trays and packaged in cardboard boxes for

disposal, or placed loose in large plastic bags, then in cardboard boxes.”).

Both methods of LSV disposal in isolated waste pits would result in easily

removable waste over isolated areas. However, we have encountered large

concentrations of mostly loose LSVs in over 80% of the waste pits which

requires a much different excavation approach that [sic] previously

anticipated. The Characterization Survey Report shows photos of well

isolated LSVs in both trays and in a 5 gal metal container (ref App C). Thus

there was no reason to believe large scale LSV distribution would exceed

over 10% of the pits or be mixed with bulk soils as we have encountered.

Plaintiff’s reply memorandum, dated February 14, 2014, also served to notify the

contracting officer of three other differing site conditions, two of which, “‘Clean’ Backfill

Soil Exceeding EPA Screening Limits” and “Adverse Weather Conditions” as Differing

Site Conditions 3 and 4, are not at issue. The second differing site condition identified in

the reply was “Lack of Five Foot Thick Clean Cover resulting in Increase[d] Waste Zone.”

(capitalization in original; alteration added; emphasis omitted). Plaintiff explained the

basis of its claimed differing site condition, the lack of five feet of clean overburden, stating

that:

The RFP and DP (FSSP [Final Status Survey Design Plan] Sec 3.11) clearly

defined a five foot thick “clean” cover over the waste pits that will be

removed, tested, and subsequently re-used for backfill. TES incorporated

this information into our technical approach and assumed the “clean” cover

could be quickly removed, tested, and stockpiled for re-use. Now that we

are approximately 45% complete with the excavation, we can clearly state

that we do not have a five foot thick clean cover over the waste pits, and the

lack of this cover results in a differing site condition. During initial surveys,

54

we encountered a radioactive “hot spot” in the cover, and since then, we

have encountered waste pits within 1-2’ below ground surface. Thus the DP

defined assumption that there will be 5,555 cubic yards of clean soil that

can be quickly removed in 1’ lifts and tested with limited effort (four samples

per lift) is not valid. The impact of this differing site condition is that our

excavation rates through the first five feet of the site is much slower than

planned/proposed, and the level of effort to test the cover soil for re-use if

[sic] much greater than expected. There is also a high potential that much

of this top five foot cover is impacted by the waste pit contaminants, thus

unavailable for re-use. In addition, we are still encountering a total waste

site depth of 15 feet, so instead of having to manage a highly impacted zone

10 feet in depth, we have to manage a zone of 13-14 feet in depth (due to

the lack of a clean five foot cover). This increased waste zone results in

increased schedule and cost.

(alterations added).

On March 7, 2014, the contracting officer’s representative emailed the contracting

officer “a document that highlights information from [sic] Cabrera Characterization Report

and site Decommissioning Report to address TES’ concerns about site differing

conditions.” (alteration added). The twenty-page document includes the following

paragraph from the Waste Characterization Survey:

Based on the work completed thus far, it is anticipated that the nature and

extent of the waste in the remaining pits will be highly variable. Waste

materials encountered during excavation include laboratory trash (gloves,

paper, metals, plastics, laboratory glassware, and other wastes generated

during the process of performing laboratory analyses), liquid scintillation

vials, radioactive sources, bulk soils containing small amounts of waste or

debris not readily separable from soil, animal remains, and bulk liquids in

their original containers.

On March 14, 2014, the contracting officer responded to plaintiff’s February 14,

2014 reply memorandum, again stating that “the Government’s position is that there is no

valid basis for TES’s allegation of FAR 52.236-2, Differing Site Conditions at the BARC

Project.” At trial, the contracting officer clarified that plaintiff’s Notification of Differing Site

Condition, dated December 31, 2013 and which was Joint Exhibit 70 of the trial record,

was not timely, but “[t]he other notices [of differing site conditions] would have been

timely.” (alterations added). When plaintiff’s counsel examined the contracting officer at

trial, the following exchange occurred:

Q: Do you believe the Government was prejudiced by what you believe to

be a late notice of differing site conditions?

A: No.

