Terex Corp. v. United States

104 Fed. Cl. 525, 2012 U.S. Claims LEXIS 468, 2012 WL 1574113
CourtUnited States Court of Federal Claims
DecidedApril 4, 2012
DocketNo. 11-701C
StatusPublished
Cited by3 cases

This text of 104 Fed. Cl. 525 (Terex 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
Terex Corp. v. United States, 104 Fed. Cl. 525, 2012 U.S. Claims LEXIS 468, 2012 WL 1574113 (uscfc 2012).

Opinion

OPINION

WIESE, Senior Judge.

Plaintiff, Terex Corporation, is an unsuccessful bidder in a “best value” procurement conducted by the United States Army Contracting Command (“TACOM”) for the award of a contract involving the manufacture and supply of a specialized transport vehicle — the Light Capability Rough Terrain Forklift (“LCRTF”). Plaintiff seeks declaratory and injunctive relief: (i) declaring unlawful the award of the contract to Kalmar RT Center, LLC (the successful offeror and intervenor here) because Kalmar’s proposal allegedly failed to meet a minimum mandatory requirement set forth in the solicitation, (ii) requiring TACOM to suspend Kalmar’s performance of the contract, and (iii) directing TACOM to conduct a new best value determination. The parties have filed cross-motions for judgment on the administrative record and the court heard oral argument on March 21,2012. For the reasons set forth [527]*527below, plaintiffs motion for judgment is denied and defendant’s and defendant-interve-nor’s cross-motions are granted.

BACKGROUND

On July 7, 2010, TACOM issued a solicitation requesting proposals for the design and manufacture of the LCRTF, an advanced forklift that allows the transfer of heavy loads to and from areas not reachable by a standard forklift. The solicitation contemplated the award of a firm, fixed-price, five-year requirements contract for vehicle production, field support services, and related technical data.

The solicitation directed offerors to submit proposals for the design and configuration of the LCRTF and to provide information substantiating that their proposed vehicles would in fact meet the solicitation’s technical requirements. The solicitation did not, however, require that an offeror construct a prototype of its LCRTF at the proposal stage, but permitted offerors instead to propose modifications to already existing commercial equipment.

Under the terms of the solicitation, the evaluation of offers was to be carried out by a team of technically qualified individuals, referred to as the source selection evaluation board (“SSEB”), with the final award decision to be made by a single individual, the source selection authority (“SSA”). The solicitation indicated that the SSA would award the contract to the offeror whose proposal was judged to represent the best value to the government based on three evaluation criteria: technical, price, and small business participation, with the technical factor being the most important of the three and price being significantly more important than small business participation.

The technical factor was in turn divided into three approximately equally weighted subfaetors — beach operations, helicopter lift, and pallet handling operations. Each of these subfactors included specific performance and design requirements outlined in the purchase description, including the requirement at issue here: longitudinal gradeability. Under the technical subfactor beach operations, the purchase description directed as follows:

3.3.10 Longitudinal gradeability. The LCRTF shall be capable of ascending a 45% grade in forward gear range at a speed of not less than 1.5 miles per hour (mi/hr), on a dry concrete surface free from loose material, with the air conditioning at full cool setting, and all lights on, with and without the rated capacity load.

Section M.5.1 of the solicitation specified that these performance and design requirements “represent the Government’s minimum requirements that must be met by the offeror’s proposed LCRTF.”

Section L.4.1.1 of the solicitation directed each offeror to “detail the proposed approach and provide substantiating information to meet the requirements of the Purchase Description paragraphs in each subfactor specified above.” Anticipating that an offeror could satisfy these requirements either by designing and building an LCRTF to the purchase description specifications or by submitting a concept based on existing commercial equipment (without building the proposed LCRTF), Section L.4.1.1(a) of the solicitation additionally provided:

The substantiating information may include, but is not limited to, commercial literature, test data, historical information, analytical support, supporting rationale and/or design documentation, pictures, videos, supporting conformance of the proposed LCRTF to the specified paragraphs of the Purchase Description....
(i) The offeror should address whether its proposed vehicle is a modification to an existing product or a newly designed product.
(ii) For those products that are modified from an existing product, the offeror shall address whether the modifications have been credibly demonstrated on an integrated system level basis.
(iii) For those products that are modified from an existing product based on a proven integrated system design, the offeror shall address the impact that those modifications have on the baseline design and the tesi/performance data that the offeror has from the proven integrated system design.
[528]*528(iv) For newly designed products, the of-feror shall address whether the new design, or any of its components, have been previously integrated. The offeror shall also address whether any test/performance data exists.

The solicitation further specified that “validated test and inspection data, which establishes conformance of the offered configuration to [the] required performance levels, represents the most credible form of substantiating data.” Section L.4.1.1 (b).

In addition, Section M.5.1.1 of the solicitation advised that the government would evaluate the risk of each offeror’s proposed approach as follows:

The Government will assess the risk of the offeror not being able to meet the requirements as proposed. Failure to provide a detailed analysis, rationale and supporting documentation that satisfies the requirements of Section L and incorporates assumptions, will be reflected in the government’s risk assessment. Incomplete and unclear proposals will add risk. Test reports, detailed calculations, schematics, engineering analysis and evidence of performance generally mitigate risk. The claimed level of performance should be supported with calculation or test analysis, failure to provide this detail will result in a higher risk. Analysis and test data on similar systems can be provided to help mitigate risk; assuming a valid correlation is prepared and submitted.

Finally, with respect to the individual performance requirements associated with each technical sub factor, Section M.5.2 of the solicitation repeated the following evaluation standard: “The offeror’s approach will be assessed, and a rating level assigned based on the Government’s evaluation of the probability that the offeror will not meet [the purchase description] requirements identified in [Section L].”

The solicitation closed on August 26, 2010. Plaintiff submitted a bid proposing the modification of an existing forklift that plaintiff produces commercially; Kalmar based its proposal instead on a newly designed vehicle it had built specifically in response to the solicitation. TACOM determined that all four proposals it had received were in the competitive range and conducted discussions with the offerors from October 13, 2010, to January 18, 2011.

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104 Fed. Cl. 525, 2012 U.S. Claims LEXIS 468, 2012 WL 1574113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terex-corp-v-united-states-uscfc-2012.