A & C Building & Industrial Maintenance Corp. v. United States

33 Cont. Cas. Fed. 74,928, 11 Cl. Ct. 385, 55 U.S.L.W. 2412, 1986 U.S. Claims LEXIS 745
CourtUnited States Court of Claims
DecidedDecember 24, 1986
DocketNo. 740-86C
StatusPublished
Cited by3 cases

This text of 33 Cont. Cas. Fed. 74,928 (A & C Building & Industrial Maintenance Corp. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A & C Building & Industrial Maintenance Corp. v. United States, 33 Cont. Cas. Fed. 74,928, 11 Cl. Ct. 385, 55 U.S.L.W. 2412, 1986 U.S. Claims LEXIS 745 (cc 1986).

Opinion

OPINION

MEROW, Judge:

This asserted pre-award contract claim matter comes before the court on plaintiff’s complaint, defendant’s dispositive motion, plaintiff’s opposition and defendant’s reply. Oral argument was held on December 17, 1986.

It was agreed that, in the absence of any material fact dispute, all relevant aspects of this matter may be resolved on the basis of the submissions to date.

Facts

On August 1, 1986 the General Services Administration, Philadelphia, Pennsylvania (GSA), issued a solicitation, GS-003-8600B-0036, seeking sealed bids to furnish all management, supervision, labor, materials, supplies and equipment to provide janitorial and related services at the Fallon Federal Building, Baltimore, Maryland. Bid opening was scheduled to occur on September 2, 1986. When the solicitation was issued, plaintiff, A & C Building and Industrial Maintenance Corporation (hereafter A & C), was the incumbent contractor for the Fallon Building. A & C has been awarded janitorial contracts for the Fallon Building since December 1, 1983, with its last contract scheduled to. expire on November 30, 1986. The contract to be awarded on solicitation GS-003-86-00B-0036 was to cover the year commencing December 1, 1986, with several renewal options.

GSA issued bid forms to 120 concerns on the prospective bidders list, including plaintiff. An appropriate notice of the solicitation was published in the Commerce Business Daily. Despite a change of address which was not reflected in GSA’s records on this solicitation, plaintiff received the initial GSA bid mailings, including solicitation amendments Nos. 1-6. In all likelihood, this material was received at plaintiff’s new address because plaintiff had the appropriate forwarding order on file with the United States Postal Service to cover mail addressed to its old address. By amendment, GSA postponed the bid opening date to October 7, 1986.

On October 6,1986, GSA issued modification No. 7 to solicitation GS-003-86-00B-0036. This modification provided that “the solicitation cited above is hereby postponed indefinitely.”

Plaintiff’s practice was to attend the bid opening for a job on which it intended to submit a bid. Plaintiff would submit its [387]*387bid at this time and not before. Plaintiffs president, Clement R. Hippie, did not consider it to be prudent to leave a bid prior to the scheduled bid opening date. He was concerned that a bid submitted prior to the opening date could become misplaced. Accordingly, consistent with plaintiffs bidding practice, as he had not received amendment No. 7, on October 7, 1986 Mr. Hippie brought plaintiffs bid on solicitation GS-003-86-O0B-0036 to the GSA location listed for the bid opening and was there handed a copy of amendment No. 7, postponing the solicitation indefinitely.

Mr. Hippie then did not consider it to be prudent to leave plaintiffs bid with GSA and he chose not to hand in the bid at that time.

On October 14, 1986, GSA issued amendment No. 8 to solicitation GS-003-86-00B-0036. In relevant part, this amendment stated that “[t]he bid opening date is extended to October 27, 1986, at 2:30 P.M. local Philadelphia time.” The GSA personnel responsible for preparation and mailing this amendment have submitted affidavits detailing the procedure used. Essentially, after its preparation, copies were addressed to all 120 concerns on the prospective bidders list and taken on a mail cart to the loading dock at the GSA regional office building in Philadelphia where, in the normal course of events, the cart would be collected by a United States Postal Service worker who would empty the cart into a Postal Service truck.

Plaintiff did not receive amendment No. 8 and, lacking knowledge that a bid opening had been scheduled, did not attend the event on October 27, 1986. Only one firm who bid, Supreme Services, Baltimore, Maryland, did attend the October 27, 1986 bid opening. Six bids were opened by GSA at this time. The GSA form for recording the receipt of bids shows that of the six bids, one was received on August 29, 1986, two were received on October 6, 1986, two were received on October 7, 1986, and one (Supreme Services) was received on October 27, 1986.

On October 28, 1986, Mr. Hippie contacted the appropriate GSA officials to inquire as to the bid opening date and was informed that it had occurred the previous day. Mr. Hippie contacted several other bidders on the prospective bidders list and ascertained that they also had not received amendment No. 8.

On November 24, 1986, the GSA contracting officer on solicitation GS-003-8600B-0036 signed a “price reasonableness determination” analyzing the bids and concluded that the price bid by Supreme “is considered fair and reasonable in view of the above and based on maximum practicable competition (six bids were received as indicated above).” An award to Supreme Services was proposed.

Suit was commenced in this matter on November 25, 1986 to enjoin an award under solicitation GS-003-86-00B-OO36. However, very shortly after suit was filed, an award was transmitted on November 25, 1986 by GSA to Supreme Services. At the oral argument on December 17, 1986, it was recognized that the relief plaintiff now seeks is cancellation of the award and re-solicitation by GSA as soon as is practical thereafter.

Supreme Services has had notice of this proceeding, but has not sought to intervene as a party.

Discussion

The undisputed facts in this matter are sufficiently similar to those involved in United States v. The Thorson Company, 806 F.2d 1061 (Fed.Cir.1986), such as to present a substantial question concerning compliance by GSA with the “full and open competition” requirement of the Competition Act, 10 U.S.C. § 2302(3), 41 U.S.C. § 403(7) (Supp. Ill 1985). The GSA bid register showing that only one bid was submitted on the October 27, 1986 opening date, whereas the other five bids had been previously submitted on prior (postponed) dates, should have served to alert the contracting officer to investigate why additional October 27, 1986 bids were not obtained. This is particularly true when no bid from [388]*388the incumbent contractor was received despite the fact that GSA was aware that this contractor intended to bid and had actually attended the prior bid opening date on this solicitation. Minimal investigation would have disclosed an apparent serious mailing problem with respect to amendment No. 8.

However, before the merits as to this matter can be reached, defendant’s jurisdictional argument must be considered. Defendant’s dispositive motion is premised upon the undisputed fact that plaintiff did not submit a bid in response to the solicitation involved.

Pre-award contract claim jurisdiction in the Claims Court depends upon the existence of an implied-in-fact contract requiring fair and honest consideration of responsive bids solicited by the government. United States v. Grimberg Co., 702 F.2d 1362, 1367 (Fed.Cir.1983).

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Bluebook (online)
33 Cont. Cas. Fed. 74,928, 11 Cl. Ct. 385, 55 U.S.L.W. 2412, 1986 U.S. Claims LEXIS 745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-c-building-industrial-maintenance-corp-v-united-states-cc-1986.