from a single supplier, without competition), and other noncompetitive methods. Of that $168 billion "only about one-third, $54 billion, was categorized as competitive." Competition in Contracting Act of 1984 : H.R. Rep. No. 1157, 98th Cong., 2d Sess. 12 (1984) (" CICA Report ").
In deciding to enact a stay provision to give the GAO time to examine protests, the House committee holding hearings on CICA was very concerned with fait accompli situations where the administrative agency moved ahead with its procurement, in spite of the protest, thereby precluding meaningful judicial review. The committee referred to two opinions in which the court's ability to grant meaningful relief was limited because the agencies had made the challenged awards fait accompli in the time it took plaintiffs to get to the courthouse.
In Robert E. Derecktor of Rhode Island, Inc. v. Goldschmidt, 506 F. Supp. 1059 (D.R.I. 1980), the plaintiff filed a protest with the GAO concerning a Coast Guard procurement, but "before the GAO acted upon the protest, the Coast Guard executed the contract with [the protester's competitor]." Id. at 1061. The Court cited the procurement regulations discussed above, which required that before making an award "where it is known that a protest against the making of an award has been lodged directly with GAO," approval must be given "at an appropriate level above that of the contracting officer . . . [and] a notice of intent to make award in such circumstances shall be furnished GAO. . . ." Id. at 1061-62 (quoting regulations). The Coast Guard, evidently not wanting to have an independent opinion on the validity of its action, had not followed that regulation.
In Aero Corp. v. Department of the Navy, 540 F. Supp. 180 (D.D.C. 1982), the plaintiff protested to the GAO concerning a Navy aircraft procurement, but the Navy succeeded in having GAO dismiss the protest as premature. Then, before the plaintiff could protest again, or seek judicial review, the Navy moved ahead with its procurement, apparently trying to present the GAO "with a fait accompli," id. at 215, citing Derecktor, supra. By such steps, the Navy, "besides making competition impossible, made extremely dangerous any delay that might be occasioned by the judicial process or GAO review." Id. at 185 n. 7. In effect, the Navy "had finessed plaintiff's efforts to make a timely protest to the General Accounting Office, and had denied plaintiff an opportunity for timely judicial review of the sole-source decision as to the first 20 aircraft." Id. at 185.
The House report noted: "GAO has no power to stop a contract award or contract performance while a protest is pending. As a result, agencies usually proceed with their contracts, knowing that they will preclude any possibility of relief simply by delaying the protest process." CICA Report, supra, at 24 (quoting hearing testimony). Congress' solution was to enact the stay provision in 31 U.S.C. Section 3553.
I find, therefore, that plaintiffs have made a sufficient showing of irreparable injury in light of the purposes of the Act. The Act specifically provides for a stay such as I am ordering to give the GAO time to review the protest.
I note that the provisions of the Act have a built-in safety valve to prevent undue harm to the United States. Should the head of the procuring activity find that urgent and compelling circumstances which significantly affect interests of the United States be present, work can proceed on the contract in spite of the protest. See 31 U.S.C. Section 3553(c)(2)(A).
I also find that the harm to defendant Spiniello is limited at this point. They have ordered some materials for the project and have organized their work plans and geared up for the project, but no evidence has been presented to demonstrate that any harm greater than a limited monetary investment would ensue if all work were stopped.
I accordingly preliminarily enjoin defendants from going forward with any work except in accordance with the CICA provisions.
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