The opinion of the court was delivered by: OBERDORFER
Rubber Millers manufactures sea fenders, devices that act as cushions between a vessel and a dock. The Navy has issued a solicitation for berthing improvements at the Naval Air Station (Truman Annex) in Key West, Florida. Plaintiff alleges that this solicitation includes a subcontract with a specification that describes, to the exclusion of plaintiff's product, a marine fender manufactured by Seaward International. Rubber Millers claims that these specifications unlawfully prevent it from effectively competing for the procurement as a subcontractor, in violation of 10 U.S.C. §§ 2301, 2304, and 2305. The prime contractors' bids have been opened but no prime contract for the facility and therefore no subcontract for fenders has been let. Meanwhile, the plaintiff has protested the solicitation to the Comptroller General.
This matter comes before the Court on the defendants' motion to dismiss, which is based on the theory that the plain language of section 133(a) of the Federal Courts Improvement Act, 28 U.S.C. § 1491(a)(3), vests in the Claims Court "exclusive" jurisdiction over pre-award relief. Because the Court concludes that the plaintiff lacks standing to bring this suit, however, it is unnecessary to reach the question of whether the Claims Court has exclusive jurisdiction over actions like this one.
The starting point for standing analysis in this type of case is Control Data Corp. v. Baldrige, 210 U.S. App. D.C. 170, 655 F.2d 283 (D.C. Cir. 1981), cert. denied, 454 U.S. 881, 70 L. Ed. 2d 190, 102 S. Ct. 363 (1981). In Control Data, major manufacturers and suppliers of computer systems for the government protested new rules embodying specifications that prevented them from bidding successfully on government contracts. In the course of determining that the computer manufacturers lacked standing, the Court of Appeals adopted a three-part test for implementing the zone of interest analysis developed by the Supreme Court in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). Three requirements must be satisfied before Rubber Millers may be deemed to have standing:
Control Data, supra, at 288-89 (footnotes omitted).
Rubber Millers clearly satisfies the injury in fact aspect of the Control Data test. Plaintiff alleges that if the Navy is allowed to use the specifications it has included in the solicitation, Rubber Millers will not be able to compete for this or related future government contracts and will be forced out of the government contracting market. The plaintiff has therefore alleged a specific injury that can be redressed by a favorable judicial decision. See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976); Control Data, supra, at 289.
Plaintiff faces a more difficult hurdle in attempting to establish that the interest which it seeks to vindicate is within the zone of interests protected or regulated by the statutory provisions under which the suit is brought. The Court of Appeals has rejected the notion that a plaintiff may act as a private attorney general to protect the public interest once an injury in fact has been sufficiently alleged. Control Data, supra, at 291-93. Rather, the Court must determine "that the interest asserted . . . is one intended by Congress to be protected or regulated by the statute under which the suit is brought." Id. at 293-94. This is the exclusive means of determining standing where a plaintiff, like Rubber Millers, has not actually bid. Unlike a bidder, Rubber Millers has not "placed in the hands of the representatives of the Government the power to bind [it] to a contract." Merriam v. Kunzig, 476 F.2d 1233, 1242 n.7 (3d Cir.), cert. denied, 414 U.S. 911, 94 S. Ct. 233, 38 L. Ed. 2d 149 (1973). Moreover, Rubber Millers cannot allege as a special injury the notion that it will be entirely precluded from the government market -- it is free to decide whether it will conform to government specifications or withdraw. See Control Data, supra, at 293; cf. Ballerina Pen Co. v. Kunzig, 140 U.S. App. D.C. 98, 433 F.2d 1204 (D.C. Cir. 1970), cert. dismissed, 401 U.S. 950, 91 S. Ct. 1186, 28 L. Ed. 2d 234 (1971) (inclusion of ball point pens on Schedule of Blind-Made Products would have completely excluded plaintiff from the government market). Thus, Rubber Millers has standing only if its interests are within the zone protected or regulated by the relevant procurement statutes.
A plaintiff should be found to have standing if the statute contains a slight beneficiary indicia. Constructores Civiles de Centroamerica, S.A. v. Hannah, 148 U.S. App. D.C. 159, 459 F.2d 1183, 1189 (D.C. Cir. 1972) (cited in Control Data, supra, at 295). To determine whether Rubber Millers' interests are within the zone of interests protected or regulated by the procurement statutes, the Court must look to the language of those statutes and to their legislative history.
Rubber Millers relies primarily on three provisions of the Armed Services Procurement Act of 1947. 10 U.S.C. § 2301 declares Congress's intent to establish a procurement system for the benefit of national defense and the economy. In pertinent part, section 2301 states:
It is the policy of the Congress that such contracts . . . will . . . provide incentives to contractors to improve productivity through investment in capital facilities, equipment, and advanced technology.
Section 2301(b) adds that "it is also the policy of Congress that a fair proportion of the purchases and contracts made under this chapter be placed with small business concerns." In this connection, Rubber Millers avers, through the declaration of its Vice-President, that it is a small business within the definition set forth in the Small Business Administration's regulations, 13 C.F.R. part 121, and the Federal Acquisition Regulation, 48 Fed. Reg. 42,242 (to be codified at 48 C.F.R. § 19.102). The second provision on which Rubber Millers relies is 10 U.S.C. § 2304, which requires formal advertising for most purchases and contracts. The relevant language appears in section 2304(a):
Finally, plaintiff refers to 10 U.S.C. § 2305, which sets forth the standards governing formal advertisements for ...