UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
ELECTRONIC DATA SYSTEMS FEDERAL CORPORATION, ET AL.,
Appellants,
v.
GENERAL SERVICES ADMINISTRATION BOARD OF
CONTRACT APPEALS, ET AL.,
Appellees
No. 86-974
792 F.2d 1569
Judge Hogan.
I. Michael Greenberger, Shea & Gardner, of Washington, D.C.,
argued for the U.S. Government Printing Office. With him on the
brief was William S. Moore. Grant G. Moy, JR., General Counsel,
of Washington, D.C., was also on the brief.
Ronald A. Schechter, Commercial Litigation Branch, Department of
Justice, of Washington, D.C., argued for appellee, The United
States. With him on the brief were Richard K. Willard, Assistant
Attorney General, David M. Cohen, Director and M. Susan Burnett.
Donald C. Holmes, Jones, Day, Reavis & Pogue, of Washington,
D.C., argued for appellant, Electronic Data Systems. With him on
the brief were Erwin N. Griswald, Joseph D. West, Stephen S. Kaye
and Michael A. Gordon, of Washington, D.C., and Richard P.
Shlakman and James D. Duffey, Bethesda, Maryland.
Arthur Lazarus, Jr., Fried, Frank, Harris, Shriver and Jacobson,
of Washington, D.C., argued for AT&T Technologies. With him on
the brief were Paul Shnitzer and Carl J. Peckinpaugh, of
Washington, D.C. and Robert Y. Peters, of Greensboro, North
Carolina, of counsel.
Irwin Goldbloom, Latham, Watkins and Hills, of Washington, D.C.,
argued for Xerox Corporation. With him on the brief was Franklin
G. Snyder.
Thomas F. Williamson, Morgan, Lewis and Bockius, of Washington,
D.C., argued for Volt Information Systems.
Before BALDWIN, NIES and ARCHER, Circuit Judges. NIES, Circuit
Judge.
On May 2, 1986, this court issued the following order in
connection with petitions for mandamus and a transferred appeal
which had been consolidated for disposition on an expedited
bases:
This case raises an issue of the statutory protest authority of
the General Services Board of Contract Appeals (GSBCA) under the
Brooks Act, 40 U.S.C. � 759, as amended by the Competition in
Contracting Act, Pub. L. 98-369 (CICA), now 40 U.S.C. � 759(h).
Xerox Corporation filed a protest with GSBCA directed to a
contract which the Government Printing Office (GPO) entered with
Electronic Data Systems Federal Corporation (EDS) for integrated
printing or publishing services for the Department of Army. EDS
and GPO moved to dismiss for lack of jurisdiction in GSBCA on the
ground that the protested contract was not a procurement within
the scope of the Brooks Act and had not been conducted
thereunder. A procurement under the Brooks Act is one conducted
by authority of the General Services Administration for the
acquisition of automatic data processing equipment (ADPE). By
decision dated February 4, 1986, GSBCA held that it had
jurisdiction over the protest, and, in the course of proceedings,
it would decide whether the procurement should have been
conducted under the Brooks Act. In the interim, by an order of
February 6, 1986 (orally given February 5), GSBCA suspended the
contract and precluded GPO or the Army from satisfying any of the
Army's requirements within the scope of the suspended contract.
An expedited hearing was held by this court on April 10, 1986, on
petitions for mandamus filed by the government (Justice), by GPO
(represented by private counsel) and by EDS which were
consolidated with a hearing on an appeal involving the same
controversy. The appeal arose from a suit which had been filed
in the District Court for the District of Columbia, No. 86-0353
(D.D.C) by EDS seeking to restrain GSBCA from proceeding with the
protest. The district court entered a restraining order but held
that the litigation was an interlocutory appeal of the GSBCA
decision. Accordingly, the district court transferred the case
to this court pursuant to 28 U.S.C. � 1631 because this court's
exclusive appellate jurisdiction over GSBCA decisions (28 U.S.C.
� 1295(a)(10)) also gave this court, under D.C. Circuit
precedent, jurisdiction over interlocutory matters.
Telecommunications Research & Action v. FCC, 242 U.S. App. D.C.
222, 750 F.2d 70 (D.C. Cir. 1984). On March 3, 1986, this court
(Markey, C. J.) ordered that the restraining order issued by the
district court be kept in effect pending resolution of this
appeal.
We conclude that the Federal Circuit has jurisdiction over these
proceedings under 28 U.S.C. � 1292(c)(1), as an appeal from an
injunctive order issued by a forum over which this court has
appellate jurisdiction. We further conclude that a necessary
predicate to establishing protest jurisdiction in GSBCA under the
Brooks Act is a procurement of automatic data processing
equipment conducted or authorized by GSA under the Brooks Act.
Since it is undisputed that GPO conducted this procurement
without reference to the Brooks Act or GSA, and has received no
delegation of procurement authority from GSA related to the
subject procurement, we hold that GSBCA had no jurisdiction over
the subject protest.
Accordingly, it is ordered that:
1. The decision of GSBCA dated February 4, 1986, and the order
of February 6, 1986, suspending the subject contract are vacated;
and
2. The case is remanded to GSBCA with a direction to dismiss the
subject protest.
An opinion amplifying the statutory interpretation underlying
this order will be issued shortly.
This opinion provides the amplification of the facts and legal
analysis underlying the May 2, 1986, order.
