the Court, Bollinger, slip. op. at 11, 25, 27. Because the possibility of another responsive bidder existed, however, the Court did not accept Bollinger's argument that it was the only remaining responsive bidder, and so declined to order that Bollinger be awarded the contract and remanded the case to the Coast Guard.
A strange estoppel issue is thus presented. MPE argues that the Court's finding that Bollinger was responsive was not "necessary" to the Court's decision, because a remand would have been required due to its alternative bid regardless of Bollinger's responsiveness. But the only reason the Court could not conclude that Bollinger was the only responsive bidder was because of the uncertainty created by a second stipulation regarding the engine size of MPE's Parent Craft. That stipulation, which stated that the MPE Parent Craft contained either 16 or 20-cylinder engines, was developed to protect MPE's proprietary privilege. If MPE's Parent Craft contained a 16-cylinder engine, then MPE's alternative 16-cylinder craft might have been responsive. If the Court had known the truth -- that the MPE Parent Craft contained a 20-cylinder engine -- then it would have been in a position to determine that MPE's alternative 16-cylinder bid was also nonresponsive due to dissimilarity in engine size, see Bollinger, slip. op. at 26-27. Under such circumstances, Bollinger's proposal, which was clearly responsive, would have been deemed the only responsive bid and the contract would have been awarded to Bollinger. But for the misleading stipulation, then, the Court would have had to determine whether Bollinger's bid was responsive before awarding it the WPB contract, and the Court's finding on this issue would have been "necessary." It would be inequitable at this point to give credence to MPE's argument that the Bollinger responsiveness issue was not "necessary" to the Bollinger decision, since determination of the issue would have been "necessary" had the Court been told the truth about the MPE Parent Craft engine size during the Bollinger litigation.
A similar problem is presented with regard to the issue of whether Bollinger's stipulated responsiveness was "actually litigated." Although the issue was originally contested by the Coast Guard, a stipulation was reached. MPE argues that the stipulation was binding only for purposes of the Bollinger action, and has no binding effect on MPE, a non-party. Had MPE intervened and objected to the stipulation, however, the issue would have had to have been thoroughly litigated because its determination was necessary to the Court's fashioning of equitable relief, see supra. MPE is now attempting to shield itself from the estoppel consequences it would have faced if it had intervened. If MPE is treated as a party under the Montana reasoning, then it should be bound by the stipulation. In addition, the Court heard extensive testimony on the responsiveness of Bollinger's bid, and found as a fact that it was responsive. This action involves the same procurement and the same COR that was the subject of Bollinger, and, as discussed in Part A, no evidence has been presented here that persuades the Court that its prior finding that Bollinger was responsive was incorrect. Again, it would be inequitable and a waste of judicial resources to permit MPE to litigate this issue again.
Even if MPE is not technically collaterally estopped from litigating the issue of Bollinger's responsiveness, it is clearly barred by the doctrine of res judicata from doing so. Under res judicata, "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414, 66 L. Ed. 2d 308 (1980) (emphasis added). Clearly, MPE "could have" and should have raised the issue of Bollinger's responsiveness in the United States Claims Court in MPE I. When that action was filed, and by virtue of this Court's Bollinger order, the original MPE award was set aside and the Bollinger and MPE 16-cylinder proposals were the only proposals that were even arguably eligible for the award. In MPE I, MPE sought an injunction against the award to any bidder except MPE. Clearly, the allegation that Bollinger was nonresponsive and therefore not eligible would have been an appropriate one which, assuming this Court's Bollinger decision did not bar such an allegation, could have been litigated in the Claims Court. Had the issue been raised there, the Claims Court, if it concluded that the issue was not collaterally estopped by Bollinger, could have litigated it fully, and, if it decided in plaintiff's favor, could have granted the requested injunction against award to any bidder other than MPE -- because MPE would then have been the only remaining bidder. But MPE chose not to raise the issue of Bollinger's responsiveness in the Claims Court, MPE I, slip. op. at 8 n.8, and now seeks to raise the issue here. As the Court held in Marrese v. American Academy of Orthopaedic Surgeons, 726 F.2d 1150, 1152 (7th Cir.) (en banc), cert. granted in part, 467 U.S. 1258, 104 S. Ct. 3553, 82 L. Ed. 2d 854 (1984), the doctrine of res judicata forbids a plaintiff from splitting his cause of action by bringing a suit on one theory and then, after he has lost, trying again on a different theory. See Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 101 S. Ct. 2424, 69 L. Ed. 2d 103 (1981). The final judgment in MPE I,5 which involved the same procurement as is at issue here, bars plaintiff from bringing its Count I claim.
Count III of plaintiff's complaint is similarly barred by the doctrines of collateral estoppel and res judicata. The central issue in Bollinger was the proper interpretation of the COR for this procurement. Plaintiff's "minimum needs" argument is no different from the arguments presented by the Coast Guard in Bollinger. The Coast Guard there argued that MPE's 12-cylinder proposal was acceptable under Section 042 of the COR because it was deemed "to the advantage of the WPB mission." Bollinger, slip. op. at 23. The Coast Guard argued that because it had made that technical determination, the Court should not interfere and should not interpret the COR as requiring more. That argument was rejected in light of the explicit language of § 042 requiring "superior power and maintenance" for smaller engine substitutions. Id. at 24-25. These explicit requirements, the Court determined, were consistent with the COR's stated reliance on the "Parent Craft" concept, which was designed to fulfill the Coast Guard's urgent need for reliable and proven boats. Id. at 3-4, 25. Thus, this Court has already faced and rejected the "minimum needs" argument, albeit not couched in those exact terms. MPE is therefore collaterally estopped from relitigating that issue here.
