Ameron, Inc. v. U.S. Army Corps of Engineers

787 F.2d 875
CourtCourt of Appeals for the Third Circuit
DecidedMarch 27, 1986
DocketNos. 85-5226, 85-5377
StatusPublished
Cited by14 cases

This text of 787 F.2d 875 (Ameron, Inc. v. U.S. Army Corps of Engineers) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ameron, Inc. v. U.S. Army Corps of Engineers, 787 F.2d 875 (3d Cir. 1986).

Opinions

OPINION OF THE COURT

GARTH, Circuit Judge:

■, This appeal presents, in a rather prosaic ¡Setting, a problem of profound constitutional significance concerning the division of power among the three branches of our federal government. At issue is the constitutionality of the automatic stay provisions of the Competition in Contracting Act .(CICA), Pub.L. No. 98-369, Subtitle D, 98 -Stat. 1199-1201, codified at 31 U.S.C.A. § 3553 et seq. (West Supp.1985). The United States Army Corps of Engineers and the other executive department defendants [hereinafter referred to collectively as the Army] appeal from a decision of the district court declaring the CICA stay provisions to be constitutional and ordering broad injunctive relief to plaintiff Ameron and the Congressional intervenors.

We now affirm the district court’s holding that the Comptroller General, as head of the General Accounting Office, is an independent official with duties involving both the legislative and executive branches of the United States government. As such, he may constitutionally exercise the powers conferred upon him by CICA. We also conclude, however, that the injunction granted by the district court was broader than necessary to grant the full relief to which plaintiffs were entitled, and therefore modify the injunction as specified below.

I.

A.

Congress created the General Accounting Office (GAO) and the Office of the Comptroller General by the Budget and Accounting Act of 1921, Pub.L. No. 13, § 301, 42 Stat. 20, 23. The 1921 Act was the culmination of Congressional efforts over many years to provide accountability for the federal government’s finances. The original Comptroller of the Treasury was an executive officer within the Treasury Department. 1 Stat. 65-66 (1789). The Comptroller continued as an executive officer with executive functions under subsequent enactments. See, e.g., Act of March 3, 1817, 3 Stat. 366; Dockery Act of 1894, 28 Stat. 162, 205.

When they were created to replace the Comptroller of Treasury, the GAO and the Comptroller General were initially empowered to report to Congress and assist Congress in the budget process. 1921 Act, §§ 304-312, 42 Stat. 23-26. Even in 1921, however, the Comptroller General, even though created in part to assist Congress, was assigned duties that were not traditionally “legislative”: auditing and settling public accounts, countersigning treasury warrants, prescribing’“the forms of keeping and rendering all public accounts”— these and other executive duties were given to the GAO and the Comptroller General by the 1921 Act, which also abolished the Comptroller of the Treasury. §§ 301, 304, 310. The parties do not dispute that the Comptroller General continues to perform significant duties that are both “legislative” and “non-legislative,” i.e., executive, in nature.

As an adjunct of its account-settling role, the Comptroller General over the years began to hear protests from disappointed bidders on government contracts. See Wheelabrator Corp. v. Chafee, 455 F.2d 1306, 1313 (D.C.Cir.1971). This role was formalized by the Competition in Contracting Act (CICA) in 1984. 31 U.S.C.A. §§ 3551-3556 (West Supp.1985). CICA was enacted to remedy a major loophole in the long-standing GAO review procedure: by the time the GAO reviewed most bid protests, the protests had become moot because either the contract had been let or the contractor was engaged in performing under the contract. While GAO regulations provided for a stay of either the granting or performance of [879]*879the contract in some circumstances, see Merriam v. Kunzig, 476 F.2d 1233, 1236 & n. 1 (3d Cir.1973), this stay was easily overridden by the contracting agency involved. The result was that most procurements became faits accomplis before they could be reviewed. This situation was identified by Congress as a contributing factor to the crisis of waste in federal procurement. In particular, Congress recognized as a problem that of $168 billion in government contracts awarded in fiscal year 1983, only about one-third, $54 billion, was awarded on a competitive basis. Competition in Contracting Act of 1984: H.R.Rep. No. 1157, 98th Cong., 2d Sess. 12 (1984). In enacting CICA, Congress attempted to provide effective review of bid challenges, and in the process to encourage competition in contracting. See Opinion of District Court, 607 F.Supp. 962, 973-74 (D.N.J.1985).

In relevant part, CICA permits a potential or actual bidder who disputes the terms or awarding of a government contract to challenge the procurement or the award of the contract by filing a protest with the Comptroller General. Upon receiving the protest, the Comptroller General must “within one working day” notify the agency involved, which must then make a report on the challenged contract. 31 U.S.C. § 3553(b)(1).

The filing of a protest freezes, or stays, the awarding of the contract or any action under it until either the Comptroller General makes a decision on the protest or the agency head certifies in writing that “urgent and compelling circumstances which significantly affect interests of the United States” require that the contract be awarded, 31 U.S.C. § 3553(c)(2), or that “the best interests of the United States” require that performance proceed under a contract already awarded by the agency. 31 U.S.C. § 3553(d)(2).

The Act requires the Comptroller General to issue a final decision on the protest within 90 working days unless he determines in writing that the circumstances of the protest require more time. 31 U.S.C. § 3554(a)(1). The Comptroller General may also exercise an “express option” to expedite review of certain cases within 45 calendar days, 31 U.S.C. § 3554(a)(2), and may dismiss patently frivolous or meritless claims on a summary basis. 31 U.S.C. § 3554(a)(3).

The power of the Comptroller General in rendering his decision is limited to a recommendation that the agency, inter alia, terminate or rebid the contract, issue a new solicitation, refrain from exercising options under a contract, or award a different contract consistent with law. 31 U.S.C. § 3554(b)(1). The only affirmative power provided to the Comptroller General is to award a prevailing protester its bid and proposal preparation costs, as well as its costs and attorneys’ fees in filing and pursuing the bid protest. 31 U.S.C. § 3554(c)(1).

President Reagan signed CICA into law as part of the omnibus Deficit Reduction Act of 1984, but he declared the automatic stay provision unconstitutional upon the advice of the Attorney General and ordered the executive department not to observe it.

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Bluebook (online)
787 F.2d 875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ameron-inc-v-us-army-corps-of-engineers-ca3-1986.