MARKEY, Chief Judge.
Disappointed bidders Grimberg and Schlosser jointly filed a post-award complaint in the Claims Court seeking termination and award to them of certain contracts awarded to another. They concurrently filed motions for a Temporary Restraining Order and a Preliminary Injunction. The Claims Court denied the motions and transferred the complaint to the District Court for the District of Columbia, 1 Cl.Ct. 253. We affirm.
P.W. Parker Inc. (Parker), was the apparent winner on two contract bids opened on July 8, 1982, and September 13, 1982, respectively. On its bids, Parker identified its wholly-owned subsidiary, R & P Contractors (R & P), as subcontractor on all mechanical work.
On July 12, 1982, Grimberg protested to the GSA contracting officer that the listing
On September 16, 1982, Schlosser made the same protest to the contracting officer respecting the bid opened on September 13, 1982. By letter of September 20, 1982, the contracting officer acknowledged the protest, stating: "The bids are being evaluated and you will be advised of our decision before an award is made."
On September 29 and 30, GSA awarded Parker the contracts.
Grimberg and Schlosser jointly filed on October 4, 1982, the present complaint for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, and Declaratory Judgment, and concurrently filed Motions for a Temporary Restraining Order and Preliminary Injunction. On October 5, 1982, the government moved to dismiss for lack of jurisdiction.
In an Order entered October 7, 1982, Judge Willi of the Claims Court denied Grimberg's and Schlosser's motions for lack of jurisdiction under 28 U.S.C. § 1491(a)(3) (Supp V 1981), as amended by Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, § 133(a), 96 Stat. 25, 40 (1982) (Act),
I) Whether the Claims Court lacks jurisdiction to grant equitable relief in a suit brought after a contract has been awarded.
II) Whether the Claims Court erred in transferring the case.
I — Jurisdiction
The dispute respecting jurisdiction arises because the complaint was filed in the Claims Court after the award of the contracts, making this a "post-award" suit, and because Grimberg and Schlosser are seeking equitable and only equitable relief.
A. The Statute
Analysis must begin with the language of the statute. Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979). See also, Greyhound Corp. v. Mount Hood Stages, Inc., 437 U.S. 322, 330, 98 S.Ct. 2370, 2375, 57 L.Ed.2d 239 (1978); Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 472, 97 S.Ct. 1292, 1300, 51 L.Ed.2d 480 (1977); Blue Chips Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (Powell, J. concurring). Title 28, Section 1491(a)(3), supra note 4, reads in pertinent part: "To afford complete relief on any contract claim brought before the contract is awarded, the court shall have ... jurisdiction to grant declaratory judgments and ... equitable ... relief .... In exercising ...."
As discussed below, subsection (a)(3) is composed of five parts. The first part ("To afford complete relief") sets the purpose of its enactment, i.e., to authorize a new remedial power. The second part ("on any contract claim") establishes and limits the types of cases within the court's jurisdiction in which the power may be exercised. The third part ("brought before the contract is awarded") establishes and limits the time frame in which the power may be exercised. The fourth part ("declaratory judgments and such equitable and extraordinary relief as it deems proper") describes the power itself. The fifth part ("give due regard to the interests of material defense and national security") cautions the court in the use of its new power.
(1) The Single Word "Claim"
Grimberg and Schlosser would have us read subsection (a)(3) as though it contained words not there ("brought to the contracting officer before the contract is awarded", or "brought to court before or after the contract is awarded"), and as though it authorized the court to exercise its new power at any time. Their sole basis for suggesting that the statute may be so read lies in the single word "claim" in subsection (a)(3), and a contention that it means a claim filed with the contracting officer. They maintain that the filing of a claim with the contracting officer before the contract is awarded is sufficient to confer jurisdiction in the Claims Court to grant equitable relief in response to a complaint based on that claim, no matter when that complaint is filed in that court. Grimberg and Schlosser's difficulty is that the statute simply does not say "The Claims Court may grant equitable relief on a contract claim at any time if the claim had been brought to the contracting officer before the contract was awarded", and we are not at liberty to rewrite the statute in those terms.
Grimberg and Schlosser have been aided, in erecting their argument on the single word "claim", by the propensity of the Congress, the courts, and others, for using that word to mean different things in different contexts. In connection with government agencies, the word has meant an assertion or demand submitted to the agency. In connection with courts, it has been used to mean an "action", or a cause of action, or an assertion in a pleading.
That the word "claim", standing alone, may be considered ambiguous because it has been used with different meanings in different statutes, is true but unavailing. Nor is it helpful to note that most if not all "claims" against the government existed, or became vested, or were made to or filed with a government agency, as "claims" before
Nor does it aid decision to note Congress' frequent use of "claim" in referring to both pre-court and in-court situations, often interchangeably. Nor does it follow that interpretation of "claim" as an action in court means that it was not also a "claim" at an earlier time. "Claim" cannot be considered in a vacuum. We sit to interpret a statute, not a word.
(2) As Used In the Statute
In Erlenbaugh v. U.S., 409 U.S. 239, 244, 93 S.Ct. 477, 480, 34 L.Ed.2d 446 (1972), the Court referred to "the principle that individual sections of a single statute should be construed together ...." We look, therefore, to uses of "claim" in all of the portions of § 1491(a). In doing so, we note § 1491(a) is a statute dealing with a court and suits against the sovereign. Section 1491(a) grants subject matter jurisdiction (subsection (a)(1); last sentence of (a)(2)), authorizes certain remedial actions (forepart of (a)(2)), and permits the exercise of equitable power in certain cases at a certain time ((a)(3)).
Subsection (a)(3) is thus part of a statute (§ 1491(a)) in which Congress has defined the jurisdiction of the Claims Court to hear and determine suits and has spelled out actions the court may take in particular cases within that jurisdiction. Comparison of the grant in subsection (a)(3) with the grant in the adjacent subsections of the same statute, Title 28, Section 1491(a), supra note 4, (general jurisdiction "to render judgment upon any claim against the United States" in subsection (a)(1), and "to render judgment upon any claim by or against ... a contractor" in subsection (a)(2)) (emphasis added) would indicate that Congress intended a limited grant of power to grant an equitable remedy in subsection (a)(3) ("on any contract claim brought before the contract is awarded").
"Claim" appears in subsections (a)(1) and in the last sentence of (a)(2), supra note 4, in the phrase ("jurisdiction to render judgment upon any claim") granting subject matter jurisdiction.
