Am. Apparel, Inc. v. United States
| Decision Date | 30 November 2012 |
| Docket Number | No. 12-293C,12-293C |
| Parties | AMERICAN APPAREL, INC., Plaintiff, v. UNITED STATES, Defendant, v. BLUEWATER DEFENSE, INC., Defendant-Intervenor. |
| Court | U.S. Claims Court |
REDACTED OPINION
Redacted Version Issued for Publication: December 14, 20121
Post-Award Bid Protest; Motion
to Dismiss; Contract Modification
Victor A. Kubli, Grayson Law Center, P.C., Germantown, MD, for plaintiff. With him was Alia J. Roberts, Grayson Law Center, P.C., Falls Church, VA.
William J. Grimaldi, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Kirk T. Manhardt, Assistant Director, Jeanne E. Davidson, Director, Commercial Litigation Branch, and Stuart F. Delery, Acting Assistant Attorney General, Civil Division.
Marc Lamer, Kostos and Lamer, P.C., Philadelphia, PA, for defendant-intervenor.
The United States Defense Logistics Agency (DLA), Defense Supply Center Philadelphia, issued Solicitation SPM1C1-08-R-0153 (the solicitation) for "Coats, All Weather, Various, Mens and Womens" for the United States Marine Corps, Army, and Navy on September 10, 2009. The solicitation sought proposals for five line items, with a base period of one year and four option years for each line item. The line items solicited were: Item 0001, for "PGC [Product Group Code] 02850 Coat, All Weather, Marine Corp Men's," Item 0002, for "PGC 02851 Coat, All Weather, Marine Corp Women's," Item 0003, for "PGC 02110 Coat, All Weather, Army Women's," Item 0004, for "PGC 01940 Coat, All Weather, Navy Men's," and Item 0005, for "PGC 01908 Coat, All Weather, Navy Women's."2
The September 10, 2009 solicitation included a Notice to Offerors, in which the agency listed evaluation criteria to be used in selecting the awardee:
Proposals will be evaluated for both technical merit and price reasonableness following the evaluation procedures in this solicitation. In order to provide full consideration of your qualification for contract award, you are encouraged to ensure that the information furnished in support of your technical proposal is factual, accurate and complete. The Department of Defense (DoD) is committed to applying "Best Value" contracting as a means to rely on industry for timely delivery of quality products, while reducing the Government's administrative costs associated with contractor oversight. To this end, we are evaluating factors in addition to price under this solicitation.
The Notice to Offerors further provided:
In a separate section titled "FAR 52.212-2 Evaluation-Commercial Items (JAN 1999),"4 the solicitation stated that technical factors were "[s]ignificantly more importantthan cost or price."
The solicitation also included a clause titled, "52.216-9006 Addition/Deletion of Items" (the Add/Delete Clause).5 The Add/Delete Clause provided:
As prescribed in 16.506(90),6 insert the following clause:
Six offerors submitted proposals in response to the solicitation. One of the offerors, [deleted], was eliminated for failure to submit prices in its proposal. The technical proposals from the remaining five offerors were evaluated.
On December 13, 2010, the Source Selection Authority and contracting officer, T.D. Lockley, issued a Source Selection Decision, identifying DJ Manufacturing, Corp. (also referred to as DJ Mfj in the administrative record)7 as representing the best value to the government for Item 0001, and identifying American Apparel, Inc. (American Apparel) as representing the best value to the government for Items 0002, 0003, 0004, and 0005. The Source Selection Decision referred to the FAR 52.212-2, Evaluation -- Commercial Items, included in the September 10, 2009 solicitation, as the basis for its selection decision, specifying that "all evaluation factors other than cost or price, when combined, are significantly more important than cost or price."
The Source Selection Decision included charts showing which of the five proposals represented the best value to the government, for each of the items, 0001 through 0005, identified in the solicitation. The charts were based on alphabetical and numerical evaluations and each proposal received a number of alphabetical ratings, with "E" for exceptional, "V" for very good, "S" for satisfactory, "M" for marginal, "U" was for unacceptable, and "N" for neutral (no submission). Each proposal also received a numerical ranking, with "1" being the highest and "5" being the lowest.
