UNITED STATES CLAIMS COURT
INTERNATIONAL GRAPHICS,
Division of Moore Business Forms, Inc.,
Plaintiff
and
JEFFRIES BANKNOTE COMPANY,
Intervenor
v.
THE UNITED STATES,
Defendant
4 Cl. Ct. 515
Robert D. Wallick, Washington, D.C., attorney of record for
plaintiff. Steptoe & Johnson, of counsel.
William Dickey, Washington, D.C., attorney of record for
intervenor.
Stephen Bergenholtz, Washington, D.C., with whom was Acting
Assistant Attorney General Richard K. Williard, for defendant.
OPINION ON MOTIONS FOR SUMMARY JUDGMENT AND EQUITABLE RELIEF
GIBSON, Judge: This is a pre-award bid protest case filed in this
court by plaintiff, International Graphics, Division of Moore
Business Forms, Inc., and subsequently joined in by intervenor,
Jeffries Banknote Company. Declaratory and other equitable
relief is sought respecting a solicitation (IFB) issued by the
Government Printing Office (GPO) under Program 114-S relating to
the procurement requirements of the Commerce Business Daily
(CBD).
The issues presently before the court stem from Intervenor's
Motion for Summary Judgment filed on January 16, 1984, and
Plaintiff's Motion for Equitable Or Declaratory Relief Extending
The Time for Award and/or Accepting Bids filed on January 24,
1984. The latter motion, in effect, is plaintiff's opposition to
intervenor's motion. Defendant filed responses supportive of
intervenor's motion on January 17, 1984, and in opposition to
plaintiff's motion on January 30, 1984.
Oral argument was heard on the foregoing motions on January 31,
1984. After considering said pleadings, the arguments of the
respective parties, and available authorities on the issues
raised, this court is constrained, for the reasons hereinafter
delineated, to deny both intervenor's motion for summary judgment
and plaintiff's motion for equitable or declaratory relief.
Background
Subject solicitation was issued by the GPO on February 24, 1982,
for the publication of the CBD, a daily publication issued by the
Department of Commerce. For the past 33 years, the GPO has
printed this publication. One of the expressed purposes of the
solicitation was to make a comparative feasibility study of in-
house costs versus private bidders' costs to ascertain whether it
is more economical to retain the production in-house or to out-
source the publication of the CBD.
Bids were received from six bidders, including defendant itself,
on September 15, 1983, and opened on September 16, 1983. Three
of these bids were deemed non-responsive, leaving the bids of
plaintiff, defendant, and intervenor eligible for award.
Plaintiff and defendant submitted GPO Form 910 with their bids,
which contained a standard provision stating in pertinent part
that "the undersigned agrees, if this bid is accepted within
calendar days (60 calendar days unless a different period is
inserted by the offeror) from the date for receipt of bids
specified herein, to furnish any or all items upon which prices
are offered...." Neither plaintiff nor defendant inserted a
different period for bid acceptance in the blank space provided.
Intervenor did not submit Form 910, and the court is aware of no
other document, contained in intervenor's bid or otherwise, which
limits the period during which intervenor is bound to perform
under the contract if its bid is accepted. 1
Shortly after bid opening, on September 22, 1983, plaintiff filed
its application for a temporary restraining order and other
appropriate equitable relief.2 Intervenor filed its motion to
intervene on September 29, 1983. Before a hearing could be held
on the motion for preliminary injunction by plaintiff against
awarding of the contract (which hearing was then scheduled for
October 7, 1983), defendant abruptly cancelled the solicitation
on October 3, 1983. Following said cancellation, plaintiff and
intervenor filed a barrage of new motions seeking additional
declaratory relief and also to enjoin, inter alia, said
cancellation of the solicitation.3 On October 7, 1983, this court
granted the parties' motion(s) for equitable relief and issued a
preliminary injunction restraining defendant from awarding or
cancelling the solicitation under Program 114-S.4
Additionally, in an extensive opinion issued on December 23,
1983, this court also denied defendant's motions to dismiss and
for summary judgment filed on October 3 and 20, 1983; the latter
was denied for the reason that a genuine issue of material fact
exists respecting the question whether a compelling reason
obtained for the cancellation of the solicitation. This issue is
presently scheduled for trial on February 27, 1984.
