Free Response to Motion - District Court of Federal Claims - federal

Case 1:08-cv-00261-LAS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST CONTAINS PRIVILEGED AND CONFIDENTIAL SOURCE SELECTION INFORMATION AND CONTRACTOR BID AND PROPOSAL INFORMATIONFILED UNDER SEAL AND SUBJECT TO PROTECTIVE ORDER WATTS-HEALY TffiBITTS, A JV
Plaintiff,
) ) ) ) ) ) ) ) )

v.
THE UNITED STATES,
Defendant.

No.08-261C (Senior Judge Smith)

SECOND DECLARAnON OF MELYIN S. YOSHIMURA

I, MELVIN S. YOSHIMURA, pursuant to 28 U.S.C. § 1746, do hereby declare as follows:

SUBJECT: RFP N62742-o7-R-1314/CONTRACT N62742-o8-C-1301, FY'08 MCO P-S02 KILO WHARF EXTENSION, COMNA YMAR, MAIN BASE, GUAM
I. 1 am currently serving as Branch Manager of the Architect-Engineer Contracts II Branch, NAVFAC Pacific. Until recently, I was serving as Branch Manager of the Architect-Engineer/Construction Contracts Branch, NAVFAC Pacific for the past five years. At all times relevant to this acquisition, I served as the Procuring Contracting Officer ("PCO") for Request for Proposal (RFP) N62742-07-R-13l4/Contract N62742-08C-130 I, FY08 MCON P-S02, Kilo Wharf Extension at the Commander, Naval Region Marianas, Main Base, Guam ("P-S02 RFP").

2. On or about April 21 , 2008, Mr. Dennis Watts, President of Watts Constructors, LLC, (W ATIS), telephoned me to arrange for a meeting. On April 24, 2008, Mr. Watts and Mr. Richard Heltzel of Healy-Tibbitts Builders, Inc. (HTB) met with myself and Ms. Alice Mende, Contract Specialist at NAVFAC Pacific's offices in Pearl Harbor, Hawaii. At that meeting, Mr. Watts and Mr. Heltzel informed me that they had recently been made aware of Japanese newspaper articles and other information reporting that TOA Corporation had been involved in alleged bid rigging incidents. Mr. Watts submitted these newspaper articles and other information to me for my review. Exhibit I.

Case 1:08-cv-00261-LAS

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3. I have reviewed the material provided to me by Mr. Watts. 4. As best I can determine, the materials appear to be newspaper articles or translations of newspaper articles discussing TOA Corporation, including discussion of fines and suspensions by one or more Japanese government agencies. Also provided is a document entitled "Cease and Desist Order and Surcharge Payment Order Against Corporate Bidders for the Subway Construction Project Commissioned by the City of Nagoya." This order mentions three companies by name: Morimoto Corporation, Takenaka Civil Engineering & Construction Co., and Meiko Construction Co. 5. As Procuring Contracting Officer, I am ultimately responsible for conducting the preaward survey and the responsibility determination on the successful contractor. In performing my duties, I rely on the analysis of my procurement tearn members, which include a contract specialist working under my supervision and, as necessary, NAVFAC Pacific's assigned legal counsel. 6. Pursuant to FAR § 9.104, the Contractor is required to have a satisfactory record of integrity and business ethics. The Contractor's responsibility is determined as of the date of award. 7. With respect to the incidents in the materials provided by Mr. Watts, neither T, nor to my knowledge, any members of my procurement team, had any knowledge of the alleged fines and suspensions prior to Mr. Watts having presented the information to me. 8. The following is a description of the procedures that my staff followed to perform the responsibility review for this procurement: · · · · · Verify SF 1442, Solicitation, Offer and Award, for authorized signatures. Verify acknowledgment of Amendments 0001- 0010 to the RFP. Verify bid acceptance period of 120 days. Very bid bond for signatures, amount, and approved surety (at Treasury Circular at http://fms.treas.gov/)3 Verify price: Determine price is within a reasonable range. Confirm pricing with mCITOA. Verify mathematical extension of unit prices. Verify business registration, articles of incorporation, etc. Verify contractor's ability to perform work under guidelines established by the Japanese Ministry of Construction in conjunction with Japanese Constitutional prohibitions, relating to World War IT (facilities for weapons). Verify contractor and key personnel for any debarment on EPLS at http://www.epls.gov/. Verify satisfactory record ofperfonnance (CCASS, etc.). Review Dun & Bradstreet. Verify tax compliance with Guam Department of Taxation. Verify registration in CCR at http://www.ccr.gov/.

