Mount Joy Const. Co., Inc. v. Schramm
Decision Date | 10 January 1980 |
Docket Number | Civ. A. No. 79-3733. |
Citation | 486 F. Supp. 32 |
Parties | MOUNT JOY CONSTRUCTION CO., INC. v. Jack J. SCHRAMM, Regional Administrator, Environmental Protection Agency, Region III and Middletown Township, Delaware County Sewer Authority. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Robert A. Korn, Philadelphia, Pa., for plaintiff.
Robert B. Surrick, Media, Pa., Sheldon Novick, Reg. Counsel, EPA, A. Serritella, Asst. U. S. Atty., Philadelphia, Pa., for defendants.
Plaintiff instituted this action for declaratory relief to determine that "procurement" as used in pertinent EPA regulations includes original acquisition of goods and services required by an original contract as well as subsequent change orders. Plaintiff also seeks a writ of mandamus directing the Regional Administrator to conduct further proceedings, or alternatively, ordering the Regional Administrator to resume review of plaintiff's protest filed with the Authority in accordance with its interpretation. The Authority then filed a motion to dismiss, which, construed as a motion for summary judgment, will be granted.1
In tandem therewith, § 35.936(a) elaborates:
Repeated references to the "procurement process" and avoiding delay thereto anticipate that portion of the proceedings when EPA awards the initial grant.
Moreover, when a complaining party files a protest, the grantee is initially responsible for resolving the dispute and must afford the complaining and other interested parties an opportunity to present arguments. The grantee must inform them of the procedure which the grantee expects to follow and to "obtain an appropriate extension of the period for acceptance of the bid and bond(s) of each interested party where applicable . . .." All of this language in § 35.939 is directed toward and drafted in terms of a protest arising at the contractor selection stage. Nothing indicates that the protest procedure anticipated inclusion of disputes involving contract performance, contract administration or any other post-award matter.
The protest procedure established by the regulations did not intend to involve EPA in contractual disputes handled and determined by state law. 40 C.F.R. § 35.939(j)(3). Where the agency construction of the questioned regulation harmonizes with the obvious purpose of the regulatory scheme judicial deference thereto seems particularly appropriate. See Mourning v. Family Publication Service, Inc., 411 U.S. 356, 369-72, 93 S.Ct. 1652, 1660-62, 36 L.Ed.2d 318 (1973).
Accordingly, plaintiff's argument, briefly stated, lacks merit. Plaintiff argues that pursuant to § 35.939(a) a party adversely affected financially by the grantee's procurement decision may file a protest alleging a violation of the "procurement" requirements of 40 C.F.R. §§ 35.936 through 35.938-9. Therefore, a dispute arising under § 35.938-5, relating to negotiation of change orders, is protestable. However, numerous sections fall within the range of sections referenced in § 35.939, but an alleged violation of one of those sections does not automatically create a proper protest situation. As the Regional Administrator concluded in Point of Rocks, the alleged violation must involve a procurement, and not all of the sections between §§ 35.936 and 35.938-9 deal...
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