Intervenor's Motion For Summary Judgment:
Pursuant to Rule 56(a), intervenor moves this court for summary
judgment declaring that:
(i) the bids of plaintiff and intervenor have expired;
(ii) more than 60 days have elapsed following the expiration
without either party having made efforts to extend or renew their
bids, and that the interest of the competitive bidding system
would not be served by permitting either party to renew its bid;
(iii) the parties (bidders) shall submit new bids as part of Step
II, or alternatively;
(iv) the solicitation be terminated; or
(v) if the court deems that bid renewals should be permitted,
both parties be given equal opportunity for equivalent renewals.
Plaintiff's Motion for Equitable or Declaratory Relief:
While not styled as such, plaintiff, in effect, filed a cross-
motion for a summary declaratory judgment respecting the "bid
acceptance period," coupled with a supporting motion for a
preliminary and permanent injunction. In short, plaintiff's
summary judgment motion prays for an order declaring that the
private bidders waived and/or constructively extended the "bid
acceptance period" by instituting and prosecuting this
litigation, supra; and that the "bid acceptance period" should by
such "tolling" be extended for a 60-day period from and after
entry of final judgment in this action.
In its concomitant motion for a preliminary and permanent
injunction, plaintiff seeks an appropriate order enjoining
defendant from taking an inconsistent position with the requested
declaratory relief, supra.5
Discussion
I.
Intervenor stressed at oral argument that the primary form of
relief it seeks by its present motion is a rebidding of Part II
of subject procurement. Such relief, if granted, would, of
course, be tantamount to a cancellation and resolicitation
because it requires the GPO to discard those bids that were
submitted and permit the three parties in this case to rebid,
with full knowledge of the bids of their competitors. In this
connection, the following principles governing cancellation of
solicitations, as set forth by the predecessor Court of Claims,
are instructive:
To make the system work without undue delays and without the
opening of the bids being used unfairly to obtain a disclosure of
what competitors are offering, it is necessary that the bids be
firm bids, backed by a guaranteed willingness to sign a contract
at the bid price. To have a set of bids discarded after they are
opened and each bidder has learned his competitor's price is a
serious matter, and it should not be permitted except for cogent
reasons. (Emphasis added.)
Massman v. United States, 102 Ct. Cl. 699, 718-19, 60 F.Supp. 635
(1945), quoted in International Graphics v. United States, No.
586-83C, slip op. at 14 (Cl. Ct. December 23, 1983). The same
policies and standards are to be found in the regulations
governing cancellation of solicitations by the GPO and other
government agencies. See GPO Printing Procurement Regulations, §
IV.2 (1980); 41 C.F.R. § 1-2.404-1(a) (1983); 32 C.F.R. §
2-404.1(a) (1983). Because the same negative consequences
essentially follow from a rebidding as from a cancellation after
bid opening, this court will embrace the standard governing the
latter as applicable to a determination as to whether to grant
the former.
Intervenor therefore should only be entitled to a rebidding if it
can persuasively establish cogent or compelling reasons for such
a procedure. Its position appears to be that the expiration of
the 60-day bid acceptance period, ipso facto, constitutes such a
compelling reason. Intervenor's primary reason for asserting
this position is that a "basic inequity" exists in subject
procurement as a result of the government being "bound to
proceed,"6 while the private bidders have the option to accept an
award or not, after the 60-day period has expired.7 Permitting
private bidders the option to choose whether to accept an award
after the 60-day period expires would in intervenor's view give
such bidders "two bites of the apple," a consequence it states is
to be avoided whenever possible in procurement law.8
While it is apparent that under the bid expiration terms of this
solicitation, the parties are subject to differing obligations,
such a circumstance under the present facts does not ipso facto
create a "basic inequity" against the government. As the parties
readily admitted at oral argument, the primary purpose for the
inclusion of a 60-day acceptance time limitation in bids is for
the protection of bidders. Without such a limitation, bidders
might be bound to accept a contract for a given price long after
conditions had changed that would render performance impossible
at that price. The 60-day (or any) time limitation is also not
devoid of benefits to the government, insofar as it assures
contracting officers that the awardee is legally bound to accept
if the award is made within the stipulated period. The court
therefore does not see how the government is prejudiced by a
system that provides the foregoing bilateral benefits, even if
the government is obliged to proceed unless it has a compelling
reason for cancellation. Intervenor has not supported its motion
with any statutory or regulatory citations or apposite case law,
and the court has failed to find any that are directly on point.