Further, a plaintiff may not obtain equitable relief just because a court has the power to grant it, but must state a claim which is itself within the jurisdiction of the court. Appropriately, therefore, subsection (a)(3) specifies the nature of the "claim" upon which declaratory judgments and equitable relief may be granted, namely a "contract claim". Subsection (a)(3) thus provides a new remedy in respect of a particular type of claim (contract) over which the court was granted jurisdiction in (a)(1) and does not provide that remedy in respect of other types of claims set forth in subsection (a)(1).
Grimberg and Schlosser have introduced no evidence, and none may be discerned anywhere in the record, that Congress intended suddenly to switch from the meaning of "claim" in subsections (a)(1) and (a)(2), where it meant a claim within the jurisdiction of the court to render judgment when the claim was brought to the court, to a different meaning (i.e., a claim filed with a contracting officer) in subsection (a)(3). On the contrary, because (a)(3) was being added to (a)(1), which set forth the Claims Court's jurisdiction to grant judgments on claims founded upon express or implied contracts, and to (a)(2), in which two of its three sentences set forth actions that court may take, it would appear logical that the legislative drafters would employ the same word and meaning, never dreaming or discussing the notion that resourceful counsel bent on achieving a particular result might interpret the single word "claim" in (a)(3) as referring to a claim filed with a contracting officer.
Similarly, the use of "claim" in (a)(3) itself, read in context, requires that the equitable powers of the Claims Court be limited to the pre-award stage. It will not do to speak of subsection (a)(3) as merely "granting jurisdiction" over a contract claim. That jurisdiction had already been granted in (a)(1). As above indicated, (a)(3) grants a power to act ("To afford complete relief on any contract claim"). Though a "contract claim" is certainly a "claim" while it sits on a contracting officer's desk, the "grant complete relief" language of the statute establishes that Congress was dealing with the in-court time frame. It was not dealing with an earlier time frame, i.e., when the claim was filed with the contracting officer. It was not, in other words, establishing an "exhaustion of administrative remedies" requirement appropriate to proceedings under the Administrative Procedure Act which are not within the jurisdiction of the Claims Court. Congress was granting equitable powers and limiting their exercise to a particular stage in the government procurement process, i.e., the pre-award stage.
As indicated, we deal here not with the word "claim" as found in the dictionary or in substantive statutes, but with "claim" as used in a statute defining the newly granted power of the Claims Court to grant declaratory judgments and equitable relief.
Pointing to some uses of "claim" in the Contract Disputes Act (CDA), 41 U.S.C. §§ 601-613 (Supp. V 1981), as amended by § 156 of the Act, Grimberg and Schlosser suggest that subsection (a)(3) should be read in pari materia with the CDA. First, the CDA deals with contractors, not with disappointed bidders such as Grimberg and Schlosser. Second, section 8(d) of that Act includes the phrase "a litigant asserting a contract claim in the United States Claims Court", 41 U.S.C. § 607(d) (amended 1982) (emphasis added). Following Grimberg and Schlosser's suggestion would, if 8(d) be looked to, defeat their purpose. Third, the "in pari materia" canon of statutory construction cannot be relied upon to give "claim" in subsection (a)(3) a meaning that might be found at some points in a separate statute, and to deny it the meaning found at other points in that statute. Fourth, a meaning found in a separate statute cannot override that found in adjacent subsections of the very statute in which it appears, i.e., subsections (a)(1) and (a)(2).
The words of the statute grant equitable powers to the Claims Court and limit the exercise of those powers to claims "brought before the contract is awarded". Use of the present tense ("is awarded"), rather than the past tense ("was awarded"), would appear to preclude exercise of equity power where, as here, the contract was awarded before the claim was filed in the court. Because the statute was dealing with the powers of the court, and because those powers are not exercisable until a claim is brought to the court, there is not a word in the statute referring to the contracting officer, and no basis appears anywhere for reading into it a role for the contracting officer. Nor is there anywhere in this statute (as there is in the standard disputes clause and the Contract Disputes Act, neither of which are before us) a requirement that an implied contract claim be submitted to a contracting officer before it may be brought to the Claims Court. Similarly, the words of the statute make no grant of equitable powers to the Claims Court in relation to post-award cases.
Further considering the words of the statute, subsection (a)(3) closes with an abjuration that the court "give due regard to the interests of national defense and national security" in exercising its new equitable powers. That caution would appear particularly applicable to court-created delays in awarding contracts. In a post-award suit, the contract has been awarded, and the procurement process itself is not normally delayed while the court is considering the merits of a disappointed bidder's complaint.
In all events, and whatever may be said of the words appearing in the statute,
B. Legislative History
Interpretation of "claim" in subsection (a)(3) as meaning a claim filed in the Claims Court, which is but another way of saying that the Claims Court may exercise its new equitable powers only during the pre-award stage, finds extensive support in the legislative history of the Act. H.R.Rep. No. 312, 97th Cong., 1st Sess. 43 (1981) states: "The new section 1491(a) does give the new Claims Court the augmented power to grant declaratory judgments and give equitable relief in contract actions prior to award." (emphasis added). S.Rep. No. 275, 97th Cong., 1st Sess. 22 (1981), U.S.Code Cong. & Admin.News 1982, pp. 11, 32 states: "Moreover, section 133 gives the new Claims Court the power to grant declaratory judgments and give equitable relief in contract actions prior to award." (emphasis added). It would appear difficult to read "contract actions prior to award" as referring to anything other than pre-award lawsuits filed with the court described in the same sentences as having been granted equitable powers in such "actions".
The earliest versions of the Act, introduced in the 96th Congress, did not grant the newly-created Claims Court any equitable powers in any case. See S. 1477, 96th Cong., 1st Sess. (1979); H.R. 3806, 96th Cong., 2nd Sess. (1980). As stated in the House Report on H.R. 3806, with one minor exception, "Claims Court jurisdiction is identical to Court of Claims jurisdiction." H.Rep. No. 1300, 96th Cong., 2nd Sess. 36 (1980). See also Staff of Senate Comm. On the Judiciary, 96th Cong., 1st Sess., Report on Federal Courts Improvement Act of 1979 (To Accompany S. 1477) 25 (Comm. Print 1979). With a few exceptions not here relevant, the Court of Claims did not have equitable jurisdiction.
The provision conferring equitable power on the Claims Court first appeared in versions of the Act introduced in the first session of the 97th Congress. The provision, identically worded in the Senate and House bills, provided that:
S. 21, 97th Cong., 1st Sess. § 132(a)(2) (1981); H.R. 2405, 97th Cong., 1st Sess. § 126(d) (1981). That provision was significantly broader than the later version eventually enacted, for it would have given the Claims Court jurisdiction to grant equitable relief in all cases, not just in contract cases and not just on a "contract claim brought before the contract is awarded."
