Free Response to Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:06-cv-00122-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NVT TECHNOLOGIES, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 06-122C (Judge Allegra)

DEFENDANT'S PUBLIC COUNTER STATEMENT OF FACTS Pursuant to RCFC 56.1(B)(2), defendant, the United States, submits the following response to the statement of facts, filed by plaintiff, NVT Technologies, Inc.,("NVT") on March 23, 2006. NVT's statement of facts was filed in support of "Plaintiff's motion for judgment based upon the administrative record," filed by NVT on March 23, 2006 ("NVT br").

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1.

Solicitation No. FA8601-050R-0034 was issued by the U.S. See Administrative Record ("AR"), at

Air Force on May 24, 2005.

Tab 6, p. 218. The due date for initial proposals was June 30, 2005. See AR Tab 7, RFP Amendment 1, at p. 342. RESPONSE: Admits.

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2.

Discussions were conducted, and Final Proposal Revisions See AR at Tab 21, pp. 511-512

(FPR) were due on August 24, 2005.

(letter to NVT requesting FPR): See also letter from agency to SelectTech dated August 17, 2005 requesting FPR. AR, Tab 84 pp. 4537-4538. RESPONSE: Admits.

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3.

The SF 33 accompanying the August 24, 2005 proposal to

the procuring agency was marked "DRAFT". AR, Tab 25, p.973. RESPONSE: Denies. SF 33). A972; see A961 (identifying attached original Form

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4.

SelectTech's submission dated August 24, 2005 was not a

"firm binding offer." AR, Tab 25, p. 973. See Also AR, Para. XI(b), pp. 4528-4529. RESPONSE: The United States objects to proposed fact 4 upon the grounds that it states a legal conclusion, and does not state a fact. Without waiving any objection, the United States responds

as follows: Denies. A828-1057 (SelectTech proposal).

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5.

SelectTech's offer dated August 24, 2005 was not

accepted by Defendant. AR, Tab 25,p.973;AR at Tab 15,p. 390. RESPONSE: The United States objects to proposed fact 5 upon the grounds that it states a legal conclusion, and does not state a fact. Without waiving any objection, the United States responds

as follows: Denies. A382-89 (request for approval of contract award,

dated September 8, 2005); A377-81 (decision of contracting officer to select SelectTech, dated September 8, 2005); A2475 (legal review completed, September 13, 2005); A505-09 (SBA size determination, dated October 12, 2005); A390-484 (contract, dated October 12, 2005).

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6.

On September 20, 2005 SelectTech submitted a new offer AR at Tab 15, p. 390.

to the Defendant. RESPONSE:

The United States objects to proposed fact 6 upon the grounds that it states a legal conclusion, and does not state a fact. Without waiving any objection, the United States responds

as follows: Denies. A390.

The page cited by the NVT is the first page of the contract -- not an offer. NVT implies that the sole purpose of a Form SF33 is to make an offer. To the contrary, Form SF33 has several uses. See 48

C.F.R. §§ 15.204 - 15.204-5.

Most importantly, Form SF33 serves

as the cover page for many solicitations, see A218, and as the cover page for a standard format contract. §§ 15.204 - 15.204-5. A390; see 48 C.F.R.

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7.

SelectTech's SF 33 dated September 20, 2005 represented

the awardee's "firm binding offer." See AR, Para XI(b),pp.45284529. RESPONSE: The United States objects to proposed fact 7 upon the grounds that it states a legal conclusion, and does not state a fact. Without waiving any objection, the United States responds

as follows: Denies. A828-1057 (SelectTech proposal); A382-89 (request

for approval of contract award, dated September 8, 2005); A37781 (decision of contracting officer to select SelectTech, dated September 8, 2005); A2475 (legal review completed, September 13, 2005); A505-09 (SBA size determination, dated October 12, 2005); A390-484 (contract, dated October 12, 2005).

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8.

