Argencord Mach. & Equip., Inc. v. United States

68 Fed. Cl. 167, 2005 U.S. Claims LEXIS 290, 2005 WL 2473810
CourtUnited States Court of Federal Claims
DecidedSeptember 30, 2005
DocketNo. 05-731C
StatusPublished
Cited by73 cases

This text of 68 Fed. Cl. 167 (Argencord Mach. & Equip., 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
Argencord Mach. & Equip., Inc. v. United States, 68 Fed. Cl. 167, 2005 U.S. Claims LEXIS 290, 2005 WL 2473810 (uscfc 2005).

Opinion

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT UPON THE ADMINISTRATIVE RECORD AND DENYING PLAINTIFF’S MOTION FOR A PERMANENT INJUNCTION

WILLIAMS, Judge.

In this post-award bid protest, Plaintiff, Argencord Machinery & Equipment, Inc. (Argeneord), challenges the Army’s award of a contract to Tek Precision Company (Tek) for tie rod structural support assemblies for Black Hawk helicopters.2 Plaintiff alleges that the Army improperly rejected its amended proposal because its initial proposal had been late. In addition, Plaintiff contends that the amendment, which allowed offerors to propose “machined” rather than “forged” tie rods, was so substantial as to warrant the cancellation of the solicitation and a resolicitation.

This matter comes before the court on Plaintiffs motion for a permanent injunction and Defendant’s motion for judgment upon the Administrative Record (AR). Although the Army erred in accepting Plaintiffs late initial offer and inviting a revised proposal, these errors do not warrant enjoining the award to Tek and directing award to Plaintiff.3 Rather, the Army properly rejected [169]*169Plaintiffs amended proposal once it determined Plaintiffs initial offer should have been rejected as late. Further, Plaintiff failed to establish that the Army was required to cancel the solicitation and resolicit when it permitted offerors to propose alternate material including machined tie rods. This relaxation of the requirement was not so substantial as to exceed what prospective offerors reasonably could have anticipated and thus did not warrant reopening the competition. As such, Plaintiffs motion for a permanent injunction is denied, and judgment on the Administrative Record is entered for Defendant.

Findings of Fact 4

The Solicitation

On July 6, 2004, the United States Army Aviation & Missile Command at Redstone Arsenal, Alabama (Army) issued solicitation number W58RGZ-04-R-0164 for the acquisition of tie rod structural support assemblies for Black Hawk helicopters. AR at 75. The procurement was a small business set-aside, and was to result in an indefinite delivery indefinite quantity (IDIQ) contract with a minimum quantity of 406 and a maximum of 2406 over a five-year period. AR at 66, 75. Because the tie rod structural supports were categorized as “critical safety items,” only contractors capable of becoming source-approved by the Army before the date of award were eligible. FAR 209.270-4, 48 C.F.R. § 209.270-4 (2004); AR at 73.5 The solicitation required that the tie rods be made through a forging process. Dantona Aff. ¶ 10, Ex. D.

The Army sent the solicitation to eight potential offerors. AR at 290. The deadline for the receipt of offers was 4:00 p.m. on August 12, 2004. AR at 72. Award was to be made to the low responsive offer.

Initial Offers

The Army received offers from four entities, Plaintiff, Tek, CPI Aerostruetures, Inc. (CPI), and Logistical Support, Inc. (Logistical Support). AR at 290. Both Plaintiff and Tek were pre-approved sources, whereas CPI and Logistical Support had not yet undergone engineering testing for source approval. AR at 290. After realizing that CPI and Logistical Support could not receive source approval in time for award, the Army determined that they could not be considered for award. AR at 290.

Tek offered a price of $569 per unit for the first year — with or without a First Article Test Requirement (FATR) — $569 per unit for the second year, $579 per unit for the third year, and $598 per unit for the fourth and fifth years. AR at 146. In addition, Tek’s offer included a request “for approval to allow use [of] an alternate material” — a “machined” tie rod. AR at 154. Tek supplemented its proposal by attaching a Request for Waiver, DD Form 1694, which documented the Army’s approval of the machined material under a prior contract based upon Tek’s showing that such alternate material had passed testing requirements. AR at 204-05.

In its offer, Argencord proposed a price of $547 per unit for the first two years, $574 per unit for the third year, $603 per unit for the fourth year and $633 per unit for the fifth year. AR at 211-16. Argencord also requested waiver of first article testing and offered a price of $535 per unit for the first year without such testing. AR at 211-13.

Plaintiff transmitted the first 13 pages of its offer via facsimile transmission (fax) on August 18, 2004 — six days late — and stated [170]*170that its entire proposal was being sent via Federal Express for delivery the following morning. AR at 206, 290; Tr. at 72.6 On the fax cover sheet Plaintiff stated: “We were under the false impression that the solicitation was due on August 29, 2004, which was listed on the June 24 solicitation notice.” AR at 206.7

The contract specialist explained why he evaluated Argencord’s late initial offer:

Q.: When you opened and evaluated Argencord’s initial offer, did you know it was late?
A: Yes.
Q.: Why did you go forward and evaluate it?
A.: Well, I received a fax and placed it in the file. I didn’t actually evaluate it at that time. And when I did evaluate the proposals because it was — I didn’t catch that it was late because it had the correct date on the bottom or something. The time frame had been an extended amount of time and I was working on multiple items. It was the November time frame as opposed to the August time frame when I got around to doing the evaluation.

Tr. at 216-17.8

Amendment 1

On September 23, 2004, the Army issued Amendment 1 to the solicitation to the four offerors who had submitted initial proposals — Plaintiff, Tek, CPI, and Logistical Support. AR at 221; Tr. at 111. The Amendment authorized progress payments and notified all the offerors that a technical request to use alternate material had been received. AR at 222. The Amendment further stated: “Alternate material may be authorized upon award if substantiating documentation that the alternate material has passed Army Fatigue test requirements is provided with response to this amended solicitation.” AR at 222. The Amendment also gave the offerors until October 15, 2004, to revise their pricing. AR at 222.

The alternate material which Tek sought to supply was a machined tie rod which differed from the originally-required forged tie rod in its manufacturing process. Tr. at 24-25. Under the forging process, a piece of aluminum is heated and pressed into a large irregular-shaped mold and “it oozes into a shape ... like a piece of clay____” Tr. at 26-30. There is only one approved source for the raw forged part — Consolidated Industries (Consolidated). Tr. at 35-36. The raw forged tie rod, which Consolidated supplies to Argencord, costs $172. Tr. at 36. According to Plaintiffs Operations manager, a raw piece of aluminum for the machined tie rod costs between $30 and $50. Tr. at 36.

In the alternate machining process, the tie rod is cut from a rectangular “raw bar stock piece of aluminum.” Tr. at 34-35.

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68 Fed. Cl. 167, 2005 U.S. Claims LEXIS 290, 2005 WL 2473810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/argencord-mach-equip-inc-v-united-states-uscfc-2005.