However, in this connection, the Comptroller General has stated
in a case with similar facts that:
... since the only right which is conferred by expiration of the
acceptance period is conferred upon the bidder, it follows that
the bidder may waive such right if, following expiration of the
acceptance period, he is still willing to accept an award on the
basis of the bid as submitted. (Emphasis added.)
46 Comp. Gen. 371, 372-73 (1966); accord, Government Contractors,
Inc., B-193548, Feb. 26, 1979.
It is also instructive to note that two Federal Procurement
Regulations show that as a matter of general procurement policy,
where the expiration of the bid acceptance period is imminent,
the contracting officers should request the several lowest
bidders to extend their bids, if they are aware of difficulties,
such as a bid protest, that would delay award beyond this period.
See 41 C.F.R. § 1-2.404-1(c); 41 C.F.R. § 1-2.407-8(b)(2)
(1983). Neither of these regulations is binding on the GPO,
however. International Graphics, slip. op. at 15.
Significantly, nowhere in the GPO's regulations or applicable
statutes is it stated, or even suggested, that if the bid
acceptance period expires and the contracting officer does not
timely request an extension, a rebidding should take place or the
solicitation should be cancelled. Additionally, it is nowhere
stated that the bid acceptance period expires in spite of the
institution of litigation, prior to the expiration of said
period, which extends beyond such period.
It appears that the only known decisions pertinent, although
contra, to intervenor's contentions to date have been rendered by
the General Accounting Office (GAO). Although it is well settled
that decisions of the GAO are not binding on this court (see
International Graphics, slip op. at 21), we believe that its
decisions pertaining to expiration of the bid acceptance period
are soundly reasoned, and therefore choose to follow them.
Premised on either of two theories espoused by the GAO (i.e.,
"waiver" and/or "tolling"), and, contrary to the contention of
intervenor, this court believes that the bids submitted by the
parties to this litigation have not expired.
First, the GAO has consistently accepted the theory that the
government should not be prevented from accepting a bid, once
expired, that has subsequently been revived through an actual or
constructive waiver by a bidder. Mission Van & Storage Co., Inc.,
54 Comp. Gen. 775, 778-79. Such a waiver will be deemed to have
occurred if, following expiration of the acceptance period, the
bidder is still willing to accept an award on the basis of the
bid as originally submitted. Cecile Industries, Inc.,
B-207277.3, 82-2 CPD 299 (September 30, 1982); Surplus Tire
Sales, 53 Comp. Gen. 737, 738 (1974). As long as the waiver has
not compromised the integrity of the competitive bidding system
and there is no demonstrated prejudice to other bidders, the GAO
has permitted the waiving bidder to accept an award. Government
Contractors, Inc., B-193548; 46 Comp. Gen. at 374.
It is clear that in the instant case, plaintiff and intervenor
waived their right to refuse to accept award after expiration of
the 60-day bid acceptance period. This is manifest from their
expressed statements at the January 31, 1984 hearing that they
presently wished to extend the acceptance term of their bids. It
is patently clear from the foregoing discussion pertaining to
intervenor's claim of "inequity" that waiver of the 60-day period
(or intervenor's bid acceptance period), on the facts here, would
not compromise the integrity of the competitive bidding system.
Moreover, intervenor has not even attempted to show that any
other bidders would be prejudiced by an extension of the bid
acceptance period. In view thereof, plaintiff and intervenor
must be deemed to have made a valid waiver of the respective
expiration dates of their bids.9
A second theory generally accepted by the GAO is that a party's
active participation in a bid protest, even without a formal
extension of the bid acceptance period, tolls that period until
the final disposition of the protest. S.J. Groves & Sons Company,
B-207172, November 9, 1982, 82-2 CPD 423; Secretary of the Navy,
52 Comp. Gen. 863, 864 (1973); Mission Van & Storage Co., Inc.,
53 Comp. Gen. at 779 (1974). Because bid protests are often
sufficiently protracted so as to prevent their resolution until
after the bid acceptance period has expired, this "tolling" rule
is necessary if the system of bid protests is to retain any
meaning. See B-154236, June 26, 1964. Although, as intervenor
contends, the Comptroller General has not applied an absolute
tolling rule in all circumstances, the only exception to the
foregoing general rule has been applied when the protestors have
placed the agency on notice that they no longer wish to extend
the term of their bids. S. J. Groves, 82-2 CPD 423; Secretary of
the Navy, 52 Comp. Gen. at 864.
