# In the United States Court of Federal Claims

No. 15-1300 C

(E-Filed September 13, 2017) 1

_____________________________________ )

BALDI BROS, INC., ) ) ) Plaintiff, ) Motion for Summary Judgment; ) RCFC 56; Contract Disputes Act;

v. ) ) 41 U.S.C. § 7104 (2012) ; 48 C.F.R. § 14.407

- 4 )

THE UNITED STATES OF AMERICA, ) )

Defendant.

_____________________________________ ) )

William Johan Braun, La Jolla, CA , for plaintiff.

Daniel Kenneth Greene, Trial Counsel, with whom were Chad A. Readler, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Martin F. Hockey, Jr., Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant.

OPINION

CAMPBELL- SMITH, Judge

1 This opinion was issued and placed under seal on August 25, 2017. See ECF No. 28. Pursuant to the court’s Notice and Order of August 25, 2017, the parties were directed to file their proposed redactions, on or before September 8, 2017, identifying source selection, proprietary or confidential material subject to deletion on the basis that the material was protected/privileged. Defendant filed its proposed redactions on September 8, 2017. See ECF No. 31. Defendant stated in its proposed redactions filing that plaintiff did not respond to the government’s request to comment on their proposed redactions. As of the filing of this opinion, the court has not heard from plaintiff on this matter. Defendant’s redactions were acceptable to the court. Accordingly, all redactions are indicated by brackets ([ ]).4 for convenience and award it to the lowest bidder. See id. at 4. In the present case, plaintiff disputes these findings, and asks the court to award damages in the amount of its certified claim, $961,132.39, plus interest. See id. at 5.

II. Legal Standards

Plaintiff brings this case pursuant to the Contract Disputes Act. See ECF No. 1 at 1 (citing 41 U.S.C. § 609(a)(1), presumably referring to the code section that now appears as 41 U.S.C. § 7104(b)(1) (2012)). In order for this court to exercise jurisdiction under the Contract Disputes Act, “both a valid claim and a contracting officer’s final decision on that claim,” are required. M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) (citing James M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1541-42 (Fed.Cir.1996)). See also Lee’ s Ford Dock, Inc. v. Se c’ y of the Army, No. 2016-2308, 2017 WL 3272087, at *7 (Fed. Cir. Aug. 2, 2017) (holding that the court lacked jurisdiction pursuant to the Contract Disputes Act to consider plaintiff’s claim that was not properly presented for final decision to the contracting officer). In addition, because the court’s review is de novo, the contracting officer’s decision is afforded no

deference. See 41 U.S.C. § 7104(b)(4) (2012) ; Wilner v. United States , 24 F.3d 1397, 1401 (Fed. Cir. 1994) (stating that “ when suit is brought following a contracting officer’ s decision, the findings of fact in that decision are not binding upon the parties and are not entitled to any deference”).

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. RCFC 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is genuine if it “may reasonably be resolved in favor of either party.” Id. at 250. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-48 (emphasis in original).

The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party to show that a genuine issue of material fact does exist such that the case should proceed to trial. Id. at 324.

The court must view the inferences to be drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987). The court, however, must not weigh the evidence or make findings of fact. See Anderson, 477 U.S. at 249 (“[A]t the summary judgment stage the judge’s function is not [herself] to weigh the evidence and determine the truth of the5 matter but to determine whether there is a genuine issue for trial.”); Ford Motor Co. v. United States, 157 F.3d 849, 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts do not make findings of fact on summary judgment.”).

This case involves a claim made pursuant to FAR 14.407-4, which provides, in

part:

( a) When a mistake in a contractor’s bid is not discovered until after award, the mistake may be corrected by contract modification if correcting the mistake would be favorable to the Government without changing the essential requirements of the specifications.

(b) In addition to the cases contemplated in paragraph (a) above or as otherwise authorized by law, agencies are authorized to make a

determination—

(1) To rescind a contract;

(2) To reform a contract (i) to delete the items involved in the mistake or (ii) to increase the price if the contract price, as corrected, does not exceed that of the next lowest acceptable bid under the original invitation for bids; or

(3) That no change shall be made in the contract as awarded, if the evidence does not warrant a determination under subparagraphs (1) or (2) above.

(c) Determinations under subparagraphs (b)(1) and (2) above may be made only on the basis of clear and convincing evidence that a mistake in bid was made. In addition, it must be clear that the mistake was (1) mutual, or (2) if unilaterally made by the contractor, so apparent as to have charged the contracting officer with notice of the probability of the mistake.

48 C.F.R. § 14.407-4 (2016).

III. Analysis

In the complaint, plaintiff characterizes its claim as an “Appeal of the Contracting Officer’s Final Decision,” and cites the Contract Disputes Act, 41 U.S.C. § 7104(b). ECF No. 1 at 4. As noted above, this court has jurisdiction to conduct a de novo review of an action brought following a final decision by a contracting officer. See M. Maropakis Carpentry, 609 F.3d at 1327; 41 U.S.C. § 7104(b)(4).7 see ECF No. 25 at 10. Because the court previously concluded that the figures in plaintiff’s certified claim are the relevant data here, the court need not resolve this matter. Even assuming the base item price was the proper metric for applying the requirements of FAR 14.407-4(b)(2)(ii), plaintiff’s price ($12,032,227) still exceeds the base item price submitted by Hal Hays Construction ($ [ ] ). As such, considering either the total contract price or the base item price, plaintiff has failed to establish that its bid does not exceed the next lowest acceptable bid.

The parties have no dispute regarding the figures submitted in connection with the various bids. Because the court reached its conclusion by applying the relevant law to those figures, any disputes of fact that may otherwise exist between the parties are immaterial to the court’s present analysis.

IV. Conclusion

For the foregoing reasons, defendant’s motion for partial summary judgment, ECF No. 22, which the court has deemed a motion for summary judgment is GRANTED

. The clerk’s office is directed to enter final judgment in favor of defendant,

DISMISSING plaintiff’s complaint with prejudice . Each party shall bear its own costs.

IT IS SO ORDERED.

s/ Patricia E. Campbell-Smith

PATRICIA E. CAMPBELL-SMITH Judge