Biometrics's lack of financial health, whereas Digital Biometrics
(while not disputing the losses) points to the installation of
new management and the company's subsequent steady improvements
in its financial situation as an indication of improved financial
health. ANADAC provides no facts to rebut Digital Biometrics's
conclusion. To be determined financially responsible, a
prospective contractor must have adequate financial resources to
perform the contract, or the ability to obtain them.
48 C.F.R. § 9.104-1.
Based on this record, the court finds a reasonable basis
existed for the INS's financial responsibility determination.
See M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301
(D.C.Cir. 1971) ("If the court finds a reasonable basis for the
agency's action, the court should stay its hand even though it
might, as an original proposition, have reached a different
conclusion."). Further, particular deference is due a contracting
officer's determination involving the responsibility of a bidder
to perform under the contract. See Inter-Con Securities Systems
v. Orr, 574 F. Supp. 250, 254 (D.D.C. 1983) (citing Trilon Educ.
Corp. v. United States, 578 F.2d 1356, 1358 (Ct.Cl. 1978)).
Accordingly, on the basis of the record before the court now, the
court concludes that ANADAC has not demonstrated a likelihood of
success on the merits on the issue of the INS's determination of
Digital Biometrics's financial responsibility.
D. The Eleven-Month Delivery Schedule
ANADAC claims that it proposed its bid based on a 60-day
delivery schedule, as "required" by the terms of its Blanket
Purchase Agreement. Because of this, ANADAC asserts, it
calculated into its bid the extra cost of adding a second shift
at its factory, as well as "borrowing" live-scan units designated
for other customers. (Compl. at ¶ 23.) It bid on this basis,
ANADAC claims, because the Statement of Work required bidders to
make their offers comply with the terms of each bidder's Blanket
ANADAC asserts that with respect to Digital Biometrics the INS
either waived or changed the requirement that the bids must
comply with the terms of the Blanket Purchase Agreement.
Specifically, ANADAC asserts that Digital Biometrics's Blanket
Purchase Agreement and Federal Supply Schedule called for a
90-day or 120-day delivery schedule whereas the INS's order
provided a delivery schedule set out over an eleven-month span.
ANADAC asserts that this discrepancy, i.e., 90 to 120 day
delivery term in the Blanket Purchase Agreement versus the
eleven-month delivery schedule set out in the order, reflected
the INS's waiver or change of the terms of Digital Biometrics's
Blanket Purchase Agreement.
By waiving or changing the requirement that Digital Biometrics
must comply with the terms of its Blanket Purchase Agreement,
ANADAC alleges, the INS placed it (ANADAC) at a competitive
disadvantage. ANADAC further alleges that this change or waiver
violated federal procurement of goods laws and constituted an
arbitrary and capricious agency action lacking a rational basis.
Based on the record before the court at this stage in the
litigation, the court concludes that ANADAC has not demonstrated
a likelihood of success on the merits on this claim. Digital
Biometrics's Federal Supply Schedule, dated September 8, 1998,
(and covering the contract period of September 1, 1998, to August
31, 2003) includes the term that the time of delivery after
receipt of order shall be 90 — 120 days for "normal" orders and
on a case-by-case basis for expedited orders. (Administrative R.
Tab 7, p. 1C.) The INS argues that this constitutes a delivery
"term," not a delivery "schedule." The INS argues that Digital
Biometrics's Blanket Purchase Agreement did not contain a
delivery schedule; rather, it described the delivery terms based
on receipt of orders. (See Def.'s Opp'n at 12.) In other words,
Blanket Purchase Agreement contained delivery terms that depended
upon the placement of orders and did not represent a standalone
contract. (See Def.'s Opp'n at 13.)
This distinction means that the Statement of Work (which
specified the terms of the Blanket Purchase Agreement, thereby
incorporating the terms of the Federal Supply Schedule) required
Digital Biometrics to stand ready to deliver live-scan systems by
90 to 120 days after the INS placed its order (for normal
orders). Likewise, the INS could not require the delivery of any
live-scan systems from Digital Biometrics in less than 90 to 120
days on a normal basis.