55

About one week before the end of the work hiatus, plaintiff’s project manager sent

a memorandum dated March 25, 2014, to the contracting officer’s representative,

requesting approval of what would become known as Work Plan Revision 2. During the

hiatus, plaintiff had,

identified a process improvement that will result in realization of cost

efficiency for completing waste remediation of the LLRBS. TES proposes to

shift the performance of sorting and segregation of Liquid Scintillation Vials

(LSVs) from the north field to the Treatment, Storage, and Disposal Facility

(TSDF). Implementation of the improvement does not constitute a change

in technical approach however TES is proposing a revision to its Work Plans

in order to accurately document the plan for performance of work.

Plaintiff’s memorandum asserts that “[o]nsite sorting and segregation of LSVs has been

the overwhelmingly substantial cause of TES’ inability to complete scope according to the

proposed schedule and shifting this task to the TSDF [Treatment, Storage, and Disposal

Facility] allows TES to shorten the expected remaining duration;” the Treatment, Storage,

and Disposal Facility referred to by the work plan revision request appears to be located

in Clive, Utah.55 (alterations added). Plaintiff’s request further asserts that “TES has

completed a review of the Decommissioning Plan (DP) in conjunction with the revision to

the Work Plans and determined that there is no required revision to the DP in association

with this minor change” because “[t]he process improvement effects the location of sorting

and segregation of LSVs and does not constitute a change in technical approach.”

(alteration added). Plaintiff’s specific request was “that Joint Munitions Command and

United States Department of Agriculture technical staff review the proposed revisions for

acceptability and review TES’ assertion that the proposed revision does not constitute a

change in technical approach.”

Asked whether all the sorting and segregating under Work Plan Revision 2 was

done at the LLRBS, Dr. Caputo testified that,

I mean, unless we encountered something very large, you know, if there

was a drum of unknown contents, we would have gone through that. If there

were other hazardous items, high-activity radioactive sources or cylinders

that we encountered, those could not be shipped safely, but the bulk of the

LSV waste and other types of debris were not sorted and segregated on

site.

Instead, the bulk of the LSV waste and other types of debris were, according to Dr.

Caputo, put into intermodal containers, “packaged, manifested, and shipped to the Clive

disposal site in Utah.”

55 According to the testimony of Dr. Caputo, the Treatment, Storage, and Disposal Facility

referred to by the work plan revision request was “the Energy Solutions Clive[, Utah]

disposal site.” (alteration added).

56

The contracting officer acknowledged receipt of plaintiff’s revised work plan

submission the following day, March 26, 2014, and requested plaintiff “provide a cost

impact showing cost saving as a result of the revised work plan submission.” The

contracting officer also instructed that plaintiff “is required to continue operations under

the current approved work plan until such time the government has had adequate time to

review the revised plan submission.” On March 28, 2014, Dr. Caputo emailed the

contracting officer, confirming that “TES understands that the current revision of the work

plans are [sic] applicable during performance of work until new revisions are reviewed by

the government.” (alteration added). Dr. Caputo’s email also clarified that Work Plan

Revision 2 would not result in cost savings but would create a cost efficiency benefit of

$492,318 to plaintiff, providing a comparison of plaintiff’s estimated cost at completion of

the project under Work Plan Revision 1 to plaintiff’s estimated cost at completion of the

project under Work Plan Revision 2.

On March 31, 2014, the contracting officer requested Dr. Caputo provide “a cost

breakdown” of plaintiff’s two estimated cost at completion calculations and “the cost

impact to packaging, transportation and disposal cost, if the proposed work plan were to

be approved.” The contracting officer’s March 31, 2014, inquiry does not appear to have

been answered until Dr. Caputo provided an interim response on April 23, 2014, pending

completion of the cost estimate.

Also on March 31, 2014, defendant issued Task Order 0003, Modification 06, “to

add additional funding to new CLINs 0005AB, 0006AB, and 0007AB as a result of the

characterization of the waste being categorized as LLRW versus Contaminated

Soil/Debris/Water.” Modification 06 states that “[t]he period of performance for the new

CLINs is 30 June 2014” and that the added CLINs “increases the contract total from

$4,746,596.62 to $7,019,227.62.”56 Each of the new CLINs were characterized as a “Firm

Fixed Price” contract type, and each of the CLINs ordered a quantity of 1. None of the

CLINs provides a unit price. Additionally, the Federal Procurement Data System identifies

Task Order 0003, Modification 06, as a multiyear, firm fixed price contract.

