C & L Construction Co. v. United States

32 Cont. Cas. Fed. 73,102, 6 Cl. Ct. 791, 1984 U.S. Claims LEXIS 1245
CourtUnited States Court of Claims
DecidedDecember 4, 1984
DocketNo. 479-81C
StatusPublished
Cited by21 cases

This text of 32 Cont. Cas. Fed. 73,102 (C & L Construction Co. 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
C & L Construction Co. v. United States, 32 Cont. Cas. Fed. 73,102, 6 Cl. Ct. 791, 1984 U.S. Claims LEXIS 1245 (cc 1984).

Opinion

OPINION

LYDON, Judge.

This construction contract case comes before the court on motions for summary judgment, both parties claiming there are no material issues of fact in dispute and that they are entitled to judgment as a matter of law. On the other hand, each party opposes the summary judgment motion of the other party on the ground that the existence of genuine material issues of fact precludes the granting of said motion. The question for consideration in this case is whether plaintiff, who had performed a housing construction contract for the United States Air Force, is entitled to reformation of said contract on the ground of mistake in the proposal (bid) it submitted in response to an Air Force Request For Proposal (RFP). After careful consideration of the submissions of the parties, and following oral argument, the court concludes that defendant’s motion for summary judgment should be granted.

Facts

On June 20, 1975, Pease Air Force Base in New Hampshire (PAFB) issued a RFP for the design and construction (Turnkey) of 100 military family housing units. As to turnkey construction contracts generally see Mobile Housing Environments v. Barton & Barton, 432 F.Supp. 1343, 1346 (D.Col.1977). The RFP allowed a contractor responding to the RFP to propose its own housing design, site layout and quality level for the procurement project, with each proposer to be fully responsible for quality control and any deficiencies in design or workmanship. The RFP specifically stated that the total funds allocated for this contract were $2,728,500.

The RFP contained a Price Proposal Schedule which was to be completed by the offerors or proposers. The Schedule called for the submission of a Lump Sum price for the complete design and construction of 100 family housing units, with this Basic Lump Sum price to be broken down to reflect the Lump Sum price for work “Inside building 5' line” and for work “Outside building 5' line.” This Schedule also provided that the Basic Lump Sum price could be increased or decreased by amounts applicable to four work items for the addition to or deletion from the Basic Lump Sum price. The four work items listed in the Schedule were Landscaping, Carports, Garages, and PFL Prefinished, Hardboard Siding. The submission of prices for these four items was mandatory for all proposals. The Schedule advised that it was intended that the basic proposal submitted by any offeror would meet or exceed the minimum requirements of the RFP and would permit an award at or below the programmed funds of $2,728,500.

The RFP contained an “Information To Proposers” section. Paragraph 21 of this section provided as follows:

STATUTORY COST LIMITATIONS In accordance with applicable Public Laws, a program cost average for all Air Force family housing units in the continental United States and overseas has been established. The Air Force has distributed these funds for each project in the Fiscal Year 1975 Program, and has programmed $2,728,500 for award of this contract. This sum represents the total contract funds presently available for this project.
PROPOSALS IN EXCESS OF THIS AMOUNT, AT THE GOVERNMENT’S DISCRETION, MAY BE ELIMINATED FROM FURTHER CONSIDERATION.
READ THE FOLLOWING IN CONJUNCTION WITH THE INSTRUCTION TO BIDDERS, SF 22
The Air Force considers this amount adequate for the procurement of this project in accordance with this Statement of Work. Therefore, proposers are encouraged to prepare their proposals so as to comply with all minimum RFP requirements and to permit award at a price [795]*795within this amount. Desirable features exceeding minimum requirements, if not included in basic proposal, may be submitted as separately-priced items and will be considered in proposal evaluation, (underscoring supplied)

On October 29, 1975, six proposals were submitted to the Air Force in response to the June 20, 1975, RFP. As finalized, the proposals set forth the following Basic Lump Sum prices:

a) Proposer No. 67 — $3,300,000
b) Proposer No. 59 — $3,218,000
c) Proposer No. 49 — $3,210,000
d) Proposer No. 46 — $2,931,000
e) Proposer No. 71 — $2,910,0001
f) Proposer No. 58 — $2,840,000

It is to be noted that all proposers submitted Basic Lump Sum prices in excess of the amount allocated and programmed for this contract, i.e., $2,728,500.

After receipt of these proposals, the contracting officer at PAFB determined that the six proposals were in the competitive price range for further consideration. The applicable regulation governing this determination (AFR 70-15(5)(n)(2) (1973)) stressed that the concept “competitive range” was to be viewed broadly, with the object being “not to eliminate proposals from the competitive range” but “to enhance proposal acceptability from which award may be made in the Government’s best interest * * *.” Any doubt in this regard must, under the regulation, be resolved by considering the doubtful proposal as being within the competitive range. Since this was to be a negotiated procurement, it was hopefully anticipated that through negotiation a proposal would be proffered that would be within the funding limits for this contract.

After deleting the price Schedules and all references to company names, each proposer was given a number, and each Basic Proposal was forwarded to the Strategic Air Command Source Selection Evaluation Board (SSEB) at Offutt Air Force Base (OAFB) in Nebraska for detailed technical evaluation of each Basic Proposal and assignment of ratings for each evaluation element as described in the RFP. The technical evaluation of each proposal at the OAFB was conducted independently of the contracting officer at PAFB. The SSEB was composed of military and government civilian personnel who represented various functional and technical disciplines in housing procurement.

After the SSEB completed its evaluation and assigned technical quality ratings, the SSEB gave its findings to the Source Selection Advisory Council (SSAC). The SSAC is comprised of senior military and/or government civilian personnel designated to serve as advisors to the Source Selection Authority (SSA), who is the major command commander directing the source selection process. The SSAC assessed each proposal’s strengths and weaknesses and prepared an Analysis Report for the SSA. Most significantly, the SSAC introduced for the first time price factors into the analysis. The SSAC then determined a relative value for each proposal. This was done by dividing the proposed price of each proposal by the quality rating to arrive at a dollar per quality point figure. The SSAC then prepared a final ranking of the proposals to present to the SSA for a final determination.

The SSA in this case was Major General Thomas M. Ryan, Jr. In addition to directing the source selection process, the SSA must ultimately select the proposal which based on the facts and findings will be in the best interest of the Air Force. In this case the SSA issued his decision on February 27, 1976, to the contracting officer at PAFB to award the contract to plaintiff.

During this evaluation process the contracting officer at PAFB began negotiating with each offeror including plaintiff.

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Cite This Page — Counsel Stack

Bluebook (online)
32 Cont. Cas. Fed. 73,102, 6 Cl. Ct. 791, 1984 U.S. Claims LEXIS 1245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/c-l-construction-co-v-united-states-cc-1984.