In addition, MPE presented its "minimum needs" argument to the Claims Court, MPE I, slip. op. at 4, 7, 9 n.9. That Court decided that MPE was estopped from litigating the issue there because it was already litigated in Bollinger, id. at 9 n.9. This Court agrees, and refuses to give plaintiff a third chance to litigate its meritless position.
Plaintiff is correct that the doctrines of res judicata and collateral estoppel do not bar its Count II claim that the Coast Guard was required to discuss the deficiencies in the MPE proposals prior to awarding the WPB contract to Bollinger. But this claim is clearly meritless, and is properly dismissed under Fed. R. Civ. P. 12(b)(6). Given this Court's Bollinger decision -- in which the Coast Guard was explicitly given the option of expeditiously awarding the contract to Bollinger, the Coast Guard acted reasonably in so doing. Plaintiff alleges that the Burnley Memorandum, attached to Plaintiff's Supplemental Brief in Opposition to Defendant and Defendant-Intervenor's Motions to Dismiss as Exhibit A, shows that the Coast Guard failed to consult with MPE and did nothing more than assess the viability of its options in light of the Bollinger decision before deciding to award the contract to Bollinger. The Court accepts these allegations as true, but holds that the Burnley affidavit demonstrates that the Coast Guard took "appropriate action in accordance with" this Court's Bollinger decision as directed, and that the agency was obligated to do nothing more. As discussed in detail above, the only reason the Court remanded the Bollinger case to the Coast Guard was because MPE's alternative 16-cylinder proposal may have been responsive if its Parent Craft had contained 16-cylinder engines, which would have given the Coast Guard the option of awarding the contract to MPE for that proposal instead of to Bollinger for its responsive proposal. But the Court also stated in Bollinger that, in the event that MPE's Parent Craft in fact contained 20-cylinder engines, then MPE's 16-cylinder proposal would be nonresponsive also, Bollinger, slip. op. at 27. MPE now admits what was known already by the Coast Guard -- that its Parent Craft contained 20-cylinder engines. Thus, the Coast Guard was faced with only three "best and final offers": the MPE 12-cylinder proposal, which this Court held to be nonresponsive; the 16-cylinder MPE proposal, which this Court strongly indicated to be nonresponsive; and the Bollinger proposal, which this Court held to be responsive. The Coast Guard's selection of the Bollinger proposal was clearly in accordance with this Court's directive.
MPE contends that the Coast Guard was nevertheless obligated to give MPE a chance to discuss its deficiencies and to cure them. It cites several procurement regulations in support thereof, but those regulations have since been replaced by the Federal Acquisition Regulations System, which now governs all federal procurements, see 48 Fed. Reg. 42103 et seq. Plaintiff would argue that the "discussions" requirements set forth in FAR § 15.609-610, 48 Fed. Reg. 42202, required the Coast Guard to reopen discussions with MPE and Bollinger after this Court set aside the original award to MPE. The Court disagrees. Section 15.611(c), 48 Fed. Reg. 42203, explicitly states that "after receipt of best and final offers, the contracting officer should not reopen discussions unless it is clearly in the Government's interest to do so." In this case, in which the Coast Guard's urgent need for WPB's has already been delayed by litigation, it is clearly not in the Government's interest to reopen discussions -- especially in light of this Court's Bollinger decision, which makes the responsiveness of Bollinger's proposal clear and the nonresponsiveness of MPE's two "best and final offers" equally obvious.
Further, as defendants have pointed out, even if the Coast Guard reopened discussions, MPE's chances to "cure" its WPB proposals would be remote and such action would be very time-consuming. Because the MPE Parent Craft contains 20-cylinder engines, both the 12 and 16-cylinder proposals could only be made "similar" by insertion of 20-cylinder engines. Such a substitution would involve prohibitive cost and would require extensive technical modifications from MPE's two existing offers. Even if the Coast Guard were to permit such time-consuming changes, evidence adduced in Bollinger established that a 20-cylinder WPB would not be responsive either, because it could not meet cruising range requirements. Bollinger, slip. op. at 12. In fact, it was because of this deficiency that MPE initially decided to substitute smaller engines. Id. at 21-22. Hence, even if there is some requirement, not known to the Court, that the Coast Guard give MPE a second chance to modify its proposals, and even if that requirement was violated, the violation is not "prejudicial" to MPE because MPE cannot cure its deficiencies to meet the requirements of the COR given its present Parent Craft. Absent a prejudicial violation of agency regulations, a disappointed bidder is not entitled to relief, Kentron Hawaii, 480 F.2d at 1169. Plaintiff here, however, cannot even point the Court to an applicable regulation that has been violated, and the Court declines to invent a requirement that federal procurements be reopened every time an award is set aside by a Court in favor of a responsive competing bidder. Such a requirement would stifle the government procurement process and prejudice bidders that have faithfully adhered to an agency's explicit procurement requirements in favor of those that have persuaded an agency to bend its requirements impermissibly.
For the reasons discussed above, this case is dismissed. An appropriate Order accompanies this Memorandum.
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 in an accompanying Memorandum, after careful consideration of the motions filed, the oppositions thereto, the arguments of counsel, and the entire record in this case, it is, by the Court, this 31st day of August, 1984,
ORDERED, that plaintiff's motion for a preliminary injunction is denied; and it is further
ORDERED, that the motions to dismiss filed by defendant and defendant-intervenor are granted; and it is further
ORDERED, that this case be, and hereby is, dismissed with prejudice.