Reel-O-Matic Systems, Inc. v. United States

35 Cont. Cas. Fed. 75,608, 16 Cl. Ct. 93, 1989 U.S. Claims LEXIS 2, 1989 WL 110
CourtUnited States Court of Claims
DecidedJanuary 3, 1989
DocketNo. 635-88C
StatusPublished
Cited by10 cases

This text of 35 Cont. Cas. Fed. 75,608 (Reel-O-Matic Systems, 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
Reel-O-Matic Systems, Inc. v. United States, 35 Cont. Cas. Fed. 75,608, 16 Cl. Ct. 93, 1989 U.S. Claims LEXIS 2, 1989 WL 110 (cc 1989).

Opinion

OPINION

NETTESHEIM, Judge.

This case is before the court after trial on the complaint of plaintiff Reel-O-Matic Systems, Inc. (“plaintiff”), for injunctive relief.

BACKGROUND

At the conclusion of plaintiff’s case,1 defendant moved for involuntary dismissal pursuant to RUSCC 41(b) on the ground that upon the facts and law plaintiff had shown no right to relief. On November 22,' 1988, the court granted defendant’s motion for the reasons stated from the bench, advising that a written opinion containing the findings of fact required by Rules 41(b) and 52(a) would issue within 30 days after the official transcript of proceedings had been filed with the Clerk of the Court. An order entered on November 23, 1988, denying plaintiff’s request for permanent injunctive relief with ultimate findings of fact and conclusions of law in support of that ruling.

FACTS

The following facts derive from trial and the proposed findings of fact submitted by [95]*95the parties before trial. Plaintiff filed its lawsuit pursuant to 28 U.S.C. § 1491(a)(3) (1982), to enjoin award and performance of a contract pursuant to a May 13, 1988 solicitation by the Department of the Army Tank Automotive-Command (“TACOM”), Warrenton, Michigan, denominated as No. DAA07-88-B-JK330, for 41 cable reel trailers. The contract had been designated as a Small Business set-aside calling for completion 270 days after award. On or about June 10, 1988, plaintiff submitted a bid pursuant to the solicitation.

The contracting officer2 determined that the lowest bidder was non-responsible. That contractor did not carry the matter further. Plaintiff was the second low bidder and was also found non-responsible. Following the non-responsibility determination, the contracting officer issued an award of the contract on November 3, 1988, to the third lowest bidder, Dynaweld, Inc. (“Dynaweld”). The award was duly dispatched by United States mail to Dynaweld. The parties agreed that before the award was received by Dynaweld, plaintiff commenced this bid protest action. The parties also agreed that the award was not consummated until such time as Dynaweld received notice of the award and that jurisdiction over this pre-award bid protest properly had attached in the United States Claims Court. F. Alderete Gen. Contractors, Inc. v. United States, 715 F.2d 1476, 1480 (Fed.Cir.1983).

In 1983 TACOM had awarded a contract for seven cable reel trailers to plaintiff, Contract No. DAAE07-83-C-1356 (“Contract 1356”). Performance of Contract 1356 occurred at plaintiffs Wrightsville, Pennsylvania (“Wrightsville”) plant between 1983 and 1987. Plaintiff was 1253 days late in delivering the seven trailers required by the contract.

Plaintiff’s President John D. Schrott, Jr., testified at trial that, during the final phase of delivering Contract 1356, plaintiff attained a delivery rate for the last four cable reel trailers of one every 45 days. On cross-examination Mr. Schrott, Jr., estimated that he was actively involved in management during 800 days of the delay. Although 25 contractual discrepancies were noted in the first production vehicle, nine of which were remedied during inspection of the first production vehicle, TACOM accepted all the trailers delivered under Contract 1356.

Contract 1356 was performed by plaintiff prior to and during a Chapter 11 bankruptcy proceeding commenced on September 23, 1986, by which plaintiff sought protection from its creditors. Although plaintiff was entitled, under 11 U.S.C. § 365 (1982), to petition the bankruptcy court to permit rejection of Contract 1356 as part of plaintiff’s protection under the bankruptcy proceeding, plaintiff elected to reaffirm its contractual commitment to TACOM and to perform as agreed. By that time plaintiff had received full progress payments on Contract 1356. Plaintiff’s plan for reorganization was confirmed on September 13, 1988. •

After the apparent low bidder was disqualified, plaintiff, now the apparent low bidder, received notice that a pre-award survey would be conducted by the Defense Contract Administration Services (the “DCAS”).

For the first half of 1988, plaintiff was in the process of arranging for the acquisition of a manufacturing site which would permit expanded operations. In February 1988 Lakes Development Corp. (“Lakes”) became the parent company of plaintiff. On or about March 21, 1988, Lakes signed a contract to purchase a 40,000 sq. ft. plant in Oklahoma City, Oklahoma. Closing on the purchase took place on or about July 13, 1988. Lakes leased the Oklahoma City facility to plaintiff by lease dated July 15, 1988. As part of the pre-award proceedings, a DCAS survey of the Oklahoma City facility was conducted out of the DCAS Dallas, Texas office; the survey of Wrightsville was conducted out of the DCAS office in Reading, Pennsylvania.

[96]*96Concurrently with the preaward surveys performed by the DCAS on behalf of TA-COM, plaintiff was in the process of relocating its operations from the Wrightsville facility to Oklahoma City. Along with this relocation, Lakes acquired additional manufacturing equipment, which it leased to plaintiff, to exploit the greater space available in Oklahoma City.

The Oklahoma City survey by the DCAS would not have been conducted at all, despite the relocation of all plaintiffs operations, if plaintiff had not insisted on performance of a survey in Oklahoma City. The pre-award survey conducted by the DCAS Dallas office of plaintiffs Oklahoma City facility found plaintiffs production capability and technical capability satisfactory and recommended a complete award as of September 8, 1988.

The DCAS Dallas office based its finding that plaintiffs production capabilities were satisfactory on 1) plaintiffs ability to implement adequate production and planning control systems; 2) plaintiffs ability to hire personnel from the Oklahoma City area to fill necessary skilled and unskilled labor categories; 3) the availability of additional plant facilities and equipment; and 4) an assessment that plaintiffs overall performance history had been satisfactory. The DCAS Dallas office also found that plaintiff had satisfactory technical capability, concluding that plaintiff had “demonstrated an adequate understanding of the requirements and management capability to perform.”

The pre-award survey conducted by the DCAS Reading office of the Wrightsville location found plaintiffs production capability unsatisfactory. The DCAS Reading office noted that two of plaintiffs three most recent government contracts were delinquent. A 1987 contract for one cable reel trailer was 84 days late, and a 1983 contract for seven cable reel trailers was 256 days late despite several contract extensions which were granted for a total of 997 days. This ultimately resulted in a delay of 1,253 days from the original delivery date. (This was Contract 1356.) A third contract, No. N62992-87-06570 in 1987, for a single cable reel trailer was performed early. The delinquencies were attributed to plaintiffs poor production control.

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Bluebook (online)
35 Cont. Cas. Fed. 75,608, 16 Cl. Ct. 93, 1989 U.S. Claims LEXIS 2, 1989 WL 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reel-o-matic-systems-inc-v-united-states-cc-1989.