JONES & ARTIS CONSTRUCTION COMPANY, Petitioner, v. DISTRICT OF COLUMBIA CONTRACT APPEALS BOARD, Respondent.
No. 87-639.
District of Columbia Court of Appeals.
Argued April 12, 1988. Decided Oct. 25, 1988.
549 A.2d 315
Marshall‘s final argument is that the crime of contempt, which is against the court, not society, should not be subject to costs imposed for the Crime Victims’ Compensation Fund. We disagree. Marshall‘s conviction of contempt was certainly for a criminal violation. Because contempt has no statutory penalty limit, see In re Evans, 411 A.2d 984, 990 (D.C. 1980), we look to the penalty actually imposed, which here makes Marshall‘s offense a misdemeanor. See
The judgment of the Superior Court is accordingly
AFFIRMED.
Martin B. White, Asst. Corp. Counsel, with whom Frederick D. Cooke, Jr., Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for respondent.
Before FERREN, BELSON and ROGERS, Associate Judges.
FERREN, Associate Judge:
In this government contract case, the District of Columbia Department of Administrative Services (DAS) cancelled an invitation for bids on a contract to haul sludge for the Department of Public Works at the Blue Plains sewage treatment plant. Jones & Artis Construction Company, which had submitted a bid, “appealed” this cancellation to the District of Columbia Contract Appeals Board. The Board dismissed on the ground that Jones & Artis actually had filed a “protest,” not an “appeal,” and thus had filed too late—after the 10-day statutory period—to invoke the Board‘s jurisdiction. Jones & Artis seeks review of that dismissal.
We agree with the Board that Jones & Artis filed a “protest,” but we cannot affirm on the ground of untimeliness. Rather, we must dismiss for lack of our own jurisdiction. Although the applicable statute does provide for this court‘s direct review of a “Board decision,” our jurisdiction
I.
DAS issued an invitation for bids on the Blue Plains contract on April 8, 1986, and accepted bids until 2:00 p.m. on May 13, 1986. When the bids were opened at 2:10 p.m., the official in charge announced that MTI Construction Company was the only bidder. A representative of Jones & Artis was present, however, and immediately said that his company had also submitted a bid. Everyone involved then accompanied the bid-opening official to the safe where all the bids were to have been kept. There the official found a sealed bid from Jones & Artis stamped received at 1:49 p.m. on May 13, 1986. Upon direction of his supervisor, the official opened the bid; he found that Jones & Artis was the apparent low bidder. On May 30, 1986, MTI filed a protest with DAS, alleging Jones & Artis’ bid was untimely. DAS transmitted MTI‘s protest to the Contract Appeals Board, but the record does not reflect the disposition.
In any event, after the bid opening, DAS investigated for several months in an effort to resolve the factual uncertainties surrounding receipt of the Jones & Artis bid. DAS was unable to solve the mystery, however, so on recommendation of the Corporation Counsel the Director of DAS formally issued a “determination” on August 13, 1986, that cancelling the invitation for bids would be “in the best interest of the District Government.” Jones & Artis received notice of cancellation on September 10. Nearly two months later, on November 6, Jones & Artis filed a “Notice of Appeal” with the Contract Appeals Board challenging this cancellation. On November 13, DAS issued a second invitation for bids. On November 24, Jones & Artis filed a protest with the Board against this second invitation but later withdrew it.
On May 26, 1987, the Chairman of the Contract Appeals Board—who was also its only active member—issued an order on behalf of the Board dismissing Jones & Artis’ “appeal” of November 6, 1986, for lack of jurisdiction. According to the Chairman, the “appeal” was actually a “protest” within the meaning of the District of Columbia Procurement Practices Act of 1985.
Jones & Artis has petitioned this court for review, contending, first, that the Contract Appeals Board was improperly constituted and lacked a quorum; that its decision, therefore, had no legal effect; and that of necessity this court must afford de novo review of petitioner‘s grievance. Alternatively, Jones & Artis argues that DAS’ cancellation of the original invitation for bids was subject to “appeal,” not merely to a “protest,” and thus was timely filed with the Board within the required 90 days.
