Southern Packaging v. United States, Civ. A. No. 82-2316-15.

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: HAMILTON
• Citation: 63 Comp. Gen. 470,588 F. Supp. 532
• Parties: SOUTHERN PACKAGING AND STORAGE COMPANY, INCORPORATED, Plaintiff, v. UNITED STATES of America, Defendant, v. MAGIC PANTRY FOODS, INC., Intervenor, Defendant.
• Docket Number: Civ. A. No. 82-2316-15.
• Decision Date: 06 February 1984

588 F. Supp. 532
63 Comp. Gen. 470

SOUTHERN PACKAGING AND STORAGE COMPANY, INCORPORATED, Plaintiff,
v.
UNITED STATES of America, Defendant,
v.
MAGIC PANTRY FOODS, INC., Intervenor, Defendant.

Civ. A. No. 82-2316-15.

United States District Court, D. South Carolina, Florence Division.

February 6, 1984.

588 F. Supp. 533

COPYRIGHT MATERIAL OMITTED

588 F. Supp. 534

COPYRIGHT MATERIAL OMITTED

588 F. Supp. 535

David W. Keller, Jr., Florence, S.C., William W. Goodrich, Jr., Washington, D.C., for plaintiff

Glenn Craig, Asst. U.S. Atty., Columbia, S.C., Molly Houghton Colburn, Philadelphia, Pa., Roger A. Clark, Washington, D.C., Mark W. Buyck, Jr., Florence, S.C., for defendant.

ORDER

HAMILTON, District Judge.

This suit for injunctive and declaratory relief was instituted by the plaintiff, Southern Packaging and Storage Company, Inc. (hereinafter "So-Pak-Co"), against the defendant, the United States of America, on September 20, 1982. The suit by So-Pak-Co challenges the award of two fiscal 1982 contracts for pouches of thermostabilized diced turkey and beef stew entrees for military personnel, contracts awarded by and through the Defense Personnel Support Center (hereinafter "DPSC"). The subject contracts were awarded to the Canadian Commercial Corporation, but were actually to be performed by Magic Pantry Foods, Inc. (hereinafter "Magic Pantry"), a Canadian corporation. Magic Pantry was subsequently granted leave to intervene in this action by this court's order of October 26, 1982.

The plaintiff, So-Pak-Co, contends that the defendant's award of the subject contracts violates Section 723 of the Department of Defense Appropriations Act, 1982, Pub.L. No. 97-114, 95 Stat. 1565, 1582-83, (commonly known as the "Berry Amendment" or the "Buy-American" provision) and the Anti-Deficiency Act, 31 U.S.C. § 1341. Section 723 of the Defense Appropriations Act provides in pertinent part:

Sec. 723. No part of any appropriation contained in this Act ... shall be available for the procurement of any article of food ... not grown, reprocessed, reused, or produced in the United States or its possessions ...; Provided, that nothing herein shall preclude the procurement of foods manufactured or produced in the United States or its possessions.

The matter came before the court for trial on December 1, 1983. After hearing the testimony, reviewing the exhibits and briefs, and studying the applicable law, this court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure. The court notes that to the extent any of the following findings of fact constitute conclusions of law, they are adopted as such and to the extent any conclusions of law constitute findings of fact, they are so adopted.

FINDINGS OF FACT

1. Pursuant to a Stipulation filed with this court on October 21, 1982, the following facts are established:

(a) The plaintiff, So-Pak-Co, is a business corporation duly incorporated under the laws of South Carolina, with its principal place of business in Mullins, South Carolina. (Stip. ¶ 1)

(b) The defendant is the United States of America, acting by and through the DPSC, 2800 South 20th Street, Philadelphia, Pennsylvania, 19101. DPSC is a primary level field activity of the Defense Logistics Agency, an agency of the United States Department of Defense. (Stip. ¶ 2)

(c) The intervenor-defendant, Magic Pantry, is a Canadian business corporation organized under the laws of the Province of Ontario, Canada, with its principal place of business in Hamilton, Ontario. (Stip. ¶¶ 3 and 6)

(d) So-Pak-Co is engaged, inter alia, in the business of providing to the defendant (through DPSC) combat meal products for consumption by Government military personnel where organized kitchens are not available. Such products include supplies known as "Meal, Ready-to-Eat, Individual" (hereinafter "MRE"), and component food items thereof. (Stip. ¶ 4) The MRE program takes the place of the "Meal, Combat, Individual" program, the successor to the "C-Ration Program." (Stip. ¶ 35) So-Pak-Co

588 F. Supp. 536

acts both as an assembler of complete MRE meals, and as a supplier of component items. (Stip. ¶ 4)

(e) So-Pak-Co performs all of its work on contracts for the defendant at its plants at Bennettsville and Mullins, South Carolina. (Stip. ¶ 5)

(f) On or about June 17, 1982, DPSC issued two (2) Solicitations (Requests for Proposals) for individual meal entree items to be purchased for later use by assembly contractors in supplying final MRE assemblies. These Solicitations were as follows:

 Solic. No. Item Quantity Ship Dates
                 DLA13H-82-R-8984 Turkey, Diced, 1,642,206 Nov. 2, 1982-Feb
                 with Gravy, pouches1 15, 1983
                 thermostabilized
                 DLA13H-82-R-8985 Beef Stew, 1,642,206 Nov. 2, 1982-Feb
                 thermostabilized pouches1 15, 1983
                

Deliveries are FOB assembler's plants, Mullins, South Carolina and McAllen, Texas. (Stip. ¶ 7)

