UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GOODWAY GRAPHICS OF VIRGINIA, INC.,
Plaintiff,
v.
UNITED STATES OF AMERICA and
UNITED STATES GOVERNMENT PRINTING OFFICE,
Defendants.
Civil Action No. 92-0791 (JHG)
1992 U.S. Dist. LEXIS 8970
MEMORANDUM OPINION
Plaintiff, Goodway Graphics of Virginia, Inc. ("Goodway"),
commenced this disappointed bidder action on April 2, 1992 by
filing a complaint and an application for a temporary restraining
order. At the status conference held that date, the parties
agreed that Goodway would replace its motion for a temporary
restraining order with a motion for permanent injunctive relief
and would amend its complaint accordingly. In furtherance of
granting plaintiff's request for expedited consideration of the
case, the Court, with the consent of the parties, set a final
briefing schedule which would have made the case ripe for review
on April 29, 1991. On April 13, 1992, defendants filed a Motion
to Dismiss or, in the Alternative for Summary Judgment and
Opposition to Motion for Injunctive Relief ("defendants'
motion"). Plaintiff subsequently filed a motion for an extension
of time until April 30, 1992 to respond to defendants' motion,
which the Court granted. Although the plaintiff timely provided
to the defendants a copy of its opposition to defendants' motion
and though defendants filed a reply to the opposition on May 4,
1992, plaintiff did not file its opposition with the Court until
May 22, 1992, three days after the Court informed counsel for the
plaintiff that it had not received the filing.
Upon consideration of all filings in this case, and for the
reasons stated below, defendants' motion for summary judgment is
granted.
BACKGROUND
Goodway is a Virginia Corporation which has provided various
printing services to several agencies of the United States
government. On February 21, 1992, the United States Government
Printing Office ("GPO"), a legislative agency, issued a
solicitation for a one-year contract, beginning April 1, 1992 and
ending March 31, 1993, to obtain rapid turn-around printing
services. Under the contractual scheme set forth in the
solicitation, GPO planned to hire numerous printers to be placed
on a list from which GPO could select for the performance of
certain services as the need arose. Accordingly, the contract
sought by Goodway and at issue in this case was not awarded to a
sole contractor to the exclusion of others. Goodway had
previously participated in similarcontracts with GPO and was most
recently a contractor on the list of service providers during the
contractual period immediately preceding the one at issue.
According to the statutes and regulations governing the contract
procurement, a bidder was required to submit to GPO a
"certificate of integrity," a document certifying that the bidder
and its officers, employees, and agents have not violated
provisions of the Office of Federal Procurement Policy Act,
codified at 41 U.S.C. § 423. See 41 U.S.C. § 423(e); GPO
Procurement Instruction 318.1.1 Although Goodway had previously
submitted numerous bids for other contracts with the government
and was aware of the certificate of integrity requirement, it
inadvertently failed to submit such a certificate at the time it
submitted its bid for the contract at issue. The bids were opened
on March 20, 1992, and because plaintiff's bid was not
accompanied by a certificate of integrity, it was rejected on
March 23, 1992 as nonresponsive. When Robert Perotti, Sr., Senior
Vice President of Goodway, was advised on March 23, 1992 that his
company's bid had been rejected, he immediately offered to submit
and subsequently sent to GPO an executed certificate of
integrity. Affidavit of Robert Perotti, Sr., attached to
plaintiff's Application for Temporary Restraining Order and
Certificate of Counsel. The GPO, however, did not accept the late
certificate nor did it reconsider Goodway's bid. On April 1,
1992, thirty-four responsive vendors were awarded contracts.
DISCUSSION
Because defendants' motion relies in part on matters outside of
the pleadings, the Court will treat the motion as one for summary
judgment. See Fed. R. Civ. P. 12(b). Summary judgment is
appropriate when there is "no genuine issue as to any material
fact and . . . the moving party is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c). "The inquiry performed is
the threshold inquiry of determining whether there is a need for
trial--whether, in other words, there are any genuine issues that
properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In considering a
motion for summary judgment, the "evidence of the non-movant is
to be believed, and all justifiable inferences are to be drawn in
his favor." Id. at 255. At the same time, however, Rule 56
places a burden on the nonmoving party to "go beyond the
pleadings and by her own affidavits, or by the 'depositions,
answers to interrogatories, and admissions on file,' designate
'specific facts showing that there is a genuine issue for
trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Goodway claims that GPO's refusal to allow it to file a
certificate of integrity on March 23, 1992 violates the
Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq.,
and the Competition in Contracting Act ("CICA"), 10 U.S.C. §
2304(a)(1)(A). More specifically, Goodway claims that GPO's
rejection of the untimely submission of a certificate of
integrity was arbitrary and capricious and hindered full and open
competition for government contracts. Defendants assert that the
APA and CICA do not apply to legislative agencies such as GPO.
Alternatively, they argue that GPO's refusal was required by
agency regulations and was reasonable, and that GPO's actions
therefore were in accordance with the APA and CICA.
Because GPO's rejection of Goodway's bid was in accordance with
the requirements of the APA, whether the APA applies to GPO
contract procurements need not be resolved in this case. To
successfully challenge an agency's procurement decision under the
APA, a plaintiff must meet the heavy burden of establishing
"either that (1) the procurement official's decisions on matters
committed primarily to his own discretion had no rational basis,
or (2) the procurement procedure involved a clear and prejudicial
violation of applicable statutes or regulations." Kentron Hawaii,
Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973) (citations
omitted).