SelectTech's offer dated September 20, 2005 was accepted

by the Defendant on October 12, 2005. AR at Tab 15,p.390. RESPONSE: The United States objects to proposed fact 8 upon the grounds that it states a legal conclusion, and does not state a fact. Without waiving any objection, the United States responds

as follows: Denies. A828-1057 (SelectTech proposal); A382-89 (request

for approval of contract award, dated September 8, 2005); A377-81 (decision of contracting officer to select SelectTech, dated September 8, 2005); A2475 (legal review completed, September 13, 2005); A505-09 (SBA size determination, dated October 12, 2005); A390-484 (contract, dated October 12, 2005).

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9.

Excluding SelectTech, [ REDACTED ] submitted the lowest The price submitted by

price in the amount of $ [ REDACTED ] . [ REDACTED ] was $ [ REDACTED ] .

AR, Tab 13, p.380.

[ REDACTED ] `s past performance score was [ REDACTED ]. [ REDACTED ] 's past performance score was [ REDACTED ]. 12, p. 372 RESPONSE: Admits. AR, Tab

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10.

If SelectTech were eliminated from the competition, the

agency would be required under the provisions fo Section M of the RFP to conduct a Price/Past Performance Trade-off ("PPT") analysis to determine whether the additional $ [ REDACTED ] in [ REDACTED ] 's price was worth the past performance differential between [ REDACTED ] `s proposal and the proposal submitted by [ REDACTED ] . p.271. RESPONSE: The United States objects to proposed fact 10 upon the grounds that it states a legal conclusion, and does not state a fact. Without waiving any objection, the United States responds See AR TAb6, para 1, p.270 and para (c)(2),

as follows: Admits.

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11.

During oral discussions, the agency raised concerns

pertaining to the relevancy of NVT's past performance. AR, Tab 23, p. 674. RESPONSE: Admits.

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12.

NVT's FPR provided additional detail as to the

relevance of the prior contracts which it identified for past performance evaluation. AR, Tab 23, pp. 681-700. RESPONSE: The United States objects to proposed fact 12 upon the grounds that it states NVT's characterization of the evidence and a legal conclusion, and does not state a fact. Without waiving

any objection, the United States responds as follows: Denies. A4533 (contracting officer reviewed additional

submission about relevancy of past performance data and concluded that the additional submission had added no new information); compare A609-17 (NVT proposal) with A686-87 (later submission of checklist characterizing relevancy); see A275 (solicitation) ("The Government is not bound by offeror's opinion of relevancy."). The GAO agreed with the contracting officer: The agency contends that the chart provides, at best, only the most general description of work performed as it presents only the general categories of work listed in the RFP's performance work statement, without elaborating (either in the chart or in the narratives) about the specific projects and work actually performed under those categories and subtasks, in order for the agency to assess if the work performed is directly relevant to the identified tasks. Moreover, as evidenced by the chart in its FPR, NVT itself contends that only about half of the RFP's performance work tasks were performed under two of the three contracts (while all of the tasks were allegedly -12-

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performed under its third contract). Since the record supports the agency's finding that the protester's proposal and FPR failed to provide sufficiently detailed descriptions of work to either allow for a more comprehensive review or support a higher relevance rating, and since it is clear that, even under NVT's self-assessment, as many as half the requirements were not involved in two of its three contracts, we see no basis to question the agency's assessment of the work presented as "somewhat relevant" to the current requirements. NVT Technologies, Inc.,B-297524;B-297524.2 (February 2, 2006) 2006 CPD Lexis 30.

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13.

The Past Performance Evaluation was finalized prior to

receipt of NVT's FPR. See AR, at Tab 12, pp. 370-376. RESPONSE: Denies. A4533; see Response of the United States to NVT's

proposed fact No. 12.

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director OF COUNSEL JEFFREY BRANSTETTER, Major Commercial Litigation Div. Air Force Legal Service Agency 1501 Wilson Blvd Suite 604 Arlington, VA 22209 /S Donald E. Kinner DONALD E. KINNER Assistant Director /S James W. Poirier JAMES W. POIRIER Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor, 1100 L St, N.W Washington, D.C. 20530 Tele: 202-307-6289 Fax: 202-514-6979 Attorneys for Defendant

April 14, 2004

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CERTIFICATE OF FILING I hereby certify that on April 20, 2006, a copy of the foregoing "DEFENDANT'S PUBLIC COUNTER STATEMENT OF FACTS" 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. the Court's system. S/ James W. Poirier Parties may access this filing through