PCI/RCI v. United States

41 Cont. Cas. Fed. 77,015, 36 Fed. Cl. 761, 1996 U.S. Claims LEXIS 192, 1996 WL 668604
CourtUnited States Court of Federal Claims
DecidedNovember 15, 1996
DocketNo. 96-575C
StatusPublished
Cited by23 cases

This text of 41 Cont. Cas. Fed. 77,015 (PCI/RCI 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
PCI/RCI v. United States, 41 Cont. Cas. Fed. 77,015, 36 Fed. Cl. 761, 1996 U.S. Claims LEXIS 192, 1996 WL 668604 (uscfc 1996).

Opinion

OPINION

MILLER, Judge.

This case is before the court after argument on the parties’ cross-motions for summary judgment. Plaintiff PCI/RCI, a Joint Venture (“PCI/RCI” or “plaintiff”), consisting of Roers’ Construction, Inc. (“RCI”), and Professional Contractors, Inc. (“PCI”), initiated this pre-award action seeking injunctive relief restraining the Government from awarding to any bidder other than plaintiff a contract for a building project. The issue is whether the contracting officer’s decision to reject plaintiff’s bid because, inter alia, the bid was not signed by both co-venturers and authority was lacking to bind the joint venture was unreasonable or irrational or violated a procurement regulation.

FACTS

In June 1996 the General Services Administration (“GSA”) issued Solicitation No. GS-08P-96-JCC-0005 (the “IFB”) seeking bids for a project known as Modernization of the Federal Building/Post Office/Courthouse, Bismarck, North Dakota, Project No. IND96016 (the “Modernization Project”). In August plaintiff responded to the IFB by submitting a bid, bid bond, and certificate of procurement integrity signed by James Roers “Partner” or “Managing Partner.” The signature block on the bid, which Mr. Roers signed as “Partner,” specified: “Name and Title of Person Authorized To Sign Offer.”

Upon opening the bids on August 12,1996, GSA determined that PCI/RCI’s bid was the lowest. The next day GSA telephoned PCI/ RCI to advise plaintiff that it was the apparent low bidder. On August 14, 1996, the designated Postaward Contracting Officer, Alison Sullivan, sent PCI/RCPs Don McGuire a letter stating:

It is the Government’s policy to recognize the integrity and validity of contractor team arrangements, provided that the arrangements are identified and company relationships are fully disclosed in an offer. Further, concerns bidding on a particular procurement as joint ventures are considered to be affiliated and controlling or having the power to control each other with regard to performance of the contract. In order to determine whether a bona fide affiliation exists, consideration will be given to all appropriate factors, including common ownership, common management, and contractual relationships.

In order to determine whether PCI/RCI was a bona fide affiliation, Ms. Sullivan requested PCI/RCI to submit the following information:

1. The delineated responsibilities of each firm to determine the nature of control. This would include information to support who will directly or indirectly be in [764]*764control or have the power to control the joint venture. Control may be affirmative or negative and it is immaterial whether it is exercised so long as the power to control exists. Is there any control through stock ownership?

2. Management information: Who will be the primary point of contact during this contract? Who will have the authority to sign the contract and all modifications? How will decisions be made? Which firm will provide contract administration and management? Which firm will provide the resources (financial, staffing, etc.)? If the responsibility is shared, substantiate the amount of involvement of each firm.

Thus, the thrust of the information sought concerned how the parties would operate the joint venture and how they intended to perform the contract.

On August 19, 1996, PCI/RCI replied through Ron Dosch, Contract Administrator. The letter was sent to Ms. Sullivan on RCI letterhead and stated:

Professional Contractors, Inc. will be the primary point of contact for the contract itself and will also be the responsible entity for the day to day construction requirements of the Project. Mr. Donald McGuire, as President of Professional Contractors, Inc. will have the authority to sign the contract and all modifications thereto. Decisions required throughout the contract period will be forthcoming after consultation between the respective companies. The contract administration and management required for this Project will be mostly done through the personnel resources provided by Roers’ Construction, Inc. ...

PCI/RCI also enclosed a copy of its joint agreement in order to answer the contracting officer’s ‘“control”’ questions. This Joint Bonding Agreement recites that it was entered into on July 28, 1996, for the express purpose of “obtain[ing] a contract with the

General Services Administration ... for the performance of ... work” relating to the Modernization Project, including the “submission of such bid and the performance of such construction contract.” The Joint Bonding Agreement was designed to define the interests and liabilities of the two corporations in connection with the bid submission. It provides, in pertinent part:

NOW THEREFORE, in consideration of the mutual promise and agreement herein set forth, the parties agree to constitute themselves as joint ventures for the purpose of submitting a bid to [GSA] for the performance of the construction contract ..., and for the further purpose of performing and completing such construction contract in the event that it is awarded to them on such a [bid], and the parties hereby agree that such bid shall be filed and such construction contract, if awarded to them, shall be performed and completed by them as a Joint Venture____

The Joint Bonding Agreement makes the joint venture subject to specific terms and conditions. It states: “All ... work shall be performed under the names of the parties or such fictitious names as agreed upon by the parties, and all money, equipment, materials, supplies and other property acquired by the Joint Venture shall be held jointly in such name.” Although the Joint Bonding Agreement designates PCI as the sponsoring joint venturer,1 none of the terms and conditions listed in the Joint Bonding Agreement restricts either partner’s authority to sign a bid or a contract. Furthermore, “[e]aeh of the parties agrees to execute all applications and indemnity agreements required by the sureties upon any bond or bonds required in connection with the said bid and contract.” The Joint Bonding Agreement is signed by Messrs. McGuire, as President of PCI, and Roers, as President of RCI.

GSA wrote PCI/RCI on August 23, 1996, informing plaintiff that GSA deemed the bid non-responsive. Specifically, the designated [765]*765Preaward Contracting Officer, Atm N. Fleck-enstein, noted that the offer, bid bond, and completed certificate of procurement integrity

were signed by only one individual, James P. Roers, as a “partner” or “managing partner.” The “Joint Bonding Agreement” that you submitted to delineate the responsibilities and legal obligations of the parties does not indicate that both parties of the joint venture agree to be bound by the contract. Rather, the agreement states that Professional Contractors, Inc. (PCI) is the designated “sponsoring joint venturer” and that the “... construction contract shall be carried out and performed on behalf of the Joint Venture under the direction of the sponsoring joint venturer____” There is nothing in the agreement giving James P. Roers the authority to bind the joint venture or PCI.

Ms. Fleckenstein further stated that Federal Acquisition Regulation (“FAR”) § 4.102(d), 48 C.F.R.

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Cite This Page — Counsel Stack

Bluebook (online)
41 Cont. Cas. Fed. 77,015, 36 Fed. Cl. 761, 1996 U.S. Claims LEXIS 192, 1996 WL 668604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pcirci-v-united-states-uscfc-1996.