Electronic Systems Associates, Inc. v. U.S., 89-1415
| Decision Date | 12 February 1990 |
| Docket Number | No. 89-1415,89-1415 |
| Parties | 36 Cont.Cas.Fed. (CCH) 75,800 ELECTRONIC SYSTEMS ASSOCIATES, INC., Appellant, v. The UNITED STATES, Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
James H. Roberts, III, Bishop, Cook, Purcell & Reynolds, Washington, D.C., argued for appellant. With him on the brief were Florence R. Keenan and T. George Davis, Jr., Washington, D.C.
William K. Olivier, Commercial Litigation Branch, Dept. of Justice, Washington, D.C John Pike, Associate Director for Space Policy, Federation of American Scientists, Washington, D.C., was on the brief for Amicus Curiae, Space Policy of The Federation of American Scientists.
argued for appellee. With him on the brief were Stuart E. Schiffer, Acting Asst. Atty. Gen., David M. Cohen, Director, Washington, D.C., and Thomas W. Petersen, Asst. Director. Also on the brief were Carl J. Peckinpaugh, Washington, D.C., and James C. Dever, III, General Counsel's Office, Dept. of the Air Force, of counsel.
Before MAYER and MICHEL, Circuit Judges, and BENNETT, Senior Circuit Judge.
OPINION
Electronic Systems Associates, Inc. (Electronic Systems) appeals the decision of the General Services Administration Board of Contract Appeals dismissing Electronic Systems' protest for lack of jurisdiction. Electronic Sys. Assocs., GSBCA No. 9966-P, 89-2 B.C.A. (CCH) p 21,759 (Apr. 13, 1989). We affirm.
The Rome Air Development Center, located at Griffiss Air Force Base in Rome, New York, advertised solicitation number F30602-89-R-0090 on January 23, 1989. The procurement sought a Reduced Instruction Set Computer Ada Environment (RISCAE) for radiation-hardened 32-bit (RH-32) microprocessors. The RISCAE is a programming environment consisting of an Ada compiler, debugger, macro-assembler, and linker; essentially, it is a tool used by a programmer to develop applications software written in the Ada "language" and capable of running on the RH-32. The procurement also sought the development of a "run-time" system, a software program that performs all functions "built in" to the Ada language, including trigonometric, mathematical conversation, task management, and recursion control functions. Unlike the RISCAE itself, the "run-time" program is intended to be loaded in every RH-32 chip--it is resident in the microprocessor.
Because the Air Force proposed to conduct the procurement as a total small business set-aside, Electronic Systems filed a protest with the board on March 10, 1989. The protest alleged violation of several statutes and regulations, including the Small Business Act and the Federal Information Resources Management Regulation. The Air Force responded, and the board agreed, that the Warner Amendment to the Brooks Act, Pub.L. No. 97-86, tit. IX, Sec. 908, 95 Stat. 1117 (1981) (), deprived the board of jurisdiction to entertain the protest.
In particular, the board rejected Electronic Systems' argument that characterizing three systems within the Strategic Defense Initiative (SDI) program, for which the procurement was chiefly intended, as "weapons" or "weapons systems" or as having a "military mission" would be inconsistent with the 1972 Anti-Ballistic Missile Treaty between the United States and the Soviet Union (ABM Treaty). The board concluded that the RISCAE procurement sought automated data processing equipment (ADPE) that is both "an integral part of a weapon or a weapons system" and "critical to the direct fulfillment of military or intelligence missions". 89-2 B.C.A. p 21,759, at 109,505. Accordingly, the board dismissed the protest and Electronic Systems appealed. See 41 U.S.C. Secs. 607(g), 609(b) (1982).
Electronic Systems advances here the same two arguments rejected by the board. Its first and principal argument is that, because the ABM Treaty "proscribes development of a weapon, weapons system, or a military mission under the SDI program," ipso facto, the SDI systems ultimately employing the fruits of this procurement cannot be "weapons" or "weapons systems" or have "military missions" within the meaning of the Warner Amendment. Alternatively, it argues that the RISCAE is neither "integral" to a weapon or weapons system nor sufficiently "critical" to the "direct" fulfillment of a military mission to qualify under exemptions (iv) and (v) of the Warner Amendment. We think the board correctly rejected both arguments.
Electronic Systems has no authority for the proposition that, in determining whether the board has Brooks Act jurisdiction, it must consider the impact of that determination on other laws or agreements having the force of law, like the ABM Treaty. The argument appears to be that, at this early stage of development, the SDI systems cannot be weapons systems for Brooks Act purposes because they might potentially become weapons systems proscribed by the ABM Treaty. We decline to engage in the irrelevant metaphysical debate whether weapons systems contemplated by the Warner Amendment constitute weapons systems outlawed by the ABM Treaty.
