Free Response to Motion - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) INTERNATIONAL DATA PRODUCTS ) CORP., ) ) Plaintiff, ) ) v. ) No. 01-459C ) (Judge George W. Miller) THE UNITED STATES, ) ) Defendant. ) ____________________________________)

DEFENDANT'S OPPOSITION TO PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT AND REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY

PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director OF COUNSEL: E. MICHAEL CHIAPARAS Deputy Director Contract Disputes Resolution Center Defense Contract Management Agency 10500 Battleview Parkway, Suite 105 Manassas, VA 20109 MAJ. JACQUELINE POSNER Trial Attorney Commercial Litigation Division Air Force Legal Services Agency 1501 Wilson Boulevard Arlington, VA 22209 DEBORAH A. BYNUM Assistant Director

JOHN H. WILLIAMSON Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0277 Fax: (202) 307-0972 E-mail: [email protected] Attorneys for Defendant

October 15, 2004

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TABLE OF CONTENTS INDEX TO SUPPLEMENTAL APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. The Government Is Not Liable To IDP For Any Termination Costs Because The Government Met The Contract Minimum Before The Contract Was Terminated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. B. II. The Extent Of The Government's Liability Under The Desktop V Contract Was To Order The Contract Minimum . . . . . . . . 3 The Authorities Upon Which IDP Relies Involved Contracts That Are Fundamentally Dissimilar To The Desktop V Contract . . . . 7

Termination Of The Desktop V Contract Did Not Terminate IDP's Obligation To Provide Warranty And Upgrade Services The Government Had Paid For . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

ii

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INDEX TO SUPPLEMENTAL APPENDIX Tab 18 19 Page October 15, 2004 Declaration of John Williamson . . . . . . . . . . . . . . . . . . . . . . . . . 328 July 17, 1995 "Memorandum For All Potential Desktop V Offerors" . . . . . . . . . . . 329

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TABLE OF AUTHORITIES CASES Albano Cleaners, Inc. v. United States, 455 F.2d 556 (Ct. Cl. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Delfour, Inc., PSBCA No. 3731, 95-1 B.C.A. ¶ 27,524 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 E.H. Sales, Inc. v. United States, 340 F.2d 358 (Ct. Cl. 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 11, 12 Goldwasser v. United States, 325 F.2d 722 (Ct. Cl. 1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 12, 13 J.D. Shotwell Company,, ASBCA No. 8961, 65-2 B.C.A. ¶ 5243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 New York Shipbuilding Co.,, ASBCA No. 15,443, 73-1 B.C.A. ¶ 9852 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 Okaw Industrial, Inc., ASBCA No.17,864, 77-2 B.C.A. ¶ 12,793 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 Rice Lake Contracting, Inc. v. United States, 33 Fed. Cl. 144 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Torncello v. United States, 681 F.2d 756 (Ct. Cl. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Travel Centre v. Barram, 236 F.3d 1316 (Fed. Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Varilease Technology Group, Inc. v. United States, 289 F.3d 795 (Fed. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Western States Painting Co., ASBCA No. 13843, 69-1 B.C.A. ¶ 7616 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 STATUTES 15 U.S.C. § 637(a)(21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 REGULATIONS 48 C.F.R. § 49.103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 C.F.R. § 49.603-1(b)(7)(v) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 iv

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) INTERNATIONAL DATA PRODUCTS ) CORP., ) ) Plaintiff, ) ) v. ) No. 01-459C ) (Judge George W. Miller) THE UNITED STATES, ) ) Defendant. ) ____________________________________) DEFENDANT'S OPPOSITION TO PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT AND REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY Pursuant to Rule 7.1(e) of the Rules of the Court of Federal Claims ("RCFC"), defendant, the United States, files its opposition to plaintiff's, International Data Products Corporation ("IDP"), cross-motion for summary judgment and reply in support of defendant's motion for summary judgment as to liability. As IDP acknowledges, the Desktop V contract was an indefinite-delivery, indefinitequantity ("IDIQ") contract. PPFUF1 ¶ 3. Although IDP tries to recharacterize the contract as "committing" the Government to ordering $100 million in products, the Government's only liability under the contract was to order the contract minimum, which IDP agrees was $100,000. Pl. Br.2 12. The three Court of Claims decisions relied upon by IDP in its brief involved very different contracts than the Desktop V contract, and thus, unlike the more recent Federal Circuit decisions cited in our opening brief, do not govern this case. IDP has also failed to advance any authority to support its assertion that the Government is liable for the costs that IDP allegedly incurred in providing the warranty and
1

20, 2004.
2

"PPFUF" refers to Plaintiff's Proposed Findings of Uncontroverted Fact, filed August

"Pl. Br." refers to Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's Motion for Summary Judgment As To Liability, filed August 20, 2004.

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upgrade services that the Government had paid for. Thus, the Court should grant defendant's motion for summary judgment, and deny IDP's cross-motion for summary judgment as to liability. ARGUMENT I. The Government Is Not Liable To IDP For Any Termination Costs Because The Government Met The Contract Minimum Before The Contract Was Terminated In its opening brief, IDP seeks to avoid the undisputed fact that the Desktop V contract is an IDIQ contract, urging the Court to focus instead upon the termination for convenience clause of the contract. Pl. Br. 10. But it is not necessary for the Court even to reach the question of interpreting the language of the termination for convenience clause. As shown in our opening brief, the Federal Circuit has ruled that once the Government has met the contract minimum of an IDIQ contract, the Government has no further liability of any kind, whether for termination costs or anything else. Def. Br.3 7-9 (citing Varilease Technology Group, Inc. v. United States, 289 F.3d 795, 799 (Fed. Cir. 2002) and Travel Centre v. Barram, 236 F.3d 1316, 1318-19 (Fed. Cir. 2001)). IDP failed to address, let along distinguish, Varilease and Travel Centre in its opposition to our summary judgment motion, and is now foreclosed from addressing them for the first time in its reply in support of its cross-motion for summary judgment as to liability. To avoid the effect of Varilease and Travel Centre, IDP resorts to two principal arguments. First, IDP tries to rewrite the Desktop V contract, arguing that the Desktop V contract required the Government to order more than the $100,000 contract minimum. Pl. Br. 11-13. Second, IDP disregards Varilease and Travel Centre, and relies upon three inapposite Court of Claims decisions that involved contracts that were fundamentally dissimilar to the Desktop V contract. Pl. Br. 13-16 (citing Albano Cleaners, Inc. v. United States, 455 F.2d 556 (Ct. Cl. 1972); E.H. Sales, Inc. v. United States, 340 F.2d 358 (Ct. Cl.

