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SSI Tech., Inc. v. United States

United States Court of Federal Claims

May 12, 20201, Filed

No. 19-1947

Opinion

OPINION AND ORDER

HOLTE, Judge.

In this pre-award bid protest, plaintiff, SSI Technology, Inc. ("plaintiff" or "SSI") challenges the Army's Solicitation No. W56HZV-19-R-0050 to award a firm fixed price sole source contract to intervenor, Fischer Panda Generators ("Fischer Panda"), for the production of Auxiliary Power Units ("APUs"), which power M88A1/A2 Recovery Vehicles (essentially an armored tank with a crane boom). Pending before the Court are plaintiff's and the government's cross-motions for judgment on the administrative record and plaintiff's application for a temporary restraining order and motion for a preliminary injunction. For the following reasons, the Court: (1) DENIES plaintiff's motion for judgment on the administrative record; [*2]  (2) GRANTS the government's cross-motion for judgment on the administrative record; and (3) DENIES AS MOOT plaintiff's application for temporary restraining order and motion for preliminary injunction.

I. Background

A. Prior Procurement History

Minowitz Manufacturing Company ("Minowitz") was the original equipment manufacturer ("OEM") of the APUs at issue in this case, and "was the only previous supplier for APU spares requirements."2 Admin. R. at 836, ECF Nos. 20, 38 ("AR") (unredacted 2019 contract award justification and approval, hereinafter "the 2019 J&A").3 "Minowitz was a viable business entity at the time of award for contract SPRDL1-16-C-0004, . . . the last spares contract that APUs were delivered against," but it later went out of business. Id. "With Minowitz no longer a source," the "Defense Logistics Agency — Warren (DLA)," the contracting authority for the APUs at the time, "issued a new competitive [firm fixed price ("FFP")] solicitation for APUs that was awarded to Essex Electro Engineer, Inc. (Essex) on 01 August 2017."4 Id. at 836-37.

Essex's contract was a "3 year Indefinite-Delivery Indefinite-Quantity (IDIQ) [contract] . . . with a minimum quantity of 9 each and a maximum quantity of 150 each." [*3]  Id. at 837. Since Essex had not previously produced APUs, it was required to complete "First Article Testing (FAT) which was due on 10 August 2018."5 Id. Essex requested DLA to extend the FAT deadline "to 29 March 2019, with the assurance from the contractor that deliveries would remain on schedule if FAT was approved by the end of April 2019." Id. An Army Statement of Urgency Worksheet, dated 7 November 2018, states, "[w]hen Essex was awarded the 3 year [long term contract ("LTC")], [Program Executive Office Ground Combat Systems ("PEO GCS")] Quality Assurance expressed concerns of Essex['s] historical delinquencies on government contracts and legality actions against the government." AR at 559. Additionally, in October 2018, personnel in the Defense Contract Management Agency ("DCMA") Chicago office informed the Army "Essex is accustomed to poking holes in [Technical Data Package ("TDP")] and pushing dates out on their contracts and this is what is happening to this current contract with Essex." Id. (7 November 2018 Statement of Urgency Worksheet).

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2020 U.S. Claims LEXIS 808 *

SSI TECHNOLOGY, INC., Plaintiff, v. THE UNITED STATES, Defendant, and FISCHER PANDA GENERATORS, Defendant-Intervenor.

Prior History: Matter of: SSI Tech., Inc., 2019 U.S. Comp. Gen. LEXIS 403 (Comp. Gen., Dec. 4, 2019)

CORE TERMS

procurement, Solicitation, sole source, supplier, urgency, manufacturing, contractor, administrative record, protest, urgent, Contracting, contacted, vendors, deliveries, specifications, argues, offers, bid, cross-motion, capability, market research, contract award, urgent need, lead time, sole-source, testing, injunctive relief, agency's action, circumstances, responded