Interstate Compact among the States of Maryland and Virginia and the District of Columbia, and approved by Act of Congress, Pub. L. No. 89-774 (November 6, 1966). Intervenor-defendant U.S. Elevator Corporation ("intervenor"), a California corporation also engaged in the elevator business, is one of plaintiff's chief competitors.
Otis brought this action on December 7, 1976, seeking a temporary restraining order which would prevent WMATA from awarding a certain elevator construction contract to intervenor. Although Otis had been the low bidder on that contract, its bid has been declared "non-responsive" by WMATA. Otis challenges the lawfulness of that designation and accordingly seeks to prevent WMATA from awarding the contract to the only other bidder -- intervenor U.S. Elevator Corporation. Although that contract award was originally scheduled to take place on December 9, WMATA agreed (with the assent of the intervenor) to postpone such action until December 23 so that all issues before this Court could be fully briefed and so that plaintiff's motion could be adjudicated as one for permanent injunctive relief. It is clear that on that date WMATA would award the contract to intervenor unless prevented from so doing by this Court.
Between the time that this action was filed on December 7 and the date of oral argument, December 20, each of the three parties filed numerous pleadings with the Court. In addition to Otis' motion for permanent injunctive relief, pending before the Court are WMATA's motion to dismiss for lack of jurisdiction and the motions of each defending party for summary judgment or judgment on the pleadings. For the reasons briefly set forth below, the Court finds that Otis' motion for permanent injunctive relief should be granted and the motions of the defending parties should be denied.
The material facts in this case are not in dispute.
On September 13, 1976, WMATA invited competitive bidding for the contract here at issue. This solicitation, issued as Invitation No. IFB-C-210, requested bids for the fabrication and installation of twelve elevators for the handicapped at six suburban Metro subway stations located in Maryland and Virginia. The contract in the offing is the fourth in a series of similar elevator procurements for the Metro subway system and is referred to by WMATA as "Elevators 4, No. 1Z4144."
Attached to this bid invitation was a nine-page document designated as "Appendix A" and entitled "Notice of Requirement for Submission of Affirmative Action Plan to Ensure Equal Employment Opportunity."
This appendix was included pursuant to what is commonly known as the "Washington Plan," an affirmative action program designed by the Department of Labor under authority of an Executive Order
for the purpose of increasing the percentages of minority employment within various construction trades throughout the Washington metropolitan area.
This Plan specifies a "minimum acceptable" minority employment percentage for each included construction trade category
and requires an employer's express commitment to these minority employment goals as a prerequisite to federal contract eligibility. The instant bid invitation accordingly required that each bidder specify its minority employment goals "only for those trades to be used in the performance of the Federally-involved contract,"
and to submit this information as "Appendix A" to its bid. The failure to submit such information, or to make minority employment commitments at the minimum levels specified in the Plan, has been clearly stated to constitute invalidation of a bid.
While preparing its bid on the contract at issue, Otis assertedly made the determination that if it were the successful bidder it could perform the contract exclusively with elevator construction trade personnel. With respect to this particular trade category, plaintiff believed that the Washington Plan had been superseded by a nationwide affirmative action plan, the "NEII/IUEC Plan," negotiated between the International Union of Elevator Constructors and the National Elevator Industry, Inc., a trade association of which Otis is a signatory member.
This unique cooperative plan for the elevator construction industry
has been in effect since April 1, 1974 and was approved by the Department of Labor's Office of Federal Contract Compliance as a nationwide substitute for local affirmative action plans such as the Washington Plan insofar as those local plans pertain to the elevator construction trade.
In light of the above, Otis was consequently uncertain as to the manner in which it should complete Appendix A when submitting its bid, if the form even had to be completed at all. Accordingly, Otis' District Manager, Donald E. James, contacted appropriate WMATA personnel in an attempt to obtain guidance on this question. Pursuant to this inquiry, a meeting was held on October 15 and was attended by, among others: Mr. James for Otis; Mr. Peter Brown, WMATA's duly authorized representative;
and a representative of the Elevator Industry National Recruitment Training Program ("EINRTP"), who was able to explain details of the nationwide NEII/IUEC Plan. Otis contends, and WMATA concedes,
that Mr. Brown advised Mr. James at this meeting that Otis should sign Appendix A, enter the phrase "not applicable" opposite all references to the elevator constructor category, and enter appropriate percentages opposite other trade categories if they were to be used in the performance of the contract.
