should be terminated and ISN's reinstated until Diane Crawford, the real CO, can make a decision pursuant to federal regulations.
This argument, however, fails for two reasons. First, it mischaracterizes what this dispute is about. The termination of the contract is essentially in the contractual realm, not in this tangential regulatory sphere. Secondly, Bridges was the CO's supervisor in this case. It strikes this court as odd that an underling, important though she may be, cannot be controlled by her supervisor to make an option decision, or cannot have decisions made on her behalf by a supervisor. Or, as the government claims, Crawford may have been removed altogether from decision-making authority with respect to exercise of another option. Either way, it leads back to plaintiff's true complaint, which is essentially one of bad faith termination -- which leads back to issues of contract. Thus, the court finds the first element of Ingersoll-Rand's first prong has been met.
(2) Expertise of the Court of Federal Claims.
While presumably any federal court can hear a bad-faith termination of contract claim, this is a type of issue frequently heard in the Court of Federal Claims. See, e.g., Advanced Materials, Inc. v. U.S., 34 Fed. Cl. 480 (Fed.Cl. 1995) (examining whether bad faith was at issue in the government's termination for convenience); A-Transport Northwest, Co., Inc. v. U.S. 27 Fed. Cl. 206 (Fed.Cl. 1992) (finding government's action in termination of a contract not motivated by bad faith). No doubt, then, that court is very capable of making these determinations. In fact, in Ingersoll-Rand, the court noted that this type of case "calls for knowledge of the government contracting process" and that courts must "implement the Congressional intent to provide a single, uniquely qualified forum for the resolution of contractual disputes." 780 F.2d at 77. The second factor in the contract/regulatory equation is thus fulfilled under Ingersoll-Rand.
(3) "Disappointed Bidder"
Finally, the Ingersoll-Rand court noted that unlike a "disappointed bidder" or "frustrated bidder" action, where a contractor seeks to void the award of a contract to another and have it bestowed upon itself, see Scanwell Laboratories, Inc. v. Shaffer, 137 U.S. App. D.C. 371, 424 F.2d 859 (D.C. Cir. 1970) -- and where federal district courts may retain jurisdiction -- the situation is not the same when a plaintiff complains of wrongful termination of its own contract. See 780 F.2d at 78. Thus, ISN's case is no different than that of the plaintiff in Ingersoll-Rand, with respect to the the source of the right at stake.
B. Adequacy of Remedy
The second prong of Ingersoll-Rand, adequacy of remedy, is of no better help to ISN either, concerning its termination of contract claim. The court there, again relying on Megapulse, indicated that the classification of a particular action depended upon what type of relief was sought and what type of relief was appropriate. ISN says it seeks only specific performance of the contract, which is unavailable in the Court of Federal Claims. But, as in Ingersoll-Rand, ISN has money damages available, and an argument that this remedy is inadequate is unavailing. Ingersoll-Rand, 780 F.2d at 80. Congress deliberately intended that contract disputes with the federal government be heard in the Court of Federal Claims, and deliberately intended that only certain relief be available. That ISN would rather have specific performance is of no concern in the scheme of federal jurisdiction. Therefore, it is the determination of this court that this court lacks jurisdiction over the second claim of plaintiff's complaint.
It will therefore be transferred to the Court of Federal Claims, where jurisdiction properly lies.
II. ISN's Failure to Recompete -- Blacklist
In the third claim of plaintiff's complaint, ISN alleges that it was blacklisted from an opportunity to compete for a CIOSP task order which would essentially have replaced the ISN contract which the government terminated. ISN argues that this violates the APA and the Competition in Contracting Act ("CICA"). Comp., at 13.
Both the government and the intervenor have sought to dismiss this claim for lack of standing. Specifically, they claim that ISN is merely a potential subcontractor to Unisys, the only entity capable of bidding for the task order in question. Thus, OAO and the government argue that ISN is not within the "zone of interests" protected by CICA and may not seek relief under that statute. See, OAO Corp.'s Mot. to Dis. and Opp. to Prelim. Inj. at 11; Def.'s Mot. to Dis. at 24-26. In fact, in US West Communications Services, Inc. v. U.S., 940 F.2d 622, 628 (Fed.Cir. 1991), the Court of Appeals for the Federal Circuit pointed out that "although Congress originally contemplated a wide definition of parties who could protest bids under CICA, 'any person whose direct economic interest would be affected as contractor or subcontractor,' -- the CICA, as enacted, provided for protest 'to a solicitation by a Federal agency,' and all references that would have permitted subcontractors to protest were deleted." Id. This determination that subcontractors could not be protesting parties kept with past practice of precluding subcontractor actions. Id. Accord, Phoenix Eng'g, Inc. v. MK-Ferguson of Oak Ridge, Co., 966 F.2d 1513, 1526 (6th Cir. 1992) (stating, "we agree with the Federal Circuit [decision in US West ]. Potential subcontractors are not interested parties for the purpose of an action under CICA.")
