Eastern Marine, Inc. v. United States

32 Cont. Cas. Fed. 72,391, 5 Cl. Ct. 34, 1984 U.S. Claims LEXIS 1442
CourtUnited States Court of Claims
DecidedApril 5, 1984
DocketNo. 105-84C
StatusPublished
Cited by5 cases

This text of 32 Cont. Cas. Fed. 72,391 (Eastern Marine, Inc. 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
Eastern Marine, Inc. v. United States, 32 Cont. Cas. Fed. 72,391, 5 Cl. Ct. 34, 1984 U.S. Claims LEXIS 1442 (cc 1984).

Opinion

OPINION

MARGOLIS, Judge.

This pre-award contract case was brought by plaintiff Eastern Marine, Inc. (EMI), a Florida corporation, after its proposal for the construction of patrol boats was excluded from further consideration by the defendant United States through the United States Coast Guard (Coast Guard). The procurement involves some 40-50 million dollars with an additional future procurement in the same amount. Plaintiff seeks injunctive relief and a declaratory judgment that the defendant’s actions were improper, or, in the alternative, an award of bid preparation costs. Plaintiff alleges 1) the Coast Guard treated it disparately by allowing the two remaining competitors to make changes in their proposals similar to those for which plaintiff’s proposal was eliminated; 2) the defendant should be es-topped from eliminating plaintiff’s proposal from the competition; 3) the Circular of Requirements was ambiguous; and 4) the defendant failed to follow the appropriate evaluation procedures. Plaintiff contends, therefore, that the Coast Guard’s actions were without a rational basis, and were arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law.

Plaintiff filed its complaint on March 1, 1984. At a hearing that day, the defendant stipulated that it would not award the contract before April 2, 1984. An expedited briefing schedule was ordered, and defendant submitted a motion for summary judgment on March 12, 1984. Meanwhile, Bollinger Machine Shop and Shipyard, Inc., one of the two remaining competitors, moved to intervene; its motion was granted on March 21, 1984. On March 23, 1984, the Comptroller General denied plaintiff’s bid protest, Eastern Marine, Inc., B-213945. After plaintiff submitted its response to defendant’s motion for summary judgment, a consolidated hearing and trial pursuant to RUSCC 65(a)(2) was held from March 26-28, 1984. After trial, the defendant stipulated it would not award the contract until April 6, 1984. For the reasons set forth below, this Court finds for the defendant.

FACTS

Plaintiff’s proposal was submitted pursuant to Request for Proposals solicitation No. DTCG23-83-R-30024 (RFP), a competitive negotiation entitled Seven Patrol Boats with Options for More. The procurement involves the construction of small high speed patrol boats for use in the nation’s effort to combat the importation of illegal drugs. Because of the Coast Guard’s stated desire to produce a reliable boat in a short period of time, the procurement stressed from the outset the “Parent Craft” concept. Basically, offerors were to use a proven and reliable patrol craft (i.e., the Parent Craft) as their prototype. As stated in the United States Coast Guard Patrol Boat (WPB) Circular of Requirements (COR), included in the RFP, “the [36]*36WPB 1 shall be based on an existing patrol craft modified to suit Coast Guard mission requirements.” The COR set forth the requirements that an existing patrol craft had to meet to be accepted as a Parent Craft. For example, the Parent Craft had to have been operated in patrol service for a minimum of three years with at least ninety days a year at sea. The COR also set forth criteria limiting the deviations allowed between the Parent Craft and an offeror’s WPB. Of particular importance to the case sub judice, COR section 042b stated in pertinent part:

The Parent Craft shall possess the same hull form and dimensions (defined as underwater body and hull up to the sheer line), principal hull structure, underwater appendages, and propulsion configuration as the WPB.