II.
We have no difficulty discerning that a contractor‘s “appeal” of a decision of the Director to the Board may present a contested case involving a trial-type hearing. See id.
In sum, if Jones & Artis filed an “appeal” with the Board, we may have jurisdiction to review the Board‘s decision. But, if Jones & Artis filed a “protest,” as the Board itself ruled, we do not have jurisdiction, and any relief from the Board‘s action would have to be sought, in the first instance, from the Superior Court. See Capitol Hill Restoration Society, Inc., 410 A.2d at 188. We, of course, have jurisdiction to determine our own jurisdiction, and thus—like the Board—we must determine whether an “appeal” to the Board or a “protest” is at issue. In this sense our jurisdictional evaluation will entail an exploration, and virtual resolution, of the merits of Jones & Artis’ case.
III.
A.
As government contract law has developed, there are two basic categories
Customarily, complaints about the solicitation and award of contracts are called “protests.”2 Such alleged improprieties must be quickly asserted and expeditiously resolved so that the contract can be awarded and the job begun. Under federal law, for example, there are comprehensive provisions governing the “procurement protest system.”
In contrast, “appeals” are customarily limited to issues of contract performance (or to suspension or debarment of a firm). Under the federal system, for example, there is a separate chapter governing “contract disputes,”
The American Bar Association Model Procurement Code also reflects the traditional distinction between a protest and an appeal. MODEL PROCUREMENT CODE FOR STATE AND LOCAL GOVERNMENTS §§ 9-101, -101 commentary, -506 (1979). See also MODEL PROCUREMENT ORDINANCE FOR LOCAL GOVERNMENTS §§ 9-101 (bid protests), -102 (contract claims) (1982). Unlike the federal system, the Model Code establishes the same forum for resolving both kinds of complaints. The proposed Procurement Appeals Board exercises jurisdiction over “any protest of a solicitation or award of a contract” and over “any appeal from a determination by the Chief Procurement Officer.” Model Procurement Code § 9-505. Under the Model Code, however, the Procurement Appeals Board does not have exclusive jurisdiction over protests. Subject to exceptions not relevant here, protests may be lodged either with the Board within a suggested 14 days after the grievance is known or should have been known, id. § 9-506(2)(a), or, initially, with a designated procurement official, id. § 9-101(1) & (2), subject to a right of appeal to the Board within a suggested seven days of the reviewing official‘s decision, id. § 9-506(2)(b).
In sum, public contract law, as reflected in the federal statute and the ABA Model Procurement Code, clearly distinguishes “protests” of pre-award complaints from other contract disputes, supplying substantially earlier filing deadlines for the former.
B.
Presumably aware of this background, the Council of the District of Columbia enacted the Procurement Practices Act of 1985, effective February 21, 1986. See 33 D.C. Reg. 1291 (1986); 32 D.C. Reg. 7396-7429 (1985).4 The Council created a jurisdictional structure for the Contract Appeals Board similar to the one provided under the Model Code for the Procurement Appeals Board. The 1985 Act provides:
The Board shall be the exclusive hearing tribunal for, and shall have jurisdiction to review and determine de novo:
(1) Any protest of a solicitation or award of a contract addressed to the Board by any actual or prospective bidder or offeror, or a contractor who is aggrieved in connection with the solicitation or award of a contract; and
(2) Any appeal by an aggrieved party from a final decision by the Director which is authorized by this chapter.
As in the federal statute and the Model Code, the Council provided different time limits for filing protests and appeals:
[A] protest of a solicitation or award of a contract addressed to the Board by any actual or prospective bidder ... who is aggrieved in connection with the solicitation or award of a contract ... shall [be filed] with the Board within 10 working days after the aggrieved person knew or should have known of the facts and circumstances upon which the protest is based.
