Olympia USA, Inc. v. United States

32 Cont. Cas. Fed. 73,084, 6 Cl. Ct. 550, 1984 U.S. Claims LEXIS 1253
CourtUnited States Court of Claims
DecidedNovember 21, 1984
DocketNo. 503-84C
StatusPublished
Cited by17 cases

This text of 32 Cont. Cas. Fed. 73,084 (Olympia USA, 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
Olympia USA, Inc. v. United States, 32 Cont. Cas. Fed. 73,084, 6 Cl. Ct. 550, 1984 U.S. Claims LEXIS 1253 (cc 1984).

Opinion

OPINION

SETO, Judge.

In this pre-award bid protest case filed pursuant to 28 U.S.C. § 1491(a)(3), plaintiff Olympia USA, Inc. (“Olympia”) seeks preliminary and permanent injunctive and declaratory relief to prohibit the General Services Administration (“GSA”) from awarding a contract under Solicitation No. FGE-D3-75283-A-9-11-84 to anyone other than Olympia. The underlying issues are (1) whether Olympia’s bid is responsive, and (2) whether the Life Cycle Cost analysis employed by GSA in the procurement at issue was arbitrary, capricious or irrational. For the reasons stated below, defendant’s motion to dismiss is denied, and plaintiff’s motion for a preliminary injunction is denied.

FACTS

This action arises from a procurement of single-element electric or electronic typewriters by the GSA. The solicitation governing this procurement provides that the bids are to be evaluated under GSA’s established program of Life Cycle Cost (“LCC”) analysis. In general, LCC analysis attempts to establish the total cost of purchasing and operating a product over its projected service lifetime. To achieve these results, the analysis employs a formula which relies in part on the results of an LCC test of the product. The formula variables not generated by the LCC testing (e.g., purchase price, ribbon cost, residual value) are supplied by other established means.

After receiving a letter from the GSA inviting potential bidders to participate in the latest round of LCC typewriter testing, Olympia submitted four “Olympia Standard” typewriters to GSA in November 1983. During the ensuing months, the typewriters were tested on GSA’s robotic testing equipment in accordance with GSA’s established testing procedures. In [552]*552particular, the testing machines typed 30 million keystrokes on each machine to simulate their use over a ten-year period.

On July 19, 1984, GSA issued the initial solicitation inviting bids to meet the Government’s domestic requirements for, inter alia, single-element typewriters. As subsequently amended, the solicitation called for bids to be submitted by September 11,1984, and identified fourteen models of typewriters that had been tested by GSA within the past five years. Because the bids were to be evaluated under the LCC procedure, these “eligible products” were the only typewriters for which bids could be submitted. The solicitation also set out the LCC formula in detail, defining its terms and discussing the methods by which the different variables would be determined. Finally, the solicitation provided for an award to the bidder submitting the unit bid price that yielded the lowest evaluated life cycle cost as calculated by the LCC formula.

Olympia received the results of its LCC tests from GSA on August 20, 1984, and submitted a bid of $320 for its “Standard” model typewriter on September 10, 1984. Similarly, International Business Machines Corp. (“IBM”) submitted a bid of $575 for its previously tested Selectric III B01 typewriter. After evaluation of the bids under the LCC formula, GSA determined that IBM has the lowest evaluated LCC value ($613.57), and is in line for award of the contract. Royal is in second place with an LCC of $742.22; Olympia is third with $769.05.

On September 21, 1984, Olympia filed a letter of protest regarding this procurement with the General Accounting Office (“GAO”). In essence, Olympia alleged that (1) GSA used improper unit prices for Olympia’s typewriter supplies, (2) GSA improperly calculated residual value, and (3) the LCC tests produced unreliable data because the robotic testers were improperly calibrated. On October 12, 1984, GSA submitted a report regarding Olympia’s protest to the GAO. In its report, GSA concluded that Olympia’s bid was nonrespon-sive and that its protest had no merit.

Olympia filed its complaint for declaratory and injunctive relief, together with an application for a temporary restraining order (“TRO”), in this court on October 1, 1984. After receiving the Government’s assurance that the contract in issue would not be awarded until a ruling on Olympia’s motion for a preliminary injunction was entered, the court denied the TRO application as moot , on October 3, and requested an advisory opinion from the GAO. On October 22, Olympia filed its first amended complaint and IBM was permitted to join in the action as a defendant-intervenor. On November 2, IBM filed a motion to dismiss, followed by the government’s combined motion to dismiss and motion for summary judgment on November 5. Argument was heard on the parties’ motions to dismiss on November 8. On the same day, GAO issued its advisory opinion, concluding that although Olympia’s bid was responsive, its protest was without merit. An evidentiary hearing on plaintiff’s motion for a preliminary injunction was held on November 13-16, in Washington, D.C.

