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March 14, 1978

SENATOR HOWARD M. METZENBAUM, et al., Plaintiffs, and CESSNA AIRCRAFT COMPANY, Plaintiff-Intervenor,
HAROLD BROWN, et al., Defendants, and BEECH AIRCRAFT CORPORATION, Defendant-Intervenor


The opinion of the court was delivered by: OBERDORFER

Senators Howard M. Metzenbaum and Barry M. Goldwater have filed this suit to enjoin Secretary of Defense Harold Brown and Secretary of the Navy Graham Claytor from purchasing 22 turboprop light utility transport airplanes (CTX aircraft) for the Navy without advertising for competitive bids. The Senators claim the purchase would violate their constitutional right to vote as Senators for the Department of Defense Appropriation Authorization Act, 1978 (1978 Appropriation) which authorized funds for the CTX aircraft purchase. *fn1"

 The 1978 Appropriation provided that:

Funds are hereby authorized to be appropriated during the fiscal year 1978 for the use of the Armed Forces of the United States for the procurement of aircraft . . . as authorized by law, in amounts as follows:
* * *

 At the time the 1978 Appropriation was under consideration (and since), the determination as to whether the Secretaries should procure Navy property by formal advertising or by other methods was governed by a statute codified in 1956. 10 U.S.C. § 2301 (1970), et seq.2 Section 2304(a) of Title 10 provides that:

Purchases of and contracts for property or services covered by this chapter shall be made by formal advertising in all cases in which the use of such method is feasible and practicable under the existing conditions and circumstances.

 In the course of enacting the 1978 Appropriation, the Armed Services Committee of the Senate (of which Senator Goldwater was a member) recommended authorization of $21.6 million to enable the Navy to purchase the 22 CTX aircraft. The committee recommended procurement of an "off the shelf" aircraft (i.e., already in production) which is "common with the Army/Air Force light utility transport." *fn3" A House/Senate Conference Committee thereafter filed a report designed to resolve differences between the two Houses about the 1978 Appropriation. That report stated that the House had deleted the Navy request for the 22 CTX aircraft because the Navy "had not even begun source selection and had not completed detailed specifications of the aircraft it intends to purchase." After discussion, the conferees agreed, however, "to provide funds for an off-the-shelf turboprop, light utility transport aircraft" in the amount of $21.6 million originally authorized by the Senate bill. *fn4"

 When the Conference Report was submitted to the full Senate for approval, four Senators, including the two plaintiffs here, engaged in a colloquy about the meaning of the Conference Committee Report with respect to Navy procurement of the CTX aircraft. In the colloquy, Senator Metzenbaum, who was not a member of the Conference Committee, asked Senator John Stennis, a member of that committee (and Chairman of the Senate Armed Services Committee), if the Conference Committee had intended to recommend that the CTX aircraft be procured by competitive bidding. Senator Stennis replied affirmatively. Senators Goldwater and Towers concurred with Senator Stennis. *fn5"

 After the colloquy, the 1978 Appropriation was passed by Congress, signed by the President, and became effective on July 30, 1977. It contained no reference, specific or otherwise, to the method by which the CTX aircraft should be procured and made no change in the 1956 law.

 Thereafter, the Department of the Navy issued to the Department of the Army an interdepartmental purchase request for the procurement of the CTX aircraft from the Beech Aircraft Corporation (Beech), the common source already supplying the CTX aircraft to the Army and Air Force. This request, dated December 15, 1977, was issued without any advertisement for competitive bids from other actual or potential manufacturers of such aircraft.

 Meanwhile, on September 30, 1977, Senators Metzenbaum and Goldwater wrote Secretary Claytor about the Senators' colloquy on the Senate floor and their concern that the procurement of the planes be consistent with it. Secretary Claytor replied on October 31, 1977, that the Department of Navy had thoroughly reviewed the legislative history of the 1978 Appropriation, including the Senators' colloquy and had found that it was in the "best interest of the Navy to acquire . . . the aircraft that is common with the Air Force and Army." On December 6, 1977, Senator Metzenbaum wrote Secretary Brown regarding the colloquy and the Senator's concern for competitive procurement. Secretary Brown replied on January 12, 1978, that procurement of an aircraft common with the Army and Air Force is "a reasonably business approach." *fn6" Finally, both Senators wrote jointly to Secretary Brown reiterating their concern and noting the possibility that they might file a suit to enjoin the procurement from the common source, Beech Aircraft Corporation.

 The Senators' complaint, filed February 2, 1978, alleges that the 1978 Appropriation was intended to determine that Navy procurement of the CTX aircraft by competitive bidding would be feasible and practicable within the meaning of the 1956 law, and that the Secretaries were illegally procuring the aircraft by a non-competitive method. The complaint asked the Court for a ...

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