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.
The first regulation plaintiff asserts defendants violated was subsection (a) of § 1-1.310-7 when defendant Robinson, the contracting officer, made the determination that plaintiff would not qualify as a responsible contractor for the Tampa Hospital job. Section 1-1.310-7 in its entirety reads (41 C.F.R. § 1-1.310-7):
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.