The opinion of the court was delivered by: PENN
JOHN GARRET PENN, United States District Judge
The plaintiff filed this action pursuant to the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.; the Tucker Act, 28 U.S.C. § 1346(a)(2); the Armed Services Procurement Act, as amended by the Competition in Contracting Act, 10 U.S.C. § 2301 et seq., and 18 U.S.C. § 1905.
The case is now before the Court on cross motions for summary judgment filed by the parties. After giving careful consideration to the motions, the oppositions thereto, and the record in this case, the Court concludes that the plaintiff's motion should be denied, the defendants' motion should be granted, and the case should be dismissed with prejudice.
Briefly, the underlying facts are as follow: The plaintiff is engaged in the manufacture and production of electronic, electro-mechanical and optical devices. On or about November 3, 1986, the Department of the Army, through the United States Army Missile Command (MICOM), Redstone Arsenal, Alabama, issued Request for Proposals No. DAAH01-87-R-0098, hereinafter sometimes referred to as "the RFP", for the procurement of the TOW II subsystem components for the Bradley Fighting Vehicle comprised of Integrated Sight Units, Digital Command Guidance Electronics, and Turret Cables. The purpose of the procurement is to develop a second source for the production of the TOW II subsystem in accordance with Department of Defense procurement policy. Hughes Aircraft Corporation, which developed and designed the TOW II subsystem, is the only current manufacturer of the TOW II.
The RFP advised prospective offerors that MICOM intended to award a firm-fixed price contract to the responsive, responsible offeror submitting the lowest aggregate price. MICOM issued 7 amendments to the RFP prior to the date for submission of the initial offer.
On or about March 13, 1987, the plaintiff, in conjunction with Chrysler Motors Corporation, Military-Electronic Systems, submitted a timely offer to MICOM in response to the RFP as amended. The plaintiff and Chrysler planned to perform the contract as a joint venture. Offers were also submitted by Fraser-Volpe (Fraser), Emerson-Kollsman, Texas Instruments (TI), and Contraves-Goerz Corporation. By letter dated April 16, 1987, Robert White, the MICOM Contracting Officer, notified plaintiff that MICOM had closed all discussions with offerors and that a Best and Final Offer (BAFO) was to be submitted no later than April 30, 1987. Plaintiff contends that MICOM did not conduct technical or price discussions with plaintiff prior to MICOM's request for BAFOs but that MICOM did conduct discussions with other offerors prior to the request for BAFOs.
Plaintiff submitted its first BAFO on or about April 28, 1987. Plaintiff contends that it was the responsive, responsible offeror offering the lowest price to the Government.
On or about May 7, 1987, MICOM informed plaintiff that discussions were being reopened allegedly to allow offerors the opportunity to correct omissions/deficiencies in the offerors' production plans. By letter dated May 8, 1987, MICOM advised that it was requesting a second BAFO in order to evaluate proposals for "technical acceptability." MICOM advised plaintiff that its production plan "did not address turret cable procurement nor assembly." Plaintiff contends that "technical acceptability" was not set forth as a basis for evaluation in the RFP. Plaintiff also contends that it expressly addressed the procurement of turret cables in its initial proposal dated March 13, 1987.
Plaintiff advised MICOM that the turret cable procurement was addressed in the initial proposal and that MICOM's request for additional information did not constitute a valid basis for reopening discussions.
By letter dated June 4, 1987, MICOM closed discussions and established June 11, 1987 as the deadline for the second BAFO. Plaintiff submitted a second BAFO on June 9, 1987.
By letter dated July 13, 1987, MICOM reopened negotiations for a third time "in order to make necessary changes to the RFP and to conduct further discussions with offerors to ensure complete understanding of the requirements of the solicitation." At the same time, Amendment 0008 was issued. Plaintiff contends that the amendment had only minimal impact on the price offers. The lowest offer on the third BAFO was submitted by TI, while plaintiff was third. The contract was awarded to TI.
The defendants move for summary judgment on the ground that the record establishes that there was a rational basis for ...