I.
This controversy arises out of a GPO procurement for integrated
printing and publishing services to prepare, print and distribute
Army technical and training manuals. The procurement was
conducted pursuant to GPO's Request for Proposals No. 600-S
issued on December 4, 1984. Following a year of competitive
negotiations, on December 16, 1985, GPO received best and final
offers from AT&T Technologies, Inc. (AT&T), Electronic Data
Systems Federal Corporation (EDS), Volt Information Sciences,
Inc. (Volt), and Xerox Corporation (Xerox). On January 9, 1986,
GPO awarded the 600-S contract to EDS.
On January 9, 1986, AT&T challenged GPO's award of the contract
to EDS by filing a protest with the General Accounting Office
(GAO) pursuant to 31 U.S.C. �� 3551-3556 (Supp. II 1984). On
January 16 and 20, 1986, respectively, Xerox and Volt each filed
protests (GSBCA Nos. 8333-P and 8336-P) with GSBCA pursuant to 40
U.S.C. � 759(h) (Supp. II 1984).1 AT&T, GSA and EDS subsequently
intervened in the GSBCA proceeding. The Department of the Army
also sought to intervene but was allowed only to provide co-
counsel to GPO.2 GAO then dismissed AT&T's protest in deference
to the GSBCA protests, noting that AT&T could refile at GAO if
GSBCA ruled that it lacked jurisdiction.3 The various protests
alleged, inter alia, that the contract is one for automatic data
processing equipment (ADPE) which should have been procured under
the Brooks Act and that GPO also violated other statutes,
regulations, and its own Request for Proposals in making the
award to EDS.
GPO filed a motion to dismiss the protest on the ground that
GSBCA lacked jurisdiction since the procurement was not conducted
under Brooks Act. GPO further contended that the contract was
for printed materials, not for ADP equipment or services, and
that the contractor's use of ADPE in performing the contract did
not bring it within the Brooks Act. Upon GSA's intervention and
endorsement of the position of the protestors against GPO,
another provision of the Brooks Act, 40 U.S.C. � 759(g) (1982),
became germane to this controversy. Under � 759(g), when a
dispute arises between GSA and an agency over the applicability
of the Brooks Act to a particular procurement or proposed
procurement, the Office of Management and Budget (OMB) (formerly
the Bureau of the Budget) shall resolve such disputes. OMB,
which is part of the Executive Office of the President, is
specifically allowed to limit GSA's authority under the Brooks
Act by exercising policy and fiscal control over the actions of
the GSA Administrator. GPO made a request to OMB for resolution
of its dispute with GSA on February 3, 1986.
On February 4, GSBCA denied GPO's above-mentioned motion to
dismiss for lack of jurisdiction, reasoning that GSBCA, like
other tribunals, had power to determine its own jurisdiction.
Xerox Corp. & Volt Information Sciences, Inc., Nos. 8333-P, 8336-
P slip op. at 13 (GSBCA February 4, 1986) (hereinafter cited as
February 4 Order). In the course of the protest, GSBCA stated,
it would resolve the question of its jurisdiction over the
particular contract, that is, whether it should have been a
Brooks Act contract. On February 5, GSBCA ruled that, in
accordance with � 759(h)(3)(B), the contract between GPO and EDS
was suspended pending resolution of the protest. That oral order
was issued as a written opinion dated February 6, 1986. Xerox
Corp. & Volt Information Sciences, Inc., Nos. 8333-P, 8336-P
(GSBCA February 6, 1986).
On February 7, 1986, EDS filed suit in the United States District
Court for the District of Columbia seeking a temporary
restraining order and preliminary injunction against the GSBCA
and GSA on the ground that GSBCA acted beyond its jurisdiction.
GPO moved to appear as amicus curiae in support of EDS, and AT&T,
Volt and Xerox moved to intervene. The district court entered a
temporary restraining order that stayed the GSBCA proceedings and
reinstated performance of the 600-S contract on February 19,
1986. Two days later, the district court decided it lacked
jurisdiction and transferred the case to this court pursuant to
28 U.S.C. � 1631. However, the district court ordered that its
temporary restraining order remain in effect during the transfer
process.
On February 28, 1986, EDS and GPO filed in this court petitions
for writs of mandamus against GSBCA. On March 3, 1986, this
court consolidated the transferred appeal with the petitions for
writ of mandamus of GPO and EDS on March 14, 1986 and with a
later petition of the United States on March 24, 1986. As a
result of the consolidation, the appellants/petitioners include
EDS, GPO and the United States; the appellees/respondents include
Volt, Xerox and AT&T -- the protestors.
II.
Issues
1. Is the matter raised by appellants/petitioners appealable at
this time or properly a matter for mandamus?
2. Did the GSBCA have jurisdiction over the protest?
III.
Appealability of Interlocutory Decisions and Orders of GSBCA
A.
All of the parties to this case acknowledge that this court
possesses exclusive jurisdiction pursuant to 28 U.S.C. � 1295(a)
(10) (1982) over final decisions of an agency board of contract
appeals, including GSBCA decisions involving a Brooks Act
protest. The GSBCA decisions before us are not, however, final
decisions resolving the merits of the protest, which would
unquestionably be covered by � 1295(a)(10).
The federal courts of appeals also are expressly granted
jurisdiction over appeals from certain types of interlocutory
orders as set forth in 28 U.S.C. � 1292 (1982 & Supp. II 1984).
