Protest alleging the agency engaged in unequal treatment and improperly modified a contract after award is denied, where the agency’s modification of the deadline for delivery of first article test units and production units amounted to a clarification of the contract requirements, not a cardinal change. While the protester requested a similar alteration to the schedule prior to the submission of proposals—which the agency denied—the court held that the purpose of the change was to correct an error, not to grant relief previously denied the protester.
Treadwell Corporation protested the Navy’s award of a contract for low pressure electolyzer oxygen-producing systems to Hamilton Sundstrand Corporation, challenging the awardee’s ability to perform and arguing the agency engaged in unequal treatment of offerors. Treadwell also alleged the agency improperly modified the contract’s delivery schedule after award.
Shortly after award, the Navy issued the first delivery order, which covered the first article testing unit as well as the first production units. When Hamilton notified the Navy that it had not anticipated designing and manufacturing both the first article and the production units simultaneously, the Navy modified the delivery schedule so that the production units were not due until about a year after delivery and acceptance of the first article.
Treadwell argued that Hamilton’s proposal was not technically acceptable because it did not promise to meet the strictest delivery schedule that the Navy might impose. However, COFC found the solicitation allowed the Navy discretion regarding the timing of performance, and further that a fair reading of the solicitation made clear the Navy did not expect simultaneous delivery of the first article testing unit and the production units. Further, Hamilton’s proposal clearly demonstrated that it was capable of meeting the solicitation’s delivery schedule.
Treadwell alleged that Hamilton’s proposal was not responsive to the RFP because Hamilton did not include a delivery schedule for the LPE production units in its technical proposal. However, the court held the Navy reasonably determined that Hamilton could meet the RFP’s delivery schedule requirements, as Hamilton committed to meeting the RFP’s delivery schedule in the final proposal revision. The court also found Treadwell failed to explain why the fact that Hamilton did not include a delivery schedule specifically for the LPE production units in the technical portion of its FPR would render Hamilton’s proposal technically unacceptable. While the RFP did require that Hamilton provide an LPE delivery schedule in its technical proposal, Treadwell pointed to no provision that specifically required Hamilton to include a delivery schedule for the LPE production units in the technical portion.
Treadwell also argued that the Navy relaxed the schedule requirements for Hamilton but not for Treadwell. Prior to the submission of proposals, Treadwell asked the agency to alter the delivery timeline, which would have resulted in a schedule similar to the one afforded to Hamilton after award. The agency declined to make this alteration, which Treadwell argued was evidence of unequal treatment.
However, the board held that, contrary to Treadwell’s claims, the intent of the Navy’s contract modification was to clarify the due date for the delivery of the first LPE production units under the contract. Specifically, the modification extended the delivery deadline for the first two LPE production units from October 13, 2017, to November 30, 2018, and clarified that the delivery deadline for the LPE production units would be 12 months after approval of the first article testing unit. The Navy explained that the contract modification was necessary because the Navy issued a delivery order for the first LPE production units “sooner than anticipated,” due to budgetary concerns.
The government also acknowledged that the Navy’s delivery order did not ensure that Hamilton would have sufficient time to comply with the RFP’s delivery schedule after first article testing approval. Given this acknowledged error on the part of the Navy, the court held that the purpose of the contract modification was to correct an error, rather than to grant relief previously denied to Treadwell.
The court also rejected Treadwell’s assertion that the post-award schedule change constituted a cardinal change to the contract, because Treadwell could not have anticipated such a change after the Navy had earlier denied Treadwell’s request to modify the delivery schedule. The court held that the modification to the delivery schedule was well within the scope of the original contract, and was a clarification rather than a cardinal change.
Treadwell Corporation is represented by Anthony J. Marchese, Pamela J. Bethel, Carol L. O’Riordan, and Taimur Rabbani of O’Riordan Bethel Law Firm LLP. The government is represented by Sean L. King, Trial Attorney, Douglas K. Mickle, Assistant Director, Robert E. Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney General, Commercial Litigation Branch, Civil Division, Department of Justice; and by Gary M. Saladino and Jonathan D. Pavlovcak, Department of the Navy, Naval Surface Warfare Center. Hamilton Sundstrand Corporation is represented by John W. Chierichella, Keith R. Szeliga, and Adam A. Bartolanzo of Sheppard Mullin Richter & Hampton LLP.
