A.L. Eastmond & Sons, Inc. v. District of Columbia Contract Appeals Board

795 A.2d 52, 2002 D.C. App. LEXIS 75, 2002 WL 499995
CourtDistrict of Columbia Court of Appeals
DecidedApril 4, 2002
DocketNo. 01-CV-342
StatusPublished
Cited by1 cases

This text of 795 A.2d 52 (A.L. Eastmond & Sons, Inc. v. District of Columbia Contract Appeals Board) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.L. Eastmond & Sons, Inc. v. District of Columbia Contract Appeals Board, 795 A.2d 52, 2002 D.C. App. LEXIS 75, 2002 WL 499995 (D.C. 2002).

Opinion

FARRELL, Associate Judge:

This appeal is from an order of the Superior Court (Gardner, J.) dismissing for lack of subject matter jurisdiction a petition for review of a decision by the District of Columbia Contract Appeals Board (the CAB). Although the government contract in question had been awarded by the District of Columbia Financial Responsibility and Management Assistance Authority (the Authority), a congres-sionally-established agency with unique contracting powers, the CAB purported to exercise jurisdiction over a protest by appellant challenging the bid solicitation process (conducted by the District of Columbia Public Schools) that took place before the Authority intervened and awarded the contract. When the CAB denied the protest on the merits, appellant petitioned for review in the Superior Court, see District of Columbia v. Group Ins. Admin., 633 A.2d 2, 14 (D.C.1993), resulting in the dismissal now appealed from.

We hold, in keeping with Judge Gardner’s decision, that the governing statutes deprived the Superior Court of jurisdiction to review the denial of a challenge to a contract awarded by the Authority. We hold further that, once the Authority intervened and awarded the contract, the CAB likewise had no jurisdiction to entertain a protest challenging the bid solicitation that preceded the award.

I.

On May 27, 1998, the District of Columbia Public Schools Office of Acquisitions and Contracts (DCPS) issued an invitation for bids to obtain boilers and boiler installation services for various public schools. Three bids were submitted, the lowest by [54]*54appellant Eastmond. The contracting officer determined, however, that the bids submitted by Eastmond and another bidder were nonresponsive because each had failed to submit a bid bond along with the bid. Accordingly, an announcement was made that the third bidder, Kewanee, would be the boiler supplier under the solicitation. On July 15, 1998, Eastmond filed a protest with the CAB contending that the bid solicitation was ambiguous as to whether a bid bond, rather than a performance bond (apparently to be filed later), was required. The effect of the protest was to stay any award of the contract by DCPS. See D.C.Code § 2-309.08(c)(l) (2001). On July 17, 1998, however, the Authority replaced DCPS as the contracting authority and awarded the contract to Kewanee. In the ensuing protest litigation, the District argued that because the CAB’s jurisdiction over bid protests derives from the District of Columbia Procurement Practices Act, and the Act is expressly inapplicable to the Authority, see D.C.Code § 2-301.04(a), the CAB lost jurisdiction to review the bid solicitation once the Authority made the award. The CAB, however, took the view that the Authority’s award action had not been intended to affect the “solicitation and award pro-testo” by Eastmond, but only subsequent “performance disputes” that might arise under the contract. Since the Authority had not purported to “tak[e] control over the procurement or eliminat[e] protest rights of bidders,” the CAB concluded that its “protest jurisdiction” over the bid solicitation and award was intact,1 and so proceeded to the merits of the protest. The Superior Court, by contrast, agreed with the District’s position and accordingly dismissed the petition for review.

II.

The CAB’s conclusion that it retained jurisdiction over the solicitation and award protest despite the intervention of the Authority was error.2 If sustained, it would mean that the CAB preserved jurisdiction to direct termination of a contract award by the Authority in the face of a statute, D.C.Code § 47-391.05(a) (2001), directing that any action against the Authority or arising out of the Act creating the Authority may be brought only in federal court. Moreover, it would conflict with the statute, D.C.Code § 2-301.04(a), which excludes the Authority from the reach of the District’s procurement law and hence the jurisdiction of the Board. The trial court therefore correctly ruled that a challenge to the process resulting in a contract award by the Authority may be brought only in the United States District Court, not before the CAB and (on review) in the Superior Court.

In April 1995, in response to the District’s financial crisis and perceived mismanagement by local government officials, Congress established the Authority, also popularly known as the Control Board, with broad powers of governance over the District.3 See District of Columbia Finan[55]*55cial Responsibility and Management Assistance Act of 1995, Pub.L. No. 104-8, 109 Stat. 97 (codified at D.C.Code § 47-391.01 et seq.) (FRMAA); see also Shook v. District of Columbia Fin. Responsibility & Mgmt. Assistance Auth., 328 U.S.App.D.C. 74, 83, 132 F.3d 775, 784 (1998). A particular concern of Congress was recurrent problems in the operation of the public school system. See FRMAA § 2(a)(2) (“[T]he District of Columbia government fails to provide its citizens with effective ... services in areas such as education”). Through the Authority, Congress intended to “ensure the appropriate and efficient delivery of services [to District residents] and,” among other things, to “moderniz[e the District’s] budget, ... procurement, ... and management systems.” FRMAA § 2(b)(4)(C)-(D).

One of the numerous powers given the Authority was to enter into contracts. See D.C.Code § 47-391.03(g) (“The Executive Director may enter into such contracts as the Executive Director considers appropriate (subject to the approval of the Chair) to carry out the Authority’s responsibilities under this Act.”). In 1996, Congress amended the FRMAA to provide the Authority with specific authority “to contract with a private entity (or entities) to carry out a program of school facility repair of public schools ... in consultation with the General Services Administration.” See Omnibus Consolidated Appropriations Act of 1997 § 5201, Pub.L. No. 104-208, 110 Stat. 3009 (1996).4 This contracting was to be “conducted in accordance with Federal procurement rules and regulations and guidelines or such guidelines as prescribed by the Authority.” Id. That provision was consistent with FRMAA § 102(c), codified at D.C.Code § 2-301.04(a), which expressly excludes the Authority from application of the District of Columbia’s procurement statute.5

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Bluebook (online)
795 A.2d 52, 2002 D.C. App. LEXIS 75, 2002 WL 499995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/al-eastmond-sons-inc-v-district-of-columbia-contract-appeals-board-dc-2002.