The GPO's decision to reject Goodway's bid as nonresponsive was
compelled by GPO regulations and, therefore, was not within the
discretion of the contracting officer. Because the contract
solicitation at issue involved a sealed bid procurement exceeding
a value of $ 100,000, GPO's Procurement Instruction 318.1 P 9(b)
(3)(i) required that a signed certification be submitted by each
bidder with its bid submission. Part (C) of that subsection
declares that "Failure of a bidder to submit the signed
certificate with its bid shall render the bid nonresponsive." All
of the bidders for the contract at issue had ample notice of the
restrictions set forth in Instruction 318.1. The first page of
GPO's solicitation for the contract at issue clearly informed
them that the bid and the certification must be submitted
contemporaneously. 2 In addition, GPO had sent letters in 1989 to
many of its routine contractors, including Goodway, stating that
a certificate of integrity "must be submitted with your bid [for
a contract award which exceeds $ 100,000], or you will be
declared ineligible for award." Defendants' motion, Attachment B
(emphasis in original).
The regulation requiring contemporaneous submission of a
certificate with a bid is not arbitrary, capricious, or unfair.
To the contrary, the regulation is necessary to protect the
integrity of the sealed bidding process. According to the firm
bid rule, applicable to contracts such as the one at issue, a
sealed bid is binding on the offeror when it is accepted by the
agency. The GPO, however, is prohibited from awarding a contract
to a bidder prior to receipt of a certificate of procurement
integrity. See Federal Procurement Policy Act Amendments of 1988,
codified at 41 U.S.C. § 423(e). Consequently, if bidders could
delay submission of certificates of integrity until after the
opening of the bids and until after the agency determined the
awardee, and if the winning bidder subsequently determined that
its bid was imprudent, the bidder could avoid performance by
refusing to submit its certificate. As the United States Claims
Court ruled in a case with substantially similar facts, it is not
unreasonable for an agency to foreclose a bidder's ability to
renege on its bid by failing to submit a certificate, nor is it
unreasonable to desire that an agency be able to execute a
contract upon determination of the low bid without the necessity
of waiting for further documentation. McMaster Construction, Inc.
v. United States, 23 Cl.Ct. 679, 686 (1991).
The fact that Goodway submitted previous certificates of
integrity is insufficient to cure its failure to submit
appropriate certification for the contract at issue. The
certificate of integrity is contract-specific; it attests that
the bidder has not violated relevant laws "during the conduct of
this procurement" and that each officer, employee, agent,
representative, and consultant of the bidder "who has
participated personally and substantially in the preparation or
submission of this offer" has not violated certain statutes or
regulations. Sample Certificate of Procurement Integrity,
attached to defendants' motion (emphasis added). Accordingly, any
previous certificates of integrity could not substitute for the
one which Goodway did not timely provide.
Plaintiff's claim that the contemporaneous requirement violates
CICA is rejected. Though it appears that defendants correctly
assert that CICA does not apply to legislative agencies such as
GPO, see 41 U.S.C. § 401, even if CICA did apply to the
procurement at issue, GPO's rejection of Goodway's bid as
nonresponsive would not violate the Act. While it is true that 10
U.S.C. § 2304(a)(1)(A) requires the head of an agency to "obtain
full and open competition through the use of competitive
procedures" in accordance with law, and although plaintiff
correctly represents that 41 U.S.C. § 403(7) defines "full and
open competition" to mean that "all responsible sources are
permitted to submit sealed bids or competitive proposals on [a]
procurement," Goodway was not "clearly and unlawfully excluded
from participation in the solicitation by rejection of it's [sic]
bid" as plaintiff alleges. Plaintiff's Application for a
Temporary Restraining Order at 4. To the contrary, and for
reasons stated above, Goodway's bid was lawfully rejected.
Plaintiff's bid would have been considered had it been
accompanied by a certificate of integrity, and the requirement
that certification be submitted with a bid was not onerous, as
Goodway's past compliance with the rule illustrates. Regardless
of whether the GPO desired Goodway on the list of available
service providers as Goodway claims, plaintiff failed to comply
with an enforceable rule. Rejection of its bid, therefore, was
not a violation of GPO's duty to obtain "full and open
competition" through the use of competitive procedures. However
promptly plaintiff moved to correct its failing and however harsh
this result, there is no avenue for exception.
CONCLUSION
Accordingly, for the reasons stated above, judgment will be
entered on the accompanying judgment page in favor of defendants
United States of America and United States Government Printing
Office and against plaintiff Goodway Graphics of Virginia, Inc.
IT IS SO ORDERED.
June 23, 1992
JOYCE HENS GREEN
United States District Judge
JUDGMENT - June 23, 1992, Filed
For reasons stated in the Memorandum Opinion issued this date,
judgment is entered in favor of defendants United States of
America and United States Government Printing Office and against
plaintiff Goodway Graphics of Virginia, Inc.
IT IS SO ORDERED.
June 23, 1992
JOYCE HENS GREEN
United States District Judge
_______________
1 See page 31 of Attachment A to defendants' motion.
2 Page 1 of the solicitation read:
SEE MANDATORY PROCUREMENT INTEGRITY REQUIREMENTS ATTACHED. For
purposes of the Requirement for Certificate of Procurement
Integrity, the total value of all orders is estimated to exceed $
100,000 and an executed certificate of procurement integrity is
required from all bidders with bid submission.
Plaintiff's complaint, Exhibit A (emphasis added).