3

"Def. Br." refers to Defendant's Motion for Summary Judgment, filed July 21, 2004. 2

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1965); and Goldwasser v. United States, 325 F.2d 722 (Ct. Cl. 1963)). Both of these arguments are rebutted below. A. The Extent Of The Government's Liability Under The Desktop V Contract Was To Order The Contract Minimum

IDP tries to read into the Desktop V contract obligations beyond those found in the language of the contract. IDP asserts that the $100,000 "minimum amount for award was never intended to be the bottom line commitment to IDP or from IDP." Pl. Br. 12. Yet IDP fails to identify precisely what the "bottom line commitment" the Government made to IDP if it were not the $100,000 figure that the contract plainly identified in all capitals as the "CONTRACT MINIMUM." Def. App. 9. IDP's assertion ignores the nature of an IDIQ contract, as explained in Varilease, Travel Centre, and the other cases cited in our opening brief, which have ruled that the Government has no further liability under an IDIQ contract once the contract minimum is satisfied. Def. Br. 7-10. IDP acknowledges that the Desktop V contract is an IDIQ contract. PPFUF ¶ 3. IDP also asserts that "the [Air Force] explained" that the "'stated minimum quantity of supplies' to which the Government is committing is at least the $100,000,000 estimated minimum (or, perhaps, the estimated maximum, though we need not reach that issue), and not the $100,000 minimum amount for award." Pl. Br. 12 (emphasis added). There are two principal inaccuracies in this assertion. First, the phrase quoted by IDP in its brief ­ "stated minimum quantity of supplies" ­ was quoted from FAR 16.504(a)(1) in an Air Force legal memorandum that was inadvertently produced by defendant during discovery, and does not appear in the Desktop V contract. Pl. App.4 USAF 4519, ¶ 4. Contrary to what IDP suggests, nowhere in the legal memorandum or anywhere else did the Air Force "explain" or make any statement to the effect that the

"Pl. App." refers to the documents attached to IDP's proposed findings of uncontroverted facts. Because IDP has not numbered its appendix, defendant has adopted IDP's practice of identifying the pages of IDP's appendix by Bates number. 3

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Government was "committing" to anything more than the $100,000 contract minimum specified in the Desktop V contract. Id. USAF 4519-20; Pl. Br. 12. Second, neither the Air Force legal memorandum nor the Desktop V contract contain any reference to "the $100,000,000 estimated minimum" that IDP refers to in its brief. Pl. Br. 12. The Desktop V contract stated that the "total estimated quantities" for the Section 8(a) contractors was "$100M." Def. App. 9 (emphasis). No $100 million estimated "minimum" was ever adopted in the Desktop V contract. As IDP acknowledges, the parties "never changed the $100,000 minimum amount for award" when the estimated quantities were added to the new Section B.2.c of the contract as a result of the settlement agreement referred to by IDP. Pl. Br. 12; PPFUF ¶¶ 4, 6. Because the language of the Desktop V contract does not support IDP's assertions that the Government had made some form of "commitment" to IDP to place $100 million in orders, IDP looks beyond the contract, quoting an Air Force statement made in February 1998 that it "'expected to place many more orders with IDP over the next several years.'" Pl. Br. 12. This statement did not give rise to any contractual obligation to place those orders, but was made as part of the Air Force's request that the Small Business Administration ("SBA") waive the requirement to terminate the Desktop V contract because IDP had given up its Section 8(a) status. PPFUF ¶ 10. No matter what expectations IDP may have developed about orders that it expected to receive from the Air Force, the Desktop V contract only required the Government to meet the contract minimum, which the Government did 350 times over by ordering and paying for $35 million in products before the contract was terminated. Lacking any support for its position in the contract, IDP contends that "the law does not permit the Government to lead a contractor to believe that a minimum of $100,000,000 in orders will be placed . . . but then to terminate for convenience without liability after placing substantially less orders." Pl. Br. 11-12 (emphasis added). IDP fails to identify what case 4

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law or statutes are "the law" upon which it relies. IDP again misstates by three orders of magnitude the undisputed contract minimum, which was $100,000, not $100 million. Moreover, the estimated quantity of $100 million cannot fairly be characterized as a "minimum" when the contract made clear that $100 million was the maximum order that IDP could expect without receiving authorization from the contracting officer: "[t]he Contractor shall not accept any order which would exceed the estimated quantities valued at $100M unless authorized by the Contracting Officer to do so." Def. App. 9. Because the Government exceeded the $100,000 contract minimum many times over, it is not necessary for the Court to interpret the termination for convenience clause incorporated into the Desktop V contract, DFARS 252.211-7000 (March 1991). Def. App. 66-68. As one authority noted, the termination for convenience clause in an IDIQ contract only comes into play before the contract minimum is met: "[i]ndefinite-quantity contracts contain a Termination for the Convenience of the Government clause which permit the Government to terminate the contract before ordering the minimum quantity." Cibinic & Nash, Formation of Government Contracts 1240 (3d ed. 1998) (emphasis added). If the Court deems it necessary to interpret the termination for convenience clause, the Court should reject IDP's interpretation of the term "total contract price" in DFARS 252.2117000. Pl. Br. 11. The termination for convenience clause states that "[i]n no event shall the sum of the termination amounts payable and any amounts paid for items delivered under the contract exceed the total contract price." Def. App. 67, ¶ (b)(5). IDP contends that "the 'total contract price' is, at least, the minimum estimated quantity ­ in this case, $100,000,000." Pl. Br. 11. Without identifying any specific cases, IDP contends that "the law" supports this contention. Id. IDP is wrong. In a case involving a termination for convenience of an indefinite quantities contract, the Armed Services Board of Contract Appeals ("ASBCA") stated, "[w]e conclude that the contract price, for the purpose of establishing the payment limit set forth in the Termination 5

