No. 86-0353

629 F. Supp. 350

Joseph West, Junius McElveen, Donald C. Holmes, Jones, Day,
Reavis & Pogue, 655 - 15th Street, N.W., Washington, D.C.
20005-5701, for plaintiff.

John D. Bates, Asst. U.S. Attorney, U.S. Courthouse, 3rd and
Constitution Ave., N.W., Washington, D.C. 20001, for defendant.

                       MEMORANDUM OPINION


This case raises several challenges to the General Services
Administration's ("GSA") role under the Brooks Act, 40 U.S.C.
 759, in overseeing certain contracts awarded by the Government
Printing Office ("GPO"). Plaintiff Electronic Data Systems (EDS)
was awarded GPO's contract for Army printing. Disappointed
offerors Xerox, Volt and AT&T sought review of the award before
the General Services Administration Board of Contract Appeals
("GSBCA"). EDS' motion to dismiss the GSBCA proceedings for lack
of jurisdiction was denied on February 4, 1986. The GSBCA found
preliminarily that (1) GPO is subject to the Brooks Act, (2)
GSBCA has jurisdiction over a contract award challenge, even
though the contract was not conducted under the direct or
delegated procurement authority of GSA, and (3) the Office of
Management & Budget's ("OMB") jurisdiction to resolve inter-
agency disputes under the Brooks Act does not divest the GSBCA of
jurisdiction to determine whether a particular contract is for
automatic data processing equipment ("ADPE") and hence within the
Brooks Act. The GSBCA then suspended performance of the Army
printing contract, pending its final hearing on the merits. On
February 3, 1986, EDS wrote to OMB, requesting a determination as
to whether the contract in issue was for ADPE. OMB has stated
that it will render a decision no later than March 4th.

EDS seeks declaratory and injunctive relief, claiming that the
GSBCA's exercise of jurisdiction over GPO and its suspension of
this contract under the Brooks Act are unlawful. EDS' original
application for a temporary restraining order was denied without
prejudice on February 7, 1986, and Xerox, Volt and AT&T were
given leave to intervene as defendants. GPO was granted leave to
enter as amicus. The case is presently before the Court on
plaintiff's renewed application for a temporary restraining
order, GPO's motion to intervene as plaintiff, and the Army's
motion to intervene as defendant.1 Upon consideration of the
supporting and opposing memoranda, and lengthy oral argument of
counsel, and after a thorough review of the record in this
matter, the Court concludes that a temporary restraining order
should issue, and that the motions to intervene under Rule 24(a)
should be denied.

Temporary Restraining Order

To determine whether a temporary restraining order should issue
in this case, the Court must consider (1) the plaintiff's
likelihood of prevailing on the merits, (2) whether plaintiff
will suffer irreparable injury absent preliminary relief, (3) the
possible harm to other interested parties if injunctive relief is
granted, and (4) wherein lies the public interest. Virginia
Petroleum Jobbers Assoc. v. F.P.C., 104 U.S. App. D.C. 106, 259
F.2d 921, 925 (D.C. Cir. 1958). In the context of the limited
purpose of a temporary restraining order, the Court's analysis of
these factors seeks principally to ensure preservation of the
status quo. See generally Enercons Virginia, Inc. v. American
Security Bank, 231 U.S. App. D.C. 264, 720 F.2d 28, 29 (D.C. Cir.
1983) (temporary injunctive relief beyond preservation of status
quo improper at preliminary stage).

The facts relevant to this inquiry have been amplified by the
recent affidavits filed by the defendant GSA, and by further
argument of counsel. Pursuant to the GSBCA's order, GPO has
suspended all printing of Army materials. The ensuing backlog of
work which is accruing daily will place a heavy financial burden
on GPO once GSBCA's stay is lifted.2 Further, GPO is required to
devote considerable time and manpower to respond to the present
administrative proceedings. While litigation expenses incurred by
parties are not generally viewed as "irreparable injury," see
generally FTC v. Standard Oil of California, 449 U.S. 232, 66 L.
Ed. 2d 416, 101 S. Ct. 488 (1980), in light of the imminent
decision by the OMB which may resolve the challenge to the GSBCA
proceedings, the litigation burden imposed upon GPO appears
unduly onerous. In addition, GSA - the original named defendant -
has conceded that the injuries borne by GPO warrant some type of
temporary injunctive relief. The remaining defendants have
articulated as harm only monetary losses which would not be due
specifically to any temporary delay in the Board proceedings.

