B-184379, AUG 18, 1975

B-184379, AUG 18, 1975

THE DISMISSAL BY DISTRICT COURT (E.D.N.Y.) OF COMPLAINT REQUESTING BOTH PRELIMINARY INJUNCTION PENDING RESOLUTION OF PROTEST FILED WITH GENERAL ACCOUNTING OFFICE AND PERMANENT INJUNCTIVE RELIEF THAT WOULD COMPEL MILITARY SEALIFT COMMAND, ATLANTIC (DEPARTMENT OF THE NAVY), TO AWARD CONTRACT TO PROTESTER WAS, ACCORDING TO FEDERAL RULE OF CIVIL PROCEDURE 41(B), A FINAL ADJUDICATION ON MERITS ON PERMANENT INJUNCTIVE RELIEF SOUGHT AND ALL ISSUES IN CONTROVERSY. CONSEQUENTLY, PROTEST WILL NOT BE CONSIDERED FURTHER.

PERTH AMBOY DRYDOCK COMPANY:

ON JULY 2, 1975, A PROTEST WAS RECEIVED BY OUR OFFICE FROM PERTH AMBOY DRYDOCK COMPANY. THE COMPANY CONTENDED THAT THE MILITARY SEALIFT COMMAND, ATLANTIC (DEPARTMENT OF THE NAVY), IMPROPERLY CANCELED INVITATION FOR BIDS (IFB) NO. N62381-75-B-0037 (UNDER WHICH PERTH AMBOY ALLEGEDLY SUBMITTED THE LOWEST BID) AND RESOLICITED THE WORK CALLED FOR UNDER THE CANCELED IFB. SHORTLY AFTER THE PROTEST WAS FILED, THE DEPARTMENT GAVE INFORMAL ADVICE TO OUR OFFICE AND THE INTERESTED PARTIES OF ITS INTENTION TO MAKE AN IMMEDIATE AWARD TO A COMPANY OTHER THAN PERTH AMBOY UNDER THE RESOLICITATION.

BY COMPLAINT FILED ON JULY 11, 1975, WITH THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, PERTH AMBOY REQUESTED THAT THE COURT ISSUE A PERMANENT INJUNCTION ENJOINING AND RESTRAINING THE DEPARTMENT FROM ENTERING INTO A CONTRACT FOR THE WORK IN QUESTION WITH ANYONE OTHER THAN ITSELF (OR, IF A CONTRACT HAD BEEN AWARDED UNDER THE READVERTISEMENT, ENJOINING WORK UNDER THE AWARD). THE COMPLAINT ALSO REQUESTED THAT THE COURT ORDER THE DEPARTMENT TO ENTER INTO A CONTRACT WITH PERTH AMBOY AT THE PRICE THE COMPANY BID UNDER THE CANCELED IFB. FINALLY, THE COMPLAINT REQUESTED THAT THE COURT GRANT A PRELIMINARY INJUNCTION RESTRAINING THE DEPARTMENT FROM CONTRACTING WITH ANYONE OTHER THAN PERTH AMBOY, OR, IN THE ALTERNATIVE, RESTRAINING "SUCH CONTRACTING OR THE PERFORMANCE OF SUCH CONTRACT," UNTIL THE GENERAL ACCOUNTING OFFICE HAD RULED ON THE PROTEST.

BY ORDER DATED JULY 29, 1975, THE COURT DENIED PERTH AMBOY'S MOTION FOR A PRELIMINARY INJUNCTION AND DISMISSED THE COMPLAINT.

FEDERAL RULE OF CIVIL PROCEDURE 41(B), ENTITLED "INVOLUNTARY DISMISSAL: EFFECT THEREOF," PROVIDES AS FOLLOWS:

"*** UNLESS THE COURT IN ITS ORDER FOR DISMISSAL OTHERWISE SPECIFIES, A DISMISSAL UNDER THIS SUBDIVISION AND ANY DISMISSAL NOT PROVIDED FOR IN THIS RULE, OTHER THAN A DISMISSAL FOR LACK OF JURISDICTION, FOR IMPROPER VENUE, OR FOR FAILURE TO JOIN A PARTY UNDER RULE 19, OPERATES AS AN ADJUDICATION UPON THE MERITS."

THE ORDER HERE DOES NOT "OTHERWISE SPECIFY." HENCE, THE DISMISSAL OF THE COMPLAINT OPERATES AS A FULL ADJUDICATION UPON THE MERITS.

SINCE PERTH AMBOY REQUESTED RELIEF IN THE FORM OF PERMANENT INJUNCTION COMPELLING THE DEPARTMENT TO ENTER INTO A CONTRACT WITH PERTH AMBOY, IN ADDITION TO ITS REQUEST FOR A PRELIMINARY INJUNCTION PENDING A RULING BY OUR OFFICE ON THE JULY 2 PROTEST, THE COURT'S DISMISSAL OF THE ENTIRE COMPLAINT HAD THE EFFECT OF A FINAL ADJUDICATION ON THE MERITS ON THE PERMANENT INJUNCTIVE RELIEF SOUGHT AND ON ALL ISSUES IN CONTROVERSY. MUST THEREFORE HONOR THE COURT'S RULING. SEE 51 COMP. GEN. 37 (1971).

CONSEQUENTLY, WE WILL NOT CONSIDER THE PROTEST FURTHER.