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for Convenience provisions, was the price for the minimum value of services the Government was obligated to procure plus the value of any services it ordered in excess of that minimum." Okaw Indus., Inc., ASBCA No. 17,864, 77-2 BCA ¶ 12,793. In Okaw, the ASBCA rejected the same assertion by the contractor that IDP makes here: that the contract price was the estimated amount. Id. The ASBCA stated: "appellant knew, or should have known, that the Government was obligated only to order the specified minimum quantity set forth in the contract. Even though the appellant was obligated to provide services in excess of that minimum quantity if ordered, the Government was not obligated to order such services." Id. Likewise, the references in Desktop V to "user needs" did not convert the estimated quantity of $100 million into the contract minimum, which remained $100,000. In a case involving an indefinite quantities contract with a contract minimum of $10,000, the Postal Service Board of Contract Appeals ("PSBCA") rejected an argument by the contractor that it expected to receive the "total quantity of work" of $1 million, stating that "[a]ppellant's 'understanding' with respect to the amount it would receive or the amount of work 'traditionally' received by companies in its position provides no basis for ignoring the plain language of the contract." Delfour, Inc., PSBCA No. 3731, 95-1 BCA ¶ 27,524. If the Okaw standard were applied to paragraph (b)(5) of the termination for convenience clause in the Desktop V contract, the "total contract price" would be, at most, the approximately $35 million in products that the Air Force ordered and paid for during the nearly two and one-half years of the contract, from award in May 1997 until termination in October 1999. Def. App. 67, ¶ (b)(5). The financial records produced by IDP, and submitted as part of defendant's appendix, provide undisputed proof that IDP received payment for all the orders that the Air Force placed, which exceeded the contract minimum 350 times. The Government owes no remaining liability to IDP under the Desktop V contract. Rice Lake Contracting, Inc. v. United States, 33 Fed. Cl. 144, 154 (1995) (no liability for termination 6

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for convenience of indefinite quantities contract where "government exceeded the minimum quantity by eleven times the stated minimum"). In addition, paragraph (b)(7) of the termination for convenience clause of the Desktop V contract states that "The Government will make no payment for . . . . (v) An amount which exceeds the product of the unit price of the terminated units multiplied by the number of units in process under this contract at the time of termination." Def. App. 67, ¶ (b)(7)(v). By this measure, too, the Government owes nothing more to IDP, because all of the units ordered by the Government have been delivered and paid for in full. Def. App. 102-205. B. The Authorities Upon Which IDP Relies Involved Contracts That Are Fundamentally Dissimilar To The Desktop V Contract

IDP contends that the Court of Claims "has refused to equate `total contract price' or the Government's other contract mandated minimal payment requirements with a minimum contract value in an indefinite quantities contract that the Government terminates early." Pl. Br. 13. IDP relies upon three Court of Claims decisions in support of this assertion: Albano Cleaners, Inc. v. United States, 455 F.2d 556 (Ct. Cl. 1972); E.H. Sales, Inc. v. United States, 340 F.2d 358 (Ct. Cl. 1965); and Goldwasser v. United States, 325 F.2d 722 (Ct. Cl. 1963)). Pl. Br. 13-16. Unlike the ASBCA decision in Okaw, none of the three cases cited by IDP interpreted the meaning of "contract price" or "minimal payment requirements" for purposes of determining whether the Government was liable for terminating for convenience an indefinite quantities contract. Moreover, as shown below, all three Court of Claims decisions relied upon by IDP are inapposite, because they involved contracts that were fundamentally dissimilar to the Desktop V contract. Albano Cleaners and Goldwasser involved requirements contracts, and E.H. Sales involved a contract for a definite quantity of goods. In contrast, the much more recent Federal Circuit decisions that we relied upon in our opening brief, Varilease and Travel Centre, involved IDIQ contracts similar to the Desktop V contract. Def. Br. 7-9. Varilease and Travel Centre govern the specific question at issue in 7

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this case: whether the Government has any further liability when it terminates an IDIQ contract after the Government has already exceeded the contract minimum. In Travel Centre, the Federal Circuit specifically ruled that the contractor was not entitled to any legal relief for a termination for convenience by the Government after the contract minimum was met. 236 F.3d at 1319. The first case relied upon by IDP, Albano Cleaners, involved a contract to launder and repair garments at unit prices for the Navy in five zones around Norfolk, Virginia. 455 F.2d at 558. The contract contained what the Court of Claims referred to as an "'Indefinite Quantities' section," which stated that the Government was required to "'order supplies hereunder having an aggregate value at the unit prices specified herein of not less than $10.00.'" Id. at 561. Although IDP contends that the Court of Claims "refused to equate 'total contract price' or the Government's other contract mandated minimal payment requirements with a minimum contract value," the court made no such ruling in Albano Cleaners, or in the other two cases upon which IDP relies. Pl. Br. 13. Instead, the court's ruling in Albano Cleaners turned upon its determination that the contract at issue granted the contractor "a right to receive whatever business of the type covered by the contract was generated in the specified contract areas ("Zones") for the full one-year contract period. Defendant could not, after ordering $10 worth of services, thereupon further disregard the contract and order the identical services elsewhere." Id. at 561 (emphasis added).5 Thus, the Court of Claims determined that the laundry contract at issue in Albano Cleaners was a requirements contract, which required the Government to satisfy all of its requirements from the contractor during the term of the contract. Id. The laundry contract in Albano Cleaners is fundamentally different from the Desktop V contract, which is an IDIQ contract rather than a requirements contract. The Federal

This passage was among the portions of the Albano Cleaners decision omitted from the block quote from Albano Cleaners in IDP's opening brief. Pl. Br. 14. 8

