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May 28, 1985

AMERON, INC., Plaintiff,
U.S. ARMY CORPS OF ENGINEERS, et al., Defendants

The opinion of the court was delivered by: ACKERMAN

 On March 27, 1985 I ruled on the plaintiff's motion for a preliminary injunction in this matter holding that although the Army Corps' decision to reject Ameron's bid was unreviewable, the Army Corps must hold up all work on the contract until the Comptroller General had reviewed Ameron's protest in accordance with the Competition and Contracting Act (CICA) Public Law No. 98-369, 98 Stat. 494 (1984), which I found to be constitutional, 607 F. Supp. 962.

 Since my ruling the Comptroller General has reviewed plaintiff's protest pursuant to CICA provision 31 U.S.C. § 3553(d)(1) and has issued a decision denying plaintiff's protest. As there seemed to be no disputes of fact in this case, but only strongly contested disputes of law, plaintiff-intervenors have now moved for summary judgment. In addition, the defendants have moved to dissolve the preliminary injunction in light of the GAO's issuance of a decision on plaintiff's protest.

 Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is not to be granted unless, after all reasonable inferences are drawn in favor of the non-moving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See DeLong Corporation v. Raymond International, 622 F.2d 1135 (3d Cir. 1980).

 Thus I must give each party in turn the benefit of any reasonable inferences in their favor should there be any factual disputes.

 The plaintiff-intervenors have also requested that the Secretary of Defense, the Honorable Casper W. Weinberger, and Office of Management and Budget Director, the Honorable David A. Stockman, be joined in order to effectuate complete relief in any order issued by this Court. I find it necessary and proper to join these two individuals as defendants and the relief sought in that respect will be granted.

 I will first address plaintiff's motion for summary judgment concerning the legality of the denial of its bid in the first place. Plaintiff contends that the Comptroller General's decision is irrational and unreasonable and conflicts with established law concerning alteration of documents. Plaintiff's counsel has enlarged on that theme very eloquently today and, of course, his brief speaks also to the points. I may say that I have already substantially addressed these arguments in my opinion on March 27, 1985. After careful consideration of Ameron's brief and its oral argument today, I must say that the presentation of these arguments does not change my analysis of the law from what it was on the motion for preliminary injunction. I find, as a matter of law, that the Army Corps' decision was not illegal or irrational, and I, therefore, cannot interfere with that decision. My reasoning relies principally on Princeton Combustion Laboratories v. McCarthy, 674 F.2d 1016 (3d Cir. 1980) and is discussed in more detail on pages 8 to 11 of my previous opinion.

 Plaintiff's motion for summary judgment is accordingly denied in part. For the same reasons I grant defendants' cross-motion for summary judgment as to the issue of the legality of the Army Corps' denial of Ameron's bid. The denial of Ameron's bid had a legal and rational basis and will not be disturbed by this Court.

 I turn then to the plaintiff-intervenor's motion for summary judgment concerning the constitutionality of the stay provisions in CICA. Defendant's have cross-moved for summary judgment on this same issue. All parties agree that there are no disputed issues of material fact, and each party maintains its original position that it is entitled to judgment as a matter of law.

 Before I can consider any further motions in this matter, I must determine whether this Court still has jurisdiction over this matter following the Comptroller General's dismissal of Ameron's bid protest. It is axiomatic that federal courts may constitutionally decide only actual controversies. See, e.g. Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498 at 514, 55 L. Ed. 310, 31 S. Ct. 279 (1911). This Court preliminarily enjoined defendant from proceeding any further with the contract award until the Comptroller General decided Ameron's bid protest in compliance with the provisions of the Competition in Contracting Act. As I stated earlier, the Comptroller General has now decided the bid protest and issued a decision all in accordance with CICA.

 While the legal merits of the Army Corps denial of Ameron's bid did remain for final adjudication following the preliminary injunction, the question of the constitutionality of CICA may possibility be moot.

 All parties urge that this issue is still justiciable under the "capable of repetition, yet evading review" doctrine. This doctrine was discussed at length in Southern Pacific Terminal cited supra, at page 515 where the plaintiff sought to have declared illegal an order of the Interstate Commerce Commission. There the Court quoted from the rule announced in United States v. Trans-Missouri Freight Association, 166 U.S. 290 at 308, 41 L. Ed. 1007, 17 S. Ct. 540. The Court said:

 "Private parties may settle their controversies at any time, and rights which a plaintiff may have had at the time of the commencement of the action may terminate before judgment is obtained or while the case is on appeal, and in any such case the Court being informed of the facts would proceed no further in the action. Here, however, there's been no extinguishment of the rights . . . of the public, the enforcement of which the government has endeavored to procure by the judgment of a court under the provisions of the act of Congress . . . The defendants cannot foreclose these rights nor prevent the assertion thereof by the government as a substantial trustee for the public under the act of Congress by any such action as has been taken in this case."

 The Court again discussed the "capable of repetition yet evading review" doctrine in Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 40 L. Ed. 2d 1, 94 S. Ct. 1694 (1974) where the Court stated at pages 125 and 126:

 "It is sufficient, therefore, that the litigants show the existence of an immediate and definite governmental action or policy that was adversely affected and continues to affect a present interest. Otherwise (the policy at issue) could be adjudicated only ...

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