Jones & Artis Const. v. Contract App. Bd.

• Decision Date: 25 October 1988
• Docket Number: No. 87-639.,87-639.
• Citation: 549 A.2d 315
• Parties: JONES & ARTIS CONSTRUCTION COMPANY, Petitioner, v. DISTRICT OF COLUMBIA CONTRACT APPEALS BOARD, Respondent.
• Court: D.C. Court of Appeals

549 A.2d 315

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 October 25, 1988.

John William Mannix, Washington, D.C., for petitioner.

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 has been limited by Congress, save for exceptions inapplicable here, to review of "contested cases." Because Jones & Artis' protest did not create a contested case before the Board, we must dismiss the appeal. Interestingly, however, had Jones & Artis filed an "appeal" with the Board, as it contends it did, that might have presented a contested case that ultimately was reviewable by this court. Accordingly, in order to resolve our own jurisdiction here, we have had to determine whether an "appeal" or a "protest" to the Board is at issue — a determination that, for all practical purposes, resolves the merits.

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. D.C.Code §§ 1-1181.1 to 1-1192.6 (1987). Under that statute, a protest must be filed within ten working days from the time the aggrieved person knew or should have known of the circumstances giving rise to the protest. Id. § 1-1189.8(b). Consequently, the Chairman concluded, Jones & Artis — which had waited almost two months — did not file a timely challenge.

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. Id. §§ 1-1189.3(2), -1189.4(a). Before we address these concerns, however, we consider sua sponte the issue of our own jurisdiction.

II.

D.C.Code § 1-1189.5 (1987) provides for the direct appeal of a "Board decision" to this court within 120 days from the date of receipt of the decision.¹ This court, however, only has jurisdiction to review "an order or decision of the Mayor or an agency in a contested case." See D.C. Code §§ 11-722 (establishing jurisdiction over agency action); § 1-1510(a) (limiting review to contested cases) (1987). A "contested case" means a proceeding in which "the legal rights, duties, or privileges of specific parties are required by law (other than [the District of Columbia Administrative Procedure Act (DCAPA)]), or by constitutional right," to be determined after a trial-type hearing. See id. §§ 1-1502(8), -1509; Dupont Circle Citizens Association v. District of Columbia Zoning Commission, 343 A.2d 296, 298-99 (D.C. 1975) (en banc); Chevy Chase Citizens Association v. District of Columbia Council, 327 A.2d 310, 313-14 (D.C. 1974) (en banc). In addition to this general grant of jurisdiction, Congress itself on occasion has authorized this court to afford direct review of a particular type of agency determination even though there was no contested case. Hotel Association of Washington, D.C. v. District of Columbia Minimum Wage and Industrial Safety Board, 318 A.2d 294, 304 (D.C. 1974) (en banc). In contrast, however, the Council of the District of Columbia may not enlarge the congressionally prescribed limitations on our jurisdiction, most significantly the "contested case" limitation in the DCAPA. See D.C.Code § 1-233(a)(4) (1987) (Council may not adopt any provision "with respect to Title 11 (relating to organization and jurisdiction of the District of Columbia courts)"); Capitol Hill Restoration Society, Inc. v. Moore, 410 A.2d 184, 186-88 (D.C. 1979). This means that the Council may not confer jurisdiction on this court under D.C.Code § 1-1189.5 to review a Contract Appeals Board decision on an "appeal" or a "protest," see id. § 1-1189.3, unless the Board proceeding itself is a contested case.

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. §§ 1-1189.4 ("Contractor's right of appeal to Board"), -1189.6 ("Oaths, discovery, and subpoena power"); 27 DCMR §§ 200.1-299.1 ("Contract Appeals Board: Hearings and Decisions"). And, we are equally confident that a contractor's "protest" will not result in a contested case. The statute (and certainly the Constitution) does not require a hearing, let alone a trial-type hearing, to resolve a protest, see D.C.Code § 1-1189.8 ("Protest of solicitations or awards to Board"). Moreover, the Board currently functioning under the Procurement Practices Act of 1985 (more later about the Board's legal status) has adopted no regulations whatsoever pursuant to statutory authority, id. § 1-1189.8(f), that would suggest the Board might use a trial-type hearing to resolve a protest. Instead, under traditional government contract law, protests are decided on the written submissions, coupled on occasion with a "conference," not a formal hearing, attended by interested parties. See 4 C.F.R. §§ 21.0-21.12 (1988) ("Bid Protest Regulations"); W. KEYES, GOVERNMENT CONTRACTS IN A NUTSHELL 180 (1979). The 1985 Act appears to follow this model.

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 of public procurement disputes: (1) disputes arising in connection with solicitation of bids and awards of particular contracts, and (2) all other disputes, including controversies over contract performance as well as wholly separate proceedings to suspend or debar a particular business from consideration for a contract award. See, e.g., R. NASH, JR. & J. CIBINIC, JR., FEDERAL PROCUREMENT LAW (3d ed. 1980) (compare Vol. I (contract formation) with Vol. II (contract performance)); G. MONROE, GOVERNMENT CONTRACT LAW MANUAL (1979); W. KEYES, supra.

Customarily, complaints about the solicitation and award of contracts are called "protests."² Such alleged improprieties must be...