5

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Circuit has explained the difference between an IDIQ contract and a requirements contract: "An ID/IQ contract differs from a requirements contract in that the former does not oblige the buyer to purchase more from the seller than a stated minimum quantity, whereas the latter obliges the buyer to buy from the seller all of its requirements of the relevant goods or services." Varilease, 289 F.3d at 799 (citing Travel Centre, 236 F.3d at 1318-19). In Travel Centre, the court stated that "once the government has purchased the minimum quantity stated in an IDIQ contract from the contractor, it is free to purchase additional supplies or services from any other source it chooses. An IDIQ contract does not provide any exclusivity to the contractor." 236 F.3d at 1319. It is undisputed that the Desktop V contract meets the essential elements of a valid IDIQ contract. IDP has stated that the Desktop V contract "was an indefinite-delivery, indefinite-quantity (ID/IQ) contract." PPFUF ¶ 3. In addition, it is undisputed that the Desktop V contract stated, under the heading "CONTRACT MINIMUM/MAXIMUM," a contract minimum quantity of $100,000. DPFUF ¶ 56; Def. App. 9. If an indefinite quantities contract does not contain a contract minimum, it will be interpreted as a requirements contract. Torncello v. United States, 681 F.2d 756, 761-62 (Ct. Cl. 1982). It is also undisputed that the Government far exceeded the contract minimum by ordering and paying for approximately $35 million in products during the life of the Desktop V contract. Pl. Br. 11 n.3; DPFUF ¶ 14. Further, unlike the requirements contract in Albano Cleaners, the solicitation that resulted in the Desktop V contract informed offerors that "[t]he Government intends to select three contractors for the Desktop V program," one of whom would be a Section 8(a) contractor. Def. Supp. App. 329. As a result of a bid protest suit filed by a disappointed bidder, there was not just one, but two Section 8(a) contractors for the Desktop V contract: IDP stated that it does not contest Defendant's Proposed Findings of Uncontroverted Facts ("DPFUF") filed July 21, 2004. PPFUF 1 n.1. Thus, they are deemed established for purposes of defendant's motion for summary judgment. RCFC 56(h)(3). 9
6

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Dynamic Decisions, Inc. and IDP. Pl. App. USAF 4527-28. The Desktop V contract did not prohibit the Government from ordering from IDP only the $100,000 contract minimum, and placing all its other orders for desktop computers and associated products and services with other Desktop V contractors. Similarly, in Travel Centre, the Federal Circuit stated that the solicitation contemplated that "one, two, or three separate" IDIQ contracts might be awarded "to provide the same travel management service." 236 F.3d at 1317. Even if IDP had been selected as the only contractor for the Desktop V contract, the Government was not required to place all its orders with IDP. In Varilease, the contractor was the only company that had entered into a contract with the Government to provide maintenance for Unisys computers owned by the Defense Information Systems Agency. 289 F.3d at 797. Although the contract stated "[t]his is an indefinite-delivery, indefinite-quantity (ID/IQ) contract," the contractor argued that the contract was a requirements contract. Id. at 797-98. The Federal Circuit rejected this contention because the contract expressly stated that it was an IDIQ contract, and also because "[n]owhere in the contract is there language, express or implied, obligating the government to purchase its entire requirements for maintenance of agency-owned Unisys computers." Id. at 799. Likewise, no portions of the Desktop V contract state, expressly or implicitly, that the Government was required to purchase all its requirements for desktop computers and associated products and services from IDP. Albano Cleaners is also distinguishable in another important way. In Albano Cleaners, the Court of Claims stated that "[t]he controversy is . . . about terminating a oneyear's contract after less than a month." 455 F.2d at 561. Because the Court of Claims had determined that the contract in Albano Cleaners required the Government to place all its orders for laundry services with the contractor during the base period of the contract, it ruled that the Government was liable to the contractor for termination costs under the termination for convenience clause of the contract. Id. In contrast, it is undisputed that the Government 10

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did not terminate the Desktop V contract with IDP during the base year of the contract, but rather in October 1999, during the second option year of the contract. DPFUF ¶¶ 1, 5, 19. Moreover, the Government had satisfied the $100,000 contract minimum during the base year of the contract (DPFUF ¶ 13), and there was no contract minimum for the option years. It is undisputed that Section B.2.b. of the Desktop V contract states that "the exercise of any options does not re-establish the contract minimum." Def. Br. 7 (citing Def. App. 9; DPFUF ¶ 7). Unlike in Albano Cleaners, the Government had satisfied all its obligations to IDP when it terminated the Desktop V contract. Like Albano Cleaners, the second case relied upon by IDP, E.H. Sales, did not involve a contract that resembled in any way the Desktop V contract or the IDIQ contracts at issue in Varilease and Travel Centre. In E.H. Sales, the Court of Claims stated that the contract at issue "called for the dismantling or reassembling or repair of 183 pieces of machinery which were specifically described" by quantity, type, and dimensions, such as "3 Webendorfers 22" × 29"." 340 F.2d at 359. The court stated that "[a]fter the contractor had dismantled and inspected the machines turned over to it, it was to report to the contracting officer its estimate of the cost of repairing each of them, whereupon the contracting officer was required to issue a task order either calling for the repair of the article or for reassembling it." Id. The court found that the contract required the Government to deliver to the contractor the specified quantities of the particular machines listed, and that "[t]he contractor on his part is to dismantle the machines and repair those which the contracting officer thinks it economical to repair and reassemble the rest." Id. at 360. The Government, however, only delivered a few of the machines to the contractor. Id. at 359. The contract also contained a section that stated that "the Government shall order materials and services amounting to not less than $100.00." Id. at 360. The Government argued that it had satisfied the extent of its obligation to the contractor because it had paid more than $100 for work done on the few machines that it had delivered to the contractor. Id. 11

