UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
THE UNITED STATES,
Appellant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Appellee
No. 89-1357
892 F.2d 1006
Grant G. Moy, Jr., General Counsel, of the U.S. Government
Printing Office, Washington, District of Columbia, argued for
Appellant.
William J. Kolasky, Jr., of Wilmer, Cutler & Pickering,
Washington, District of Columbia, argued for Appellee. With him
on the brief was Peter A. Von Mehren, of Wilmer, Cutler &
Pickering. Of Counsel were Robert F. Salvia and Bryan Lewis, of
the International Business Machines Corporation, Bethesda,
Maryland.
Markey, Chief Judge, Bennett, Senior Circuit Judge, and Mayer,
Circuit Judge.
MAYER, Circuit Judge.
The Government Printing Office (GPO) appeals the decision of the
General Services Board of Contract Appeals, granting the protest
of International Business Machines Corporation (IBM) to the award
of a contract to another bidder on a GPO invitation for bids.
International Business Mach. Corp., GSBCA No. 9703-P, 89-1 B.C.A.
(CCH) � 21,389 (1988). We affirm the board's decision that it had
jurisdiction to hear protests of GPO's conduct of the
solicitation, reverse its decision that IBM had standing to file
a protest, and vacate its decision on the merits.
Background
GPO formally advertised Invitation for Bid No. 1337888 on June
10, 1988. The sealed-bid solicitation originally specified an IBM
3084 Model Q64 or IBM 3084 Model QX6 brand name "or equal"
central processing unit (CPU); it was subsequently amended at
least seven times, Amendment No. 3 deleting the restriction "air
cooled systems are not acceptable." This allowed vendors to bid
the Amdahl 5880 CPU, which is air cooled. GPO received ten bids
in response to the solicitation. With the exception of Amdahl
Corporation (Amdahl) to whom, as the lowest bidder, GPO awarded
the contract, every vendor bid the same IBM product
configuration. PacifiCorp Capital, Inc. (PacifiCorp) and Federal
Systems Group, Inc. (FSG) submitted the second- and third-lowest
bids, respectively. IBM's bid was fourth-lowest.
Although both PacifiCorp and FSG complained to the GPO
contracting officer that his determination on the responsiveness
of Amdahl's bid was incorrect, only IBM filed a formal protest
with the board. FSG and Amdahl thereafter intervened in the
protest, FSG in support of IBM's position and Amdahl in support
of GPO's. GPO argued that the board had no jurisdiction to
entertain IBM's protest because Congress had provided GPO with a
continuing exemption from the Brooks Act in the 1977 Legislative
Branch Appropriations Act, Pub.L. No. 94-440, 90 Stat. 1439
(1976). Alternatively, Amdahl alleged that IBM lacked standing to
protest the award because IBM was not an "interested party"
within the meaning of the Brooks Act. 40 U.S.C. � 759(f)(9)(B)
(Supp. V 1987).
The board rejected both of these arguments. It ruled that the
1977 Appropriations Act "and its legislative history fail to
indicate an intent to extend the exemption beyond the applicable
year of the Appropriations Act" and that the 1986 amendments to
the Brooks Act, legislatively "overruling" Electronic Data Sys.
Fed. Corp. v. General Serv. Admin. Bd. of Contract Appeals, 792
F.2d 1569 (Fed.Cir. 1986), "fully confirm [that] determination."
89-1 B.C.A. (CCH) � 21,367, at 107,702. The board also held that
because IBM had participated in and expended resources in an
effort to obtain this procurement, it had a direct economic
interest in, and therefore standing as an "interested party" to
protest, the award of the contract to Amdahl. Id. at 107,704. The
board affirmed this aspect of its decision on reconsideration,
adding:
If the protest is granted, a reprocurement to meet GPO's actual
requirements could be in order. IBM has alleged that if it had
been on notice that GPO was soliciting offers for a less powerful
processor, it would have attempted to offer a less powerful, less
expensive processor. Presumably, it would do so in any
resolicitation. Accordingly, IBM's direct economic interest would
be affected by the award of the contract.
89-1 B.C.A. (CCH) � 21,372, at 107,718. The board then granted
IBM's protest and ordered GPO to terminate its contract with
Amdahl. Id. � 21,389. GPO appeals.
