Authority of the General Services Board of Contract Appeals to Order Reimbursement of the Permanent Judgment Fund for Awards of Bid Protest Costs

Opinion

Authority of the General Services Board of Contract Appeals to Order Reimbursement of the Permanent Judgment Fund for Awards of Bid Protest Costs

T h e G e n e ra l S e rv ic e s B o a rd o f C o n tra c t A p p e a ls d o e s n o t h a v e th e a u th o rity to o r d e r th e D e p a rtm e n t o f th e A rm y to re im b u rse th e p e rm a n e n t in d e fin ite ju d g m e n t fu n d f o r a B o a rd a w a rd o f b id p ro te s t c o s ts u n d e r th e C o m p e titio n in C o n tra c tin g A ct.

May 29, 1990

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l D epa rtm en t o f t h e A rm y

This memorandum responds to your office’s request for the opinion of this Office on the authority of the General Services Board of Contract Ap­ peals (“GSBCA” or the “Board”) to order the Department of the Army (“Army”) to reimburse the permanent indefinite judgment fund, 31 U.S.C. § 1304, for bid protest costs under the Competition in Contracting Act (“CICA”), Pub. L. No. 98-369, 98 Stat. 1175, 1182-84 (1984) (codified in relevant part at 40 U.S.C. § 759(f)(5)). See Letter to William P. Barr, Assis­ tant Attorney General, Office of Legal Counsel, from Colonel William A. Aileo, Chief, Litigation Division, Office of the Judge Advocate General, United States Department of the Army (Jan. 30, 1990) (the “Army Letter”). We conclude that the Board does not have authority to order the Army to reimburse the judgment fund.

I. Background

Your inquiry was prompted by two GSBCA cases, Julie Research Labora­ tories, Inc., 1989-1 B.C.A (CCH)1 21,213 at 107,020 (Sept. 23, 1988), appeal dismissed. United States v. Julie Research Laboratories, Inc., 881 F.2d 1067 (Fed. Cir. 1989), and Bedford Computer Corp., 1990-1 B.C.A (CCH) f 22,377 (Oct. 13, 1989). In both these cases, the Board awarded bid protest costs against the Army under section 2713 of CICA, 40 U.S.C. § 759(0(5). The Army disputes the Board’s conclusion in the Julie Research Labora­ tories and Bedford Computer cases. It maintains that the Board has exceeded its authority under 40 U.S.C. § 759(f)(6)(C) by requiring it to reimburse the

111 judgm ent fund. Moreover, components of the federal government other than the Army, including the Department of the Air Force, the National Transpor­ tation Safety Board, and the General Accounting Office, are interested in the resolution of the issue. See Army Letter at l . 1 Section 759(f)(5)(C) provides that, when the Board makes a determina­ tion that a challenged agency action violates a statute or regulation or the conditions of any delegation of procurement authority issued pursuant to the section, the Board

may, in accordance with section 1304 of title 31, further de­ clare an appropriate interested party to be entitled to the costs of — (i) filing and pursuing the protest, including reason— able attorney’s fees, and (ii) bid and proposal preparation.

Section 759(f)(5)(C) explicitly requires that the Board’s awards of bid protest costs be made “in accordance with” 31 U.S.C. § 1304, the Automatic Payment of Judgment Act. That act created the permanent judgment fund. Section 1304 thus appropriates necessary amounts to pay final judgments, awards, settlements, and interest and costs specified in the judgments when the following three conditions are satisfied:

(1) payment is not otherwise provided for; (2) payment is certified by the Comptroller General; and (3) the judgment, award, or settlement is payable . . . under a decision of a board of contract appeals.