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The Court of Claims rejected this argument because of its finding that the contract required the Government to deliver to the contractor the 183 particular machines listed in the contract: This $100 limitation provision is applicable and entirely proper in a contract where the Government does not know what its requirements will be, but it clearly has no place in a contract calling for the furnishing of specifically described items. . . . Because this paragraph is so completely contrary to manifest intention of the parties, we think it must be disregarded. . . . the Government obligated itself to deliver specific machines and not an indefinite number of them. Id. at 361 (emphasis added). In contrast to the contract in E.H. Sales, the Desktop V contract did not identify the specific machines that IDP was required to deliver, but only required IDP to deliver indefinite quantities of specified types of products. The Desktop V contract set contract minimum and maximum quantities, but expressly stated that the Government would order an "estimated" quantity of $100 million. Def. App. 9, § B.2. The Desktop V contract expressly identified itself as an IDIQ contract, whereas the contract at issue in E.H. Sales did not state that it was an indefinite quantities contract, because it required the delivery of specific machines. 340 F.2d at 361. In the third case relied upon by IDP, Goldwasser, the Court of Claims determined that the contract at issue was a requirements contract rather than an indefinite quantities contract. 325 F.2d at 723-24. The contractor had been awarded a contract to print a weekly newspaper at New York Naval Shipyard. Id. at 722. The contractor argued that the contract was a requirements contract, because it stated "[m]inimum numbers of copies to be printed under this contract shall be 10,000 per issue . . . . The present requirement will be 15,000 copies per issue." Id. at 723 (emphasis added). The contract also included an indefinite quantities clause that stated that the Government "shall order supplies (or services) hereunder having an aggregate value at the unit prices specified herein of not less than $100.00." Id. The Court of Claims found that the two clauses were "directly contradictory," and ruled that the indefinite quantities clause must be disregarded. Id. The court reasoned that 12

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because the requirements clause was specific to this contract, and the indefinite quantities clause was a form clause, that "[t]he specific provision must prevail over the general." Id. The court stated that the Navy was "obligated to accept this minimum number" of 10,000 copies per issue, adding that because "this is a contract which required the Government to purchase its needs from IDP, it had no right to purchase them from another printer as long as the contract subsisted." Id. at 724. No similar conflict exists within the provisions of the Desktop V contract. The contract did not require the Government to order all its requirements from IDP. The solicitation specifically provided that there would be multiple contractors, and as a result of a bid protest, there was another Section 8(a) contractor besides IDP. Def. Supp. App. 329; Pl. App. USAF 4527-28. In addition, in Goldwasser the Court of Claims ruled that the Government was liable for what was identified in the contract as the "minimum" number of copies. 325 F.2d at 724. Here, IDP contends that the Government is liable for ordering $100 million, which was expressly identified as an "estimated" quantity in the Desktop V contract. In sum, none of the cases relied upon by IDP support its position. All three cases involved contracts that were fundamentally different from the Desktop V contract. None of the cases address the meaning of "contract price" in a termination for convenience clause. And none of these Court of Claims decisions apply to the issue of whether the Government is liable for IDP's termination costs, because that issue is governed by the Federal Circuit's decisions in Varilease and Travel Centre. II. Termination Of The Desktop V Contract Did Not Terminate IDP's Obligation To Provide Warranty And Upgrade Services The Government Had Paid For IDP asserts that the termination for convenience of the Desktop V contract terminated all of IDP's obligations under the contract. IDP is mistaken in numerous respects. IDP incorrectly asserts that "by law, the contract was required to be terminated in its entirety. . . . That ends IDP's obligations under the agreement." Pl. Br. 16 (citing 15 U.S.C. § 637(a)(21), which is reproduced in relevant part in PPFUF ¶ 9). The statute cited by IDP 13

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does not address whether the contract must be terminated "in its entirety," or whether the termination ends all the contractor's obligations under the contract. The statute merely states without elaboration that if the owner upon whom Section 8(a) eligibility was based relinquishes control, the contract "shall be terminated for the convenience of the Government." 15 U.S.C. § 637(a)(21). IDP also asserts that "Boards of Contract Appeals" have ruled that "warranty and upgrade work cannot be mandated after a termination for convenience, absent the contractor's post termination consent." Pl. Br. 17 (emphasis added). IDP relies upon three ASBCA decisions: Western States Painting Co., ASBCA No. 13843, 69-1 BCA ¶ 7616; J.D. Shotwell Company, ASBCA No. 8961, 65-2 BCA ¶ 5243; and New York Shipbuilding Co., ASBCA No. 15,443, 73-1 BCA ¶ 9852. Pl. Br. 16-19. None of these three decisions addressed "warranty and upgrade work," as IDP contends, but rather addressed whether a contractor is responsible for correcting deficiencies in work included in the terminated portion of the contract. Pl. Br. 17. As shown below, none of these decisions is relevant to the issue of whether the Government is liable for the costs that IDP allegedly incurred in performing warranty and upgrade services for products sold, delivered, and paid for before the termination for convenience of the Desktop V contract. In Western States Painting, the ASBCA stated that "both the Government and appellant treated the Government's storm window claim as part of the excess cost of completion of the terminated contract, recoverable under the termination for default clause . . . . The Government, on the present appeal, has offered no argument in support of its present position that the item is deductible." 69-1 BCA at 35,379. In contrast, the contracting officer for the Desktop V never conceded that the Government assumed liability for the cost of providing post-termination warranty and upgrade services. The contracting officer stated in the termination notices that the termination for convenience did not affect "the rights and liabilities of the parties concerning software upgrades" that Section C of the contract required 14

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IDP to provide. DPFUF ¶ 19. In J.D. Shotwell, the Government and contractor agreed to a "'no-cost' termination for convenience, with only the reservations stated therein." 65-2 BCA ¶ 5243. The ASBCA stated that in the termination agreement "the Government gave up whatever rights it might have had to correction of its deficiencies, that is, to correction of work allegedly performed in a defective manner. This would not apply to the few instances of payment at full and inclusive unit prices for included work segments which had not, in fact, been completed." Id. (emphasis added). This statement is noteworthy in two respects. First, the ASBCA suggested that the Government may have had the right to insist upon correction of deficiencies after termination of the contract. Second, the ASBCA determined that the termination had not extinguished the Government's right to require that the contractor perform all work that had been paid in full. That is the situation in this case. IDP is unable to dispute that the Government paid IDP for warranty and upgrade services as part of the unit prices on the products specified in the Desktop V contract, despite its contention that "[p]erhaps the Government paid, and perhaps not." DPFUF ¶¶ 9-11; Pl. Br. 18. The warranty and upgrade costs that IDP seeks to recover were for products ordered, delivered, and paid for before the termination. The third ASBCA case relied upon by IDP, New York Shipbuilding, addressed whether the Government could "hold the contractor responsible for correcting deficiencies in the work included in the terminated portion of the contract." 73-1 BCA ¶ 9852. In contrast, the products in the Desktop V contract for which the Government sought continued warranty and upgrade services were not in the terminated portion of the contract, but were the products that the Government had already ordered, received, and paid for when the contract was terminated on October 9, 1999. DPFUF ¶¶ 9-11, 19. IDP contends that the Government's warranty rights survive termination only if the parties agree, noting defendant's reference to FAR 49.603-1(b)(7) in its opening brief. Pl. Br. 15

