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Texas Biotech Consortium Sues DHS over NBAF, Claims Choice of Kansas Site was 'Capricious'

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Neither Kansas nor DHS will address the consortium's arguments pending formal responses to the court complaint they had yet to make at deadline.

A DHS spokeswoman, Amy Kudwa, told BioRegion News this week that the agency won't comment on the Texas lawsuit beyond a one-paragraph statement defending its decision as originating from "a transparent multi-year process, punctuated with public meetings near each finalist location.

"The final record of decision, released on January 16th, concurred with the unanimous recommendation of a civil servant panel comprised of both DHS and USDA experts as well as a detailed Environmental Impact Statement of six potential site locations," the statement continued, before referring people to a section of DHS' website with electronic documents the agency said shaped its actions on NBAF.

Also available online is the formal solicitation for construction bids issued by DHS in January, and amended four times since then. In it, DHS cited a May 14 deadline for submitting bids for the project, with the construction contract set to be awarded "approximately September 7." But the agency also cautioned: "The government does not guarantee award within this period, nor shall the government be liable for any costs should award occur before or after this period."

DHS' bid solicitation includes a total estimated construction cost for the NBAF project of $523 million -- down 7 percent from the $563 million projected last December in the agency's final environmental impact statement on the NBAF project, but still 16 percent above the project's initial cost estimate of $450 million.

The contract envisions two construction phases:

- A first phase totaling more than $34.6 million, and consisting of a guard house, a center for processing visitors and transshipped goods, site utilities, earthwork, roads, parking, a security fence and other perimeter security features.

- A second phase totaling $488.4 million, and consisting of a cGMP laboratory, a central utility plant, and the substructure and foundations of the main laboratory.

The consortium's court complaint came about three months after Texas officials told BRN they were leaning toward waging a court battle to wrest NBAF from Kansas [BRN, Jan. 26].

'Unfair Political Influence'

Among the Texas consortium's arguments: Kansas had an unfair edge with the DHS official overseeing the NBAF review, Undersecretary Jay Cohen, because as a US Navy official he approved an unspecified earmark sought by Dennis Hastert. The former US House of Representatives Speaker was hired to lobby for the Kansas project by a former aide, Tom Thornton, now president of the Kansas Bioscience Authority.

According to the Texas consortium, Cohen met six times with Kansas consortium members, including Republican Sens. Sam Brownback and Pat Roberts, without a DHS attorney present -- despite stating earlier he would limit his contact to no more than two officials in each NBAF-seeking state during 20-minute tours of each site under study.

"DHS' decision to select Kansas was also arbitrary and capricious in that it resulted from improper and unfair political influence," the Texas group alleged in its lawsuit.

Guiffre told BRN this week that a simple Google search turned up news releases issued by Roberts, Brownback, and then-Kansas Gov. Kathleen Sebelius -- now President Obama's secretary of health and human services -- describing meetings with Cohen and other officials from DHS and the US Department of Agriculture.

"I also have a good faith belief, I'll put it that way, that there were many other contacts with Cohen. To me, the information we already know about raises a key question: Who actually met with Cohen and other DHS and USDA officials who were part of this selection process? How often did they meet? Where did they meet? There were conferences they were at where they may have talked to each other on breaks -- that kind of stuff," Guiffre said. "Certainly there's enough of a question there that somebody really should figure out how many contacts there were."

Contacted by BRN, Thornton responded with a two-paragraph statement defending his state's suitability for NBAF as well as DHS' decision to base the facility in his state.

"After an exhaustive, three-year process that ended with a unanimous decision by experts in the field, the federal government chose Kansas as the best home on the merits for a new research facility to protect the American food supply and agriculture economy. Throughout the review, Kansas was noted for its internationally recognized animal health research expertise, state-of-the-art research infrastructure, and the world's largest concentration of animal health companies -- all of which will significantly accelerate the NBAF research and commercialization mission," the statement said.

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