Following the hiatus, plaintiff began a second excavation period at the LLRBS on

April 9, 2014.57 The last entry in plaintiff’s Excavation Log is dated July 23, 2014, and the

Excavation Log reflects that plaintiff’s work during the second excavation period occurred

over seventy-three days, from April 9, 2014, through July 23, 2014. During this same time

period, plaintiff produced seventy-one Daily Activity Reports, for seventy-three days of

work.

56 The added CLINs for Tasks 5, 6, and 7 of the PWS were in the amount of $239,998,

$994,865, and $1,037,768, respectively.

57 As indicated above, the first excavation period took place from August 6, 2013, through

January 31, 2014.

57

During the second excavation period, plaintiff continued to discover LSVs

dispersed in the soil. On April 17, 2014, Mr. Clayman emailed the contracting officer two

memoranda signed by Dr. Caputo. The two memoranda notified the contracting officer of

differing site conditions for Pits 28 and 29, and the notification language for both pits

appears to be nearly identical.58 The memorandum regarding Pit 28 states, in part:

In accordance with Federal Acquisition Regulation (FAR) 52.236-2,

Differing Site Conditions, TPMC-EnergySolutions Environmental Services

2008, LLC (TES) is providing prompt written notice of a Differing Site

Condition associated with Waste Cell # 28 at the Beltsville Agricultural

Research Center (BARC) Low-Level Radioactive Burial Site (LLRBS)

Remediation Project. TES removed overburden and uncovered Waste Cell

# 28 at approximately 10:30 AM on April 17, 2014. Upon initial observation

of the contents of the cell, TES arrested remediation of Waste Cell # 28

without disturbing the as-found conditions. The differing site condition

identified in Waste Cell # 28 is identical to the condition that has been

addressed in ongoing correspondence: Waste Cell # 28 contains a

significant quantity of Liquid Scintillation Vials (LSVs) that appear to be

distributed ubiquitously throughout the waste cell volume instead of being

concentrated in discrete locations. Waste remediation of Waste Cell # 28

will require a higher level of effort to remediate than TES’ planned level of

effort due to the widespread distribution of LSVs. Below is an as-found

photograph of Waste Cell # 28:

58 While the memoranda provide notice of a changed condition for Pits #28 and #29,

plaintiff’s Excavation Log for April 17, 2014, indicates that plaintiff was excavating Pits

#29 and 37 on April 17, 2014, but each usage of “29” has been corrected, apparently with

Mr. Clayman’s initials, to “36”. Furthermore, plaintiff’s Daily Activity Reports indicate that

excavation for Pit #28 did not begin until April 21, 2014, stating “[f]inished excavation of

pit 29 and started pit 28.” (alteration added). Apparent differences between the

memoranda include the pit identification number, the time of day the pit was uncovered,

and the photograph of the pit.

58

At this time, TES requests acknowledgment of receipt of this prompt written

notice and direction from the government to proceed with remediation of

Waste Cell # 28 or to place Waste Cell # 28 in a safe condition (return

overburden to the cell) pending further direction from the Contracting

Officer.

(emphasis in original). The contracting officer responded by email, also on April 17, 2014,

stating:

Even though your company has submitted to the Government two 17 April

2014 letters regarding “Notification of Differing Site Condition, Beltsville”,

the contract’s “Disputes” clause requires your company to proceed with the

contract in accordance with its stated specifications. Specifically,

subparagraph (i) of FAR 52.233-1 “Disputes”, states, “The Contractor shall

proceed diligently with performance of this contract, pending final resolution

of any request for relief, claim, appeal, or action arising under the contract,

and comply with any decision of the Contracting Officer.” Therefore, the

purpose of this letter is to notify you that your company must continue to

make reasonable, significant progress on this contract, despite your two 17

April 2014 letters. Thus, your two 17 April 2014 letters’ request for

Government authorization for you to proceed should be unnecessary given

that the terms and conditions of the contract are still in effect.

