73 Fed. Cl. 459 | Fed. Cl. | 2006
OPINION
In this post-award bid protest action, the plaintiff, NVT Technologies, Inc. (NVT), seeks to set aside the award of a contract to SelectTech Services (SelectTech) for faeility/laboratory management and equipment maintenance services at the Air Force Research Laboratories at Wright-Patterson Air Force Base in Ohio. NVT asserts, inter alia, that SelectTech did not submit a timely proposal that complied with the terms of the request for proposals. On the parties’ cross-motions for judgment on the administrative record, this court finds that SelectTech made a timely and responsive proposal, that a contract properly arose, and that plaintiff’s other protest grounds are erroneous.
I. BACKGROUND
On May 24, 2005, the U.S. Air Force (the Air Force) issued a request for proposals (RFP), number FA8601-05-R-0034. On June 6, 2005, it revised the RFP to set aside the procurement entirely for small business concerns. Offerors were advised that their proposals were to “include sufficient detail for effective evaluation and for substantiating the validity of stated claims” and that the award would be made to the offeror providing the agency with “the greatest confidence that it will best meet or exceed the requirements affordably.” Three evaluation factors were listed in the RFP, in descending order of importance: mission capability, past performance and price. The RFP contained a trade-off clause that stated, “[i]f the lowest priced, mission capability (technically acceptable) offeror’s performance confidence rating is less than exceptional/high confidence, the Government will accomplish a trade-off between price and past performance” to select the best offer. Initial proposals were due on
Following discussions, four offerors submitted FPRs that were deemed in the competitive range — NVT, SelectTech, AdTech Systems Research, Inc. (AdTech), and JWK International Corp. (JWK). Based on its evaluation of these FPRs, the contracting officer assigned SelectTech and AdTech past performance risk ratings of “Satisfactory/Confidenee,” while NVT and JWK were assigned ratings of “Marginal/Little Confidence.” NVT’s relatively low past performance rating stemmed from the limited relevance of its past performance; the latter concern was raised in discussions, but, in the contracting officer’s view, was not remedied adequately in NVT’s final proposal. Select-Tech submitted the lowest-priced offer ($16,-342,247.00), while NVT submitted the second lowest-priced offer ($16,354,678.50).
On June 30, 2005, SelectTech submitted a signed Standard Form 33 (SF33) with its original proposal, which proposal acknowledged amendments that had been made to the RFP. That form, however, was overlooked by the Air Force, which, on August 17, 2005, wrote SelectTech querying, “[w]here is the original signed SF33, and where is the Selection B Schedule (CLIN Pricing) located in your proposal?” This topic arose during discussions between the Air Force and SelectTech. When SelectTech submitted its FPR on August 24, 2005, it included two signed SF33 forms: one was a copy of the original form dated June 30, 2005, while the second stated an offer date of August 23, 2005, and was marked “DRAFT.” The latter word had been inserted, as a watermark, by the Air Force in the model contract provided to all the offerors in an email on August 18, 2005. In a cover letter to its FPR, SelectTech stated that it was “pleased to submit its Final Proposal Revision (FPR) in response [to] the referenced 17 August 2005 letter.” In an accompanying letter, a segment entitled “Original signed SF33” explained—
The [initial] proposal contained a signed SF33 on page 28 as requested but did not contain a completed Section B due to the confusing titles and row descriptors contained in that section which have no meaning for a Time and Material contract. However, the data normally contained in the Schedule was presented in Exhibit A of Volume IV on page 14 through 20.
Attached please find the original signed SF33 requested during discussions. As discussed, the signed originals of the Amendments SF33’s are not being provided since they are listed on the original SF33. The proposal did include copies of the SF33’s on pages 31 through 34.
The Section B has been completed according to the directions of your office, utilizing the data provided in Exhibit A, and is submitted as part of the attached model contract.
The August proposal contained various provisions that addressed issues raised by the Air Force’s August 17, 2005, letter.