In the instant case, both plaintiff and intervenor clearly have
taken a continuously active role as protestors of defendant's
actions on the implied contract. Moreover, neither party has
placed defendant on notice that it did not wish to extend the
term of its bid, as is evident from the parties' statements to
the contrary during the hearing on January 31, 1984. Hence, the
foregoing facts and circumstances compel no rational conclusion
other than that the bid expiration period has been "tolled" by
the affirmative actions of plaintiff and intervenor.
Although the court believes that both the "tolling" and "waiver"
theories justify permitting the present bids to stand, it is
important to note that the first theory only constitutes a
subcategory of the second. In other words, the institution of
litigation is only one of several forms of conduct by which the
waiver of a bid acceptance period can be accomplished.
Accordingly, the meaning of "tolling" here should be
distinguished from the meaning of the term in other contexts,
such as the statute of limitations. If the latter meaning were
ascribed to "tolling" in both situations, it would appear that
only those days that had elapsed before the protest was
registered would be deducted from the 60 days of the stipulated
acceptance period. The remainder of the period would then begin
to run only after final disposition of the bid protest, which if
appeals are made could conceivably occur a year or more after
bids are received. Under such an interpretation, bidders would
be bound to accept an award if made during the "new" acceptance
period, and could thus face considerable economic hardships, such
as uncompensated additional costs, not anticipated at the time of
submission of bids. Such a result does not appear consistent
with the purpose of the 60-day bid acceptance provisions.
The court therefore views the "waiver" theory as the more
rational and definitive theory that should establish the extended
time of the bid acceptance period. We hold, therefore, on these
facts, that the bid acceptance period shall remain open as long
as the parties, through litigation or otherwise, have actually or
constructively expressed their intent to accept the award under
Program 114-S. For the foregoing reasons, the court cannot grant
plaintiff's request for a declaratory judgment that "the time for
award and/or acceptance of bids... is extended until 60 days
after entry of final judgment... or... such other date as is
established by the Court."
II.
Intervenor has expressed an alternative preference for relief, if
his prayer for a rebidding is denied, in the form of cancellation
of subject solicitation. It is clear from the GPO Printing
Procurement Regulations, supra, that the government cannot cancel
a solicitation without a compelling reason, and, given such, this
court should require no less justification for an order to that
effect. It is also apparent from the discussion, supra, that the
passing of more than 60 days since the receipt of bids does not,
in the circumstances of the instant case, rise to the level of a
compelling reason that would mandate cancellation of subject
solicitation. This is particularly true when it is considered
that cancellation of subject solicitation has been preliminarily
enjoined by this court since October 7, 1983. Intervenor's
argument appears to suggest, as plaintiff contends, that this
court's order of October 7 could be nullified by the government's
simply neglecting to request an extension of the bid acceptance
period. The court finds such an argument untenable, simply
because it would effectively undermine the entire purpose of a
preliminary injunction -- to preserve the status quo until the
court can decide the case on the merits. See Washington
Metropolitan Area Transit Commission v. Holiday Tours, 559 F.2d
841, 844 (D.C. Cir. 1977).
III.
Intervenor's third request for relief essentially appears to ask
that in the event bid renewals are allowed, a declaratory
judgment be issued, stating that both plaintiff and intervenor
must "be given equal opportunities [by defendant] for equivalent
renewals." The jurisdictional ground for this request is
presumably 28 U.S.C. § 1491(a)(3), which permits this court "to
grant declaratory judgments and such equitable and extraordinary
relief as it deems proper,...." This court's jurisdiction to
enter such declaratory and equitable relief was intended to be
exercised "only in truly extraordinary circumstances,...." H.R.
Rep. No. 312, 97th Cong., 1st Sess. 44 (1981); CACI, Inc. -
Federal v. United States, 719 F.2d 1567, 1581 (Fed. Cir. 1983).
Because the court has ruled herein that the expiration of the bid
acceptance periods for plaintiff and intervenor has been waived,
no sufficiently extraordinary circumstances have obtained in the
instant case to warrant a declaratory judgment that would have
essentially the same effect.
Moreover, it is particularly significant to note here that
defendant has given no indication whatsoever that plaintiff and
intervenor would not be given equal opportunities for equivalent
renewals of their bids. The long-established standard governing
the issuance of declaratory judgments is "Whether the facts
alleged, under all the circumstances, show that there is a
substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment." Maryland Casualty Co. v.
