Free Statement of Facts - 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. 21515 Ridgetop Circle Suite 100 Sterling, VA 20166 Plaintiff v. THE UNITED STATES OF AMERICA, Defendant.

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

(Bid Protest)

Case No. 06-122C (Judge Allegra)

STATEMENT OF FACTS 1. Solicitation No. FA8601-05-R-0034 was issued by the U.S. Air Force on May 24, 2005. See Administrative Record ("AR"), at Tab 6, p. 218. The due date for initial proposals was June 30, 2005. See AR Tab 7, RFP Amendment 1, at p. 342. 2. Discussions were conducted, and Final Proposal Revisions (FPR) were due on August 24, 2005. See AR at Tab 21, pp. 511-512 (letter to NVT requesting FPR); See also letter from agency to SelectTech dated August 17, 2005 requesting FPR. AR, Tab 84 pp. 4537 - 4538 3. The SF 33 accompanying the August 24, 2005 proposal to the procuring agency was marked "DRAFT". AR, Tab 25, p. 973.

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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. 5. SelectTech's offer dated August 24, 2005 was not accepted by Defendant. AR, Tab 25, p. 973; AR at Tab 15, p. 390. 6. On September 20, 2005, SelectTech submitted a new offer to the Defendant. AR at Tab 15, p. 390. 7. SelectTech's SF 33 dated September 20, 2005 represented the awardee's "firm binding offer." See AR, Para. XI(b), pp. 4528-4529. 8. SelectTech's offer dated September 20, 2005 was accepted by the Defendant on October 12, 2005. AR at Tab 15, p. 390. 9. Excluding SelectTech, NVT submitted the lowest price in the amount of $16,354,678. The price submitted by AdTech was $16,759,479. AR, Tab 13, p. 380. Adtech's past performance score was 6.06. NVT's past performance score was 4.83. AR, Tab 12, p. 372. 10. If SelectTech were eliminated from the competition, the agency would be required under the provisions of Section M of the RFP to conduct a Price/Past Performance Trade-off ("PPT") analysis to determine whether the additional $404,801 in Adtech's price was worth the past performance differential between NVT's proposal and the proposal submitted by Adtech. See AR Tab 6, para 1, p. 270 and para (c)(2), p. 271. 11. During oral discussions, the agency raised concerns pertaining to the relevancy of NVT's past performance. AR, Tab 23, p. 674.

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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. 13. The Past Performance Evaluation was finalized prior to receipt of NVT's FPR. See AR, at Tab 12, pp. 370-376. Respectfully submitted,

/s Jeffrey A. Lovitky Attorney for Plaintiff 1735 New York Ave., N.W., Suite 500 Washington D.C. 20006 Tel: 202-429-3393 Fax: 202-318-4013

Date: March 23, 2006

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Certificate of Service

I hereby certify that on March 23, 2006, a copy of the foregoing Plaintiff's 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. Parties may access this filing through the Court's system /s Jeffrey A. Lovitky

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