Mikkilineni v. United Engineers & Constructors

• Decision Date: 04 March 1980
• Docket Number: Civ. A. No. 78-2790.
• Parties: M. R. MIKKILINENI, d/b/a M. R. Mikkilineni Co., Engineers v. UNITED ENGINEERS & CONSTRUCTORS, INC., Deleuw, Cather/Parsons and the Federal Railroad Administrator.
• Court: U.S. District Court — Eastern District of Pennsylvania

485 F. Supp. 1292

M. R. MIKKILINENI, d/b/a M. R. Mikkilineni Co., Engineers v. UNITED ENGINEERS & CONSTRUCTORS, INC., Deleuw, Cather/Parsons and the Federal Railroad Administrator.

Civ. A. No. 78-2790.

United States District Court, E. D. Pennsylvania.

March 4, 1980.

Ronald B. Merriweather, Philadelphia, Pa., Kenneth Weinstein, Dept. of Transportation, Washington, D. C., Robert S. Forster, Jr., Asst. U. S. Atty., Philadelphia, Pa., for defendants.

John S. Hibschman, Thomas F. Hafer, Fry, Hibschman, & Golden, Reading, Pa., for plaintiffs.

MEMORANDUM AND ORDER

TROUTMAN, District Judge.

To upgrade intercity railroad passenger service, Congress authorized defendant Federal Railroad Administrator (FRA) to administer the Northeast Corridor Improvement Program (NECIP) under the Railroad Revitalization and Regulatory Reform Act of 1976, 45 U.S.C. § 801 et seq. (Railroad Act). Implementing this act, the FRA entered into two major contractual agreements, one with the National Railroad Passenger Corporation, the other with defendant DeLeuw, Cather/Parsons (DCP) as a joint venture. Fulfilling its contractual obligations to the FRA, DCP was required to employ numerous prime and subcontractors, whose contracts with DCP had to include a goal of fifteen per cent minority business participation. Contractor selection involved consideration of a variety of factors, including whether the proposed contractor was minority¹ owned and whether it employed minority subcontractors. Firms which met either of these qualifications received "points" during the contract selection process. The firm awarded the most points negotiated the final contract with DCP.

Early in 1978, plaintiff, an "Asian-American from the Indian sub-continent", apparently qualified as a minority contractor. About the same time, DCP announced that it wished to receive bids from proposed general contractors for the design of power supply facilities and catenary systems, later known as "Project ZEQ", between Wilmington, Delaware, and Trenton, New Jersey. Plaintiff, doing business as M. R. Mikkilineni Company, Engineers, submitted bids for both the prime contract and, alternatively, a subcontract with another aspiring general contractor, defendant United Engineers and Constructors (U.E. & C.), whose presentation to the Contract Evaluation Board, the body authorized to award the contract, listed plaintiff as a prospective subcontractor. DCP awarded U.E. & C. the prime contract in April 1978 with instructions to submit a detailed contract estimate in order to open negotiations. Shortly thereafter, U.E. & C. and plaintiff entered into negotiations concerning both the price and scope of work which plaintiff would undertake.

During contract negotiations plaintiff sought from U.E. & C. information regarding the historic split between civil/structural and electrical portions of work on other substations. U.E. & C. refused to grant plaintiff access to this information.² When plaintiff requested this information from DCP, they, too, refused.³ Contract negotiations between plaintiff and U.E. & C. floundered until August 1978, when they were terminated by U.E. & C.

Plaintiff then filed a pro se complaint naming U.E. & C., DCP and the FRA as defendants.⁴ Six months later, plaintiff, now represented by counsel, filed against the same three defendants an amended complaint which sought damages and equitable relief for alleged violations of the Brooks Act, 40 U.S.C. § 541 et seq., Sherman Act, 15 U.S.C. § 1, § 2, Civil Rights Act of 1866, 42 U.S.C. § 1981, Civil Rights Act of 1871, 42 U.S.C. § 1985(3), Railroad Revitalization and Regulatory Reform Act, 45 U.S.C. § 803(a) (which prohibits discrimination by recipients of federal funds) and regulations promulgated thereunder, review of agency action pursuant to the Administrative Procedure Act, 5 U.S.C. § 702, and breach of contract.⁵

