B-180929, APR 24, 1974

B-180929: Apr 24, 1974

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WHERE ISSUES BEFORE COURT AND GAO ARE BASICALLY THE SAME AND ARE LIKELY TO BE DISPOSED OF BY COURT. GAO WILL NOT RENDER A DECISION ON PROTEST. IT APPEARS THAT ALLENBERG WAS THE LOW BIDDER ON PORTIONS OF ITEMS 1 AND 15 AS OF THE TIME OF BID OPENING ON MARCH 7. THE FILE FURTHER INDICATES THAT ALLENBERG WAS FIRST INFORMED THAT ITS BID WAS REJECTED BECAUSE IT DID NOT OFFER A SPECIFIC SHIPPING DATE AND THAT SUBSEQUENTLY ALLENBERG WAS NOTIFIED THAT ITS BID WAS REJECTED "FOR NOT SPECIFYING THE MICRONAIRE AND PRESSLEY (CERTAIN QUANTITIES) OF COTTON IT PROPOSED TO SELL.". ALLENBERG'S PROTEST TO OUR OFFICE WAS FILED BY TELEGRAM OF MARCH 27. IN PARAGRAPH 18 OF THE COMPLAINT IT IS URGED THAT ANY DECISION BY THIS OFFICE WHICH DOES NOT DIRECT CANCELLATION OF THE TENTATIVE CONTRACTS AND AWARD TO ALLENBERG WOULD BE ARBITRARY.

B-180929, APR 24, 1974

WHERE ISSUES BEFORE COURT AND GAO ARE BASICALLY THE SAME AND ARE LIKELY TO BE DISPOSED OF BY COURT, GAO WILL NOT RENDER A DECISION ON PROTEST.

TO ALLENBERG COTTON COMPANY:

ALLENBERG COTTON COMPANY HAS PROTESTED THE TENTATIVE AWARD OF CONTRACTS TO OTHER FIRMS FOR PORTIONS OF TWO ITEMS UNDER INVITATION FOR BIDS NO. 74/102/VPO/C, ISSUED ON MARCH 4, 1974, BY THE VIETNAM OVERSEAS PROCUREMENT OFFICE (VINOPO) FOR THE SALE OF COTTON TO THAT ACTIVITY WITH FUNDS PROVIDED BY THE DEPARTMENT OF AGRICULTURE PURSUANT TO THE AGRICULTURAL TRADE DEVELOPMENT AND ASSISTANCE ACT OF 1954, AS AMENDED, 7 U.S.C. 1691 ET SEQ. FOR THE REASONS STATED BELOW WE DECLINE TO TAKE ANY ACTION WITH RESPECT TO THIS PROTEST.

IT APPEARS THAT ALLENBERG WAS THE LOW BIDDER ON PORTIONS OF ITEMS 1 AND 15 AS OF THE TIME OF BID OPENING ON MARCH 7, 1974 UNDER THE SUBJECT SOLICITATION BUT THAT ON MARCH 8, 1974, ALLENBERG RECEIVED INFORMATION THAT TENTATIVE AWARDS FOR THOSE ITEMS HAD BEEN MADE TO OTHER FIRMS AT SUBSTANTIALLY HIGHER PRICES. THE FILE INDICATES THAT ON MARCH 11, 1974, ALLENBERG PROTESTED THE TENTATIVE AWARDS TO THE DEPARTMENT OF AGRICULTURE URGING THE DEPARTMENT TO INVESTIGATE THE ENTIRE MATTER AND TO REQUIRE VINOPO TO AWARD THE CONTRACT TO ALLENBERG. THE FILE FURTHER INDICATES THAT ALLENBERG WAS FIRST INFORMED THAT ITS BID WAS REJECTED BECAUSE IT DID NOT OFFER A SPECIFIC SHIPPING DATE AND THAT SUBSEQUENTLY ALLENBERG WAS NOTIFIED THAT ITS BID WAS REJECTED "FOR NOT SPECIFYING THE MICRONAIRE AND PRESSLEY (CERTAIN QUANTITIES) OF COTTON IT PROPOSED TO SELL."

