MEMORANDUM OPINION
ELLIS, District Judge.
Introduction
This is a disappointed bidder’s challenge to a contract award made by the Washington Metropolitan Area Transit Authority (“WMATA”). It raises the infrequently litigated issue of whether an unsuccessful bidder has standing to challenge the contract award of an interstate agency created by interstate compact. Plaintiff, the unsuccessful bidder, charges that WMATA’s award was unlawful and seeks cancellation of the award together with issuance of a permanent injunction enjoining WMATA from awarding the contract to any party other than plaintiff.
Plaintiff originally moved for a preliminary injunction. Pursuant to Rule 65(a)(2), Fed.R.Civ.P., the hearing on the preliminary injunction was consolidated with the hearing on the merits. At the consolidated
hearing, the parties argued the issues orally and submitted the ease on the basis of stipulated facts, briefs and oral arguments. On the basis of the record as a whole, the Court concludes that plaintiff has standing to challenge WMATA’s contract award, but that plaintiffs claims lack merit. Accordingly, plaintiff is not entitled to the relief sought.
Facts
Plaintiff, Seal and Company, Inc., is a District of Columbia corporation having its principal place of business in Chantilly, Virginia. It is engaged in the electrical contracting business and has successfully bid on and performed contract work for WMA-TA since 1972. Defendant WMATA is an interstate agency created by the Washington Metropolitan Area Transit Authority Compact (“the Compact”) executed by Virginia, Maryland and the District of Columbia and approved by Congress
in accordance with the U.S. Const. art. I, § 10, cl. 3. WMATA, under the Compact, is charged with operating the Metro system serving the Washington metropolitan area. Defendant Dynatran is a corporation having its principal place of business in Sterling, Virginia. It is the successful bidder for the challenged contract award.
On February 19, 1991, WMATA issued Invitation for Bids No. IFB-C-882 (“the IFB”) requesting bids on the construction of the communications system for Metro’s Green Line between Fort Totten and Greenbelt, Maryland. The IFB contained a “Buy American Certificate” which bidders were expected to execute, along with numerous other certificates.
WMATA received numerous bids. Plaintiff was the low bidder, but had not executed the Buy American Certificate contained in its bid. Dynatran was the second lowest bidder. No allegations have been made suggesting that Dynatran’s bid failed in any way to conform to the IFB. Upon opening the bids and noting plaintiff’s unexecuted Buy American Certificate, WMATA contacted plaintiff’s representatives, who in turn immediately forwarded an executed Buy American Certificate. That same day, however, WMATA verbally advised plaintiff that it regarded plaintiff’s bid as nonre-sponsive because, as initially submitted, the bid did not include an executed Buy American Certificate. On April 18th and 19th, plaintiff sent letters to WMATA protesting the determination that its bid was nonre-sponsive. As the next lowest bidder and beneficiary of this determination, Dynatran protested any award to plaintiff. By letter dated May 6, 1991, WMATA’s contracting officer issued his final decision denying plaintiff’s protest and confirming the determination that plaintiff’s bid was nonre-sponsive. Plaintiff then initiated this action by filing its complaint on May 16,1991.
Analysis
This Court has subject matter jurisdiction pursuant to Section 81 of the Compact.
Plaintiff contends that WMATA has acted arbitrarily and in violation of its own procurement regulations and existing law by failing to award the disputed contract to plaintiff, as the lowest responsible bidder. In particular, plaintiff contends that completing the Buy American Certificate is not a condition of responsiveness. Alternatively, plaintiff contends that even if the Buy American Certificate is a condition of re
sponsiveness, its requirements are incorporated into the specifications of the IFB and hence, by signing the IFB, plaintiff bound itself to purchase only domestic supplies. Finally, plaintiff argues that WMATA may not penalize it for failing to sign the Buy American Certificate since WMATA did not explicitly give notice in the IFB that signing the Certificate was a condition of responsiveness and because the Certificate was ambiguously worded. In opposition, WMATA maintains that disappointed bidders such as plaintiff lack standing to challenge WMATA’s contract awards. Alternatively, WMATA maintains that its rejection of plaintiff’s bid as nonresponsive was reasonable and in accordance with WMA-TA regulations and relevant procurement decisions of the Comptroller General. Since standing is a threshold matter, it is addressed first followed by the merits issues.
