Moreover, the facts surrounding the inaccurate financial
information are in flux and, due to the actions pending
in other forums, some of those facts are unavailable to
our Office during the short time frame under which these
protests must be resolved. We hesitate to judge
the degree of relevance or importance of such
facts--such as the nature of culpability for acts
causing the inaccuracies--before the other forums
determine them. Thus, although the precise matter
being protested here (the award of the DREN contract) is
not the subject of litigation before a court of
competent jurisdiction (which if had been our Office
would have promptly dismissed the protest, see 4 C.F.R.
§ 21.11(b)), we do not believe it is appropriate
for our Office to “get ahead” of this process in the
context of this protest. (Sprint
Communications Company LP; Global Crossing,
B-288413.11; B-288413.12, October 8, 2002) (pdf)
Protests
filed by a state licensing agency for the blind alleging
solicitation improprieties in two requests for proposals
issued pursuant to the Randolph-Sheppard Act are
dismissed because the Act gives authority for review of
disputes between federal agencies and state licensing
agencies regarding these procurements to the Secretary
of Education, not the General Accounting Office. (Maryland
State Department of Education, B-288501; B-288502,
August 14, 2001)
It is beyond cavil that
the Court of Federal Claims is a court of competent
jurisdiction to render a decision on Warvel's and ICF's
complaints challenging this procurement. It is also
clear that the court issued a decision on the merits,
granting a preliminary injunction and dismissing the
complaints. AR at 1551-53. Where, as here, the court's
decision constitutes a final adjudication on the merits
with respect to the procurement, it is conclusive and
bars further consideration of the issue by our Office.
Affiliated Textiles, Inc., B-242970.2, Aug. 5, 1991,
91-2 CPD para. 127 at 3. The effect of such a judgment
extends to matters that might have been decided, as well
as to matters that were actually decided. Id. at 4;
Techniarts Eng'g--Recon., B-238520.7, June 10, 1992,
92-1 CPD para. 504 at 2. Accordingly, we will not
consider any matter that was, or could have been,
decided by the court. (Warvel
Products, Inc., B-281051.5, July 7,
1999)
We dismiss this
allegation because it involves a matter that is the
subject of litigation in federal court. 4 C.F.R. sec.
21.11(b) (1999). The matter involved in this protest is
whether the contracting agency knew the
"marginal" CPAR ratings to be motivated by
bias, instead of an impartial assessment of the
protester's performance. To answer this question, our
Office must first determine whether bias did, in fact,
taint the ratings -- the same question posed in Oahu's
federal complaint. While Oahu correctly observes that
its federal complaint does not mention the instant
procurement and seeks different relief (i.e., the
correction of the CPAR rather than the termination of
the awardee's contract), these differences do not
overcome the fact that Oahu has placed the same facts in
issue before both our Office and the federal court.
Compare Protest at 2-3 with Charles R. Tasker d/b/a Oahu
Tree & Stump Removal Experts, supra at 3-5. We
therefore dismiss Oahu's protest that the agency
knowingly relied on biased CPAR ratings, inasmuch as the
ratings have been challenged in federal district court.
See 4 C.F.R. sec. 21.11(b); Robinson Enters.--Request
for Recon., B-238594.2, Apr. 19, 1990, 90-1 CPD para.
402 at 2. (Oahu
Tree Experts, B-282247, March 31, 1999)
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