B-210229, APR 4, 1983

B-210229, APR 4, 1983

DIGEST: COURT'S DISMISSAL WITH PREJUDICE OF A COMPLAINT PRESENTING THE SAME ISSUES AS A PENDING PROTEST PRECLUDES GAO FROM CONSIDERING THE PROTEST SINCE A DISMISSAL WITH PREJUDICE CONSTITUTES A FINAL ADJUDICATION ON THE MERITS.

TIME OIL COMPANY, INC.:

TIME OIL COMPANY, INC. PROTESTS THE REJECTION OF ITS BID AND THE AWARD OF CONTRACTS FOR THE SUPPLY AND DELIVERY OF PETROLEUM PRODUCTS UNDER INVITATION FOR BIDS NO. 0037-AA-91-0-3-PF ISSUED BY THE DISTRICT OF COLUMBIA. THE DISTRICT OF COLUMBIA REJECTED TIME'S BID BECAUSE AT THE TIME OF BID OPENING THE FIRM WAS NOT CERTIFIED AS A MINORITY BUSINESS ENTERPRISE BY THE D. C. MINORITY BUSINESS OPPORTUNITY COMMISSION AS REQUIRED BY THE INVITATION. TIME CONTENDS THAT THE COMMISSION FAILED TO CONSIDER ITS APPLICATION FOR CERTIFICATION IN A TIMELY FASHION AND THAT, IN ANY EVENT, THE FIRM'S FAILURE TO BE CERTIFIED AT THE TIME OF BID OPENING IS A MINOR INFORMALITY WHICH CAN BE WAIVED.

WHILE THE PROTEST WAS PENDING BEFORE OUR OFFICE, TIME FILED SUIT ON THE SAME ISSUES IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, TIME OIL COMPANY, INC. V. MARION BARRY, ET AL., CIVIL ACTION NO. 16007-82, SEEKING DECLARATORY AND INJUNCTIVE RELIEF. BY ORDER DATED FEBRUARY 11, 1983, THE COURT DENIED TIME'S MOTION FOR DECLARATORY AND INJUNCTIVE RELIEF AND DISMISSED TIME'S COMPLAINT WITH PREJUDICE.

THE DISMISSAL OF THIS COMPLAINT WITH PREJUDICE BY THE D. C. SUPERIOR COURT CONSTITUTES A FINAL ADJUDICATION ON THE MERITS OF THIS MATTER, BARRING FURTHER ACTION BY THIS OFFICE. SEE D.C.CT.R.ANN. 41(B); 4 C.F.R. SEC. 21.10 (1982); INDIANA BELL TELEPHONE COMPANY, B-205291, MAY 18, 1982, 82-1 CPD 476; NATIONAL OFFICE MOVING COMPANY - RECONSIDERATION, B-196282.2, MAY 2, 1980, 80-1 CPD 318.

THE PROTEST IS DISMISSED.