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19 (citing Def. Br. 11). However, FAR 49.103 empowers the contracting officer to settle a termination for convenience of a fixed-price contract such as the Desktop V contract by determination if it cannot be settled by agreement. 48 C.F.R. § 49.103. Such was the case here. The contracting officer properly notified IDP in the October 9, 1999 termination notices that the warranty and upgrade services were not affected by the termination, and the termination contracting officer confirmed this position in his final decision. DPFUF ¶ 19; Exhibit 1 to Complaint in No. 03-2515C. The Government does not seek any compensation from IDP for the expenses it incurred after IDP refused to provide the warranty and upgrade services for which the Government had already paid. At the same time, however, the Government is not liable for the cost of providing warranty and upgrade services that IDP was required to deliver, and that IDP did deliver for a six-month period following contract termination. No separate termination agreement was necessary to enforce this obligation, because it was already included in the Desktop V contract.

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CONCLUSION For the foregoing reasons, defendant respectfully requests that the Court grant its motion for summary judgment, deny IDP's cross-motion for summary judgment as to liability, and grant such other relief as the Court sees fit. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

OF COUNSEL: E. MICHAEL CHIAPARAS Deputy Director Contract Disputes Resolution Center Defense Contract Management Agency 10500 Battleview Parkway, Suite 105 Manassas, VA 20109 MAJ. JACQUELINE POSNER Trial Attorney Commercial Litigation Division Air Force Legal Services Agency 1501 Wilson Boulevard Arlington, VA 22209

s/ Deborah A. Bynum DEBORAH A. BYNUM Assistant Director

s/ John H. Williamson JOHN H. WILLIAMSON Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0277 Fax: (202) 307-0972 E-mail: [email protected] Attorneys for Defendant

October 15, 2004

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CERTIFICATE OF SERVICE I certify under penalty of perjury that on this 15th day of October, 2004, a copy of the foregoing "DEFENDANT'S OPPOSITION TO IDP'S CROSS-MOTION FOR SUMMARY JUDGMENT AND REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. /s John H. Williamson

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DEFENDANT'S SUPPLEMENTAL APPENDIX

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INDEX TO SUPPLEMENTALAPPENDIX Tab 18 19 October 15, 2004 Declaration of Jolm Williamson ............................ July 17, 1995 "Memorandum All Potential Des1¢top V Offerors". ............. For P~ 328 329

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Tab

18

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IN THE UNITED STATES COURTOF FEDERALCLAIMS

INTERNATIONAL DATA PRODUCTS CORPORATION, Plaintiff,
V.

No. 01-459C (Judge George W. Miller)

THE UNITED STATES, Defendant.

DECLARATION OF JOHN WILLIAMSON I, Jotm H. Williamson,declare as follows: 1. Unlessother~vise stated, I have personal knowledge the following facts, of

whichI believe to be true to the best of mypresent knowledge understanding. and 2. I ama Trial Attorneyin the Civil Division of the United States Department of

Justice. I amcounselof record for defendantin this lawsuit. This declaration is filed in support of defendm~t's motion for summm'y judgment. 3. Attached behind Tab "19" is a true copy of the July 17, 1995 "Memorandum

For All Potential Desktop V Offerors" regarding Contract No. F01620-97-D-0001 ("Desktop V") that is containedin the Air Force's files for the DesktopV contract, and wasproducedto plaintiff in this lawsuit. It appears that whenthe documents were copied, the second page of the memorandum copied twice, and assiN~ed the Bates numbers USAF was 7892 and 7893. I declare underpenalty of perjury that the foregoingis true and correct.

Executed ol~ October ]~-,2004

'~/7%~{'-~/~4--'~'¢'2._ U John H. Wiltiamson 328

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Tab

19

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17 fful 95 ME~IORANDU~I FOR ALL POTENTIAL FRO~,I: DESKTOP V OFFERORS

HQ $SG/PK24 55 North Ramp Road Maxwell Air Force Base-Gunter Annex AL 36114-3331

SUBJECT: Request for Proposal (R_VP)No. F01620-95-R-A05i, Desktop V (DT-V) Program

1. Attached herewith is the RFP(under full and open competition after exclusion of sources) be issued on the DT-V program. The solicitation is being distributed via three methods, in electronic form on diskettes, and the SSGAcquisition Bulletin Board System (ACQBBS). and [imited paper copies by specific request only. To ensure your proposal is considered, please adhere to the proposal submissioninstructions contained in this letter and the RFP. 2. Attachments l and 2 are the diskettes containing the DT-VRFP (labeled 'qgT-V 8(A)RFP"), and the Price Evaluation Model (PEM), the Technical Evaluation Model(TEM), ManagementEvaluation Model (MEM)and User's Manual. The diskettes contain selfextracting, executable files ~T-VRFP.EXE) which extract into Microsoft (MS) Word Windows Version 6.0 or MSExcel Version 5.0c formats. Provided for your information are questions received and answers released via the SSGACQBBS since the re/ease of the draft RFP. For your convenience, we have also included a file containing the list of interested vendors (mall-Sa.doc) with the RFP. The Technical and Management Specifications Matrices are now included in the TEMand MEM.The PEMITEMIMEM User's Manual and a "read me" Ne are contained on the diskettes and are available uponinstallation. The instructions on the diskettes and the associated documentation (Sec/Pam LS, Attachment 8) should provide sufficient explanation to install and use the PEM,TEM,and MEM. the event you receive a diskette In which is unreadable, please contact Capt Chad Lusher; at (334) 416-1782to obtain new diskettes. ALl the above referenced files are also available on the SSGACQBBS dial-up and Internet systems. 3. The RFPand related documentsexplain the DT-V.reqnirementS detail; in direc~ your attention to the following: however, please

a. The Government intends to select three contractors for the Desk-top V programunder two competitive source selections. Twocontracts will be awarded under full and open competition using RFP F01620-94--R-A430. third contract wilt be awarded under an 8(a) A setaside under RFP F01620-95-R-A05 Weintend to makeal/three awards on initial I. submission, without discussions. The anticipated award date, without discussions, for planning purposes only, is 28 Dec95. ffdiscussions are heir, the following events and dates are provided