In relevant part, � 1292 provides:
(a) The courts of appeal [other than the Federal Circuit] shall
have jurisdiction of appeals from:
(1) Interlocutory orders of the district courts of the United
States . . . granting . . . injunctions.
(c) The United States Court of Appeals for the Federal Circuit
shall have exclusive jurisdiction--
(1) of an appeal from an interlocutory order or decree described
in subsection (a) or (b) of this section in any case over which
the court would have jurisdiction of an appeal under section 1295
of this title.
A case before GSBCA is a "case over which [the Federal Circuit]
would have jurisdiction of an appeal under � 1295." Thus, this
court has jurisdiction of this appeal from the GSBCA if an
interlocutory order or decree "described in � 1292(a)(1)" is the
basis for the appeal.
The parties offer different statutory interpretations with
respect to the meaning of the phrase in � 1292(c)(1): "described
in subsection (a)." That phrase, per appellants, should be
interpreted to mean "described" in the sense of the nature of the
order, that is, the order must be one "granting, continuing,
modifying, refusing or dissolving injunctions." On the other
hand, per protestors, it means that in addition to being an
injunctive type order, the order must have been issued by a
district court. For reasons which will become apparent, we
conclude that the subject phrase in � 1292(c)(1) refers only to
the nature of the order.
There is little in the way of legislative history of the Federal
Courts Improvement Act of 1982 (FCIA), Pub. L. No. 97-164, 96
Stat 27, which addresses this question. However, the Senate
Report does contain the following explanation:
Section 1292 of Title 28, United States Code, currently gives
regional courts of appeals jurisdiction of interlocutory orders
of the district courts . . . . The Bill [FCIA] amends this
section to give the Court of Appeals for the Federal Circuit
jurisdiction of interlocutory appeals in cases that will
otherwise come to it on appeal. [Emphasis added.]
S. Rep. No. 275, 97th Cong., 1st Sess. 18 (1981), reprinted in
1982 U.S. Code Cong. & Ad. News 11, 28 (emphasis added). Since
the cases over which the Federal Circuit has jurisdiction include
those not only from district courts, as specified in � 1292(a),
but also, inter alia, from the United States Court of
International Trade and the United States Claims Court, a
restrictive reading to limit review only to injunctions from the
district courts appears entirely inappropriate. There is no
evidence that Congress intended the Court of International Trade
(an Article III court) or the Claims Court (an Article I court)
to be excluded from an appellate review in connection with
injunctive orders, and this court has exercised jurisdiction to
review injunctive orders of both courts routinely. Thus, in
Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed. Cir.
1983), this court reviewed the denial of the preliminary
injunction by the Court of International Trade in an antidumping
action. Similarly, this court has reviewed injunctions in cases
from the Claims Court, for example, in ATL, Inc. v. United
States, 736 F.2d 677 (Fed. Cir. 1984) involving a bid protest.
Thus, we reject the interpretation that "described in subsection
[1292](a)" limits us to injunctions appealed from district
courts. Injunctive orders from any tribunal within our exclusive
appellate jurisdiction fall within the jurisdiction granted to
this court by � 1292(c)(1).
Protestors next argue that the words in � 1295(a)(10) granting
this court appellate jurisdiction over broads of contract appeals
give us jurisdiction to review only "an appeal from a final
decision" of these boards. Regardless of our jurisdiction over
appeals from interlocutory orders of other forums, per
protestors, a final board decision is necessary to invoke our
jurisdiction.
Contrart to this argument, the "final decision" language in �
1295(a)(10) has no significance with respect to restricting our
jurisdiction under � 1292(c)(1). All grants of jurisdiction to
this court in � 1295 are phrased in terms of "final" decisions or
orders of the various forums which we review, e.g., � 1295(a)(5):
"of an appeal from a final decision of the Court of International
Trade." (Emphasis added.) Indeed, comparable language is found in
� 1291, with respect to other circuits, i.e., "final decisions of
district courts are made subject to review."
Thus, we conclude that if an order of the GSBCA is an
interlocutory order granting an injunction within the meaning of
that phrase in � 1292(a)(1), such order is within the scope of
review granted to this court by � 1292(c)(1). We turn to the
question whether the subject order is an injunction.
B.
The Supreme Court has stated that in determining whether a
particular order is injunctive in nature, a court of appeals "is
not limited to the terminology used." Rather, it is necessary to
look to the substantive effect of the order. Ettelson v.
Metropolitan Life Insurance Co., 317 U.S. 188, 192, 87 L. Ed.
176, 63 S. Ct. 163 (1942); Investment Co. Institute v. Federal
Deposit Insurance Corp., 234 U.S. App. D.C. 237, 728 F.2d 518,
522 (D.C. Cir. 1984).
On February 5, 1986, the GSBCA issued an oral order, prior to a
decision on the merits, which suspended GPO's procurement
authority and, further, expressly precluded "either GPO or the
Army from satisfying any of the requirements which would
otherwise be satisfied under the suspended procurement." It is
this order, which was embodied in written form on February 6,
which appellants assert is injunctive in nature.
Appellants argue that because the February 6 order is a mandatory
prohibition against GPO and the Army to refrain from certain
acts, the order is in the nature of an injunction, citing 11 C.
