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Merriam v. Kunzig

April 27, 1973

JOHN W. MERRIAM, APPELLANT
v.
ROBERT L. KUNZIG, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, A. J. SAMPSON, COMMISSIONER, PUBLIC BUILDING SERVICE OF THE GENERAL SERVICES ADMINISTRATION, L. M. SHIPP, JR., ASSISTANT COMMISSIONER, SPACE MANAGEMENT OF THE GENERAL SERVICES ADMINISTRATION AND THE GENERAL SERVICES ADMINISTRATION OF THE UNITED STATES OF AMERICA



476 F.2d 1233. (D.C. Civil Action No. 71-2262). APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

Seitz, Chief Judge, Van Dusen, Aldisert, Adams, Gibbons, Rosenn and Hunter, Circuit Judges.

Author: Per Curiam

Opinion ON PETITION FOR REHEARING

The appellees in their petition for rehearing assert that the award of a contract to Gateway Center Corporation (Gateway) was a negotiated contract, and that statutory provisions relating to advertising for bids are irrelevant to such contracts. Throughout this case, until the petition for rehearing, the parties, the district court, and this court have treated the issues on the assumption that the plaintiff-appellant was a bidder who responded unsuccessfully to an advertisement for bids. The record establishes that there was an advertisement soliciting bids, and the defendants' moving papers refer repeatedly to acceptance of Gateway's bid. The General Accounting Office treated the dispute as one involving acceptance of a bid solicited by advertising. The procurement in question does not appear to fall within any exception to the general rule that "all purchases and contracts for property and services shall be made by advertising. . . ." 41 U.S.C. § 252(c). The Armed Services Procurement Act, 10 U.S.C. § 2302(2), defines negotiate to mean a contract without formal advertising. The Federal Property and Administrative Services Act of 1949, 41 U.S.C. §§ 251-60, does not contain a definitions section, but 41 U.S.C. § 254(c) implies that negotiated contracts are those accomplished without advertising. Our holding is limited to a reversal of a grant of summary judgment, however, and does not foreclose the district court from considering a different theory of defense to the action on a different record if it deems that course to be proper. As was suggested in note 7 to the panel opinion, the district court must also consider whether Merriam may have standing even aside from the Federal Property and Administrative Services Act of 1949.

The petition for rehearing will be denied.

ADAMS, Circuit Judge, dissenting sur the denial of the petition for rehearing en banc:

In my view, this case raises two distinct legal problems: (1) whether the plaintiff has standing in the Article III sense; and (2) whether he has a substantive legal claim cognizable in a federal court. By combining the discussion of these two questions under the general heading "standing," the panel's opinion may well have obscured the significance of the second issue.

Under the title "standing," the panel first concludes that the plaintiff has suffered injury in fact.*fn1 The panel then proceeds, under the same heading, to consider whether the plaintiff is protected by (falls within the "zone of interest" of) the statute in question.*fn2 Noting that the statute " does not permit the acceptance of a bid*fn2a not conforming to the invitation to bids," the opinion concludes regarding the "zone of interest" issue:

"Patently the statute protects not only the Government's interest in securing advantageous contracts, but also the interests of those responding to the Government's invitation to do business with it. Merriam, as a bidder, is within the zone of interest protected by the applicable procurement statute." Id. 476 F.2d at 1242 (footnotes and citations omitted).

I am not convinced that the plaintiff has satisfactorily demonstrated that he or any interest or legal right of his was intended by Congress to be protected by the statute in question. At the same time, a careful review of the relevant case law has persuaded me that the panel's analysis of the important issues presented in this appeal may lead to uncertainty in an area of the law already too well known for its lack of guidance.

For these reasons, and because of the effect the improper resolution of this second issue may be thought to have upon the role of federal courts in our system of government, I respectfully dissent from the Court's decision not to reconsider en banc this important aspect of the present appeal.

In view of the vast literature on the standing doctrine,*fn3 it would serve little purpose to repeat what others have already said, except to point out that the standing inquiry focuses upon whether the particular plaintiff "has a sufficient personal interest in getting the relief he seeks. . . ."*fn4 Putting that question to one side,*fn5 I am troubled by the panel's approach to determining whether Congress has revealed any interest in protecting a party such as this plaintiff.

When Congress has not explicitly provided in a given legislative enactment for judicial review of agency action either generally or at the behest of a particular class of litigants (i.e., private individuals), the question may arise whether one seeking to challenge the validity of an agency's action may do so in the courts despite the legislative silence.*fn6 Although this problem may not logically appear to raise a typical standing issue,*fn7 courts have often sought to resolve it, under the standing rubric, by inquiring whether the plaintiff has a "legally protected interest" or "legal right."*fn8

For example, in Tennessee Electric Power Company v. TVA*fn9 nineteen power companies attempted to attack the constitutional validity of the Tennessee Valley Authority. Despite the financial harm the plaintiffs had suffered, the Supreme Court concluded that they had no right derived from either common law or statute to be free from competition. To bring such a suit, the "right invaded [must be] a legal right, -- one of property, one arising out of contract, one protected against tortious invasion, or ...


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