Benchmade Knife Co. v. United States

79 Fed. Cl. 731, 2007 U.S. Claims LEXIS 388, 2007 WL 4335442
CourtUnited States Court of Federal Claims
DecidedNovember 30, 2007
DocketNo. 07-593C
StatusPublished
Cited by55 cases

This text of 79 Fed. Cl. 731 (Benchmade Knife Co. 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
Benchmade Knife Co. v. United States, 79 Fed. Cl. 731, 2007 U.S. Claims LEXIS 388, 2007 WL 4335442 (uscfc 2007).

Opinion

OPINION AND ORDER

WHEELER, Judge.

This post-award bid protest arises from a Defense Supply Center Columbus (“DSCC”) procurement of combat knives. Plaintiff Benchmade Knife Company, Inc. (“Ben-chmade”) is a longstanding supplier of fixed blade and automatic or “switchblade” knives to the military. Benchmade challenges DSCC’s December 21, 2006 contract award to Defendant-Intervenor Gerber Legendary Blades Division, Fiskars Brands, Inc. (“Gerber”) for automatic knives. Following two protests to the Government Accountability Office (“GAO”) and an agency decision to reevaluate proposals, DSCC lifted a stop work order on Gerber’s contract on July 17, 2007 so that Gerber’s performance could resume. Benchmade filed this action in our Court on August 6, 2007.

As amended, Benehmade’s challenge to the Gerber award consists of three alleged improprieties: (1) that the solicitation should have been set aside for small businesses; (2) that the agency’s decision to bundle the purchase of two types of knives in one solicitation was arbitrary, capricious, and contrary to law; and (3) that the agency’s acceptance of Gerber’s alternate offer as technically acceptable lacked a rational basis. Defendant filed the Administrative Record on August 21, 2007. The parties have filed cross-mo[733]*733tions for judgment on the Administrative Record pursuant to Rule 52. 1, and Ben-chmade has moved to supplement the Administrative Record with affidavits and post-decision documents. The parties completed their briefing on the cross-motions for judgment on October 18, 2007, and the Court heard oral argument on October 25,2007.

For the reasons stated below, the Court finds that Benchmade’s protest is without merit. Benchmade’s small business set-aside and bundling allegations are untimely, and should have been raised before proposals were submitted. See Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313-15 (Fed.Cir.2007). Even if these allegations were considered on the merits, the Court is not persuaded by Benchmade’s position. Moreover, the agency’s determination to accept Gerber’s offer of an alternate product is rationally based. The Court should not substitute its judgment for that of the agency’s mechanical engineer on a technical issue of whether the Gerber knife is an acceptable alternate to the Benchmade knife. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed.Cir.1996) (“[Technical ratings ... involve discretionary determinations of procurement officials that a court will not second guess.”). The Court also declines to supplement the Administrative Record with documents that had no bearing on the agency’s award decision. See Rust Constructors, Inc. v. United States, 49 Fed.Cl. 490, 496-97 (2001) (finding protestor’s affidavits did not fit into the category of “core documents” that should be included in the Administrative Record).

Accordingly, Defendant’s motion for judgment on the Administrative Record is GRANTED, and Benchmade’s cross-motion for judgment on the Administrative Record is DENIED. Benchmade’s motions to supplement the Administrative Record also are DENIED.

I. Factual Background2

DSCC is a field activity of the Defense Logistics Agency (“DLA”) located in Columbus, Ohio. DLA is an agency within the Department of Defense, and is responsible for purchasing and managing a wide assortment of supplies for the armed forces.

On August 2, 2006, DSCC’s Contracting Officer issued Solicitation No. SP0750-06-R-4308 to acquire two types of combat knives. Administrative Record (“AR”) 60-96. DSCC referenced the knives by National Stock Numbers (“NSN”) 1095-01-456-4457 and 1095-01-466-8569. AR 67-68. NSN -4457 is an automatic or “switchblade” knife, and NSN -8569 is a fixed blade knife. AR 54, 159. DSCC issued this solicitation as a total small business set-aside, based upon the Contracting Officer’s market research that at least two small business manufacturers could be expected to submit proposals. AR 1-20, 55-56. The solicitation indicated that Ben-chmade, a small business, had provided these knives to DSCC in the past. AR 63. Proposals were due not later than September 2, 2006. AR 60.

The solicitation contemplated an indefinite delivery, indefinite quantity (“IDIQ”) contract covering a base year and four one-year options, and indicated that award would be made on an “all or none” basis for each knife type. AR 63, 65. Thus, split awards of the different knives could be made to more than one offeror.3 AR 63. The solicitation permitted an offeror to propose an alternate product, provided that the offeror furnish a complete technical package covering the “design, materials, performance, function, interchangeability, inspection, and/or testing criteria, and other characteristics of the offered product.” AR 88; DLA Clause 52.217-9002 “Conditions for Evaluation and Acceptance of Offers for Part Numbered Items (JUL 2002).”

[734]*734On August 7, 2006, Gerber sent a letter to the Contracting Officer objecting to the total small business set-aside on the basis that one of the two approved small business manufacturers had discontinued making the knives and was no longer a small business. AR 97-98. The Contracting Officer confirmed this information, and determined that there was only one approved small business manufacturer, Benchmade, for the knives to be procured. The Contracting Officer concluded that she no longer had a reasonable expectation of receiving offers from at least two small business concerns offering the products of different small businesses, and she canceled the solicitation on August 29, 2006. AR 106-07.

On November 2, 2006, the Contracting Officer issued Solicitation No. SPM7LX-07-R-0001 to acquire the knives on an unrestricted basis. AR 115-16,119-54. The new solicitation contained the same terms as the initial solicitation regarding a base year and four one-year options, the IDIQ type of contract, the types of knives to be acquired, and the requirement for “all or none” offers for each knife type. AR 122, 126-27. The amended closing time for receipt of proposals was December 4, 2006 at 1:00 PM. AR 119.

In response to the new solicitation, the agency received proposals from four companies: Benchmade, Gerber, and two others. AR 230-31. Benchmade offered its own approved product, and Gerber proposed an alternate product. The agency rejected the two other proposals as being outside the competitive range and technically unacceptable. AR 232-33. Gerber submitted a technical data package for its alternate knife, in compliance with DLA Clause 52.217-9002. AR 158-222. The technical data package included descriptive information for both the Gerber and the Benchmade knives. Id.

The agency assigned a DSCC mechanical engineer to evaluate Gerber’s technical data package. AR 224-28. The assigned engineer physically examined and compared the two knives, and included a detailed chart with his evaluation. Id. The engineer summarized his evaluation as follows:

The technical evaluation was made using the data package and samples submitted by Gerber Legendary Blades.

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79 Fed. Cl. 731, 2007 U.S. Claims LEXIS 388, 2007 WL 4335442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benchmade-knife-co-v-united-states-uscfc-2007.