59

In addition, you are reminded that the Government is still reviewing your

Revised Work Plan submission. Until such time a determination has been

made to accept the Revised Work Plan, TES is required [sic] continue

working under the Approved Work Plan.

The Government has not authorized a Stop Work on this contract. If you

proceed with a Stop Work on this contract, then this Stop Work at is [sic]

your own risk and at your own cost.

(alterations added). Plaintiff continued its excavation activities at the LLRBS.

On April 23, 2014, plaintiff and defendant exchanged four emails, beginning with

the contracting officer’s request for “a firm date as to when I will receive the cost impact

information,” relating to Work Plan Revision 2 that she had requested six days prior. The

contracting officer concluded her email, stating:

You are again reminded that the revised work plan has not been approved

and will not be approved until all of our questions and concerns have been

responded to. TES is required to continue working under the approved work

plan until such time [sic] a determination has been made on the revised

work plan.

(alteration added). Dr. Caputo responded on April 23, 2014, committing plaintiff to

submitting the information within the next two working days and stating that “[w]e continue

to work under existing plans and procedures.” (alteration added). The contracting officer’s

reply email states that “you are continuing to work under existing plans and procedures,

however, in the weekly status calls indications are that you are working as if the revised

work plans will be approved. Please explain.” Mr. Clayman concluded the email

exchange, explaining to the contracting officer that:

TES is currently processing, packaging, and storing waste without removing

the LSVs. As the current work revision requires sorting and segregation of

LSVs, TES has assumed the risk that stored waste may have to be re-

processed for LSVs at no additional cost to the government if the proposed

revision is not approved. TES has not shipped any material off-site that has

not been fully processed under the current revision to the work plans. This

process of partial sorting and segregation followed by eventual sorting and

segregation of LSVs following a storage interval is consistent with the

requirements of the current revision to the work plans. Again, TES

understands that TES will have to remove LSVs from stored waste prior to

shipment if the work plan revision to implement its proposed process

improvement is not approved.

At trial, Dr. Caputo testified that plaintiff had been employing the Work Plan

Revision 2 methodology since resuming excavation activities in April 2014. Dr. Caputo

60

also testified that, because plaintiff had packaged and stored waste without removing the

LSVs,

[w]e had containerized RCRA [Resource Conservation and Recovery Act]

hazardous material, which in accordance with RCRA regulations, we have

a 90-day window to dispose of those materials, so we had a RCRA

compliance issue as well as we had containers with waste and all of our

equipment and personnel awaiting disposition of those waste containers

hinging on the approval of this revised work plan.

(alterations added).59

While defendant was analyzing the cost impact of Work Plan Revision 2, defendant

argues, its “technical team identified three concerns with the proposed revisions.” One

concern identified by the contracting officer’s representative, which he emailed to the

contracting officer on April 29, 2014, was related to the potential for increased costs to

the government. The contracting officer’s representative’s email states, in part:

I shared[, with Mr. Clayman,] the concern that if the revised approach were

followed there is a chance that the 5% LSV vial volume (maximum) could

break during transit and cause the entire intermodal contents to become

mixed waste rather than a 95% LLRW/5% Mixed Waste split. Disposal for

mixed waste is $1972 per cubic yard versus $702 per cubic yard for LLRW,

this could be a potential cost increase.

We discussed the idea of TES providing the government a letter that would

be part of the contract that if the revised technical approach was

implemented, TES would invoice for each intermodal as at least 95% or

more LLRW disposal cost and 5% or less for mixed waste. This would limit

the government’s liability for paying for large amounts of mixed waste

disposal. Do you have any thoughts or insights into taking this approach?

Regarding the packing and staging, Brian understands that if he is allowed

to follow the revised tech approach, he should invoice it as mixed waste

packing and staging. Also for the transportation invoicing, if he is allowed to

transport following the revised tech

This text is long and has been trimmed here. Open the source document for the complete record.