I.
The standing issue has two parts, one concerning the existence of a “private cause of action,” and the second relating to “standing” or “injury.” More specifically, the Court must first determine whether Congress in enacting the Compact intended to create “a cause of action” for private parties aggrieved by WMATA’s alleged failure to follow the procurement procedures mandated by the Compact. “The question whether a statute creates a cause of action, either expressly or by implication, is basically a matter of statutory construction.”
Transamerica Mortgage Advisors, Inc. v. Lewis,
444 U.S. 11, 15, 100 5.Ct. 242, 245, 62 L.Ed.2d 146 (1979). “[W]hat must ultimately be determined is whether Congress intended to create the private remedy asserted_”
Id.
at 15-16, 100 S.Ct. at 245. This intent may appear explicitly in the language of a statute or its legislative history, or “[s]uch an intent may appear implicitly in the language or structure of the statute, or in the circumstances of its enactment.”
Id.
at 18, 100 S.Ct. at 246;
see Thompson v. Thompson,
484 U.S. 174, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988);
Touche Ross & Co. v. Redington,
442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). If the Court finds that Congress intended to create a private cause of action, it must then determine whether the plaintiff alleges an injury of the kind intended to be protected by the Compact,
i.e.,
whether plaintiff’s alleged injury falls within the “zone of interests”
Congress intended to protect.
When the action of a
federal
agency is at issue, the two part analysis just described is somewhat simplified. The first question — is there a private cause of action or remedy? — is presumed to have been answered affirmatively by Congress, absent evidence to the contrary.
This is so because § 10 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, authorizes suits by any person “suffering legal wrong
because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” Given the presumption of the existence of a private cause of action for challenging
federal
agency action, only the “zone of interests” issue remains, and here the primary question is “whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute.... ”
Association of Data Processing Serv. Orgs. v. Camp,
397 U.S. 150, 152-53, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970).
The “zone of interest” test, since it is usually employed in the context of the APA, “is not meant to be especially demanding; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff.”
Clarke v. Securities Industry Ass’n,
479 U.S. at 399-400, 107 S.Ct. at 757. Rather, “[t]he essential inquiry is whether Congress ‘intended for [a particular] class [of plaintiffs] to be relied upon to challenge agency disregard of the law.’ ”
Id.
at 399, 107 S.Ct. at 757, quoting
Block v. Community Nutrition Institute,
467 U.S. 340, 347, 104 S.Ct. 2450, 2454, 81 L.Ed.2d 270 (1984).
Numerous Circuits, including the Fourth, have held that a disappointed bidder for a
federal
agency contract is a person “adversely affected or aggrieved by agency action” pursuant to § 10 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, and has standing to challenge an agency’s contract award in federal court.
See Motor Coach Industries, Inc. v. Dole,
725 F.2d 958, 962-64 (4th Cir.1984);
William F. Wilke, Inc. v. Department of the Army,
485 F.2d 180, 182-83 (4th Cir.1973);
Hayes International Corp. v. McLucas,
509 F.2d 247 (5th Cir.),
cert. denied,
423 U.S. 864, 96 S.Ct. 123, 46 L.Ed.2d 92 (1975);
Airco Inc. v. Energy Research and Development Administration,
528 F.2d 1294 (7th Cir.1975) (per curiam);
Armstrong & Armstrong, Inc. v. United States,
514 F.2d 402 (9th Cir.1975) (per curiam);
Scanwell Laboratories, Inc. v. Shaffer,
424 F.2d 859 (D.C.Cir.1970). As the Fourth Circuit noted in
Wilke:
While those seeking Government contracts have no right to the award of a contract, they do have a right to reasonable treatment of their bids.... This right derives from the combination of the statutory scheme regulating [the agency’s] procurement ... and the review provisions of the Administrative Procedure Act, 5 U.S.C. § 702.