329 USA#-7891'

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for planning purposes and will apply only to those Offerors determined to be within the Competitive Range: EVENT Release of Clarification Requests(CRs)/Deficiency Reports(DRs) Dat_~e 13 Dec 95 29 Dec 95 25 Mar 96 01 Apt 96

Receipt of CRs/DRsResponses Release of Request for Best & Final Offers (BAFOs) Receipt of BAfOs

To ensure proposal eligibility, your offer should include your most favorable terms possible on initial submission. Successful responses demandthe Offeror read the RFP, identify and comply with mandatoryrequirements in all sections of the RFP, follow the proposal submission instructions and finalize proposal(s) in sufficient time to facilitate an intense quality control review and to makeadjustments prior to submission. b. Listed below are examples of errors and inconsistendes in proposals which resulted in CRs/DRs being issued during the evaluation process on Desktop IV. As it is our ~ intent to awardDT-V based on initial offers without discussions, vendors are advised to ensure their initial proposal(s) are free of these types of errors and inconsistencies.

(1) Incomplete B-Table submissions.
Omissionof prices for individual CLINs/SLI~N's. 0) Omissionof an electronic B-Table. (4) Misused cost model, thereby making proposal submission aon-conforming. Submissionof unreadable, locked, password protected and/or virus infected diskettes. use of abbreviations as defined in the. RFP. Offerors did not provide higher assemblies for items that were not separately priced (NSP). prices of next (7) Offerors added penalties inappropriately for Buy AmericanAct (BAA)/Trade Ageements Act (TAA) pricing. (8) Pages in excess of the mandatorypage limitation. (9) Conflicting information amongmatrices, narrative, and executive summary/cover letter. Completeness accuracy, especially in mathematicalcalculations, is critical to a successful and proposal. Failure to provide a mandatoryrequirement or intentionally taking exception to mandatoryterms and conditions in an attempt to force discussions is a risk. Offerors whorely upon the Government identify inconsistencies and deficiencies in their proposals je.opardize to their eligibility. MinorClarification Requests(MCRs), whichwill not affect the proposal rating, as defined in AFF~,-~RS para. AA-307.a.(2), maybe issued by the C-ovet-amentfor the purpose eliminating minor;irregularities, informalities or apparent clerical mistakes. !

(6) Incorrect

/

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for planning purposes and will apply only to those Offerors determined to be within the Competitive Range: EVENT Release of Clarification Requests(CRs)/Deficiency Reports(DRs) Date 13 Dec 95 29 Dec 95 25 Mar 96 01 Apt96

Receipt of CRs/DRsResponses Release of Request for Best & Final Offers (BAFOs) Receipt of BAFOs

To ensure proposal eligibility, your offer should include your most favorable terms possible on initial submission. Successful responses demandthe Offeror read the RFP, identify and comply with mandatoryrequirements in all sections of the RFP, follow the proposal submission instructions and finalize proposal(s) in sufficient time to facilitate an intense quality control review and to makeadjustments prior to submission. b. Listed beloware exarnples of errors and inconsistencies in proposals whichresulted in CRs/DRs being issued during the evaluation process on Desktop IV. As it is our firm intent to award DT-V based on initial off.ers without discussions, vendors are advised to ensure their initial proposal(s) are flee of these types of errors and inconsistencies. Incomplete B-Table submissions. Omission prices for individual CL~N's/SLITXrs. of Omissionof an electronic B-Table. NiJsused cost model, thereby making proposal submission non-conforming. (5) Submissionof unreadable, locked, password protected and/or virus infected (1) (2) (3) (4) diskettes.

(6) Incorrect use of abbreviations as defined in the.RFP~Off'erors did not provide prices of next higher assemblies for items that were not separately priced (7) Offerors added penalties inappropriately for Buy AmericanAct (BAA)/Trade Agreements Act (TAA)pricing. (8) Pages in excess of the mandatorypag~ limitation. (9) Conflicting information amongmatrices, narrative, and executive summary/cover letter.
Completeness accuracy, especially in mathematicalcalculations, is critical to a successful and proposal. Failure to provide a mandatoryi-equirement or intentionally taldng exception to mandatoryterms and conditions in an attempt to force discussions is a risk. Off'erors whoreiy upon the Government identify inconsistencies and deficiencies in their proposals jeopardize to their eligibility. MinorClarification Requests(MCRs), whichwill not affect the propbsal rating, as defined in AFFARS para. AA-307.a.(2), maybe issued by the Goverrmaentfor the purpose eliminating minor;trregularities, informalities or apparentclerical mistakes.