DISCUSSION

I. Motion To Dismiss

This court’s jurisdiction over plaintiff’s claim depends on the existence of an implied-in-fact contract between Olympia and the United States obligating the government to consider Olympia’s bid fairly and honestly. See CACI, Inc.-Federal v. United States, 719 F.2d 1567, 1573 (Fed.Cir.1983). This implied-in-fact contract of fair consideration, however, arises only where a bidder submits a bid responsive to the solicitation. See Ingersoll-Rand Co. v. United States, 2 Cl.Ct. 373, 376 (1983). Thus, when a plaintiff’s bid is ambiguous or otherwise nonresponsive to the solicitation, this court cannot exercise its equitable jurisdiction under 28 U.S.C. § 1491(a)(3) for want of an implied-in-fact contract.

In their motions to dismiss, both IBM and the government cite the contracting officer’s belated determination that Olym[553]*553pia’s bid is nonresponsive as a basis for their allegations that this court lacks subject matter jurisdiction over Olympia’s claims. Specifically, they contend that Olympia’s bid fails to identify with the requisite certainty which, if any, of the “eligible products” Olympia is offering. This alleged ambiguity assertedly renders the bid nonresponsive and vitiates this court’s jurisdiction. Plaintiff rejoins that the contracting officer’s determination has no rational basis because there is adequate information in the bid for the contracting officer to determine that Olympia is offering its “Standard” model typewriter.

The controversy centers around a passage on page 19-A of the solicitation which reads, in pertinent part, as follows:

The bidder shall insert, in the spaces provided below (or by attachment if additional space is needed), the name of the manufacturer and the product designation (model number) ... Any offer which does not identify the eligible product offered will be rejected as nonresponsive. (Emphasis in original.)

Defendants contend that Olympia’s bid is nonresponsive because it does not include the required information on page 19-A of the solicitation. We disagree. The underlined passage quoted above merely indicates that the bid, as a whole, must identify the eligible product offered. We believe Olympia’s bid meets this requirement.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Croman Corp. v. United States
39 Cont. Cas. Fed. 76,698 (Federal Claims, 1994)
Aerolease Long Beach v. United States
31 Fed. Cl. 342 (Federal Claims, 1994)
YRT Services Corp. v. United States
38 Cont. Cas. Fed. 76,512 (Federal Claims, 1993)
Composite Laminates, Inc. v. United States
38 Cont. Cas. Fed. 76,453 (Federal Claims, 1992)
Blackwell v. United States
37 Cont. Cas. Fed. 76,164 (Court of Claims, 1991)
Blount, Inc. v. United States
36 Cont. Cas. Fed. 75,981 (Court of Claims, 1990)
Norwood Manufacturing, Inc. v. United States
36 Cont. Cas. Fed. 75,917 (Court of Claims, 1990)
Youngstown Steel Equipment Sales, Inc. v. United States
36 Cont. Cas. Fed. 75,870 (Court of Claims, 1990)
Vanguard Security Inc. v. United States
20 Cl. Ct. 90 (Court of Claims, 1990)
Honeywell, Inc. v. United States
35 Cont. Cas. Fed. 75,611 (Court of Claims, 1989)
Sterlingwear of Boston, Inc. v. United States
34 Cont. Cas. Fed. 75,210 (Court of Claims, 1987)
Darwin Construction Co., Inc. v. United States
811 F.2d 593 (Federal Circuit, 1987)
New York Telephone Co. v. Secretary of the Army
657 F. Supp. 18 (District of Columbia, 1986)
Action Manufacturing Co. v. United States
33 Cont. Cas. Fed. 74,505 (Court of Claims, 1986)
International Verbatim Reporters, Inc. v. United States
33 Cont. Cas. Fed. 74,323 (Court of Claims, 1986)
Arrowhead Metals, Ltd. v. United States
33 Cont. Cas. Fed. 74,026 (Court of Claims, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
32 Cont. Cas. Fed. 73,084, 6 Cl. Ct. 550, 1984 U.S. Claims LEXIS 1253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olympia-usa-inc-v-united-states-cc-1984.