Discussion
A. Jurisdiction. The Brooks Act gives the Administrator of the
General Services Administration the authority to coordinate and
regulate the "purchase, lease, and maintenance" of automated data
processing equipment (ADPE) by federal agencies. 40 U.S.C. �
759(a)(1) (1982). The parties here agree that GPO is a "federal
agency" for purposes of the Act and that the solicitation was for
the purchase of ADPE. The sole jurisdictional issue is whether
the exemption from the Brooks Act granted GPO as part of the 1977
Legislative Branch Appropriations Act extended beyond fiscal year
1977.1
We agree with the board that the language of the 1977
Appropriations Act does not evince a congressional intention to
give GPO a continuing exemption from the Brooks Act. The relevant
language is:
The Government Printing Office is hereby authorized to make such
expenditures, . . ., as may be necessary in carrying out the
programs and purposes set forth in the budget for the current
fiscal year for the "Government Printing Office revolving fund":
. . . Provided further, That during the current fiscal year the
revolving fund shall be available for the hire of two passenger
motor vehicles and the purchase of one passenger motor vehicle:
Provided further, That funds available to the Government Printing
Office may be expended to purchase, lease, maintain and otherwise
acquire automatic data processing equipment without regard to the
provisions of 40 U.S.C. 759:
. . .
Pub.L. No. 94-440, 90 Stat. 1439, 1460 (1976) (emphasis added).
While the underscored provision does not itself indicate whether
it was restricted to fiscal year 1977, because it is contained in
an appropriations act and because it is unaccompanied by words of
futurity, we presume that it was. United States v. Vulte, 233
U.S. 509, 514-15, 58 L. Ed. 1071, 34 S. Ct. 664 (1914); see TVA
v. Hill, 437 U.S. 153, 189-90, 57 L. Ed. 2d 117, 98 S. Ct. 2279
(1978). Moreover, the phrases "for the current fiscal year" and
"during the current fiscal year" precede the pertinent provision
in the same paragraph; the former phrase, at least grammatically,
appears to control the clause within which the exemption is
contained. Had Congress intended to make the exemption permanent,
it knew how: it could and we believe would have used words of
futurity, like "hereafter, notwithstanding any other provisions
of law . . .", a phrase appearing two paragraphs earlier that
applies to other aspects of GPO's program. 90 Stat. at 1459.
The Public Printer himself agreed with this reading in 1977. That
year, he returned to Congress to seek inclusion of the same
exemption--with the sole but significant addition of the word
"hereafter"--in the 1978 Legislative Branch Appropriations Act.
See Legislative Branch Appropriations for Fiscal Year 1978:
Hearings Before a Subcomm. of the Comm. on Appropriations, House
of Representatives, 95th Cong., 1st Sess. 435, 437, 496 (1977);
Legislative Branch Appropriations for Fiscal Year 1978: Hearings
Before a Subcomm. of the Comm. on Appropriations, United States
Senate, 95th Cong., 1st Sess. 416-17, 423 (1977). We agree with
IBM that his request was denied, not because it was superfluous
or based upon a misapprehension of the reach of the 1977
exemption, but because the committee considering the request had
been reminded that the Brooks Act was intended to cover
legislative agencies like GPO. See Legislative Branch
Appropriations for Fiscal Year 1978: Hearings Before a Subcomm.
of the Comm. on Appropriations, House of Representatives, 95th
Cong., 1st Sess. 496-97 (1977). Congress could have agreed with
GPO that the added costs and delays allegedly due to GSA
involvement, see H.R.Rep. No. 94-1225, 94th Cong., 2d Sess. 31,
36, 42, were continuing but, nevertheless, declined to
permanently exempt GPO from the Brooks Act to avoid potential
waste and abuse in the procurement process, problems Congress
considered more severe. See generally Efforts By Federal Agencies
to Circumvent the Competition in Contracting Act (Part 1),
Hearings Before a Subcomm. on Gov't Operations, House of
Representatives, 99th Cong., 2d Sess. (1986) [hereinafter Efforts
to Circumvent].
