Isratex, Inc. v. United States

37 Cont. Cas. Fed. 76,261, 25 Cl. Ct. 223, 1992 U.S. Claims LEXIS 34, 1992 WL 19716
CourtUnited States Court of Claims
DecidedFebruary 6, 1992
DocketNo. 91-1699C
StatusPublished
Cited by32 cases

This text of 37 Cont. Cas. Fed. 76,261 (Isratex, 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
Isratex, Inc. v. United States, 37 Cont. Cas. Fed. 76,261, 25 Cl. Ct. 223, 1992 U.S. Claims LEXIS 34, 1992 WL 19716 (cc 1992).

Opinion

OPINION

NETTESHEIM, Judge.

On cross-motions for summary judgment after argument, this pre-award bid protest action questions whether the Government lawfully can exclude an offeror from participation in a negotiated procurement. The offeror’s product demonstration model failed a mandatory test. The request for proposals, however, did not indicate the relative importance of the characteristics involved, nor did it advise offerors that automatic exclusion would follow from the test failure.

FACTS

The following facts are undisputed. On March 25, 1991, the Department of Defense, Defense Logistics Agency (“DLA”), Defense Personnel Support Center (“DPSC”), issued Solicitation DLA100-91R-0120. DPSC is a supply center located in Philadelphia, Pennsylvania, that is maintained by DLA. The solicitation requested proposals for the manufacture of “792,408 EA Parka, Extended Cold Weather Clothing System (ECWS) Woodland Camouflage.” Half of the quantity was set aside for small businesses. The solicitation requested that proposals be submitted by April 19, 1991.

On April 17,1991, Amendment 0002 modified the solicitation; this amendment, inter alia, extended the closing date for proposals to May 21, 1991, and added a requirement that offerors submit a Product Demonstration Model (the “PDM”).1 Section L of the solicitation, entitled “INSTRUCTIONS, CONDITIONS AND NOTICE TO OFFERORS,” stated, after modifications by Amendment 0002, that the proposal was to be submitted in three parts: PDM, Past Performance, Accelerated Delivery. Section L also stated that “[a] properly executed solicitation constitutes an acceptable pricing proposal.”2 Section L required that each offeror submit two PDMs. With respect to the submission of the PDMs, Section L provided, in pertinent part, the following:

SUBMISSION OF PRODUCT DEMONSTRATION MODEL:

a. Models, as specified below, must be furnished as part of the offer and must [225]*225be received by the time set forth for closing of offers. Models will be evaluated to determine compliance with all characteristics listed in the end item specification.
b. Failure of the models to conform to all such characteristics may result in rejection of the offer.
d. The PDM’s shall be tested as follows:
1. One (1) complete garment shall be tested for hydrostatic resistance of the seams in accordance with para. 4.5.1 of MIL-P-44188B [“The parka shall be tested at four different locations____ Evidence of leakage in one or more seam locations shall be considered a test failure.”].
2. The other complete garment shall be subjected to visual and dimensional examination in accordance with paras. 4.4.2 and 4.4.3 of MIU-P-44188B. [Paragraph 4.4.2 provides an extensive list of possible defects for which end items are to be examined. Defects include cuts, tears, holes, omitted items, incorrectly placed or attached items, and improper stitching. Paragraph 4.4.3 specifies dimensions to which the end items must conform.]

Section M, entitled “EVALUATION CRITERIA AND BASIS FOR AWARD,” as modified by Amendment 0002, stated, in part, the following:

b. The technical quality of proposals shall be determined by assessment of the following technical evaluation factors. They are listed in descending order of importance:
1. Product Demonstration Model
2. Past Performance
3. Accelerated [D]elivery[.]

With respect to the requirement that offerors provide two PDMs, Section M provided the following:

EVALUATION OF THE PRODUCT DEMONSTRATION MODELS:

Product Demonstration Models must be submitted as part of the offer at no expense to the Government. Characteristics for which the models will be tested or evaluated are:
1. Quality of construction (including seam sealing)
2. Workmanship
3. Conformance to the dimensional and visual requirements of the end item specification.
4. Test requirements: One (1) complete garment shall be tested for hydrostatic resistance of the seams in accordance with para. 4.5.1 of MIL-P-44188B. The other complete garment shall be subjected to visual and dimensional examination in accordance with paras. 4.4.2 and 4.4.3 of MIL-P-44188B....

Jacqueline Pelullo, the contracting officer who drafted Amendment 0002, was tasked with buying the items required under the solicitation. She testified on deposition that the manner of listing these sub-factors was not intended to show their order of importance. Specifically, she stated:

When I wrote this [the subfactors] up, I just listed them. They’re — in my mind there was no separate weight for any of the items____
In my mind, they are not all even. I just wanted to say, the way they’re listed here was not meant to show an order of importance. I don’t believe that we indicated that.

In addition, Contracting Officer Pelullo stated that she knew the hydrostatic resistance test was “very important.”

Section M also provided an “ADJECTIVAL RATING SYMBOLOGY” that set forth three possible ratings: “Acceptable,” “Marginally Acceptable,” and “Unacceptable.” The definition given for “Unacceptable” read, as follows:

Unacceptable: Proposal fails to meet solicitation requirements. Offeror’s record of past performance demonstrates a lack of commitment to customer satisfaction and timely delivery of quality goods. A rating of this magnitude indicates a product of unacceptable quality with no probability of successful performance. The technical proposal is un[226]*226acceptable without substantial correction which would constitute a new proposal.

Amendment 0006 to the solicitation, issued on June 27, 1991, established the final quantity of parkas required by the solicitation and the final closing date for offers.3 The number of parkas was 672,888, 336,432 of which were set aside for small businesses. The closing date for offers was extended to July 15, 1991. DPSC received 20 offers by the closing date.

Isratex, Inc. (“plaintiff”), was one of the offerors that submitted a timely proposal to DPSC. Two of DPSC’s employees, along with two employees of the United States Army Natick Research, Development and Engineering Center (“Natick”), conducted the evaluations of plaintiff’s and the other offerors’ PDMs. Plaintiff’s PDM failed the hydrostatic resistance test due to three leaks in the back neck hood seam. Three other offerors’ PDMs also failed the hydrostatic resistance test. PDMs that failed the hydrostatic resistance test received automatically, i.e., regardless of any other factor, a rating of “Unacceptable.”4 DPSC eliminated from further consideration proposals that received a rating of “Unacceptable” on the PDM.

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Cite This Page — Counsel Stack

Bluebook (online)
37 Cont. Cas. Fed. 76,261, 25 Cl. Ct. 223, 1992 U.S. Claims LEXIS 34, 1992 WL 19716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/isratex-inc-v-united-states-cc-1992.