B-173078, DEC 21, 1972

B-173078, DEC 21, 1972

BID PROTEST - ELIGIBILITY OF CONTRACTOR - RES JUDICATA DECISION SUSTAINING A PRIOR PROTEST DENIAL ON BEHALF OF CITY CHEMICAL CORPORATION AGAINST AWARD OF A CONTRACT TO POLY RESEARCH CORPORATION UNDER AN IFB ISSUED BY THE NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PA. IN DENYING A MOTION FOR A TEMPORARY INJUNCTION RESTRAINING PERFORMANCE OF THE CONTRACTS AWARDED TO POLY RESEARCH THE U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK HELD THAT, IN FACT, POLY RESEARCH IS A REGULAR DEALER OR A MANUFACTURER AND IS THUS ELIGIBLE FOR AWARD. SEE CITY CHEMICAL CORP. V. SHREFFLER, 333 F. SUPP. 46 (S.D. N.Y. 1971). SINCE THE ISSUES RAISED IN THIS PROTEST WERE DECIDED BY THE COURT, THE MATTER IS NOW RES JUDICATA AND THE PROTEST IS ACCORDINGLY DENIED.

TO EUGENE DREXLER:

REFERENCE IS MADE TO YOUR LETTER OF MAY 24, 1971, WITH ENCLOSURE, PROTESTING ON BEHALF OF CITY CHEMICAL CORPORATION AGAINST AWARDS TO POLY RESEARCH CORPORATION UNDER INVITATIONS FOR BIDS NOS. N00104-71-B 1184, 1185, 1187 AND 1189, ISSUED BY NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA.

THE BASIS FOR YOUR PROTEST IS THAT POLY RESEARCH ERRONEOUSLY INDICATED IN EACH OF ITS BIDS THAT IT WAS A "REGULAR DEALER" IN THE SUPPLIES OFFERED. WHILE THE CONTRACTING OFFICER DETERMINED THAT POLY RESEARCH WAS "EITHER A MANUFACTURER OR A REGULAR DEALER," YOU MAINTAIN THAT SUCH A DETERMINATION RESULTS IN AN UNFAIR OPTION TO POLY RESEARCH, AND THAT AWARDS TO POLY RESEARCH WOULD ONLY BE IN ACCORD WITH THE WALSH HEALY ACT, 41 U.S.C. 35- 45, IF THE DEPARTMENT OF LABOR SHOULD ULTIMATELY CONCLUDE THAT COMPANY IS A "REGULAR DEALER."

IN THIS CONNECTION, WE HAVE BEEN ADVISED THAT, SUBSEQUENT TO OUR RECEIPT OF YOUR PROTEST, THE DEPARTMENT OF LABOR RULED THAT POLY RESEARCH IS A "MANUFACTURER." ALSO, IT APPEARS THAT CITY CHEMICAL THEREAFTER BROUGHT SUIT IN THE UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK, FOR A TEMPORARY INJUNCTION RESTRAINING PERFORMANCE OF THE CONTRACTS AWARDED TO POLY RESEARCH. THE COURT (SEE CITY CHEMICAL CORPORATION V. SHREFFLER, 333 F.SUPP. 46 (1971)), IN DENYING THE MOTION FOR A TEMPORARY INJUNCTION, STATED:

"THE CONTENTION THAT BECAUSE POLYRESEARCH FILED ITS ORIGINAL BID AS A 'REGULAR DEALER' IT COULD NOT BE AWARDED THE CONTRACT AS A 'MANUFACTURER' IS UNTENABLE. NEITHER THE STATUTE NOR THE REGULATIONS PROVIDE FOR SUCH DISTINCT CLASSES. IF A FIRM IS EITHER A REGULAR DEALER OR A MANUFACTURER, IT IS ELIGIBLE."

THE COURT ALSO UPHELD THE PROCURING ACTIVITY'S DECISION TO AWARD THE CONTRACT ON THE BASIS OF URGENCY. ON JUNE 26, 1972, THIS SUIT WAS DISMISSED WITH PREJUDICE.

IN VIEW OF THE FACT THAT THE COURT, IN ITS CONSIDERATION OF THE MOTION FOR A TEMPORARY INJUNCTION, DID RULE ON THE ISSUES RAISED BY YOUR PROTEST, AND THE CASE WAS SUBSEQUENTLY DISMISSED WITH PREJUDICE, IT WOULD APPEAR THAT THE MATTER IS NOW RES JUDICATA, AND WE ARE THEREFORE CLOSING OUR FILE WITHOUT FURTHER ACTION.