Despite section 759(f)(5)(C)’s express reference to payments from the judgm ent fund, the Board in both Julie Research Laboratories and Bedford C om puter cases required the Army to reimburse the permanent judgment fund for the award, thus effectively requiring the Army to pay the costs from its procurement appropriation. In Julie Research Laboratories ,2 the Board supported its decision to require the Army to reimburse the judgment fund as follows:

1 A re c e n t R ep o rt to C ongress fro m the G eneral A cco u n ting O ffice has said that “there has been som e c o n fu s io n in m a k in g adm inistrative an d policy d ecisio n s” as a resu lt o f d isagreem ents o v e r the re q u ire ­ m e n ts o f th e law , an d h as called fo r co rrectiv e legislation. G eneral A ccounting O ffice, ADP B id Pro­ tests, R e p o rt to th e C h airm an , S u b co m m ittee o n Federal Services, Post O ffice, and C ivil S ervice, C o m ­ m itte e on G o v e rn m e n ta l A ffairs, U .S . S enate, at 33 (M arch, 1990) (“GAO Report"). 1 In Julie Research Laboratories, th e A rm y ’s M issile C o m m and had issued a solicitatio n fo r a m u lti­ y e a r p ro c u re m e n t o f autom atic d ata p ro cessin g eq u ip m en t ( “A D P E ” ). Julie R esearch L a boratories p ro ­ te ste d th e so lic ita tio n a n d prevailed o n a sig n ifican t issu e. It then applied for $25,754.88 in costs. T he B o ard a w ard ed it $20,986.13.

112 Because this monetary award is inextricably connected with the true economic cost of the procurement, it is appropriate that the fund be reimbursed by the agency whose appropria­ tions were used for the contract out of available funds or by obtaining additional appropriations for such purposes. Such reimbursement,is consistent with the purpose underlying 41 U.S.C. § 612 (1982), see S. Rep. No. 1118, 95th Cong., 2d Sess. 33 (1978), and with our responsibility to “accord due weight to the policies of [the Brooks Act, [Pub. L. No. 89- 306, 79 Stat. 1127 (1965)]] and the goals of economic and efficient procurement . . . .” 40 U.S.C. § 759(h)(5)(A) (Supp. Ill 1985) (to be recodified at 40 U.S.C. § 759(f)(6)(C). . . . Accordingly, we revise the delegation of authority to require the agency to make the reim bursem ent. 40 U .S.C . § 759(h)(5)(B) (Supp. Ill 1985).

Julie Research Labs., Inc. at 89-1 B.C.A 1 21,213 at 107,021. Administra­ tive Judge Borwick dissented in part. He stated:

[A]bsent a statutory requirement for reimbursement of the judgment fund in the Brooks Act, requiring agencies to reim ­ burse the judgment fund is not appropriate. The majority relies on that portion of the Brooks Act which empowers the Board to order any additional relief which it is authorized to provide under statute or regulation. 40 U.S.C. § 759(h)(6)(C) (Supp. Ill 1985) (to be recodified at 40 U.S.C. § 759(f)(6)(C)). I do not believe that our broad authority to grant relief applies to this matter of fiscal and accounting policy which is purely a matter of statutory direction. There are sound policy rea­ sons for the result reached by the majority as the reimbursement. However, if Congress had wished to adopt that policy, it would have specifically done so, as it did in the CDA [Contract Dis­ putes Act, 41 U.S.C. §§ 609-613, Pub. L. No. 95-563, 92 Stat. 2388 (1978)]. As Congress has not, I would not revise the DPA [delegation of procurement authority] to require such re­ imbursement.

Id. The Army then appealed this judgment to the Federal Circuit, which dis­ m isse d the appeal on the ground th at the d isp u te w as p u re ly intragovemmental:

113 [T]he government’s obligation to pay Julie has been deter­ mined and Julie has received everything it could recover by receiving a decision on the merits in its favor which has not been appealed. A decision by this court o f this intra-govern­ ment dispute “cannot affect the rights of [the] litigants," North Carolina v. Rice, 404 U.S. [244,] at 246 [(1971)], and we must, therefore, conclude that the issue presented is not justi­ ciable.