We do not see that the source of the funds used to acquire ADPE--
here the GPO Revolving Fund, which is available without fiscal
year limitation--affects the analysis. Congress did not consider
the source of the funds relevant in determining the applicability
of the Brooks Act; nor, for that reason, does the board. See
Rocky Mountain Trading Co., GSBCA No. 8958-P, 87-2 B.C.A. (CCH) �
19,840, at 100,409 (1987). A contrary conclusion would allow
agencies to escape the Act by the expedient of using funds from
an appropriate source. Nor does the fact that GPO purchased ADPE
with money from the revolving fund help it in the statutory
interpretation argument. It is the nature of the exemption that
is at issue here, not the nature of the funds available to
exploit it. Coupling a transitory exemption with a continuing
fund does not bestow on the former the character of the latter.
Finally, we disagree with GPO's assertion at argument that the
1986 amendments to the Brooks Act and the accompanying
legislative history do not illuminate what Congress intended by
its actions in 1977 and 1978. Congress adopted the amendments in
response to our holding in Electronic Data Sys. Fed. Corp. v.
General Serv. Admin. Bd. of Contract Appeals, 792 F.2d 1569, 1578
(Fed.Cir. 1986), that the board had protest jurisdiction only
over procurements actually "conducted under" the Brooks Act and
not over those that should have been so conducted. In the
Paperwork Reduction Reauthorization Act of 1986, Pub.L. No.
99-591, 100 Stat. 3341-335 (1986), Congress accepted our
invitation to "change the way the statute is written", 792 F.2d
at 1583, by extending the board's jurisdiction to those protests
"subject to" the Brooks Act. 100 Stat. at 3341-344 (codified at
40 U.S.C. � 759(f)(1) (Supp. V 1987)).
It is true that neither this nor any of the other 1986 amendments
to the Brooks Act specifically mentions GPO, but we will not
assume that Congress was blind to the fact that Electronic Data
Systems involved GPO. In that case, we had no doubt that GPO was
"subject to" the Brooks Act, notwithstanding that the procurement
there at issue was not "conducted under" it. 792 F.2d at 1577.
There is no evidence that Congress thought otherwise. See Efforts
to Circumvent at 1-2 (statement of Congressman Brooks); id. at 33
(letter from Congressmen Brooks and Horton to Charles A. Bowsher,
Comptroller General). Indeed, in Electronic Data Systems GPO
itself did not raise the exemption argument it relies on here.
B. Standing. The Brooks Act empowers the board to hear protests
of disappointed bidders who are "interested parties." 40 U.S.C. �
759(f)(1) (Supp. V 1987). An "interested party" is in turn
defined as "an actual or prospective bidder or offeror whose
direct economic interest would be affected by the award of the
contract or by failure to award the contract." Id. � 759(f)(9)(B)
(Supp. V 1987) (emphasis added). In contrast to statutes like the
Administrative Procedure Act, under which Congress has extended
the traditional basis for standing beyond direct economic injury,
see, e.g., Sierra Club v. Morton, 405 U.S. 727, 734, 738 & n. 13,
31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972), and Data Processing
Serv. v. Camp, 397 U.S. 150, 154, 25 L. Ed. 2d 184, 90 S. Ct. 827
(1970), in the Brooks Act Congress has deliberately and
substantially narrowed the class of persons entitled to invoke
the authority of the board.
GPO pursues two interrelated objections to IBM's standing,
originally raised by Amdahl. The first focuses directly on the
statutory requirement that IBM have a direct economic interest in
the contract; the second addresses the statute indirectly, via
the regulatory requirement of responsiveness. The board rejected
both.
The first is that IBM could not receive the contract even if its
protest were granted, because its bid ranked fourth-lowest in a
formally-advertised sealed-bid procurement, it did not challenge
either the solicitation itself or the eligibility of the
intervening bidders, and all the bidders offered the identical
CPU. IBM therefore had, at best, a trivial interest in the award.
Citing the resources IBM had expended in attempting to secure the
contract as well as GPO's failure both to reject IBM's bid and to
make a finding on the responsiveness of the intervening bids, the
board summarily concluded that "IBM has a direct economic
interest in the award." 89-1 B.C.A. (CCH) � 21,367, at 107,704.
