Vulcan Engineering Co. v. United States

35 Cont. Cas. Fed. 75,606, 16 Cl. Ct. 84, 1988 U.S. Claims LEXIS 208, 1988 WL 140016
CourtUnited States Court of Claims
DecidedDecember 23, 1988
DocketNo. 381-86C
StatusPublished
Cited by28 cases

This text of 35 Cont. Cas. Fed. 75,606 (Vulcan Engineering Co. 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
Vulcan Engineering Co. v. United States, 35 Cont. Cas. Fed. 75,606, 16 Cl. Ct. 84, 1988 U.S. Claims LEXIS 208, 1988 WL 140016 (cc 1988).

Opinion

OPINION

MARGOLIS, Judge.

Plaintiff seeks to recover bid preparation costs under 28 U.S.C. § 1491(a)(1) alleging that its bid was denied fair and honest consideration because the contracting officer erroneously found the lowest responsive bidder to be “responsible” under special expertise criteria in the solicitation. Defendant moved for summary judgment, and plaintiff moved for partial summary judgment. After consideration of the entire record and after hearing oral argument, the defendant’s motion for summary judgment is granted, and the plaintiff’s motion for partial summary judgment is denied.

FACTS

Vulcan Engineering Co. (Vulcan) brings this, claim challenging the award of a con[85]*85tract to Arnold M. Diamond, Inc. (Diamond) under invitation for bids (IFB) No. 62470-81-B-1597, issued by the Naval Facilities Engineering Command (NAVFAC) for foundry modernization at the Norfolk Naval Shipyard in Portsmouth, Virginia. The IFB was a 100% small business set-aside. Vulcan contends that it is entitled to recover its bid preparation costs because the definitive responsibility criteria in the IFB were misapplied when NAVFAC determined Diamond to be responsible. Vulcan alleges that neither Diamond nor its proposed subcontractor, Foundry Systems Inc. (Foundry) possessed the experience with the installation of foundry process systems required by the IFB.

The foundry process that was the subject of the solicitation involves the preparation of molds from a blend of sand and chemicals and the production of castings. Raw materials are heated, melted, and mixed with catalysts and alloys to obtain a molten metal, which is then poured into the molds to produce the castings. The castings are then cleaned and the molds destroyed. The sand is reclaimed through the removal of the chemicals and other impurities. Throughout this process, a sophisticated ventilation system is required in order to remove harmful silica particles from the air.

The IFB describes the specific work required under the solicitation as “providing new conveyorized molding, sand reclamation, sand handling, casting cleaning equipment; providing modifications to existing equipment and incidental related work.” In a pre-solicitation memo to NAVFAC setting forth the shipyard’s needs, the Commander of the Norfolk Naval Shipyard described the work as a “highly specialized modernization project” and went on to indicate that:

The scope of the job is greatly weighted toward the procurement and installation of many independently manufactured pieces of specialized foundry equipment. All of the independent pieces must be precisely coordinated to provide a functional foundry system. The contractor must be knowledgeable of foundry methods and specifically must have experience in total system start-up and debugging. Detailed knowledge of sand control, metal control, sand reclamation, and ventilation and how all the process variables interrelate is absolutely necessary. Reliance upon only a manufacturers representative to start up only his individual piece of equipment, comprising only a portion of the total system, is specifically not satisfactory. Disputes over responsibilities would be guaranteed. Sole source responsibility must be ensured for the entire modernization project.

Accordingly, he informed NAVFAC that the shipyard “strongly insists upon the necessity for including previous experience requirements” and proposed requiring a minimum of five years of experience in “providing and installing turnkey chemically bonded foundry systems."

NAVFAC subsequently included paragraph 2.7 in the IFB specifying the following experience requirements to be met by the installer of the foundry equipment:

2.7 Qualifications of Equipment Installer: Submit data to Contracting Officer for approval by Design Division, Code 403, Naval Facilities Engineering Command, showing that the Contractor has successfully installed foundry process systems of the same type and design as specified and indicated for this project, or that he has a firm contractual agreement with a subcontractor having such required experience. The data shall include the names and location of at least two installations where the Contractor, or the subcontractor referred to above, has installed such systems. The Contractor shall indicate the type and design of each system and certify that each system has performed satisfactorily in the manner intended for a period of not less than 24 months. The specified experience requirements shall be met for each of the following foundry process systems:
a) Melting
b) Molding
c) Sand Handling
d) Reclamation
e) Ventilation
[86]*86f) Casting Cleaning

The solicitation, at paragraph 2.7.1 and 2.7.2 went on to specify information required of each bidder and the manner for its submission and consideration:

2.7.1 Information required:

a. Name of company (submitting experience) and address
b. Applicable experience
c. Plant name (in which particular foundry process system is located[)] and address
d. Plant manager’s name and phone number
e. Process system construction start date, completion date, and start-up date
f. Process system capacity and normal load
g. Number of hours the process system has operated at greater than 90 percent capacity
h. Process system designed by; constructed by
i. General description of plant and process system

2.7.2 Qualifications Evaluation and Application: The apparent low bidder shall submit the required qualification data to the Contracting Officer within 7 calendar days after bid opening, but prior to award, for determination of responsibility.

In response to the solicitation, NAVFAC received seven bids. The apparent low bidder, Frankco Manufacturing & Maintenance Co. was rejected by the Navy as “nonresponsive” because it failed to furnish a bid guarantee. Diamond became eligible for the award because it was the second lowest bidder. SMS Mechanical Contractors submitted the next lowest bid while plaintiff submitted the apparent fourth lowest bid. The breakdown of the offers as bid was as follows:

Contractor Base Bid
1. Frankco Mfg. & Maint. Co. $ 500,600
2. Arnold M. Diamond, Inc. $1,441,046
3. SMS Mechanical Contractors $1,558,000
4. Vulcan Engineering Co. $1,860,000
5. W.F. Magann Corp. $1,861,000
6. Pipe, Inc. $1,970,000
7. Harry H. Kessler & Assoc. $1,970,664

On December 13, 1983, the Navy notified Diamond that it was the apparent second low bidder and requested that it submit the required data concerning the qualifications of the equipment installer pursuant to paragraph 2.7 of the IFB.

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Bluebook (online)
35 Cont. Cas. Fed. 75,606, 16 Cl. Ct. 84, 1988 U.S. Claims LEXIS 208, 1988 WL 140016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vulcan-engineering-co-v-united-states-cc-1988.