TM Systems, Inc. v. United States

• Decision Date: 03 May 1979
• Docket Number: Civ. No. B-79-89.
• Citation: 473 F. Supp. 481
• Court: U.S. District Court — District of Connecticut
• Parties: T M SYSTEMS, INC. v. UNITED STATES of America et al.

473 F. Supp. 481

T M SYSTEMS, INC. v. UNITED STATES of America et al.

Civ. No. B-79-89.

United States District Court, D. Connecticut.

May 3, 1979.

COPYRIGHT MATERIAL OMITTED

Richard L. Albrecht, Cohen & Wolf, P. C., Bridgeport, Conn., for plaintiff.

Richard Blumenthal, U. S. Atty., Hugh W. Cuthbertson, Asst. U. S. Atty., New Haven, Conn., for defendants.

MEMORANDUM OF DECISION

ELLEN B. BURNS, District Judge.

This action involves the award of a government contract for the procurement by the Federal Aviation Administration (FAA) of tone suppression amplifiers, devices to protect air traffic controllers from being injured by occasional "tone explosions".

The factual setting alleged in the complaint and attached exhibits is simple. Plaintiff, T M Systems (hereafter T M), and several other bidders submitted proposals which were acceptable under the first step of the agency's two-step bidding process. When invited to submit cost proposals as the second step of the process, plaintiff and two others prepared bids. Plaintiff bid $632,661; Univox California, Inc. bid $810,316; and Target Corp. bid $1,152,891. Unfortunately, a price line adjacent to item 10f was omitted on the Invitation for Bid form, and only Target Corp. supplied a price for that item.

When the bids were examined, the omission was discovered, and the FAA made a preliminary decision that both T M's and Univox's bids were responsive, although the FAA believed that Univox's case for responsiveness was stronger because Univox, unlike T M, had specifically offered to furnish the item in question in its first-step proposal, and therefore the FAA assumed that the item's cost was included in another price quote. Before making the award, the FAA requested an advisory opinion from the Comptroller General concerning the responsiveness of both the T M and the Univox bid. The Comptroller General advised that Univox's bid was responsive but that T M's was not, because T M, unlike Univox, failed to refer to the 10f item in its first-step proposal.

Plaintiff, believing that the FAA was about to award the contract to Univox on the basis of this decision, filed this action for an injunction restraining defendant from granting the award to anyone but T M. Plaintiff claims that the Comptroller General of the United States has acted in excess of his jurisdiction and authority in contradicting the findings of the FAA. Furthermore, plaintiff claims, the granting of the award to anyone but T M would be "in violation of the Regulations and Procedures governing Federal Agencies."

In response, the government argues that this Court lacks jurisdiction to consider a claim brought by an unsuccessful bidder for a review of an agency procurement decision and thus in this situation cannot issue an injunction concerning the award of a government contract. The court is persuaded by this argument and therefore dismisses the action for lack of jurisdiction.

Plaintiff alleges jurisdiction on several grounds, one of which is 28 U.S.C. § 1346 which gives the district court concurrent jurisdiction with the Court of Claims over claims against the United States not exceeding $10,000. This is not an action for damages, but, even if it were, plaintiff's claim (unless he claims only recovery of the costs of bid preparation, see Keco Industries, Inc. v. United States, 428 F.2d 1233, 1240, 192 Ct.Cl. 773 (1970), surely exceeds $10,000, and jurisdiction is thus not proper here.

Another jurisdictional basis claimed by plaintiff is 28 U.S.C. § 1361 which confers jurisdiction on the district court over "any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." The enactment of this section did not create new liabilities or new causes of action against the United States government nor did it provide a forum for actions which could not have been brought against a federal official prior to its enactment. Craig v. Colburn, 414 F.Supp. 185 (D.Kan.1976). Its purpose was "not to direct or influence the exercise of discretion of the officer or agency in the making of the decision." Senate Report No. 1992, 1962 U.S.Code Cong. & Admin.News at 2784-85 (87th Cong., 2d Sess.). Rather, it was merely to broaden the venue in which mandamus actions against federal officers may be brought. Before enactment of § 1361 such actions could be brought only in the District of Columbia; now they may be brought in any district court.

In order to bring an action under this section, plaintiff must show that defendant owed a duty to plaintiff. Plaintiff must show it has a clear right to the relief sought, that the duty on defendant's part is peremptory and ministerial and that plaintiff lacks another available adequate remedy. Billiteri v. United States Bd. of Parole, 541 F.2d 938 (2d Cir. 1976). Since defendant's decisions as to the responsiveness of particular bids and as to who will receive the award are clearly discretionary, plaintiff has failed to make a showing of a duty owed to it sufficient to support jurisdiction under 28 U.S.C. § 1361.

Plaintiff's third jurisdictional claim is that jurisdiction is granted by the Administrative Procedure Act, (APA) 5 U.S.C. § 701 et seq. While plaintiff cites no particular section in his complaint, his memorandum looks to § 10 of the APA (5 U.S.C. § 702) which provides that "a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." This section has been held to confer standing on a disappointed bidder, Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970), but in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), the Court specifically held that "the APA is not to be interpreted as an implied grant of subject matter jurisdiction to review agency actions." Thus, the APA may confer standing, but this court must look elsewhere for jurisdiction to entertain the disappointed bidder's claim. Cf. T. M. Systems, Inc. v. "Richard Roe", No. B-76-102 (D.Conn. Jan. 3, 1978).

A fourth basis for jurisdiction claimed here is 28 U.S.C. § 1332, the diversity section. Plaintiff is a Delaware corporation with a principal place of business in Connecticut. Hence, for diversity purposes, it is a citizen of either Delaware or Connecticut, 28 U.S.C. § 1332(c). Defendant Caudill is being sued in his official capacity as contracting officer of the FAA, and in this capacity he is a citizen of the District of Columbia, Honchok v. Hardin, 326 F.Supp. 988 (D.Md.1971). Defendant United States, however, is not a citizen of any state within the meaning of diversity jurisdiction. Darling v. United States, 352 F.Supp. 565 (E.D.Cal.1972); cf. Central Stikstof Verkoopkantoor, N. V. v. Alabama State Docks Dept., 415 F.2d 452 (5th Cir. 1969) and West Virginia v. Haynes, 348 F.Supp. 1374 (S.D.W.Va.1972) to the same effect regarding states. Thus, diversity is destroyed unless the United States is not an indispensable party to this suit. Levitt & Sons, Inc. v. Swirnow, 58 F.R.D. 524 (D.Md. 1973); Codagnone v. Perrin, 351 F.Supp. 1126 (D.R.I.1972).

It need not be determined whether the United States is an indispensable party, however, because another factor bars jurisdiction based on § 1332. In an ordinary diversity case, jurisdiction is proper in a federal district court only if a court in the state where the federal court sits would have asserted jurisdiction over the case under constitutionally valid state legislation. Arrowsmith v. United Press Int'l, 320 F.2d 219 (2d Cir.1963). Since the defendant contracting officer is sued in his official capacity, he may only be served where he officially resides unless he has appointed an agent for service of process elsewhere. Plaintiff has cited no statute, state or federal, which subjects defendant Caudill to service of the process of the Connecticut courts. Extensive independent research by this Court has also failed to locate such a statute. It is apparent, then, that this action could not be maintained in the Connecticut courts and thus that jurisdiction is not proper here. This conclusion is bolstered by the grave constitutional doubt concerning whether a state court has the power to enjoin the actions of a federal official, see the...