Plaintiff attacks the method employed in selecting U.E. & C. as the prime contractor. More specifically, plaintiff contends the criteria violate the Brooks Act, which requires the Federal Government to "negotiate contracts for architectural and engineering services on the basis of demonstrated competence and qualification for the type of professional services required". 40 U.S.C. § 542 (emphasis added). Factors which the Contract Evaluation Board analyzed in making its determination included "institutional maturity, organizational framework, management plans and approach, management group experience, availability of disciplines". Plaintiff complains that these criteria unduly stress those factors most likely to yield selection of a large, established firm rather than a small minority one with individual rather than institutional competence and qualifications.⁶

Defendants contend that federal regulations allow consideration of those factors which plaintiff attacks. Specifically, defendants point to Brooks Act regulations stating that

in evaluating architect-engineer firms the architect-engineer evaluation board shall apply the following criteria, other criteria established by agency regulation, and any criteria set forth in the public notice on a particular contract:

(a) Specialized experience and technical competence of the firm (including a joint venture or association) with the type of service required;

(b) Capacity of the firm to perform the work (including any specialized services) within the time limitations;

(c) Past record of performance on contracts with Government agencies and private industry with respect to such factors as control of costs, quality of work, and ability to meet schedules.

41 C.F.R. § 1-4.1001-3 (emphasis added).

Neither the facts nor the law support plaintiff's position that the contractor selection process contravenes the Brooks Act, which requires negotiations on the basis of "demonstrated competence". This demonstration of competence can either be of an individual or institutional nature. DCP's selection criteria consider both.⁷ Plaintiff's position is further eroded by the undisputed fact that minority architect/engineering firms perform 27% of the work, or 29.23% of the total negotiated value on the entire NECIP.

Plaintiff's profuse allegations breed many other issues, whether plaintiff, a United States citizen from the Indian subcontinent, is a "minority" within the meaning of 49 C.F.R. § 265.5(i),⁸ whether U.E. & C., DCP and FRA discriminated against him due to his alleged minority status and whether the failure of defendants to provide plaintiff with certain information during contract negotiations violated affirmative action requirements provided by 49 C.F.R. § 265.13.

Before addressing the issues outlined above our attention is directed to the threshold inquiry of whether a private right of action under the Railroad Act and regulations promulgated thereunder exists on behalf of plaintiff. Moving for summary judgment, defendant DCP denied any racial/national origin discriminatory intent in its dealings with plaintiff and further asserts that since the Railroad Act does not expressly provide for a private right of action, this Court should refuse to imply one, pointing out, however, that if a private right of action is implied, the doctrine of exhaustion of administrative remedies requires remanding the case for administrative proceedings.

A four-part balancing test generally answers whether a private cause of action should be implied. That test, announced in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975), requires consideration of these questions:

is the plaintiff "one of the class for whose especial benefit the statute was enacted" — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? (citations omitted)

See also National Sea Clammers Association v. City of New York, 616 F.2d 1222 (3d Cir. 1980) and Healey v. Catalyst Recovery of Pennsylvania, Inc., 616 F.2d 641 (3d Cir. 1980) (Aldisert, J., dissenting). Cf. Transamerica Mortgage Advisors, Inc. v. Lewis, ___ U.S. ___, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). Applying this test, the Supreme Court recently held in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), that a statutory scheme, which defendant DCP admits is "remarkably similar" to the one at bar, did provide for a private right of action. The Cannon court considered whether a private right of action could be implied under 20 U.S.C. § 1681, et seq. (Title IX). Importantly, the prohibition against sexual discrimination in education is virtually identical to the prohibition against racial and other discrimination proscribed by the Railroad Act.

The first strand of the Cort analysis requires consideration of whether the plaintiff is "one of the class for whose especial benefit the statute was enacted". Writing for the Cannon majority, Mr. Justice Stevens found that Congress drafted Title IX with the "unmistakable focus on a benefited class" rather than "a ban on discriminatory conduct by recipients of federal funds or ... a prohibition against disbursement of public funds to educational institutions engaged in discriminatory practices." Cannon v. University of Chicago, at 691-693, 99 S.Ct. at 1955. The Court hinted that a private right of action will be implied under those statutes which, by their language, "expressly identify the class Congress intended to benefit". Id. at 690, 99 S.Ct. at 1954. In fact, "with the exception of one case, in which the relevant statute reflected a special policy against judicial...