Sterlingwear of Boston, Inc. v. United States

33 Cont. Cas. Fed. 74,956, 11 Cl. Ct. 517, 55 U.S.L.W. 2456, 1987 U.S. Claims LEXIS 8
CourtUnited States Court of Claims
DecidedJanuary 16, 1987
DocketNo. 454-86C
StatusPublished
Cited by8 cases

This text of 33 Cont. Cas. Fed. 74,956 (Sterlingwear of Boston, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sterlingwear of Boston, Inc. v. United States, 33 Cont. Cas. Fed. 74,956, 11 Cl. Ct. 517, 55 U.S.L.W. 2456, 1987 U.S. Claims LEXIS 8 (cc 1987).

Opinion

OPINION ON DEFENDANT’S MOTIONS TO DISMISS, TO VACATE PENDING INJUNCTION, AND FOR EXPEDITED CONSIDERATION

REGINALD W. GIBSON, Judge:

I. Statement of the Case

This opinion addresses certain bench rulings made on December 31, 1986, in which the court denied defendant’s then pending motion to dismiss on jurisdictional grounds, reserved decision on defendant’s motion to dismiss on the merits, and denied defendant’s motion to vacate a currently pending preliminary injunction.1 On July 22, 1986, plaintiffs, Sterlingwear of Boston, Inc. (Sterlingwear), Vi-Mil, Inc., Jerome Danin, and Frank Fredella, filed petitions in this court seeking a temporary restraining order, a preliminary and a permanent injunction and other equitable relief. Plaintiffs sought to enjoin the Defense Logistics Agency (DLA) of the Department of Defense from awarding any contract pursuant to the invitation for bid (IFB) number IFB-DLA-100-85-B-1327, i.e., a contract for the manufacture of 10,624 women’s overcoats with W-removable liners. Plaintiff Sterlingwear was the apparent low bidder on this contract, but had been denied the actual award based upon the contracting officer’s (CO) finding of nonresponsibility. Upon this decision by the CO, the DLA therefore contemplated awarding the subject contract to the next lowest responsible bidder, Dale Fashions, Inc. In order to enjoin this latter award, plaintiffs have initiated appropriate litigation in this court.

Since the filing of this law suit, much has happened to exacerbate matters. First, at the time the initial temporary restraining order was sought on July 22, 1986, plaintiffs had already appealed their nonresponsibility finding to the U.S. Small Business Administration (see 15 U.S.C. § 637(b)(1)(F) (1982)), and were in the process of being issued a Certificate of Competency (COC), which would have entitled Sterlingwear to an award of the contract. The issuance of the COC was suspended, however, when the DLA moved, anticipatorily, to recommend the group debarment of each of the plaintiffs here (see 48 C.F.R. § 9.406-3(c)(7) (1986)). Plaintiffs were informed of the SBA decision to suspend the issuance of the Sterlingwear COC, pending the out[519]*519come of the debarment proceeding, by letter dated July 15, 1986. In order, therefore, to maintain the status quo in this court pending the outcome of the plaintiffs’ debarment proceeding, a hearing on plaintiffs’ application for a preliminary injunction was held on July 31, and August 1, 1986. Following that hearing, on August 13, 1986, a preliminary injunction was issued temporarily preventing the DLA from awarding the subject contract to Dale Fashions, Inc. That preliminary injunction remains in effect to this date. See Order dated August 13, 1986, Sterlingwear of Boston, Inc. v. United States, 10 Cl.Ct. 644 (1986).

Subsequently, on November 18,1986, the court was informed by defendant that all named plaintiffs in this action had received notice of their debarment by DLA. Following notice of the plaintiffs’ debarment, the court convened a status conference which was held on November 25, 1986. The purpose of that conference was to establish a mode of proceeding in this court in light of the plaintiffs’ debarment. During that hearing, the issue of the court’s continuing jurisdiction to consider the treatment of the plaintiffs’ bid, given the circumstances occurring during the debarment hearings, was challenged by the defendant. Plaintiffs, on the other hand, strenuously asserted that jurisdiction continued in this court to the extent there were substantial procedural defects in the debarment proceeding which they could prove had prejudiced the fairness of the treatment of their bid. Because of this apparent controversy surrounding the court’s continuing jurisdiction, the court instructed the parties to brief the jurisdictional issue. In response to the court’s order, on December 5, 1986, plaintiffs submitted a brief addressing continuing jurisdiction in this court, and defendant submitted its brief, by way of a motion to dismiss, on December 12, 1986.

Prior to any decision on its motion to dismiss, defendant further filed on December 19, 1986, two additional motions, infra. These two motions, along with defendant’s motion to dismiss, are the subject of this opinion. First, defendant filed a motion to vacate the pending preliminary injunction inasmuch as it contends that the debarment of plaintiffs on November 14, 1986, precludes further relief in this court. As a consequence, sole jurisdiction now lies in the United States District Court. Further, that to continue the preliminary injunction would be particularly injurious to the government because the next lowest bidder, Dale Fashions, Inc., refuses to extend its bid and the stipulated second lowest price beyond December 31, 1986, if the injunction were to remain in effect. The only other alternative, contends the government, should the preliminary injunction remain in place, would be for it to cancel the solicitation in its entirety. Second, because of the nearness of the December 31, 1986 deadline, defendant also moved for expedited consideration of its motion to vacate.

In order to accommodate the defendant’s perceived December 31, 1986 deadline, the court scheduled oral argument on the defendant’s motions to vacate and to dismiss at 11:00 a.m. on December 31, 1986. Both parties appeared and presented arguments similar to those previously outlined in their written submissions of December 5 and 19. Defendant also presented one witness, an attorney for Dale Fashions, in order to corroborate its position that as of December 31, 1986, should the injunction not be vacated, Dale Fashions would withdraw its bid. In addition, plaintiffs’ counsel represented to the court that since plaintiffs were found nonresponsible by the CO, and since the imposition of the pending injunction, defendant had in any event already negotiated contracts with Dale Fashions for some 6,000 of the very same women’s overcoats which are the subject of the contract in issue in this litigation. Defendant did not dispute the substance of this contention, except to state that it preferred to characterize the latter negotiated contracts as ones for coats “in excess of the quantities required by [the] ... IFB [in issue].” 2

[520]*520Following oral argument, a short recess was taken to consider the aforementioned arguments and the evidence presented by the parties. Thereafter, and because of the impending time deadline asserted by the defendant, the court ruled from the bench denying defendant’s motion to dismiss on jurisdictional grounds, and denying defendant’s motion to vacate the pending preliminary injunction. The court, however, did grant defendant’s motion for expedited consideration. Upon a further oral motion by the defendant, the court then converted the remaining portion of defendant’s motion to dismiss, relating to the merits of the plaintiffs’ complaint, to one for summary judgment governed by the provisions of RUSCC 56. Plaintiffs were then given 14 days in which to respond to the now converted motion for summary judgment. Lastly, the court announced that the instant opinion would issue outlining more completely the court’s rationale for denying the defendant’s motion, supra.

II. Discussion

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Cite This Page — Counsel Stack

Bluebook (online)
33 Cont. Cas. Fed. 74,956, 11 Cl. Ct. 517, 55 U.S.L.W. 2456, 1987 U.S. Claims LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sterlingwear-of-boston-inc-v-united-states-cc-1987.