As there were no offers rated “Exceptional/High Confidence,” the agency used the aforementioned trade-off clause to choose between the two “Satisfaetory/Confidence” offers, ultimately selecting the lower priced SelectTech over AdTech. As noted, Select-Tech — the incumbent contractor for many of the services covered by the RFP — submitted the lowest price of all the offerors and received a higher past performance rating than NVT. On September 9, 2005, the contracting officer made a positive responsibility determination concerning SelectTech, and on September 13, 2005, a legal review of the award decision was completed. On September 20, 2005, the award to SelectTech was completed and announced to the other bidders. On that same day, SelectTech executed a Form SF33 essentially identical to the form it had submitted with its August submission, but with slight alterations in certain schedules. The Air Force generated this form, which served as the first page of the awarded contract.
On September 26, 2005, NVT filed a protest with the Small Business Administration (SBA), contending that SelectTech was not a small business. On October 12, 2005, the SBA rejected this protest. That same day, the contracting officer countersigned the Form SF33 that had been signed by Select-Tech on September 20,2005. On October 27,
On February 21, 2006, plaintiff filed a complaint with this court seeking injunctive and other forms of relief. Thereafter, the parties filed cross-motions for judgment on the administrative record. The court heard oral argument on those motions on May 17, 2006.
II. DISCUSSION
We begin with common ground. As recently noted by this court, “[w]hile the standard for deciding a motion for judgment on the administrative record, pursuant to RCFC 56.1, bears some threshold similarities to that governing a motion for summary judgment under RCFC 56, it is different in several core respects.” Int’l Outsourcing Servs., L.L.C. v. United States, 69 Fed.Cl. 40, 45 (2005).
It is the burden of the aggrieved bidder to demonstrate that the challenged agency decision is either irrational or involved a clear violation of applicable statutes and regulations. Banknote Corp. of America, 365 F.3d at 1351, aff'g, 56 Fed.Cl. 377, 380 (2003).
In the case sub judice, plaintiffs banner claim is that SelectTech’s proposal must be rejected because the FPR it submitted on August 24, 2005, included an SF33 that was marked “DRAFT,” giving rise to an ambiguity that, in plaintiffs view, precluded the Air Force from accepting the FPR in awarding the contract. Plaintiff submits that Select-Tech did not resolve this ambiguity (and supply a FPR capable of being accepted by the Air Force) until it submitted an SF33 without the word “DRAFT” on September 20, 2005 — that date, of course, was well after the time set for receipt of FPRs. Plaintiff argues that the Air Force’s acceptance of SelectTech’s earlier, allegedly nonconforming proposal violated its obligation to treat all offerors equally. See Banknote Corp. of America, Inc. v. United States, 56 Fed.Cl. at 383 (describing this obligation); Seattle Sec. Servs., 45 Fed.Cl. at 569 (same). In the court’s view, this claim misses the mark for several reasons.
Assuming for the sake of argument there was some ambiguity, plaintiff has identified no legal basis upon which to conclude that the Air Force’s actions were arbitrary, capricious or otherwise contrary to law. In arguing that the ambiguity allegedly created by the SF33 nonetheless meant that Select-Tech’s August 24, 2005, submission could not form the basis for an award, plaintiff alludes to cases that generally require that there be “lack of ambiguity” in offer and acceptance for a contract with the United States to arise. See, e.g., Anderson v. United States, 344 F.3d 1343, 1353 (Fed.Cir.2003); D & N Bank v. United States, 331 F.3d 1374, 1378 (Fed.Cir. 2003); City of Cincinnati v. United States, 153 F.3d 1375, 1377 (Fed.Cir.1998). None of the cases cited, however, involved procurement contracts arising under the Federal Acquisition Regulation (FAR). Rather, they involved bona fide questions as to whether there was a meeting of the minds, usually because of the absence of an integrated agreement. Here, of course, there is an integrated agreement and no question whatsoever that the parties intended to enter into a contract, making the aforementioned cases inapposite. Moreover, to the extent these eases are tangentially relevant, it is relatively clear that an ambiguity in an offer will prevent the formation of a contract only if it is significant enough to prevent a meeting of the minds, which, in turn, requires (in addition to other things) that the ambiguity be material.
