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ELCON ENTERPRISES v. WASHINGTON METRO. AREA TRANSI

May 31, 1991

ELCON ENTERPRISES, INC., Plaintiff,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY and SCHINDLER ELEVATOR CORPORATION, Defendants



The opinion of the court was delivered by: HARRIS

 Now before the Court are the Washington Metropolitan Area Transit Authority's (WMATA's) motion for summary judgment and the cross-motions for summary judgment filed by plaintiff Elcon Enterprises, Inc., and defendant Schindler Elevator Corporation. *fn1" For the reasons set forth below, defendants' motions are denied and plaintiff's motion is granted, with limited relief.

 Background2

 In April 1989, WMATA issued RFP-N-47886, requesting proposals for a three-year contract to maintain the 460 escalators in its Metrorail system (Metro). *fn3" WMATA procurement regulations require that services of this type be procured by competitive negotiation, and that award "be made to that responsible proposer whose proposal is most advantageous to the Authority, price, technical and other factors considered." *fn4" Specifically, the regulations provide, in relevant part:

 
7. RESPONSIBLE PROSPECTIVE CONTRACTORS
 
a. General Policy. Contracts shall be awarded only to responsible prospective contractors who possess the capability to successfully perform a proposed contract. Consideration shall be given to integrity, record of past performance, availability of necessary financial and technical resources, and other relevant matters.
 
g. Determinations of Responsibility or Non-Responsibility
 
No contract shall be awarded to any person or firm unless the Contracting Officer first makes an affirmative determination that the prospective contractor is responsible. . . . If a Contracting Officer has doubts about the productive capacity or financial strength of a prospective contractor which cannot be resolved affirmatively, he or she will determine that the prospective contractor is nonresponsible. A determination and findings supporting the determination will be prepared and placed in the contract file.
 
12. SELECTION OF CONTRACTOR. Upon the conclusion of discussions and after the review of "best and final offers", the Contracting Officer shall select that offeror whose proposal he determines to be most advantageous to the Authority, price and all other factors considered. . . .
 
14. APPROVAL OF AWARD. When an offeror is selected for award, the Contracting Officer will request approval of the award by preparing WMATA Form "Action No. 2, Request for Approval of Award" in accordance with Section 15, Chapter I. All necessary concurrences, including General Counsel, shall be obtained.

 In addition, a contract for an amount in excess of $ 100,000.00 requires final approval by WMATA's Board of Directors.

 The Request for Proposal (RFP) stated that the "procurement would be conducted utilizing the procedures of competitive negotiation of technical and price proposals." Under the heading "INSTRUCTIONS TO PROPOSERS," the following relevant provisions were set forth:

 
9. Negotiations. After receipt of initial proposals, written or oral discussions may be conducted with all responsible proposers. Factors (including technical quality) will be considered to the extent necessary to resolve uncertainties relating to the technical requirements. Basic questions will not be left for later agreement during supplemental proceedings. When negotiations are conducted with more than one proposer, the relative price positions shall not be revealed. If negotiations are conducted with several proposers whether successively or not, all proposers selected to participate in negotiations will be offered an equal opportunity to submit revisions as required. Complete agreement on all basic requirements shall be the objective of these negotiations.
 
11. Proposal Evaluation. Initially technical proposals will be evaluated based on material submitted in response to Paragraph 23, page RFP-9, entitled "TECHNICAL PROVISIONS REQUIREMENTS". Upon determination that the proposer meets the minimum requirements of Paragraph 23, successful proposal will be evaluated based on the factors specified in Paragraph 25, EVALUATION CRITERIA. The relative weight of importance of various items listed in the requirements has been pre-determined by a numerical scoring method and is known only by the Authority. On the basis of these submissions and their weight, the technical proposal will be scored on the established scale. The business/cost proposal will be evaluated based on the material submitted in response to Paragraph 24, page RFP-9 and 10, entitled "BUSINESS/ COST PROPOSAL REQUIREMENTS." The proposal will be reviewed on the basis of all proposers being technically acceptable. Essentially, business/cost proposal will be evaluated on the amount, depth and utility of the information supplied to determine which proposal presents the most favorable overall cost parameters.
 
The Authority's award decision shall be based on the most favorable combination of technical score and total price.
 
12. Basis for Award. The contract shall be awarded to that proposer submitting the most favorable technical and business/cost proposal as determined through the evaluation procedures established for this procurement. Cost will be a factor in the award decision, although the award may not necessarily be made to that proposer submitting the lowest total price. Likewise, award will not necessarily be made for technical capabilities that would appear to exceed that needed for successful performance of the work.
 
13. Award of Contract. The Authority reserves the right to reject any or all proposals at any time prior to award; to negotiate with any or all proposers; to award a contract to that responsive, responsible proposer whose proposal conforming to this Request for Proposal, is most advantageous to the Authority, all factors considered. Technical proposal will be carefully evaluated to determine the proposer's capability to perform this contract. Proposers are advised that award may be made without discussion or any contact with the proposers concerning the ...

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