There appears to have been no discussion of the broad grant of equitable power in the 1981 congressional hearings on the Act or in subsequent floor debates in the House and Senate, but in a letter to the House Judiciary Committee the Justice Department objected strenuously to the grant:
Court of Appeals For the Federal Circuit — 1981, Hearings on H.R. 2405 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary, 97th Cong., 1st Sess. 212 (1981) (Letter from Acting Assistant Attorney General Michael W. Dolan to Committee Chairman Peter W. Rodino). As indicated, the chief concern of the Justice Department was that the broad grant of equitable powers would permit Claims Court judges to interfere with both the award and administration of government contracts. For this court now to hold that Claims Court judges have equitable power in post-award cases would defeat the response of Congress to the Justice Department's concern over that judicial interference with contract administration.
Congress recognized the Justice Department's concern by limiting the area within which the Claims Court could exercise equitable powers. In the House, the Judiciary Committee amended H.R. 4482 to grant the Claims Court equitable power only "on any contract claim brought before the contract is awarded." The House Report on the bill sets forth the rationale for this amendment:
H.Rep. No. 312, 97th Cong., 1st Sess. 30, n. 33 (1981).
That passage sheds significant light. First, it expressly indicates that equitable relief on a contract claim was limited to "contract actions," that is, lawsuits, brought "prior to award". That view is further supported at another section of the House Report, which states that "[t]he new Claims Court also will be able to exercise equitable relief power — declaratory judgments and such extraordinary relief as it deems proper, including injunctive relief — in contract actions prior to award....." H.R.Rep. 312, supra, at 25. (emphasis added). See also H.R.Rep. 312, supra, at 43. ("Nor is it the intent of the Committee to obligate lawyers, litigants and possibly witnesses to travel to Washington, D.C., whenever equitable relief is sought in a contact [sic] action prior to award.") (emphasis added). Second, the passage expressly states that the amendment limited the ability of the Claims Court to exercise its equitable powers. It would thus be consistent with the intent of Congress to read "claim" narrowly, to mean the basis for a lawsuit brought prior to award; and it would be inconsistent with that intent of Congress to read the provision expansively, as being inclusive of all instances in which a claim had been submitted to a contracting officer before the contract was awarded.
That the Railsback amendment was offered "on behalf of the Administration"
There is a strong public interest in an orderly, efficient, expeditious government procurement process. With numerous contracts based on bids, there is one successful bidder and an untold number of disappointed bidders. Allowing a mere complaint to a contracting officer to trigger exercise of equitable power by the Claims Court over cases brought to it after the contract has been awarded would authorize broad judicial interference with the administration of government contracts; as here, contract actions could be brought after the contract had been awarded, and while it is being administered. That interpretation would thus substantially vitiate Congress' concern for the contracting process evidenced by introduction of the amendment "on behalf of the administration" and its adoption by the Congress. In contrast, the present interpretation permits judicial interference by the Claims Court only at the pre-award stage of the contracting process, and avoids such interference in the administration of awarded contracts.
The grant of equitable jurisdiction in the Senate bill was also narrow.
S. 1700, 97th Cong., 1st Sess. § 133(a)(3) (1981). Thus that bill, on its face, expressly limited the Claims Court's equitable jurisdiction to actions brought prior to award.
On the floor of the Senate, Senator Dole, the manager of the bill, explained the need for this provision in a statement repeated in expanded form in the Senate Report:
127 Cong.Rec. S14692-S14694 (daily ed. Dec. 8, 1981). See also S.Rep. No. 275, supra, at 22-23. The quoted passage embodies the limiting principle of the Railsback Amendment, that is, that the Claims Court's equitable powers should be exercised in a way which best limits judicial interference in contract procurement and administration. It spoke of injunctions against awarding a contract. It also makes plain that injunctive relief was awardable only in the pre-award stage, and only in extremely limited circumstances.
Consistent with the foregoing is the statement in H.R.Rep. No. 312, supra, at 25, that "the Claims Court [is empowered] to enjoin the award of contracts if, for example, illegal government conduct is involved". (emphasis added). The court obviously could not "enjoin the award" of contracts already awarded. Nor would a declaratory judgment be appropriate after award. There is nothing anywhere in the legislative history referring to any power in the Claims Court to undo or vacate an awarded contract by way of mandatory injunction or otherwise.
The legislative history thus establishes the intent of Congress, which must be our lodestar, District of Columbia v. Carter, 409 U.S. 418, 420, 93 S.Ct. 602, 604, 34 L.Ed.2d 613 (1973), that equitable power was to be exercised only in contract actions brought in the Claims Court prior to award. Because the House bill was ultimately passed by both Houses of Congress and enacted as the Act, (see 128 Cong.Rec. S2567 (Mar. 22, 1982); 128 Cong.Rec. H747 (Mar. 9, 1982)) its legislative history must be given major weight. The legislative history of the Senate bill, however, establishes the same intent. There is no indication whatever that the Senate believed it was enlarging the time frame for exercise of the Claims Court's equitable relief powers by acceding to the House bill. In short, the legislative history indicates that the Senate and House Reports used the terms "action" and "claim" interchangeably, as both Houses have often done, both referring to contract actions/claims brought in the Claims Court prior to award.
Because the statute and its legislative history leave no doubt that Congress intended the equitable power of the Claims Court to be exercised only before an award is made, that power can be invoked only by filing a claim with the court before a contract is awarded, and whether a claim had previously been filed with a contracting officer is simply irrelevant.
C. Policy Arguments
Grimberg and Schlosser make a number of sympathy evoking and dire predictions respecting what can happen if the Claims
The second and major policy argument is that limiting the Claims Court's equitable powers to pre-award suits enables the contracting officer to escape the equitable power of the Claims Court by awarding the contract before disappointed bidders can file their claims in that court, as happened here. The only recourse against that tactic is said to be the filing of premature and perhaps unnecessary protective suits.