With respect to the Item 0001, "PGC 02850 Coat, All Weather, Marine Corp Men's," the Source Selection Authority, prepared the following evaluation summary in the December 13, 2010 Source Selection Decision:8
+-----------------------------------------------------------------------------+
¦ ¦ ¦ ¦ ¦ ¦UNIT ¦TOTAL ¦
¦ ¦PDM¦PAST ¦Socioeconomic ¦ ¦ ¦ ¦
¦OFFEROR ¦ ¦ ¦ ¦TECH PROP¦PRICE ¦EVALUATED¦
¦ ¦(A)¦PERFORMANCE ¦Considerations¦ ¦ ¦ ¦
¦ ¦ ¦ ¦ ¦ ¦(WAP)9 ¦PRICE ¦
+-------------+---+--------------+--------------+---------+---------+---------¦
¦ ¦ ¦A B C D O/ ¦ ¦ ¦ ¦ ¦
¦ ¦ ¦A10 ¦ ¦ ¦ ¦ ¦
+-------------+---+--------------+--------------+---------+---------+---------¦
¦DJ MFJ (4) ¦S ¦V V V M V ¦2 ¦S ¦[deleted]¦[deleted]¦
+-------------+---+--------------+--------------+---------+---------+---------¦
¦AMERICAN ¦ ¦ ¦ ¦ ¦ ¦ ¦
¦ ¦V ¦E V V U V ¦3 ¦V ¦[deleted]¦[deleted]¦
¦APPAREL (1) ¦ ¦ ¦ ¦ ¦ ¦ ¦
+-------------+---+--------------+--------------+---------+---------+---------¦
¦[deleted] (6)¦M ¦S V V N S ¦4 ¦M ¦[deleted]¦[deleted]¦
+-------------+---+--------------+--------------+---------+---------+---------¦
¦[deleted] (2)¦V ¦E V M N V ¦5 ¦V ¦[deleted]¦[deleted]¦
+-------------+---+--------------+--------------+---------+---------+---------¦
¦[deleted] (3)¦S ¦V V V N V ¦1 ¦S ¦[deleted]¦[deleted]¦
+-----------------------------------------------------------------------------+
The Source Selection Authority conducted a detailed comparison of each offer, determining that Bluewater represented the best value to the government for Item 0001. Comparing Bluewater and American Apparel for Item 0001,11 the source selection decision stated:
Although American Apparel has a superior technical proposal, paying a [deleted] premium to American Apparel is not considered in the best interest of the Government. In comparing PDMs, which is the most important factor, both vendors had deficiencies that were easily correctable, but DJ also had four deficiencies that require preventative corrective action. While there is a difference in the quality of the PDMs, it is not considered to be significant after considering the number of deficiencies in each offeror's PDM as well as the nature of the deficiencies. Although DJ had four deficiencies requiring preventative corrective action, that is a relatively low number and the overall number of deficiencies in each PDM is fairly close (9 vs. 12). Because both vendors' PDMs meet the stated technical requirements of the solicitation and do not contain any significant deficiencies, there is no significant difference between the two PDMs.
As to past performance, the Source Selection Authority concluded:
[W]hile American has more extensive experience in making the same exact item, DJ has successfully manufactured a similar item, in particular, the Extreme Cold Weather Parka, without any quality issues. Both DJ and American have relatively low delinquency rates, although it is noted that American Apparel has manufactured a much larger number of the same and similar coats. While American has strengths under Past Performance/Experience, given DJ's very good quality and delivery record, and their experience, the strengths are not substantial enough to warrant paying a [deleted] premium to American.
Regarding Socioeconomic Conditions, the Source Selection Authority determined that "[n]o adjectival rating exists for the Socioeconomic Conditions factor, the third and least important factor, because offerors were ranked in comparison to each other with respect to offeror efforts to develop additional opportunities for small, small disadvantaged and women-owned small businesses."
The December 13, 2010 Source Selection Decision included a similar analysis for Item 0002, "PGC 02851 Coat, All Weather, Marine Corp Women's." Comparing American Apparel to the other offerors, the Source Selection Authority determined that American Apparel was the best value to the government for Item...
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