In this, it erred.
The board was troubled by the "logic" that would allow the award
of a questionable procurement to go unchallenged if the second-
lowest bidder did not file a protest. It believed this result
would be "contrary to the notions of full and open and fair and
equal competition and would significantly undermine the integrity
of the procurement and protest processes." Id. But, as the
Supreme Court has said in an analogous context, the requirement
that a party seeking review must allege facts showing that he is
himself adversely affected does not insulate executive action
from judicial review, nor does it prevent any public interests
from being protected through the judicial process. It does serve
as at least a rough attempt to put the decision as to whether
review will be sought in the hands of those who have a direct
stake in the outcome.
Sierra Club, 405 U.S. at 740. Congress has decided that the
coincidence of a disappointed bidder's "direct economic" interest
with the public interest adequately accommodates both. By
striking a different balance more solicitous of the latter, the
board has upset this congressional scheme. Congress simply did
not intend for the board to entertain the protests of innumerable
disappointed bidders who have little or no chance of receiving
the contract.
In this case, GPO made a responsiveness determination only for
Amdahl's bid. Under the board's rationale, each of the nine
disappointed bidders has standing to protest the award to Amdahl
because each "expended resources in an effort to obtain the
contract", each could allege that GPO violated the terms of the
solicitation, and each could seek reprocurement as a remedy.
Indeed, if there were nineteen or ninety bidders, the result
would be the same. We think this result is contrary to the
command of the statute, which restricts the right to file a
protest before the board to those parties with a "direct economic
interest" in the award of the contract. See 40 U.S.C. � 759(f)(9)
(B) (Supp. V 1987). The board effectively reads this limitation
out of the statute by trivializing the interest it deems
sufficiently direct.
Where, as here, every disappointed bidder on a formally-
advertised sealed-bid procurement offers essentially the same
package of products and services, the bids materially differ only
as to price, the solicitation itself is not challenged, and there
is no reason to believe that the second-lowest bid is not
responsive, only the second-lowest bidder has a direct economic
interest in the award of the contract. Therefore, only the
second-lowest bidder is an interested party entitled to protest
the award of the contract, 40 U.S.C. � 759(f)(9)(B) (Supp. V
1987), because only it stands to receive the contract in lieu of
the challenged awardee. The speculative prospect of cancellation
of the solicitation and initiation of a new one is insufficient
to suffuse all other bidders with the requisite interest to
support standing. This is especially so when the solicitation
invites sealed bids: after bids have been opened and made public,
cancellation can occur only for compelling reasons. United States
Government Printing Office, Printing Procurement Regulation, Ch.
IV, � 2 (1980). See Prineville Sawmill Co., Inc. v. United
States, 859 F.2d 905, 912 (Fed.Cir. 1988); Massman Const. Co. v.
United States, 102 Ct. Cl. 699, 60 F. Supp. 635, 643 (1945); 48
C.F.R. � 14.404-1 (1988) (similar "compelling reason" requirement
before executive agencies may cancel solicitations after bid
opening).
By restricting the class of eligible protesters to those with a
direct economic interest in the award, Congress deliberately
relied on the mechanism of economic self-interest to police
agencies' conduct of ADPE procurements. IBM cannot protest as a
"private attorney general enforcing the public interest in the
proper application of the procurement statutes and regulations,"
Julie Research Laboratories, Inc., GSBCA No. 8070-P-R, 86-2
B.C.A. (CCH) � 18,881, at 95,237 (1986), simply because it thinks
Congress' enforcement mechanism is less comprehensive than it
should be.
There is nothing startling in this. The Comptroller General
interprets 31 U.S.C. � 3551(2), which contains the identical
"interested party" requirement for bringing a Brooks Act protest
before the General Accounting Office, the same way. See, e.g.,
Eastman Kodak Co., Comp.Gen.Dec. B-220646, 86-1 C.P.D. � 113
(Jan. 31, 1986); Alfa-Laval, Inc., Comp.Gen.Dec. B-224330, 86-2
C.P.D. � 520 (Nov. 5, 1986); First Fed. Data Serv. Co.,
Comp.Gen.Dec. B-224183.2, 87-1 C.P.D. � 179 (Feb. 18, 1987);
Discount Mach. and Equip., Inc., Comp.Gen.Dec. B-230721, 88-1
C.P.D. � 550 (June 9, 1988). So, too, does the board itself from
time to time. See, e.g., SDA Fed. Sys., Inc., GSBCA No. 8180-P,
85-3 B.C.A. (CCH) � 18,492 (1985); but see Wisconsin Physicians
Serv. Ins. Corp., GSBCA No. 9674-P, 89-1 B.C.A. (CCH) � 21,284
(1988).
