B-242970.2, Aug 5, 1991, 91-2 CPD ***

B-242970.2: Aug 5, 1991

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Where references in court's written decision to plaintiff as bidder in line for award under solicitation are consistent with the information before the court. Protest that agency should make award to protester based on modified bid allegedly improperly rejected as late will not be considered. Court's decision and order constitute final adjudication on issue of which firm was responsive bidder entitled to award. General Accounting Office will not consider protests involving matters that were or could have been adjudicated by court of competent jurisdiction. Bid opening was set for 2 p.m. on February 14. Were received by the bid opening date. 000 was rejected as nonresponsive for failure to include the requisite bid deposit.

B-242970.2, Aug 5, 1991, 91-2 CPD ***

PROCUREMENT - Bid Protests - Court decisions - Interpretation - Contract awards DIGEST: 1. Where references in court's written decision to plaintiff as bidder in line for award under solicitation are consistent with the information before the court, General Accounting Office considers those references sufficient to indicate court's intent to order award to plaintiff, notwithstanding that order requires award to "highest responsive bidder," without specifying the plaintiff. PROCUREMENT - Bid Protests - Court decisions - Merits adjudication - GAO review 2. Where court ordered agency to make award to another firm, protest that agency should make award to protester based on modified bid allegedly improperly rejected as late will not be considered; court's decision and order constitute final adjudication on issue of which firm was responsive bidder entitled to award, and General Accounting Office will not consider protests involving matters that were or could have been adjudicated by court of competent jurisdiction.

Attorneys

Affiliated Textiles, Inc.:

Affiliated Textiles, Inc. protests the award of a sales contract to Arthur Forman Enterprises under invitation for bids (IFB) No. 31-1107, issued by the Defense Reutilization and Marketing Service (DRMS), a sales agency of the Defense Logistics Agency (DLA), for offers to purchase fabric and clothing articles, which the government possessed from a previously terminated government contract.

We dismiss the protest.

Bid opening was set for 2 p.m. on February 14, 1991; seven bids, including Affiliated's, were received by the bid opening date. A few minutes after bid opening, Affiliated attempted to submit a modified bid of $258,000, but the contracting officer rejected it as an unacceptable late bid. Marywell, Inc.'s high bid of $276,000 was rejected as nonresponsive for failure to include the requisite bid deposit. Forman was thus determined the apparent high, responsive bidder at $250,000, while Affiliated was determined the next high, responsive bidder at $103,000.

On February 13, prior to award, Affiliated protested to our Office, arguing that it should be awarded the contract on the basis of its modified bid, which was higher than Forman's, and which, Affiliated asserted, should have been accepted as timely. Alternatively, Affiliated argued that Forman's bid should have been rejected as nonresponsive for failure to include its total bid price on the item bid page of its solicitation, and that the agency therefore should cancel the solicitation and resolicit offers for the materials. On February 26, the contracting officer rejected all bids as "inadequate," as she believed, based on Affiliated's higher modified bid and previous unsolicited bids, that the government could get a higher price for the materials. (Affiliated then withdrew its protest on February 27.) She subsequently canceled IFB No. 31-1107, and resolicited bids for the sale of the same materials under IFB No. 31-1147.

At the March 6 bid opening, Affiliated was the apparent high bidder at $658,000; Forman was second high at $410,000. Before award could be made to Affiliated, Forman filed suit in the United States Claims Court (Cl. Ct. No. 91-978C), seeking a temporary restraining order and a preliminary injunction to prevent DRMS from making award to Affiliated under IFB No. 31-1147; Forman subsequently filed an amended complaint for preliminary and permanent injunctions and declaratory relief. Forman challenged the agency's decision to cancel IFB No. 31-1107 and resolicit as arbitrary and capricious, asserting that it was the high responsive bidder under the original solicitation.

On April 12, the court granted summary judgment for the plaintiff, agreeing with Forman that the cancellation of the original IFB was arbitrary and capricious in that DRMS lacked a compelling reason to do so. Arthur Forman Enterprises, Inc. v. United States, No. 91-978C, 22 Cl.Ct. 816 (April 12, 1991). The court therefore permanently enjoined DRMS from making award under IFB No. 31-1147, and ordered the agency to reinstate IFB No. 31-1107 and to make award "to the highest responsive bidder under that solicitation." /1/ Affiliated then filed this protest with our Office, raising the same two issues contained in its original protest. Affiliated essentially asks that we find that the agency should have considered the firm's modified bid under the original IFB and that, based on that bid, Affiliated was the "highest responsive bidder" in line for the award based on the court's order.