In defining the jurisdiction and powers of the Claims Court, Congress made its own policy decision implementing a balance between the Claims Court and the district courts, and a balance between the interests of disappointed bidders and the public interest in an orderly government procurement process. We may not substitute for those policy decisions one of our own devising. Having accompanied the grant of limited equitable power to the Claims Court with the mandate that it be exercised "before a contract is awarded" and with "due regard to the interests of national defense and national security", § 1491(a)(3), supra note 4, Congress did not disregard the needs of the government procurement system. Nor may we. Making the injunctive power of the Claims Court available to those protesting bid irregularities before a contract is awarded has not the same effect on the procurement system as would the making of that power available in the Claims Court
In all events, we deal here only with a specific statutory grant of equitable power to the Claims Court. If disappointed bidders should in future be confronted with insufficient time in which to invoke the equitable power statutorily granted the Claims Court, their remedy will lie with the Congress, not with the courts.
D. Holding on Jurisdiction
We hold that exercise of the equitable power granted the Claims Court in 28 U.S.C. § 1491(a)(3) (amended 1982) is limited to cases in which complaints are filed in the Claims Court before the involved contracts have been awarded, and that the Claims Court therefore lacked jurisdiction to hear and determine the present demand for equitable relief filed after the involved contracts were awarded.
Section 1631, supra note 5, provides for transfer to any court "in which the action or appeal could have been brought." As a post-award suit, the present action "could have been brought" in the district court. The Claims Court, therefore, did not err in issuing its transfer order.
A. Legislative History
Though this is a post-award suit, the parties have engaged in extensive argument over whether the "exclusive" grant of equitable powers to the Claims Court in § 1491(a)(3) in pre-award suits was meant to exclude the district courts from pre-award suits. Because nothing in the statute or its legislative history in any manner denies jurisdiction in the district court over post-award suits, and because this is a post-award suit, we need not and do not here decide whether the district courts are denied jurisdiction by § 1491(a)(3) over pre-award suits.
To the extent that the legislative history could be said to shed light on the jurisdiction of the district court over this post-award suit, it does so by indicating that even the "exclusive" grant in pre-award suits was apparently not meant to take from the district courts whatever jurisdiction they had in those suits. Surely an apparent intent to leave intact a concurrent district court jurisdiction in pre-award actions, the only actions being dealt with in the statute, cannot be viewed as indicating an intent to remove the existing and unmentioned jurisdiction of the district courts over post-award suits.
The Senate and House Reports are consistent in their indication that the grant in § 1491(a)(3) is exclusive only of contract
H.R.Rep. No. 312, supra, at 43.
The only question raised arises from the Senate Report. Unlike the House Report, it does not expressly state that the Claims Court's grant has no effect on the jurisdiction of the District Courts, and is only "exclusive" of the boards of contract appeals. However, that understanding can be derived from the Report. First, it states that the grant to the Claims Court is not "intend[ed] to alter the current state of the substantive law in this area. Specifically, the Scanwell doctrine as enunciated by the D.C. Circuit ... is left in tact (sic)." S.Rep. No. 275, supra, at 23, U.S.Code Cong. & Admin.News 1982, p. 33. The government suggests that this statement should be read to mean that only the substantive law aspects of Scanwell survive the grant, and that the grant of exclusive equitable power to the Claims Court robs the District Courts of any and all jurisdiction recognized in Scanwell. However, that argument ignores the "substantive law" of Scanwell and the "Scanwell doctrine".
Moreover, the Senate strongly suggested that "exclusive" means exclusive of contract boards when it stated that "[s]ince the court is granted jurisdiction in this area, boards of contract appeals would not possess comparable authority pursuant to the last sentence of section 8(d) of the Contract Disputes Act." S.Rep. No. 275, supra, at 23, U.S.Code Cong. & Admin.News 1982, p. 33. This passage explains the need — recognized by Congress — to make the Claims Court's equitable powers exclusive of the boards. Under Section 8(d) of the CDA, agency boards are "authorized to grant any relief that would be available to a litigant asserting a contract claim in the United States Claims Court." Thus, if Congress had not made the Claims Court's equitable powers "exclusive" of contract boards, there would be a strong argument under Section 8(d) of
It is not for us to question the wisdom of Congress' allocation of equitable power between the Claims Court and the District Courts in government contract cases. Under § 1491(a)(3), the Claims Court has been granted equitable power only over implied contract actions brought prior to award. Whether the District Courts may retain equitable power over contract actions brought both before and after award, and whether that circumstance may create a dichotomy with respect to pre-award suits, is grist not for our mill.
Leaving with District Courts concurrent jurisdiction over pre-award suits would, in any event, respond to a congressional concern over forcing litigants to "travel to Washington, D.C., whenever equitable relief is sought in a contact (sic) action prior to award. Although Claims Court judges will travel, they cannot be expected to do so at extremely short notice." H.R.Rep. No. 312, supra, at 43.
Moreover, the House Report suggests that Congress intended the grant of equitable powers to the Claims Court in (a)(3) as an interim, perhaps experimental, measure, which after a few years might be altered: "for the time being, the Committee is satisfied by clothing the Claims Court with enlarged equitable powers not to the exclusion of the district courts. The dual questions of whether these powers should even be broader and of whether they should be exclusive of the district courts will have to wait for a later date." H.R.Rep. No. 312, supra, at 43 (emphasis added).
Thus, whatever its wisdom, Congress' grant to the Claims Court of limited equitable relief authority in pre-award cases, whether or not concurrent with the district courts in pre-award cases, but with no affect on the pre-existing jurisdiction of the district courts in post-award cases, must be accepted and followed by this court until it is changed by the Congress.
B. Government Contentions
Citing the provision in § 1491(a)(3) for "exclusive" equitable jurisdiction in the Claims Court over pre-award cases, the government argues against the transfer, asserting that the district court is barred thereby from exercising jurisdiction in this case. As the government correctly noted in opposing the jurisdiction of the Claims Court, however, this is not a pre-award suit. Section 1491(a)(3) deals only with pre-award suits and only with the powers of the Claims Court. As above indicated, we need not and do not decide, in this post-award case, whether "exclusive" was meant to preclude pre-award suits in the district court. It is for the district courts to so decide when and if pre-award suits are presented to them.
Arguing against the transfer order, the government asks us: to disregard those portions of the legislative history (quoted above) in which the intent is stated to preserve "the ability of the parties to proceed in the district court ... in instances of illegal action"; to treat Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859 (D.C.Cir.1970) and its progeny as no longer viable because they were assertedly designed to fill a void perceived in light of Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940) and now allegedly filled by enactment of § 1491(a)(3); to review the historical jurisdictional relationship of the Court of Claims and the district
C. Holding on Transfer
The district court, as judge of its own jurisdiction, may decide on review of the complaint and government arguments, if any, presented to it, that it does not have jurisdiction in this post-award case, and that the case is not therefore one that "could have been brought" as set forth in § 1631, supra, note 5. Nothing presented to us requires that we so hold, or that we vacate the transfer order on that ground.