In sum, plaintiff has not demonstrated that the sort of ambiguity assertedly encountered here precluded the Air Force from accepting SelectTech’s offer or otherwise caused plaintiff to be treated unequally. Of course, for the record, plaintiff has not shown any ambiguity, at all.
Finally, if the absence of legal error were not reason enough to reject the request for relief, the court observes that plaintiff has not proven that it was prejudiced by any alleged violation of law. As noted above, to demonstrate prejudice, a “protestor must show ‘that there was a substantial chance it would have received the contract award but for that error.’ ” Alfa Laval Separation, 175 F.3d at 1367 (quoting Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed.Cir.1996)); see also Int’l Outsourcing Servs., 69 Fed.Cl. at 47. Here, plaintiff asserts that had the Air Force recognized the alleged ambiguity in SelectTech’s FPR, it would have
Seemingly as an afterthought, plaintiff raises other arguments in support of its protest. One of these — that the Form SF33 signed by SelectTech in September was a new offer — is a bootstrap contention that hinges on the view that SelectTeeh’s August proposal was ambiguous. As the latter view is wrong, so too is this argument. The court has considered, and finds likewise wanting, plaintiffs various other arguments (particularly concerning the rating of its past performance), which simply are untenable in light of the administrative record, the eon-trolling law and the discretion that law confers on the contracting agency here. See NVT Technologies, 2006 C.P.D. ¶ 36 at *5-6 (rejecting several of these arguments).
III. CONCLUSION
This court need go no further. Measured by the appropriate standard of review, the Air Force’s conduct here was neither erroneous nor prejudicial to plaintiff. Since plaintiff has not proven the merit of its claims, the injunctive relief it requests is inappropriate.
Accordingly—
1. Plaintiffs motion for judgment on the administrative record is DENIED and defendant’s cross-motion for judgment on the administrative record is GRANTED.
2. This opinion shall be published, as issued, after October 5, 2006, unless the parties identify protected and/or privileged material subject to redaction pri- or to said date. Said materials shall be identified with specificity, both in terms of the language to be redacted and the reasons for the redaction.
IT IS SO ORDERED.
. RCFC 56.1 was recently abrogated and replaced by RCFC 52.1. See Notice of Adoption of Amendments to Rules (June 20, 2006). The former rule, however, is applicable in this case.
. It should be noted that RCFC 52.1 was designed to incorporate the decision in Bannum. Regarding the new rule, the Rules Committee Note provides—
Summary judgment standards are not pertinent to judicial review upon an administrative record. See Bannum, Inc. v. United States, 404 F.3d 1346, 1355-57 (Fed.Cir.2005). Specifically, the now repealed Rule 56.1 did not adopt the overall standard that summary judgment might be appropriate where there were no genuine issues of material fact. See RCFC 56(c). Nonetheless, despite this omission, parties, in moving for judgment on the administrative record under the prior rule, frequently would contest whether the administrative record showed the existence of a genuine dispute of material fact. To avoid this confusion, the new rule omits any reference to summaiy judgment or to the standards applicable to summary judgment.
See RCFC 52.1, Rules Committee Note (June 20, 2006); see also Bice v. United States, 72 Fed.Cl. 432 (2006).
. In Bannum, the Federal Circuit noted that, in Banknote Corp. of Am. Inc. v. United States, 365 F.3d 1345, 1352-53 (Fed.Cir.2004), it had erroneously conflated the standards under RCFC 56 and 56.1, albeit in dicta. In this regard, the Bannum court stated that—
Although it never reached the factual question of prejudice, the Banknote II court added that it is the trial and appellate courts’ task to "determine whether there are any genuine issues of material fact as to whether the agency decision lacked a rational basis or involved a prejudicial violation of applicable statutes or regulations.” This language equates a RCFC 56.1 judgment to a summaiy judgment under RCFC 56 and is unnecessary to the Banknote II holding. Because the court decided the issue by an interpretation of the solicitation, e.g., making a legal determination, the court in Banknote II did not need to consider whether the trial court overlooked a genuine dispute or improperly considered the facts of that case.
