Mgmt. Ass'n for Private Photogrammetric v. U.S.

• Citation: 467 F.Supp.2d 596
• Decision Date: 13 December 2006
• Docket Number: No. 1:06CV378.,1:06CV378.
• Parties: MANAGEMENT ASSOCIATION FOR PRIVATE PHOTOGRAMMETRIC SURVEYORS, Council on Federal Procurement of Architectural and Engineering Services, National Society of Professional Engineers, American Society of Civil Engineers, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

467 F.Supp.2d 596

MANAGEMENT ASSOCIATION FOR PRIVATE PHOTOGRAMMETRIC SURVEYORS, Council on Federal Procurement of Architectural and Engineering Services, National Society of Professional Engineers, American Society of Civil Engineers, Plaintiffs, v. UNITED STATES of America, Defendant.

No. 1:06CV378.

United States District Court, E.D. Virginia, Alexandria Division.

December 13, 2006.

Daniel Henry Marti, Stephen Eric Baskin, Kilpatrick Stockton LLP, Washington, DC, for Plaintiffs.

Lauren A. Wetzler, United States Attorney's Office, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

In this APA¹ suit, four trade associations of surveyors and engineers challenge a regulation promulgated by the Federal Acquisition Regulatory Council ("FAR Council") that allows federal agencies to procure mapping services based on competitive bidding, a practice plaintiffs allege is (i) contrary to the engineers' professional codes in several states and (ii) inconsistent with the language of the Brooks Architect-Engineer Act, 40 U.S.C. § 1101 et seq. ("Brooks Act"). They seek a declaration to that effect, along with an injunction prohibiting enforcement of the regulation, and a mandatory injunction requiring the FAR Council to promulgate a regulation consistent with their interpretation of the Brooks Act. The government responds by arguing that plaintiffs lack the requisite constitutional and prudential standing to challenge the regulation, which the government claims is, in any event, fully consistent with the dictates of the Brooks Act.

At issue on the government's threshold Rule 12(b)(1), Fed.R.Civ.P., motion to dismiss for lack of subject matter jurisdiction is whether, as the government contends, plaintiffs lack the required constitutional and prudential standing to challenge the regulation at issue. For the reasons that follow, the motion fails.

I.

Plaintiffs are four trade associations of surveyors and engineers. They sue to vindicate the interests of their members, individual surveyors and mappers, whom they allege are unable to compete for government mapping contracts procured competitively because certain state ethics codes for surveyors forbid competitive bidding.

The FAR Council, which promulgated the challenged regulatory provision, is an administrative body composed of the Secretary of Defense, the Administrator of National Aeronautics and Space, the Administrator of General Services, and the Administrator for Federal Procurement Policy. 41 U.S.C. § 421(b). The Council's raison d'etre is "coordination of government-wide procurement policy . . . and regulatory activities." 41 U.S.C. § 421(a). More specifically, the FAR Council is responsible for promulgating and updating a single government-wide regulation establishing government procurement practices, known as the Federal Acquisition Regulation. See 41 U.S.C. § 421(f).² The challenged portion of the Federal Acquisition Regulation, 48 C.F.R. § 36.601-4(a)(4), is an interpretation of the Brooks Architect-Engineers Act ("Brooks Act"), a 1972 statute regulating the federal government's procurement of architectural and engineering services. See, 40 U.S.C. § 1101 et seq. The Brooks Act implements a Congressional policy of procuring "architectural and engineering services" for government projects based only on the qualification of firms bidding on the project. See 40 U.S.C. §§ 1101, 1103-04. This form of selecting contractors is commonly known as "qualification-based selection" or QBS. In selecting a contractor via QBS, an agency solicits statements from contractors about their qualifications, selects the most qualified contractor, and attempts to negotiate a reasonable price with that contractor. 40 U.S.C. § 1103, 1104(b). In the event negotiations fail to produce a fair price with that contractor, the agency proceeds to negotiate with, the next mostqualified contractor, and so on, until it can negotiate a fair price from a qualified contractor. Id. Under QBS, there is no competitive bidding for the lowest price.

