Nutech Laundry & Textile, Inc. v. United States

56 Fed. Cl. 588, 2003 U.S. Claims LEXIS 149, 2003 WL 21437157
CourtUnited States Court of Federal Claims
DecidedJune 9, 2003
DocketNo. 03-401C
StatusPublished
Cited by17 cases

This text of 56 Fed. Cl. 588 (Nutech Laundry & Textile, 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
Nutech Laundry & Textile, Inc. v. United States, 56 Fed. Cl. 588, 2003 U.S. Claims LEXIS 149, 2003 WL 21437157 (uscfc 2003).

Opinion

ORDER REMANDING TO AGENCY

FIRESTONE, Judge.

This case concerns a pre-award bid protest filed under 28 U.S.C. § 1491(b)(4). The plaintiff, Nutech Laundry & Textile, Inc. (“Nutech”), objects to the denial of award and withdrawal of Request for Proposal (“RFP” or “solicitation”) No. CC-02-07. The RFP was for laundry services at the Warren Grant Magnuson Clinical Center for the Department of Health and Human Services, National Institutes of Health (“NIH” or “government”). The RFP was set aside for small businesses, but NIH decided to withdraw the RFP and proceed with an unrestricted, full and open competition. Nutech argues that the withdrawal of the RFP fails to follow the applicable regulations, and that the contracting officer’s (“CO’s”) decision not to award Nutech the contract is arbitrary, capricious, or otherwise not in accordance with the law.

For the reasons that follow, the court concludes that this case must be REMANDED to NIH in order for NIH to conduct an appropriate Independent Government Cost Estimate (“IGE”) and re-evaluation of Nu-tech’s proposal. The plaintiffs April 14, 2003 cross-motion for summary judgment is hereby GRANTED to the extent provided for in this order. The defendant’s March 14, 2003 motion for judgment on the administrative record is hereby DENIED. NIH is ENJOINED from finalizing its decision to withdraw the subject RFP until it completes these tasks and provides the court with copies of both its revised IGE and re-evaluation decision.

BACKGROUND

A. Facts

On April 29, 2002, the NIH issued solicitation number RFP-CC-02-07, a small business set-aside, seeking to procure a requirements contract for industrial laundry and garment cleaning services. The RFP covered a variety of facilities in various locations within Maryland and required offers to contain unit pricing for three bulk linen laundry [589]*589services and eighteen other garment services. The RFP included one fixed-price requirements contract for one year and four one-year option periods. The RFP received North American Industry Classification System 812332 “Industrial Launderers,” which required the offerors to have an average annual revenue of less than $10,500,000 per year for the preceding three years.

Before issuing the RFP, NIH endeavored to improve its laundry service cost. To this end NIH hired Victor Kramer Co., Inc., a laundry-linen management consultant, to conduct a linen study (“Kramer study”). The Kramer study found that NIH paid an average of .92 cents per pound on its current contract held by Nuteeh. The consultant advised NIH that Nutech’s price was “exorbitant by any standard.” Administrative Record (“AR”) 132.1 The study recommended that NIH:

[R]evise its procurement practices to assure some degree of meaningful competition ... or look for an alternative to the traditional solicitation of commercial laundry service, or consider the construction and operation of its own laundry.
By our reckoning, NIH could construct its own plant for $3 million and operate it at a savings of $585,000/year (37%) relative to its current service contract. If it can revise its procurement practices to attract market-prevalent pricing, the savings could be even more dramatic.

AR 132. The study estimated that by using an in-house organization the unit operating cost (per clean-lb) would be $0,578 as compared to the current unit laundry service cost of $0,922 (per clean-lb). AR 136.

NIH also conducted a market survey to determine if using a small business set-aside was appropriate for laundry services. On October 27, 2000, NIH conducted an initial market survey to which five companies responded. NIH pursued negotiations with a responsive nonprofit agency that was a “preferred source of supplies and services” under the Javits-Wagner O’Day Act. On February 8, 2002, that agency was ultimately found to not have the capacity to perform. NIH thereafter conducted a new market survey on February 12, 2002. Two companies, besides Nuteeh, the incumbent contractor, provided capability statement responses. Only one of those companies adequately responded to the posted questions. Based on Nutech’s and the responsive company’s submissions, the CO concluded that “competitory requirements were satisfied to remain within the small business set aside arena.” AR 553. NIH did not, however, collect any price information as part of this survey.

In advance of issuing the RFP, NIH prepared an IGE. The one-page IGE describes appropriate contract pricing as: Basic Contract Period $977,151.76; First Option Period $1,006,466.31; Second Option Period $1,036,660.30; Third Option Period $1,067,760.11; and Fourth Option Period $1,099,792.91. AR 554-55. For purposes of comparison, the IGE provided that the appropriate estimated price to be $0.32 cents per pound for bulk linen. The IGE does not contain any backup documentation, descriptive parameters or explanatory notes.

Armed with the consultant’s report, market survey and the IGE, the CO released the RFP, advising offerors that the award would be made based upon “best value.” NIH received two proposals in response to the RFP, one from Nuteeh and one from Tartan Textile Services, Inc. (“Tartan”).

Nutech’s proposal included services for a proposed price of: Basic Contract Period *****; Fiygt Option Period * * * * *; Second Option Period *****; Third Option Period *****; and Fourth Option Period *****, for a total of * * * * *. AR 360. The costs were estimated to be ***** cents per pound for bulk linens during the basic contract period. AR 361. In the alternative, Nuteeh proposed a weekly fixed price flat rate of * * * * *, for the first year, increasing yearly by * * * * * increments, for a total of * * * * *. AR 307.

[590]*590Tartan submitted a proposal on May 29, 2002. Tartan’s offer included services for a proposed price of: Basic Contract Period *****; Firgt Option Period *****; Second Option Period * * * * *; Third Option Period *****; and Fourth Option Period * * * * *, for a total of * * * * *. AR 463. These proposed estimates equaled ***** cents per pound for bulk linens during the basic contract period. AR 464.

NIH found both Nutech and Tartan to be in the competitive range. Nutech received a score of * * * * * points for its technical proposal and a score of * * * * * points for its business proposal. AR 585. Tartan received a score of * * * * * points for its technical proposal and a score of * * * * * points for its business proposal. Id. In the CO’s statement of facts prepared for the protest, he described why both bidders, with such varying costs, made it into the competitive range: “The rationale for including Nu-tech in the competitive range was that Nu-tech is currently providing the services and there needed to be an assessment as to whether Tartan’s costs were actually realistic.” AR 4.

NIH questioned Tartan’s price and requested a revision and clarification. Tartan submitted a revised offer, accompanied by a cost analysis in response to NIH’s questions. In its revised offer, Tartan offered; Basic Contract Period *****; First Option Period *****; Second Option Period *****; Third Option Period *****; and Fourth Option Period * * * * *, totaling *****. AR 556. The revised proposal was based on a unit price 0f * * * * * cents per pound for bulk linens. AR 556a.

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Bluebook (online)
56 Fed. Cl. 588, 2003 U.S. Claims LEXIS 149, 2003 WL 21437157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nutech-laundry-textile-inc-v-united-states-uscfc-2003.