A. Abel Has Standing to Challenge GSA's Admitted Violation of Regulations
The constitutional premise for the requirement of standing is the "case or controversy" provision of article III. The requirement is satisfied in this case if the plaintiff can "show that [it] has suffered injury as a result of the defendant's putatively illegal conduct and that [its] injury both may be traced to the challenged conduct and is likely to be redressed by the judicial relief he seeks." National Maritime Union of America AFL-CIO v. Commander, Military Sealift Command, 263 U.S. App. D.C. 248, 824 F.2d 1228, 1234 (D.C. Cir. 1987).
Challenging Abel's standing, Fort Howard contends that an injunction requiring GSA to resolicit the paper towel contracts is not likely to redress Abel's injury because Abel is unlikely to win award of the items as to which Fort Howard is presently the low bidder.
As the Court clearly articulated at the preliminary injunction hearing, the injury from which Abel suffers is not failure to underbid Fort Howard. Instead, the injury is the denial of an opportunity to bid at all. Clearly, GSA's failure to follow its regulations caused this injury, and an order by this Court directing resolicitation would redress that injury. Abel has constitutional standing to seek relief from GSA's failure to mail it a solicitation.
As a matter of judicial prudence, standing to challenge a government contracting decision requires (1) an allegation of injury in fact, (2) a claim that the agency's action "arguably" caused injury intended to be prevented by the statute in question, and (3) the absence of congressional intent to withhold judicial review. Gull Airborne Instruments Inc. v. Weinberger, 224 U.S. App. D.C. 272, 694 F.2d 838 (D.C. Cir. 1982) (citing Control Data Corp. v. Baldridge, 655 F.2d 283, 288-89 (D.C. Cir.), cert. denied, 454 U.S. 881, 70 L. Ed. 2d 190, 102 S. Ct. 363 (1981)). Satisfaction of the first factor is clear from the preceding discussion, and there is no clear and convincing congressional intent to withhold judicial review. Furthermore, because CICA requires that "all responsible sources [be] permitted to submit sealed bids or competitive proposals," 41 U.S.C. § 403(7), GSA's failure to send a solicitation to Abel is "arguably" within the zone of interests intended to be protected by CICA. Thus, prudential considerations permit Abel's access to this judicial forum.
Finally, Fort Howard insists that as a nonbidder, Abel is precluded from challenging a government procurement decision. Citing Scanwell Laboratories, Inc. v. Shaffer, 137 U.S. App. D.C. 371, 424 F.2d 859 (D.C. Cir. 1970), Fort Howard argues that only bidders are within the zone of interest to be protected by CICA. However, Fort Howard ignores the basis for the standing of bidders -- the "right to a legally valid procurement process." National Maritime, 824 F.2d at 1237. In National Maritime, the court noted that the right is founded in the "mandatory language" of federal procurement statutes and the "contractual invitation to bid embodied in the solicitation." Id. (citing 10 U.S.C. §§ 2304, 2305 (Supp. III 1985)).
While Abel enjoys no rights stemming from the "contractual invitation to bid" -- an invitation that GSA negligently failed to send, the "mandatory language" of federal procurement statutes applies equally in the case at bar. Moreover, as discussed below, Abel, as an incumbent contractor, has a right to expect that it will be solicited for follow-on contracts. See United States v. Thorson Co., 806 F.2d 1061, 1065 (Fed. Cir. 1986). Thus, Abel's standing as a nonbidder is as compelling under the circumstances of this case as the standing of a bidder in the circumstances faced by the Scanwell court.
B. GSA's Obligations Under CICA, the FAR, and the GSAR
Following a careful review of federal government procurment procedures, Congress determined that at the time a majority of such procurement was achieved by noncompetitive procedures to the detriment of the government. S. Rep. No. 98-50, 98th Cong., 1st Sess. 7 (1984) [hereinafter "Senate Report"]. To correct this imbalance, Congress enacted CICA, Pub. L. No. 98-369, Division B, Title VII, 98 Stat. 1175 (1984), and established a statutory preference for the use of competitive procedures. Senate Report at 1. While Congress recognized the benefits to the government derived from competitive procurement, it commented that "possibly the most important . . . benefit of competition is its inherent appeal of 'fair play.'" Id. at 3. Thus, under CICA, "executive agencies are not only required to obtain competition . . ., but also to increase its effectiveness." Id. at 18.
As codified, section 2711(a)(1) of CICA implements the "absolute preference for competition," Senate Report at 17, by requiring that "an executive agency in conducting a procurement for property or services . . . shall obtain full and open competition through the use of competitive procedures." 41 U.S.C.S. § 253(a)(1) (Law. Co-op. 1987). The operative phrase "full and open competition" is defined by CICA to mean "that all responsible sources are permitted to submit sealed bids or competitive proposals on the procurement." Id. § 403(7).
To fulfill this statutory obligation, several government agencies, including GSA, have promulgated the FAR. These regulations apply to all procurements by the federal government. One provision of the FAR relevant to this case requires that "invitations for bids or presolicitation notices shall be mailed or delivered to prospective bidders as specified in 14.205." 48 C.F.R. § 14.203-1 (1986). The applicable provisions of section 14.205 state:
(a) Solicitation mailing lists shall be established by contracting activities to assure access to adequate sources of supplies and services. . . .