Matter of: Department of the Navy-- Reconsideration File: B-253129.4 Date: September 30, 1993

B-253129.4: Sep 30, 1993

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

Will not be considered by the General Accounting Office where the matter involved is the subject of litigation before a court of competent jurisdiction and there has been no expression of interest in our opinion by the court. We dismissed the Navy's earlier request for reconsideration because the matter involved was currently pending before a court of competent jurisdiction. We will not consider a protest or request for reconsideration where the matter involved is the subject of litigation before a court of competent jurisdiction unless the court is interested in our opinion. There is no indication that the court or any of the parties is interested in our opinion in association with this litigation.

Matter of: Department of the Navy-- Reconsideration File: B-253129.4 Date: September 30, 1993

PROCUREMENT Bid Protests GAO procedures Pending litigation GAO review An agency's request for reconsideration of a prior protest decision, sustaining a protest of the agency's award of a contract, will not be considered by the General Accounting Office where the matter involved is the subject of litigation before a court of competent jurisdiction and there has been no expression of interest in our opinion by the court.

Attorneys

DECISION The Department of the Navy requests reconsideration of our September 24, 1993, dismissal of its request that we reconsider our decision in SeaBeam Instruments, Inc., B-253129, Aug. 19, 1993, 93-2 CPD Para. , in which we sustained SeaBeam's protest against the Navy's award to SIMRAD, Inc. under request for proposals No. N00140-92-R-0442 for a multibeam echosounding survey system. We dismissed the Navy's earlier request for reconsideration because the matter involved was currently pending before a court of competent jurisdiction.

We affirm the dismissal.

As stated in our prior dismissal, we will not consider a protest or request for reconsideration where the matter involved is the subject of litigation before a court of competent jurisdiction unless the court is interested in our opinion. See Bid Protest Regulations, 4 C.F.R. Sec. 21.9(a) (1993); Geronimo Serv. Co.--Recon., B-242331.3, Mar. 22, 1991, 91-1 CPD Para. 321. Here, SeaBeam has brought an action in the United States District Court for the Eastern District of Virginia, challenging the award to SIMRAD and seeking the award of the contract. A temporary restraining order has been issued, and a preliminary injunction hearing scheduled. There is no indication that the court or any of the parties is interested in our opinion in association with this litigation.

The Navy argues that our dismissal of its reconsideration request is improper because section 21.9 of our Bid Protest Regulations only provides for the dismissal of protests and not of requests for reconsideration. The Navy also argues that we erred in dismissing its reconsideration request because SeaBeam and not the Navy brought suit in the federal court. In the Navy's view, the Navy, as the "non-moving party", should not be deprived of its opportunity for reconsideration simply because another party has requested that a court of competent jurisdiction adjudicate the parties' dispute.

We disagree with the Navy's underlying belief that we should continue to consider protests or requests for reconsideration of protest decisions where the matter involved will be adjudicated by a court of competent jurisdiction. Any action the court takes that constitutes an adjudication of the merits of SeaBeam's suit will take precedence over a decision by our Office. Six Construct Int'l, Inc./The Herman Bennett Co., a joint venture; MWK Int'l, Ltd., Inc.--Recon., B-210290.2, Apr. 26, 1983, 83-1 CPD Para. 484. The precedence of the court's decision over any decision we could render in the Navy's reconsideration request is not affected by whether it was the protester or some other party that brought the court litigation. See Doyon Constr. Co., Inc.--Recon., B-212940.3; B-212940.4, July 13, 1984, 84-2 CPD Para. 193 (agency's request for reconsideration of our decision sustaining a protest was dismissed where the successful bidder brought suit in federal court); see also Roarda, Inc.--Recon., B-204524.4, Feb. 1, 1982, 82-1 CPD Para. 73. Finally, section 21.12(c) of our Regulations provides that requests for reconsideration generally "shall be subject to these . . . regulations," and as discussed in the above-cited cases, we have long interpreted the language of section 21.9 as applying to requests for reconsideration; indeed, given the reasons for this regulation, it would be illogical to consider a reconsideration request where the subject matter of the protest is pending in a court of competent jurisdiction.

The prior dismissal is affirmed. If the court should dispose of this matter without adjudicating the merits, the Navy may timely resubmit its request for reconsideration at that time.