Amdahl also argued to the board that IBM did not have standing
because its bid was nonresponsive on its face: the bid contained
a restrictive legend which made it per se nonresponsive under
applicable procurement regulations. See 48 C.F.R. � 14.404-4
(1988). The board dismissed this argument as irrelevant to the
standing inquiry:
Where a bidder has not been eliminated from the competition by
the agency during the course of the procurement, we will not
remove that bidder when it brings a protest. Absent a prior
decision by a contracting officer, Board consideration of a
potentially protestable issue (such as whether a bid is
responsive to the solicitation) is premature. [89-1 B.C.A. (CCH)
� 21,372, at 107,718.]
We have suggested above that Congress intended the phrase
"interested party" to be a meaningful limitation on the authority
of the board to entertain, and this court to review, protests of
an agency's conduct of a Brooks Act procurement. We see
responsiveness as another facet of the interested party inquiry.
When responsiveness is an issue, it must be resolved before the
board can proceed. If a bid is not responsive, the protester has
no more right to invoke the office of the board than the
proverbial man on the street. A nonresponsive bidder is the
epitome of one who lacks a direct economic interest. This is not
a mere technicality; it is the predicate for the board's right to
intervene in governmental procurements. A bidder's standing to
protest a contract given to another cannot be divorced from the
responsiveness of its offer.
Suppose, in this case, the solicitation had not been amended and
GPO had invited bids only on the IBM 3084 Model QX6 or IBM 3084
Model Q64 "or equal" non-air cooled CPU. If Amdahl had
nevertheless bid its air cooled CPU, the 5880, would the board
have been obliged to hear its protest simply because the
contracting officer had awarded the contract to IBM or to some
other vendor offering an "equal" non-air cooled CPU and,
therefore, never had occasion to formally address the
responsiveness of Amdahl's bid? We think not. The Board must
exercise its authority to determine which parties are
sufficiently "interested" to have standing before entertaining a
potentially unnecessary proceeding with its attendant costs and
delay.
Again, the board has recognized this principle in other cases.
For instance, in Micro Star Co., Inc., GSBCA No. 9824-P, 89-1
B.C.A. (CCH) � 21,511 (1989), the board made a determination of
nonresponsiveness when an agency had not done so and, on that
basis, dismissed a protest for lack of an interested party. It
also dismissed a protest for lack of an interested party on the
basis of an agency determination of nonresponsiveness in North
Am. Automated Sys., Inc., GSBCA No. 9813-P, 89-1 B.C.A. (CCH) �
21,532 (1989). However, in light of our conclusion that IBM lacks
standing because of its fourth remove from the award of the
contract, we need not remand for consideration of the
responsiveness question.
Conclusion
Accordingly, the decision of the board is affirmed to the extent
that it found jurisdiction to hear protests to GPO's conduct of
this procurement, it is reversed to the extent that it held IBM
has standing, and it is vacated to the extent it addressed the
merits of IBM's protest.
COSTS
No costs.
AFFIRMED-IN-PART, REVERSED-IN-PART, AND VACATED-IN-PART.
December 20, 1989
_______________
1 GPO does not challenge the board's conclusion that the Brooks
Act "cut through" provision, 40 U.S.C. � 759(c)--"no other
provision of this Act or any other Act which is inconsistent with
the provisions of this section shall be applicable in the
administration of this section"--trumps GPO's exclusion from the
Federal Property and Administrative Services Act of 1949, as
amended (thus encompassing the Brooks Act), contained in 44
U.S.C. � 311 (1982 & Supp. V 1987).
Rehearing Denied January 16, 1990. Reported at: 1990 U.S. App.
Lexis 543.