The board need consider only what the Brooks Act requires in determining whether it has jurisdiction to entertain a protest. And, as with other statutes, we must give the words of the Act their plain and ordinary meaning unless there is clear congressional intent to the contrary. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1426 (Fed.Cir.1988). Electronic Systems points to no such intent here. It relies instead on the separate and unrelated ABM Treaty, which predates both the Warner Amendment and the SDI program by at least nine years and which nowhere uses, let alone defines, the terms "weapon," "weapons system," or "military mission." Treaty Between the United States of America and the Union of Soviet Socialist Republics, May 26, 1972, United States-Soviet Union, 23 U.S.T. 3437, T.I.A.S. No. 7503.
Nor does the ABM Treaty "proscribe development of a weapon, weapons system, or a military mission under the SDI program," as Electronic Systems alleges. We need not parse the treaty language or plumb the malleable understandings of its signatories to agree with the government that the treaty does not affect research and development--short of field testing or deployment, neither of which is involved here--of the SDI systems for which the RISCAE is intended. Strategic Defense Initiative Organization, 1989 Report to Congress on the Strategic Defense Initiative (Jan. 19, 1989). Even less does it proscribe characterizing those systems as "weapons" or "weapons systems" or as having a "military mission" for the purposes of the Warner Amendment. The treaty is simply irrelevant to the jurisdictional analysis, and the routine inquiry compelled by the Warner Amendment says absolutely nothing about the Treaty.
Fearing that the delay associated with General Services Administration (GSA) oversight of ADPE procurements by the Department of Defense would harm national security, Congress in 1981 adopted the so-called "Warner Amendment" to the Brooks Act. Pub.L. No. 97-86, tit. IX, Sec. 908, 95 Stat. 1117 (1981) (). The Amendment qualifies the authority of the GSA Administrator to coordinate and regulate the purchase, lease, and maintenance of ADPE by federal agencies. 40 U.S.C. Sec. 759(a)(1) (1982 & Supp. V 1987). As presently constituted, the Amendment provides:
(3) This section [759(a)(1) ] does not apply to--
* * * * * *
(C) the procurement by the Department of Defense of automatic data processing equipment or services if the function, operation, or use of which--
(i) involves intelligence activities;
(ii) involves cryptologic activities related to national security;
(iii) involves the command and control of military forces;
(iv) involves equipment which is an integral part of a weapon or weapons system; or
(v) is critical to the direct fulfillment of military or intelligence missions provided that this exclusion shall not include automatic data processing equipment used for routine administrative and business applications such as payroll, finance, logistics, and personnel management[.]
Id. Sec. 759(a)(3)(C) (Supp. V 1987).
The Air Force argued, and the board agreed, that exemptions (iv) and (v) apply to the RISCAE procurement. The board based its conclusion on twelve findings, including (1) the RISCAE is solely intended for the development of real-time embedded software for the RH-32 microprocessor; (2) the RH-32 is intended to handle the signal and data processing requirements of several weapon systems which are currently part of the SDI program, including the Boost Surveillance and Tracking System (BSTS), the Space Surveillance and Tracking System (SSTS), and the Kinetic Energy Space Based Interceptors (SBIs); (3) the mission of the BSTS is to detect and track hostile missiles in the first phase of their launch profile, the mission of the SSTS is to continue to track such missiles in the mid-course of their deployment, and the mission of the SBIs is to destroy with kinetic projectiles any such missiles; (4) the BSTS, SSTS, and SBI systems cannot...
To continue reading
Request your trial
-
Executive Jet Aviation, Inc. v. U.S.
...understood meaning." Koyo Seiko Co. v. United States, 36 F.3d 1565, 1571 n. 9 (Fed.Cir.1994); see also Electronic Sys. Assocs., Inc. v. United States, 895 F.2d 1398, 1400 (Fed.Cir.1990) (words in a statute are to be given their "plain and ordinary meaning unless there is clear congressional......
-
Brown v. Secretary, Dept. of Health and Human Services
...plain meaning. Sullivan v. Stroop, 496 U.S. ----, ----, 110 S.Ct. 2499, 2502, 110 L.Ed.2d 438 (1990); Electronic Sys. Assocs., Inc. v. United States, 895 F.2d 1398, 1400 (Fed.Cir.1990). This statute is clear on its face; the plain meaning is that in the aggregate compensation for lost wages......
-
Information Systems & Networks Corp. v. U.S.
...must first determine whether the Navy's reprocurement involves a military or intelligence mission. See Electronic Sys. Assocs. v. United States, 895 F.2d 1398, 1401 (Fed.Cir.1990). If the reprocurement involves such a mission, the court must determine whether the Navy's contract is critical......