NICHOLS, Circuit Judge, concurring in the result.
I concur in the result. Chief Judge Markey's able opinion in my view makes a much stronger case for affirmance than is made in the necessarily hastily written opinion of the Claims Court, or in the government briefs. I no longer feel able to say, as I would have said before the reargument, that the case for reversal was the only one that was supportable. I believed all along that the statutory test was ambiguous, viewing section 1491(a)(3) by itself alone. I believed that the obvious repeated meaning of the word "claim" in the original Tucker Act of 1887, 24 Stat. 505, included a demand for money accrued but not yet pursued in a lawsuit. The statute now to be construed picks up much of its language, including its use of "claim," from that origin, and no change in meaning could have been intended. "Claim," therefore, to my mind, included bid protests. The legislative history originally cited by the parties did nothing to discredit this interpretation. I now believe, however, that considering all the legislative history, my original construction cannot be said to be so obvious that a contrary view is frivolous, or untenable by objective minds. This being so, the doctrine of strict construction of the consent to be sued requires me to consider which of the contending views would grant the consent to be sued the least extensively. The doctrine requires that if there is real ambiguity in a statutory consent, the ambiguity must be resolved against the broad construction. The Supreme Court has said repeatedly that a consent to be effective must be "unequivocally expressed." United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980); United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d
Strict construction is fully applicable when subject matter consent is granted only as to one particular kind of relief, but not another. United States v. King, supra, United States v. Jones, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90 (1889) (money damages but not declaratory judgment or injunction.) Assuming a consented suit for money damages, strict construction still determines whether add-ons such as interest and counsel fees are permissible. Nibali v. United States, 634 F.2d 494 (Ct.Cl.1980); United States v. Mescalero Apache Tribe, 518 F.2d 1309 (Ct.Cl.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1506, 47 L.Ed.2d 761 (1976). It is at least theoretically conceivable, if it has not occurred, that a suit was unambiguously consented to, but there was ambiguity whether the suit was to be brought in tribunal A or B. In these circumstances, strict construction would require that neither A nor B would have jurisdiction, and the suit would fail for want of any tribunal having jurisdiction.
This is strict construction as I understand it. If a consent taken literally achieves insignificant results, not worthy of the attention of Congress, that is what strict construction requires, and reconstruction of the language to effectuate what is supposed to be the true intention of Congress is not permissible, though it might have been in a different context. Aparacor, Inc. v. United States, 571 F.2d 552 (Ct.Cl.1978). See Nichols, Judge, concurring at 558, and see exposition of this case in Nibali, supra.
As I stated in Mitchell v. United States, 664 F.2d 265, 277 (Ct.Cl.1981), the old Court of Claims —
The cure was difficult because of attractive but misleading rhetoric like that of Mr. Lincoln that decorates the lobby of the National Courts Building. I hope, and from the result in the instant case, conclude, that the avoidance of reversible error will loom larger in our new court. The commission of it never gets anyone anywhere. There can be no question but that Congress is thoroughly aware of strict construction and enacts new consents such as § 1491(a)(3) in the expectation that they will be construed according to strict construction. If Congress wants to repeal strict construction, it has only to say so. I can't help but think that some consents are enacted tongue in cheek, with the full expectation that their effect will be insignificant. Of this the enactment construed in Aparacor was a prime example.
The main trouble with the statute as construed by our majority is that it achieves an insignificant and absurd result. There was a big to-do in the legislative history about Congress wanting courts not to meddle unduly by injunction in the administration of government contracts, an understandable and worthy wish. Yet all they did, by strict construction analysis, was to send litigants wishing to procure such intermeddling to one court in one time frame, to another court in another. If Congress had done nothing, the possibility of harmful judicial meddling with contract administration would have been exactly the same, no more and no less. There was surely nothing to show that intermeddling by the Claims Court would be more harmful than intermeddling by a district judge, or that intermeddling by the former would be more harmful after award than intermeddling before award, or that intermeddling by a district judge, on the contrary, would be
This is the zany scheme that, by strict construction analysis, Congress enacted.
In addition, it appears probable that many litigants wishing to obtain complete and entire relief, both injunction and bid preparation costs, will have to sue in two separate tribunals in order to do so. This is a favorable situation for the defense, and the ability to lay out an obstacle course in this manner is one of the incidents of the right to grant or withhold the consent to be sued, which the judiciary are not at liberty to bypass.
As I stated, dissenting in Mitchell, supra, no one would welcome more than I a legislative declaration that consents to be sued are to be construed liberally to effectuate the congressional intention. It seems to me that the outcome of this use ought to provide a push in that direction, and that is the best thing that can be said about it.
KASHIWA, Circuit Judge, with whom BALDWIN, BENNETT, and JACK R. MILLER, Circuit Judges, join, dissenting.
I respectfully dissent. I join Judge Bennett's dissent. Since I believe we have jurisdiction in this case, I do not reach the transfer issue.
The holding of the majority not only creates an illogical bid protest procedure but also encourages protective litigation by disappointed bidders. Neither result was intended by Congress. Rather, the purpose of the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 96 Stat. 25 (the "Act") is to improve "the administration of the law in the areas of patents, government contracts, merit system protection, trademarks and international trade"
The majority today, for the first time, draws a distinction between jurisdiction and
Industrial Addition Association v. Commissioner, 323 U.S. 310, 313, 65 S.Ct. 289, 291, 89 L.Ed. 260 (1945). See also Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167, 60 S.Ct. 153, 154, 84 L.Ed. 167 (1939).
In line with its jurisdiction/power dichotomy, the majority contends that § 1491(a)(1) gives jurisdiction to the Claims Court of all implied contracts and that the procedures set out in Keco Industries, Inc. v. United States, 428 F.2d 1233, 192 Ct.Cl. 773 (Ct.Cl.1970), should apply to all such contracts. Thus, it argues § 1491(a)(3) cannot and should not be interpreted to require that a claim be brought to a contracting officer prior to institution of a law suit since Keco did not require such a claim. See majority at n. 8 and accompanying text, supra. The fallacy with the majority's argument lies with its failure to appreciate prior government contract law. Prior to the Contract Disputes Act of 1978, Pub.L. 95-563, 92 Stat. 2383, 41 U.S.C. §§ 601-613 (Supp. V 1981) (the "CDA"), all breach of contract suits, including Keco-type suits, were brought directly to court without first exhausting administrative remedies.
