B-199412, OCT 24, 1980

B-199412, OCT 24, 1980

DIGEST: 1. DISMISSAL OF SUIT BY DISTRICT COURT FOR LACK OF SUBJECT MATTER JURISDICTION DOES NOT OPERATE AS AN ADJUDICATION ON THE MERITS UNDER FEDERAL RULES OF CIVIL PROCEDURE. THEREFORE, A DECISION BY THIS OFFICE AFTER DISMISSAL IS PROPER. 2. WHERE GOVERNMENT ADMINISTRATIVE ERROR IN SALE OF SURPLUS PROPERTY RESULTS IN NOTIFICATION OF AWARD BEING SENT TO SECOND HIGHEST BIDDER, AWARD IS UNAUTHORIZED AND MUST BE CANCELED SINCE AWARD MUST BE MADE TO BIDDER SUBMITTING HIGHEST BID.

OSWALD WILSON, JR.:

OSWALD WILSON, JR. (WILSON), PROTESTS THE CANCELLATION OF A SURPLUS SALES CONTRACT AWARDED HIM UNDER NATIONAL CAPITOL REGION, SURPLUS SALES CENTER (GSA), SALES INVITATION FOR BIDS (IFB) NO. WDPS-80-127.

ON JUNE 12, 1980, BIDS WERE OPENED WITH WILSON THE SECOND HIGHEST BIDDER FOR ITEM 1, A TUGBOAT, AT $10,500. KEYSTONE SUBMITTED THE HIGH BID FOR ITEM 1 AT $12,678.90 AND ALSO SUBMITTED A BID FOR ITEM 4. PRIOR TO THE BID OPENING, KEYSTONE SENT A TELEGRAM TO GSA CANCELLING ITS BID ON ITEM 4. THE TELEGRAM WAS OPENED AT THE SAME TIME AS THE BIDS AND WAS MISTAKENLY READ AS REQUESTING CANCELLATION OF KEYSTONE'S BID ON ITEM 1, ALTHOUGH THE TELEGRAM, IN FACT, REFERRED TO ITEM 4.

CONSEQUENTLY, WILSON WAS DEEMED THE HIGH BIDDER AND WAS SENT NOTICE OF AWARD ON JUNE 12, 1980. ON JUNE 13, 1980, KEYSTONE INQUIRED OF GSA AS TO THE SUCCESSFUL BIDDER ON ITEM 1. THE MISTAKE WAS THEN DISCOVERED, AND A TELEGRAM, THAT SAME DAY, WAS SENT TO WILSON NOTIFYING HIM OF THE ERROR IN AWARD. GSA THEN SENT NOTICE OF AWARD FOR ITEM 1 TO KEYSTONE ON JUNE 19, 1980.

WILSON PROTESTED TO THIS OFFICE ON JUNE 30, 1980, AND ALSO FILED SUIT IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. THE DISTRICT COURT ON SEPTEMBER 19, 1980, DISMISSED WILSON'S SUIT FOR LACK OF SUBJECT MATTER JURISDICTION. SINCE A DISMISSAL FOR LACK OF SUBJECT MATTER JURISDICTION DOES NOT OPERATE AS AN ADJUDICATION ON THE MERITS, A DECISION BY THIS OFFICE IS PROPER. SEE FEDERAL RULES OF CIVIL PROCEDURES 41(B).

WILSON CLAIMS THAT HE HAS A VALID CONTRACT PURSUANT TO THE IFB AND THE NOTICE OF AWARD, AND THAT CANCELLATION IS IMPROPER. GSA, AND KEYSTONE, BELIEVE THAT THE CANCELLATION OF THE CONTRACT TO WILSON AND THE SUBSEQUENT AWARD TO KEYSTONE WAS PROPER BASED UPON PAST DECISIONS OF OUR OFFICE. CHARLIE DRIESBOCK MACHINE TOOLS, 58 COMP.GEN. 240 (1979), 79-1 CPD 56, AND ROGERS TRADING COMPANY, INC., B-182380, FEBRUARY 19, 1975, 75-1 CPD 102.

WE AGREE. OUR OFFICE HAS LONG HELD THAT WHERE A GOVERNMENT ADMINISTRATIVE ERROR IN A SALE OF SURPLUS PROPERTY RESULTS IN NOTICE OF AWARD TO THE SECOND HIGHEST BIDDER, THE AWARD IS UNAUTHORIZED UNDER THE APPLICABLE STATUTES AND MUST BE CANCELED. SEE WILLIAM D. GARRETT, B-192592, NOVEMBER 16, 1978, 78-2 CPD 350, AND CASES, SUPRA.

THE PROTEST IS THEREFORE DENIED.