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BOLLINGER MACH. SHOP & SHIPYARD v. UNITED STATES

July 13, 1984

BOLLINGER MACHINE SHOP & SHIPYARD, INC., Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: FLANNERY

 Flannery, District Judge.

 BACKGROUND

 On May 11, 1984, the Coast Guard awarded MPE the contract at issue in this case. Plaintiff soon discovered certain information which led it to believe that the award was improper because MPE's proposal could not have met the WPB specifications established by the Circular of Requirements ("COR") governing this procurement. On June 8, 1984, plaintiff filed the instant complaint, and simultaneously moved for a temporary restraining order and/or a preliminary injunction to stop performance of the Coast Guard/MPE contract. The court set the matter down for a hearing on the TRO, and notified counsel for plaintiff, the Coast Guard, and MPE, a potential intervenor. *fn1" After the hearing, the court denied plaintiff's motion for a TRO after balancing the equities. After consultation with counsel, however, the court determined that the dispute should be decided expeditiously on the merits. Without objection, an expedited discovery schedule was established, and the case was set down for a trial on the merits on July 9, 1984. The parties were able to work out discovery disputes with minimal intervention by the court, and depositions were taken of the witnesses who would appear at trial. Defendant submitted certain information to the court in camera which contained apparently proprietary information that defendant considered necessary for the court's review of the agency's action. On July 9, 1984, the case was tried by the court sitting without a jury. The court, having considered the pleadings filed in this case, the testimony of the witnesses, the documents in evidence and the stipulations of the parties, the defendant's in camera submissions, *fn2" and the arguments of counsel, hereby makes the following findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules of Civil Procedure.

 FINDINGS OF FACT

 A. General Description of WPB Procurement

 1. In late 1982, the Coast Guard determined that there was an urgent need for patrol boats to be used for alien and drug interdiction on the gulf and southeast coasts of the United States. In order to ensure that it could expeditiously obtain reliable and proven crafts that could meet the requirements necessary for this urgent mission, the Coast Guard developed the "Parent Craft" concept, and explicitly incorporated that concept into its Request for Proposals (RFP) and Circular of Requirements (COR) for RFP DTCG23-83-R-30024.

 3. The requirements for the Parent Craft and the WPB (the "daughter craft" to be constructed) were set out in some detail in the COR for this procurement. In July, 1983, approximately eleven proposals were received. Throughout the procurement process, the "Parent Craft" concept was stressed, and when bidders requested clarification on critical issues such as Parent Craft/WPB similarity requirements, the Coast Guard routinely replied that the COR was clear, and referred bidders to specific provisions in the COR without comment. Through a gradual process of eliminating bidders who could not correct disqualifying deficiencies, the field was narrowed to two -- MPE and plaintiff Bollinger Machine Shop. A third bidder, Eastern Marine, Inc., challenged the Coast Guard's decision to eliminate it for proposing a WPB that was "dissimilar" from its Parent Craft, but the Coast Guard's decision was upheld by the United States Court of Claims in Eastern Marine, Inc. v. United States, 5 Cl. Ct. 34 (1984). In that action, plaintiff Bollinger intervened along with MPE to defend the Coast Guard's decision to eliminate Eastern Marine from the competition.

 4. Plaintiff submitted its "best and final offer," and MPE submitted at least two "best and final offers," one with WPB's containing 12-cylinder engines and another with 16-cylinder engines. On May 11, 1984, the Coast Guard awarded the contract to MPE for production of up to 16 WPB's with 12-cylinder engines, for an approximate price of $ 76 million. Shortly thereafter, plaintiff initiated this lawsuit, alleging that the Coast Guard's selection of MPE's 12-cylinder craft was not permissible under the COR, primarily because the MPE Parent Craft was believed to contain a 20-cylinder engine, making substitution of the 12-cylinder engine "dissimilar" and inconsistent with the Parent Craft concept.

 B. Specific Requirements of the COR

 5. The Coast Guard's requirements for each competitor's Parent Craft and WPB's were set forth in the COR. Section 042b, " Parent Craft ", states that the "Parent Craft shall have been previously designed, built, and operated as a patrol craft." Among other requirements, § 042b states that

 
The Parent Craft shall meet the requirements of COR 100b (Structure), 200a (Propulsion Plant), and 200b (Propulsion Plant Rating).
 
The Parent Craft shall have demonstrated the speed and seakeeping specified in Section 070b. . . .

 6. The "Propulsion Plant" requirements that the Parent Craft was required to satisfy are contained in § 200a. These critical requirements also had to be met by the "daughter" WPB. The requirements of § 200a were deemed "pass-fail" requirements by the Coast Guard. Section 200a, entitled "Propulsion Plant, General," reads as follows:

 
200a. General

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