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MARINE POWER & EQUIP. CO. v. UNITED STATES

August 31, 1984

MARINE POWER AND EQUIPMENT COMPANY, INC., 1441 Northlake Way, Seattle, Washington 98103, Plaintiff,
v.
THE UNITED STATES, c/o Thomas Mason, 2100 Second St., S.W., Washington, D.C. 20593, Defendant



The opinion of the court was delivered by: FLANNERY

 Flannery, District Judge.

 This matter came before the Court on plaintiff's motion for a preliminary injunction and on motions to dismiss filed by defendant and defendant-intervenor. For the reasons stated herein, plaintiff's motion for a preliminary injunction is denied, the motions to dismiss are granted, and this case is dismissed.

 BACKGROUND

 This is the fourth in a series of cases arising out of a United States Coast Guard procurement in which the Coast Guard seeks fifteen patrol boats ("WPBs") on an expedited basis to combat drug smuggling in the Gulf Coast area. See Marine Power & Equipment Co. v. United States, 5 Cl. Ct. 795 (1984) [hereinafter " MPE I "]; Bollinger Machine Shop & Shipyard, Inc. v. United States, 594 F. Supp. 903 (D.D.C. 1984) [hereinafter " Bollinger "]; Eastern Marine, Inc. v. United States, 5 Cl. Ct. 34 (1984), appeal docketed, No. 84-1444 (Fed. Cir. July 19, 1984) [hereinafter " " Easteren Marine "]. *fn1" On May 11, 1984, the Coast Guard awarded the contract to plaintiff Marine Power & Equipment Company ("MPE"). Bollinger Machine Shop and Shipyard, Inc. ("Bollinger"), the only other bidder left in the competition immediately prior to the award, filed the Bollinger action in this Court shortly after the contract was awarded to its competitor. Bollinger alleged that the Coast Guard interpreted the Circular of Requirements ("COR") for the WPB procurement too broadly, and argued that a proper interpretation of the COR would reveal that MPE's proposal involving 12-cylinder WPB engines was nonresponsive and that Bollinger's 16-cylinder proposal was responsive. Bollinger sought an injunction setting aside the MPE award and requiring the Coast Guard to award the contract to Bollinger. MPE, whose entitlement to the contract award was being attacked directly in Bollinger, chose not to intervene. However, MPE actively assisted the Coast Guard during the course of the Bollinger proceedings. *fn2" After two motions hearings and a hearing on the merits, and after consideration of numerous documents and extensive testimonial evidence, the Court set aside the Coast Guard's award to MPE. The crux of the Court's decision was that the Coast Guard ignored the explicit requirements of the COR and abandoned its stated commitment to the "Parent Craft" concept by permitting MPE engine size deviations from the Parent Craft which were simply determined to be "to the advantage of the WPB mission." Bollinger, slip. op. at 24-26. In doing so, the Court held, the Coast Guard clearly violated its own regulations, which were carefully designed to ensure expeditious delivery of low-risk patrol boats needed to satisfy the agency's urgent need for reliable craft. This impermissible action, the Court held, was prejudicial to Bollinger, which had submitted a conservative proposal that was, unlike the MPE 12-cylinder engine proposal, well within the specifications established by the COR.

 In Bollinger, plaintiff Bollinger alleged in its complaint that its WPB bid was the only responsive offer. Bollinger Complaint para. 17. Defendant Coast Guard denied that Bollinger's proposal was "responsive" but admitted that Bollinger was "fully responsible and capable of performing in accordance with its offer and the RFP". Defendant's Answer in Bollinger at para. 17. After expedited discovery, the parties, with MPE's knowledge, stipulated that Bollinger's proposal was "an acceptable technical proposal from a responsible source, within the competitive range for this solicitation, conformed fully to the essential requirements of the solicitation, and was eligible for the award of the subject contract." After reviewing extensive evidence presented regarding Bollinger's proposal, this Court adopted the stipulation as fact. Bollinger, slip. op. at 11. Bollinger argued that because it was a responsive bidder, the Court should award it the contract if it found MPE's 12-cylinder proposal to be nonresponsive. Although the Court agreed that Bollinger was responsive, it refused to award it the contract because an additional bid was still before the agency, and uncertainty regarding that bid's responsiveness was created by a stipulation regarding MPE Parent Craft engine size. As the Court explained,

 
the record reflects that MPE submitted a second bid involving WPB's with 16-cylinder engines. Although the parties stipulated for purposes of this action that the MPE Parent Craft could be treated as if it contained 20-cylinder engines, it may have contained 16-cylinder engines. If so, MPE's alternate 16-cylinder WPB bid may be responsive. It is not clear to the Court that multiple WPB bids are permissible, or that MPE's 16-cylinder bid is in fact responsive, because these issues have not been litigated here. If MPE's Parent Craft contained 20-cylinder engines, then its 16-cylinder proposal will probably face the same difficulty as its 12-cylinder proposal [dissimilar and not possessing "superior power"], but even that is not clear from this record.

 Id. at 26-27. The Court went on to state that because Bollinger's bid was responsive, the Coast Guard certainly had the "option of expeditiously awarding the WPB contract to plaintiff." Id. at 27. Due to the presence of the MPE 16-cylinder bid, however, the Court remanded the case back to the Coast Guard for final selection, and directed that it take "appropriate action not inconsistent with the Court's decision." Id., Judgment Order. The Court has since learned that MPE's Parent Craft contained 20-cylinder engines, a fact that was not before it in Bollinger.

 On August 8, 1984, the Coast Guard awarded the WPB contract to Bollinger. On August 10, 1984, MPE, now an unsuccessful bidder, filed this action. Count I of plaintiff MPE's complaint now alleges that Bollinger's WPB proposal was not responsive to the solicitation. Count II alleges that the Coast Guard was obligated after the Bollinger decision to discuss with MPE the deficiencies in its proposals and to offer MPE an opportunity to revise its proposals before the contract was re-awarded. Count III alleges that the specifications of the COR, as interpreted by this Court, are too restrictive because they do not reflect the minimum needs of the Coast Guard, as allegedly required by law. Plaintiff requests preliminary and permanent injunctive relief directing the Coast Guard to set aside its award to Bollinger, discuss with MPE the deficiencies in its proposals, and amend its COR to reflect its minimum needs.

 Shortly after commencement of this case, plaintiff filed a motion for expedited discovery and a motion for a preliminary injunction. Bollinger filed a motion to intervene, and defendant United States Coast Guard and Bollinger filed motions to dismiss. The Court granted Bollinger's motion to intervene, and a hearing was held on plaintiff's expedited discovery motion on August 16, 1984. Later that day, the Court denied plaintiff's motion for expedited discovery, ordered that both sides submit affidavits relevant to the preliminary injunction motion, and ordered that a hearing on the preliminary injunction motion and the motions to dismiss filed by the Coast Guard and defendant-intervenor Bollinger [hereinafter "defendants"] be held on August 23, 1984. Memorandum Order filed August 16, 1984. The issues were fully briefed and argument was heard.

 DISCUSSION

 The Court is intimately familiar with the essential facts and legal issues involved in this case because it is the second case it has been called upon to decide involving the same procurement. In fact, as discussed in Part B below, many of the issues plaintiff seeks to litigate here have already been litigated. The Court has decided, however, to rule ...


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