With one inconsequential exception, Otis completed Appendix A precisely as instructed: it signed and submitted the form with its bid after entering the phrase "not applicable" directly opposite each reference to the elevator construction trade.
As was the case with respect to each of the three previous elevator contracts in this series, Otis and intervenor were the only two bidders. When their bids were opened and tabulated on October 20, Otis was declared the successful low bidder at $1,154,205. The intervenor's bid exceeded Otis' bid by $35,062.
Two days later, by letter of October 22, counsel for the intervenor questioned the responsiveness of Otis' bid based upon the manner in which Otis had completed Appendix A.
Several weeks later, after undertaking some investigation of the matter,
WMATA's Contracting Officer advised Otis by letter dated December 2 that its "failure to properly fill out the Appendix A Affirmative Action Plan [had] rendered [its] bid non-responsive."
WMATA accordingly determined that the contract should be awarded to intervenor and this action followed.
In its motion to dismiss, WMATA has advanced the threshold argument that this Court lacks jurisdiction over Otis' claim. It appears to rest this position on its assertion that Otis lacks standing to challenge the lawfulness of WMATA's past and proposed course of conduct regarding the contract at issue. As noted in the source of authority upon which WMATA chiefly relies,
however, this Circuit has wisely adopted a more "relaxed view" of this concept than that which might favor WMATA's motion. See Scanwell Laboratories, Inc. v. Shaffer, 137 U.S. App. D.C. 371, 424 F.2d 859 (D.C. Cir. 1970); cf. Northeast Construction Co. v. Romney, 157 U.S. App. D.C. 381, 485 F.2d 752, 760 & n.18 (D.C. Cir. 1973). Moreover, the imaginative arguments which WMATA advances here were effectively discredited by Judge Parker's discussion of a litigant's standing to sue WMATA in The Bootery, Inc. v. Washington Metropolitan Area Transit Authority, 326 F. Supp. 794 (D.D.C. 1971). In that decision, Judge Parker held the "federal interest" in the WMATA Compact called for the application of general standing criteria
to the case before him, a test which was easily met by plaintiffs.
The Court sees no reason why a similar result should not apply here under the circumstances presented.
Proceeding to the merits of the case, the Court notes at the outset that at oral argument counsel for each party urged the Court to decide the issue of whether Otis' bid was responsive on the "four corners" of the bid as submitted. The Court readily agrees with counsel that such is the most appropriate approach and notes also in this connection that the Court of Appeals for this Circuit has required a bidder's strict adherence to the clerical as well as the promissory requirements of Appendix A. In Northeast Construction Co. v. Romney, 157 U.S. App. D.C. 381, 485 F.2d 752 (D.C. Cir. 1973), that Court found that the bidder before them had "ignored" the stated requirement of Appendix A that minority employment percentages be included for all trades to be used in the performance of the contract bid upon. Id. at 760. Thus, although the bidder in that case had seemingly fulfilled the underlying promissory obligation of the Washington Plan,
it had not met the test of strict adherence held necessary to avoid the invalidation of its bid. See id. at 762; see also Rossetti Contracting Company, Inc. v. Brennan, 508 F.2d 1039, 1046 (7th Cir. 1975).
In the instant case, however, a very different situation is presented. Otis did not, unlike the bidder in Northeast, fail to make appropriate entries for any trade category pertinent to the contract. Rather, it merely placed the phrase "not applicable" opposite the elevator constructor category, the only trade category which it says it intended to use to perform the contract if it were the successful bidder.
Although the evidence is indeed contradictory as to whether Otis may have intended to use members of a second trade category (iron workers) in the performance of this contract,
such evidence is simply not relevant to the responsiveness of Otis' bid at the time that it was opened. It is most significant that Appendix A by its very terms requires that " . . . goals need be submitted only for those trades to be used in the performance of the Federally-involved contract."
Hence, the Washington Plan leaves it to the bidder to determine exactly which trade categories are necessary to the performance of the contract; the Northeast decision requires only that specific percentage entries be made for each such pertinent category.
To be sure, a bidder should be held to a good faith standard in his determination of "those trades to be used," just as a bidder is likewise deemed committed to "make every good faith effort" to comply with those minority employment percentages specified.
