LeBoeuf, Lamb, Greene & MacRae, B-283825; B-283825.3, February 3, 2000

LeBoeuf, Lamb, Greene & MacRae, B-283825; B-283825.3, February 3, 2000 TITLE: LeBoeuf, Lamb, Greene & MacRae, B-283825; B-283825.3, February 3, 2000 BNUMBER: B-283825; B-283825.3 DATE: February 3, 2000 ********************************************************************** LeBoeuf, Lamb, Greene & MacRae, B-283825; B-283825.3, February 3, 2000 Decision Matter of: LeBoeuf, Lamb, Greene & MacRae File: B-283825; B-283825.3 Date: February 3, 2000 James L. Feldesman, Esq., Edward T. Waters, Esq., and Kathy S. Ghiladi, Esq, Feldesman, Tucker, Leifer, Fidell and Bank, for the protester. Thomas P. Humphrey, Esq., James J. Regan, Esq., John E. McCarthy, Esq., Daniel R. Forman, Esq., and Reed M. Brodsky, Esq., Crowell and Moring, for Winston and Strawn, an intervenor. Gena Cadieux, Esq., and Patricia D. Graham, Esq., Department of Energy, for the agency. Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Application for admission of protester's counsel to a General Accounting Office (GAO) protective order is granted where, based on a review of the record, GAO concludes that protester's counsel is not involved in competitive decision-making, and their admission does not otherwise pose an unacceptable risk of inadvertent disclosure of protected material. 2. Protest that the contracting agency improperly selected awardee despite an alleged organizational conflict of interest is denied where the record does not support this allegation. DECISION LeBoeuf, Lamb, Greene & MacRae protests the award of a contract to Winston and Strawn under request for proposals (RFP) No. DE-RP01-99GC30789, issued by the Department of Energy (DOE) for professional legal services. LeBoeuf primarily argues that the award was improper because Winston and Strawn has an unavoidable organizational conflict of interest (OCI). We deny the protest. Background Pursuant to the Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C. sect. 10133(a) (1994), DOE is in the process of evaluating a site at Yucca Mountain, Nevada, for a high-level waste and spent nuclear fuel repository. [1] The repository is needed in order to safely dispose of high-level nuclear waste, mainly from defense activities, and spent nuclear fuel from both civilian and defense activities. [2] DOE Motion to Dismiss, Oct. 22, 1999, at 1; Contracting Officer's (CO) Statement, Nov. 29, 1999, at 1. The NWPA provides for the siting, construction, and operation of repositories for spent nuclear fuel. See 42 U.S.C. sect.sect. 10101 et seq. The Act also provides that utilities are primarily responsible for paying the costs of disposal of their spent fuel, while the federal government has the responsibility of protecting the public health and safety and the environment, while providing disposal services. 42 U.S.C. sect.sect. 10131(a)(4), (5). The NWPA establishes a mechanism for payment of these costs by authorizing DOE to enter into contracts with utilities and others generating spent nuclear fuel, under which the utilities agree to pay fees into the Nuclear Waste Fund in return for disposal of their spent nuclear reactor fuel. 42 U.S.C. sect. 10222(a). These contracts are referred to as the Standard Contracts. See 10 C.F.R. Part 961 (1999). [3] The NWPA also mandates a process for DOE first to decide whether or not to recommend a site for a permanent repository and then to seek a license from the Nuclear Regulatory Commission (NRC) to construct and operate the repository. 42 U.S.C. sect.sect. 10132-10145. The NWPA contemplated that a permanent repository was to begin accepting spent nuclear fuel by January 31, 1998. 42 U.S.C. sect. 10222(a)(5)(B). Despite efforts by DOE to meet that deadline, however, the agency concedes that the scientific and technical inquiry necessary to make a recommendation is not yet completed. CO Statement at 2; Agency Report (AR), exh. 11, Declaration of Assistant Manager, Office of Licensing and Regulatory Compliance at the Yucca Mountain Site Characterization Office (RCYMSCO), Nov. 23, 1999, at para. 3. DOE states that a repository is not yet ready to accept spent nuclear fuel and estimates that a facility will not be available before 2010. DOE Motion to Dismiss at 2. Since 1991, TRW Environmental Safety Services, Inc. has been DOE's management and operating (M&O) contractor for DOE's Office of Civilian Radioactive Waste Management (OCRWM). TRW has been involved on DOE's behalf in studying the site at Yucca Mountain to determine whether it is suitable for a nuclear waste repository. Since the success of the project depends on various regulatory bodies accepting DOE's technical conclusions, lawyers have been assisting the program to determine what information needs to be generated in order to satisfy legal requirements and how to present the information to the applicable regulatory bodies, and providing other ancillary legal advice and assistance.