Alabama Aircraft Industries, Inc. v. United States

85 Fed. Cl. 558, 78 Fed. R. Serv. 747, 2009 U.S. Claims LEXIS 108, 2009 WL 331315
CourtUnited States Court of Federal Claims
DecidedJanuary 28, 2009
DocketNo. 08-470C
StatusPublished
Cited by5 cases

This text of 85 Fed. Cl. 558 (Alabama Aircraft Industries, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alabama Aircraft Industries, Inc. v. United States, 85 Fed. Cl. 558, 78 Fed. R. Serv. 747, 2009 U.S. Claims LEXIS 108, 2009 WL 331315 (uscfc 2009).

Opinion

OPINION AND ORDER1

LETTOW, Judge.

Pending befoi'e the court is an application by plaintiff, Alabama Aircraft Industries, Inc.-Birmingham (“Alabama Airei’aft”),2 for an award of bid preparation and proposal costs pursuant to the Tucker Act, 28 U.S.C. § 1491(b)(2), and the com’t’s Opinion and Order entered on September 30, 2008. See Alabama Aircraft Indus., Inc.-Birmingham v. United States, 83 Fed.Cl. 666 (2008). In the prior decision, the court enjoined the Air Foi'ce from proceeding with a contract to perfonn maintenance and install modifications on the Air Force’s KC-135 Stratotanker fleet. Id. at 703. The injunction required the Air Force to ‘Tesolicit the procurement and take the necessary steps in a new solicitation to address explicitly the role of an ever-aging KC-135 fleet on the [maintenance] to be performed.” Id. The court also awax’ded Alabama Aircraft “its reasonable costs ineuxTed in bid preparation and proposal.” Id. The government has now disputed Alabama Aircraft's light to any award of reasonable costs and, alternatively, specific elements of Alabama Aircraft’s claimed amounts.3

[560]*560Alabama Aircraft requests that this court award it $2,146,361.91 in bid preparation and proposal costs. PL’s Reply in Support of Its Application for Bid Preparation and Proposal Costs at 1 (“PL’s Reply”). The government asserts two different rationales for precluding Alabama Aircraft from recovering any of its costs. First, the government claims that awarding Alabama Aircraft bid preparation and proposal costs in addition to injunctive relief would result in plaintiff receiving an impermissible double recovery. See Def.’s Resp. and Opp’n to PL’s Application for Bid Preparation and Proposal Costs at 6 (“Def.’s Resp.”). Secondly, the government contends that Alabama Aircraft has failed properly to substantiate its request for bid preparation and proposal costs. Def.’s Resp. at 12.

BACKGROUND

Alabama Aircraft filed its complaint in this court on June 27, 2008. Alabama Aircraft, 83 Fed.Cl. at 679. It asserted that the Air Force’s award to Boeing Aerospace Operations (“Boeing”) of a contract to perform Programmed Depot Maintenance (“PDM”), Unscheduled Depot Level Maintenance (“UDLM”), and modification installations for the Air Force’s KC-135 Stratotanker fleet was arbitrary, capricious, and contrary to law. See Compl. UK 1, 5. The bid protest filed by Alabama Aircraft arose out of a Request for Proposal (“RFP”) circulated by the Air Force in August 2005. Alabama Aircraft, 83 Fed.Cl. at 670. Initially, Boeing and Alabama Aircraft submitted a joint proposal under the RFP, with Boeing serving as the prime contractor and Alabama Aircraft as its primary subcontractor. Id. at 671. Due to an amendment to the RFP, which changed the number of KC-135s that would require contractor PDM, Boeing decided to terminate its partnership with Alabama Aircraft in June 2006. Id. In an effort to guarantee its ability to compete for the KC-135 maintenance contract, Alabama Aircraft initiated an agency level protest. Id. In response to Alabama Aircraft’s protest, the Air Force amended the RFP to allow for the submission of new proposals, and Alabama Aircraft commenced work on its proposal. Id.

In September 2006, the Air Force received proposals from Boeing, Alabama Aircraft, and Lockheed Martin, and it requested that the three offerors submit final proposals by June 2007. Alabama Aircraft, 83 Fed.Cl. at 671. All three of the offerors submitted final proposals in accordance with the Air Force’s proposed schedule. Id. After reviewing the final proposals, the Air Force determined that either Boeing or Alabama Aircraft would be awarded the contract. See id. at 675. The Air Force’s evaluation of the competing offers revealed “that Boeing’s proposal offered the lowest total evaluated price and superior supply chain management, while Alabama Aircraft’s proposal had a better past performance record.” Id. Ultimately, the Air Force decided to award the contract to Boeing, and Alabama Aircraft filed a protest with the Government Accountability Office (“GAO”), challenging the award to Boeing on several grounds. Id. at 676. In a written decision issued on December' 27, 2007, GAO sustained Alabama Aircraft’s protest because it concluded “that the Air Force’s price evaluation was flawed” and that the Air Force had failed “to consider the risk created by Boeing’s reduction in projected labor hours.” Id. After the GAO rejected a request by the Air Force for reconsideration, the government sought to take “limited corrective action” by conducting a price realism analysis using information contained in Boeing’s June 2007 final proposal. Id. at 676-77. Thereafter, the Air Force informed the competitors that “it had affirmed the award of the KC-135 PDM contract to Boeing.” Id. at 677.

Alabama Aircraft then filed a second protest at GAO, raising several objections to the Air Force’s award of the KC-135 PDM contract to Boeing, most notably to the failure of the Air Force to obtain and analyze information that was necessary to determining the viability of Boeing’s proposal given the aging of the KC-135 fleet. Alabama Aircraft, 83 [561]*561Fed.Cl. at 678. GAO rejected all of Alabama Aircraft’s contentions. Id, at 678-79.

At that juncture, Alabama Aircraft filed a complaint in this court, and the court implemented an accelerated schedule for submitting the administrative record and cross-motions for judgment on that record in accordance with RCFC 52.1. Alabama Aircraft, 83 Fed.Cl. at 679. Those proceedings produced the decision granting partial injunctive relief and awarding bid preparation and proposal costs. Id. at 703.

STANDARDS FOR DECISION

Under the Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996 (“ADRA”), Pub.L. No. 104-320, § 12, 110 Stat. 3870, 3874 (Oct. 19, 1996), a disappointed offeror who prevails in a bid protest can receive “any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs.” 28 U.S.C. § 1491(b)(2). In its prior ruling, the court found that a reprocurement was necessary and that Alabama Aircraft was entitled to bid preparation and proposal costs “because of the lengthy process involved with the procurement and the government’s failure ever to clarify the aging-aircraft issue in the [Request for Proposals] and amendments to it.” Alabama Aircraft, 83 Fed.Cl. at 703. The Tucker Act as amended by the ADRA does not define “bid preparation and proposal costs.” See 28 U.S.C. § 1491(b)(2).

Such costs are defined in the Federal Acquisition Regulations (“FAR”), which states that bid preparation and proposal costs are those “costs incurred in preparing, submitting, and supporting bids and proposals (whether or not solicited) on potential [g]ovemment or non-[g]overnment contracts.” 48 C.F.R. § 31.205-18(a).

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85 Fed. Cl. 558, 78 Fed. R. Serv. 747, 2009 U.S. Claims LEXIS 108, 2009 WL 331315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alabama-aircraft-industries-inc-v-united-states-uscfc-2009.