Wright & A. Miller, Federal Practice and Procedure, � 2941, at
361 (1973); 2 J. Moore, Moore's Federal Practice, � 65.21, at
65-152 (1986); see also Aberdeen & Rockfish Railroad Co. v.
SCRAP, 422 U.S. 289, 307-08, 45 L. Ed. 2d 191, 95 S. Ct. 2336
(1975) (order that "directed" an agency "to perform certain acts"
and having "coercive" effect "bring[s] the order . . . within the
meaning of the word 'injunction'"). The subject order, as
appellants point out, did not simply suspend the GPO-EDS
contract, but completely prohibited any procurement falling
within the scope of the suspended contract. It is also
uncontroverted that much of the contract is divorced from any
connection to ADPE. Finally, appellants assert that the ultimate
relief sought by the protest is permanent termination of
authority to proceed with performance of the 600-S contract and
that the interim order grants some of that relief. Per
appellants, an interlocutory order which grants temporarily some
of the injunctive relief which may ultimately be granted on the
merits falls within the category of an appealable interlocutory
order granting an injunction, citing International Products
Corporation v. Koons, 325 F.2d 403 (2d Cir. 1963).
Protestors, on the other hand, argue that the board's suspension
order is not an injunction but a congressionally mandated stay.
Unlike a preliminary injunction, per protestors, the suspension
order operates for a brief finite period, usually no more than
about 40 days. Given only a short fixed period of its effect,
protestors analogize the order to an unappealable temporary
restraining order, rather than to an appealable preliminary
injunction.
A fixed period is not expressly stated in the statute for
suspension orders during proceedings, but rather results as a
practical matter from the requirement in the statute that
proceedings must generally be concluded within 45 days.
Protestors point out that suspension orders are to be granted in
almost all cases and that the board has very little discretion in
denying them. Suspension orders are mandatory, unless certain
narrow circumstances are present, and, per protestors, are unlike
injunctive orders which depend on the exercise of discretion.
Finally, protestors argue that, as a matter of policy, suspension
orders should not be treated as preliminary injunctions. If such
orders are appealable, the parties to a protest would be
subjected to the burden of pursuing the proceedings before the
board at the same time as the suspension order may be challenged
before this court.4
In view of these considerations, the protestors argue that
Congress must have intended to preclude review of suspension
orders.
C.
On the issue of the injunctive nature of the February 6, 1986,
order, we must agree with the appellants. Protestors' argument
that GSBCA had little discretion in issuing the order does not
resolve the question of whether it is injunctive in nature.
Moreover, that argument addresses only the portion of the order
having the effect of suspension of the contract. It does not
take into account its full scope which includes a provision
precluding GPO and the Army "from satisfying any of the
requirements which would otherwise be satisfied under the
suspended procurement" and the refinement that application had to
be made to GSBCA to secure any exception to that prohibition.
The subject order goes beyond any Congressionally required
"stay." Further, protestors' arguments with respect to policy and
their perceived intent of Congress are without independent
support and are simply reworkings of their statutory analysis.
The injunctive nature of the February 6 order appears to us to be
self-evident and incontrovertible. The order not only restrains
specific acts by GPO and the Army, but also temporarily grants
part of the ultimate relief sought by the protest, and, thus, is
an injunction in the most "ordinary understanding of the word."
City of Morgantown v. Royal Insurance Co., 337 U.S. 254, 93 L.
Ed. 1347, 69 S. Ct. 1067 (1949); see also Switzerland Cheese
Assn. v. E. Horne's Market, Inc., 385 U.S. 23, 17 L. Ed. 2d 23,
87 S. Ct. 193 (1966); Baltimore Contractors, Inc. v. Bodinger,
348 U.S. 176, 99 L. Ed. 233, 75 S. Ct. 249 (1955); Investment Co.
Institute v. Federal Deposit Insurance Corp., 728 F.2d at 522
("Order was unambiguously a categorical injunction."); 9 J. Moore
& B. Ward, Moore's Federal Practice, P110.20[1] (2d. ed. 1985)
and cases cited therein.
Accordingly, we hold that the subject order is appealable as of
right under 28 U.S.C. � 1292(c)(1). We need not address the
alternative grounds put forth by appellants for establishing
jurisdiction in this court.
D.
Because this court possesses jurisdiction with regard to the
suspension order, it "may properly, indeed must, review the
authority underlying the [suspension] order, where fundamental
jurisdictional questions have been raised." Montgomery Ward & Co.
v. Zenith Radio Corp., 69 C.C.P.A. 96, 673 F.2d 1254, 1258
(CCPA), cert. denied, 459 U.S. 943, 74 L. Ed. 2d 200, 103 S. Ct.
256 (1982). We turn, therefore, to the jurisdictional issue which
is the heart of this appeal.
IV.
Protest Jurisdiction of GSBCA Under the Brooks Act
We conclude that in assuming jurisdiction over the subject
protests, GSBCA exceeded its statutory jurisdiction. GSBCA plays
a major role in the decisional system established by Congress in
the Brooks Act, as amended by CICA. However, in this case, GSBCA
prematurely entered the fray, disrupting the orderly procedure
set out in the statute for resolution of ADPE disputes. The role
of the GSBCA is statutorily limited to resolution of ADPE bid
protests in which effective relief can be granted by GSBCA
through its power to "suspend, revoke, or revise the procurement
authority of the Administrator [of GSA] or the Administrator's
delegation of procurement authority applicable to the challenged
procurement." 40 U.S.C. � 759(h)(5)(B) (Supp. II 1984).
