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September 29, 1964

UNITED STATES ex rel. BROOKFIELD CONSTRUCTION CO., Inc., and Baylor Construction Corporation, Plaintiffs,
J. George STEWART, individually and as Architect of the Capitol, et al., Defendants

The opinion of the court was delivered by: HOLTZOFF

The subject matter presented by this case is the extent of judicial review of executive action. The suit is brought by joint bidders for a Government contract, whose bid, although the lowest, was rejected on the ground that it was not accompanied by a proper bond. The defendants are the Architect of the Capitol, who is the contracting officer, and the members of the House Office Building Commission. *fn1" The complaint seeks relief in the nature of a mandamus the effect of which would be to compel an award of the contract to the plaintiffs. The matter is before the Court at this time on the plaintiffs' motion for a preliminary injunction, and the defendants' motion to dismiss the complaint.

The salient facts are as follows. On June 1, 1964, the Architect of the Capitol issued an invitation for bids for the construction of an underground garage for the Additional House Office Building in process of erection near the Capitol in Washington, D.C. *fn2" One of the requirements was that every proposal should be accompanied by a bond for at least ten percent of the amount bid. The offers were to be opened at 3:00 p.m. on July 15, 1964. The two plaintiffs, *fn3" in a joint venture, submitted a proposal of $ 11,735,000. It was accompanied by a bond for only $ 1,100,000, instead of $ 1,173,500, as was required by the invitation. This deficiency was due to an inadvertent error on the part of the surety company which wrote the bond. Unfortunately, the plaintiffs did not discover the mistake until the last minute. They immediately communicated with the surety company, and at 3:24 p.m. on July 15, which was shortly after the bids were opened, the surety telegraphed to the Architect of the Capitol increasing the bond to a proper amount. The plaintiffs' proposal turned out to be the lowest, the next bid being $ 35,000 higher.

 On August 10, 1964 the plaintiffs received a notice from the Architect of the Capitol rejecting their bid. This action was taken because of the inadequacy of the bond submitted when the proposals were opened. The conclusion was reached that the insufficiency should not be waived and that the correction made subsequently to the opening of the bids should not be considered. Accordingly the contract was awarded to the next lowest bidder.

 The intervening events may be briefly summarized as follows. On July 22, 1964, -- a week after the bids were opened -- , the Architect wrote to the Comptroller General requesting his views as to whether it was mandatory to exclude the lowest bid because of the deficiency of the bid bond. The Comptroller General answered on August 3, that it would be proper to do so. The Architect, acting pursuant to the direction of the House Office Building Commission, wrote to the Comptroller General again on August 5, in the light of what apparently was deemed to be his somewhat ambiguous advice, and enquired 'whether the low bid should be rejected as a matter of law'. The Comptroller General replied on August 6th, that the plaintiffs' proposal should be barred. On the basis of this advice and pursuant to the direction of the Commission, the Architect of the Capitol then formally rejected the plaintiffs' bid and awarded the contract to the next lowest bidder.

 The plaintiffs requested the Comptroller General to reconsider his ruling. He responded by an elaborate and detailed letter of September 11, adhering to his prior opinion. Government counsel contended at the oral argument that an undesirable practice had occasionally arisen among some bidders of purposely accompanying their offers either by an inadequate bond or by no bond at all in order to be in a strategic position of either curing the defect or abandoning the project after the bids were opened and they were able to perceive what their rivals had proposed. Counsel indicated that in order to eliminate such maneuvers the Comptroller General deemed it necessary to enforce the requirements to the letter even though occasionally hardship might result from an inadvertent mistake on the part of a bona fide bidder. It is not for the Court to pass on the motivation of the Comptroller General's exercise of his discretion. There is no suggestions, however, that in this instance the defect in the bond was due to anything but an innocent error, which the bidders took steps to rectify immediately upon its discovery.

