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ACME OF PRECISION SURGICAL CO. v. WEINBERGER

February 7, 1984

ACME OF PRECISION SURGICAL CO., INC. t/a A & P Surgical Co., Inc., Columbia Surgical Instrument, Inc.
v.
Caspar W. WEINBERGER, Secretary of Defense, Admiral Eugene A. Grinstead, General L. A. Brooks, Col. Neil Bischoff, Lt. Col. James Ostrander, William Di Lauro, Surgical Instrument Co. of America, American Medical Instrument Corporation, Marbex, Inc. and Joseph Bak, Joseph Calabro



The opinion of the court was delivered by: HANNUM

 HANNUM, District Judge.

 Plaintiffs filed this action for injunctive and declaratory relief challenging certain solicitations issued by The Defense Personnel Support Center ("DPSC") for surgical instruments. Plaintiffs assert that these surgical instruments, end items which were articles of specialty metals, were awarded or were going to be awarded to other bidders in violation of statutory law, namely the Department of Defense Appropriations Act, Pub.L. No. 97-114, § 723, 95 Stat. 1565 (1981), the Joint Resolution making continuing appropriations for fiscal year 1983, P.L. No. 97-276, 96 Stat. 1186 (1982), and the Joint Resolution making further continuing appropriations for fiscal year 1983, P.L. No. 97-377, 96 Stat. 1830 (1982).

 The gravamen of plaintiffs' contentions is that DPSC's reliance on Defense Acquisition Regulation 6-302, 32 C.F.R. § 6-302 (1982) in making its procurement decisions is contrary to the so-called "Buy American" provisions of the appropriations act and the subsequent joint resolutions. Specifically, plaintiff bidders contend that the "Buy American" provisions require that all articles of "specialty metals" purchased by "appropriated funds" must be manufactured entirely in the United States, and not just " melted " in the United States as is permitted in Defense Acquisition Regulation 6-302.

 The parties have agreed to the consolidation of the hearing on plaintiffs' motion for preliminary injunctive relief with the trial on the merits pursuant to F.R.CIV.P. 65(a)(2), and have filed a comprehensive stipulation of facts to that end. See Docket Entry No. 37. Presently pending before the Court are the following motions: (1) Government Defendants' Motion To Dismiss Or, In The Alternative, To Transfer; (2) Motion Of Defendant Surgical Instrument Co. Of America To Dismiss, Or In The Alternative, To Transfer; (3) Plaintiffs' Motion For Preliminary Injunction And Summary Judgment; (4) Cross-Motions For Partial Summary Judgment; (5) Motion Of Defendant Marbex, Inc. To Compel Discovery; (6) Motion Of Defendant Surgical Instrument Co. Of America To Waive Retention Of Local Counsel; (7) Motion Of Defendant Marbex, Inc. For Second Extension Of Time.

 Because the parties stipulated to "the trial of the action on the merits [being] advanced and consolidated with the hearing of the application [for a preliminary injunction]" pursuant to F.R.CIV.P. 65(a)(2), the Court makes the following findings of fact (F.R.CIV.P. 52), all of which are undisputed (see Docket Entry No. 37):

 1. The Plaintiff, Acme of Precision Surgical Co. t/a A & P Surgical Instrument Co., Inc. ("A & P") is a New Jersey corporation with its principal place of business located at 485 South 21st Street, Irvington, NJ 07111; the Plaintiff Columbia Surgical Instrument, Inc. ("Columbia") is a New York corporation with its principal place of business located at 118 Sanford Street, Brooklyn, NY 11205.

 2. The Plaintiffs are manufacturers of surgical instruments of various types, including the surgical instruments which were being procured by the various solicitations described hereinafter. The Plaintiffs are both small businesses as defined in the Small Business Act, 15 U.S.C. 632, and its implementing regulations, 13 C.F.R. § 121.3 et seq.

 3. Each of the individual Defendants is an officer or employee of the United States, or an agency thereof, acting in his official capacity or under color of legal authority. This is not an action concerning real property.

 4. The Defendant Caspar W. Weinberger is the Secretary of Defense and is charged with the responsibility of all services, components, agencies, units, and personnel of the Department of Defense ("DOD").

 5. The Defendant Admiral Eugene A. Grinstead is the Director of the Defense Logistics Agency ("DLA"), which is an agency of DOD, and is charged with the responsibility for all components, agencies, units and personnel of DLA.

 6. The Defendant General L. A. Brooks is the Commander of the Defense Personnel Support Center, 2800 South 20th Street, Philadelphia, Pennsylvania ("DPSC"), which is a field activity of DLA, and is charged with the responsibility for all components, units, and personnel of DPSC.

 7. The Defendant Col. Neil Bischoff is the Director of the Medical Directorate of DPSC ("DPSC, Medical") and is charged with the responsibility for all components, units and personnel of DPSC responsible for the procurement of medical items.

 8. The Defendant Lieutenant Colonel James Ostrander is the Branch Chief, Central Contracts Branch Medical Directorate DPSC, and supervises procurement personnel of the Central Contracts Branch DPSC including its contracting officers.

 9. The Defendant William Di Lauro and Joseph Bak and Joseph Calabro *fn1" are the contracting officers with DPSC Medical on those certain solicitations more fully described below and are specifically charged with the responsibility for all acts and omissions taken in connection with the said solicitations.

 10. The Defendant Surgical Instrument Corporation of America ("Sicoa") is a Delaware Corporation with its principal place of business located at 469 Jane Street, Ft. Lee, New Jersey 07024; the Defendant Marbex, Inc. ("Marbex") is an Ohio corporation with its principal place of business located at Room 627, National Bank Bldg., Portsmouth, Ohio 45652; the Defendant American Medical Instrument Corporation ("Amico") is a New York corporation with its principal ...


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