B-182265, JAN 13, 1975

B-182265, JAN 13, 1975

SINCE ENTITLEMENT TO AWARD IS MATERIAL ISSUE AT CORE OF BOTH PROTEST TO GAO AND SUIT FOR BID PREPARATION COSTS, DECISION ON PROTEST WILL NOT BE RENDERED SINCE ISSUE INVOLVED IS LIKELY TO BE DISPOSED OF IN LITIGATION AND NO VALID PURPOSE IS PERCEIVED IN PERMITTING FRAGMENTATION OF REMEDIES INVOLVING ESSENTIALLY THE SAME SUBJECT MATTER. 4 C.F.R. 20.11.

RUEBEN TURUNEN:

MR. RUEBEN TURUNEN PROTESTS THE AWARD OF A CONTRACT UNDER IFB 2592-8 8-74 ISSUED BY THE PUBLIC HEALTH SERVICE TO LAKEWOOD MECHANICAL CONTRACTORS (LAKEWOOD) FOR THE CONSTRUCTION OF A SANITATION FACILITY ON THE L'ANSE INDIAN RESERVATION, BARAGA COUNTY, MICHIGAN.

THE SOLICITATION PROVIDED FOR FOUR SEPARATE PHASES OR SCHEDULES: (1) SCHEDULE A, SEWAGE COLLECTION SYSTEM; (2) SCHEDULE B, WATER TREATMENT BUILDING; (3) SCHEDULE C, WASTE STABILIZATION LAGOON; AND (4) SCHEDULE D, LAGOON FENCING AND SEEDING.

ESSENTIALLY, MR. TURUNEN ALLEGES THAT HE WAS THE LOWEST RESPONSIBLE BIDDER ON SCHEDULES A AND D AND THAT LAKEWOOD'S HIGHER BID WAS QUALIFIED AND SHOULD HAVE BEEN REJECTED. THE PROTESTER CONTENDS THAT HE WAS THE VICTIM OF ARBITRARY AND CAPRICIOUS DISCRIMINATION AND THAT HE NOW SHOULD BE AWARDED THE CONTRACT.

WE HAVE BEEN ADVISED BY THE OFFICE OF GENERAL COUNSEL AT THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE THAT MR. TURUNEN HAS FILED SUIT, RUEBEN TURUNEN V. UNITED STATES, CASPAR WEINBERGER, SECRETARY OF H.E.W. AND VICTOR ANDERSON, CIVIL NO. M74-180CA (W.D. MICH., FILED OCT. 9, 1974). EXAMINATION OF THE COMPLAINT INDICATES THAT MR. TURUNEN IS SEEKING JUDGMENT AGAINST THE DEFENDANTS FOR BID PREPARATION COSTS AND LOST PROFITS TOGETHER WITH COSTS, INTEREST AND ATTORNEY FEES ON THE BASIS THAT HIS BID WAS NOT FAIRLY CONSIDERED AND THAT THE AWARD OF SCHEDULES A AND D TO A HIGHER BIDDER (LAKEWOOD) "CONSTITUTED ARBITRARY AND CAPRICIOUS DISCRIMINATION" AGAINST HIM.

UNDER OUR BID PROTEST PROCEDURES AND STANDARDS WE MAY "REFUSE TO RULE ON A PROTEST WHERE THE MATTER INVOLVED IS THE SUBJECT OF LITIGATION BEFORE A COURT OF COMPETENT JURISDICTION." 4 C.F.R. 20.11.

WE HAVE RECENTLY EXPLAINED THAT IT IS OUR POLICY UNDER THIS REGULATION TO DECLINE TO "RENDER DECISIONS ON PROTESTS WHERE THE MATERIAL ISSUES INVOLVED ARE LIKELY TO BE DISPOSED OF IN LITIGATION BEFORE A COURT OF COMPETENT JURISDICTION." MATTER OF NARTRON CORPORATION, B-178224, B- 179173, MARCH 29, 1974, 53 COMP. GEN. ; B 174052, AUGUST 29, 1972. IN OUR OPINION, THE QUESTION WHETHER THE GOVERNMENT ACTED REASONABLY AND IN ACCORDANCE WITH APPLICABLE LAW AND REGULATION IN DENYING AWARD TO MR. TURUNEN IS A MATERIAL ISSUE AT THE CORE OF BOTH THE PROTEST AND COURT ACTION INVOLVING THE SUBJECT SOLICITATION. INASMUCH AS THIS ISSUE IS LIKELY TO BE DISPOSED OF IN THE COURT ACTION AND SINCE WE SEE NO VALID PURPOSE IN PERMITTING THE FRAGMENTATION OF REMEDIES INVOLVING ESSENTIALLY THE SAME SUBJECT MATTER, WE WILL TAKE NO FURTHER ACTION IN THIS MATTER.