485 F.2d at 182. These decisions have recognized both a Congressional intent to safeguard the interest of bidders in fair treatment,
see, e.g., Wilke,
and a Congressional intent to rely on bidders to enforce procurement statutes,
see, e.g., Scanwell,
424 F.2d at 866-67, 870-71.
In the present, unusual case, the agency involved — WMATA—is not a
federal
agency. Rather, it is “an instrumentality and agency of each of the signatory parties— the District of Columbia, Maryland, and Virginia.”
Washington Metro. Area Transit Authority v. One Parcel of Land,
706 F.2d 1312, 1314 (4th Cir.),
cert. denied,
464 U.S. 893, 104 S.Ct. 238, 78 L.Ed.2d 229 (1983);
see
the Compact, § 4. Hence, it is not subject to the APA. This does not end the analysis, however. Section 73 of the Compact states, in relevant part:
Contracts for the construction, reconstruction or improvement of any facility when the expenditure required exceeds twenty-five thousand dollars ($25,000) and contracts for the purchase of sup
plies, equipment and materials when the expenditure required exceeds ten thousand dollars ($10,000) shall be advertised and let upon sealed bids to the lowest responsible bidder. Notice requesting such bids shall be published in a manner reasonably likely to attract prospective bidders, which publication shall be made at least ten days before bids are received and in at least two newspapers of general circulation in the Zone.
There can be no doubt that “the WMATA Compact became federal law when consented to by Congress,”
Washington Metropolitan Area Transit Authority v. One Parcel of Land,
706 F.2d at 1318, and that the interpretation of Section 73 “presents a question of federal law.”
Id.
at 1318. The question here is whether Congress intended, in enacting the Compact and Section 73, for bidders to bring private causes of action to enforce the compacts’ procurement provisions.
Two courts have addressed this issue, one directly and one indirectly. In
Otis Elevator Co. v. Washington Metropolitan Area Transit Authority,
432 F.Supp. 1089 (D.D.C.1976), the Court upheld a disappointed bidder’s standing to challenge a WMATA contract award, and also upheld the bidder’s objections to the award. Without elaboration, the Court found that the “federal interest” in the WMATA Compact supported application of “general standing criteria,” which the plaintiff easily met.
Id.
at 1094. In essence, the court concluded that because of the strong “federal interest” in the WMATA Compact, WMATA should be treated as a federal agency subject to the APA with respect to standing, and the “zone of interests” test for challenging federal agency action set forth in
Association of Data Processing Serv. Orgs. v. Camp,
397 U.S. at 152-53, 90 S.Ct. at 829-30, should be applied. Because court rulings interpreting the APA had recognized that a bidder has an “interest” in seeing that a federal agency follow procurement statutes and regulations, the
Otis
Court concluded that the plaintiff easily met the requirement of falling within the zone of interests protected by the WMATA Compact’s procurement provisions and the implementing regulations enacted by WMATA.
In concluding that the WMATA Compact was imbued with a “federal interest,” the
Otis
court relied on
The Bootery, Inc. v. Washington Metropolitan Area Transit Authority,
326 F.Supp. 794 (D.D.C.1971). There, the Court also concluded that WMA-TA, because of the special federal interest it embodied, should be treated like a federal agency subject to the APA. It held that business lessees had standing under Section 14 of the Compact
to protest the hearing procedures employed by WMATA in selecting a transit route. Hence, both
The Bootery
and
Otis
opinions concluded that WMATA was akin to a federal agency
and that, under the “zone of interests” test applicable to such agencies, private parties had Congressional authority to seek judicial review of WMATA actions that caused them injury and violated statutory procedural requirements.
