Gulf Group, Inc. v. United States

56 Fed. Cl. 391, 2003 U.S. Claims LEXIS 120, 2003 WL 21134430
CourtUnited States Court of Federal Claims
DecidedJanuary 14, 2003
DocketNo. 02-459C
StatusPublished
Cited by24 cases

This text of 56 Fed. Cl. 391 (Gulf Group, 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
Gulf Group, Inc. v. United States, 56 Fed. Cl. 391, 2003 U.S. Claims LEXIS 120, 2003 WL 21134430 (uscfc 2003).

Opinion

OPINION

ALLEGRA, Judge.

This bid protest action is before the court on the parties’ cross-motions for judgment on the administrative record. This is a post-award challenge to the April 25, 2002, award by the United States Army Corps of Engineers (the Corps) of a fixed-price contract to ABC Landclearing and Development, Inc./ Tri-State Design & Construction Co., Inc., a joint venture (ABC). Gulf Group, Inc. (Gulf), a Florida corporation, sought the same contract and now seeks injunctive relief setting aside the award to ABC and awarding it the contract, as well as bid preparation costs and other relief. After careful consideration of the briefs filed by the parties, the oral argument, and for the reasons discussed below, the court DENIES plaintiffs motion for judgment on the administrative record and instead GRANTS defendant’s cross-motion.

I. BACKGROUND

On March 14, 2000, the Corps issued Solicitation No. DACW01-00-R-0030 (the Solicitation), entitled “Indefinite Delivery/indefinite Quantity (ID/IQ) Contract for Rental of Construction Equipment with Operators for Disposal Area Management and Levee Main[393]*393tenance, Gulf Intracoastal Waterway, Apalachicola, Chattahoochee, Flint River System, Alabama, Florida, and Georgia.” The Solicitation contemplated the award of a fixed-price contract for a base year, with four option years. It was advertised as a competitive procurement under the Small Business Administration’s (SBA) 8(a) Program, restricted to 8(a) firms in SBA geographic Region IV.

Under the Solicitation’s description of work, the desired undertaking was generally described to consist of “furnishing rental equipment, operators, supplies, materials, labor, transportation, fuel, etc. to perform maintenance and rehabilitation of approximately eighteen (18) dredge material disposal sites and levee maintenance along fourteen (14) miles of levee.” Regarding the disposal sites, the work was to consist of “raising dikes, construction of new areas, grading material, installing weirs and ditching.” The levee maintenance work was to include “mowing, fertilizing, ditching, vegetation control, excavation, grading and filling to maintain levee crown.” Finally, the required dredging was to include “removing shoaled material and placement on adjacent beach.”2

In crafting their proposals, potential offer-ors were required to “read the contract as a whole” and “identify all key work to be self-performed, and all firms being considered for performance of the key work features.” Under the Solicitation, such proposals were to be evaluated on the basis of price and performance, with performance evaluated under two equal subfactors — management capability/effectiveness and past performance. The award was to be made to the offeror whose proposal represented the best value based on a performance/price tradeoff in which the performance factor was “significantly more important than cost or price.”3

To facilitate evaluation of the performance factor, the Solicitation directed offerors to list prior contracts demonstrating “a record of satisfactory, recent, related experience” in the type of construction described in the Solicitation, “including the key work features” described in the Solicitation. Along these lines, the prime contractor was required to “demonstrate recent, related experience,” and, in so doing, “[pjrovide [a] reference list identifying construction projects within the last five years, in which the prime contractor has been involved which are similar to this project in scope and magnitude.” In slightly different fashion, another provision in the Solicitation directed the prime contractor to “provide examples of projects demonstrating experience within the last five years, in each of the key work features identified in the organization narrative, if to be [394]*394self-performed.” 4

Offerors were advised that the Corps would assign each proposal an overall performance rating, chosen among the following: exceptional/high confidence; very good/significant confidence; satisfactory/confidence; neutral/unknown confidence; marginal/little confidence; and unsatisfactory/no confidence. The confidence levels referred to the Corps’ level of confidence that the offeror would perform the work described in the Solicitation. Under the Solicitation, a “neutral/unknown confidence” rating was to be given where an offeror had “no relevant performance history.” According to the Solicitation, “a neutral rating could be considered less favorable than a favorable past performance rating.”

The bid opening date was on June 8, 2000, by which date seven offerors, including Gulf and AJBC (the incumbent), had submitted proposals. In July 2000, the Corps Source Selection Evaluation Board (SSEB) met and preliminarily reviewed the technical proposals submitted by the offerors. The SSEB found several deficiencies in Gulfs proposal, among them Gulfs failure to identify subcontractors or field work personnel, including operators. The SSEB did not identify any deficiencies in ABC’s proposal, finding that it reflected “a good on-site management team and organization staff with the capability to operate on multiple work sites during the same period of time.” The SSEB’s initial overall ratings were “satisfactory” for Gulf and “very good” for ABC.

After further evaluation, five offerors’ proposals were included in the competitive range, including those of Gulf and ABC. The SSEB recommended that a price review of these proposals be conducted and that clarifications and discussions be conducted with the offerors in the competitive range.5 The Corps subsequently held those discussions. As part of those discussions, by letter dated March 16, 2001, the Corps asked Gulf, inter alia, to address its failure to include a list of its subcontractors in its proposal. That same day, Gulf faxed the Corps a response to this letter, but therein neither identified its subcontractors nor the circumstances under which they would operate.

On March 23, 2001, the Corps requested that final proposals be received by March 29, 2001. Gulf and ABC both submitted final proposals by that date. In the past performance section of its proposal, Gulf identified five projects: (i) the Storm Water Treatment Area 2 in Palm Beach County, Florida, where Gulf constructed levees and storm water control systems as a subcontractor to Bergeron Land Development; (ii) the removal and replacement of several sewer lift stations for MacDill Air Force Base, Florida; (iii) the construction of 14 miles of base road through the Apalach National Forest in Liberty County, Florida, for the Federal Highway Administration; (iv) road maintenance in the Apalachicola National Forest in Liberty County, Florida, for the Department of Agriculture; and (v) the construction of a training area for Army demolitions at Eglin Air Force Base, Florida. Gulf did not identify any of these projects as involving ID/IQ contracts. The customer questionnaires submitted with respect to these projects reflected ratings ranging from “very good” to “satisfactory.”

With regard to the performance factor, the Corps found that Gulf had considerable construction experience and that its proposal indicated experience in earth construction and heavy equipment.

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Bluebook (online)
56 Fed. Cl. 391, 2003 U.S. Claims LEXIS 120, 2003 WL 21134430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulf-group-inc-v-united-states-uscfc-2003.