not be conducted in suspension actions that are based on indictment. 48 C.F.R. § 509.407-3(b)(6). The procedures that preceded plaintiffs' suspension included a meeting with the suspending official and the opportunity to submit additional evidence and satisfied the requirements of due process. See Old Dominion, 631 F.2d at 955-56.
Plaintiffs' constitutional claim related to the completeness of the administrative record is also without merit. Due process requires advance notice of "the issues on which the decision will turn and to be apprised" of the factual material on which an agency relies "so that [the party] may rebut it." Bowman Trans., Inc. v. Arkansas Best Freight Sys., Inc., 419 U.S. 281, 288 n.4, 42 L. Ed. 2d 447, 95 S. Ct. 438 (1974). GSA regulations require that upon request, a party be furnished "a copy of the administrative record which formed the basis for the decision to propose" the actions taken. 48 C.F.R. § 509.406-3(b)(6); see also 48 C.F.R. § 509.407-3(b)(5). Plaintiffs concede that they obtained a copy of the administrative record but allege that several documents were missing. Those documents, two of which relate to the subsequent cancellation actions, became part of the record after the Notice of Suspension was issued. Plaintiffs did have a full opportunity to rebut the information on which GSA's decision to suspend was based. They were not prejudiced by the late receipt of documents unrelated to the grounds for suspension. See Ghaly v. INS, 48 F.3d 1426, 1434-35 (7th Cir. 1995).
d. APA claims relating to failure to obtain a bid
Plaintiff CDC's last APA claim, tangential to its claim related to suspension and cancellation, is that GSA arbitrarily and capriciously issued a purchase order to a competitor of CDC without waiting for CDC's bid.
The record establishes that, on September 3, 1996, GSA issued a telephone request for quotations from CDC and a company called ADM for 6,064 draperies for the Army. This request was made because the Army wanted competitive bidding on the order. On September 9, 1996, before receiving the quotation, GSA issued a purchase order for these requirements under ADM's MAS contract. On September 17, 1996, after GSA received quotes on its bid request, the contract specialist recommended that CDC be awarded the contract because of its lower bid. That same day, GSA discovered that an order had already been issued to ADM, and notified ADM of its intent to cancel the order. ADM informed GSA that it had already incurred substantial costs, however, and submitted documentation substantiating that claim. On October 22, 1996, because of potential cancellation costs and delays in delivery, GSA cancelled the request for bids, and ADM completed the order.
GSA was not required to cancel the order it had issued and award the army contract to CDC, because GSA was not required to competitively bid the order in the first place -- as long as it was awarded to a contractor pursuant to a Multiple Award Schedule for an amount no greater than the maximum order limitation. 48 C.F.R. § 8.404-1 (1994). Plaintiffs' reliance upon In re Commercial Drapery Contractors, Inc., 1996 U.S. Comp. Gen. LEXIS 329 (June 27, 1996), is misplaced. In that case, GSA's award of an order to a higher bidder was found to be in violation of regulations requiring an agency reasonably to ensure that the selection is "at the lowest overall cost" for orders exceeding $ 2,500. See 48 C.F.R. § 8.404(b)&(c)(1995). That regulation was not in effect at the time the present contract award was made, and CDC has failed to provide any other support for its contention. GSA's decision to cancel the Request for Bids is supported by substantial evidence in the record that ADM had already begun processing the order and could not terminate the order without incurring substantial costs.
3. Defendant's Motion to Dismiss
In determining the merits of defendant's motion to dismiss, the court has looked outside the pleadings and considered the administrative record. Accordingly, defendants' motion has been treated as a motion for summary judgment. See Marshall County Health Care Auth. v. Shalala, 300 U.S. App. D.C. 263, 988 F.2d 1221, 1226 n.6 (D.C. Cir. 1993). Any affidavits submitted by the parties have not been considered, nor are they deemed to be part of the record of this case. See Camp v. Pitts, 411 U.S. 138, 142-43, 36 L. Ed. 2d 106, 93 S. Ct. 1241 (1973). As outlined above, the motion for summary judgment will be granted in the defendant's favor, and there is therefore no need to consider plaintiff's motion for preliminary injunction.
An appropriate order accompanies this memorandum.
United States District Judge
For the reasons stated in the accompanying memorandum, it is this 11th day of February, 1997,
ORDERED that defendants' motion for leave to file in excess of the page limitations [# 8] is granted. And it is
FURTHER ORDERED that defendants' motion to dismiss is treated as a motion for summary judgment and granted and that this case is dismissed.
United States District Judge
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