Skytech Aero, Inc. v. United States

38 Cont. Cas. Fed. 76,331, 26 Cl. Ct. 251, 1992 U.S. Claims LEXIS 237, 1992 WL 114687
CourtUnited States Court of Claims
DecidedMay 29, 1992
DocketNo. 91-888C
StatusPublished
Cited by8 cases

This text of 38 Cont. Cas. Fed. 76,331 (Skytech Aero, 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
Skytech Aero, Inc. v. United States, 38 Cont. Cas. Fed. 76,331, 26 Cl. Ct. 251, 1992 U.S. Claims LEXIS 237, 1992 WL 114687 (cc 1992).

Opinion

ORDER

MOODY R. TIDWELL, III, Judge:

This case is before the court on defendant’s motion to dismiss and motion for summary judgment. For the reasons set forth below, the court grants defendant’s motion for summary judgment.

FACTS

On May 8, 1990, defendant, through the United States Army Engineer District in Vicksburg, Mississippi, requested bids for aerial photography services to be performed in the Vicksburg area. The solicitation required bidders to furnish all equipment, transportation, and materials necessary to perform and deliver aerial photography. The length of the contract was to be one year, with options to extend for a total period not to exceed five years. The Army received timely bids from three concerns: Future Photo & Mapping, Inc., Sky-tech Aero, Inc., and Calhoun Forestry Mapping Service.

Future Photo was determined to be the low bidder; however, several defects were contained in its bid. It had failed to sign the bid’s Schedule and continuation sheet, it did not attach its corporate seal next to the signature of Future Photo’s corporate secretary, and it had made errors in some of its calculations. On June 15, 1990, the Army requested that Future Photo verify its bid. Future Photo responded, but the verification was unclear as to the bid prices and the Army had to request a second verification. On June 26, 1990, Future Photo’s bid was verified.

The next day, the Army requested Future Photo to provide financial information and a completed camera calibration report. A calibration report dated December 21, 1989, was submitted on a camera owned by E. Coyote Enterprises, Inc.; however, the camera had been sold to the Indiana Department of Natural Resources and was no longer available. On July 3, 1990, the Army contacted Coyote and learned that Coyote had provided a calibration report to Future Photo for a suitable replacement camera. Future Photo then submitted cali[253]*253bration reports for two different cameras owned by Coyote. On July 30, 1990, Future Photo identified the camera it intended to use, and the Army conducted a preaward survey, which included a Dun & Bradstreet report. The preaward survey revealed that in the past Future Photo had been delinquent on loan payments, and that it was then overdrawn on its checking account. However, the Dun & Bradstreet report listed substantial assets for Future Photo, and the preaward survey concluded by recommending completion of the contract award.

Upon learning that Future Photo would be awarded the contract, plaintiff, on August 6, 1990, filed a formal protest based on the following reasons: (1) Future Photo, in its bid, submitted calibration reports for a camera that it neither owned nor had access to; (2) Future Photo made misrepresentations about its financial situation and technical background; and (3) the president of Future Photo failed to sign each bid sheet as required by the contract. The Army requested the bidders to extend their bids while Skytech’s protest was evaluated and Future Photo’s bid was further verified. By letter, all three agreed to extend their respective bids for sixty days. Plaintiff also granted further extensions and held aside aircraft, camera, and other equipment necessary to perform the contract for a total of months.

On February 5, 1991, Skytech filed a complaint in this court seeking a writ of mandamus ordering the Army to award Skytech the contract, damages for the Army’s failure to fairly and honestly consider Skytech’s bid, and arguing that the government should be estopped from denying liability for the fair market value of the equipment held aside in anticipation of contract award. On February 15, 1991, the Army issued a final decision denying plaintiff’s bid protest. Two weeks later, Future Photo was awarded the contract. On January 2, 1992, defendant moved for summary judgment.1

DISCUSSION

Summary judgment is appropriate when “there is no genuine issue as to any material fact” so that the moving party “is entitled to judgment as a matter of law.” RUSCC 56(c) (1991). In evaluating a motion for summary judgment, any doubt as to whether a genuine issue of material fact exists must be resolved in favor of the non-moving party. Adickes v. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970); Campbell v. United States, 2 Cl.Ct. 247, 249 (1983). A genuine issue of material fact is one that would change the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Chevron U.S.A., Inc. v. United States, 17 Cl.Ct. 537, 540 (1989), rev’d on other grounds, 923 F.2d 830 (Fed. Cir.1991).

When the moving party has carried its burden, the non-moving party must come forward with specific facts showing that a genuine issue for trial exists, Matsushita Elec. Indies. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), and the non-moving party may not discharge its burden by cryptic, conclusory, or generalized responses. See Willetts v. Ford Motor Co., 583 F.2d 852, 856 (6th Cir.1978); Tunnell v. Wiley, 514 F.2d 971, 976 (3d Cir.1975). “[When] the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Id. at 587, 106 S.Ct. at 1356 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). The court finds that no genuine issues of material fact are present, and that summary judgment is appropriate.

I. The Consideration of Skytech’s Bid.

Plaintiff’s first argued that the Army did not give fair consideration to its bid. Generally, the government is under a duty to consider all bids for government [254]*254contracts fairly and honestly. Heyer Prods. Co. v. United States, 135 Ct.Cl. 63, 140 F.Supp. 409 (1956); Keco Indus., Inc. v. United States, 192 Ct.Cl. 773, 428 F.2d 1233 (1970). To show a violation of this duty, a contractor must prove that the government awarded a contract arbitrarily or capriciously. Excavation Constr. v. United States, 204 Ct.Cl. 299, 494 F.2d 1289 (1974). “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). Here, plaintiff alleged that defendant acted arbitrarily and capriciously by awarding a contract to a bidder who was not responsible and whose bid was nonresponsive.

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

Related

Aeroplate Corp. v. United States
67 Fed. Cl. 1 (Federal Claims, 2005)
Hydro Engineering, Inc. v. United States
41 Cont. Cas. Fed. 77,135 (Federal Claims, 1997)
IMS Services, Inc. v. United States
40 Cont. Cas. Fed. 76,784 (Federal Claims, 1995)
C & G Excavating, Inc. v. United States
39 Cont. Cas. Fed. 76,715 (Federal Claims, 1994)
Shields Enterprises, Inc. v. United States
38 Cont. Cas. Fed. 76,526 (Federal Claims, 1993)
YRT Services Corp. v. United States
38 Cont. Cas. Fed. 76,512 (Federal Claims, 1993)
Magnavox Electronic Systems Co. v. United States
38 Cont. Cas. Fed. 76,414 (Court of Claims, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
38 Cont. Cas. Fed. 76,331, 26 Cl. Ct. 251, 1992 U.S. Claims LEXIS 237, 1992 WL 114687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/skytech-aero-inc-v-united-states-cc-1992.