Although not employing precisely the same analysis as
Otis
and
The Bootery,
this Court also concludes that Congress intended that private parties have standing to challenge WMATA’s procurement actions. And this result is compelled whether WMATA is viewed (1) as a non-federal agency and a “private cause of action” analysis is employed using the techniques of statutory interpretation outlined in
Transamerica Mortgage Advisors, Inc. v. Lewis,
444 U.S. at 15, 100 S.Ct. at 245,
Thompson v. Thompson,
108 S.Ct. at 516, and
Touche Ross & Co. v. Redington,
442 U.S. at 568-573, 99 S.Ct. at 2485-2488, or (2) as a quasi-federal agency and a “zone of interests” test is applied. The language and legislative history of Section 73 reflect that Congress intended WMATA to follow federal procurement regulations and to perform procurements as a federal agency would. Thus, Section 73 requires that contracts be “let upon sealed bids to the lowest responsible bidder.” The term “lowest responsible bidder” is a term of art drawn from federal procurement regulations.
Its use suggests that Congress intended WMATA to conduct procurements in a fashion similar to federal agencies. More evidence of this Congressional intent comes from a 1988 amendment to Section 73.
At that time, Congress approved raising the dollar limits that trigger Section 73’s requirements. The House Report accompanying the bill that amended Section 73 reproduces in full the testimony of UMTA’s Assistant Chief Counsel justifying this change:
Finally, the procurement amendment would raise the threshold for advertising contract bids for supplies and equipment from $2,500 to $10,000 and for construction and reconstruction contract bids from $10,000 to $25,000. These changes are consistent with Federal procurement policy. We understand that these are the only procurement changes proposed in this amendment, and that WMATA’s current procurement regulations, which follow Federal requirements, will not otherwise be affected by this amendment.
This testimony, heavily relied upon in the House Report, further supports the conclusion that Congress intended WMATA to function as a federal agency with respect to procurements. This is also reflected in WMATA’s extensive procurement regulations, which state that they
implement pertinent provisions of the Washington Metropolitan Area Transit Authority Compact; OMB Circular A-102 ... UMTA Circular C 4220.1, dated August 6, 1979 and relevant decisions of the courts and the Comptroller General of the United States.
Moreover, the existence of a cause of action for disappointed bidders is arguably implicit in Section 73 and in the scheme of the Compact, for if private bidders on WMATA’s contracts lacked standing to challenge WMATA’s awards, it is hard to see how Section 73’s mandate that contracts be awarded to the lowest responsible bidder would be monitored and enforced.
Yet additional evidence that Congress envisioned that WMATA would function like a federal agency with respect to procurements is apparent from the unique nature of WMATA. The WMATA Compact is distinguishable from other Congressionally-approved compacts by the degree of feder
al participation in both the formation of the Compact and its continued operation. Congress, rather than the participating states, was the motivating force behind creation of the Compact.
Furthermore, Congress, on behalf of the District of Columbia, was one of the parties agreeing to the Compact.
Moreover, the Compact, in creating WMA-TA, created an agency that took over the functions of a previously existing federal agency, the National Capital Transportation Agency (“NCTA”), which hitherto had begun planning and contracting work on a transportation system for the Washington, D.C. area. As Congress intended that federal agencies be subject to the APA in their procurement activities,
and as WMATA replaced NCTA, it is likely that Congress also intended that WMATA be subject to APA-like review of its procurement activities. And beyond this, large amounts of federal tax dollars flowed to WMATA at its inception and the federal government remains obligated to fund a portion of any shortfalls between WMATA’s expenses and its fare box receipts.
And the legislative history is replete with statements to the effect that while Congress did not desire the federal government to be involved “in the day-to-day operation of” the Metro system, it did want to “protect the federal interest” in the system.
Finally, the Court notes that Congress, when amending WMATA’s Compact in 1972 and again in 1988, could have taken notice of the 1971 decision in
The Bootery
and the 1976 decision in
Otis,
each equating WMATA with a federal agency subject to the APA, and expressly disapproved of these opinions, had Congress in fact disagreed with them. It did not.
In summary, all of these factors point collectively and persuasively to the conclusion that Congress intended WMATA to conduct its procurements as a federal agency would, and to be subject to suits by aggrieved bidders for procurement activities in violation of the Compact or WMA-TA’s regulations.
