Glover Const. Co. v. Andrus

Decision Date12 March 1979
Docket NumberNo. 78-1554,78-1554
Citation591 F.2d 554
Parties25 Cont.Cas.Fed. (CCH) 82,976 GLOVER CONSTRUCTION COMPANY, Appellee, v. Cecil ANDRUS, Secretary of the Department of Interior, Department of Interior, Bureau of Indian Affairs, and A. E. Green, Appellants.
CourtU.S. Court of Appeals — Tenth Circuit

Charles E. Biblowit, Dept. of Justice, Washington, D. C. (James W. Moorman, Asst. Atty. Gen., Washington, D. C., Julian K. Fite, U. S. Atty., Betty Outhier Williams, Asst. U. S. Atty., Muskogee, Okl. and Robert L. Klarquist, Dept. of Justice, Washington, D. C., on brief), for appellants.

D. D. Hayes of Bonds, Matthews & Bonds, Muskogee, Okl., for appellee.

Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

The United States, by and through Cecil Andrus, Secretary of the Department of the Interior, et al., (Government) appeals from a summary judgment entered on behalf of Glover Construction Company (Glover), a non-Indian owned contracting company, setting aside and rendering null and void a road construction contract awarded by the Government, through the Bureau of Indian Affairs (BIA), to Indian Nations Construction Company (Indian Construction), an Indian owned company. The contract was let for the reconstruction of five miles of roadway in Pushmataha County, Oklahoma.

The facts are not in dispute. In March of 1976, Government, through the Commissioner of the BIA, issued a memorandum designated as 20 BIAM Bulletin 1 interpretive of the Buy-Indian Act, 25 U.S.C.A. § 47. 1 The memo provides that bidding on contracts with the BIA is restricted or confined to Indian owned companies. Non-Indian owned companies are permitted to bid only if Indian owned companies are not available to bid or do not bid. Prior to May 25, 1977, the BIA invited three Indian owned construction companies to submit bids on a contract for reconstruction of five miles of existing roadway as provided by 41 CFR § 1-3.215(a) pursuant to the Buy-Indian Act, Supra. The contract was awarded on May 25, 1977, to Indian Construction, whose bid was $1,219,481.00. No attempt was made by the Government to publicly advertise for bids pursuant to 41 U.S.C.A. § 253, 2 popularly known as the Federal Property and Administrative Services Act of 1949, in relation to its application to the relevant provisions of 41 U.S.C.A. § 252. 3 No contentions are advanced by Government that the contract here involved was subject to negotiation under the exceptions of paragraphs (1), (3), (10), (12) or (14) of subsection (c) of § 252, Supra.

Glover contends that the Government violated 41 U.S.C.A. § 5 which provides that 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 does not exceed $2,500.00, (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 officer shall so certify, or (4) when the services are required to be performed by the contractor in person and are of a technical or professional nature or under Government supervision and paid for on a time basis. 41 U.S.C.A. § 5 was originally enacted in 1946. 60 Stat. 809.

Further, Glover contends that the Government was required to publicly advertise for bids pursuant to 41 U.S.C.A. § 253, Supra, and that the BIA's contracting procedure giving preference to Indians violated Glover's rights to equal protection and due process of law. The Government contends that the contracting procedure is authorized by the Buy-Indian Act, Supra, and that it is constitutional.

The District Court did not reach the constitutional contentions. The Court did conclude, however, that under the terms of the Federal Property Act, 41 U.S.C.A. § 252, the Buy-Indian Act, 25 U.S.C.A. § 47, could not be applied to road construction contracts; that the contract awarded Indian Construction was null and void; and that the Government (Interior-BIA) should be enjoined from entering into any future road construction contracts without complying with the public advertising requirements.

On appeal, Government contends that the District Court erred in finding and concluding that the BIA (Government) may not enter into road construction contracts with Indian owned contracting companies without publicly advertising for bids pursuant to 41 U.S.C.A. § 253.

The District Court saw the issues framed as follows: In 1976 the BIA implemented its "new" interpretation of the "Buy-Indian Act," Supra, (which Act had been in effect since 1910) under which the BIA entered into contractual negotiations with wholly owned Indian companies for road construction projects without complying with the advertising requirements of 41 U.S.C.A. §§ 5 and 253; under the "new" interpretation, bids are to be taken only among Indian owned contracting companies and non-Indian contractors are to be contacted and considered for road construction projects only after it has been determined that there are no qualified Indian contractors within the normal competitive area; Government claims that the "new" policy interpretive of the Buy-Indian Act falls within the "otherwise authorized by law" exception to advertising provided by 41 U.S.C.A. § 253(c)(15); 4 Glover contends that 41 U.S.C.A. § 252(e) fails to exempt contracts for the construction of roads from the advertising requirements, since it expressly exempts 41 U.S.C.A. § 252(c)(1)-(3), (10)-(12), and (14) but does not refer to subsection (15); the parties agree that 41 U.S.C.A. §§ 252 and 253 apply to the BIA.

The District Court ruled that the procedure followed by the BIA in awarding the road construction contract to Indian Construction contravenes the requirements of 41 U.S.C.A. §§ 252 and 253. We agree. The District Court's order is, in our view, worthy of quotation in pertinent part, to-wit:

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 contracts under the Buy Indian Act is unpersuasive. Congress saw fit to specifically exempt Seven subsections of section 252(c) from the advertising requirements with respect to road construction contracts and did Not include the "otherwise authorized by law" provision of subsection (c)(15) within this category. This is the subsection on which defendants rely.

The effect of the enumeration of express exceptions in a statute has been stated as follows:

The specification by the legislature of exceptions to the operation of a general statute, does not necessarily operate to preclude the court from applying other exceptions. However, where express exceptions are made, the legal presumption is that the legislature Did not intend to save other cases from the operation of the statute. Thus, the rule generally applied is that an exception in a statute amounts to an affirmation of the application of its provisions to all other cases not excepted, and excludes all other exceptions or the enlargement of exceptions made. Under this principle, where a general rule has been established by a statute with exceptions, the courts will not curtail the former, nor add to the latter, by implication. (Emphasis added.)

73 Am.Jur.2d Statutes § 316 (1974) (footnotes omitted). The court accordingly concludes that contracts for the construction of roads, such as the contract involved in the instant action, are Not excepted from the advertising requirements of section 253 by virtue of section 252(c)(15).

Defendants contend, however, that the Buy Indian Act has been interpreted for many years as authorizing construction contracting with invitations to bid restricted to Indian contractors, and that this administrative construction of the statute is entitled to great weight. Plaintiff contends that 20 BIAM Bulletin 1 of March 3, 1976 (Exhibit D to defendants' brief) represents a new policy, and even if not new, that the statutory interpretation therein espoused is entitled to little or no weight since it is not a contemporaneous statutory construction.

Defendants' exhibits establish at best that the interpretation set forth in the 1976 bulletin may date back as far as 1961. Assuming this to be true for the purpose of plaintiff's summary judgment motion it does not follow that such interpretation is entitled to be given great weight, or any weight, upon the question of the proper statutory interpretation.

Defendants rely on Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965), and United States v. Jackson, 280 U.S. 183, 50 S.Ct. 143, 74 L.Ed. 361 (1930) for the general rule of statutory construction that "great weight is properly to be given to the construction consistently given to a statute by the Executive Department charged with its administration." 280 U.S. at 193, 50 S.Ct. 143. The Court emphasized in Udall, however, that the Secretary had consistently construed the executive order and public land order there involved since their promulgation and that this interpretation had been made a...

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