The 1985 Act does not define “protest” or “appeal,” but the legislative history gives no indication that the Council intended to depart from the conventional meanings of those terms. The consistent coupling of “protest” with “solicitation or award” or with “bids,” both in the text of the statute and in its legislative history, strongly suggests an intent to incorporate into our local law the understanding of “protest“—a pre-award dispute—that has
Title IX of the bill [Subchapter IX of the Act] creates a Contract Appeals Board to hear and decide on decisions rendered by the Director concerning contract disputes. The bill also allows for direct appeal to the Board for protests for bids and solicitations.
REPORT at 5 (emphasis added).5
The Council has made clear, moreover, that the Board‘s jurisdiction over “appeals” encompasses only two categories of disputes, namely, disputes concerning performance of contracts,
In addition, Title VIII of the bill [Subchapter VIII of the Act] provides for the Director to settle disputes arising from the performance of contracts. The Director is authorized to debar or suspend persons from receiving contracts for specific reasons as set forth. The Director has the authority to render decisions on claims arising from an aggrieved contractor, thus providing an administrative mechanism for resolving disputes. Appeals of these decisions are made to the Contract Appeals Board.
Report at 4-5 (emphasis added). Finally, the provision of different filing deadlines for protests and appeals, respectively, further indicates the Council‘s intent to treat pre-award and post-award disputes altogether differently, given the different concerns inherent in these respective categories of disputes.
IV.
Before considering Jones & Artis’ fundamental argument that the DAS Director‘s cancellation of the first invitation for bids on August 13, 1986 was a final “decision” subject to an “appeal,” not merely to a “protest,” we note petitioner‘s threshold argument: that the Contract Appeals Board, having only one member (the Chairman), was improperly constituted and, consequently, lacked power to make a final decision. Must we deal with this argument if our principal concern is this court‘s jurisdiction?
Inherent in our reviewing a decision of the Board—if we have jurisdiction—is a premise that the Board itself acted within its own prescribed powers in ruling that Jones & Artis had filed a “protest,” not an administrative “appeal.” Arguably, we could simply assume, without deciding, that the Board acted properly and determine our own jurisdiction by deciding as a matter of law whether the Board ruled on a “protest” or an “appeal.” Then, only if we concluded an appeal was involved would we have jurisdiction to determine whether the Board was properly constituted.
On the other hand, in deciding such a question of law we shall be “reviewing the construction of the statute by the agency charged with its interpretation and enforcement, [and] the agency‘s interpretation is controlling unless it is plainly erroneous or inconsistent with the statute.” Totz v. District of Columbia Rental Accommodations Commission, 412 A.2d 44, 46 (D.C. 1980) (citing 1880 Columbia Road, N.W. Tenants’ Association v. District of Columbia Rental Accommodations Commission, 400 A.2d 333, 337 (D.C. 1979)); see George Washington University v. District of Columbia Board of Zoning Adjustment, 429 A.2d 1342, 1348 (D.C. 1981). Accordingly, unless the proper interpretation of the statute is so clear that we could appropriately ignore what the Board itself
A.
The Procurement Practices Act of 1985 calls for creation of a Contract Appeals Board with a chairperson and four other members, all of whom are to be appointed by the Mayor with the advice and consent of the Council.
There is, nonetheless, an existing Contract Appeals Board created by Commissioner‘s Organization Order No. 9, D.C. Code Title 1, Appendix (Supp. V 1978), as amended by Mayor‘s Order 82-224, 30 D.C. Reg. 497 (1983). This Board continues to operate under the 1985 Act on an interim basis, as authorized by Mayor‘s Order No. 86-65, which provides:
Except to the extent inconsistent with the District of Columbia Procurement Practices Act of 1985 (hereinafter, “the act“) the terms of Organization Order No. 9, as amended, governing the District of Columbia Contract Appeals Board shall remain in effect....
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Until the new Contract Appeals Board is established pursuant to the terms of the act, the present Contract Appeals Board shall continue to function.