Plaintiff has accordingly met its burden of showing that a
restraining order is needed to maintain the status quo. The
merits of plaintiff's claims remain to be developed, but they do
not appear to the Court to be without basis. Thus, given the
balance of the equities in this case, the irreparable injury to
the petitioner and amicus, and the fact that a pending OMB
procedure may resolve the parties' concerns about the propriety
of the GSBCA proceedings in 14 days, the Court concludes that
temporary relief is warranted. Therefore, the limitation on GPO
and EDS which precludes them from satisfying any of the Army's
printing requirements is temporarily lifted for 10 days from the
date of this order, or until OMB rules on the EDS inquiry,
whichever occurs first and the GSBCA proceeding is temporarily
stayed for 10 days or until OMB rules, whichever first occurs.

Motions to Intervene

Both GPO and the Army have moved to intervene as of right under
Fed. R. Civ. P. 24(a)(2) based upon their interests in the
printing contract at issue, claiming that existing representation
does not adequately represent their particular interests.
Although no party's views and interests mirror any other's in
this action, both the Government and the private parties are
well-represented before the Court. GPO presently is an amicus,
and its views were thoroughly aired at oral argument. GPO has not
demonstrated how the present combination of representation by
EDS' counsel and by its own counsel, as amicus, is inadequate.

Similarly, the Army has not demonstrated that the lack of precise
parallel among their interests and those represented by the
existing defendants rises to "inadequate" representation. Any
shortfalls in presentation of the Army's interests can be cured
by permitting the Army to enter as amicus.

Thus, the Court concludes that GPO's motion to intervene should
be denied, and that the Army should be permitted to file an
appearance as amicus. An order consistent with the above
conclusions accompanies this Memorandum Opinion.


Upon consideration of plaintiff's Application for Temporary
Restraining Order, the Motions to Intervene of the Army and the
Government Printing Office, defendants' oppositions, the
supporting memoranda, affidavits and exhibits, oral argument of
counsel and the entire record of this case, and in accordance
with the accompanying opinion, it is this 19th day of February,

   ORDERED that

   (1) GPO's motion to intervene is denied;

   (2) the Army may enter this case as amicus; and

   (3) plaintiff's application for temporary restraining order is
   granted, and the GSBCA's February 6, 1986 suspension of the
   requirements contract, solicitation number RFP 600-S, issued
   by GPO for the United States Department of Army is hereby
   stayed to permit GPO and the Army to satisfy any of the Army's
   requirements which would be satisfied under the contract. The
   proceedings before the GSBCA, including discovery, are also
   temporarily stayed. This order shall remain in effect for 10
   days from the date of this Order or until the Office of
   Management & Budget issues its decision on plaintiff's
   request, whichever happens first.

   No bond will be required at this time.

February 19, 1986


1  Defendant GSA's Motion to Transfer is presently under
advisement; the Court's ruling will be issued shortly.

2  Although the stay imposed by the GSBCA can be partially lifted
upon a showing that a particular printing need presents "'urgent
and compelling circumstances' significantly affecting the
interests of the United States," this piecemeal relief could not
adequately mitigate the harm to GPO at this juncture. The
printing requirements are ongoing, and after careful
consideration, the Court feels that it would work substantial
harm to GPO to require it to apply to GSBCA for periodic
releases, when GSBCA's authority to exercise jurisdiction over
the contract is contested. Although plaintiff's challenge to'
GSBCA's authority does not alone compel relief from the Board's
ruling, the ruling from OMB may resolve the challenge. In order
to prevent OMB's ruling from being a nullity, and to permit this
threshhold dispute to be resolved without unnecessary litigation,
the GSBCA proceeding should be stayed to give OMB a chance to