B-218640.4, OCT 9, 1985, OFFICE OF GENERAL COUNSEL

B-218640.4: Oct 9, 1985

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ASSERTING THAT THE AWARD WAS IMPROPER BECAUSE CHEMUNG HAS BEEN PERMITTED TO ERECT AND OPERATE AN ASPHALT PLANT ON THE AIRPORT SITE. IS CONTRARY TO THE TERMS OF THE SOLICITATION. WE REQUESTED A REPORT ON THIS MATTER FROM THE FAA WHICH WAS DUE HERE ON JULY 2. THE INTERESTED PARTIES HAVE 7 WORKING DAYS AFTER RECEIPT OF THE AGENCY REPORT IN WHICH TO FILE COMMENTS. BECAUSE THIS WOULD HAVE LEFT NO TIME FOR OUR OFFICE TO RENDER A DECISION BEFORE THE COURT'S DEADLINE. THE DECISION WAS ISSUED SOONER THAN EXPECTED. SINCE THIS WAS OBVIOUSLY NOT POSSIBLE. STATING THAT THE COURT WOULD HAVE NO OBJECTION TO PRINCE GEORGE'S RENEWAL OF ITS PROTEST HERE. THERE WOULD NOT HAVE BEEN ENOUGH TIME FOR US TO ISSUE A DECISION WITHIN THE TIME DICTATED BY THE COURT'S SCHEDULE.

B-218640.4, OCT 9, 1985, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE HONORABLE FRANK R. WOLF:

MEMBER, UNITED STATES HOUSE OF REPRESENTATIVES 1651 OLD MEADOW ROAD SUITE 115 MCLEAN, VIRGINIA 22102

BY LETTER OF SEPTEMBER 16, 1985, YOU EXPRESS INTEREST IN THE RECENT BID PROTEST OF PRINCE GEORGE'S CONTRACTORS, INC. INVOLVING THE AWARD OF A CONTRACT FOR RAMP TAXIWAY REPAVING AT WASHINGTON NATIONAL AIRPORT. THE FEDERAL AVIATION ADMINISTRATION (FAA) AWARDED THE CONTRACT IN QUESTION TO CHEMUNG CONTRACTING CORPORATION ON MAY 15, 1985. SHORTLY THEREAFTER, ON MAY 24, PRINCE GEORGE'S FILED A PROTEST WITH OUR OFFICE, ASSERTING THAT THE AWARD WAS IMPROPER BECAUSE CHEMUNG HAS BEEN PERMITTED TO ERECT AND OPERATE AN ASPHALT PLANT ON THE AIRPORT SITE. THIS ACTION, PRINCE GEORGE'S ALLEGES, IS CONTRARY TO THE TERMS OF THE SOLICITATION.

THE FOLLOWING BACKGROUND MAY BE HELPFUL TO YOU. IN ACCORD WITH THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), ADDING 31 U.S.C. SECS. 3551 -3555 (WEST SUPP. 1985) AND OUR IMPLEMENTING BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.3 (1985), WE REQUESTED A REPORT ON THIS MATTER FROM THE FAA WHICH WAS DUE HERE ON JULY 2. ON JUNE 5, HOWEVER, PRINCE GEORGE'S FILED SUIT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, SEEKING TO ENJOIN THE FAA FROM PROCEEDING WITH THE CONTRACT AND OTHER APPROPRIATE RELIEF. AS PART OF THESE PROCEEDINGS, THE COURT ASKED OUR OFFICE TO RENDER AN ADVISORY OPINION ON PRINCE GEORGE'S BID PROTEST BY JUNE 26 OR AS SOON THEREAFTER AS POSSIBLE.

IN THIS REGARD, THE COURT INDICATED ITS DESIRE TO RULE BY MID-JULY ON PRINCE GEORGE'S MOTION SEEKING A PRELIMINARY INJUNCTION. WE COULD NOT COMPLY WITH THE COURT'S REQUEST FOR A DECISION WITHIN THE TIME DESIRED UNLESS THE PARTIES AGREED TO ACCELERATED FILING SCHEDULES. UNDER CICA AND OUR REGULATIONS, THE PROCURING AGENCY HAS 25 WORKING DAYS IN WHICH TO FILE A REPORT ON A PROTESTED PROCUREMENT WITH OUR OFFICE. IN THIS CASE, THE FAA INDICATED THAT IT WOULD, IN FACT, TAKE THE FULL 25 DAYS. THE INTERESTED PARTIES HAVE 7 WORKING DAYS AFTER RECEIPT OF THE AGENCY REPORT IN WHICH TO FILE COMMENTS, AND THE AWARDEE, CHEMUNG, INDICATED THAT IT WOULD TAKE THE FULL 7 DAYS. BECAUSE THIS WOULD HAVE LEFT NO TIME FOR OUR OFFICE TO RENDER A DECISION BEFORE THE COURT'S DEADLINE, WE ADVISED THE COURT THAT WE WOULD NOT BE ABLE TO PROVIDE A TIMELY ADVISORY OPINION UNLESS IT ESTABLISHED APPROPRIATE DEADLINES FOR SUBMISSIONS BY THE PARTIES.

THE COURT DECLINED TO DO SO AND STATED THAT, DUE TO TIME CONSIDERATIONS, IT WOULD BE COMPELLED TO PROCEED WITHOUT OUR OPINION UNLESS, FORTUITOUSLY, THE DECISION WAS ISSUED SOONER THAN EXPECTED. SINCE THIS WAS OBVIOUSLY NOT POSSIBLE, ON JUNE 28 WE DISMISSED PRINCE GEORGE'S PROTEST.

SUBSEQUENTLY, BY ORDER OF JULY 12, THE COURT DENIED PRINCE GEORGE'S REQUEST FOR A PRELIMINARY INJUNCTION AND SET A DATE OF SEPTEMBER 20 FOR A PERMANENT INJUNCTION HEARING. ON JULY 31, PRINCE GEORGE'S FURNISHED US WITH A COPY OF THE COURT'S ORDER AND AGAIN REQUESTED THAT WE CONSIDER THE PROTEST. PRINCE GEORGE'S ARGUED THAT A FOOTNOTE IN THE COURT'S ORDER, STATING THAT THE COURT WOULD HAVE NO OBJECTION TO PRINCE GEORGE'S RENEWAL OF ITS PROTEST HERE, AMOUNTED TO A REQUEST FOR AN ADVISORY OPINION BY THE COURT. WE AGAIN DISMISSED THE PROTEST, IN PART BECAUSE WE DID NOT VIEW THE FOOTNOTE AS A FIRM EXPRESSION OF JUDICIAL INTEREST IN OUR DECISION. MOREOVER, MEASURING FROM JULY 31, THE DATE WE FIRST RECEIVED NOTICE OF THE COURT'S ACTION, THERE WOULD NOT HAVE BEEN ENOUGH TIME FOR US TO ISSUE A DECISION WITHIN THE TIME DICTATED BY THE COURT'S SCHEDULE, BECAUSE THE AGENCY WAS STILL ENTITLED TO 25 WORKING DAYS TO FILE ITS REPORT AND THE PARTIES TO 7 WORKING DAYS TO FILE COMMENTS ON THAT REPORT.

I HOPE THIS INFORMATION WILL BE HELPFUL TO YOU. I AM ENCLOSING A COPY OF OUR TWO DISMISSAL DECISIONS.