33 D.C. Reg. 3006 (1986). As a consequence of incorporating the old Board as the interim new Board under the 1985 Act, this order expanded the Board‘s jurisdiction to permit adjudication of protests in addition to its pre-existing jurisdiction limited to appeals.6 (No one in this case has questioned the Mayor‘s authority to issue Order 86-65.)
Order 86-65 did not affect how the old Board—now the interim new Board—is organized. Order 82-224, amending Organization Order No. 9 in 1982, created a Board of at least three members to be appointed without confirmation by the Council. Two of them, including the Chairperson, had to be lawyers appointed by the Corporation Counsel. The Mayor was authorized to appoint the other Board member(s). Order 82-224 further provided:
Except as otherwise provided by its rules, decisions of the Board finally adjudicating contract claims or other disputes shall be rendered by panels of not less than three members, but any two members of a panel shall constitute a quorum for the transaction of any business of the Board.
30 D.C. Reg. 497 (1983). Under Board rules, however,
[t]he Chairperson, acting alone may take any action which these rules authorize or require the Board to take, and any such action taken by the Chairperson, including making of orders, shall be deemed the action or order of the Board; Provided, however, that the Chairperson acting alone may not make any decision which constitutes a final disposition of any appeal or part thereof except pursuant to stipulation of the parties.
Before the 1985 Act, this court had no jurisdiction to entertain direct appeals from decisions of the Contract Appeals Board. Gunnell Construction Co., Inc. v. Contract Appeals Board, 282 A.2d 556 (D.C. 1971) (Gunnell I). Such appeals were heard by the Superior Court. See id. at 558. The 1985 Act, however, purported to establish the right of a contractor, or of DAS itself, to appeal a decision of the new Board directly to this court.
B.
We cannot address this question, however, without first considering the Board‘s contention that Jones & Artis has waived the quorum argument by failing to raise it before the Board. The record reflects that Chairman Sharpe held a conference on April 8, 1987, on the proposed dismissal of Jones & Artis’ purported “appeal.” At that time, Jones & Artis should have perceived that one person was handling the case. Even if petitioner were not aware that the Chairman was acting alone, however, it learned he was doing so no later than the day it received the final decision signed only by the Chairman. Jones & Artis failed to raise the quorum issue either at the April 8 conference or after the decision, even though the Board‘s rules explicitly provided for reconsideration when the Chairperson acts alone.8
The failure to confront the Board—in this case, the Chairman—with the quorum issue amounted to a waiver of that alleged defect on appeal unless the lack of a quorum can be said to have deprived the Board of jurisdiction. See United States v. Tucker Truck Lines, 344 U.S. 33, 37-38 (1952); National Labor Relations Board v. Newton-New Haven Co., 506 F.2d 1035, 1038 (2d Cir. 1974). In Tucker Truck Lines, a trucking company challenged an Interstate Commerce Commission decision on the ground that the hearing examiner, whose recommendation the Commission adopted in substance, had not been properly appointed under the Administrative Procedures Act. Because this alleged irregularity did not “deprive[] the Commission of power or jurisdiction,” the Supreme Court declined to consider it, even though the irregularity “would invalidate a resulting order if the Commission had overruled an appropriate objection made during the hearings.” Id. at 38. Similarly, in Newton-New Haven Co., the court ruled on the basis of Tucker Truck Lines that the company could not question whether the NLRB panel had violated the quorum requirement because it had failed to raise that issue before the NLRB itself. 506 F.2d at 1038.
Jones & Artis argues that these cases are not controlling because, in challenging the authority of the Chairman to act alone, it questions the Board‘s very power to act: a jurisdictional challenge. In Railroad
Unlike the appellee in Railroad Yardmasters of America, Jones & Artis does not challenge the power of the Board to act through the Chairman but only the authority of the Chairman to act alone in this particular case, absent a “stipulation of the parties.”