(g) So-Pak-Co submitted separate proposals in accordance with the terms of the Solicitations. So-Pak-Co submitted two separate "Best and Final" Offers to DPSC, each dated August 26, 1982. So-Pak-Co's initial offer and "Best and Final" offer prices were as follows:

 So-Pak-Co Initial Offer
                 Item FOB Point Price (per pouch)
                 Turkey, Diced Mullins, S. C. $1.048
                 Turkey, Diced McAllen, Texas $1.053
                 Beef Stew Mullins, S. C. $0.843
                 Beef Stew McAllen, Texas $0.851
                 So-Pak-Co Best and Final Offer
                 Item FOB Point Price (per pouch)
                 Turkey, Diced Mullins, S. C. $1.048
                 Turkey, Diced McAllen, Texas $1.053
                 Beef Stew Mullins, S. C. $0.843
                 Beef Stew McAllen, Texas $0.851
                

(Stip. ¶ 8)

(h) Magic Pantry also submitted separate initial proposals and "Best and Final" offers under each Solicitation to supply the items required. All such offers were endorsed by the Canadian Commercial Corporation, an entity of the Canadian Government, pursuant to the U.S. Defense Acquisition Regulation, 32 C.F.R. Subtitle A, Ch. 1, Subchap. A, Section VI (6-501 et seq.), as it pertains to Canadian purchases. (Stip. ¶ 9)

(i) Magic Pantry's initial and Best and Final offers were as follows:

 Magic Pantry Initial Offer
                 Item FOB Point Price (per pouch)
                 Turkey, Diced Mullins, S. C. $1.117
                 Turkey, Diced McAllen, Texas $1.129
                

588 F. Supp. 537
                 Magic Pantry Initial Offer
                 Item FOB Point Price (per pouch)
                 Beef Stew Mullins, S. C. $0.903
                 Beef Stew McAllen, Texas $0.915
                 Magic Pantry Best and Final Offer
                 Item FOB Point Price (per pouch)
                 Turkey, Diced Mullins, S. C. $0.857
                 Turkey, Diced McAllen, Texas $0.869
                 Beef Stew Mullins, S. C. $0.803
                 Beef Stew McAllen, Texas $0.815
                

(Stip. ¶ 10)

(j) In addition to So-Pak-Co and Magic Pantry, at least nine offerors submitted initial proposals and "Best and Final" offers to DPSC in response to both Solicitations. (Stip. ¶ 11)

(k) The other offers stated that any resultant contracts would be performed at locations within the United States. (Stip. ¶ 12)

(l) Magic Pantry submitted the lowest price "Best and Final" offer in response to both Solicitations. (Stip. ¶ 13)

(m) So-Pak-Co submitted the second lowest price "Best and Final" offer in response to the Beef Stew Solicitation. (Stip. ¶ 14)

(n) So-Pak-Co submitted the fifth lowest price "Best and Final" offer in response to the Diced Turkey Solicitation. (Stip. ¶ 15; See also, Plaintiff's Exhibit No. 1.)

(o) On September 2, 1982, DPSC, by its Contracting Officer Thomas J. Cullen, awarded Contract No. DLA13H-82-C-Z071 to the Canadian Commercial Corporation covering the supply by Magic Pantry of 1,642,208 pouches of beef stew, thermostabilized (hereinafter the "Beef Stew Contract"). On the same date DPSC, by its Contracting Officer Thomas J. Cullen, awarded Contract No. DLA13H82-C-Z070 to the Canadian Commercial Corporation covering the supply by Magic Pantry of 1,642,208 pouches of turkey diced, with gravy, thermostabilized (hereinafter the "Diced Turkey Contract"). (Stip. ¶¶ 17, 26)

2. Upon the commencement of the present action and after Magic Pantry was granted leave to intervene on October 26, 1982, this court entered a temporary restraining order and preliminary injunction pendente lite restraining the United States from terminating the contracts for default or from insisting that Magic Pantry fulfill its obligations under the contracts.

3. DPSC subsequently "bought around" the two contracts awarded to the Canadian Commercial Corporation by reprocuring the beef stew and diced turkey entree items in order to complete MRE assembly contracts scheduled to be performed in 1983. (Cunningham Testimony, Tr. p. 140:9-21). However, the defendant stated in open court at the December 1, 1983, trial that neither of the contracts with the Canadian Commercial Corporation has been terminated. (Tr. pp. 5:4-6:22; 81:9-83:7) Consequently, both contracts could be revived and performed in Canada with adjustments in delivery dates and prices unless enjoined or declared illegal by this court.

The Beef Stew Contract

4. A copy of the Beef Stew Contract was received in evidence as Plaintiff's Exhibit No. 5. The total contract price is U.S. $1,328,546.28. (Tr. p. 21; Plaintiff's Exhibit No. 5)

5. The Beef Stew Contract incorporates by reference a document entitled "Limited Production Purchase Description for Beef Stew, Thermostabilized, Flexibly Packaged" dated January 15, 1981, which is also known as "LP/P DES 9-75C." LP/P DES 9-75C was amended by other provisions set forth in the Beef Stew Contract, and as so amended, sets forth the description of the

588 F. Supp. 538

items being purchased under the Beef Stew Contract. (Stip. ¶ 29) A copy of LP/P DES 9-75C was received in evidence as Plaintiff's Exhibit No. 6. (Tr. p. 21)

6. The Beef Stew Contract also incorporates by reference "Limited Production Purchase Description for Packaging, Processing and Packing of Thermostabilized Foods in Flexible Packages," dated December 7, 1981, also known as LP/P DES 32-74D. (Stip. ¶ 31; Plaintiff's Exhibit No. 4)

7. Section L,...