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Verify legal name agreement between SFJ442, SF30, CCR, ORCA, bonds, joint venture agreement, etc. Verify Representations & Certifications: Verify RFP Document 00600, Representation and Certifications for ConlIacting by Negotiation. Verify Online Representations and Certifications Application (ORCA) at http://orca.bpn.gov/. Review financial capabilities: Review financial statements. Review financial ratios on company's cashflow, liquidity, ability to pay it current obligations, etc. Review line of credit. Review existing commitments of current projects. Review joint venture agreement and address particular issues with regard to the joint venture agreement. Conduct search on an internet search engine of the offeror.

9. The procedures described above did not reveal any of the information presented by Mr. Watts concerning the alleged fines and suspensions. 10. My procurement team was aware that International Bridge Corporation's (!BC's) articles of incorporation were cancelled before award by the Ohio Secretary of State. When we asked !BCrrOA Corp. about the cancellation during discussions, they informed us that they were unaware that their annual $25.00 annual franchise renewal fee had not been paid to the Ohio Secretary of State. !BC promptly corrected this issue and informed us that their Articles of Incorporation were reinstated by the Ohio Secretary of State before conlIact award. !BC informed the ConlIacting Officer that the Ohio Secretary of State did not mail over 50,000 letters to inform those of any errors or cancellations. Prior to award, a conlIact specialist on my team confirmed that !BC's Articles of Incorporation was successfully reinstated with the Ohio Secretary of State. Exhibit 2. II. The Government's final determination, as part of the Contractor's compliances and responsibility, on this issue is as follows (printed verbatim):
Ohio Secretary Articles of Incorporation. IBC articles of incorporation/certificate of authority was inadvertently cancelled by the Ohio Secretary of State (aSS) due to an error in the amount of renewal fees paid as the amount had changed from the previous year. IBC indicated that the ass did not mail over 50.000 letters to inform those of any errors or cancellations. The ass has corrected the error, and IBC's articles of incorporation/certificate of authority have been reinstated.

12. After the Government raised the issue of non-payment of the $25.00 fee during discussions, !BC stated that they had no prior knowledge of the non-payment. !BC promptly paid the fee, and its status was restored by the Ohio Secretary of State. J3. !BCrrOA Corporation was properly registered in the CCR data base as of the time of award, March 26, 2008. The CCR regislIation is provided as Exhibit 3.

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14. As previously disclosed, my analysis that mCrrOA Corporation was a U.S. firm, is provided verbatim below: U.S. Finn Preference. IBerrOA has completed provision DFARS 252.236-7010, Overseas Military Construction - Preference for United States Firms (JAN 1997), indicating that they are a "United Stales firm," as used in this provision, meaning that a firm incorporated in the United States that complies with the following: (1) the corporate headquarters are in the United Stales - mCrrOA indicated that their office is located in Barrigada, Guam; (2) the firm has filed corporate and employment tax returns in the United States for a minimum of 2 years (if required), hasfiled State and Federal income tax returns (if required) for 2 years. and has paid any taxes due as a result ofthese filings - IBerrOA indicated that the N is newly formed and has not been required to rtle returns or pay taxes; in addition, me indicated that they have ftled corporate and employment tax returns in the U.S. for more than 2 years, have filed State and Federal income tax returns for more than 2 years, and has paid all taxes due as a result of those filings; and (3) the firm employs United States citizens in key management positions - IBCrrOA indicated that the N employs U.S. citizens, including Robert Toelkes and William Toelkes in key management positions. The Government has reviewed mcrrOA's submittals and has agreed with IBerrOA's attestation regarding this provision. 15. The RFP and the awarded contract requires that the prime contractor (mCrrOA Corporation) perform 20% of the work. Exhibit 4. 16. [declare under penalty of peIjury that the foregoing is tru

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