United States v. Julie Research Labs., Inc., 881 F.2d 1067, 1068 (Fed. Cir. 1989). In Bedford Computer, the Board, citing Julie Research Laboratories, also ordered the Army to reimburse the judgment fund in the amount of its award o f costs.3 Bedford Computer, 1990-1 B.C.A 1 22,377 at 112,434 (Oct. 13, 1989). Concurring separately in Bedford Computer, Administrative Judge Hendley agreed that the judgment fund should be reimbursed. He added that in future settlements of protest costs, the respondent agency should pay directly “in accordance with the Federal Acquisition Regulation (FAR).” Id. Judge Hendley wrote:

So long as agency funds are available, to seek to have the payment made from the judgment fund and then reimburse that fund, is economically inane and constitutes a pointless exercise in unnecessary paper shuffling. That an agency should pay such costs directly, and not through the conduit of the judgm ent fund, is clearly directed by FAR 33.105(0 [48 C.F.R. § 33.105(0 (1988)] which states:

(0(1) The GSBCA may declare an appropriate interested party to be entitled to the cost of — (1) Filing and pursuing the protest, including reasonable attorney’s fees; and (ii) Bid and proposal preparation. (2) Costs awarded under (0(1) above shall be paid promptly by the agency out of funds available to or fo r the use o f [4] the acquisition of supplies or services.

3 In B edford C om puter th e Army c o n c e d e d that it h a d failed to c o m p ly w ith c e rta in p ro c u re m e n t s ta tu te s a n d re g u la tio n s . T h e Army a n d the p ro te ste r d e c id e d to s e ttle the p ro test. T he B o ard found th a t th e p ro te s to r h as p re v a ile d on a s ig n ific a n t issu e, a n d aw ard ed it $ 75,000 in p ro te st co sts. ‘ P e rh a p s sh o u ld read : “o r.”

114 Although the FAR is couched in terms of payment of costs awarded by the Board in a case where those costs were con­ tested, it would be sheer sophistry to contend that in those instances where the parties have settled their dispute, those same costs, reflected in their settlement, should not be paid from the agency’s funds as well.

Id. at 112,434-35.

II. Analysis

We conclude that a Board award of costs under CICA is payable out of the judgment fund, and that the Board does not have the authority to order an agency to reimburse the judgment fund for having paid such an award.3 1. The only substantive question concerning the availability of the judg­ ment fund to pay bid protest costs in the Julie Research Laboratories and Bedford Computer cases is whether the first of section 1304(a)(l)’s three conditions is met,6 i.e., whether payment of a Board award is “otherwise provided for” from some other appropriation. As a general rule, “agency appropriations are not available to pay judgments. Exceptions are recog­ nized only where the appropriations or special funds for the activities out of which the cause of action arose expressly include provisions for the payment of judgments, or where other express provisions of law include such author­ ity.” GAO Principles at 12-3. We are aware of no statutory authority — and none was cited in Julie Research Laboratories or Bedford Computer — that would require the Army either to pay Board awards of bid protest costs out of its own appropriations, or to reimburse the judgment fund for having paid such awards. There is no provision in either 40 U.S.C. § 759 or in 31 U.S.C. § 1304 which requires a procuring agency to reimburse the judgment fund when bid protest costs are ’ T his dispute b etw een the A rm y and th e Board, as the Federal C ircu it held, is purely a d isag ree m e n t w ithin the G o v ern m en t and in no w ay affects the rights o r rem edies o f parties (such as Julie R esearch L aboratories, Inc.) outside the executive branch. C onsequently, as the court held, the d isp u te w as not ju stic ia b le un d er A rticle III. See United States v. Julie Research Labs., Inc., 881 F.2d at 1068. B ecause the d ispute arises o n ly betw een tw o co m ponents o f the executive branch, this O ffice has ju risd ic tio n to resolve it. See § 1-401 o f Exec. O rder No. 12146, 3 C.F.R. 4 0 9 ,4 1 1 (1980), as am ended by E x ec. O rd e r No. 12608, 3 C.F.R. 245 (1 9 8 8 ) (A ttorney G eneral has authority to resolve interagency d isp u te s). T h e A ttorney G eneral h a s d eleg ated to this O ffice his au th o rity to pro v id e legal o pinions and a d v ice to the P resident an d heads o f the E xecutive and m ilitary departm ents. See 28 U .S.C . § 5 1 0 (A ttorney G e n e ra l’s a u th o rity to deleg ate); id. § § 5 1 1 -5 1 3 (d u ties o f A ttorney G eneral); 28 C .F R . § 0.25 (m atters d e le g ate d to O L C ); see generally M em orandum fo r H elen S. L essin, D irector, Federal Legal C ouncil, from L eon U lm an, D eputy A ssistan t A ttorney G en eral, O ffice o f L egal C ounsel, Re- OLC Policies Regarding Issuance and Release o f Opinions (Sept. 10, 1980). ‘ T h e second statu to ry requirem ent — the necessity for certificatio n by the C om p tro ller G en eral — im poses no su b stan tiv e co n strain ts on access to the ju d g m e n t fund: the C om p tro ller G e n eral’s c e rtific a ­ tio n follow s from satisfactio n o f the o th er tw o requirem ents and co m p letion o f the necessary p a perw ork.