Pursuant to provisions of the Brooks Act (� 759(a) and (b)), GSA
is made the procurer of ADPE for all government agencies (with
certain exceptions which need not be discussed here). More
specifically:
ADPE is a special commodity. Federal agencies do not possess
general procurement authority for ADPE. Under the Brooks Act,
Pub. L. No. 89-306, 79 Stat. 1127 (1965) (codified as amended at
40 U.S.C. � 759 (1982)), procurement authority for ADPE is vested
in the Administrator of General Services. Scientific and
technological advisory services relating to ADPE are provided by
the Secretary of Commerece, acting through the National Bureau of
Standards, which publishes uniform Federal Information Processing
Standards. 40 U.S.C. � 759(f) (1982). Both of these authorities
concerning ADPE resources are exercised subject to direction by
the President and to fiscal and policy control exercised by the
Office of Management and Budget. 40 U.S.C. � 759(g) (1982).
GSA exercises its exclusive procurement authority for ADPE
resources by directly conducting ADPE procurements; by awarding
requirements-type contracts and multiple award schedule contracts
for general purpose ADPE, software, and maintenance services; and
by delegating its procurement authority for individual
procurements.5
No definition of ADPE is provided in the statute and that
omission was intentional. S. Rep. No. 938, 89th Cong., 1st Sess.
32, reprinted in 1965 U.S. Code Cong. & Ad. News 3859, 3891; H.R.
Rep. No. 802, 89th Cong., 1st Sess. 34 (1965). However, 40
U.S.C. � 759(g) provides, inter alia:
The authority conferred upon the Administrator and the Secretary
of Commerce by this section shall be exercised subject to
direction by the President and to fiscal and policy control
exercised by the Office of Management and Budget. * * * The
Adminstrator shall provide adequate notice to all agencies and
other users concerned with respect to each proposed determination
specifically affecting them or the automatic data processing
equipment or components used by them. In the absence of mutual
agreement between the Administrator and the agency or user
concerned, such proposed determinations shall be subject to
review and decision by the Office of Management and Budget unless
the President otherwise directs. GSA and GPO (as well as Justice)
agree that, pursuant to the above provision, OMB is the arbiter
of a dispute between GSA and an agency on whether a procurement
involves ADPE and should be conducted pursuant to the GSA
Administrator's authority under the Brooks Act.6 In view of the
first sentence of � 759(g) (quoted above), it must be noted that
OMB is not limited in resolving such disputes to defining what
constitutes an ADPE procurement, but may, to some extent,
restrict the GSA Administrator's authority for reasons of policy.
This authority has existed since 1965.
The broad responsibility of GSBCA under the Brooks Act is of
recent vintage. Effective January 15, 1985, Section 2713 of CICA
amended the Brooks Act to permit a protest to be filed with GSBCA
by "an interested party in connection with any procurement
conducted under the authority of this section (including
procurements conducted under delegations of procurement
authority). . . ." 40 U.S.C. � 759(h)(1) (Supp. II 1984). If the
protest falls within the jurisdictional provision, GSBCA then
"shall review any decision by a contracting officer alleged to
violate a statute or regulation." Id.
In sum, we conclude the CICA amendment giving GSBCA expanded
jurisdiction did not affect OMB's authority and that GSBCA
erroneously held that it had jurisdiction over a protest of a
procurement which was not conducted under the Brooks Act. By its
terms the statute grants protest jurisdiction to GSBCA over
"procurements conducted" under the Brooks Act, not those which
should have been conducted under the Brooks Act. The language is
unambiguous and the literal reading fits with the overall
structure of the statutory scheme for settling ADPE disputes.
Moreover, the broad reading of the statute adopted by GSBCA finds
no express support in the legislative history of CICA. Thus,
under normal principles of statutory construction, the words of
the statute are controlling. Consumer Product Safety Commission
v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100
S. Ct. 2051 (1980). These reasons are explained more fully
below.
A.
The board's discussion of the question of its jurisdiction was
brief.7 After discounting the role of OMB, it stated:
Once a protest is filed, part and parcel to this Board's protest
authority is its ability to determine its jurisdiction, which
requires a finding as to whether the Brooks Act is applicable to
the procurement. This Board is not bound to OMB's view of the
matter. . . .
For purposes of defining this Board's jurisdiction, the proposed
restrictive reading of the CICA to exclude any case in which a
delegation is not sought by the procuring agency is tenuous at
best. From a practical standpoint, this interpretation would
permit an agency to intentionally ignore the requirements of the
Brooks Act only to foist the argument upon this Board that we
lack jurisdiction despite a clear and unmistakable statutory
violation.
A reading of the Brooks Act also evidence the untenable nature of
such an interpretation. The Brooks Act mandates that the
Administrator of GSA, directly or by delegation, "coordinate and
provide for the economic and efficient purchase, lease, and
maintenance of automatic data processing equipment by Federal
agencies." 40 U.S.C. � 759(a) (1982). Thus, a procurement
involving the appropriate ADP resources comes within the
authority of the Brooks Act. If any agency fails to obtain the
required authority to procure the ADP, the statute is violated,
but the failure to proceed within the parameters of the act in no
way lessens its reach.
