Wednesday, May 14, 2003
Copyright © Las Vegas Review-Journal

Energy officials bypass bidding process

Agency will award Yucca Mountain legal contract after informal search

WASHINGTON -- The Energy Department plans to bypass customary formal bidding and instead will award a multimillion-dollar legal services contract for the Yucca Mountain Project based on a more informal search among law firms, DOE officials confirmed Tuesday.

While Energy Department officials said they will help keep the nuclear waste repository on track, the move drew criticism from Nevada's U.S. senators, who characterized it as a way to "cut corners" on the repository that they strongly oppose.

"With mismanagement and possible conflicts of interest already part of the history of the Yucca Mountain Project, it is imperative that every step be scrutinized carefully and done by the book," Sen. John Ensign, R-Nev., said in a prepared statement.

Energy Secretary Spencer Abraham signed a formal finding late last month saying the department's need for specialized legal help warrants invoking a seldom used procurement law exemption.

The exception will enable DOE to utilize "less formal competitive evaluations" to hire new lawyers.

"We intend to award a contract to a law firm using a competitive selection process that is specially tailored to this unique and highly important endeavor," Abraham said in an April 30 letter to House Speaker Dennis Hastert, R-Ill., that accompanied the three-page finding.

The selected firm would help DOE prepare a complex license application for a nuclear waste repository at Yucca Mountain by a December 2004 target and defend it in proceedings before a Nuclear Regulatory Commission evaluation board.

The job requires "intangible qualities" in understanding public interest matters "that cannot be readily reduced to specific evaluation criteria," Abraham's finding stated. Developing formal evaluations would "artificially constrain" DOE and responding law firms, it stated.

Abraham said a firm could be hired after May 30. But Nevada's senators criticized the Energy Department's plan.

"They are apparently up to their same old tricks again of trying to hire lawyers who will help them bend the rules and cheat on the test," Sen. Harry Reid, D-Nev., said in a statement. "They intend to hire a law firm based on a unique and questionable process, which should come as no surprise given their track record on hiring lawyers, silencing their critics, and pre-determining the science."

Abraham spokesman Joe Davis said Tuesday the planned Yucca repository "is a unique and a first-of-its-kind facility. We believe there's no doubt specialized legal services will help us move through the licensing process.

Davis said the government's formal procurement steps can take 18 months.

He estimated the contract value at $1 million this year and $4 million to $5 million each subsequent year until 2007, when DOE expects to win a license to build a repository 100 miles northwest of Las Vegas.

DOE officials said former Secretary Hazel O'Leary used the same process in 1996 to pick specialized lawyers to sell the Elk Hills Naval Petroleum Reserve.

Legal sources said only a few firms might fit the bill, including Morgan Lewis & Bockius, which DOE has hired in the past to work on Yucca quality assurance matters.

The last time DOE was looking for a law firm for the Yucca project, it conducted a formal competition. Chicago-based Winston & Strawn was given a $16.5 million legal services contract in 1999. The firm withdrew from the program in November 2001 amid conflict of interest allegations.

The law firm that lost in 1999, LeBoeuf, Lamb, Greene and MacRae, challenged the Winston & Strawn award in a lawsuit being contested in the U.S. Court of Appeals for the District of Columbia. LeBoeuf, Lamb contends it should have been given the DOE work once Winston & Strawn left.

Legal analysts said DOE's steps to hire a new firm while a lawsuit is pending contributes to the unusual nature of the department's move.

Michael McBride, a LeBoeuf, Lamb partner, declined to comment Tuesday, citing the ongoing litigation.