B-173489, OCT 8, 1971

B-173489, OCT 8, 1971

BID PROTEST - JUDICIAL DETERMINATION DENIAL OF REQUEST ON BEHALF OF PARKER-SPARKS, INC. THAT THE COMP. GEN. RECONSIDER DECISION B-173489, SEPTEMBER 15, 1971, WHICH DENIED A PROTEST BY THE OCEAN ELECTRIC CORPORATION AGAINST THIS SOLICITATION ON SIMILAR GROUNDS. SUBSEQUENT TO THE DENIAL OF THEIR PROTEST, OCEAN ELECTRIC FILED A COMPLAINT IN THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ON THIS QUESTION. THAT COMPLAINT WAS DISMISSED BY THE COURT ON SEPTEMBER 28, 1971, ON THE BASIS THAT THE AWARD OF THE CONTRACT WAS REASONABLE AND PROPER. ACCORDINGLY, THE REQUEST FOR RECONSIDERATION IS DENIED IN CONFORMANCE WITH GAO POLICY NOT TO RENDER DECISIONS ON PROTESTS WHERE THE MATERIAL ISSUES ARE OR HAVE BEEN INVOLVED IN LITIGATION.

TO CATON & WRIGHT:

WE REFER TO YOUR LETTER DATED SEPTEMBER 23, 1971, ON BEHALF OF PARKER SPARKS, INC., REQUESTING RECONSIDERATION OF DECISION 51 COMP. GEN. --- (B- 173489, SEPTEMBER 15, 1971), WHEREIN WE CONCLUDED THAT WE WOULD NOT OBJECT TO THE AWARD OF A CONTRACT TO THE LOW BIDDER, JOSEPH S. FLOYD CORPORATION, UNDER INVITATION FOR BIDS NO. N62470-71-B-0859, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, ATLANTIC DIVISION.

SUBSEQUENT TO THE ISSUANCE OF THE DECISION, ON SEPTEMBER 16, 1971, THE THIRD LOW BIDDER UNDER THE INVITATION FOR BIDS, THE OCEAN ELECTRIC CORPORATION, WHOSE PROTEST AGAINST THE PROPOSED AWARD OF THE CONTRACT TO ANY OTHER BIDDER WAS DENIED IN THE DECISION, FILED A COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, CAPTIONED OCEAN ELECTRIC CORPORATION V MELVIN R. LAIRD, ET AL., CIVIL ACTION NO. 1882-71. A TEMPORARY RESTRAINING ORDER AGAINST THE AWARD OF THE CONTRACT WAS GRANTED AS REQUESTED BY OCEAN ELECTRIC CORPORATION ON SEPTEMBER 17, 1971.

ON SEPTEMBER 28, 1971, THE COURT MADE, INTER ALIA, THE FOLLOWING FINDINGS OF FACT:

"8. ON SEPTEMBER 15, 1971, THE COMPTROLLER GENERAL RENDERED A DECISION DENYING THE PROTEST OF PLAINTIFF AND INDICATING THAT HIS OFFICE WOULD HAVE NO OBJECTION TO THE NAVY'S CONSIDERATION OF THE BID OF JOSEPH S. FLOYD CORPORATION IF THAT FIRM HAD THE NECESSARY CLEARANCE PRIOR TO THE TIME FOR CONTRACT PERFORMANCE.

"9. THE NAVY HAS ADOPTED THE OPINION OF THE COMPTROLLER GENERAL AND PROPOSES TO AWARD THE CONTRACT TO JOSEPH S. FLOYD CORPORATION AS SOON AS IT IS IN A POSITION TO DO SO.

"10. JOSEPH S. FLOYD CORPORATION HAS SUBMITTED THE LOWEST BID ON THE CONTRACT AND THE NAVY HAS DETERMINED THAT IT IS A RESPONSIBLE BIDDER AND HAS THE NECESSARY SECURITY CLEARANCE TO PERFORM WORK UNDER THE CONTRACT."

IN ADDITION, THE COURT MADE THE FOLLOWING CONCLUSIONS OF LAW:

"1. THE DECISION OF THE NAVY TO AWARD THE CONTRACT TO JOSEPH S. FLOYD CORPORATION IS REASONABLE AND PROPER, AND IS NOT ARBITRARY OR CAPRICIOUS.

"2. THERE IS NO GENUINE ISSUE OF MATERIAL FACT INVOLVED HEREIN AND DEFENDANTS ARE ENTITLED AS A MATTER OF LAW TO A JUDGMENT DISMISSING THIS CAUSE.

"3. PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION SHOULD BE DENIED AS MOOT."

PURSUANT TO THESE FINDINGS OF FACT AND CONCLUSIONS OF LAW THE COURT:

"ORDERED THAT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BE AND IT HEREBY IS DENIED, AND IT IS FURTHER

"ORDERED THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED, AND THAT THIS CAUSE BE AND IT HEREBY IS DISMISSED, AND IT IS FURTHER

"ORDERED THAT PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION BE AND IT HEREBY IS DENIED AS MOOT."

IT IS CLEAR THAT THE COURT ENTERED ITS ORDER BASED UPON ITS CONSIDERATION OF THE MATERIAL ISSUES INVOLVED IN THE PENDING REQUEST FOR RECONSIDERATION BEFORE OUR OFFICE. IN VIEW THEREOF, WE ARE CLOSING OUR FILE ON THE REQUEST FOR RECONSIDERATION WITHOUT FURTHER ACTION. THIS IS CONSISTENT WITH THE POLICY OF OUR OFFICE NOT TO RENDER DECISIONS ON PROTESTS WHERE THE MATERIAL ISSUES ARE OR HAVE BEEN INVOLVED IN LITIGATION BEFORE A COURT OF COMPETENT JURISDICTION.