Jones & Artis argues that the Board, having but one member, its Chairman, could not effectively arrange to enlarge its membership; raising the quorum issue at the Board level would have been futile. It would follow that no such stipulation should be inferred. On this record, we cannot be sure of that. Counsel for the Board asserts in his brief that under Order 82-224,
[c]ity employees or other qualified persons can be appointed to the Board by either the Mayor or the Corporation Counsel, with no need for confirmation by the City Council. If Jones & Artis had asserted the need for a multi-member panel before the Board (and been persuasive), a multi-member panel could quickly and easily have been assembled.
Petitioner has not refuted that assertion. Accordingly, we hold that Jones & Artis has waived its objection to the Chairman‘s acting on behalf of the Board, and thus we need not address the merits of that argument.10
V.
We turn, finally, to the central issue: did Jones & Artis file a timely “appeal” or an untimely “protest“? According our usual deference, we agree with the Board that Jones & Artis’ “Notice of Appeal ... constitute[d] an untimely protest,” since it concerned “a solicitation or award of a contract.”
A.
Challenges to cancellations of invitations for bids (IFBs) are commonly treated as subjects for protests. The General Accounting Office (GAO) has authority under
On the other hand, federal agency boards of contract appeals, which generally lack protest jurisdiction,12 routinely have refused to hear challenges to cancellations of IFBs even when labeled, as in this case, as “appeals“. See, e.g., R.F. Brierly, ASBCA No. 33682, Nov. 18, 1986, 87-1 BCA ¶ 19,501 (Armed Services Board of Contract Appeals dismissed for lack of jurisdiction challenge to cancellation of Navy IFB, noting that “appellant‘s ‘appeal’ is clearly a protest“); see also Coastal Corp. v. United States, 713 F.2d 728 (Fed. Cir. 1983) (Department of Energy Board of Contract Appeals’ decision on merits, denying bidder‘s claim for bid preparation costs after cancellation of IFB, vacated because Board lacked jurisdiction to adjudicate honesty and fairness in treatment of bids); Wendel Lockard Construction Co., ASBCA No. 33896, July 15, 1987, 87-3 BCA ¶ 20,055 (appeal from contracting officer‘s denial of request for damages suffered as result of IFB cancellation dismissed because boards of contract appeals lack jurisdiction over protests).
When the GAO fielded protests for the District of Columbia before the 1985 Act became effective, see supra note 6, it characterized challenges to the District government‘s cancellation of solicitations as protests. See, e.g., Coastal Striping & Painting Corp., Comp. Gen. Dec. B-214869, Dec. 26, 1984, 84-2 CPD ¶ 697; Systems Group Associates, Inc., Comp. Gen. Dec. B-198340,
B.
Jones & Artis argues that, in contrast with the foregoing caselaw, its objection to the IFB cancellation is not based on technical defects apparent on the face of the IFB or on objections to alleged changes in governmental needs or resources. More specifically, petitioner argues that the IFB cancellation here was not premised, as the cited cases were, on the kinds of cancellation criteria specified in the applicable Materiel Management Manual (MMM) ¶ 2620.13(A)(2)(a)—(f).13 Instead, according to Jones & Artis, the IFB cancellation of August 13, 1986 resulted from a lengthy and flawed “unilateral” investigative process concerning “unique circumstances” in which Jones & Artis, but not its competitor, was excluded from participation. Accordingly, says petitioner, even if IFB cancellations normally should be “protested,” the circumstances here, devoid of any rationale justified by the MMM, transmute this particular cancellation into “a final decision by the Director” of DAS entitling Jones & Artis to “appeal.”
We discern no basis for rejecting the Board‘s view that the circumstances cited by petitioner make no difference here. We note, first, that the Director cancelled the IFB “in the best interest of the District government,” tracking
But Jones & Artis has not shown why challenging a decision to cancel an IFB after an extensive investigation requires a lengthier filing deadline than challenges to other bid cancellations. Petitioner merely asserts that the 10-day limit within which to evaluate whether to challenge the Director‘s determination, without regard to the length of the investigation leading up to it, is too short. We would be astonished if Jones & Artis’ decision whether to object, either by protest or by appeal, was a difficult one in this case; apparently millions of dollars are at stake. And, in any event, we perceive no reason why, after timely protest, Jones & Artis would not have been able to develop and present its case without an undue rush under the circumstances.
