B-170268, APR 14, 1971

B-170268, APR 14, 1971

BID PROTEST - PENDING LITIGATION ADVISING THAT BECAUSE PROTESTANT HAD FILED A COMPLAINT IN THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, TO PREVENT THE OPENING OF BIDS UNDER A TWO-STEP FORMAL ADVERTISEMENT PROCEDURE ISSUED BY THE NAVY PURCHASING OFFICE FOR A PORTABLE SHIP HULL CLEANER, GAO IS CLOSING ITS FILE ON THE PROTEST WITHOUT FURTHER ACTION, NOTWITHSTANDING THAT AN AWARD HAS BEEN MADE TO THE CARBORUNDUM COMPANY.

TO ARNOLD & PORTER:

WE REFER TO YOUR LETTER DATED FEBRUARY 9, 1971, AND PRIOR CORRESPONDENCE, REQUESTING RECONSIDERATION OF DECISION 50 COMP. GEN. (B-170268, NOVEMBER 9, 1970), WHEREIN WE DENIED THE PROTEST OF THE WHEELABRATOR CORPORATION AGAINST THE TWO-STEP FORMAL ADVERTISING METHOD OF PROCUREMENT USED UNDER SOLICITATION NO. N00600-70-B-0478, ISSUED BY THE NAVY PURCHASING OFFICE (NPO), WASHINGTON, D.C.

SUBSEQUENT TO THE FILING OF THE ORIGINAL PROTEST WITH OUR OFFICE, WHEELABRATOR FILED A COMPLAINT ON AUGUST 17, 1970, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, CAPTIONED THE WHEELABRATOR CORPORATION V JOHN H. CHAFEE, SECRETARY OF THE NAVY, AND MARGARET S. ANDERSON, CONTRACTING OFFICER, U.S. NAVY PURCHASING OFFICE, CIVIL ACTION NO. 2437-70. THE COMPLAINT REQUESTED:

"(A) THAT A TEMPORARY RESTRAINING ORDER AND A PRELIMINARY INJUNCTION ISSUE, ENJOINING DEFENDANT CHAFEE AND HIS SUBORDINATES FROM OPENING BIDS AND AWARDING A CONTRACT FOR A PORTABLE SHIP HULL CLEANER PURSUANT TO TWO- STEP FORMAL ADVERTISEMENT PROCEDURES OR PURSUANT TO ANY PROCEDURES OTHER THAN NEGOTIATION, PENDING THE DECISION OF THE MERITS OF PLAINTIFF'S CLAIM.

"(B) THAT THIS COURT DECLARE AND ADJUDGE THAT DEFENDANT CHAFEE AND HIS SUBORDINATES HAVE UNLAWFULLY INSTITUTED A TWO-STEP FORMAL ADVERTISEMENT PROCUREMENT FOR A PORTABLE SHIP HULL CLEANER.

"(C) THAT DEFENDANT CHAFEE AND HIS SUBORDINATES BE PERMANENTLY ENJOINED FROM AWARDING A CONTRACT PURSUANT TO A TWO-STEP FORMALLY ADVERTISED PROCUREMENT OF A SHIP HULL CLEANER.

"(D) THAT THIS COURT DECLARE AND ADJUDGE THAT THE DEFENDANTS ARE REQUIRED TO PROCURE A PORTABLE SHIP HULL CLEANER BY NEGOTIATION.

"(E) THAT THIS COURT ORDER DEFENDANT CHAFEE AND HIS SUBORDINATES TO PERFORM THEIR DUTY TO NEGOTIATE A CONTRACT FOR A PORTABLE SHIP HULL CLEANER;

"(F) THAT PLAINTIFF BE AWARDED SUCH OTHER AND FURTHER RELIEF AS MAY BE JUST AND EQUITABLE UNDER THE CIRCUMSTANCES."

A TEMPORARY RESTRAINING ORDER WAS GRANTED ON AUGUST 17, 1970, AND ON AUGUST 31, 1970, THE COURT ISSUED A PRELIMINARY INJUNCTION WHICH PROHIBITED THE OPENING OF BIDS OR MAKING AN AWARD UNDER THE SECOND STEP OF THE SOLICITATION BASED ON THE COURT'S FINDINGS OF FACT AND CONCLUSION OF LAW. AN APPEAL WAS FILED WITH THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BY THE DEFENDANTS. ON JANUARY 26, 1971, THE APPELLATE COURT HANDED DOWN THE FOLLOWING JUDGMENT:

"THESE CASES CAME ON TO BE HEARD ON THE RECORD ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, AND WERE ARGUED BY COUNSEL. ON CONSIDERATION THEREOF, IT IS

"ORDERED AND ADJUDGED BY THIS COURT THAT THE ORDER OF THE DISTRICT COURT GRANTING A PRELIMINARY INJUNCTION RESTRAINING DEFENDANTS FROM OPENING ANY BID, AWARDING ANY CONTRACT, OR IN ANY WAY CARRYING OUT THE SOLICITATION INVOLVED IN THESE CASES IS HEREBY REVERSED.

"IN ORDER TO EXPEDITE ISSUANCE OF THIS ORDER, THE COURT IS PROCEEDING WITHOUT AN OPINION, ALTHOUGH ONE MAY FOLLOW AT A LATER DATE. HOWEVER, THE COURT DEEMS IT APPROPRIATE TO SAY THAT THE REASON FOR REVERSAL IS ITS VIEW THAT THE COMPLAINT MOTION AND AFFIDAVITS FILED BY PLAINTIFF DO NOT SHOW SUFFICIENT LIKELIHOOD OF SUCCESS ON THE MERITS IN THESE CASES TO WARRANT GRANT OF THE INJUNCTIVE RELIEF PRAYED." SUBSEQUENTLY, ON FEBRUARY 24, 1971, WHEELABRATOR'S PETITION FOR REHEARING WAS DENIED, AND ON MARCH 2, 1971, THE COURT ORDERED THAT CERTAIN COSTS BE ASSESSED AGAINST WHEELABRATOR AND DENIED THE APPELLANT'S MOTION FOR A PROMPT ISSUANCE OF A MANDATE AS MOOT.

WE HAVE BEEN INFORMALLY ADVISED BY NPO THAT BIDS WERE OPENED ON THE SECOND STEP OF THE SOLICITATION ON MARCH 23, 1971, AND THAT WHEELABRATOR SUBMITTED A BID. AN AWARD WAS MADE TO THE LOW BIDDER, THE CARBORUNDUM COMPANY, ON MARCH 30, 1971.

THE APPELLATE COURT REVERSED THE ORDER GRANTING THE PRELIMINARY INJUNCTION BASED UPON ITS CONSIDERATION OF THE MATERIAL ISSUES INVOLVED IN THE PENDING REQUEST FOR RECONSIDERATION BEFORE OUR OFFICE. IN VIEW THEREOF, AND SINCE THE MATTER IS AT ISSUE ON THE MERITS BEFORE THE DISTRICT COURT, WE ARE CLOSING OUR FILE ON THE PROTEST WITHOUT FURTHER ACTION. THIS IS CONSISTENT WITH THE POLICY OF OUR OFFICE NOT TO RENDER A DECISION ON A PROTEST WHERE THE MATERIAL ISSUES ARE ALSO INVOLVED IN LITIGATION IN A COURT OF COMPETENT JURISDICTION. B-171122, FEBRUARY 9, 1971, B-171050, MARCH 11, 1971, AND B-171259, APRIL 7, 1971.