The majority, as well as the Claims Court, construes the phrase "any contract claim brought before the contract is awarded" [emphasis added] to mean a lawsuit filed in the Claims Court. I, however, construe the word as merely an assertion of a right, a claim or bid protest brought to the attention of the contracting officer. The word "claim" has been interpreted numerous ways depending upon how the legislative scheme was meant to operate. See, e.g., Grumman Aerospace Corp. v. United States, 579 F.2d 586 (Ct.Cl.1978); O'Brien Gear & Machine Co. v. United States, 591 F.2d 666 (Ct.Cl.1979); Hageny v. United States, 570 F.2d 924 (Ct.Cl.1978). The majority concedes that the word "claim" can be ambiguous in meaning when standing alone, yet holds that when read in light of §§ 1491(a)(1) and (a)(2) and other unrelated statutes its intended meaning as an "action" or "lawsuit" becomes clear.
Looking for guidance to §§ 1491(a)(1) and (a)(2) therefore does not resolve the ambiguity of the word "claim" as the majority would like us to think. "Claim" can reasonably be understood to just as easily mean the assertion of a right against the Government rather than a lawsuit. The ambiguity remains.
Since the phrase "any contract claim brought before the contract is awarded" and in particular the word "claim" are ambiguous, other considerations must be examined. "In expounding a statute, we must not be guided by a single sentence or members of a sentence, but look to the provisions of the whole law, and to its object and policy." NLRB v. Lion Oil Co., 352 U.S. 282, 288, 77 S.Ct. 330, 333, 1 L.Ed.2d 331 (1957). One consideration is the statute's legislative history.
The majority's seemingly lengthy exposition of legislative history falls into the trap that Chief Judge Jones so wisely cautioned against, that "[a]n explanatory tale should not wag a statutory dog." A.P. Green Export Co. v. United States, 284 F.2d 383, 386, 151 Ct.Cl. 628 (Ct.Cl.1960). The majority's undue reliance in its examination of the legislative history is upon the use of one word, "action." That word is construed by the majority to have the same meaning as the word "claim" in the Act. Moreover, the majority at p. 1372, states:
I, however, fail to find any indication that Congress intended to equate "action" with "claim." If Congress had wished to do so, an explicit statement to this effect in the legislative history should have been present. Moreover, it is certainly strange that the statute itself speaks only of the word "claim," whereas the legislative history makes no mention whatsoever of the word "claim." It must be remembered that it is the statutory language itself that is the lodestar in statutory interpretation. United States v. Erika, Inc., 456 U.S. 201, 205, 102 S.Ct. 1650, 1653, 72 L.Ed.2d 12 (1982). Most importantly, if Congress had wished to place time limitations on filing suits for injunctive or declaratory relief, it certainly could have said so.
The majority claims that the adoption of § 1491(a)(3) was at the instigation of the Justice Department and cites that letter accordingly. What the majority fails to tell us is that § 1491(a)(3) was not the position advocated by the Justice Department, nor does it in any way resemble the Justice Department's position. What the Justice Department advocated was that the Claims Court be given absolutely no equitable powers in government contract cases. Hearings on H.R. 2405 Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 97th Cong., 1st Sess. 212-13 (1981).
Certain critical statements of the legislative history, although quoted by the majority, are simply ignored in its analysis. Senator Dole in pertinent part said:
127 Cong.Rec. S14,692-94 (daily ed. Dec. 8, 1981). This last statement regarding section 133 of the bill was also made in the Senate Committee Report. S.Rep. No. 97-275, 97th Cong., 1st Sess. 22, reprinted in 1982 U.S.Code Cong. & Ad.News 32.
It is clear these statements are in reference to § 1491(a)(3), the only new grant of equitable powers to the Claims Court. The Court of Claims had jurisdiction of bid protest cases for purposes of granting monetary relief for many years. Keco Industries, Inc. v. United States, 428 F.2d 1233, 192 Ct.Cl. 773 (Ct.Cl.1970). Such cases were only brought post-award. Since Keco-type cases are within the Claims Court's jurisdiction, it would seem that the Senate Report and Senator Dole say that the court will now be empowered to grant not only monetary but equitable relief in these cases. The portions of the Senate Report and Senator Dole's statements that the majority relies upon would then refer to the pre-award situation, a situation not met in the Keco line of cases. Thus, under this view § 1491(a)(3) would cover both pre and post-award bid protests. On the other hand, these references to broad equitable powers are similar to those in the earlier unadopted
As demonstrated, the majority's approach has failed to resolve the question as to the meaning of the words "contract claim." When the meaning of words in a statute is ambiguous, it is necessary to interpret that meaning in light of the statute's purpose and intent. As the Supreme Court said in District of Columbia v. Carter, 409 U.S. 418, 420, 93 S.Ct. 602, 604, 34 L.Ed.2d 613 (1973):
As previously stated, the purpose of the Act is to improve the administration of government contract law, to improve the quality of our court system and to enhance citizen access to justice. See text at n. 2 and n. 3, supra. This purpose can be effectuated and any ambiguity in the meaning of the word "claim" eliminated when § 1491(a)(3) is read in pari materia with the Contract Disputes Act of 1978. The Court in Erlenbaugh v. United States, 409 U.S. 239, 243-44, 93 S.Ct. 477, 480, 34 L.Ed.2d 446 (1972), stated:
Since there are explicit references to the CDA in both the Act (e.g., § 1491(a)(2)) and its legislative history, it is clear the drafters of the Act had the CDA before them when they drafted the portions of § 1491 regarding government contract litigation. Moreover, the use of the word "exclusive" in § 1491(a)(3) indicates that Congress had the CDA before it when the Act was drafted. The Senate stated:
S.Rep. 97-275, 97th Cong., 1st Sess. 23, reprinted in 1982 U.S.Code Cong. & Ad.News 33. Similarly, the House stated:
H.R.Rep. No. 97-312, 97th Cong., 1st Sess. 43 (1981). As construed by the majority, the word "exclusive" means that boards of contract appeals are excluded from granting declaratory and injunctive relief. Since boards of contract appeals are not mentioned
Since both the Act and the CDA deal with the same subject matter, government contract litigation, and use the word "claim," it is obvious the drafters of the Act intended to use the word "claim" as it is used in the CDA.