Thus, as an aggrieved bidder, plaintiff has standing to sue.
II.
Plaintiffs first merits claim is that failure to sign the Buy American Certificate did not render its bid nonresponsive to the IFB. This claim fails. First, regulations promulgated by the Urban Mass Transit Administration (“UMTA”), an agency of the U.S. Department of Transportation from which WMATA receives grants, mandate that WMATA require its bidders to complete a Buy American Certificate as a “condition of responsiveness.”
Consistent with this, the Comptroller General’s standards for bid responsiveness make clear that plaintiffs bid, without the signed Buy American Certificate, was nonre-sponsive. In a recent decision involving a Buy American Certificate, the Comptroller General concluded that, even where a bidder may not have fully completed such a certificate, a bid may be responsive to an IFB where “there would be no opportunity after bid opening for the bidder to affect the relative standing, or acceptance or rejection, of its bid.”
Manatts, Inc.,
B-237532, February 16, 1990, 90-1 CPD ¶ 287. Put another way:
... a bid should
not
be rejected as nonre-sponsive because it does not contain all of the information necessary to perform a Buy American Act analysis
only where the additional information required from the bidder would not change the relative standing of the bidders ... or allow the bidder to manipulate its bid to its advantage.
Id.
It is clear from
Manatts
and other Comptroller General decisions
that the language of a specific Buy American Certificate, and the IFB containing it, must be examined to determine whether failure to complete the certificate permits material alteration of a bid subsequent to the opening of bids and hence renders a bid nonre-sponsive. In this case, the Buy American Certificate really contained two certificates: one for the bidder to check, sign and date if it pledged to comply with the domestic content and assembly requirements of the Buy American Act, and an alternative one to be checked, signed and dated if the bidder did not intend to comply but believed it qualified for an exception to the Buy American Act requirements. Plaintiff checked neither certificate. Had plaintiff checked the second, foreign source certificate, either before or after the opening of bids, WMATA would have been required by UMTA regulations to increase plaintiff’s bid price by ten percent.
Thus, plaintiff’s
failure to check either certificate left it in a position to manipulate the bid to its advantage. For example, if plaintiffs bid was more than ten-percent below the next lowest bid, plaintiff could have increased its price ten percent simply by checking the foreign source certificate and still have received the contract. Similarly, if the bid were less than ten percent below the next lowest bidder, plaintiff could decide whether to check the domestic source certificate and win the contract as the lowest bidder, or to check the foreign source certificate and avoid winning the contract. A bidder might choose the latter course of action where it belatedly recognized that it would loose money if forced to perform at the bid price. This potential for manipulating the process by leaving the Buy American Certificate unsigned underscores the materiality of the requirement that the bidder properly complete the Buy American Certificate.
Plaintiff contends, however, that merely by signing its bid it bound itself to comply with the domestic component and assembly requirements of the Buy American Act. This contention is baseless. By signing the bid, plaintiff bound itself to “perform all work ... in strict accordance with the Specifications, appendices, certifications, Contract Drawings, schedules, insurance specifications, and [certain other] conditions” of the IFB.
Although plaintiff contends that the specifications sections of the IFB bound it to use only domestic sources, it points to no specific language to this effect and none has been found.
Only the Buy American Certificate contained in the IFB pertains to this issue and, as already noted, plaintiff failed to complete the certificate. Even so, plaintiff maintains that it was bound by law upon submission of its bid to use only domestic sources. But, as noted above, the Buy American Act and UMTA regulations permit the use of foreign sources if a bidder qualifies for an exception. Here, plaintiff simply failed to note whether it intended to provide only domestic products or to seek an exception. Finally, plaintiff argues that since it supplied WMATA with a properly completed Buy American Certificate shortly after bid opening, the contracting officer acted arbitrarily in rejecting its bid. However, “only material available at bid opening may be considered in making a responsiveness determination.”
Bulloch International, Inc.,
B-237369, February 5, 1990, 90-1 CPD ¶ 153;
accord Rocco Indus., Inc.,
B-227636, July 24 1987, 87-2 CPD ¶ 87.