The record shows that Jones & Artis was conversant with protests. For example, it noted that MTI, in opposing Jones & Artis’ bid, had filed its protest in the wrong forum by going to DAS, not to the Board. Furthermore, Jones & Artis filed a timely “protest” to the second IFB in this case. We discern no reason why Jones & Artis could not have been expected to do so with respect to cancellation of the first IFB. To the extent that Jones & Artis was
The Board correctly concluded that a “protest,” not an administrative “appeal,” is at the heart of this proceeding. Accordingly, the Board was not presented with a “contested” case. Nor are we. We are without jurisdiction here.
APPEAL DISMISSED.
ROGERS, Associate Judge, concurring:
The majority opinion states that “no one in this case has questioned the Mayor‘s authority to issue Order 86-65.”1 See majority opinion at 322. That order purported to postpone the effective date of some provisions of the District of Columbia Procurement Practices Act of 1985 (new Act). Appellant Jones & Artis argued only that the Board Chairman exceeded his authority by acting without a quorum. Respondent, the majority states, did not question the validity of Mayor‘s Order No. 86-65, but contended only that the Contract Appeals Board dismissing Jones & Artis’ “appeal” was not the Board created by the new Act, and hence was not the Board from which appeals to this court may be taken under the new Act and, consequently, this court lacked jurisdiction under Gunnell Constr. Co. v. Contract Appeals Bd., 282 A.2d 556 (D.C. 1971) (concerning Contract Appeals Board established by Commissioner‘s Organization Order No. 92). See majority opinion at 323 n. 7.
That notwithstanding, the court itself raised the issue of the validity of Mayor‘s Order No. 86-65 at oral argument. Respondent at that time could offer no authority to support the mayoral action in lieu of amendment of the Act by the Council of the District of Columbia to delay the effective date. Cf.
In addition, the majority opinion acknowledges that “[i]nherent in our reviewing a decision of the Board ... is a premise that the Board itself acted within its own pre-
I join the majority in dismissing the appeal for lack of jurisdiction. It is undisputed that the Board that acted here is not the Board entitled to appeal under the new Act, and since parties cannot confer jurisdiction on this court, Gunnell is controlling. Hence, there is no need to reach the issue of the validity of Mayor‘s Order No. 86-65.
Notes
(a) A contractor may appeal a Board decision to the District of Columbia Court of Appeals within 120 days after the date of receipt of a copy of the decision.
(b) If the Director determines that an appeal should be taken, the Director, with the prior approval of the Corporation Counsel, may appeal the Board‘s decision to the District of Columbia Court of Appeals for judicial review within 120 days from the date of the receipt of the Board‘s decision.
33 D.C. Reg. 3006 (1986) (Order 86-65 amending Organization Order No. 9, as amended by Order 82-224).Any party adversely affected by any action taken by the Chairperson pursuant to § 100.5 who has not stipulated with respect thereto shall be entitled to a reconsideration by the Board, if, within ten (10) days after the Chairperson has transmitted to the party a copy of the order or other notice of the action taken by the Chairperson, the party files with the Board a motion for reconsideration setting forth the grounds therefor. Every motion shall be acted upon by the Board.
There are two other issues. The record reflects discussion before the Contract Appeals Board about whether a contractual relationship with the government is necessary before a business has standing to appeal. Jones & Artis contends that it fits the definition of a “contractor” eligible to bring appeals under
Finally, Jones & Artis argues that the Procurement Practices Act of 1985, by setting different deadlines for protests and for appeals, violates the fifth amendment guarantee of equal protection. Resolution of this issue has no bearing on our jurisdiction, but we do note that the two types of deadlines apply equally to all persons.