The opinion of the court was delivered by: JONES
Plaintiff has brought this action against the three named defendants in their respective official capacities as Administrator of the Veterans Administration, Associate Deputy Administrator of the Veterans Administration and Construction Contracting Officer of the Veterans Administration. It seeks a declaratory judgment that plaintiff is the responsible low bidder for the construction of the Tampa, Florida, Veterans Administration Hospital and that the award of the contract to J. A. Jones Construction Company for that construction job was illegal. Plaintiff also seeks relief in the nature of a mandatory injunction that all future bids of plaintiff be considered fairly and without bias or prejudice and that defendants be ordered to rescind a notice to the Jones Company to proceed with the construction and that the work be suspended until the Comptroller General of the United States has had an opportunity to decide the merits of the plaintiff's protest. Plaintiff's application for a temporary restraining order was denied by this Court.
Presently before the Court are plaintiff's motion for preliminary injunction and defendants' motion to dismiss the complaint for lack of jurisdiction.
Plaintiff, in its complaint, alleges that pursuant to an invitation of the Veterans Administration it prepared and deposited a bid for the construction of the Tampa, Florida, Veterans Administration hospital; that it was one of five bidders and of the five it was the low responsive bidder; that thereafter on October 9, 1968 it received a telegram from the Construction Contracting Officer of the Veterans Administration advising plaintiff that the contracting officer did not consider it to be a responsible prospective contractor for the Tampa, Florida, hospital and that its bid was therefore rejected; that the contracting officer had not consulted or discussed with the plaintiff or requested any statements from plaintiff with respect to the matter of plaintiff's responsibility; and that the contracting officer, defendant Robinson, was by regulation required to refer any question he might have with respect to the capacity or credit of the plaintiff to the Small Business Administration for review and determination and that Robinson did not do so. Plaintiff also alleges that prior to receipt of notice of rejection of its bid it had filed a protest by telegram to the Veterans Administration and to the Comptroller General; that on October 10, 1968 it was advised by defendant Robinson of the award of the Tampa hospital contract to the Jones Company and that in making such an award defendant Robinson violated pertinent regulations; that the plaintiff has requested defendant Driver and defendant Robinson not to proceed with the award of the construction contract or to give notice to proceed to the Jones Company until such time as the Comptroller General has had an opportunity to review and rule on plaintiff's protest. Plaintiff also complains that defendants Monk and Driver are biased and prejudiced against plaintiff and that the defendants were acting arbitrarily and capriciously when they rejected plaintiff's bid. Further, plaintiff alleges that the actions of the defendants have resulted in plaintiff being illegally debarred of its right to bid and contract with the Veterans Administration. Plaintiff asserts that between January 1963 and June 1967 it, in sole venture or in joint venture with other companies, had been awarded contracts by the Veterans Administration to perform new construction or air conditioning and remodeling work at several Veterans Administration hospitals.
In support of defendants' motion to dismiss they have filed three affidavits and authenticated copies of a number of documents relating to plaintiff's bid and the rejection thereof.
The grounds on which defendants base their motion to dismiss for lack of jurisdiction are (1) that this action is barred under the doctrine of sovereign immunity and (2) that the plaintiff lacks standing to sue.
This action, which in essence seeks to have this Court award the Tampa Hospital contract to plaintiff and deny the contract to Jones Company, could not be brought against the United States. The latter is immune from suit because of its sovereign character, an immunity which it has not waived here. Nor can the application of the doctrine of sovereign immunity be circumvented by suing the defendants, one officer and two employees of the United States, if the action is in effect a suit against the sovereign. This suit will lie against the defendants as individuals only if their actions complained of were not within defendants' statutory powers or, if within those powers, only if the powers or their exercise are constitutionally void. Larson v. Domestic and Foreign Corp., 337 U.S. 682, 701-702, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949), United States ex rel. Brookfield Construction Co. v. Stewart, 234 F. Supp. 94, 99 (D.D.C.1964), aff'd 119 U.S.App.D.C. 254, 339 F.2d 753 (1964).
Plaintiff alleges that defendants in rejecting its bid and awarding the Tampa Hospital construction contract to Jones Company violated several provisions of the Federal Procurement Regulations, 41 C.F.R. § 1-1.000 et seq. Those regulations were promulgated by the Administrator of General Services Administration pursuant to the authority conferred upon him by subsection (c) of § 205 of the Federal Property and Administrative Services Act of 1949, 40 U.S.C.A. § 486(c). Those regulations have the force and effect of law. Farmer v. Philadelphia Electric Company, 329 F.2d 3, 7 (3 Cir.1964). Thus, in alleging that defendants acted in violation of the regulations, plaintiff asserts that those acts were not within the defendants' statutory powers. Plaintiff does not allege that the statutory or regulatory powers or their exercise are constitutionally void.
Before making a determination of responsibility, the contracting officer shall have sufficient current information to satisfy himself that the prospective contractor meets the standards in § 1-1.310-5. Information from the following sources should be utilized before considering making a pre-award on-site evaluation:
(a) Information from the prospective contractor, including representations and other data contained in bids and proposals, or other written statements or commitments, such as financial assistance and subcontracting arrangements.
(b) Other existing information within the agency, including financial data, the list of debarred and ineligible bidders (see Subpart 1-1.6), and records concerning contractor performance.
(c) Publications, including credit ratings and trade and financial journals.
(d) Other sources, including banks, other financial companies, and Government ...