Glover Const. Co. v. Andrus

• Decision Date: 12 May 1978
• Docket Number: No. 77-178-C.,77-178-C.
• Citation: 451 F. Supp. 1102
• Parties: GLOVER CONSTRUCTION COMPANY, Plaintiff, v. Cecil ANDRUS, Secretary of the Department of Interior, et al., Defendants.
• Court: U.S. District Court — Eastern District of Oklahoma

451 F. Supp. 1102

GLOVER CONSTRUCTION COMPANY, Plaintiff, v. Cecil ANDRUS, Secretary of the Department of Interior, et al., Defendants.

No. 77-178-C.

United States District Court, E. D. Oklahoma.

March 29, 1978.

On Motion for Clarification May 12, 1978.

Dwight Hayes, A. Camp Bonds, Jr., Muskogee, Okl., for plaintiff.

Betty O. Williams, Asst. U. S. Atty., Muskogee, Okl., for defendants.

ORDER GRANTING SUMMARY JUDGMENT

MORRIS, Chief Judge.

This action is before the court on motions for summary judgment filed by the plaintiff and the defendants. The parties have filed briefs setting forth their respective positions in connection with these motions.

Plaintiff contends that it is entitled to summary judgment on its claim that the policy of the Bureau of Indian Affairs (BIA) of entering into contractual negotiations with wholly Indian owned companies regarding road construction without complying with the advertising requirements of 41 U.S.C. § 5 and 41 U.S.C. § 253 denies plaintiff equal protection of the laws and due process of law. In this connection plaintiff asserts that the BIA, in 1976 began implementing a new interpretation of the "Buy Indian Act," 25 U.S.C. § 47, which act has been in effect since 1910. Plaintiff points to an interdepartmental memorandum, 20 BIAM Bulletin 1, March 3, 1976 (Exhibit D to defendants' brief) providing that negotiations are to be conducted with Indian contractors and that non-Indian contractors are to be contacted only after it has been determined that there are no qualified Indian contractors within the normal competitive area. Plaintiff contends that the Buy Indian Act does not authorize contract negotiations for the construction of roads and that such a procurement must be obtained in accordance with the requirements set out in 41 U.S.C. §§ 5 and 253.

Defendants claim that they have consistently followed the policy set out in the bulletin and that the Buy Indian Act falls within the "otherwise authorized by law" exception to advertising under 41 U.S.C. § 252(c)(15). See Exhibit J to defendants' brief. In response to the latter contention plaintiff states that 41 U.S.C. § 252(e) fails to exempt contracts for the construction of roads from the advertising requirements, since it expressly exempts 41 U.S.C. § 252(c)(1)-(3), (10)-(12), and (14) but does not refer to subsection (15). Thus, plaintiff argues, subsection (15) is not excluded from the provisions of 41 U.S.C. § 253 under the maxim "expressio unius est exclusio alterius."

25 U.S.C. § 47 provides:

So far as may be practicable Indian labor shall be employed, and purchases of the products of Indian industry may be made in open market in the discretion of the Secretary of the Interior.

Section 47 was codified from the Act of June 25, 1910, ch. 431, § 23, 36 Stat. 861 which provides in its entirety as follows:

That hereafter the purchase of Indian supplies shall be made in conformity with the requirements of section thirty-seven hundred and nine of the Revised Statutes of the United States: Provided, That so far as may be practicable Indian labor shall be employed, and purchases of the products of Indian industry may be made in open market in the discretion of the Secretary of the Interior. All Acts and parts of Acts in conflict with the provisions of this section are hereby repealed.

Since title 25 of the United States Code is not among the titles of the United States Code which have been enacted into law, see Preface to 1976 Edition of the United States Code, reference to the Statutes at Large is proper. Section 3709 of the Revised Statutes has been codified as 41 U.S.C. § 5.

41 U.S.C. § 252 provides in pertinent part:

(a) Executive agencies shall make purchases and contracts for property and services in accordance with the provisions of this chapter and implementing regulations of the Administrator; but this chapter does not apply—

(1) to the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration; or

(2) when this chapter is made inapplicable pursuant to section 474 of Title 40 or any other law, but when this chapter is made inapplicable by any such provision of law sections 5 and 8 of this title shall be applicable in the absence of authority conferred by statute to procure without advertising or without regard to said section 5.

. . . .

