Court Tosses Lawsuit|Over Missile Site Cleanup

     (CN) – The Court of Federal Claims refused to force the government to withdraw or revise its negative evaluation of a contractor hired to clean up an abandoned missile site in Nebraska.

     Kemron Environmental Services claimed the evaluation was unfair, inaccurate and defamatory, because the site in York, Neb., was much more contaminated than the government estimated.
     Kemron spent about $100,000 assessing the site for its bid, “with the understanding that, for the most part, it would be validating 10 years of site analysis work” conducted by the U.S. Army Corps of Engineers.
     The Corps’ studies reported soil contamination and a plume of trichloroethylene extending between 2,300 and 3,003 feet beyond the site’s boundary.
     Kemron was expected to clean up the site so that it could be officially closed by the end of September 2009. American International Group (AIG) agreed to cover 80 percent of the cost overruns after actual costs reached about $5.8 million.
     A year into remedial work, Kemron discovered that the contamination plume was about 23,000 feet – nearly 4.5 miles – long, an amount 10 times the Corps’ estimate. Kemron said it also found a “continuing source” of soil contamination on part of the site.
     It told the government that closing the site by September 2009 was impossible, given the magnitude of the contamination. By Kemron’s estimate, “it could take 20 years and expenditures far in excess of the contract price” to finish the job.
     Kemron proposed changing the contract requirements from “response complete” to “remedy-in-place,” meaning Kemron would simply install remedial measures.
     But the Corps insisted on completing the job and instead extended the deadline to 2012, a date Kemron claimed was still unrealistic. In 2008, the government finally adopted a remedy-in-place solution, requiring Kemron to install water treatment plants at the site.
     Kemron said this modification was a “significant departure from the performance-based contract that the parties entered into.” It also worried that AIG would not approve the contract changes, which turned out to be true when AIG refused to cover more than one groundwater treatment system.
     Kemron claimed to have agreed, “under duress,” to install more systems than it deemed necessary.
     The government’s evaluation of Kemron was “extremely critical,” according to the contractor. It asked the claims court to force the Corps to withdraw or change its evaluation, which “repeatedly criticized Kemron for not meeting the original, unachievable requirements.”
     The government argued that the claims court lacked jurisdiction, because Kemron never submitted a written claim to the contracting officer.
     The claims court agreed and dismissed the complaint.
     “In the absence of the submission of a written claim to the contracting officer, the agency can neither issue a final decision, nor fail to issue a final decision within the period required, thereby deeming the claim denied,” Judge Margaret Sweeney wrote.

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