              NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
              not citable as precedent. It is a public record.

     United States Court of Appeals for the Federal Circuit


                                       06-5022



                    INDUSTRIAL DOOR CONTRACTORS, INC.,

                                                          Plaintiff-Appellant,

                                          v.

                                  UNITED STATES,

                                                          Defendant-Appellee.



                          __________________________

                          DECIDED: September 22, 2006
                          __________________________


Before NEWMAN, MAYER, and LINN, Circuit Judges.

PER CURIAM.

      Industrial Door Contractors, Inc. (“IDC”) appeals the final judgment of the United

States Court of Federal Claims, which granted summary judgment in favor of the United

States. Indus. Door Contractors, Inc. v. United States, No. 01-CV-411 (Fed. Cl. Sept.

21, 2005). We reverse and remand.

      In 2000, the Smithsonian Institution (“Smithsonian”) advertised for the

construction of the Udvar Hazy Center, which is part of its National Air and Space

Museum. The solicitation included a project for the manufacture and installation of
three hangar doors at the new center.            On July 26, 2000, IDC, a prospective

subcontractor for the project, filed a protest asserting that certain solicitation aspects,

including the years of experience required, requiring such experience for each door, and

requiring a single manufacturer for all doors, were unduly restrictive. Along with its

protest, IDC submitted its experience for two of the door types, but not the third type.

On that same day, but prior to receiving IDC’s protest, the Smithsonian issued an

amendment to the solicitation that, inter alia, lowered the experience requirement from

35 years to 5 years, but still required such experience for each door type and a single

manufacturer for all of the doors.

       John Lapiana, Assistant General Counsel for the Smithsonian, was assigned to

represent the Smithsonian in IDC’s protest. On August 10, 2000, he sent IDC’s attorney

a letter by facsimile stating:

                      This letter confirms our conversation today that,
              based upon the information submitted to the General
              Accounting Office in the course of this protest, Industrial
              Door Contractors, Inc. (“IDC”) satisfies the door
              manufacturer experience requirements as set forth in the
              solicitation. This determination is made pursuant to the
              modifications issued contemporaneously with the filing of
              this protest and, in no way, should be interpreted as an
              endorsement or prior evaluation of any bid that IDC may
              submit or otherwise participate in, except to the extent
              described above.

                     As I believe you are aware, the deadline for bids on
              the project has been extended to August 24, 2000.

                    If there is any additional information that you may
              need in withdrawing the protest, please do not hesitate to
              contact me.


This letter was accompanied by a cover sheet stating, “Is this sufficient?” In light of this

letter, IDC withdrew its protest.


06-5022                                      2
       After the prime contract for the project was awarded, the contractor instructed

IDC to provide a submittal to the project’s architect. IDC’s submission did not contain

any information on its experience in manufacturing one of the door types, and the

Smithsonian and the contractor rejected it, stating that the experience requirements

were not met and the information provided was incomplete. IDC was requested to

prepare a revised submission, but after attempts to resolve the dispute failed, IDC sued

the government in the Court of Federal Claims, claiming that the August 10th letter

reflected a settlement agreement that the government breached. The court granted

summary judgment in favor of the government, holding there was no mutual intent to

contract because the alleged offer was ambiguous.

       “In the absence of factual disputes, the question of contract formation is a

question of law, reviewable de novo.” Trauma Serv. Group v. United States, 104 F.3d

1321, 1325 (Fed. Cir. 1997) (citations omitted). “Any agreement can be a contract

within the meaning of the Tucker Act provided that it meets the requirements for a

contract with the Government, specifically: mutual intent to contract including an offer

and acceptance, consideration, and a Government representative who had actual

authority to bind the Government.” Cal. Fed. Bank, FSB v. United States, 245 F.3d

1342, 1346 (Fed. Cir. 2001) (citations omitted). A claimant may establish the presence

of an offer by showing the offeror’s “manifestation of willingness to enter into a bargain,

so made as to justify another person in understanding that his assent to that bargain is

invited and will conclude it.” Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir.

2003) (quoting Restatement (Second) of Contracts § 24 (1981)) (additional citation

omitted).




06-5022                                     3
       Contrary to the trial court’s finding, the government made an unambiguous offer

to IDC, as reflected in its August 10th letter stating that IDC “satisfies the door

manufacturer experience requirements as set forth in the solicitation.” Although IDC

had not submitted, and the government had not reviewed, its qualifications for one of

the doors when this offer was made, we do not read the language “based upon the

information submitted . . . in the course of this protest” as limiting the statement that IDC

met the experience requirements.        Instead, it merely provided the basis, however

justified or unjustified, for reaching the conclusion that IDC was qualified. Nor does the

final sentence in the first paragraph limit the qualification statement: “This determination

. . . in no way, should be interpreted as an endorsement or prior evaluation of any bid

that IDC may submit or otherwise participate in, except to the extent described above.”

(emphasis added). To the contrary, the phrase “except to the extent described above”

indicates that there was an endorsement or prequalification in the letter, but that it

extended no further than recited there.      This sentence means that IDC still had to

compete for the bid and meet any other requirements, but it did not limit the previous

statement that IDC met the experience requirements for the entire solicitation. Because

the offer was not ambiguous, the trial court erred in finding no mutuality of intent to

contract on this ground.

       The circumstances show a mutual desire to enter into a contractual agreement.

The government sent the August 10th letter, stating “If there is any additional

information that you may need in withdrawing the protest, please do not hesitate to

contact me.” In light of this language, there can be no doubt that the letter was sent in

contemplation of the protest being withdrawn.           The government also previously




06-5022                                      4
indicated that it would move to dismiss the protest if it was not “otherwise resolved,”

which further indicates a willingness to settle the dispute.

       All remaining elements of contract formation have been established.        It is

indisputable that IDC accepted the government’s offer and that consideration was

present, namely IDC withdrawing the protest in exchange for the prequalification. And

as the attorney assigned to represent the Smithsonian in IDC’s protest, Lapiana had

authority to settle the protest. On remand, the trial court must determine whether the

contract was breached and, if so, fashion an appropriate remedy.




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