Hoppmann Corp. v. United States

35 Cont. Cas. Fed. 75,720, 18 Cl. Ct. 220, 1989 U.S. Claims LEXIS 182, 1989 WL 106755
CourtUnited States Court of Claims
DecidedSeptember 18, 1989
DocketNo. 365-86 C
StatusPublished
Cited by4 cases

This text of 35 Cont. Cas. Fed. 75,720 (Hoppmann Corp. 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
Hoppmann Corp. v. United States, 35 Cont. Cas. Fed. 75,720, 18 Cl. Ct. 220, 1989 U.S. Claims LEXIS 182, 1989 WL 106755 (cc 1989).

Opinion

OPINION

RADER, Judge.

In this contract case, plaintiff, Hoppmann Corporation (Hoppmann), seeks an equitable adjustment under the change clause of its contract with the United States Department of Army (Army). In 1985 the Army awarded plaintiff a contract for installation of an audio-visual system at the National Defense University War Gaming and Simulation Center at Fort McNair, Washington, D.C. The Army requested bids for an audio-visual system comprised of four components—camera, lens, pan/tilt device, and remote controller for the pan/tilt device.

The Army’s bid solicitation mentioned specific model numbers for three of the components, but said nothing about the model number for the remote controller. Plaintiff won the bid and then proposed to supply a controller with eight pre-set positions. The Army insisted that the controller have 100 pre-set positions, a condition not mentioned in the bid specifications. After disputing the requirement, plaintiff supplied the controller demanded by the Army. Thereafter, plaintiff brought this action in the United States Claims Court to recover $218,589.00, the difference in cost between the proposed controller and the installed controller.

Plaintiff now moves for partial summary judgment, claiming that the bid solicitation left it with the discretion to select a suitable remote controller. Defendant cross-moves for summary judgment, contending that the solicitation contained a patent ambiguity which plaintiff did not clarify prior to bidding. After argument, held on August 2, 1989, this court rejects defendant’s motion and grants plaintiff’s motion for partial summary judgment.

FACTS

In January 1985 the Army requested bids for an audio-visual system at the War College in Washington, D.C. Using wall-mounted cameras, this system would project selected images from a large gaming board to various locations outside the gaming control center. Paragraph 3.5.1 of the Bid Solicitation (¶1 3.5.1) described the technical specifications of the system:

3.5.1 Fixed Position Camera: Provide nine JVC 210 series cameras or equal wall mounted at locations detailed on the attached drawing. Cameras shall be remote controllable, pan, tilt and zoom full color equipped with switchable gain preamplifier. Remote camera control units are to be mounted in master control console with parallel controls located in the auditorium projection booth. These will be T.S.M. Model HS100P or equal with Lens Model HS-ZFSLD or equal.

The system contemplated four components: nine JVC 210 cameras or their equivalent, HS-ZFSLD lens or their equivalent, TSM HS-100P pan/tilt units or their equivalent, and remote control units for the pan/tilt devices. The specifications em[222]*222ployed model numbers to help define each component of the system, except the controllers.

At the time of contracting, two different remote control units were compatible with the HS-100P: the TSM Model HS-CB with eight pre-set positions and the TSM Micro-Controller with 100 pre-set positions. Total Spectrum Manufacturing, Inc. (TSM) listed the TSM HS-CB alone as the control unit for the HS-100P on its Master Price List in effect at the time of contracting. The TSM Micro-Controller first became available in 1984, shortly before the bid solicitation and was not listed on a TSM Master Price List until May 1,1985, after the contract award. Both the HS-CB and the Micro-Controller are separate items of equipment from the TSM HS-100P pan/tilt unit.

Three contractors submitted proposals— Avtec Industries (Avtec) at $903,910.73, Robert Slye Electronics Incorporated (Slye) at $997,250.00, and Hoppmann at $726,-130.00. The Army performed a technical evaluation of all three proposals and found them acceptable.

In preparing its bid, plaintiff consulted the only TSM Master Price List in effect at the time.1 Transcript of Proceedings, No. 365-86 C, filed Sept. 5, 1989 (Tr.) at 47. This price list contained the following references relevant to the solicitation:

Item Description Dealer Price List Price
HS-100P High Speed Preset Pan/Tilt System High Speed Preset Pan/Tilt System. Control head has l°-40° per second speed range. Preset return accuracy of less than V4. Control head may be table or ceiling mounted. Velocity control unit mounts in 19" rack and houses power supply and servo amplifiers. (Velocity control unit is pre-wired for zoom and focus servos). $5,100.00 $6,800.00
HS-CS Preset Control Box for HS-100P Control panel for HS-100P with 8 preset positions for pan/tilt/zoom/focus. Also includes manual control of all functions. $1,800.00 2,400.00

The 1983 price list indicated that the HS-CB was the “preset control box for [the] HS-100P.” This price list stated nothing about any other control box for the HS-100P. Therefore, when submitting its initial February 15, 1985 bid, plaintiff proposed to supply “the TSM control panel” which plaintiff understood at the time to refer solely to the HS-CB.

Mr. Robert Playford, Project Engineer for the Fort McNair project, drafted the solicitation for the Army. In drafting the solicitation, Mr. Playford consulted a new data sheet supplied by TSM. Tr. at 55, 61. The data sheet described the HS-100P High Speed Preset Servo Pan/Tilt System with Micro-Controller. The data sheet described some features of the HS-100P and [223]*223then described the Micro-Controller in the following terms:

Micro-Controller is the microprocessor control system with the capacity to preset up to 100 Pan/Tilt/Zoom/Focus positions.

Plaintiffs Brief, filed Feb. 7, 1989, (Pl.Br.) App. C, at 148. This data sheet apparently became available in 1984.2 TSM’s Master Price List, however, did not reflect the availability of a Micro-Controller until May 1. 1985.3 Thus, the TSM price list consulted by plaintiff during bidding was different from the TSM data sheet consulted by Mr. Playford during drafting of the bid solicitation. Tr. at 52-53.

Because all three bid proposals substantially exceeded the $600,000.00 limit for the project, the Army issued an amendment to the solicitation on March 15, 1985. This amendment reduced the Government’s requirements and opened negotiations with all three offerors. The amendment also requested that all bidders supply a list of equipment with a cost breakdown for the line items proposed in their bids.

At this point, plaintiff called the TSM supplier and sought confirmation that the HS-CB was still available at the price listed on the 1983 document. Mr. Jeffery W. Perryman, plaintiff’s Manager of Cost Analysis, placed this call on March 18, 1985. This call came after plaintiff had submitted its original proposal. Mr. Robert Gonnelli, the Vice-President of TSM, took Mr. Perryman’s call. During this conversation, Mr. Gonnelli informed Mr. Perry-man that the 1983 price list remained in effect. Mr. Gonnelli also volunteered his belief that the Army wanted the TSM Micro-Controller instead of the HS-CB. Mr. Perryman asked whether Mr. Gonnelli possessed or had ever even seen a copy of the bid specifications. Mr. Gonnelli stated that he had not.

After the telephone conversation, Mr. Perryman conferred with Mr. Lynn Claudy, Hoppmann’s Senior Project Engineer, who was responsible for reviewing the proposal. Mr. Claudy and Mr.

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Bluebook (online)
35 Cont. Cas. Fed. 75,720, 18 Cl. Ct. 220, 1989 U.S. Claims LEXIS 182, 1989 WL 106755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoppmann-corp-v-united-states-cc-1989.