We will not consider a protest where the matter involved has been decided by a court of competent jurisdiction. 4 C.F.R. Sec. 21.9(a) (1991); Santa Fe Corp., B-218234.2, Mar. 27, 1985, 85-1 CPD Para. 361, aff'd, NKF Eng'g Assocs., Inc.-- Request for Recon., B-218234.3, May 3, 1985, 85-1 CPD Para. 499.

Although Affiliated's protest is cast in terms of the legal arguments allegedly supporting consideration of its highpriced modified bid, the relief sought is our ruling that Affiliated is the high responsive bidder entitled to the award under the initial solicitation. We find that the court already has resolved this issue. Although the court's order did not specifically name the "highest responsive bidder," we think it is sufficiently clear from the court's written decision and the informational context of that decision that the court was ordering award to Forman. this regard, Forman asserted in paragraph 8 of its amended complaint not only that cancellation of the original IFB was improper, but also that Forman "was the high responsive bidder" under that IFB. In its proposed answer (which Affiliated filed as an intervenor), Affiliated responded to this paragraph of Forman's amended complaint by stating that it "admits that the contracting officer determined that Forman ... was the high responsive bidder." Affiliated did not assert that it, not Forman, was the high responsive bidder under the original IFB. To the contrary, in its motion to intervene as a defendant, Affiliated characterized itself as merely "a bidder" under the original IFB, while stating that it was "the apparent successful bidder" under the new IFB, thereby suggesting that Affiliated did not consider itself the successful bidder under the original IFB.

Consistent with the pleadings, the court's decision discusses the arguments raised in a manner that indicates that it considered Forman the bidder in line for award. In particular, in one section of its decision (at pages 22-23), the court analyzed the agency's determination to cancel due to unreasonable prices by comparing Forman's bid to Marywell's nonresponsive higher (by $26,000) bid and Affiliated's rejected modified bid (which would have been $8,000 higher than Forman's). The court concluded that Forman's bid was not unreasonably low compared to these other prices. This analysis reflects, fairly clearly we think, the court's view that Forman was in line for award, since determining the propriety of canceling an IFB for unreasonable prices requires an examination only of the reasonableness of the bid in line for award. Further, although the court's discussion referenced Affiliated's attempted modification of its bid (which Affiliated brought to the court's attention in an oral argument), it nevertheless addressed this issue strictly in terms of the reasonableness of Forman's bid, without acknowledging that there was any viable dispute over which bid was the highest responsive one.

An even more persuasive indication of the court's intent is found at the end of the decision (page 24), in the discussion of whether Forman met the standard for injunctive relief. In concluding that Forman had met the standard, and in rejecting the agency's specific argument that injunctive relief requiring award under the original IFB would lead the government to incur increased storage costs, the court stated that "quick action in awarding this contract to plaintiff would avoid increasing already existing storage costs." We think it is obvious from this statement that the court considered Forman to be in line for the award under the original IFB.

We conclude that the court was referring to Forman when it ordered the agency to make award to the "highest responsive bidder" under the original IFB. Affiliated's protest arguments that it was the high responsive bidder or, alternatively, that Forman's bid should have been rejected and the requirement resolicited, necessarily are encompassed by this order. We therefore will not consider Affiliated's arguments.

We note that even if Affiliated were correct that its protest issues were not effectively decided by the court, we would not consider them here. final judgment on the merits by a court of competent jurisdiction extends not only to matters that were decided, but also to all matters that might have been decided. Santa Fe Corp., B-218234.2, supra. The issue of which firm was the high responsive bidder clearly was closely related to the issue of whether the original solicitation should be reinstated, and thus should have been raised by Affiliated. As discussed above, Forman did not merely seek reinstatement of the original IFB; rather, Forman sought award under that solicitation, asserting that it was the high responsive bidder. It therefore should have been apparent to Affiliated that any argument related to Forman's entitlement to the award should be brought before the court for consideration in its decision on Forman's complaint. Again, Affiliated failed to do so. The protest is dismissed.

/1/ The government is currently appealing this decision.