 This action was thereupon brought against the Architect of the Capitol, the members of the House Office Building Commission being later joined as additional parties defendant, for relief in the nature of mandamus, to require the defendants to consider the plaintiffs' proposal and to award the contract to the lowest bidder whose offer was responsive to the invitation, i.e., to the plaintiffs. The plaintiffs moved for a preliminary injunction to restrain the Architect from executing a contract with any other person, or from issuing a notification to proceed with the performance of such a contract, if already executed. The defendants countered by a motion to dismiss the complaint on the grounds that the plaintiffs lacked standing to sue and that the complaint failed to state a claim on which relief may be granted. Both motions were argued together.

 At the outset it is necessary to consider the scope of the authority of this Court to review executive action, such as was taken in this instance. There seems to be a growing tendency to resort to the courts for relief from governmental acts claimed to be harsh, unjust, inexpedient or undesirable. Such efforts ignore some basic and fundamental principles that are well known but often overlooked in the turmoil of activities of everyday life. Simple and elementary as they are, it appears desirable to recall and analyze them from time to time.

 The framers of the Constitution of the United States created a popular form of Government, specifically, to use the technical nomenclature of political science, a representative republic. Sovereignty was lodged in the people of the United States. *fn4" The powers of the Federal Government were divided among three coordinate branches. The legislative power was delegated to representatives elected for comparatively short terms of years. They were vested with the authority to make laws, as well as with the control of the purse, in order that no money might be expended by the Government except pursuant to appropriations voted by the national legislature. The executive branch was to be headed by the President, likewise elected for a comparatively short period. He executes the laws, conducts foreign relations and is Commander in Chief of the armed forces. The third division is an independent judiciary composed of judges who are not subject to popular election, but hold office by a permanent tenure. Their function is to decide controversies between one person and another, and between any person and the Government. None of the three branches is superior to either of the other two. All three are coordinate.

 The leading members of the Constitutional Convention of 1787 combined profound scholarship and learning with practical experience. They had a thorough knowledge of history of governments of various types, dating back to the days of antiquity, and were well versed in the literature of political science and cognate subjects. Among the treatises familiar to them and that had an influence on their thinking were Montesquieu's Spirit of the Laws, and John Locke's Second Essay on Civil Government. Both of these classics developed the theory of separation of powers. One of the outstanding contributions of the Founding Fathers to political institutions was actually to bring into being a popular form of Government in which a separation of powers was a principal feature. It may be interesting to observe that it radically differs from popular governments of the parliamentary type, which had their origin and greatest growth in Great Britain. In a parliamentary form of Government there is no separation between the legislative and the executive branches. In fact the executive is a part of the legislature. The heads of government departments for the time being are the principal members of the majority party that controls the legislative body. In Great Britain, while judges are entirely independent and hold office by a permanent tenure, nevertheless, the leading judicial officer, the Lord Chancellor, is a member of the Cabinet and thus a part of the legislative and executive establishment and of the government in power at any one time.

 In the United States supreme power is not vested in the judiciary. The courts are not superior to either of the other two branches of Government and have no power of supervision or control over them. Were the fact otherwise, we would cease to have a popular form of government, but instead would be governed by a group of several hundred Federal judges holding office by permanent tenure. Technically the Federal Government would no longer be a republic but would become an aristocracy. This is not what the Founding Fathers contemplated or created. As it is, the courts may not step in and stay or control executive action unless the executive or administrative officer acts in excess of his statutory authority, or in a manner repugnant to a provision of the Constitution of the United States.

 These fundamental theories have often been expressed in different ways. Thus Madison said in The Federalist, No. 48:

 'It is agreed on all sides, that the powers properly belonging to one of the departments, ought not to be directly and compleatly administered by either of the other departments. It is equally evident, that neither of them ought to possess directly or indirectly, an overruling influence over the others in the administration of their respective powers.'

 Chief Justice Taney concretely formulated some of these ideas in Decatur v. Paulding, 14 Pet. 497, 515, 10 L. Ed. 559. He stated:

 'The interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied, that ...

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