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FAR
1.602-2: Contracting Officer Responsibilities |
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U.
S. Court of Federal Claims - Key Excerpts |
Under these peculiar factual circumstances, and to
"ensure [that] the contractors receive impartial, fair and equitable treatment,"
the contracting officer had a duty to preclude any and all access to plaintiff’s
pricing information under its control, particularly that of the future
unperformed option years. That there is here the appearance of impropriety
by the release of plaintiff’s unit prices to SKE, only, and no other bidders, is
irrefutable as corroborated by the language in Facilma’s letter that: "It may
leave the impression that the sole purpose of the subject solicitation is the
underbidding of the current contract unit prices." Plaintiff’s contention
(by this lawsuit) that it will be harmed clearly goes to an appearance or
perception of impropriety. Defendant therefore was duty-bound by FAR section
1.602 not to release the incumbent unit prices on these facts, i.e., in the face
of an imminent re-solicitation of a substantially similar contract covering
largely the same period as those prices to be released on unperformed option
years.
Given the present posture of this case, i.e., the fact that the unit prices of
plaintiff are unfairly already in the hands of at least one of the bidders, 28
U.S.C. § 1491 gives the court broad discretion to fashion an appropriate remedy,
including but not limited to injunctive relief. Therefore, the court requires
such relief as is consistent with the contracting officer’s responsibility under
FAR section 1.602, to wit, to level the playing field, not just in words, but in
fact. That upon the re-solicitation of the new procurement, and not inconsistent
with this opinion, (1) the unit prices of Flammann disclosed to SKE pursuant to
FOIA must be disseminated to all other bidders, (2) plaintiff must also receive
the comparable prices of all other bidders under the prior (January 2001)
solicitation, 22 and (3) defendant must notify Facilma of a new re-solicitation
and this court’s ruling and extend to it the opportunity to again participate.
(R & W FLAMMANN GmbH, v. THE UNITED STATES, No.
02-800C, September 23, 2002)
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U.
S. Court of Federal Claims - Listing of Decisions
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For
the Government |
For
the Protester |
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R & W FLAMMANN GmbH, v. THE UNITED
STATES, No. 02-800C, September 23, 2002 |
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