B-182775, MAY 6, 1975

B-182775: May 6, 1975

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WHERE MATERIAL ISSUES IN PROTEST ARE LIKELY TO BE DISPOSED OF IN LITIGATION BEFORE A COURT OF COMPETENT JURISDICTION. GAO WILL NOT RENDER A DECISION. SUBMITTED PROPOSALS WHICH THE NAVY CONTENDS WERE EVALUATED BY THE COMMAND TURNKEY SELECTION BOARD (BOARD) IN ACCORDANCE WITH THE TERMS OF THE RFP AND THE EVALUATION MANUAL PREPARED FOR THE PROJECT. CONTRACT N62470-74-C 1236 WAS AWARDED TO THAT FIRM ON JANUARY 6. THE MOTION FOR A TEMPORARY RESTRAINING ORDER WAS DENIED ON FEBRUARY 26. THE HEARING ON THE PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION WAS TRANSFERRED ON FEBRUARY 27. WHILE IT IS CONTRARY TO THE POLICY OF OUR OFFICE TO RENDER A DECISION ON THE MERITS OF A PROTEST WHERE THE MATERIAL ISSUES ARE ALSO INVOLVED IN LITIGATION PENDING BEFORE A COURT OF COMPETENT JURISDICTION AND ARE LIKELY TO BE DISPOSED OF BY THE COURT.

B-182775, MAY 6, 1975

WHERE MATERIAL ISSUES IN PROTEST ARE LIKELY TO BE DISPOSED OF IN LITIGATION BEFORE A COURT OF COMPETENT JURISDICTION, AND COURT HAS NOT INDICATED DESIRE FOR A DETERMINATION ON PROTEST, GAO WILL NOT RENDER A DECISION.

LINCOLN SERVICES, LTD.:

LINCOLN SERVICES, LTD. (LINCOLN) HAS FILED A PROTEST UNDER REQUEST FOR PROPOSALS (RFP) NO. N62470-74-B-1236, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, ATLANTIC DIVISION, NORFOLK, VIRGINIA, FOR THE DESIGN, CONSTRUCTION, AND INSPECTION OF A TURNKEY FAMILY HOUSING PROJECT CONSISTING OF 250 UNITS AT THE NAVAL AIR STATION, BERMUDA.

ON MAY 16, 1974, THREE FIRMS, INCLUDING LINCOLN AND KEMMONS WILSON CONSTRUCTION COMPANY, SUBMITTED PROPOSALS WHICH THE NAVY CONTENDS WERE EVALUATED BY THE COMMAND TURNKEY SELECTION BOARD (BOARD) IN ACCORDANCE WITH THE TERMS OF THE RFP AND THE EVALUATION MANUAL PREPARED FOR THE PROJECT. ON THE BASIS OF ITS EVALUATION, THE BOARD RECOMMENDED AWARD TO KEMMONS WILSON AS OFFERING THE MOST ADVANTAGEOUS COMBINATION OF PRICE AND TECHNICAL QUALITY. AS A RESULT THEREOF, CONTRACT N62470-74-C 1236 WAS AWARDED TO THAT FIRM ON JANUARY 6, 1975, NOTWITHSTANDING LINCOLN'S PROTEST TO THIS OFFICE CONCERNING THE SOURCE SELECTION.

SUBSEQUENT TO THE FILING OF THE INSTANT PROTEST WITH OUR OFFICE, COUNSEL FOR LINCOLN FILED SUIT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (LINCOLN SERVICES, LTD. V. J. WILLIAM MIDDENDORF, II, SECRETARY OF THE NAVY, CIVIL ACTION NO. 75-90-N) ON FEBRUARY 24, 1975, REQUESTING, IN PART, THAT THE COURT TEMPORARILY RESTRAIN AND PERMANENTLY ENJOIN THE SECRETARY OF THE NAVY FROM TAKING ANY FURTHER ACTION PURSUANT TO OR IN FURTHERANCE OF THE CONTRACT AWARDED TO KEMMONS WILSON.

THE MOTION FOR A TEMPORARY RESTRAINING ORDER WAS DENIED ON FEBRUARY 26, 1975, AND THE HEARING ON THE PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION WAS TRANSFERRED ON FEBRUARY 27, 1975, TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA.

SUBSEQUENTLY, ON MARCH 18, 1975, THE COURT DENIED THE PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION. THE RECORD OF THE PROCEEDINGS INDICATES THAT THE COURT REQUESTED THAT THE GOVERNMENT RESPOND TO THE PLAINTIFF'S COMPLAINT WITHIN SIXTY DAYS AND RETAINED THE CASE ON ITS DOCKET FOR FINAL DISPOSITION.

THE COMPLAINT IN THE COURT ACTION PUTS IN ISSUE THE SUBSTANCE OF LINCOLN'S PROTEST ON THIS MATTER. WHILE IT IS CONTRARY TO THE POLICY OF OUR OFFICE TO RENDER A DECISION ON THE MERITS OF A PROTEST WHERE THE MATERIAL ISSUES ARE ALSO INVOLVED IN LITIGATION PENDING BEFORE A COURT OF COMPETENT JURISDICTION AND ARE LIKELY TO BE DISPOSED OF BY THE COURT, WE HAVE CONSIDERED PROTESTS NOTWITHSTANDING PENDING LITIGATION WHERE THE COURT INDICATES A DESIRE FOR A DETERMINATION BY THIS OFFICE. DESCOMP, INC., 53 COMP. GEN. 522 (1974); KDI PRECISION PRODUCTS, INC., B-180025, MAY 14, 1974. HOWEVER, THE COURT IN THIS CASE HAS NOT REQUESTED A DETERMINATION OF LINCOLN'S PROTEST BY OUR OFFICE. ACCORDINGLY, WE WILL TAKE NO FURTHER ACTION ON THE MATTER. ALLENBERG COTTON COMPANY, B-180929, APRIL 24, 1974.