UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA GOODWAY GRAPHICS OF VIRGINIA, INC., Plaintiff, v. UNITED STATES OF AMERICA and UNITED STATES GOVERNMENT PRINTING OFFICE, Defendants. Civil Action No. 92-0791 (JHG) 1992 U.S. Dist. LEXIS 8970 MEMORANDUM OPINION Plaintiff, Goodway Graphics of Virginia, Inc. ("Goodway"), commenced this disappointed bidder action on April 2, 1992 by filing a complaint and an application for a temporary restraining order. At the status conference held that date, the parties agreed that Goodway would replace its motion for a temporary restraining order with a motion for permanent injunctive relief and would amend its complaint accordingly. In furtherance of granting plaintiff's request for expedited consideration of the case, the Court, with the consent of the parties, set a final briefing schedule which would have made the case ripe for review on April 29, 1991. On April 13, 1992, defendants filed a Motion to Dismiss or, in the Alternative for Summary Judgment and Opposition to Motion for Injunctive Relief ("defendants' motion"). Plaintiff subsequently filed a motion for an extension of time until April 30, 1992 to respond to defendants' motion, which the Court granted. Although the plaintiff timely provided to the defendants a copy of its opposition to defendants' motion and though defendants filed a reply to the opposition on May 4, 1992, plaintiff did not file its opposition with the Court until May 22, 1992, three days after the Court informed counsel for the plaintiff that it had not received the filing. Upon consideration of all filings in this case, and for the reasons stated below, defendants' motion for summary judgment is granted. BACKGROUND Goodway is a Virginia Corporation which has provided various printing services to several agencies of the United States government. On February 21, 1992, the United States Government Printing Office ("GPO"), a legislative agency, issued a solicitation for a one-year contract, beginning April 1, 1992 and ending March 31, 1993, to obtain rapid turn-around printing services. Under the contractual scheme set forth in the solicitation, GPO planned to hire numerous printers to be placed on a list from which GPO could select for the performance of certain services as the need arose. Accordingly, the contract sought by Goodway and at issue in this case was not awarded to a sole contractor to the exclusion of others. Goodway had previously participated in similarcontracts with GPO and was most recently a contractor on the list of service providers during the contractual period immediately preceding the one at issue. According to the statutes and regulations governing the contract procurement, a bidder was required to submit to GPO a "certificate of integrity," a document certifying that the bidder and its officers, employees, and agents have not violated provisions of the Office of Federal Procurement Policy Act, codified at 41 U.S.C. § 423. See 41 U.S.C. § 423(e); GPO Procurement Instruction 318.1.1 Although Goodway had previously submitted numerous bids for other contracts with the government and was aware of the certificate of integrity requirement, it inadvertently failed to submit such a certificate at the time it submitted its bid for the contract at issue. The bids were opened on March 20, 1992, and because plaintiff's bid was not accompanied by a certificate of integrity, it was rejected on March 23, 1992 as nonresponsive. When Robert Perotti, Sr., Senior Vice President of Goodway, was advised on March 23, 1992 that his company's bid had been rejected, he immediately offered to submit and subsequently sent to GPO an executed certificate of integrity. Affidavit of Robert Perotti, Sr., attached to plaintiff's Application for Temporary Restraining Order and Certificate of Counsel. The GPO, however, did not accept the late certificate nor did it reconsider Goodway's bid. On April 1, 1992, thirty-four responsive vendors were awarded contracts. DISCUSSION Because defendants' motion relies in part on matters outside of the pleadings, the Court will treat the motion as one for summary judgment. See Fed. R. Civ. P. 12(b). Summary judgment is appropriate when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "The inquiry performed is the threshold inquiry of determining whether there is a need for trial--whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. At the same time, however, Rule 56 places a burden on the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Goodway claims that GPO's refusal to allow it to file a certificate of integrity on March 23, 1992 violates the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., and the Competition in Contracting Act ("CICA"), 10 U.S.C. § 2304(a)(1)(A). More specifically, Goodway claims that GPO's rejection of the untimely submission of a certificate of integrity was arbitrary and capricious and hindered full and open competition for government contracts. Defendants assert that the APA and CICA do not apply to legislative agencies such as GPO. Alternatively, they argue that GPO's refusal was required by agency regulations and was reasonable, and that GPO's actions therefore were in accordance with the APA and CICA. Because GPO's rejection of Goodway's bid was in accordance with the requirements of the APA, whether the APA applies to GPO contract procurements need not be resolved in this case. To successfully challenge an agency's procurement decision under the APA, a plaintiff must meet the heavy burden of establishing "either that (1) the procurement official's decisions on matters committed primarily to his own discretion had no rational basis, or (2) the procurement procedure involved a clear and prejudicial violation of applicable statutes or regulations." Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973) (citations omitted). The GPO's decision to reject Goodway's bid as nonresponsive was compelled by GPO regulations and, therefore, was not within the discretion of the contracting officer. Because the contract solicitation at issue involved a sealed bid procurement exceeding a value of $ 100,000, GPO's Procurement Instruction 318.1 P 9(b) (3)(i) required that a signed certification be submitted by each bidder with its bid submission. Part (C) of that subsection declares that "Failure of a bidder to submit the signed certificate with its bid shall render the bid nonresponsive." All of the bidders for the contract at issue had ample notice of the restrictions set forth in Instruction 318.1. The first page of GPO's solicitation for the contract at issue clearly informed them that the bid and the certification must be submitted contemporaneously. 2 In addition, GPO had sent letters in 1989 to many of its routine contractors, including Goodway, stating that a certificate of integrity "must be submitted with your bid [for a contract award which exceeds $ 100,000], or you will be declared ineligible for award." Defendants' motion, Attachment B (emphasis in original). The regulation requiring contemporaneous submission of a certificate with a bid is not arbitrary, capricious, or unfair. To the contrary, the regulation is necessary to protect the integrity of the sealed bidding process. According to the firm bid rule, applicable to contracts such as the one at issue, a sealed bid is binding on the offeror when it is accepted by the agency. The GPO, however, is prohibited from awarding a contract to a bidder prior to receipt of a certificate of procurement integrity. See Federal Procurement Policy Act Amendments of 1988, codified at 41 U.S.C. § 423(e). Consequently, if bidders could delay submission of certificates of integrity until after the opening of the bids and until after the agency determined the awardee, and if the winning bidder subsequently determined that its bid was imprudent, the bidder could avoid performance by refusing to submit its certificate. As the United States Claims Court ruled in a case with substantially similar facts, it is not unreasonable for an agency to foreclose a bidder's ability to renege on its bid by failing to submit a certificate, nor is it unreasonable to desire that an agency be able to execute a contract upon determination of the low bid without the necessity of waiting for further documentation. McMaster Construction, Inc. v. United States, 23 Cl.Ct. 679, 686 (1991). The fact that Goodway submitted previous certificates of integrity is insufficient to cure its failure to submit appropriate certification for the contract at issue. The certificate of integrity is contract-specific; it attests that the bidder has not violated relevant laws "during the conduct of this procurement" and that each officer, employee, agent, representative, and consultant of the bidder "who has participated personally and substantially in the preparation or submission of this offer" has not violated certain statutes or regulations. Sample Certificate of Procurement Integrity, attached to defendants' motion (emphasis added). Accordingly, any previous certificates of integrity could not substitute for the one which Goodway did not timely provide. Plaintiff's claim that the contemporaneous requirement violates CICA is rejected. Though it appears that defendants correctly assert that CICA does not apply to legislative agencies such as GPO, see 41 U.S.C. § 401, even if CICA did apply to the procurement at issue, GPO's rejection of Goodway's bid as nonresponsive would not violate the Act. While it is true that 10 U.S.C. § 2304(a)(1)(A) requires the head of an agency to "obtain full and open competition through the use of competitive procedures" in accordance with law, and although plaintiff correctly represents that 41 U.S.C. § 403(7) defines "full and open competition" to mean that "all responsible sources are permitted to submit sealed bids or competitive proposals on [a] procurement," Goodway was not "clearly and unlawfully excluded from participation in the solicitation by rejection of it's [sic] bid" as plaintiff alleges. Plaintiff's Application for a Temporary Restraining Order at 4. To the contrary, and for reasons stated above, Goodway's bid was lawfully rejected. Plaintiff's bid would have been considered had it been accompanied by a certificate of integrity, and the requirement that certification be submitted with a bid was not onerous, as Goodway's past compliance with the rule illustrates. Regardless of whether the GPO desired Goodway on the list of available service providers as Goodway claims, plaintiff failed to comply with an enforceable rule. Rejection of its bid, therefore, was not a violation of GPO's duty to obtain "full and open competition" through the use of competitive procedures. However promptly plaintiff moved to correct its failing and however harsh this result, there is no avenue for exception. CONCLUSION Accordingly, for the reasons stated above, judgment will be entered on the accompanying judgment page in favor of defendants United States of America and United States Government Printing Office and against plaintiff Goodway Graphics of Virginia, Inc. IT IS SO ORDERED. June 23, 1992 JOYCE HENS GREEN United States District Judge JUDGMENT - June 23, 1992, Filed For reasons stated in the Memorandum Opinion issued this date, judgment is entered in favor of defendants United States of America and United States Government Printing Office and against plaintiff Goodway Graphics of Virginia, Inc. IT IS SO ORDERED. June 23, 1992 JOYCE HENS GREEN United States District Judge _______________ 1 See page 31 of Attachment A to defendants' motion. 2 Page 1 of the solicitation read: SEE MANDATORY PROCUREMENT INTEGRITY REQUIREMENTS ATTACHED. For purposes of the Requirement for Certificate of Procurement Integrity, the total value of all orders is estimated to exceed $ 100,000 and an executed certificate of procurement integrity is required from all bidders with bid submission. Plaintiff's complaint, Exhibit A (emphasis added).