Kinetic Structures Corp. v. United States

32 Cont. Cas. Fed. 73,015, 6 Cl. Ct. 387, 1984 U.S. Claims LEXIS 1287
CourtUnited States Court of Claims
DecidedOctober 5, 1984
DocketNo. 339-82C
StatusPublished
Cited by25 cases

This text of 32 Cont. Cas. Fed. 73,015 (Kinetic Structures 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
Kinetic Structures Corp. v. United States, 32 Cont. Cas. Fed. 73,015, 6 Cl. Ct. 387, 1984 U.S. Claims LEXIS 1287 (cc 1984).

Opinion

OPINION

YOCK, Judge.

This contract case is before the Court on defendant’s motion for summary judgment. Plaintiff is a disappointed bidder who seeks declaratory or injunctive relief in regard to two contract matters. In the first count of its complaint, the plaintiff seeks declaratory or injunctive relief in regard to a contract awarded to a lower bidder. In the second count, the plaintiff seeks declaratory or injunctive relief in regard to a canceled solicitation in which the plaintiff was the sole bidder. A third count of the complaint seeks bid preparation costs for both of the contract matters at issue.

This Court previously dismissed the plaintiff’s first count, in this action, for lack of jurisdiction. Kinetic Structures Corp. v. United States, 2 Cl.Ct. 343 (1983). This motion, therefore, relates only to the remaining second count and third count issues.

For the reasons discussed herein, the defendant’s motion is granted, and the plaintiff’s complaint will be dismissed.

Facts

On February 5, 1981, the Defense Logistics Agency (DLA) solicited bids for contract No. DLA 710-81-D-0006 (’0006), a small business set-aside, for the reconditioning and “electro-velvet coating” of certain Government-owned banker type building partitions. Plaintiff, along with three other bidders, submitted a bid in compliance with the requirements of the solicitation. On February 26, 1981, the bids were opened and the lowest bidder was J & B Painting Company, Inc. (J & B), which submitted a bid of $70,240.40. The plaintiff’s bid was the next lowest bid submitted at $74,140.19. In early March 1981, J & B self-certified that it was a small business concern and that it was a regular dealer in the supplies offered, as required under the Walsh-Healey Act, 41 U.S.C. §§ 35-45 (1982). The Defense Contract Administration Services Management Area (DCASMA) performed a pre-award survey in which it [390]*390took no exception to the self-certification by J & B. On April 1, 1981, after making the requisite determination of responsibility required under DAR 1-905, 32 C.F.R. § 1-905 (1983),1 including the findings necessary for the Walsh-Healey Act, DAR 1-905.4(d), 32 C.F.R. § l-905.4(d), DLA awarded contract ’0006 to the low bidder, J & B. The contract award was signed by Mr. Jack Miceli, the Government contracting officer.

On April 7, 1981, the plaintiff filed a protest against the award of contract ’0006, alleging that J & B was not an eligible contractor and that the plaintiff, as second low bidder, should be awarded the contract. The protest was couched in language that indicated the plaintiff’s main concern was the use by the Government in its solicitation and contract documents of the plaintiffs registered trade name of “Electro-vel-vet” to describe the flocking or paint coating operation that the Government apparently desired. The plaintiff also made clear, however, that it was protesting both the award of contract ’0006 to J & B and the loss of the award of that contract.

On April 22, 1981, the Government denied the protest. Mr. Frankie T. Stewart, another DLA contracting officer, informed the plaintiff that, based on the selfcertification and pre-award survey, the Government had determined J & B to be the low responsive and responsible bidder. Mr. Stewart also defended the Government’s use of the term “electrovelvet” in the solicitation by describing it as being used in the generic sense to mean the flocking or paint coating operation that it desired. He did state, however, that the Government would refrain in the future from using the offending term. On May 8, 1981, contract ’0006 was modified and amended to delete all references to “electrovelvet” and substitute therefor the term “electrostatic flocking.”

The Government in this action acknowledges that Mr. Stewart’s handling of the plaintiff’s protest failed to comply with the specific requirements described in DAR 12-604(c), 32 C.F.R. § 12-604(c). When the post-award protest was received, the Government was supposed to inform both the contractor and the protesting party, within 10 days of the protest, so that both could furnish additional evidence to support their respective positions. The contracting officer was then supposed to review all of the evidence, reach a decision, and forward the matter to the Department of Labor (DOL). Here, Mr. Stewart neither provided the companies time to respond to the protest nor forwarded the matter to the DOL. He simply denied the post-award protest.

On November 30, 1981, contract ’0006 was terminated for the convenience of the Government. The basis for this termination was listed by Ms. Donna Huff, another DLA contracting officer, as deficient specifications.

As a result, the plaintiff asserts that the Government’s failure to follow its regulations and its denial of the awarding of contract ’0006 to the plaintiff comprise a sufficient basis on which to recover its bid preparation costs for contract ’0006, in the amount of some $625.

On July 29, 1981, DLA issued another invitation for bids for the reconditioning of Government-owned banker type partitions with electrostatic coating. Solicitation DLA 710-81-B-0048 (’0048) was a small business set-aside acquisition, and the plaintiff responded by submitting the sole bid in the amount of $197,853.44. The Government’s original cost estimate, based on a prototype procurement, was $136,-797.75, and an engineering cost estimate, prepared by Government engineers, was $148,000.00. Due to the disparity between the plaintiff’s offer and the two Government estimates, the Government contracting officer, Ms. Donna Huff, asked the plaintiff to submit a cost breakdown, which the plaintiff subsequently provided. Based on these facts and figures, Ms. Huff found [391]*391plaintiff’s bid to be excessive and unreasonable and, on September 21, 1981, recommended that solicitation ’0048 be canceled. Specifically, in her “Determination and Finding” report, she found that:

A cost comparison of the aforementioned [estimates] indicates that sole bid exceeds the DSAC Cost Estimate by $61,-055.69 or 44.6%, the government estimate by $49,853.44 or 33.6%, and the previous cost comparison by $30,003.44 or 17.8%.

In addition, she discussed the informal cost breakdown provided by the plaintiff:

Bid price reveals hourly labor rates of $34.54 to $34.99 were used throught [sic] their bid versus the Government estimated rates of $11.00 to $15.00. In no way can the contractor’s “$35.00” rates be determined fair and reasonable as painter or carpenter rates as required for this contract. While the feet are to be flocked on subject bid instead of painted, as per previous contract, the price difference is only slightly greater.

She concluded her report by stating that:

In view of the foregoing cost differences, the undersigned contracting officer hereby determines the bid of Kinectic [sic] Structures excessive pursuant to DAR 2-404.1(b)(vi).

On September 25, 1981, Ms. Doris Hair-ston, Chief of the Bid and Abstract Section at DLA, officially canceled solicitation ’0048 based on “ASPR 2-404.1(b)(vi), unreasonable prices.”

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Bluebook (online)
32 Cont. Cas. Fed. 73,015, 6 Cl. Ct. 387, 1984 U.S. Claims LEXIS 1287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kinetic-structures-corp-v-united-states-cc-1984.