B-178224, B-179173, NOV 12, 1974

B-178224, B-179173, NOV 12, 1974

REQUEST FOR RECONSIDERATION OF PRIOR DECISION WHERE GAO DISMISSED PROTEST BECAUSE OF PENDING COURT SUIT INVOLVING SAME ISSUES AS PROTEST IS DENIED SINCE PROTESTER DOES NOT ADVANCE ANY ADDITIONAL FACTS OR OFFER ANY ARGUMENTS OF LAW WHICH WERE NOT FULLY CONSIDERED AND DISCUSSED IN THE PRIOR DECISION. FURTHERMORE, VOLUNTARY DISMISSAL OF COURT SUIT WITH PREJUDICE SUBSEQUENT TO PRIOR DECISION CONSTITUTES FINAL ADJUDICATION OF MERITS PRECLUDING FURTHER CONSIDERATION BY GAO IN ANY EVENT.

NARTRON CORPORATION:

THIS IS A REQUEST FOR RECONSIDERATION OF OUR DECISION B-178224, B 179173, JULY 17, 1974, WHEREIN THIS OFFICE DECLINED TO GIVE FURTHER CONSIDERATION TO PROTESTS FILED BY THE NARTRON CORPORATION (NARTRON) UNDER INVITATION FOR BIDS (IFB) NO. DAAE07-73-B-1168 (IFB 1168) AND REQUEST FOR PROPOSALS (RFP) NO. DAAE07-74-R-0630 (RFP 0630) ISSUED BY THE UNITED STATES ARMY TANK AUTOMOTIVE COMMAND.

THE REFERENCED SOLICITATIONS ARE RELATED PROCUREMENT ACTIONS IN THAT THE CONTRACT ORIGINALLY AWARDED UNDER IFB 1168 WAS TERMINATED FOR DEFAULT, RESULTING IN REPROCUREMENT ACTION UNDER RFP 0630. IT WAS NOTED IN OUR DECISION OF JULY 17 THAT IN ITS PROTEST UNDER BOTH SOLICITATIONS NARTRON REQUESTED THAT A CONTRACT AWARD BE DIRECTED TO IT UNDER THE REPROCUREMENT, RFP 0630, AND, THUS, THE REMEDY REQUESTED BY NARTRON HAD THE EFFECT OF INTERTWINING BOTH PROCUREMENT ACTIONS. SINCE NARTRON HAD INSTITUTED A CIVIL ACTION AGAINST THE SECRETARY OF THE ARMY (NARTRON CORPORATION V. HOWARD CALL AWAY, CIVIL ACTION N. 74-978 U.S.D.C. FOR D.C.) IN WHICH IT REQUESTED THE COURT TO DECLARE THAT THE AWARD OF RFP 0630 WAS ILLEGAL AND SHOULD HAVE BEEN MADE TO NARTRON AND SINCE WHATEVER ACTION THE COURT MIGHT DECIDE TO TAKE REGARDING THE AWARD OF RFP 0630 WOULD TAKE PRECEDENCE OVER A RULING BY THIS OFFICE WE DECLINED TO RULE ON EITHER PROTEST AS REQUESTED BY NARTRON.

NARTRON OBJECTS TO OUR REFUSAL TO RULE ON THE PROTEST RELATIVE TO IFB 1168, CLAIMING THE REFERENCED SOLICITATIONS ARE SEPARATE AND THAT THE CIVIL ACTION FILED BY NARTRON DOES NOT REQUIRE "ANY DELAY IN THE DECISION OF (IFB) '1168'."

THE RECORD INDICATES THAT INITIALLY NARTRON PROTESTED AN AWARD TO DC ELECTRONICS, INCORPORATED (DCEL), UNDER IFB 1168. THEREAFTER, DCEL WAS CONSIDERED IN DEFAULT AND ITS RIGHT TO PROCEED WAS TERMINATED. ATAC THEREUPON ON AUGUST 21, 1973, ISSUED RFP 0630, THE REPURCHASE OF IFB 1168, AND AGAIN BOTH DCEL AND NARTRON SUBMITTED OFFERS ON THE PROCUREMENT AND ALSO BOTH PARTIES FILED PROTESTS WITH THIS OFFICE IN CONNECTION WITH THE REPURCHASE. HOWEVER, ON NOVEMBER 23, 1973, WE WERE ADVISED THAT ON NOVEMBER 21, 1973, DCEL HAD FILED A CIVIL ACTION IN U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION, WHICH PUT IN ISSUE THE SUBSTANCE OF DCEL'S AND NARTRON'S PROTESTS BEFORE OUR OFFICE. ADDITIONALLY, WE WERE INFORMED THAT THE COURT HAD ISSUED A TEMPORARY RESTRAINING ORDER ON NOVEMBER 21, 1973 (WHICH EXPIRED ON NOVEMBER 27, 1973). AFTER RECEIPT OF THE COMPLAINT ON NOVEMBER 29, 1973, AND AS INDICATED IN NARTRON'S LETTERS OF JANUARY 5 AND FEBRUARY 7, 1974, NARTRON WAS ADVISED THAT WE WERE DETERMINING TO WHAT EXTENT DCEL'S CIVIL ACTION HAD FORECLOSED FURTHER ACTION BY THIS OFFICE. CONCURRENTLY, WE HELD THE MATTER IN ABYEANCE PENDING THE OUTCOME OF THE COURT'S ACTION ON DCEL'S REQUEST FOR INJUNCTIVE RELIEF

WHEELABRATOR CORP. V. CHAFEE, 455 F. 2D 1306 (D.C. CIR. 1971).

