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 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).

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