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UNITED STATES v. INSTRUMENTS

November 13, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
INSTRUMENTS, S.A., INC., and FISONS INSTRUMENTS/VG INSTRUMENTS, Defendants, COMPTROLLER GENERAL OF THE UNITED STATES, Intervenor-Defendant.



The opinion of the court was delivered by: LOUIS F. OBERDORFER

MEMORANDUM

 This action is a constitutional challenge to a portion of the protest provisions of the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. §§ 3551-3556. The plaintiff is the United States, represented by the Department of Justice. The defendants are two disappointed bidders on contracts with the Department of Commerce. The Comptroller General of the United States has intervened as a party defendant. See Order of January 10, 1992. The provision at issue is 31 U.S.C. § 3554(c). It provides for the payment of certain bid protest costs when the Comptroller General, an agent of Congress, determines that a disappointed bidder is entitled to such costs. Plaintiff claims that this provision violates separation of powers embodied in the Constitution because the payments would be effected by Executive Branch agencies.

 Defendants Instruments, S.A., Inc. (Instruments) and Fisons Instruments/VG Instruments (Fisons) have moved to dismiss for lack of jurisdiction; plaintiff has filed a motion for summary judgment; and Instruments, Fisons and the Comptroller General have filed cross-motions for summary judgment. For the reasons that follow, the action will be dismissed.

 I.

 In enacting CICA, Congress intended to promote competition in the government's procurement of goods and services. Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d 875, 879 (3d Cir. 1986), cert. dismissed, 488 U.S. 918 (1988). Among other things, CICA established a "Procurement Protest System," which allows disappointed bidders to file protests with the Comptroller General. A procurement is stayed while the Comptroller General considers the protest, unless the agency finds that urgent and compelling circumstances require that it go forward immediately. 31 U.S.C. § 3553(c). If the Comptroller General determines that the agency has failed to comply with applicable law, he "recommend[s]" that the agency take certain action, such as resoliciting bids and/or terminating the contract. 31 U.S.C. § 3554 (b)(1). In addition, if the Comptroller General determines that the agency's procurement failed to comply with applicable law, he:

 may declare an appropriate interested party to be entitled to the costs of --

 (A) filing and pursuing the protest, including reasonable attorneys' fees; and

 (B) bid and proposal preparation.

 31 U.S.C. § 3554(c)(1). The statute goes on to provide that such protest cost awards "shall be paid promptly by the Federal agency concerned out of funds available to or for the use of the Federal agency for the procurement of property and services." 31 U.S.C. § 3554(c)(2). It is this protest cost award provision that is challenged here.

 In March 1989, the Department of Commerce requested bid proposals for a chemical beam epitaxy system. Defendants Instruments and Fisons submitted bids, were denied the contract and filed protests with the Comptroller General. In 1990, the Comptroller General declared both companies entitled to protest costs under § 3554(c)(1). Fisons submitted a claim to the Department of Commerce for $ 21,615.28, and Instruments submitted a claim for $ 54,622.89. The agency has not paid those claims, nor has it formally denied them.

 Plaintiff, relying on such cases as Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 115 L. Ed. 2d 236, 111 S. Ct. 2298 (1991), Bowsher v. Synar, 478 U.S. 714, 92 L. Ed. 2d 583, 106 S. Ct. 3181 (1986), and INS v. Chadha, 462 U.S. 919, 77 L. Ed. 2d 317, 103 S. Ct. 2764 (1983), argues that § 3554(c) violates the constitutional doctrine of separation of powers because of the authority it purports to grant the Comptroller General to require agencies to pay protest costs. Plaintiff contends that the actions of the Comptroller General, an agent of Congress, under the provision have the characteristics of Executive Branch actions and that the provision thus aggrandizes Congress's power at the expense of the other Branches of the Federal Government. Moreover, plaintiff argues, insofar as the Comptroller General is acting in his capacity as a Legislative Branch official, his actions fail to comply with the Constitution's requirements of bicameralism and presentment. Plaintiff requests a declaration that § 3554(c) violates the Constitution and that the Department of Commerce is under no legal duty to make payment on defendants' claims.

 In moving to dismiss on jurisdictional grounds, defendants Instruments and Fisons argue that this action presents no case or controversy and that a decision on the merits of the constitutional question would constitute an advisory opinion. In particular, defendants observe that a regulation -- in effect since 1985 and final since 1989 -- independently binds Executive agencies to award protest costs when the Comptroller General declares a disappointed bidder entitled to such costs. That regulation, using language similar to § 3554(c), provides:

 Award of protest costs. (1) GAO may declare an appropriate interested party to be ...


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