Griffy's Landscape Maintenance LLC v. United States

46 Fed. Cl. 257, 2000 U.S. Claims LEXIS 35, 2000 WL 303038
CourtUnited States Court of Federal Claims
DecidedMarch 2, 2000
DocketNo. 99-999C
StatusPublished
Cited by21 cases

This text of 46 Fed. Cl. 257 (Griffy's Landscape Maintenance LLC 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
Griffy's Landscape Maintenance LLC v. United States, 46 Fed. Cl. 257, 2000 U.S. Claims LEXIS 35, 2000 WL 303038 (uscfc 2000).

Opinion

OPINION

BASKIR, Judge.

Griffy’s Landscape Maintenance, LLC, has brought a post-award bid protest challenging the award to Easy Tree Services of a best-value solicitation for tree trimming and right of way maintenance services at Ft. Campbell, Kentucky. The central issue of this protest is whether Griffy’s missing insurance point of contact information raised a duty of inquiry by the Army. On cross motions, we conclude the Army failed to meet its duty of inquiry. We sustain Griffy’s protest.

Contract History

Griffy’s protest challenges the evaluation of its bid, asserting that the Army improper[258]*258ly failed to award it points for a past-performance factor because of absent insurance point of contact information. A simple phone call would have produced the missing insurance contact name and phone number; that, in turn, would have produced the insurance rating that would make Griffy competitive with Easy Tree, especially since Griffy’s bid was 20% lower.

The Army issued its solicitation in late May 1999, and six proposals were received by the July closing date. The Army determined that Easy Tree offered the best value to the Army and awarded it a contract on September 20, 1999.

The Army evaluated past performance and price, with past performance receiving a maximum of 100 points and viewed as slightly more important. One of the past performance subfactors was the experience modification factor (EMF). EMF refers to a rating assigned by a bidder’s general liability insurance carrier based upon the bidder’s safety record. The number of EMF points awarded is a product of the bidder’s insurance rating, calculated by a mathematical formula. The maximum is 20 points.

In the absence of a contact name and phone number for Griffy’s insurance representative, there was no rating and, consequently, no EMF points. Griffy asserts that it submitted the contact information, a disputed fact. For the purposes of these cross motions, we assume simply that the required information was missing. We make no assumptions as to why.

Griffy received a total of 47.8 points. Even disregarding the EMF issue, this was far less than Easy Tree. Although Easy Tree’s bid price was 20% higher than Griffy’s, it won the award. Griffy filed an agency protest.

Griffy’s protest challenged its low score for similarity of work and its score of zero points for EMF. It was successful on the first issue, and its point total was revised upward to 73. But its EMF challenge was rejected and its zero rating was unchanged. A renewed agency protest fared no better. Recourse to the General Accounting Office (GAO) was later rejected as untimely.

Finally, on December 14, 1999, Griffy filed its protest in this Court. Griffy asserts here that its insurance rating would have given it the maximum of 20 EMF points, making it equivalent to Easy Tree on past performance, and far less costly. On this basis, it seeks to have the Court award it the contract.

Griffy’s complaint also asked for a temporary injunction. After a brief informal hearing, the parties were able to agree on a limited work schedule for Easy Tree, which was incorporated in a Court order. The plaintiff and defendant subsequently filed motions for summary judgment and for judgment on the administrative record, respectively. Oral arguments were held on February 17, 2000.

Intervenor Easy Tree’s participation was complicated by its pro se status, especially since some of Griffy’s information was competition sensitive. However, this information was also set out in Griffy’s initial, publicly filed complaint and motion for preliminary injunction. Accordingly, Easy Tree was served with the dispositive motions pleadings with very limited information redacted. Easy Tree participated in the oral argument and subsequently filed a submission.