SUBSEQUENTLY, WE WERE ADVISED THAT THE COURT WOULD NOT GRANT DCEL INJUNCTIVE RELIEF BUT RATHER DECIDED, BY MEMORANDUM OPINION OF JANUARY 7, 1974 (RECEIVED IN THIS OFFICE FEBRUARY 6, 1974), TO TRANSFER THE MATTER TO ANOTHER JURISDICTION. SINCE IT THEN BECAME APPARENT THAT COURT ACTION ON THE MATTER WOULD NOT BE FORTHCOMING IN THE NEAR FUTURE, WE DISMISSED THESE PROTESTS IN ACCORDANCE WITH 4 C.F.R. SEC. 20.11 (1974). MATTER OF NATRON CORPORATION, B-178224, B2179173, MARCH 29, 1974, 53 COMP. GEN. .

THEREAFTER, WHEN DCEL'S SUIT WAS VOLUNTARILY DISMISSED NATRON, BY LETTER OF APRIL 15, 1974, REQUESTED THAT THE MATTER BE REOPENED AND A DECISION BE RENDERED ON ITS PROTESTS UNDER IFB 1168 AND RFP 0630. THEREFORE, WE REQUESTED THE ARMY TO FURNISH US WITH A SUPPLEMENTAL REPORT ON THE MATTER, IN VIEW OF THE DEVELOPMENTS SINCE THE INITIAL REPORTS HAD BEEN RECEIVED. HOWEVER, ON JULY 3, 1974, COUNSEL FOR NARTRON INFORMED THIS OFFICE THAT IT HAD FILED A CIVIL ACTION IN THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ON ESSENTIALLY THE SAME GROUNDS AS ITS PROTEST UNDER RFP 0630. UPON RECEIPT OF A COPY OF THE COMPLAINT, WE DETERMINED THAT THE ACTION OF THE COURT IN THE MATTER WOULD TAKE PROCEDENCE OVER ANY DECISION OF OUR OFFICE ON NARTRON'S PROTESTS BECAUSE NARTRON WAS PROTESTS BECAUSE NARTRON WAS REQUESTING AN AWARD UNDER RFP 0630 AS ITS REMEDY UNDER IFB 1168. THEREFORE, WE DISMISSED NARTRON'S PROTESTS UNDER BOTH IFB 1168 AND RFP 0630 AND INDICATED WE WOULD TAKE NO FURTHER ACTION IN THE MATTER. MATTER OF NARTRON CORPORATION, B-178224, B-179173, JULY 17, 1974.

INITIALLY, IT SHOULD BE NOTED THAT OUR DECISION OF JULY 17 DOES NOT PROVIDE FOR A "DELAY" OF OUR CONSIDERATION OF NARTRON'S PROTEST UNDER IFB 1168. WE HELD THAT NO FURTHER CONSIDERATION WOULD BE GIVEN TO NARTRON'S PROTESTS UNDER EITHER SOLICITATION.

WHILE DECISIONS OF THE COMPTROLLER GENERAL ARE SUBJECT TO REVISION WHEN ERRORS OF FACT OR LAW ARE ALLEGED AND DEMONSTRATED, THE REQUEST FOR RECONSIDERATION ADVANCES NO ADDITIONAL FACTS NOR OFFERS ANY ARGUMENTS OF LAW WHICH WERE NOT FULLY CONSIDERED AND DISCUSSED IN OUR DECISION OF JULY 17.

MOREOVER, WE NOTE THAT, SUBSEQUENT TO THE DECISION OF JULY 17, 1974, NARTRON ENTERED INTO A STIPULATION WITH THE ARMY DATED OCTOBER 18, 1974, WHEREBY NARTRON'S CIVIL ACTION WAS VOLUNTARILY DISMISSED WITH PREJUDICE PURSUANT TO RULE 41(A)(1) OF THE FEDERAL RULES OF CIVIL PROCEDURE. THIS DISMISSAL ACTS AS A COMPLETE ADJUDICATION OF THE ISSUES PRESENTED AND BARS FURTHER ACTION BETWEEN THE PARTIES. PHILLIPS V. SHANNON, 445 F.2D 460 (7TH CIR. 1971); GLICK V. BALLENTINE PRODUCE, INC., 397 F.2D 590 (8TH CIR. 1968); SMOOT V. FOX, 340 F.2D 301 (6TH CIR. 1964). THUS, INSOFAR AS THE REPURCHASE CONTRACT IS CONSIDERED, THIS STIPULATION WAS A FINAL ADJUCICATION ON THE MERITS OF NARTRON'S PRAYER FOR THE AWARD OF THAT CONTRACT WHICH THE COURT WOULD HAVE BEEN REQUIRED TO DECIDE. THIS ACTION ALSO BARS FURTHER CONSIDERATION BY THIS OFFICE OF NARTRON'S REQUEST FOR THAT AWARD. MATTER OF MILITARY BASE MANAGEMENT OF NEW JERSEY, INC., B- 178872, JANUARY 22, 1974, AFF'D, B-178872, MAY 20, 1974.

ACCORDINGLY, THE REQUEST FOR RECONSIDERATION IS DENIED AND WE WILL TAKE NO FURTHER ACTION ON THIS MATTER.