But ISN argues that recent amendments to CICA now give subcontractors standing to sue. CICA now states that an "interested party" for purposes of the act "means an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or failure to award the contract." 31 U.S.C. § 3551 (1994), Federal Acquisition Streamlining Act of 1994 ("FASA"), Pub.L. No. 133-355, § 1401(a), 108 Stat. 3243, 3287 (1994). Interested parties have the power to protest a solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services. 31 U.S.C. § 3551 (1)(A). ISN argues that, "in conjunction with its teammate Unisys," it is an "offeror" under FASA, whose direct economic interests are directly affected by the award of the task order. Pl.'s Opp. to Interv. Second Mot. to Dis., at 9.
The government, however, points out that recent, post-FASA opinions by the Comptroller General have held that this CICA provision does not confer standing on subcontractors. See, e.g. Bullock Int'l., B-265982, 96-1 CPD P 5, 1995 WL 760918 (Dec. 26, 1995). Furthermore, it, and OAO, challenge the fact that ISN could ever qualify as an "offeror". Though ISN did submit a proposal to Unisys, only Unisys, as a prime contractor, had the capability of participating in the CIOSP task order competition. Unisys never submitted a bid.
The court agrees with the defendant. The most tenable holding is that subcontractors are not intended for protection under CICA, and the amendments on which ISN centers its argument do not help its case. Though plaintiff's economic interest was directly affected by the recompetition, that is not enough. It must be at least an "offeror." Under the CIOSP competition, only prime contractors may submit bids for government task orders, so ISN could not be an offeror with respect to the government.
ISN has countered that the federal statute dealing with task orders states, in relevant part, that "all contractors awarded such contracts shall be provided a fair opportunity to be considered, pursuant to procedures set forth in the contracts, for each task or delivery order...." 41 U.S.C.A. § 253j(b) (West Supp. 1996). ISN claims that it has not had a fair opportunity to be considered. But ISN was not competing for the task order: only Unisys could do that. Unisys didn't.
The court does have reservations about dismissing this portion of the suit. If ISN were, indeed, blacklisted, and ISN's claims that Unisys was told it would not receive an award if it used ISN as a subcontractor, what recourse would ISN have? In fact, intervenor OAO begs this question in its own briefs. OAO, in an attempt to convincingly peg ISN as a subcontractor without standing, writes,
"ISN was designated as a subcontractor to Unisys and, under the rules of the CIO-SP program, a company could choose to 'team' as a subcontractor with only one CIO-SP prime contractor. Thus, neither Unisys nor its subcontractor ISN was a competitor for the task order at issue in this case.
OAO Corps.' Mot. to Dis. and Opp. to ISN's Mot for Prelim. Inj., at 2.
If Unisys could only use ISN, and ISN could only use Unisys, this is very problematic with respect to ISN's position if the government did, indeed, blacklist it. Unisys, the only party in a position to actually bid on a CIOSP contract, could decide that it would be better to forgo a bid rather than risk upsetting its relationship with the government by either insisting that it use ISN or by suing if the government failed to award. Thus, ISN would be frozen out of government work. ISN would be forced to sue Unisys, spoiling its relationship with its prime contractor.
This type of situation has been considered by other courts. In Contractors Engineers Int'l., Inc. v. Dept. of Veterans Affairs, 947 F.2d 1298, 1300 (1991), the United States Court of Appeals for the Fifth Circuit, considering the issue of whether a subcontractor could have standing under CICA to challenge a procurement decision, set forth a number of instances where a plaintiff subcontractor could have standing. Adopting criteria from a federal district court opinion from this district, Amdahl Corp. v. Baldrige, 617 F. Supp. 501 (D.D.C. 1985) (Parker, J.), the Fifth Circuit allowed for a disappointed subcontractor to have standing to sue under CICA (i) when the contractor acted as a purchasing agent of the government; (ii) where the government has caused or controlled the rejection or selection of a potential subcontractor; (iii) where agency bad faith or fraud in the approval of a subcontractor is demonstrated; (iv) where a contract was made "for" the government; or (v) where the agency is entitled to an advance decision. Contractors Engineers, 947 F.2d at 1300.
Despite the plain meaning of CICA, which covers only contractors, actual or prospective bidders, and offerors with a direct economic interest, it is possible that under a Contractors Engineers analysis these meanings could be expanded to cover situations involving subcontractors as well, but not in this case. The only factors which could possibly be at issue here would be either the second factor, where the government controls the selection of the subcontractor, or the fourth factor, where bad faith is at issue. The problem for ISN was that Unisys never submitted its bid. The government did not pick subcontractors under the CIOSP program. Unisys, by its own agreement with ISN, selected it as a subcontractor. The fact that Unisys and ISN had to work together was not a decision controlled by the government, so ISN could not be swept into any possible zone-of-interest with respect to bidding in that regard.