C ontinued

115 awarded against it.7 We recognize that an award to a contractor by an agency board o f contract appeals under the Contract Disputes Act (“CDA”), Pub. L. No. 95-563, 92 Stat. 2388 (1978) (codified at 41 U.S.C. §§ 609-613), when paid by the judgment fund, must thereafter be reimbursed by the procuring agency whose appropriations were used for the contract at issue. See 41 U.S.C. § 612(c). But CDA is inapplicable here because the awards at issue were not made under CDA, but under CICA, a wholly distinct enactment.8 Hence, we conclude, Congress intended that Board awards of these bid pro­ test costs be paid out of the judgment fund, rather than being statutorily subject to reimbursement.9 2. The remaining question is whether the Board exceeded its authority in ordering the Army to reimburse the judgment fund for having paid the awards. We conclude that the Board has exceeded its authority. In Julie Research Laboratories, the Board majority relied on 40 U.S.C. § 759(f)(6)(C), which states:

[N]othing contained in this subsection shall affect the board’s power to order any additional relief which it is authorized to provide under any statute or regulation.

For two independent reasons, this provision does not, in our opinion, autho­ rize the Board to require a procuring agency to reimburse the judgment fund for the payment of protest cost awards. First, an order requiring the agency to reimburse the judgment fund would provide relief a t all — still less “additional re lie f’ — to the bid protester, since the protester’s award has already been paid in full by the judgment fund. From the protester’s point of view, it makes no difference whether the agency’s procurement appropriation reimburses the judgment fund after the award is paid: the amount o f the award is exactly the same. Thus, requiring that the amount of the award be taken from agency procurement appropriations

‘ (....c o n tin u e d ) See Availability o f the Judgment F und fo r the Payment o f Judgments or Settlements in Suits Brought A g a in st the Com m odity Credit Corporation Under the Federal Tort Claims Act, 13 Op. O .L .C . 362, 363- 6 4 & n .l (1 9 8 9 ); accord G eneral A cco u n tin g O ffice, Principles o f Federal Appropriations Law, at 12-2 (1 9 8 2 ) ( “ G AO P rinciples"). The th ird req u irem en t — that the aw ard o r settlem ent be pay ab le “ under a d ecisio n o f a board o f contract appeals" — is m anifestly satisfied by aw ards issued by the Board. ’ S e c tio n 1304(c) re fe rs to a situ atio n in w hich the ju d g m e n t fu n d is a vailable to pay a ju d g m e n t or c o m p ro m is e s ettlem e n t b u t must th e re a fte r be reim b u rsed . T he section is irrelevant here: it only c o n ­ c e rn s c a se s in w h ich th e ju dgm ent o r settlem en t “arises out o f an express o r im plied c o n tra c t” m ade by th e A rm y an d A ir F o rce Exchange S e rv ice, the N avy E xchanges, the M arine C orps E xchanges, the C o a s t G u a rd E x c h a n g e s, o r the E x ch an g e C ouncils o f the N ational A eronautics and Space A d m in istra ­ tio n . See P u b . L. N o. 9 1 -3 5 0 , 84 Stat. 4 4 9 (1 9 7 0 ) (codified at 31 U .S .C . § 1304(c)). ‘ C IC A , w h ic h g iv es th e Board a u th o rity o v er A D PE pro tests, w as not an am endm ent to C D A but to the B ro o k s A ct, Pub. L . N o. 89-306, 79 S ta t. 1127 (1 9 6 5 ) (co d ified at 4 0 U .S.C . § 7 5 9 (0 ). H ence the re im ­ b u rse m e n t re q u ire m e n t o f section 612 o f C D A does not apply to B oard aw ards under the B rooks A ct. ’ T h is O ffice re a ch e d a sim ilar co n clu sio n in Payment o f Attorney Fee Awards Against the United States U nder 28 U.S.C. § 2412(b), 7 Op. O .L .C . 180 (1 9 8 3 )(ju d gm ent fund available by statute to pay fee a w ard s). A ccord 6 3 C o m p . Gen. 260, 26 3 -6 4 & n.3 (1984) (c itin g R ose M em o).

