Kellie W. Tipton Construction Co. v. United States

4 F. App'x 846
CourtCourt of Appeals for the Federal Circuit
DecidedFebruary 1, 2001
DocketNo. 00-5001
StatusPublished
Cited by1 cases

This text of 4 F. App'x 846 (Kellie W. Tipton Construction Co. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kellie W. Tipton Construction Co. v. United States, 4 F. App'x 846 (Fed. Cir. 2001).

Opinion

DECISION

SCHALL, Circuit Judge.

Kellie W. Tipton Construction Company (“Tipton”) appeals the decision of the Unit[848]*848ed States Court of Federal Claims that granted summary judgment in favor of the United States denying Tipton’s protest of the Department of the Army’s (“Army’s”) award to Terry Land Development, Inc. (“TLD”), of a contract for- the installation and replacement of water and sewer lines at Fort Campbell, Kentucky. Because the Army did not act unlawfully, arbitrarily, capriciously, or abuse its discretion in awarding the contract to TLD, we affirm.

DISCUSSION

I.

On August 17, 1998, the Army issued its Request for Proposal (“RFP”) with respect to the Fort Campbell contract. The RFP provided instructions for the preparation and submission of proposals. In that regard, under a section entitled “SUBMISSION OF PROPOSAL,” it stated that a proposal should include two sections, a technical proposal and price proposal. The RFP described one part of the technical proposal as relating to past performance, stating that the offeror was required to include “[a] list of a minimum of ten (10) contracts and subcontracts ... [the] offeror has performed within the last three (3) years similar to this requirement.” The second part of the technical proposal was an Experience Modification Factor (“EMF”), under which each offeror was “evaluated based on information provided by insurance companies regarding [the] offeror’s safety record.” In the price proposal section of the RFP, each offeror was required to “[list] all costs other than direct material, labor and equipment.”

The RFP informed offerors how their proposals would be evaluated and the contract awarded. The RFP stated that the contract would be awarded to “the offeror whose offer represents the best value after evaluation in accordance with the factors and subfactors in the solicitation.” The RFP noted that an offeror’s technical proposal would “be evaluated using the information obtained from the offeror’s business references provided with the proposal and from any other sources and/or records available to the Government.” The Army was instructed to contact “[p]revious and/or current customers ... to obtain past performance information regarding customer satisfaction.”

In response to the RFP, the Army received seven proposals for the Fort Campbell contract, including one from Tipton and one from TLD. Tipton submitted a list of thirteen references in its technical proposal, while TLD submitted a list of nineteen references. The Army determined that, since it was facing a deadline of the end of the fiscal year for award of the contract, it would evaluate the technical proposal section of each of the seven proposals on the basis of five past performance records. In Tipton’s proposal, each job listed for appraisal was with either the Army Corps of Engineers or the Department of Public Works, both at Fort Campbell. The Army sent a Past Performance Questionnaire (“PPQ”) to the Corps of Engineers’ project manager, Brian Mosier, and to the chief of the Department of Public Works, Floyd Brown. Mr. Moiser gave Tipton a rating of 4%s, while Mr. Brown gave it a rating of 50/50.1 In completing his PPQ, Mr. Brown noted three [849]*849contracts that Tipton had performed for the Public Works Department.

In the evaluation process, the Army also relied upon data from DD Form 2626, “Performance Evaluation (Construction)” (“DD Form 2626”) regarding previous construction projects at Fort Campbell. The Army used three completed DD Forms 2626 for Tipton’s past performance evaluation. Tipton’s resulting Technical score, based on its five past performance ratings combined with its EMF, was 300. Tipton received a Price score of 204.69 based on its price proposal.

In the course of evaluating TLD’s technical proposal, the Army faxed PPQs to four of TLD’s past contract references. The Army received responses from two of these references. Thickston Construction gave TLD a rating of 4|o, and P & L Railroad gave TLD a rating of 12/50. As in the case of Tipton, the Army also considered DD Forms 2626 for three contracts TLD had performed at Fort Campbell. These five past performance evaluations, combined with TLD’s EMF, gave TLD a Technical score of 200. The Army also awarded TLD a Price score, based on its price proposal, of 266.67.

Tipton was awarded the Fort Campbell contract on September 30,1998 because its combined Technical and Price score, 504.69, was higher than TLD’s which was 466.67. TLD filed a protest with the General Accounting Office (“GAO”), and it was discovered the P & L Railroad’s PPQ contained an erroneously low score. Upon correction of the PPQ, TLD was found to have a Technical score of 300. Based on the corrected Technical score, TLD’s combined Technical and Price score was 566.67, which was higher than that of each of the remaining six proposals, including Tipton’s. The Army concluded that, with this corrected combined score, TLD’s proposal represented the best value to the government. Consequently it awarded the contract to TLD and, on November 23, 1998, asked Tipton to suspend work on the contract. On December 11, 1998, Tipton filed a protest with the GAO. The protest was unsuccessful. However, during the protest the Army corrected an error in its calculation of the Price score of each proposal, causing TLD’s Price score to remain the same, 266.67, and Tipton’s to drop to 146.67.

On March 30, 1999, Tipton filed suit in the Court of Federal Claims, alleging that the Army had acted improperly in the handling of its proposal and in the award of the Fort Campbell contract to TLD. In its complaint, Tipton alleged that DD Form 2626 was flawed, and that the Army should not have used the form in determining its Technical score. Tipton also alleged that the Army should have considered Mr. Brown’s PPQ as an evaluation of three separate contracts, and as a result, counted the rating on the PPQ three times. Finally, Tipton alleged that the jobs the Army had used to evaluate TLD did not involve work similar to that required for the Fort Campbell contract and that, consequently, they should not have been considered when determining TLD’s Technical score.

In due course, the government moved for summary judgment dismissing Tipton’s complaint on the administrative record. In granting the motion, the Court of Federal Claims held that the Army’s actions in awarding the contract to TLD were not unreasonable or unlawful. The court found that both TLD and Tipton were treated the same, and that even if Tipton had been awarded a higher Technical score, it would not have been able to overcome the difference between its and TLD’s combined scores. The court determined that the Army’s use of the DD Form 2626 was not unreasonable or unlawful and that, [850]*850in any event, any harm from the use of the form was minimal since the form was used for both TLD and Tipton. The court also found that the TLD contacts to which the Army looked in evaluating TLD’s technical proposal involved work similar to that required under the RFP for the Fort Campbell contract. Finally, the court determined that the Army had used the same number and the same kind of past performance evaluations to judge both TLD and Tipton, three DD Forms 2626 and two PPQs, and therefore, the Army’s failure to use all past performances cited in Tipton’s technical proposal was not unreasonable or prejudicial.

II.

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