Under the CDA, "claims" are required to be submitted to contracting officers, not to boards or courts. 41 U.S.C. § 605. Section 605 in pertinent part states:
Thus, reading the Act in pari materia with the CDA, it is clear the Act's reference to "any contract claim brought before the contract is awarded" is a reference to pre-award claims submitted to the contracting officer. Although the confusion over the jurisdictional grant of § 1491(a)(3) is brought about by the use of the term "contract claim" instead of the more popular term "bid protest," the confusion is readily resolved by examining the meaning of "contract claim" in its proper context. Otherwise, the jurisdictional grant of equitable and declaratory powers under § 1491(a)(3) becomes meaningless. In other words, the use of "any contract claim" is an all-inclusive disputes term which is intended to include "bid protest claim." This interpretation conforms to the CDA's use of the word "claim," meaning all types of disputes decided by a contracting officer. Since "all claims" under the CDA must be referred to the contracting officer, and since the Act refers to "any claim," it is logical that "any claim" under the Act includes bid protest claims submitted to the contracting officer prior to award.
Moreover, sections 606 through 608 of the CDA state that boards render decisions on "appeals" from the decisions of contracting officers. It is also clear from § 609 of the CDA that the Claims Court renders decisions on "actions" or "suits" "filed" at the court.
While the boards and the Claims Court hear cases involving "claims," all claims under the CDA must first be submitted to the contracting officer prior to resolution of the disputes by a board or the Claims Court. Therefore, using the doctrine of in pari materia, the phrase "contract claim brought before the contract is awarded" in the Act does not refer to "actions" or "suits" "filed" before award, but rather, refers to bid protest claims submitted by a disappointed bidder to the contracting officer prior to the award of the contract. In conclusion, interpretation of the statutory language of the Act is unambiguous when read in pari materia with the CDA and leads to a logical result.
Senator Dole and Congress recognized and sought to resolve the problem of bifurcated relief faced by government contractors. See text at pp. 1371-1372, supra. Thus viewed in its proper context, the legislative history supports the view that Congress intended to augment the existing jurisdiction over money claims involving government contracts
The legislative history of § 1491(a)(3) makes numerous references to Scanwell-type litigation and the Scanwell Doctrine. Thus, the phrase "any contract claim brought before the contract is awarded" is a descriptive term of that doctrine as it has evolved in the district courts. Under the Scanwell Doctrine, a disappointed bidder generally makes an initial notification or bid protest to the contracting officer before the subject contract is awarded. An injunctive action may then be filed before or after the contract has been awarded. Thus, the statutory phrase "any contract claim brought before the contract is awarded" is
The Court, in United States v. American Trucking Associations, 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940), stated:
My interpretation permits review of bid protest claims by the Claims Court as long as the protest was brought to the contracting officer prior to the award of a contract. The majority's interpretation, on the other hand, leads to an absurd result, or, as Judge Nichols states in his concurrence, a "zany scheme." The majority's interpretation is illogical in that bid protest claims may be decided by the Claims Court before the contracting officer can render a decision on the claim. The Claims Court will thus be thrust into the position of replacing the contracting officer in deciding bid protests. Under the majority view, a bid protestor cannot prudently wait for a contracting officer's decision on the protest and/or cannot safely assume that there will be enough time once the contracting officer's decision on the protest is rendered. Thus, the majority view necessitates the filing of a protective injunctive action by a bid protestor prior to any decision on the protest by the contracting officer. Otherwise, as occurred in the instant appeal, an award can be made by the contracting officer prior to rendering a decision on the protest, or shortly after rendering the decision on the protest, thereby precluding injunctive action in the Claims Court. This result creates an absurd "race to the courthouse" by bidders in order to invoke the Claims Court's jurisdiction; even the bidder who subsequently wins the contract may file a suit to protect itself. This will create a flood of premature litigation. In addition, the majority's interpretation, requiring the filing of an "action" before award, effectively undermines the contracting officers' present role in making decisions on bid protests. Such a result is neither necessary nor mandated by a reasonable reading of the Act.
In summary, the word "claim" in § 1491(a)(3) does not mean "lawsuit" or "action," but rather the assertion of a right before the contracting officer. My interpretation is consistent with the meaning of the word "claim" as it is used in the CDA and in government contract litigation. It is obvious the reasonable intent of the statute is to give the Claims Court jurisdiction over bid protests which have been brought to the attention of the contracting officer before award.
BENNETT, Circuit Judge, with whom BALDWIN, KASHIWA, and JACK R. MILLER, Circuit Judges, join, dissenting.
I respectfully dissent from the majority's holding that the United States Claims
The majority's view is contrary to the general purpose of section 1491 (the Tucker Act). The Tucker Act is the primary statute that defines the subject matter jurisdiction of the Claims Court. Nowhere in the statute is there any indication that Congress intended to define the procedural prerequisites to instituting a lawsuit — e.g., that the claim be timely filed. Rather, one looks to other statutes to determine whether a claim is timely.
The language used by Congress in section 1491(a)(3) is arguably susceptible of different interpretations, as the several opinions filed today attest. Assuming for discussion only that the term "claim" is ambiguous, then it might be helpful to discern what Congress was attempting to accomplish in enacting this legislation. With the intent of Congress in mind, it should be easier to provide an interpretation that furthers the purposes of the statute.
I perceive two distinct ends which Congress contemplated in enacting the legislation before us: (1) that the Claims Court have jurisdiction to grant equitable relief so as to promote the integrity of the bidding process; and (2) that judicial interference be kept to a minimum so as not to delay the performance of government contracts unduly.
Regarding the second goal of Congress, the ultimate result of the majority's holding that the Claims Court lacks jurisdiction will be greater judicial interference in the contracting process. The arbitrary cut-off or loss of jurisdiction after award will, as noted by Judge Kashiwa, result in a race to the courthouse to file premature litigation to ensure that a bidder is not denied access to the Claims Court. Disputes brought first to the contracting officer result in an overall reduction in litigation. This is the purpose of the standard government contract disputes clause and of the Contract Disputes Act of 1978, both of which require that any claims first be submitted to the contracting officer for exhaustion of administrative remedies before suit.
The majority places great emphasis on its contention that "claim" as used in 28 U.S.C. § 1491(a)(3) should be accorded the same meaning as that word is used in subsections (a)(1) and (a)(2) and that the Claims Court would not have jurisdiction over any "claim" before a petition is filed with the court. However, I do not believe that the word "claim" is used in subsections (a)(1) and (a)(2) in the sense of a limit on jurisdiction. "Claims" are indeed filed in the Claims Court, but the common usage of the word would also apply to a demand against the government before the "claim" actually becomes a lawsuit.
Having said this, however, the court concludes in this case that the word "claim" has a special meaning, although this seems wholly gratuitous in the context of the statute here which does not embellish the term but uses it in its common, generic sense.