(c) All purchases and contracts for property and services shall be made by advertising, as provided in section 253 of this title, except that such purchases and contracts may be negotiated by the agency head without advertising if—

. . . .

(15) otherwise authorized by law, except that section 254 of this title shall apply to purchases and contracts made without advertising under this paragraph.

(e) This section shall not be construed to (A) authorize the erection, repair, or furnishing of any public building or public improvement, but such authorization shall be required in the same manner as heretofore, or (B) permit any contract for the construction or repair of buildings, roads, sidewalks, sewers, mains, or similar items to be negotiated without advertising as required by section 253 of this title, unless such contract is to be performed outside the continental United States or unless negotiation of such contract is authorized by the provisions of paragraphs (1)-(3), (10)-(12), or (14) of subsection (c) of this section.

41 U.S.C. § 253(a) provides:

Whenever advertising is required—

(a) The advertisement for bids shall be made a sufficient time previous to the purchase or contract, and specifications and invitations for bids shall permit such full and free competition as is consistent with the procurement of types of property and services necessary to meet the requirements of the agency concerned. No advertisement or invitation to bid for the carriage of Government property in other than Government-owned cargo containers shall specify carriage of such property in cargo containers of any stated length, height, or width.

41 U.S.C. § 5 provides:

Unless otherwise provided in the appropriation concerned or other law, purchases and contracts for supplies or services for the Government may be made or entered into only after advertising a sufficient time previously for proposals, except (1) when the amount involved in any one case does not exceed $10,000, (2) when the public exigencies require the immediate delivery of the articles or performance of the service, (3) when only one source of supply is available and the Government purchasing or contracting officer shall so certify, or (4) when the services are required to be performed by the contractor in person and are (A) of a technical and professional nature or (B) under Government supervision and paid for on a time basis. Except (1) as authorized by section 1638 of Appendix to Title 50, (2) when otherwise authorized by law, or (3) when the reasonable value involved in any one case does not exceed $500, sales and contracts of sale by the Government shall be governed by the requirements of this section for advertising.

In the case of wholly owned Government corporations, this section shall apply to their administrative transactions only.

41 U.S.C. § 260 provides:

Sections 5, 8 and 13 of this title shall not apply to the procurement of property or services made by an executive agency pursuant to this chapter. Any provision of law which authorizes an executive agency (other than an executive agency which is exempted from the provisions of this chapter by section 252(a) of this title), to procure any property or services without advertising or without regard to said section 5 shall be construed to authorize the procurement of such property or services pursuant to section 252(c)(15) of this title without regard to the advertising requirements of sections 252(c) and 253 of this title.

The parties agree that 41 U.S.C. §§ 252 and 253 apply to the BIA. Since Section 252 does so apply it appears that 41 U.S.C. § 5 does not apply in this case. See 41 U.S.C. §§ 252(a)(1) & (2), 260.

The material facts are not in dispute in this case. On May 25, 1977, the BIA entered into a road construction contract with the Indian Nations Construction Company. The BIA had invited three Indian owned companies to bid for the contract, but only the company contracted with submitted a bid. The bidding was restricted to Indian owned firms and no attempt was made to comply with the advertising provisions of 41 U.S.C. § 253. Plaintiff was not afforded an opportunity to bid.

Purchases of property and services for the United States are governed by the Federal Property and Administrative Services Act of 1949, ch. 288, 63 Stat. 377. As indicated previously, there is no dispute that 41 U.S.C. §§ 252 and 253, which are sections 302 and 303 of the Act, see 63 Stat. 393-95, apply to the BIA. The court will accordingly turn to the question whether the procedure followed by the BIA in awarding the road construction contract involved in this case contravenes the requirements set out in 41 U.S.C. §§ 252 and 253.

Section 252(c) makes all purchases and contracts for property and services subject to the advertising requirements of section 253 unless they come within any of the fifteen enumerated exceptions. Defendants contend that the Buy Indian Act comes within subsection (15). There is no contention that any of the other fourteen exceptions apply in this case. Subsection (e)(B) specifically provides that section 252 shall not be construed to permit any contract for the construction of roads to be negotiated without advertising as required by section 253 unless the contract is to be performed outside the continental United States or unless negotiation of such contract is authorized by the provisions of paragraphs (1)-(3), (10)-(12), or (14) of subsection (c).

Defendants' argument that subsection (e) is an admonition rather than a prohibition and that subsection (c)(15) authorizes negotiation of road construction...