Tel-Instrument Electronics Corp. v. United States

56 Fed. Cl. 174, 2003 U.S. Claims LEXIS 84, 2003 WL 1872944
CourtUnited States Court of Federal Claims
DecidedApril 8, 2003
DocketNo. 02-1828C
StatusPublished
Cited by12 cases

This text of 56 Fed. Cl. 174 (Tel-Instrument Electronics Corp. 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
Tel-Instrument Electronics Corp. v. United States, 56 Fed. Cl. 174, 2003 U.S. Claims LEXIS 84, 2003 WL 1872944 (uscfc 2003).

Opinion

OPINION AND ORDER

HODGES, Judge.

Tel-Instrument Electronics challenges the Army’s decision rejecting its bid as non responsive and awarding the contract for a radar system to Goodrich Corporation-JcAir Test Systems. Plaintiff conditioned its bid upon receiving certain government-furnished equipment and obtaining special warranties and payment terms. The administrative record supports the Army’s decision to reject plaintiffs bid and to award the contract to JcAir. We grant defendant’s motion for summary judgment.

[176]*176BACKGROUND

The Army requested bid samples for a fixed-price, indefinite delivery-indefinite quantity contract to purchase a complex radar test system. The purpose of the system is to validate friend-or-foe technology used by pilots and other military personnel to avoid casualties from “friendly fire.” The Army appraised and tested the bid samples, and issued Invitations for Bids to those who qualified. Three contractors qualified to participate in the bidding, including Tel-Instrument.

The contracting officer noted several exceptions to plaintiffs offer at the bid opening. First, the bid price assumed that plaintiff would use government-furnished equipment in operating the system. The Solicitation did not include an express mention of such equipment. Second, the contracting officer stated that plaintiffs cover letter placed limitations on the “standard commercial warranty” required by the Solicitation. Third, plaintiff conditioned the payment terms of its bid by proposing to invoice the Government on a milestone basis. The Solicitation provided for payment when the Army accepted completed units. The contracting officer found that plaintiffs bid was not responsive because its conditions were material deviations from requirements of the Solicitation.

A.

This court has jurisdiction “to render judgment on an action by an interested party objecting to ... any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). We review agency procurement decisions according to Administrative Procedure Act standards. See 5 U.S.C. § 706. These standards require that a court uphold agency decisions unless they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); 28 U.S.C. § 1491(b)(4). “The Court may interfere only where it is clear that the agency’s determinations were irrational and unreasonable.” Acra, Inc. v. United States, 44 Fed.Cl. 288, 292 (1999) (citing IMS Servs., Inc. v. United States, 33 Fed.Cl. 167, 179 (1995)). Contracting officers have wide discretion in evaluating bids and applying procurement regulations. See, e.g., Cincom Sys., Inc. v. United States, 37 Fed.Cl. 663, 671 (1997).

B.

A motion for judgment upon the administrative record is subject to the same standards applicable to a motion for summary judgment. Nickerson v. United States, 35 Fed.Cl. 581, 588 (1996), aff'd, 113 F.3d 1255 (Fed.Cir.1997). Summary judgment is appropriate if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. RCFC 56(c); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed.Cir.1987). A motion for judgment upon the administrative record is “an appropriate vehicle to scrutinize an agency’s procurement actions because the issues in such cases typically involve contractual and regulatory interpretation, thereby presenting no genuine issues of material fact.” Ryan Co. v. United States, 43 Fed.Cl. 646, 650 (1999).

C.

If a bidder attempts to impose conditions that would modify material requirements of the solicitation, the bid is not responsive and must be rejected. See, e.g., Bishop Contractors, Inc., B-246,526, 91-2 CPD ¶ 555 at 2-3, 1991 WL 280099 (Comp. Gen. Dec. 17, 1991). Material requirements include those affecting price, quantity, quality, or delivery of the solicited products. They are not “minor informalities or irregularities.” 48 C.F.R. § 14.405.1

[177]*177“The rationale for enforcing the responsiveness requirement is to avoid unfairness to other contractors who submitted a sealed bid on the understanding that they' must comply with all the specifications and conditions in the invitation for bids.” Ryan Co., 43 Fed.Cl. at 650 (quoting Toyo Menka Kaisha, Ltd. v. United States, 220 Ct.Cl. 210, 597 F.2d 1371, 1377 (1979)). No bidder may reserve rights or immunities that are not extended to all bidders by the conditions and specifications advertised in the solicitation. Interstate Constr., Inc., B-281,465, 99-1 CPD ¶ 31 at 2, 1999 WL 61014 (Comp.Gen. Feb. 10, 1999). The bid must contain an unequivocal offer to perform, without exception, the exact thing called for in the solicitation, in total conformance with material terms of the solicitation. ECDC Envtl., L.C. v. United States, 40 Fed.Cl. 236, 242 (1998); Bean Dredging Corp. v. United States, 22 Cl.Ct. 519, 522 (1991) (quoting Wright Assocs., Inc., 90-1 CPD ¶ 549, 1990 WL 278081 (Comp. Gen. June 12,1990)).

DISCUSSION

Government-Furnished Equipment

The cover letter accompanying Tel-Instrument’s bid stated that plaintiff would require certain government-furnished equipment “for the life of the production contract.” Neither the Invitation for Bids nor the Statement of Work included a provision for government-furnished equipment. The contracting officer disqualified the bid as non responsive partly for that reason. Plaintiff contends that while the Solicitation contained no express provision for government-furnished equipment, its use was implicit. Moreover, the equipment needed was not commercially available, so bidders were entitled to assume that the Government would furnish it.

The Invitation for Bids does not contain clauses that FAR would require if the Army were contemplating use of government-furnished equipment. See, e.g., 48 C.F.R. § 52.245-2(a)-2(k). An agency must include such clauses in solicitations for contracts that involve government-furnished equipment. See Title 48 C.F.R. § 45.302-4. The administrative record includes materials establishing that the proposed equipment in fact was commercially available. Defendant asserts that no other bidders sought clarification concerning government-furnished equipment.

Tel-Instrument agreed to the contract at the quoted price only with the equipment provided. It had no legal obligation to perform the contract unless the Army agreed to furnish the requested equipment.

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56 Fed. Cl. 174, 2003 U.S. Claims LEXIS 84, 2003 WL 1872944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tel-instrument-electronics-corp-v-united-states-uscfc-2003.