116 and transferred to the permanent judgment fund is purely a matter of ac­ counting and fiscal policy, not a question of the scope of relief.10 Hence, 40 U.S.C. § 759(f)(6)(C) cannot provide authority for the Board to order the Army to reimburse the judgment fund for the cost of the award. Second, subsection 759(f)(6)(C) is not, as the Julie Research Laborato­ ries majority mistakenly implied, itself an affirmative grant of authority to the Board. The subsection merely states that nothing in it shall affect the Board’s power to order “additional relief’ which the Board is otherw ise empowered to provide. Thus, even on the assumption (which we have re­ jected) that requiring the procuring agency to reimburse the judgment fund could constitute “additional relief,” the Board would still need to be “autho­ rized to provide” such relief under some “statute or regulation” other than 40 U.S.C. § 759(f)(6)(C) itself. No other statute provides the needed authority. In Julie Research Labo­ ratories, 1989-1 B.C.A. f 21,213 at 107,021 (Sept. 23, 1988), the Board majority stated only that ordering reimbursement was “consistent with the purpose underlying 41 U.S.C. § 612” and with the Board’s responsibility under 40 U.S.C. § 759(f)(5)(A) to “accord due weight to the policies of [the Brooks Act] and the goals of economic and efficient procurement.” How­ ever, neither 41 U.S.C. § 612 nor 40 U.S.C. § 759(f)(5)(A) authorizes the Board to order reimbursement of the judgment fund." We recognize that, in Bedford Computer, the concurring opinion cited a regulatory source of authority. See id., 1990-1 B.C.A. U 22,377 at 112,435 (Hendley, A.J., concurring separately). The cited regulation, FAR 33.105(f)(2), 48 C.F.R. § 33.105(0(2) (1988), states that protest costs awarded by the Board “shall be paid promptly by the agency out of funds available to or for the use of the acquisition of supplies or services.” We understand,12 however, that this Federal Acquisition Regulation was not intended to mandate that Board awards of bid protest costs under the Brooks Act be paid from agency procurement appropriations rather than