There is, therefore, no basis for concluding that the contracting officer acted arbitrarily in choosing to ignore plaintiffs after-bid submission. In sum, an examination of the specific Buy American Certificate at issue, the language of the IFB as a whole, and applicable law all show that plaintiffs failure to check either the domestic or foreign source certificate was a
material omission that rendered its bid non-responsive.
Retreating one step, plaintiff contends that its failure to complete the Buy American Certificate should be excused because WMATA failed to give notice in the IFB that not completing one or the other alternative certificate would render a bid nonresponsive. Plaintiff maintains that UMTA regulations at 49 C.F.R. § 661.13 required WMATA to print such a warning. This argument, too, is unpersuasive. First, the UMTA regulations relied on do not explicitly require the printed warning plaintiff demands. Moreover, even assuming notice of some sort was required, the IFB arguably gave adequate notice by incorporating by reference those provisions of the Buy American Act and UMTA regulations that require completion of the Buy American Certificate.
Plaintiffs last argument is that the Buy American Certificate was ambiguously worded and that this, too, should excuse noncompletion of the Certificate. Specifically, plaintiff objects to the first sentence of the Certificate, which reads:
If buses or other rolling stock (including train control, communications and traction power equipment) are being procured, the appropriate certificate as set forth below shall be completed and submitted by each bidder in accordance with the requirements contained in 661.13(b) of this Part [49 C.F.R. § 661.13(b)],...
Plaintiffs president and chairman maintain that because the words “train control, communications ... equipment” appeared in parentheses rather than between commas, they were justified in construing such words to refer only to such equipment
if installed or located on
a bus or train car. They therefore concluded that the Buy American Certificate did not apply to the instant procurement, which was for train communications equipment to be installed in Metro’s stations and tunnels.
Plaintiffs contention strains credulity. First, a reasonable reading of the sentence leads to the conclusion that it applied to the equipment at issue, as equipment used to control and communicate with trains and for traction is located outside, as well as within, trains. Moreover, this precise language is ubiquitous in the realm of transportation procurement. It appears
verbatim
(including the parentheses) at 49 C.F.R. § 661.12 (1990), and is the language UMTA apparently requires grant recipients to use in IFBs. Moreover, the parties have stipulated that plaintiffs officers previously read and executed a Buy American Certificate containing identical language that appeared in a prior WMATA IFB for “off-board” communications equipment. The Court therefore concludes that there is no ambiguity in the IFB language that excuses plaintiffs failure to complete the certificate.
Moreover, the term “communications equipment” is defined in detail at 49 C.F.R. § 661.11, a section specifically referenced in the IFB’s Buy American Certificate. Section 661.11(i) lists communications equipment located outside of rolling stock.
Hence, even assuming that plaintiffs officers, despite their considerable experience with transportation procurements, were confused by the language quoted above, they were obligated to be familiar
with 49 C.F.R. § 661.11(i). Finally, plaintiff’s claim is untimely, as any claim that the language of an IFB is on its face ambiguous, or any latent ambiguity of which a contractor is aware, must be pursued prior to the opening of bids.
S.O.G. of Ark. v. United States,
546 F.2d 367, 212 Ct.Cl. 125 (1976);
James A. Mann, Inc. v. United States,
535 F.2d 51, 61, 210 Ct.Cl. 104 (1976);
Beacon Const. Co. v. United States,
314 F.2d 501, 503-04, 161 Ct.Cl. 1 (1963);
Manatts, Inc.,
B-237532, February 16, 1990, 90-1 CPD ¶ 287;
Continental Water Systems Corp.,
B-205970, June 28, 1982, 82-1 CPD ¶ 627.
Conclusion
The Court concludes that WMATA’s rejection of plaintiffs bid as nonresponsive was in accordance with WMATA procurement regulations and applicable case law and hence was not arbitrary, capricious, or in violation of the law. Plaintiffs complaint should therefore be dismissed with prejudice.