Analysis

While we decline to assume that Griffy actually submitted the missing information, thus laying responsibility for its later absence squarely on the Army, we do not think the situation is much changed. When Griffy’s proposal was evaluated, and the information was seen to be missing, there really were only two explanations. Either Griffy did not have any insurance contact and the omission was deliberate — possible, but highly improbable that a contractor without insurance would submit a proposal; or the omission was inadvertent. And if it was inadvertent, it was because of a clerical error either by Griffy or by the Army. In either event, the Army had a duty to inquire further. Moreover, Griffy had regularly contracted through the Ft. Campbell contracting office and was presently performing another contract there. The missing information may have been readily available from the Army’s own contract files. And a brief phone call [259]*259would have remedied the error, irrespective of responsibility.

To begin with, the absence of the point of contact information in and of itself clearly indicates a clerical mistake. We see from Easy Tree’s proposal and Griffy’s “lost material” that we are talking about a single sheet of paper containing the name of an insurance representative and a telephone number. The government’s obligation as respects an apparent clerical error is clear — it has a duty to inquire. Central Park v. United States, 44 Fed.Cl. 737 (1999); Connelly Containers, Inc. v. United States, 7 Cl.Ct. 423 (1985).

The solicitation at issue was labeled a “negotiated” procurement, but in fact bidders were advised that there would be no negotiations or discussions. In character it was the same as a sealed bid procurement where there are no post-submission contacts with bidders. But even in the sealed bid procurement framework an exception to the no-contact rule is recognized for clarification of overt errors:

In cases of apparent mistakes and in cases where the contracting officer has reason to believe that a mistake may have been made, the contracting officer shall request from the bidder a verification of the bid, calling attention to the suspected mistake.

48 C.F.R. § 14.406-1. The FAR makes this exception because of the great importance of one of the cornerstone policy goals underlying public procurement — insuring that the government attains the best contract possible and does not take advantage of obvious contractor errors. The FAR is not diverted from this goal by easily remedied clerical errors.

The duty of verification exists regardless of whether the solicitation is characterized as negotiated or sealed. One of the very purposes of negotiated procurement is to allow offerors to correct deficiencies and errors. John Cibinie, Jr. and Ralph C. Nash, Jr., Formation of Government Contracts, 710 (3rd ed.1998). Indeed, this is what the FAR means by “negotiated” in a “negotiated procurement”:

Negotiations are exchanges ... between the Government and offerors, that are undertaken with the intent of allowing the offeror to revise its proposal.

FAR § 15.306(d).

The Army, however, argues that the solicitation explicitly stated that it might make award without any discussion. At oral argument the Army also implied that if it sought to clarify the omission with Griffy, it would have to hold discussions with all bidders. This confuses the concepts of discussions and clarifications.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Govwave, LLC v. United States
Federal Claims, 2025
Dell Federal Systems, L.P. v. United States
133 Fed. Cl. 92 (Federal Claims, 2017)
Res Rei Development, Inc. v. United States
126 Fed. Cl. 535 (Federal Claims, 2016)
Caddell Construction Company v. United States
125 Fed. Cl. 30 (Federal Claims, 2016)
Bcpeabody Construction Services, Inc. v. United States
112 Fed. Cl. 502 (Federal Claims, 2013)
St Net, Inc. v. United States
112 Fed. Cl. 99 (Federal Claims, 2013)
Camden Shipping Corp. v. United States
89 Fed. Cl. 433 (Federal Claims, 2009)
Labatt Food Service, Inc. v. United States
84 Fed. Cl. 50 (Federal Claims, 2008)
Information Sciences Corp. v. United States
80 Fed. Cl. 759 (Federal Claims, 2008)
PHT Supply Corp. v. United States
71 Fed. Cl. 1 (Federal Claims, 2006)
PGBA, LLC v. United States
60 Fed. Cl. 196 (Federal Claims, 2004)
C.W. Over & Sons, Inc. v. United States
54 Fed. Cl. 514 (Federal Claims, 2002)
Griffy's Landscape Maintenance LLC v. United States
51 Fed. Cl. 667 (Federal Claims, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
46 Fed. Cl. 257, 2000 U.S. Claims LEXIS 35, 2000 WL 303038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griffys-landscape-maintenance-llc-v-united-states-uscfc-2000.