Since the Brooks Act requires only "architectural and engineering services" to, be procured via QBS, other types of services are not subject to its strictures and may be secured by way of competitive bidding. Hence, whether a service must be procured via QBS turns on whether it is an "architectural or engineering service" within the meaning of the Brooks Act. In 1988, Congress amended the Brooks Act to define architectural and engineering services as

professional services of an architectural or engineering nature, as defined by state law, if applicable, that are required to be performed or approved by a person licensed, registered or certified to provide the services described in this paragraph ... [and] other professional services of an architectural or engineering nature, or incidental services, which members of the architectural or engineering professionals (and individuals in their employ) may logically or justifiably perform, including . . . surveying and mapping.

40 U.S.C. § 1102 (1988).

The challenged regulatory provision is the FAR Council's interpretation and implementation of this 1988 Brooks Act amendment. This provision states that mapping associated with real property "planning, development, design, construction or alteration" is considered an "architectural and engineering service" and thus must be procured by QBS. 48 C.F.R. § 36.601-4(a)(4). Yet, the challenged provision also states that "mapping services that are not connected to traditionally understood or accepted architectural and engineering activities, are not incidental to such architectural and engineering activities or have not in themselves traditionally been considered architectural and engineering services" are not architectural and engineering services, and therefore "shall be procured" by other procedures including, potentially, competitive bidding.³ Id. The plaintiffs' argument on the merits, succinctly put, is that the challenged regulatory provision is inconsistent with the Brooks Act because the Act requires that all federal contracts for mapping services must be procured by QBS, while the challenged regulatory provision exempts some mapping services from QBS.

At issue, however, on this threshold jurisdictional motion is not the merits, but plaintiffs' standing to sue. Plaintiffs assert that in states with ethics codes that prohibit engineers from participating in non-QBS selections,⁴ their members suffered injury in fact when they were precluded from competing for federal mapping contracts subject to competitive bidding pursuant to the challenged regulatory provision. The government responds that plaintiffs lack the injury in fact required for constitutional standing because they have identified no such injured member, nor have they identified a specific mapping contract procured by a federal agency through competitive bidding in a state where surveyors or engineers are prohibited from participated in such competitive bidding. The government further points out that plaintiffs have not identified any of their members who have been disciplined or threatened with discipline for bidding competitively. Moreover, in the government's view, where state law would prohibit such competitive bidding, but federal law would allow it, state law is preempted, thereby removing any obstacle to competitive bidding in those circumstances. The parties also dispute whether plaintiffs satisfy the prudential "zone of interests" test required for APA standing.

II.

There are, in general, two species of standing: (i) constitutional and (ii) prudential. Both are in issue here and each is separately addressed. Before doing so, however, it is important to describe briefly the proper procedure for resolution of standing challenges.

Standing, of course, is jurisdictional; its existence is a prerequisite to finding that a court has the power to adjudicate the cause. As such, standing is appropriately challenged via a motion pursuant to Rule 12(b)(1), Fed.R.Civ.P., and it is a plaintiffs burden to establish standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citing FW/PBS v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990)). Whether the analysis required to resolve a standing challenged is confined to the complaint's allegations or extends to evidence outside the pleadings depends on the nature of the challenge, of which there are two general types: (i) a claim that the allegations, even if true, do not establish standing, and (ii) a claim that the standing allegations are not true. See e.g. Crutchfield v. U.S. Army Corps. of Engineers, 230 F.Supp.2d 687, 695 (E.D.Va.2002); 5B Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure, 1350 (3rd ed.2004). The former type of challenge is typically resolved at the threshold stage without the need to consider evidence beyond the complaint's allegation& See Crutchfield v. U.S. Army Corps. of Engineers, 230 F.Supp.2d at 695. The latter type of challenge typically involves consideration of materials and evidence beyond the complaint's four corners, and in many cases the issue is not resolved until the summary judgment stage or thereafter. See e.g. Moore's Federal Practice 12.30[2] ("The truth of jurisdictional allegations need not always be determined with finality at the threshold . . .") (citing Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 537-38, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995)).

The standing challenge at issue here includes claims of both types. As explained below, the challenge to the sufficiency of the standing allegations fails, while resolution of the claim that challenges the truth of the standing allegations must await further development of the record.

III.

A. Constitutional Standing

The appropriate starting point for analysis of plaintiffs' standing is the constitutional or Article III standing...