The Coast Guard announced the WPB procurement in notices published in the August 1982 and March 1983 Commerce Business Daily. The notices indicated the Coast Guard was conducting a market survey to seek sources for the proposed procurement. The Parent Craft concept was both introduced and stressed. Equitable Shipyards, Inc. (Equitable), a Louisiana company represented by Mr. E. Knight Campbell, was one of several firms which responded to the March 1983 notice. Equitable proposed using the Turkish SAR-33 as its Parent Craft. Equitable, however, modified the SAR-33 by deleting one of its three engines, complete with shaft, strut and propeller.

During April 1983 the Coast Guard reviewed the responses to the March 1983 notice and determined that enough small shipyards were in competition to designate the procurement as a small business set aside, i.e., only companies with less than 1,000 employees would be eligible. Equitable, a large shipyard, was therefore ineligible.

The Coast Guard issued the formal RFP on May 9, 1983. That same day, Captain Dean A. Frankenhauser, who was both the WPB Acquisition Team Chairman and the Source Evaluation Board (SEB) Chairman, called Campbell. The substance of this conversation and a number of other conversations between the two men was disputed. Basically, Frankenhauser claimed he called Campbell merely because he thought the Equitable response “looked like a very viable candidate.” He testified that he had only three telephone conversations with Campbell, during which he never represented that a two engine WPB based on a three engine Parent Craft was acceptable. He also claimed to have continually referred Campbell to Lcdr. James Q. Neas, who was listed in the RFP as the person to contact for information concerning the procurement. Campbell, on the other hand, testified to having ten telephone conversations with Frankenhauser. Campbell also testified that Frankenhauser solicited him to find a small business to submit a proposal based on the SAR-33, and that Frankenhauser gave him a list of seventeen qualified shipyards to contact. Campbell further testified that on a number of occasions, Frankenhauser represented that the deletion of an engine, shaft, strut and propeller would be acceptable provided the offeror submitted data to verify performance claims.

Campbell contacted EMI and acted as its representative throughout the procurement. EMI submitted its proposal on July 11, 1983. EMI’s proposal used the Turkish SAR-33 as the Parent Craft, modified by deleting one of its three engines and attendant shaft, strut, and propeller.

The Coast Guard followed the evaluation procedures set forth in the RFP. These procedures followed the more specific requirements of Department of Transportation Order DOT 4200.11, 41 C.F.R. § 12-99.000, as amended.2 Under the first step, [37]*37proposals were preliminarily reviewed, and those proposals so grossly deficient as to be totally unacceptable on their face were eliminated. This very liberal standard was designed to eliminate only those proposals which, for example, did not represent a reasonable effort to address themselves to the essential requirements of the RFP or which clearly demonstrated that the offer- or did not understand the requirements of the RFP. DOT Order 4200.11A, Ch. VII § 8. EMI’s proposal was not eliminated in this first step. Coast Guard officers testified that at this early stage they believed a two shaft variant of the SAR-33 might exist.

The second step consisted of clarifying ambiguities found during the preliminary review. By letter dated July 28, 1983, the Coast Guard notified EMI of the ambiguities in its proposal. The letter did not mention the deletion of one of the Parent Craft’s engines. DOT Order 4200.11A expressly provides that only ambiguities were to be identified at this stage, and no discussion of proposal weaknesses or deficiencies was to take place.

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Related

Eastern Marine, Inc. v. United States
33 Cont. Cas. Fed. 74,491 (Court of Claims, 1986)
Aviation Enterprises, Inc. v. United States
32 Cont. Cas. Fed. 73,403 (Court of Claims, 1985)
Marine Power & Equipment Co. v. United States
594 F. Supp. 997 (District of Columbia, 1984)
Marine Power & Equipment Co. v. United States
32 Cont. Cas. Fed. 72,721 (Court of Claims, 1984)
Bollinger MacHine Shop & Shipyard, Inc. v. United States
594 F. Supp. 903 (District of Columbia, 1984)

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32 Cont. Cas. Fed. 72,391, 5 Cl. Ct. 34, 1984 U.S. Claims LEXIS 1442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eastern-marine-inc-v-united-states-cc-1984.