Thus, these delivery terms did not impose an affirmative
requirement on the INS to require delivery within the specified
"terms" (i.e., 90 to 120 days). Rather, the terms act as an
affirmative requirement to deliver within that time frame if
requested by the INS. Consequently, these terms did not mandate
that Digital Biometrics must deliver all 276 systems within 90 to
120 days after the award of the contract (unless the INS chose to
order all 276 systems within that time frame). ANADAC, on the
other hand, argues that the contract for 276 live-scan systems
constitutes the "order," meaning that Digital Biometrics's
Federal Supply Schedule requires delivery within 90 to 120 days
of the contract date, assuming a normal order.
The INS's explanation of the delivery schedule appears
plausible. The INS's "Order for Supplies or Services," awarded to
Digital Biometrics on January 5, 1999, included the following
Months After Award Quantity
(Administrative R., Tab 29.)
Applying the agency's explanation, when the INS placed its
order with Digital Biometrics in January 1999, it had to allow
Digital Biometrics the period of time specified in the Blanket
Purchase Agreement before it could require Digital Biometrics to
deliver the live-scan systems. Thus, the INS had to allow Digital
Biometrics a minimum of 90 to 120 days notice for the normal part
of the order, and it had to work out delivery on a case-by-case
basis for the expedited part of the order. Conversely, Digital
Biometrics had to be ready to deliver any systems ordered within
90 to 120 days for normal orders and on a case-by-case basis for
Hence, as the delivery schedule shows, the INS's order required
Digital Biometrics to deliver the first twelve systems in sixty
days (the expedited portion of the order) and the remaining 264
live-scan systems after a 90-day period. Apparently Digital
Biometrics found the delivery requirement for the first twelve
units acceptable in that it fell within case-by-case basis for
expedited orders, as specified in the Federal Supply Schedule.
Because the court finds the INS's explanation of the delivery
requirements plausible, the court rules that ANADAC has failed to
establish that the INS waived or changed the terms of the
Statement of Work with respect to Digital Biometrics's delivery
"It is a fundamental principal of government procurement law
that an agency must treat all offerors equally and evaluate their
offers consistently against the solicitation's requirements."
Infrared Techs. Corp., B-255709.2, 95-2 CPD ¶ 132 (C.G. Sept.
14, 1995). The affidavits of ANADAC's and Digital Biometrics's
representatives indicate that each party gave the same
interpretation to the Statement of Work's delivery requirements.
Additionally, both parties bid on the contract on the same basis.
In this respect, as Barry Fisher stated in his affidavit,
at no time during the bidding process did Digital
Biometrics ever propose an 11-month schedule or any
relaxation or extension of the schedule. As Digital
Biometrics' proposal makes clear, Digital Biometrics
bid for the award on the basis of 60 day delivery. .
. . It was the INS who asked that the products be
delivered over an 11-month period, and Digital
Biometrics first learned where and when the agency
wanted to receive delivery at the time Digital
Biometrics received the award on January 5, 1999.
(Intervenor's Opp'n Mem. Ex. at ¶ 12.)
Based on the record at this stage of the litigation, the court
concludes that the parties stood on equal footing when bidding on
the Statement of Work. Additionally, the court concludes that the
INS's eleven-month delivery schedule did not contravene Digital
Biometrics's Blanket Purchase Agreement and Federal Supply
Schedule. Therefore, the eleven-month delivery schedule comported
with the Statement of Work. Consequently, the court concludes
that ANADAC has not demonstrated a substantial likelihood of
success on the merits on this basis as well. Accordingly, the
court concludes that ANADAC has not met the heavy burden required
for the issuance of a preliminary injunction. See Marine Transp.
Lines, 623 F. Supp. at 335.
Having considered the plaintiff's motion, and oppositions
thereto, as well as the administrative record, the court
concludes that Plaintiff ANADAC has not demonstrated a
substantial likelihood of success on the merits.*fn3 Therefore,
the court concludes that ANADAC has failed to meet the heavy
burden necessary for the issuance of a preliminary order.
Accordingly, the court denies its request for a preliminary
injunction. Because of this ruling, the court also denies
ANADAC's motion for expedited discovery and to shorten the time
Additionally, the court has not granted leave for INS to file
its surreply memorandum in opposition to the plaintiff's request
for a preliminary injunction, because the submission appears to
constitute an opposition to ANADAC's reply memorandum and neither
the local rules nor the court's January 27, 1999 Order granting
ANADAC's and the INS's consent motion permits such a submission.
Consequently, the court denies as moot ANADAC's motion to strike