Cecile Industries, Inc. v. United States

31 Cont. Cas. Fed. 71,267, 2 Cl. Ct. 690, 1983 U.S. Claims LEXIS 1703
CourtUnited States Court of Claims
DecidedJune 21, 1983
DocketNo. 357-83C
StatusPublished
Cited by21 cases

This text of 31 Cont. Cas. Fed. 71,267 (Cecile Industries, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cecile Industries, Inc. v. United States, 31 Cont. Cas. Fed. 71,267, 2 Cl. Ct. 690, 1983 U.S. Claims LEXIS 1703 (cc 1983).

Opinion

OPINION

WIESE, Judge:

This matter came before the court on plaintiffs motion for injunctive and declaratory relief and the Government’s opposition thereto. Following the submission of briefs and oral argument, the court concluded that, while it had jurisdiction over the matter (a point which the Government had disputed), plaintiff, nevertheless, was not entitled to prevail. Accordingly, by order of June 10, 1983, the court directed dissolution of a previously-entered temporary restraining order and, at the same time, noted its final determinations on the several points in issue.

Though the controversy is now moot (plaintiff not having sought an appeal) we note in this opinion, the issuance of which was contemplated by the order of June 10, 1983, a change of view on the jurisdictional question. Upon further reflection, the court now concludes that the complaint should have been dismissed for lack of jurisdiction rather than for lack of merit.

FACTS

Plaintiff, Cecile Industries, Inc. (“Cecile”) is a small business corporation engaged in the manufacture of clothing and equipage items for various Government procurement agencies. On April 8, 1983 Cecile had submitted the lowest responsive offer to a solicitation that had been issued by the Defense Personnel Support Center (“DPSC” —a field arm of the Defense Logistics Agency) calling for the manufacture of approximately 300,000 pair of military “wet weather” trousers.

Following receipt of Cecile’s offer, on April 14,1983 the agency’s contracting officer, upon review of Cecile’s performance record and quality history, determined that the company was nonresponsible. Accordingly, he proposed to reject Cecile’s offer for failure “to apply tenacity and perseverance to do an acceptable job; for lack of a satisfactory record of integrity; and, for lack of capacity based on poor past performance.”

As required by regulation, this tentative determination and the findings in support of it, were referred to the Small Business Administration (“SBA”) for a final determination as to whether or not a so-called “Certificate of Competency” should be issued in favor of Cecile notwithstanding the contracting officer’s adverse findings.1 (The record indicates that during the immediately preceding six month period, SBA had concurred in the proposed rejection, by the same contracting agency, of at least two of the four bids that had been received from Cecile on various procurements in that time.)

Contemporaneous with the events herein described, there had been progressing within the procuring agency a contractor review action that culminated in the issuance to Cecile, on May 17,1983, of a formal “notice of proposed debarment.” This notice, issued in accordance with the authority set out in Part 6 of the General Provisions of the Defense Acquisition Regulations (“DAR”) (previously the Armed Services Procurement Regulations), advised Cecile of the facts and reasons upon which the proposed debarment was predicated. Further, the notice stated: “I [the Secretary’s desig-[692]*692nee] view Cecile’s willful failure to perform in accordance with the terms of Government contracts and Cecile’s history of failure to perform and of unsatisfactory performance of Government contracts as indications of Cecile’s lack of business integrity and further as indications of Ceeile’s lack of present responsibility to be a Government contractor, and as providing a basis for debarment pursuant to DAR § l-605.2(b).”

The notice went on to advise of the procedural rights available to Cecile to contest the proposed debarment, the consequences of debarment (assuming that became the final result of further proceedings) and that pending a decision on debarment “bids or proposals will not be solicited from, contracts will not be awarded to, existing contracts will not be renewed or otherwise extended for, and subcontracts requiring Government approval will not be approved for Cecile by the Department of Defense * * * » 2

The following day, May 18,1988, the procuring agency requested SBA to suspend processing Cecile’s application for a competency certification relative to the instant solicitation. This request was agreed to; the next week SBA advised Cecile that “[n]o further action will be taken regarding this case pending formal notification from the contracting officer as to the disposition of this procurement.”

A complaint seeking declaratory and in-junctive relief was filed in this court on June 1, 1983. The focus of the complaint was upon the automatic disqualification from award that accompanied the notice of proposed debarment. This regulation-dictated “ineligibility”2 3 is seen by Cecile as encompassing a double-fault: first, a usurpation of SBA’s exclusive authority to render all competency determinations with respect to small businesses; second, a constitutionally impermissible deprivation of the bidder’s “liberty interest” by allowing a finding of lack of integrity to have operative effect in advance of the bidder’s opportunity to be heard on the issue. The Government has answered these arguments on the merits and, in addition, has moved to dismiss the suit for lack of jurisdiction. As noted at the outset, jurisdiction is the dis-positive issue in the controversy.

DISCUSSION

In Title 28 of the United States Code, section 1491, as amended by the Federal Courts Improvement Act of 1982, Congress declared that this court, in order “[t]o afford complete relief on any contract claim brought before the contract is awarded * * shall have exclusive jurisdiction to grant declaratory judgments and such equitable and extraordinary relief as it deems proper, including but not limited to injunctive relief.” 28 U.S.C. § 1491(a)(3) (Supp. V 1981). Cases deciding the scope of this jurisdictional grant have, to date, defined it as being limited to litigants who (i) may claim an implied contractual relationship with the United States on the basis of their submission of a bid in response to a Government solicitation, Quality Furniture Rentals, Inc. v. United States, 1 Cl.Ct. 136 (1983) (KO-ZINSKI, C.J.); Indian Wells Valley Metal Trades Council v. United States, 1 Cl.Ct. 43, 553 F.Supp. 397 (1982) (WIESE, J.) and (ii) assert as their basis for injunctive relief a breach of that implied contractual relationship based upon the Government’s alleged failure to have adequately and fairly considered their bid. Ingersoll-Rand Co. v. United States, 2 Cl.Ct. 373 (1983) (KOZIN-SKI, C.J.). This view of the statute — that [693]*693it was meant to address only the so-called “bid protest” actions — was endorsed in United States v. John C. Grimberg Co., 702 F.2d 1362, 1367 (Fed.Cir.1983).

Though the plaintiff here purportedly meets these twin criteria — a bidder seeking to restrain the award of a contract on the ground that its bid had not been fairly and honestly considered — the Government nevertheless urges dismissal of the suit on the ground that it lies beyond our jurisdiction to decide. While the court was initially of a different view in the matter, further reflection has persuaded us that plaintiff does, indeed, seek its relief in the wrong forum.

In arriving at this conclusion, we start on an historical note.

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31 Cont. Cas. Fed. 71,267, 2 Cl. Ct. 690, 1983 U.S. Claims LEXIS 1703, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cecile-industries-inc-v-united-states-cc-1983.