The opinion of the court was delivered by: GASCH
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."
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 With respect to this particular trade category, plaintiff believed that the Washington Plan had been superseded by a nationwide affirmative action plan, the "NEII/IUEC Plan," negotiated between the International Union of Elevator Constructors and the National Elevator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,