But it should hardly be within the discretion of the procuring agency to make subtle, inevitably fatal determinations concerning the exact trade categories it considers necessary to the performance of the contract and to then point to the Northeast case as mandating a declaration of non-responsiveness. Yet this is, in part, exactly what WMATA has done
and it indeed constitutes the position upon which WMATA ultimately placed exclusive reliance at oral argument. Without belaboring the point, the Court feels compelled to note that WMATA could just as easily have declared the intervenor's bid on the controverted contract to be non-responsive inasmuch as the Appendix A form submitted with that bid failed to specify percentages for a trade category (painters and paperhangers) which the intervenor had for whatever reasons included as part of its prior bids in this series of similar elevator contracts.
Certainly, then, it is only appropriate to conclude -- particularly in light of the parties' consensus that this Court should look only to the "four corners" of Otis' bid as submitted -- that Otis' bid could not reasonably have been declared to be nonresponsive by WMATA simply because it failed to specify percentages for a trade category (iron workers) which WMATA deemed to have been necessary to the performance of the contract. The Court holds that Otis' submission, properly taken at face value,
was in no way defective in this regard.
There remains for discussion only the matter of the one trade which Otis did deem necessary to the performance of the contract (the elevator construction trade) and the propriety of the manner in which Otis completed Appendix A in that connection. As is implied above, WMATA expressly conceded this portion of its case at oral argument. Specifically, WMATA's counsel acknowledge the nature and scope of the national plan for this trade and admitted that it does indeed "supersede" the Washington Plan as Otis has all along maintained. Moreover, it was stipulated that Otis' District Manager had indeed been instructed by WMATA's duly authorized representative to enter the phrase "not applicable" opposite all pertinent references to elevator constructors appearing on Appendix A.
Hence, WMATA has abandoned its earlier attempts to justify its designation of non-responsiveness on the basis of the elevator constructor issue.
Despite the fervent efforts of the intervenor's counsel to pursue this issue at oral argument, the Court must agree with Otis' contention (and WMATA's admission) that the Washington Plan is indeed superseded by the nationwide affirmative action plan with respect to the elevator constructor trade category. Certainly, the evidence overwhelmingly supports such a view.
The Court finds that it was therefore entirely reasonable for a representative of Otis to seek clarification and guidance concerning the proper manner in which this situation should be reflected on its Appendix A submission. Certainly, such an undertaking can be seen only as in respectful accord with the underlying principles of the Northeast case. Of course the fact that Otis submitted its bid precisely as instructed does not of itself make the bid necessarily responsive. The determinative point is that Otis' notation that Appendix A is "not applicable" was both an accurate and pertinent statement of fact, one which was eminently communicative under all attendant circumstances,
and which by no reasonable standard could have been construed as running afoul of the rule of the Northeast case. Indeed, in view of the circumstances presented to the Court's attention at oral argument, the intervenor should hardly be heard to argue to the contrary.
In sum, the Court finds that Otis' Appendix A submission could not have been reasonably designated as nonresponsive for the lack of a percentage entry in connection with the iron worker trade. Similarly, there existed no reasonable basis upon which WMATA (or, now, the intervenor) could justify such a designation in connection with the elevator constructor trade. The Court finds that Otis' bid was fully responsive and that WMATA regrettably erred (a mistake which to its credit it now for the most part admits) in making its determination to the contrary. Otis is accordingly entitled to a declaratory judgment to this effect and to an order enjoining WMATA from awarding this contract to the intervenor as scheduled.
OLIVER GASCH / Judge
Upon consideration of all pending motions in this action, the respective memoranda of points and authorities filed in support thereof and in opposition thereto, and upon further consideration of the argument of counsel in open Court, the entire record herein, and for the reasons briefly set forth in the Court's Memorandum issued this day, it is by the Court this 22nd day of December, 1976,
ORDERED that defendant's motion to dismiss be, and hereby is, denied; and it is further
ORDERED that the motions of defendant and intervenor-defendant for summary judgment be, and hereby are, denied; and it is further
ORDERED that plaintiff's motion for permanent injunctive relief be, and hereby is, granted; and it is further
ORDERED that defendant be, and hereby is, permanently enjoined from making award of the contract at issue herein, known as "Elevators 4, No. 1Z4144," to anyone other than plaintiff, who hereby is declared to have been the low responsive bidder for said contract.
OLIVER GASCH / Judge