February 4 Order, slip op. at 14 (emphasis added). The board's
answer to the jurisdictional question could be foretold by the
way in which the question was phrased: i.e., "whether the Brooks
Act is applicable to the procurement." That was not, however, the
issue. The proper question flows from the statutory language:
Was this a "procurement conducted under the authority of this
section [759]"?
GSBCA's question, in effect, was directed to whether the GSA
Administrator is doing his job properly. Has the Administrator
exercised his full authority under the Brooks Act? However well-
intentioned its actions, GSBCA has been given no general
supervisory authority over the Administrator.
In a similar vein, protestor AT&T argues that the board's ADPE
protest jurisdiction is coextensive with the Administrator's
procurement authority and, thus, extends to all ADPE acquisitions
no matter whether effected under the Brooks Act or not. One
obvious flaw in this argument is that GSA's authority under the
Brooks Act is subject to OMB, whose authority GSBCA does not
recognize. To determine the relationship between the
jurisdiction of GSBCA, the authority of the GSA Administrator,
and the role of OMB, we must begin with the statutory language.
B.
As a forum established by Congress, GSBCA's jurisdiction is
limited strictly to the matters entrusted to it. Civil
Aeronautics Board v. Delta Air Lines, Inc., 367 U.S. 316, 322, 6
L. Ed. 2d 869, 81 S. Ct. 1611 (1961) ("the Board is entirely a
creature of Congress and the determinative question is not what
the Board thinks it should do but what Congress has said it can
do.")
Section 759(h)(1) is the pivotal section related to GSBCA's
jurisdiction and the key language is "procurement conducted under
the authority of this section." "This section" means the Brooks
Act. No party contends that the subject procurement was actually
conducted under the Brooks Act via a delegation of GSA's
authority to GPO. All parties here were engaged for over a year
in the negotiations leading to the award. None of the protestors
-- all prospective bidders during that time -- ever asserted that
the contract was for ADPE or that GSA should have been involved.
Protestors, nevertheless, argue that, if the contract is for
ADPE, it has to be a "procurement conducted under the authority
of this section" since any other procurement is forbidden. In
other words, protestors read the statutory language to mean that
GSBCA has jurisdiction in any instance where the procurement
should have been conducted under the Brooks Act. Under that
proposed interpretation, agencies would not know until after the
fact, even with a ruling in advance by OMB, that they had
"conducted" a Brooks Act procurement. To create such deliberate
uncertainty in procurement appears facially unreasonable.
Moreover, other provisions negate attributing the meaning "should
have been conducted" to the statutory term "conducted."
Most compelling of other statutory provisions is the scope of the
interim and ultimate remedial authority conferred on the board.
All portions of the statute must be read together. United States
v. John C. Grimberg Co., 702 F.2d 1362, 1366 (Fed. Cir. 1983).
Unless a forum is merely advisory, its jurisdiction and its power
to grant relief are two sides of the same coin. Thus, the remedy
power expressly granted is a persuasive indication of its
jurisdiction as well.8
Sections 759(h)(2) and (3) provide that under certain
circumstances the board "shall suspend the procurement authority
of the Administrator or the Administrator's delegation of
procurement authority" during both pre-award and post-award
protests. As the final remedy, � 759(h)(5)(B) similarly provides
that, if the board determines that a violation has occurred, "the
board may suspend, revoke, or revise the procurement authority of
the Administrator or the Administrator's delegation or
procurement authority applicable to the challenged procurement."
See also 40 U.S.C. � 759(h)(6)(B) (Supp. II 1984). The
statutorily prescribed remedies are meaningless in the present
case, since the Administrator neither exercised his authority nor
delegated authority which could be suspended, revoked or revised
by the board. Thus, no statutorily authorized remedy can be
effected by the board. See United States v. Amdahl Corporation,
786 F.2d 387, 390 n.3 (Fed. Cir. 1986). To find an implied power
to grant relief from an inferred grant or jurisdiction exceeds
the bounds of permissible "interpretation" of the statute before
us.
Another provision of the statute, Section 759(h)(6)(C) (Supp. II
1984), provides that "the procedures set forth in this subsection
shall only apply to procurements conducted under the authority
contained in this section." (Emphasis added.) The provision at
first appears to be redundant with the first paragraph granting
jurisdiction until, on closer reading, one notes the word "only."
Such emphasis can mean only that jurisdiction is to be strictly
construed. Since protest jurisdiction is a waiver of sovereign
immunity, a strict reading would, in any event, be required.
United States v. King, 395 U.S. 1, 4, 23 L. Ed. 2d 52, 89 S. Ct.
1501 (1969); Bennett v. Department of the Navy, 699 F.2d 1140,
1145 (Fed. Cir. 1983). Extending GSBCA's jurisdiction to
procurements that protestors claim should have been conducted
pursuant to the Brooks Act, but in fact were not, would run
counter to both the explicit statutory provision and to that
principle of statutory jurisdiction.
Finally, the reliance of protestor AT&T on the statutory language
that the board "shall review any decision by a contracting
officer alleged to violate a statute or regulation" (� 759(h)(1))
as a grant of jurisdiction is misplaced. That language clearly
defines the scope of board review once jurisdiction is
established, not the scope of jurisdiction itself.
C.