Bannum, 404 F.3d at 1354. Prior decisions of this court have made the same error. See, e.g., JWK, Int'l Corp. v. United States, 49 Fed.Cl. 371, 387 (2001), aff'd, 279 F.3d 985 (Fed.Cir.2002). Indeed, while various decisions of this court refer to a "motion for summary judgment on the administrative record,” see, e.g., ManTech Tele
. In Banknote, the Federal Circuit expounded upon these principles, as follows:
Under the APA standard as applied in ... [bid protest] cases, "a bid award may be set aside if either (1) the procurement official's decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation of procedure." [Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001)]. When a challenge is brought on the first ground, the test is "whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a 'heavy burden’ of showing that the award decision had no rational basis.” Id. at 1332-33 (citations omitted). “When a challenge is brought on the second ground, the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.” Id. at 1333.
Banknote Corp., 365 F.3d at 1351; see also Seattle Sec. Servs., Inc. v. United States, 45 Fed.Cl. 560, 566 (2000); Analytical & Research Tech., Inc. v. United States, 39 Fed.Cl. 34, 42 (1997).
. See Restatement (Second) Contracts, § 20 (effect of a misunderstanding); id. at comment b (“Almost never are all the connotations of a bargain exactly identical for both parties; it is enough that there is a core of common meaning sufficient to determine their performances with reasonable certainty or to give a reasonably certain basis for an appropriate legal remedy.”); see also Consumers Ice Co. v. United States, 201 Ct.Cl. 116, 475 F.2d 1161, 1165 (1973) (referring to ambiguities affecting the meeting of the minds as those that go “to the heart of the contract”).
. See id. (reporter’s note) ("It is important to distinguish between the common problem of interpretation of key terms of a contract and the much less common question whether a material difference of understanding has prevented the manifestation of mutual assent necessary to create a contract at all.”); see also Colfax Envelope Corp. v. Local No. 458-3M, 20 F.3d 750, 753 (7th Cir.1994) (Posner, J.) ("Intersubjectivity is not the test of an enforceable contract.”); Canada Life Assurance Co. v. Guardian Life Ins. Co., 242 F.Supp.2d 344, 356 (S.D.N.Y.2003) ("Not every
. See, e.g., E.L. Hamm & Assocs. v. England, 379 F.3d 1334, 1341-43 (Fed.Cir.2004); NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159-60 (Fed.Cir.2004). Of course, the mere existence of these cases (and dozens like them) is further evidence that the presence of an ambiguity in contracting documents does not render a contract invalid under the FAR.
. See, e.g., E.L. Hamm, 379 F.3d at 1341; Stratos Mobile Networks, USA v. United States, 213 F.3d 1375, 1380 (Fed.Cir.2000); Metric Constructors v. Nat. Aeronautics and Space Admin., 169 F.3d 747, 751 (Fed.Cir.1999).
. See also FAR § 14.404-2(a); for cases discussing these requirements, see, e.g., Firth Constr. Co. v. United States, 36 Fed.Cl. 268, 274 (1996); Sundt Corp., 96-2 C.P.D. ¶ 171 at *2, 1996 WL 637080 (1996); John P. Ingram, Jr. & Assocs., 93-1 C.P.D. ¶ 117 at *2, 1993 WL 41176 (1993); G.S. Link & Assocs., 90-1 C.P.D. ¶479, at *2, 1990 WL 278014 (1990); John C. Grimberg Co., 85-1 C.P.D. ¶ 478 at *2, 1985 WL 52686 (1985); see also E.W. Bliss Co. v. United States, 33 Fed.Cl. 123, 138-39 (1995).
. At one time, plaintiff argued that the award should be set aside because, between the time of the award and the signing of the final contract, SelectTech agreed to provisions that were not in its August FPR. However, at oral argument, plaintiff's counsel appeared to recognize that this claim was not factually correct, i.e., that the final contract did not include these new provisions. At all events, the "new” provisions that plaintiff originally cited all benefit the government and, if they had been added after the award, would have been covered by FAR § 52.215 — 1(c)(3)(B), which provides that "a late modification of an otherwise successful proposal that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted." See also Conscoop-Consorzia Fra Cooperative Di Prod. E Lavoro v. United States, 62 Fed.Cl. 219, 240 (2004).