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

> United States Court of Federal Claims · March 28, 2025

URL: https://www.frixlaw.com/law-library/cases/10835555

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** March 28, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Marian Blank Horn
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

In the United States Court of Federal Claims
No. 19-102C
Filed: March 28, 2025
* * * * * * * * * * * * * * * * * * *
*
TPMC-ENERGY SOLUTIONS *
ENVIRONMENTAL SERVICES 2008, *
LLC, *
Plaintiff, *
*
v. *
*
UNITED STATES, *
Defendant. *
*
*
* * * * * * * * * * * * * * * * * * *

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 phas

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10835555. Public record. Not legal advice.