Free Response to Cross Motion [Dispositive] - District Court of Federal Claims - federal

Case 1:07-cv-00712-MMS

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In the United States Court of Federal Claims
) PRECISION IMAGES, LLC, ) ) Plaintiff, ) ) BID PROTEST v. ) No. 07-712C ) Judge Margaret M. Sweeney THE UNITED STATES, ) ) Defendant, ) ) and ) ) GE INSPECTION TECHNOLOGIES, LP, ) ) Intervenor. ) ) COUNTER-STATEMENT OF FACTS Plaintiff Precision Images, LLC, 10741-B Endeavour Way, Largo, Florida 337771624 (Precision Images), in compliance with RCFC 52.1(b), sets out the following Counter-Statement of Facts necessary to resolve the issues presented in this PostAward Procurement Protest. Agreed-Upon Redacted Copy May Be Made Public

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1. It is not true that under the terms of Solicitation Number FA8533-07-R-11523 a neutral rating, i.e., an overall Performance confidence assessment rating of "Unknown Confidence," may be considered as less favorable than another overall Performance confidence assessment rating, i.e., an overall Performance confidence assessment rating of "Satisfactory Confidence," or an overall Performance confidence assessment rating of "Significant Confidence," or an overall Performance confidence assessment rating of "High Confidence." Solicitation Number FA8533-07-R-11523 does not provide that a neutral rating, i.e., an overall Performance confidence assessment rating of "Unknown Confidence," can be considered, without thereby becoming an unfavorable rating on Performance, as any less favorable than another overall Performance confidence assessment rating. 2. Solicitation Number FA8533-07-R-11523 provides only that an overall Performance confidence assessment rating of "Unknown Confidence" will "be considered in the overall assessment for a best value decision." Administrative Record, at 130. Under Solicitation Number FA8533-07-R-11523 an Offeror without a record Protected Information Has Been Redacted -2-

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of the Performance deemed "Relevant" by Solicitation Number FA8533-07-R-11523, i.e., the manufacture of microprocessor-based inspection equipment with a display, may not receive any overall Performance confidence assessment rating whatsoever other than an overall Performance confidence assessment rating of "Unknown Confidence," Administrative Record, at 129 through 131, and this overall Performance confidence assessment rating of "Unknown Confidence" may not be evaluated favorably or unfavorably on Performance. 3. Under the array of possible overall Performance confidence assessment ratings set out in Solicitation Number FA8533-07-R-11523, i.e., in descending order, "High Confidence," "Significant Confidence," "Satisfactory Confidence," "Unknown Confidence," "Little Confidence," and "No Confidence," Administrative Record, at 130 through 131, an overall Performance confidence assessment rating of "Little Confidence" is a lesser rating than an overall Performance confidence assessment rating of "Unknown Confidence."

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4. Under the array of possible overall Performance confidence assessment ratings set out in Solicitation Number FA8533-07-R-11523, i.e., in descending order, "High Confidence," "Significant Confidence," "Satisfactory Confidence," "Unknown Confidence," "Little Confidence," and "No Confidence," Administrative Record, at 130 through 131, an overall Performance confidence assessment rating of "Little Confidence," rather than an overall Performance confidence assessment rating of "Unknown Confidence," is an unfavorable evaluation of Performance. 5. Possible overall Performance confidence assessment ratings set out in Solicitation Number FA8533-07-R-11523, e.g., in descending order, the ratings of "High Confidence," Significant Confidence," "Satisfactory Confidence," "Little Confidence," and "No Confidence," Administrative Record, at 130 through 131, may be assigned based only on Performance deemed "Relevant" by Solicitation Number FA8533-07-R-11523, i.e., any one of these overall Performance confidence assessment ratings other than the "Unknown Confidence" overall Performance confidence assessment rating may be assigned based only on the manufacture of microprocessorProtected Information Has Been Redacted -4-

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based inspection equipment with a display, Administrative Record, at 129 through 131. 6. The Present/Past Performance "FACTS Sheet" as set out in Solicitation Number FA8533-07-R-11523 requires (in the last of three columns) each Offeror's assessments of specific Performance compared to the Air Force's Performance Confidence Assessment Group's assessment only of "Production" and also compared to the Air Force's Performance Confidence Assessment Group's assessments only of specific performance attributes for the required commercial off-the-shelf lightweight, hand-held flaw detectors, these including, inter alia, "COTS or Modified COTS," "Handheld," "Lightweight," "Color display," and "Freeze and store screen displays." Administrative Record, at 136. 7. The Present/Past Performance "FACTS Sheet" as set out in Solicitation Number FA8533-07-R-11523 does not allow the Air Force's Performance Confidence Assessment Group to assess generic Performance. Instead this Present/Past Performance "FACTS Sheet" requires assessments by the Air Force's Performance Protected Information Has Been Redacted -5-

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Confidence Assessment Group only of "Production" and there only of specific performance attributes for the required commercial off-the-shelf lightweight, handheld flaw detectors, these including, inter alia, "COTS or Modified COTS," "Handheld," "Lightweight," "Color display," and "Freeze and store screen displays." Administrative Record, at 136. 8. The Air Force's total estimated Contract value of Record at 5-6, 82, 86, 732, 734, 746, 748, and 901 , Administrative in the Market Re-

search Report, Administrative Record, at 41, 777) is not based on procurement history. The Air Force has no procurement history (and thus no past performance records) of requirements for hundreds of commercial off-the-shelf lightweight, handheld ultrasonic flaw detectors. Respectfully submitted, /s/ Cyrus E. Phillips, IV Cyrus E. Phillips, IV District of Columbia Bar Number 456500, Virginia State Bar Number 03135 Protected Information Has Been Redacted -6-

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October 24th, 2007 1828 L Street, N.W., Suite 660 Washington, D.C. 20036-5112 Telephone: Facsimile: Electronic Mail: (202) 466-7008 (202) 466-7009 [email protected]

Attorney of record for Plaintiff, Precision Images, LLC.

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CERTIFICATE OF SERVICE I hereby certify, under penalty of perjury, that on Wednesday, October 24th, 2007 a true and complete copy of this Counter-Statement of Facts was filed electronically via the Court's Electronic Case Filing System, through which notice of this filing will be sent to: Joseph E. Ashman, Esq. Electronic Mail: [email protected]

Attorney of record for Defendant, Department of the Air Force, Air Force Materiel Command. I also certify, under penalty of perjury, that on Wednesday, October 24th, 2007 a true and complete copy of this Counter-Statement of Facts was filed electronically via the Court's Electronic Case Filing System, through which notice of this filing will be sent to: David A. Churchill, Esq. Electronic Mail: [email protected]

Attorney of record for Intervenor, GE Inspection Technologies, LP. /s/ Cyrus E. Phillips, IV Cyrus E. Phillips, IV Protected Information Has Been Redacted -8-