ALLENBERG'S PROTEST TO OUR OFFICE WAS FILED BY TELEGRAM OF MARCH 27, 1974 (APPARENTLY BEFORE ALLENBERG RECEIVED A FORMAL REPLY FROM THE AGENCY). ITS PROTEST TO OUR OFFICE, ALLENBERG URGES THAT UNDER TITLE 7, CODE OF FEDERAL REGULATIONS SECS. 17.6 AND 17.7, THE DEPARTMENT OF AGRICULTURE MUST RECOGNIZE THE SAVINGS IN THE PRICES SUBMITTED BY ALLENBERG AS THE PREVAILING EXPORT MARKET PRICE APPLICABLE TO THE QUANTITY AND QUALITY OF COTTON SPECIFIED IN ITEMS NOS. 1 AND 15 AND THAT ANY APPROVAL OF THE TENTATIVE AWARDS BY AGRICULTURE AT PRICES HIGHER THAN THE PREVAILING EXPORT MARKET PRICE VIOLATES APPLICABLE LAW AND REGULATIONS.

MEANWHILE, ON MARCH 27, 1974, ALLENBERG FILED A COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE, CIVIL ACTION NO. 74-191. IN THE "MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION AND DECLARATORY RELIEF", FILED IN CONNECTION WITH THE COURT PROCEEDING, ALLENBERG HAS MADE SUBSTANTIALLY THE SAME ARGUMENT AS IN THE PROTEST TO OUR OFFICE. ACCORDINGLY, ALLENBERG HAS ASKED THE COURT TO GRANT AN INJUNCTION TO RESTRAIN ANY PERFORMANCE UNDER THE TENTATIVE AWARDS AND TO DECLARE AND ADJUDGE THE RIGHTS AND OBLIGATIONS OF THE PARTIES. THIS OFFICE HAS BEEN JOINED AS A PARTY DEFENDANT IN THE COURT PROCEEDING, AND IN PARAGRAPH 18 OF THE COMPLAINT IT IS URGED THAT ANY DECISION BY THIS OFFICE WHICH DOES NOT DIRECT CANCELLATION OF THE TENTATIVE CONTRACTS AND AWARD TO ALLENBERG WOULD BE ARBITRARY, CAPRICIOUS AND NOT IN ACCORDANCE WITH THE LAW.

ON APRIL 5, 1974, THE COURT ISSUED A PRELIMINARY INJUNCTION RESTRAINING THE DISBURSEMENT OF ANY FUNDS TO PURCHASE COTTON FROM ANY FIRM OTHER THAN ALLENBERG ON THOSE PORTIONS OF THE PROCUREMENT FOR WHICH ALLENBERG WAS LOW BIDDER. ALSO, IN AN ACCOMPANYING LETTER ADDRESSED TO THE VARIOUS PARTIES TO THE PROCEEDINGS, THE COURT ADVISED THAT A NON-JURY TRIAL OF THE MATTER HAS BEEN SCHEDULED FOR APRIL 24, 1974.

IN B-178224, B-179173, MARCH 29, 1974, WE CONSIDERED A SITUATION WHERE THE SAME ISSUES RAISED IN A PROTEST TO OUR OFFICE WERE ALSO BEFORE A COURT AND WE STATED AS FOLLOWS:

"*** SINCE WE WILL NOT RENDER A DECISION ON A PROTEST WHERE THE MATERIAL ISSUES INVOLVED ARE LIKELY TO BE DISPOSED OF IN LITIGATION BY A COURT OF COMPETENT JURISDICTION, THIS OFFICE WILL TAKE NO ACTION ON DCEL'S PROTESTS. B-174052, AUGUST 29, 1972; 4 CFR 20.11. SEE ALSO B 177197(1). AUGUST 9, 1973. ALTHOUGH WE CONSIDER PROTESTS NOTWITHSTANDING PENDING LITIGATION WHERE THE COURT INDICATES A DESIRE FOR A DETERMINATION BY THIS OFFICE, SUCH AS THE GRANTING OF INJUNCTIVE RELIEF PENDING RESOLUTION BY THIS OFFICE, IN THIS CASE THE COURT WAS NOT REQUESTED TO GRANT INJUNCTIVE RELIEF FOR THIS PURPOSE. B-172648, JULY 29, 1971."

THE COURT IN THIS CASE HAS NOT REQUESTED DETERMINATION OF ALLENBERG'S PROTEST BY OUR OFFICE. SINCE THE ISSUES RAISED IN ALLENBERG'S PROTEST TO OUR OFFICE ARE PRESENTLY BEFORE THE COURT AND IT SEEMS LIKELY THAT THE COURT WILL DISPOSE OF THOSE ISSUES, OUR OFFICE WILL NOT TAKE ANY FURTHER ACTION WITH RESPECT TO THIS MATTER.