With respect to bad faith on the government's part, though this is alleged, Unisys' failure to submit a bid with ISN as subcontractor also keeps ISN from CICA's purview. Had Unisys submitted a bid which the government rejected as a result of the inclusion of ISN as a subcontractor, this might give ISN standing, depending on the facts alleged. But that is not the situation here. ISN's complaint is more naturally directed at Unisys for failing to offer the bid to the government. This court need not concern itself with whether or not ISN has a cause of action against Unisys, as no claim has yet been sought.
The court has no choice but to dismiss ISN's third claim of its complaint for lack of standing.
III. Bivens Claim
The court now turns to ISN's Bivens count against individual officers of NIEHS, especially Antoinette Bridges and Jimmy Washington, which forms the first claim of plaintiff's complaint. ISN alleges that these federal officers violated the Fifth Amendment to the United States Constitution by depriving ISN of rights to due process. Pl.'s Second Comp., p.12. ISN seeks money damages in the form of a Bivens action against the individual defendants.
The government and OAO argue that a Bivens remedy should not be provided by the court. First, they argue that ISN has neither property nor liberty interests in either the extention of an option, a future contract, or in a relationship with its prime contractor, Unisys. Additionally, they argue that adequate postdeprivation remedies exist should a rights violation have occurred, and this precludes a Bivens action.
In Bivens v. Six Unknown Fed'l Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), the United States Supreme Court allowed, in certain circumstances, for causes of action against individual federal officials for constitutional violations. But Bivens, as a judicially created remedy, has been narrowed by the courts. In Bivens itself, the Court wrote that where there is an explicit Congressional declaration that injured parties be remitted to another remedy deemed equally effective by Congress, or where there are "special factors" counselling hesitation in the absence of affirmative action by Congress, this judicial power should not be exercised. Id. at 396-97.
ISN concedes that a Bivens action is barred at least when an existing federal statute provides an equally effective remedy. Pl.'s Opp. to Interv. Second Mot. to Dis., p. 20. Plaintiff challenges, however, the adequacy of its remedy under the CDA, believing it can be awarded only bid preparation costs.
Without leaping into a determination of what property or liberty interests might attach in a government contracts arena, it is sufficient to state only that the defendant concedes that a blacklisting by the government could give rise to a Fifth Amendment violation. Def.'s Reply to Pl.'s Opp. to Def.'s Mot. to Dis. Pl.'s Second Comp., p. 6-7. The government quarrels, nevertheless, with plaintiff's characterization of when Bivens actions are precluded. In addition to circumstances where an equally effective remedy is available, the government argues that where "there is a statutory scheme created by Congress in the field of government contracts that is sufficiently comprehensive to be deemed a special factor counselling against the creation of a Bivens remedy by the judiciary." Id. at 9. In other words, the fact that plaintiff feels its statutory remedies are inadequate is irrelevant if there is a comprehensive remedial scheme which Congress has put in place. The government then argues that the CDA and the ADRA amendments thereto provide just such a scheme.
The government is correct. In Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988) (en banc), the D.C. Circuit carefully considered the extent to which Bivens should be extended against federal officials, concluding:
courts must withhold their power to fashion damages remedies when Congress has put in place a comprehensive system to administer public rights, has 'not inadvertently' omitted damages remedies for certain claimants, and has not plainly expressed an intention that the courts preserve Bivens remedies.
Id. at 228. In fact, Spagnola made clear that if such a system exists, even if Congress provided "no remedy whatsoever," this is enough to preclude a Bivens action. Id. (citing Schweiker v. Chilicky, 487 U.S. 412, 108 S. Ct. 2460, 2467, 101 L. Ed. 2d 370 (1988)). Thus, Spagnola concluded that a case-by-case examination of the particular administrative remedies available to a given plaintiff is unnecessary, given a comprehensive administrative remedial construct.
The real question, then, is not whether the CDA/ADRA remedy is as effective as judicially provided monetary damages against federal officials, but rather, whether the government contracts dispute regime is comprehensive in its provision of whatever remedies Congress has chosen to provide. The court finds it is.
Congress has provided bid protester remedies. ADRA provides that in bid protest actions, both the Court of Federal Claims and federal district courts have jurisdiction, in connection with a protest by an interested party, for any "alleged violation of statute or regulation in connection with a procurement or a proposed procurement." Further, "to afford relief in such an action, the courts may award any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs." Pub.L. 104-320, § 12(b)(1-2), 110 Stat. 3874, 28 U.S.C. § 1491(b)(2).
It is thus clear that Congress has set forth circumstances under which parties may be afforded relief, and the contract disputes system is clearly a comprehensive one. Thus, under Spagnola, ISN may not maintain a Bivens action against individual defendants.
For the reasons stated above, counts I and II of plaintiff's complaint in Civil Action No. 96-2802 are dismissed, as are plaintiff's first and third claims of its complaint in Civil Action No. 97-187. With respect to the second claim of plaintiff's complaint in 97-187, which alleges wrongful termination of contract by defendants, this will be transferred to the Court of Federal Claims in accordance with applicable law.
A separate order shall issue forth date.
Royce C. Lamberth
United States District Judge