Howard v. United States

36 Cont. Cas. Fed. 75,947, 21 Cl. Ct. 475, 1990 U.S. Claims LEXIS 365
CourtUnited States Court of Claims
DecidedSeptember 26, 1990
DocketNo. 90-321C
StatusPublished
Cited by9 cases

This text of 36 Cont. Cas. Fed. 75,947 (Howard 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
Howard v. United States, 36 Cont. Cas. Fed. 75,947, 21 Cl. Ct. 475, 1990 U.S. Claims LEXIS 365 (cc 1990).

Opinion

ORDER'

MOODY R. TIDWELL, III, Judge:

This case is before the court on defendant’s motion to dismiss for lack of jurisdiction and its opposition to plaintiff’s motion for corrective order and declaratory judgment. Plaintiff, appearing pro se, challenges the award of a contract by the National Aeronautics and Space Administration to another bidder, and asserts other claims. Plaintiff apparently seeks award of the contract, bidding costs, recompense for takings without just compensation, and related expenses, fees and costs.

FACTS

At the outset, the court notes that plaintiff’s claims are drafted very poorly; they are repetitive, confusing and, in a few instances, highly improbable. Nevertheless, the court will address the issues raised.

On October 30, 1987 NASA’s History Office issued an invitation for proposals for a “Documentary History of the Space Age.” The deadline for proposals was August 1, 1988. Plaintiff mailed his proposal to NASA on August 1, 1988. NASA did not receive plaintiff’s proposal until August 3, 1988, and declined to consider it because it was untimely. Plaintiff subsequently asked NASA to declare his proposal timely, or to reissue the request for proposals. The contracting officer refused both requests. Plaintiff appealed the contracting officer’s “decision” to the NASA Board of Contract Appeals. The Board dismissed the appeal with prejudice for lack of jurisdiction after giving plaintiff an opportunity to elaborate upon his claim to show the existence of a contract or a contract im[477]*477plied-in-fact, which plaintiff could not do. NASA made a contract award to another bidder on May 11, 1989. Plaintiff filed this complaint on April 12, 1990, a month after award.

Plaintiff also claims a taking of his personal “property” by agents of NASA “who impede, intrude upon, block, or otherwise harass [plaintiffs] attempts to market employment skills” and who “flagrantly, maliciously and loudly fly commercial and smaller aircraft at low altitudes constituting a nuisance, and “cause aircraft contrails that resemble rocket launches.’ ” All of this activity allegedly occurred from 1973, to present, in Washington, D.C.; Cambridge, Massachusetts; Chicago, Illinois; and Gary, Indiana. Plaintiff’s taking claim further involves the “launch of aerospace technologies such as satellites, or communications or sensing devices, which technologies cause or enabled: (a) the public or private viewing or other perceiving of [plaintiff’s] body or person inside and outside of public and private residences, buildings, automobiles, or other vehicles or means of transportation including common carriers, [and] (b) the public or private hearing (auditory) or other perceiving of [plaintiff’s] voice or speech” in the same time frame and places listed above. As the result of “laying [his] property bare to NASA and other public uses, NASA” caused plaintiff to be “wrongfully propertyless, impecunious, dispossessed, and homeless.”

DISCUSSION

Defendant asks for dismissal of the complaint for failure to state a claim upon which relief can be granted. Dismissal under RUSCC 12(b)(4) is appropriate where none of the alleged facts would entitle plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957); Chavez v. United States, 15 Cl.Ct. 353, 356 (1988). For purposes of a motion to dismiss for lack of subject matter jurisdiction pursuant to RUSCC 12(b)(1), the court must accept as true any allegations of fact made by plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Darden v. United States, 18 Cl.Ct. 855, 856 (1989); and the burden is on plaintiff to establish jurisdiction, Metzger, Shadyac & Schwartz v. United States, 10 Cl.Ct. 107, 109 (1986). This court is obligated to address its subject matter jurisdiction, even if it must do so sua sponte. Arctic Corner, Inc. v. United States, 845 F.2d 999 (Fed.Cir.1988).

The Tucker Act, 28 U.S.C. § 1491(a)(1) (1982), forms the basis of the court’s jurisdiction over plaintiff's claim. That Act does not create any substantive enforceable right for the payment of money, but rather is a waiver of sovereign immunity for specified claims. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983). A money claim cognizable in this court must be predicated upon a constitutional provision, statute, or executive regulation mandating the payment of money, or an express or implied-in-fact contract.

The Contract Claim

The apparent thrust of plaintiff’s complaint asks the court to cancel the present contract and award it to him, or assess damages for failure to award the contract to him. This, the court cannot do. Plaintiff unquestionably had no express contract with defendant. Under the proper circumstances, however, plaintiff could receive relief for an improper award to a competitor if he could show a breach of the contract implied-in-fact between all responsive bidders and the government that the government will consider bids fairly and honestly.1 This implied-in-fact contract is not encompassed by the Contract Disputes Act, 41 U.S.C. § 601 et seq., but is a court-made rule. Keco Indus., Inc. v. United States, 428 F.2d 1233, 1237-38, 192 Ct.Cl. [478]*478773, 778 (1970); Heyer Prods. Co. v. United States, 140 F.Supp. 409, 413-14, 135 Ct.Cl. 63, 68-69 (1956); Monchamp Corp. v. United States, 19 Cl.Ct. 797, 799 (1990); Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859, 868-69 (D.C.Cir.1970).

Before the court can address the issue of “fair and honest” consideration of a bid or proposal, it must find that the underlying contract implied-in-fact existed. A contract implied-in-fact requires the presence of all of the elements of an express contract, i.e., a proper offer to contract and an acceptance. Omega World Travel Inc. v. United States, 9 Cl.Ct. 623, 627 (1986). NASA received plaintiffs proposal after the closing date for receipt of proposals, and none of the possible exceptions to that deadline apply. The proposal, therefore, was non-responsive to the invitation. As such, it did not constitute a valid offer to contract that NASA could accept, even if it so desired. Accordingly, plaintiff was not a party to, and cannot now be permitted to make a claim against the government under a contract theory.

Moreover, plaintiffs “contract” claim, regardless of how it is expressed, is a bid protest over which this court would have jurisdiction only if plaintiff filed his complaint prior to award. 28 U.S.C. § 1491(a)(3) (1982); United States v. John C. Grimberg Co.,

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Bluebook (online)
36 Cont. Cas. Fed. 75,947, 21 Cl. Ct. 475, 1990 U.S. Claims LEXIS 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-united-states-cc-1990.