While the language of � 759(h) on this jurisdictional point
appears sufficiently clear to make unnecessary any resort to the
legislative history, that history fully confirms the literal
reading of the text. The amendment to the Brooks Act to give
GSBCA expanded jurisdiction over protests originated in the
House; the Senate-passed bill contained no comparable provision.
The Report of the House Committee on Government Operations,
submitted by Representative Brooks, described the bill as
establishing this Board's jurisdiction "for resolving vendors'
complaints concerning procurements conducted under Section 111 of
the Federal Property and Administrative Services Act of 1949 (the
Brooks Act, P. L. 89-306)." H.R. Rep. No. 1157, 98th Cong., 2d
Sess. 25 (1984) (emphasis added). The Committee explained the
board's interim suspension and ultimate remedial authority in
terms consistent with the enacted language. Id. at 26.
The Conference Committee on CICA accepted the House bill
establishing ADPE bid protest jurisdiction in GSBCA. The
Conference Report makes clear in several passages that "this
provision applies only to those automated data processing
procurements conducted under the Brooks Act." H.R. Rep. No. 861,
98th Cong., 2d Sess. 1430 reprinted in 1984 U.S. Code Cong. & Ad.
News 1445, 2118 (emphasis added).
To support an expansive reading of GSBCA's jurisdiction,
protestors point to statements in the 1965 legislative history to
the effect that the Brooks Act was drafted broadly with respect
to its coverage. A Fortiori, such statements relate only to the
authority of the Administrator, not GSBCA.
Thus, the legislative history of CICA is consistent with the
literal reading of the statutory language.
D.
Limiting the board's jurisdiction to protests challenging a
procurement actually conducted under the authority of the Brooks
Act is consistent with OMB's statutory responsibility for
determining the government's position on the applicability of the
Brooks Act. From its inception, the Brooks Act has contemplated
that OMB would resolve Brooks Act-related conflicts between GSA
and affected agencies.
The Administrator does not dispute that OMB's authority to
resolve inter-agency disputes under the Brooks Act encompasses
the authority to resolve a disagreement between a procuring
agency and GSA as to whether a procurement is subject to the
Brooks Act. Indeed, in 1976, OMB ruled that an interagency
disagreement as to whether a procurement is subject to the Brooks
Act "is a disagreement susceptible of resolution by OMB pursuant
to Section 111(g) [40 U.S.C. � 759(g)] authority." Supra note 6.
In that ruling, OMB explained that its resolution of such
disputes involves both the issue of statutory interpretation and,
to the extent consistent with congressional intent, review of the
question from a current fiscal and policy perspective. Id.
Under the Brooks Act, GSA has broad authority "to coordinate and
provide for the economic and efficient purchase, lease, and
maintenance of automatic data processing equipment by Federal
agencies." 40 U.S.C. � 759(a) (1982). However, OMB, as the
foremost government authority on fiscal matters, has express
authority over GSA's administration of it Brooks Act
responsibilities. Specifically, 40 U.S.C. � 759(g) (1982) not
only grants OMB the above noted authority to resolve inter-agency
disputes, but also specifically provides that the "authority
conferred upon" GSA by the Brooks Act "shall be exercised subject
to direction by the President and to fiscal and policy control
exercised by the Office of Management and Budget." In short, it
is clear that GSA, in exercising its authority under the Brooks
Act, is subject to the control of OMB and the President.9
In this case, OMB has decided that the 600-S procurement was not
subject to the Brooks Act. Once GPO learned in the course of the
GSBCA proceeding that GSA disagreed with GPO regarding the
applicability of the Brooks Act to the 600-S procurement, GPO
wrote to the OMB asking it to exercise its inter-agency dispute
resolution authority under the Brooks Act. OMB assumed
jurisdiction and has resolved the matter in GPO's favor.
On the other hand, GSBCA correctly stated that its jurisdiction
is not determinable by OMB but by this court. February 4 Order,
slip op. at 14. This court would create an irreconcilable
conflict by ruling that GSBCA has authority to decide whether a
procurement is one which should have been conducted under the
Brooks Act. A decision by GSBCA that the Brooks Act should apply
to the procurement could not possibly take into account the
discretionary factors on which OMB may rely. Thus, two different
resolutions could well result, given a patent difference in
standards for resolving the question. That conflict in itself
counsels against stretching the statutory language.
Moreover, the recognition of dual authority to determine when the
Brooks Act is applicable would be a fiction. GSBCA's authority
would override that of OMB and, in effect, nullify it. Congress,
however, expressed no intent to take away OMB's prior role by the
1984 CICA amendment. On the contrary, the House Report states
that "with regard to OMB's authorities under the Brooks Act, the
bill does not alter the current procedures for resolving
conflicts between procuring agencies and GSA's procurement office
. . . ." H.R. Rep. No. 1157, supra at 27 (emphasis added). Thus,
the Committee indicated its understanding that inter-agency
jurisdictional disputes would be resolved by OMB and that the
binding effect of an OMB determination within the government
would not be affected by CICA.
Protestor AT&T sees in � 759(g) the grant of a right to
protestors to have GSBCA decide all disputes under the Brooks
Act. We rejected a similar argument in Amdahl, 786 F.2d at 395.
(GSBCA does not sit to resolve all disputes under ADPE contract).
