FAR 1.602-2:  Contracting Officer Responsibilities

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)

U. S. Court of Federal Claims - Listing of Decisions

For the Government For the Protester
  R & W FLAMMANN GmbH, v. THE UNITED STATES, No. 02-800C, September 23, 2002


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