>0It a p p ea rs that the d ecisio n o f the B oard m ajority in Julie Research Laboratories relied o n an u n d e r­ stan d in g o f sound acco u n tin g policy. It stated th at “ [b]ecause th is m onetary aw ard is in e x tric a b ly c o n n ec te d w ith the true econom ic c o st o f the p rocurem ent, it is app ro p riate th a t the [judgm ent] fu n d be reim b u rsed by the agency w hose ap p ro p riatio n s w ere used for the contract o u t o f a vailable funds o r by o b ta in in g additional ap p ro p riatio n s fo r such pu rp o ses.” Id., 1989-1 B.C.A . 1 21,213 at 107,021. H o w ­ ever, as the d issen t c o rrectly pointed out, “o ur broad authority to g ran t re lie f [does not] a p p l[y ] to this m atter o f fiscal and a cco u n tin g policy w hich is purely a m atter o f statutory d ire c tio n " Id. " A s ex p la in ed above, 41 U .S C. § 612 provides th at a m onetary aw ard to a c o n tra c to r by an ag en cy board o f c o n tract appeals in a CDA case m ust be reim bursed to the ju d g m e n t fund. N o co m p a ra b le p ro v isio n ex ists for Brooks Act cases. Rather, 4 0 U .S .C . § 7 5 9 (f)(5 )(C ) m erely states th a t the B oard m ay hold a bid p ro testo r to be en titled to protest costs to be paid “ in accordance w ith sec tio n 1304,” the ju d g m e n t fu n d statute. S ection 759(f)(5 )(A ) instructs the B oard to take account o f the policy o f the B rooks A c t and o f the g oals o f eco n o m ic and efficien t procurem ent w hen “ m aking a decision on the merits o f p ro te sts brought u n d e r this sectio n ” (em phasis added). T h at language does not authorize the B oard to d e c id e , after m aking its decision on the m erits, w h eth er paym ent for an aw ard o f protest c o sts is to c o m e from the ju d g m e n t fund or from agency appropriations. P e r telep h o n e co n v ersatio n with Mr. Jack M iller, D eputy A sso ciate G eneral C ounsel, G S A .

117 from the judgm ent fund.13 (Apparently, the draftsmen of the regulation over­ looked the fact that protests costs in CICA cases, unlike CDA cases, were to be paid out o f the judgment fund.) If the regulation were read to require agencies to pay such costs without any recourse to the judgment fund, we would find it invalid. The plain language of both the judgment fund statute, 31 U.S.C. § 1304, and of the Brooks Act provision that refers to it, 40 U.S.C. § 759(f)(5)(C), compels the conclusion that Board awards of bid protest cases are payable only out of the judgment fund, not out of the agency’s appropriation.14 Insofar as a regulation conflicts with the express provisions of a statute, the regulation is without effect. See, e.g., Dole v. U nited States Steelworkers o f Am., 494 U.S. 26, 42 & n.10 (1990); Board o f G overnors o f the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368 (1986); A rizona Grocery Co. v. Atchison T. & S.F. Ry. Co., 284 U.S. 370, 387 (1932); 3 Op. O.L.C. 457, 459 (1979). Accordingly, we conclude that the Board is not validly authorized by statute or by regulations to order reimbursement.

III. Conclusion

The General Services Board of Contract Appeals lacks the authority to order the reimbursement o f the judgment fund from a procuring agency’s appropriation where the judgment fund has paid a Board award o f bid pro­ test costs against the agency in a case decided under 40 U.S.C. § 759.

JOHN O. McGINNIS Deputy Assistant Attorney General Office o f Legal Counsel

' ’ F u rth er, n o n e o f th e th re e statutes — 4 0 U .S.C . § 4 8 6 (c); 10 U .S .C . ch. 137; 42 U .S .C . § 2453(c) — c ite d as a u th o ritie s fo r th e FAR re g u la tio n , see 50 Fed. R eg . 2270 (1985), ex p ressly authorizes the G e n ­ e ra l S e rv ic e s A d m in istra tio n to m an d ate, no tw ith stan d in g 4 0 U .S .C . § 759(f)(5)(C ), th a t p ay m en t o f G S B C A b id p ro te st c o st aw ards in B ro o k s A ct cases b e m ad e d irectly from ag en cy app ro p riatio n s instead o f fro m the ju d g m e n t fu n d . Nor does a n y o f those s tatu tes allow the B oard to o rd e r the ju d g m e n t fund to be re im b u rse d fro m a g en cy appropriations for h aving p aid such aw ards. 14 T h e G A O e x p re ssly agrees with th e co n clu sio n , o b serv in g that “ w hile C IC A requires th a t G SB C A p a y m e n ts b e m ade from th e Judgm ent Fund, the F ed eral A cquisition R egulation pro v id es th a t these p a y m e n ts m u st be m a d e fro m the a g e n c y ’s funds a v ailab le for the acquisition o f supplies o r services. The F ederal A cquisition Regulation is inconsistent with CICA in this regard." GAO Report at 62 (e m p h a sis a d d ed ).