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c. Section Mof the KFPdetails the evaluation factors for awardand their relative order of importance. d. DT-V a firm-fixed-price (FKP), indefinite delivery/indefinite quantity (K3/IQ) is acquisition with a period of performanceof up to five (5) years: one base year, a one-year option (Option l), and one additional option year (Option 2) to be exercised only with higher headquarters approval for purchase of all CLiNs/SLINs, two additional one-year and Sustainment Options (Options 3 and 4) for user-installable components(upgrade SLINsonly (See B-Tables)). In the event higher headquarters approval is not obtained to exercise Option for the purchase of all CLINs/SLINs, Government still exercise Sustainment Options 3 the may and 4 for upgrade SLINsonly. e. Proposal(s) shall be submitted in electronic format on virus-free 3.5 inch 1A4MB high density diskettes, except for the original signed Standard Form33, the signed Certificate of ProcurementIntegrity, Data Entry Summaries, ISO 9000 certifications (if applicable), Subcontracting Plan, and the PEM Price Summary,which are required in hard copy. Complete instructions are provided in Sec.,YParaL.22 of the RFP.FilMn-the-blankmatrices shall be used for proposal submission. Offerors are required to provide matrices (Exhibits L-3 and L-4) which certify compliance with mandatory requirements and standards. Sec/Paras L.22 and L.23 provide proposal preparation and submission requirements. f'. All proposal volumesare due no later than 3:00 p.m. (CDT)on 6 Sep 95. Proposals shall be delivered to the location specified in Sec/Para L. 19 of the RFP. Responsesto this R.FPare subject to DFARS 252.211-7018, Late Submissions, Modifications, and Withdrawals of Offers-Commercial Items. g. The use of exampleinformation in cells or boxes throughout Exhibits L-1 and L-2 referenced in Volume Section 1 and Volume Section 1, indicates to Offernrs the [, E, Government'sdesired physical and/or performance characteristics for which the Offeror's proposal will receive additional credit. I.f the Offeror's proposal exceedsthese desired characteristics, then further credit maybe given. h. A maximum two proposals will be accepted from each Offeror in response to this of solidtation. Each proposal must be complete and stand-alone from any other submit-ted proposal and include all necessary proposal submissionsrequired by this solicitation without reference to any other proposal. Alternate proposals are defined as offering solutions other than specifically requested in the solicitation and will not be accepted. If an Offeror submits morethan two proposals, all proposals will be returned by the Government because the Government will be unable to determine which two proposals the Offeror would have wanted to be evaluated. i. For informational purposes, the term "shalF' is used in association with mandatory requirements. The term "should" is used for those requirements that are desirable to the Government.The Government judiciously used the "shall" statements and is postured to has assign a deficiency report (DR) if mandatoryrequirements are not met. The Government will issue DtLsif discussions are necessary and the Off'eror's proposal is in the Competitive.Range. j. This acquisition is subject to the Buy AmericanAct (BAA)and Trade AgreementsAct (TAA)(see FARPart 25 as supplemented). A waiver has been obtained to the TAA

332

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appfication of" the BAA evalu,~tior~ factor for U.S. madeend products (See Sec/Para 1-7). CLENs/SLFNs ~ to[~ extended value of ~ 182,000 o[ mole will be evaluated under the with ~182,000 or less, under the B~. Underst~din~ ~he B~T~ and sele~on ofcompli~n~ components cddca~~o a success~proposal. is k. Offerors are required to submit the following equipment in conformancewith Ener_wf Star requirements in all contractor provided environments while retaining all functionality (e.g., _ ~/~-,~ network interoperability): CLINs0001 and 0002 base system units and all monitors, all CLEq's 0003 and 0004 monitors, and CLIN 0005 printers. Offerors are required to certify" {see Sec/'Para K. 19) EnergyStar (E-Star) compliancefor the referenced systems. L Factory Installed Components (TICs) are to be priced as a delta price to the base system assuming replacement of original componentt'or performance enhancements. User tnstallable Components (UICs) are to be priced in addition to the base system (see Sec/Para L.23.4.5 for moredetailed definition). m. Software is to be priced on a "sinOe user license" basis with or without media and documentation(see Sec/Para L.23.4,5). In addition, the licensing concept for both applications software and NOS system software has been updated. Please refer to Section C and Sec/Para 1.7, Attachment 7. n. A Pre-Proposal Conference will be held in approximately ten days. Completedetails including date, time and location will be published on the HQSSGACQBBS within the ne~ few days. Please continue to monitorthe bulletin board daily if you are interested in attending this conference. o. A waiver of the Nonmanufacturer rule for all requirements, other than the systems SLINS (CLIINS 0001-0004), been has establishedtheU.S. by Small Business Administration (SBA). This waiver allows an otherwise qualified regular small business dealer to supply other than the product of a domestic small business manufacturer or processor, for items specified, on this intended SBA8(a) Program award. 4. This acquisition has been selected for implementationof an "Industry Critique of the Government KFP"Survey. The objective of this survey is to establish an industry feedback system to improve the RFPprocess. This survey is not the mechanismto identify RFPproblems that affect your proposal or potential awardof the contract. Problemsof this nature should be formally communicatedto the DT-VContracting Officer (CO), Mrs. Kay Walker. Whether not you decide to propose on the attached RFP, you have the option of completing an anonymous survey. The survey is included on the RYP diskette. Your decision to respond and/or the contents of your response shall in no wayaffect the outcomeof this source selection or ongoing future competitions. Offerors should directly mail survey responses in hard copy to "ESC/PKA,RFP Survey Responses, 3 Kirtland Street, Hanscom AUB 01731-2309." MA Responsesto this survey will not be openedfor at least ten (t0) days following contract award.

-1

5. Offerors are encouraged to use and monitor the SSGACQBBS dial-up and Internet systems to access DT-V acquisition information. The SSGACQBBS dial-up and Internet systems will be

333 USAF 7895

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used to provide the current program status, any new information available about the program, and applicable documents they are available electronically. As stated in Sec/Para L. 1 I, as Offeror-initiated inquiries maybe submitted via the SSG"ACQBBS, floppy disk, on paper and facsimile (FAX) transmission (334) 416-1775. To access the SSGACQBBS dial-up system, a Hayes-compatible modem to I'4400 bps v.42bis) to call (334) 416-5651/213, 1733/4/5 (up 298617. Internet system "download"instructions are also provided (See Sec/Para L. ! I). addition, rite transfer service is available for all documentsusing ASCII, NTvIODEM, Y-MODEM, SEA.links, KERN[IT, SUPER KERMIT (sliding windows protocols), or ZMODEM-90. fiIe The formats are in MSWord for Windowsv6.0 and MSExcel v5.0c. Upload questions/comments to the SSGACQBBS data files using the same formats. Compiete directions are provided in on-line. If difficulty is encountered, 24-hour assistance is available by calling (334) 416-5771 and stating that the calI pertains to DT-V the SSGACQBBS. on

//signed// KAY P. WALKER Contracting Officer

Attachments: 1. PEM/TEM/MEMUser's Manual (3 Diskettes) & 2. RFP Diskette

334 USAF 7896