The jurisdiction of GSBCA is clearly not so broad. With the
pervasiveness of ADP equipment and services and the imagination
of the bar, one could foresee a challenge before GSBCA to the
bulk of government contracts on the ground that the procurement
should have been under the Brooks Act. Indeed, in this case, it
is asserted that the Brooks Act is implicated because the
contractor will utilize ADPE in its performance.10
Protestor Xerox argues that OMB has no authority to issue any
decision relating to this protest. That argument is irrelevant.
It provides no rationale for saying GSBCA must have jurisdiction.
The district courts and other forums remain open for protests and
� 759(g)(6)(c) specifically provides, inter alia:
In addition, nothing contained in this subsection shall affect
the right of any interested party to file a protest with the
contracting agency or to file an action in a district court of
the United States or the United States Claims Court.
Nor can we see that the parade of procurement horrors recited by
Xerox would be effectively avoided by holding the spectre of a
GSBCA decision on a protest over the heads of agencies and the
Administrator, rather than a decision from another forum. If
Congress sees the matter differently, Congress can change the way
the statute is written. The statute provides for only a three
year experiment ending January 15, 1988, during which time GSBCA
has been given the special protest jurisdiction under review
here. The matter must be taken up by Congress, in any event, if
the jurisdiction of GSBCA over Brooks Act protests is to
continue.
Only by wholesale re-writing of the statute, with respect to
jurisdiction and remedial powers of GSBCA, could it be held that
a procurement which should have been procured under the Brooks
Act can be challenged before GSBCA. We decline to undertake that
task. We see nothing in the statute or the legislative history
leading us to conclude that Congress intended such an objection
to be the jurisdictional basis for a protest to GSBCA.
V.
Conclusion
We reverse the decision of GSBCA and hold that GSBCA had no
jurisdiction over the subject protest. All decisions and orders
of GSBCA in these proceedings are vacated. The case is remanded
to GSBCA with the instruction to dismiss.
REVERSED, VACATED, REMANDED WITH INSTRUCTION TO DISMISS
May 28, 1986
_______________
1 Both of these protest provisions were enacted as part of the
Competition in Contracting Act, Pub. L. 98-369, 98 Stat. 494
(1984), herein referred to as CICA.
2 The Army was eventually allowed to intervene by GSBCA on
February 14, 1986, after the date of the decisions under review.
3 31 U.S.C. � 3552 (Supp. II 1984) provides that "[a]n
interested party who has filed a protest under . . . 40 U.S.C.
759(h) with respect to a procurement . . . may not file a protest
with respect to that procurement under this subchapter." The
House Conference Report, H.R. Rep. No. 861, 98th Cong., 2d Sess.
1435, reprinted in 1984 U.S. Code Cong. & Ad. News 1445, 2123,
confirms that a disappointed bidder "may not protest the same
action to both the GAO and GSA board."
4 Protestors also assert that appellants did not, in fact,
appeal the February 6, 1986, order in addition to the GSBCA
decision of February 4, 1986, on jurisdiction. EDS asserts that
it specifically sought review of the order in the district court
proceedings. The district court memorandum opinion of February
19, 1986, does state that EDS claims "that the GSBCA's . . .
suspension of this contract under the Brooks Act [is] unlawful."
The district court restrained the suspension order "to permit GPO
and the Army to satisfy any of the Army's requirements." At this
stage of proceedings, the suspension order and the question of
GSBCA jurisdiction are inextricably intertwined. In any event,
the government moved within the statutory appeal period to file a
specific appeal of that order if appropriate and necessary. That
motion is mooted by our holding that the order is before us.
5 Phillips (Administrative Judge, GSBCA), A New Forum for
Protests -- The GSBCA & Automated Data Processing Equipment
Protests, 1-2 presented to Judge Advocate General's School, U.S.
Army, 1985 Government Contract Law Symposium.
6 OMB also took that position in resolving a dispute in 1976.
Letter from OMB Deputy Director Paul H. O'Neill to GSA
Administrator Jack Eckerd (December 9, 1976). Despite the
intervening statutory amendments, OMB maintains that view in its
April 9, 1986, ruling in connection with the subject contract.
7 The entirety of the board's analysis in this case appears in
the quotation.
8 Indeed, a claim seeking relief only beyond that which may be
granted will negate jurisdiction. Hahn v. United States, 757
F.2d 581, 586-88 (3d Cir. 1985); Investment Co. Institute v.
FDIC, 728 F.2d at 525.
9 The legislative history of the Brooks Act makes clear that the
authority conferred on GSA by the Act "shall be exercised subject
to direction by the President and by the Bureau of the Budget
[now OMB]." S. Rep. No. 938, 89th cong., 1st Sess. 37, reprinted
in 1965 U.S. Code Cong. & Ad. News 3859, 3895. The legislative
history also consistently recognizes OMB's broad authority to
resolve all disagreements between procuring agencies and GSA.
Thus, the Senate Report states: "the bill maintains BOB's [now
OMB's] traditional control over fiscal and policy matters.
Action by any agency under this legislation would be subject
either to approval or review by BOB." (Emphasis added.) Id. at
3861.
10 We do not decide here to what extent disappointed bidders may
legitimately challenge an award solely on the ground that a
procurement should have been under the Brooks Act where GSA and
an agency agree it need not be. By giving GSA coordination
authority for procuring ADPE, the statute was designed to benefit
the government and the public fisc (as Xerox itself explains in
detail in its brief), not simply to create new grounds for
litigation.