The majority's exhaustive treatise on its concept of the "legislative history" (i.e., Senate and House reports, testimony, letters, speeches, rejected amendments and withdrawn bills)
"Congress may be presumed not unskilled in the use of words and highly likely to have enacted what it intended. It is foolish to abandon this presumption where the legislative history is perceivably full of pitfalls that cannot readily be avoided." Hart v. United States, 585 F.2d 1025, 1035, 218 Ct.Cl. 212 (Ct.Cl.1978).
Accordingly, I would hold that under section 1491(a)(3) the Claims Court had equitable jurisdiction since bid protest claims were made and were pending and that this jurisdiction was not lost when an award was made later before suit was filed. By the same token, if the contractor does not submit a bid protest claim to the contracting officer or the Claims Court before an award is made, he cannot ask equitable relief of the Claims Court. The majority holds that if the contractor files an action for equitable relief directly in the Claims Court before an award is made, then that court has jurisdiction, and presumably a subsequent award should not affect its jurisdiction. The majority's narrow interpretation gives the Claims Court only fleeting equitable jurisdiction. In fact, this interpretation robs the statute of much serious meaning, a result Congress surely did not contemplate for we cannot ascribe to it the conscious intent to do a foolish or useless thing.
The court has labored hard, at great length, and for several months now, to come up with the decision announced today. It has been difficult in part because the court has had to search through a dense jungle of legislative history to find a rationale it could use to rewrite the statute. As enacted 28 U.S.C. § 1491(a)(3) reads:
As rewritten by the majority in this case the statute now reads:
This sweeping judicial legislation, severely restricting the scope of section 1491(a)(3), is justified on the basis of an interpretation of legislative history. This suggests that Congress at the very least was ambiguous and did not know what it was saying when it wrote the statute, thus requiring the court's labored interpretation. As Judge Kashiwa demonstrates in his dissent, the legislative history can be read to support the plain English language used by Congress when it made a considered judgment to give the Claims Court broader jurisdiction than its predecessor, the Court of Claims, to provide equitable relief as well as money damages. But now we are told that "claim" means "action" which means lawsuit, and that "exclusive" means nonexclusive, and "any contract claim" means only those judicially processed. Possibly the majority's opinion must go on at such great length to achieve its ultimate result because of its opening misstatement of the first issue. It says that issue is:
I would concede that the court has no such jurisdiction if that is the only fact. But, here it is not. A more accurate statement of the issue is:
A colleague in the majority, concurring separately in the majority's result, nevertheless describes that as an unhappy result, saying: "The main trouble with the statute as construed by our majority is that it achieves an insignificant and absurd result." He points out, and properly so, that a bidder will have to file a Claims Court suit "without waiting to know if he has anything to protest. He may end up having sued to enjoin an award to himself .... This is a zany scheme that, by strict construction analysis, Congress enacted." He continues: "[I]t appears probable that many litigants wishing to obtain complete and entire relief, both injunction and bid preparation costs, will have to sue in two separate tribunals in order to do so."
I accept this perceptive evaluation of the majority's product but, with greatest respect, I do not think that strict construction of this statute accounts for or necessitates an "insignificant and absurd result." Nor do I believe that the fault lies with Congress for such a result, rather than with the court. True strict construction would apply the statute simply as it reads, to encompass "any contract claim." United States v. American Trucking Associations, 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940). It is well-established in the law that in interpretation of statutes and regulations based on statutory authority "[a]bsurd and whimsical results of interpretation, unrelated to congressional purpose, are to be avoided." Kantor v. United States, 205 Ct.Cl. 1, 6-7 (1974); see also Steuer v. United States, 207 Ct.Cl. 282, 294 (1975); Anderson v. United States, 490 F.2d 921, 928 (Ct.Cl.), cert. denied, 419 U.S. 827, 95 S.Ct. 47, 42 L.Ed.2d 52 (1974). "Thus, the unambiguous wording of a statute shall be given its plain and commonly understood meaning." Boege v. United States, 206 Ct.Cl. 560, 564 (1975); Prudential Insurance Company v. United States, 319 F.2d 161, 166 (Ct.Cl.1963). As Mr. Justice Frankfurter said, in speaking of the proper attitude with which we should approach the problem of statutory construction: "[O]ur problem is to construe what Congress has written. After all, Congress expresses its purpose by words. It is for us to ascertain — neither to add nor to subtract, neither to delete nor to distort." 62 Cases of Jam v. United States, 340 U.S. 593, 596, 71 S.Ct. 515, 518, 95 L.Ed. 566 (1951).
In recent years procurement by negotiation, as permitted by 10 U.S.C. §§ 2301-2314 (Supp. V 1981), has become prevalent and substantial portions of defense procurement have been obtained in this fashion. The Government did acknowledge at oral argument that procurement by negotiation is the prevalent procurement method. For example, in Fiscal Year 1976, the dollar amount of public advertised (such as the instant appeal) and negotiated contracts awarded were:
Civilian Agencies Defense Agencies Advertised $ 3,635,381,000 $ 3,232,425,000 Negotiated $12,366,752,000 $37,493,765,000
1 R. Nash & J. Cibinic, Federal Procurement Law 317 (3d ed. 1977). See generally 1B J. McBride & T. Touhey, Government Contracts, ch. 9 (1981 and Supp.1982). Since the Government's negotiations with all bidders are secret, no bidder can possibly have knowledge or notice of irregularities to warrant filing a bid protest prior to award. If one is to follow the Government's reasoning, a negotiated-type bidder has no forum which can grant him injunctive relief.
Similarly, S.Rep. No. 97-275, 97th Cong., 1st Sess. 23, reprinted in 1982 U.S.Code Cong. & Ad.News 33 in pertinent part states:
"Since the funds which the Government utilizes to purchase goods and services are derived solely from public sources, the public has strong interest in the ability of the Government to fulfill its requirements in these areas at the lowest possible cost. Accordingly, in the very vast majority of circumstances, the Government must be permitted to exercise its right to conduct business with those suppliers it selects and to do so in an expeditious manner. Yet, at the same time the Government must respect the rule of law. If it deviates from that norm it must be accountable for its actions in the courts, which are equipped with certain powers to redress proven wrongs. Hopefully, by modestly increasing the powers of the Claims Court, the needs of a cost-effective government contract system and of a lawful government contract system will both be met."
See also S.Rep. No. 275, 97th Cong., 1st Sess. 32, 33 (1981).