Pacific Coal and Oil Co., 312 U.S. 270, 273 (1941) (emphasis
added). Because the circumstances of this case indicate that
intervenor's claim is based on nothing more than "fear,
speculation or concern over a possible challenge to a party" (see
Grove Press, Inc. v. Blackwell, 308 F.Supp. 361, 375 (E.D. Mich.
1969)), rather than a substantial controversy with defendant,
intervenor cannot be granted the declaratory relief it seeks.
Similar considerations, supra, dictate that plaintiff's remaining
claims for declaratory relief be denied. Its request that the
court enter an order declaring that the parties waived or
extended their bids appears in substance to be no more than an
opposition to intervenor's motion for summary judgment, which is
herein being denied for the reasons previously stated, including
plaintiff's. Additionally, plaintiff's alternative request that
the bid acceptance period be deemed extended until a date agreed
to by the parties in writing need not be granted because the bid
acceptance period can be extended by a unilateral waiver by the
respective bidders.
The injunctive relief sought by plaintiff appears equally
unnecessary to this court. For the reasons discussed, supra, if
plaintiff can carry its burden and prevail on the merits in this
action and subject solicitation is formally restored, the GPO
would be violating its own regulations if it then cancelled the
solicitation solely on the ground that the bid acceptance period
had expired. Because defendant has not indicated any intent to
violate its own regulations in the manner suggested by plaintiff,
there has been no showing of imminent irreparable harm to
plaintiff. "Injunctions... will not issue to prevent injuries
neither extant nor presently threatened, but only merely
'feared'." Exxon Corp. v. Federal Trade Commission, 589 F.2d 582,
594 (D.C. Cir. 1978); citing Connecticut v. Massachusetts, 282
U.S. 660 (1931).
Accordingly, IT IS HEREBY ORDERED that intervenor's and
plaintiff's motions for summary judgment and equitable relief,
respectively, are DENIED.
February 8, 1984
_______________
1 Plaintiff contends in its Motion for Summary Declaratory
Judgment, filed October 25, 1983, that intervenor's bid was non-
responsive because, inter alia, intervenor "could decide after
opening not to accept award." The court reserves judgment on the
correctness of this contention until it disposes of said motion,
which is currently pending.
2 Plaintiff's motion for a TRO was denied that day, for
appropriate reasons, as moot.
3 As of this opinion, approximately 24 motions have been filed
in this case, exclusive of the multiple oppositions and responses
with respect to same.
4 Prior to the cancellation of the solicitation, intervenor
sided with defendant on the award issue; however, following the
cancellation it sided with plaintiff that defendant had no
rational justification for cancelling the solicitation. For
purposes of its summary judgment motion presently before the
court, intervenor now apparently sides with defendant, as will
appear hereinafter.
5 Defendant's responses to intervenor's and plaintiff's motions
state the government's general agreement with the contentions of
intervenor. Additionally, in its response to plaintiff's motion,
defendant also contends that this court lacks jurisdiction to
grant the relief plaintiff seeks. Because we view this latter
contention as directed towards the ultimate remedy sought by
plaintiff in this case, rather than the remedy sought by either
plaintiff's or intervenor's motions presently before the court,
we decline to pass upon said contention at this time.
6 Although intervenor does not specify why the government "seems
bound to proceed," this contention appears to stem either from
the fact that the GPO is presently enjoined from cancelling the
solicitation, or from the provision in the GPO regulations,
supra, preventing cancellation after bid opening without a
compelling reason.
7 This is an open question as to intervenor because its bid did
not contain a 60-day bid acceptance period or any other expressed
acceptance limitation.
8 Intervenor thus appears to have placed itself in the peculiar
position of claiming that an "inequity" exists to the prejudice
of the government and to the benefit of plaintiff and itself, and
therefore seeks redress to the benefit of the government and
ostensibly to its own detriment.
9 In accordance with the general principles of contract law, the
court believes that whereas here, no specific provision is
included in an offer (i.e., intervenor's bid) which limits the
time period in which the offer remains open, the offer shall be
construed to be open for a reasonable period. See Restatement of
Contracts (Second) § 41 (1981); J. Calamari and J. Perillo,
Contracts 56 (1970). In intervenor's case, it is sufficient to
hold that a "reasonable" period for acceptance of its bid is
obviously in excess of 14 days, the interval between the time of
receipt of the bids and the time the period was tolled by
intervenor's entry into this lawsuit.