Petition — Andrus v. Glover Construction Co.

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Text

“Gupreme Court, U. a )

FILED \\

79-48 JUL 10 1979

No.

DAK, JR., CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

CECIL D. ANDRUS, SECRETARY

OF THE INTERIOR, ET AL., PETITIONERS

GLOVER CONSTRUCTION COMPANY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

WADE H. McCREE, JR.

Solicitor General

JAMES W. MOORMAN

4 Assistant Attorney General

SARA SUN BEALE

Assistant to the Solicitor General

ROBERT L. KLARQUIST

LarRRY A. Boacs

Attorneys

Department of Justice

Washington, D.C. 20530

INDEX

Opinions below .....

Jurisdiction

Question presented ..........

Statutes involved ..

Statement

Reasons for granting the petition -...................

Conclusion

Appendix A .

Appendix B

CITATIONS

Bryan v. Itasca County, 426 U.S. 373......

Page

an wo = =

32a

33a

34a

59a

Morton v. Mancari, 417 U.S. 586 ...... 8, 11, 18-14

United States v. Bornstein, 423 U.S. 303..

Wilson v. Omaha Indian Tribe, Nos. 78-

160 & 78-161 (June 20, 1979) ..............

Statutes:

Act of April 30, 1908, ch. 158, 35 Stat.

Act of June 10, 1910, ch. 431, Section 23,

36 Stat. 861

Act of October 10, 1940, ch. 851, 54 Stat.

1112

Statutes—-Continued Page

Act of November 8, 1965, Pub. L. No. 89-

343, 79 Stat. 1303 et seq.:

BERS See ASN er ened a 16

TS LLL AED EP SO EOE A EN 16

Buy Indian Act, 25 U.S.C. 47 -.............---- 2,5, 18

Federal Property and Administrative

Services Act of 1949, 41 U.S.C. 251

et seq.:

Section 302, 41 U.S.C. 252 -............... 2, 6,17

Section 302(a), 41 U.S.C. 252(a) .... 16,17

Section 302(c), 41 U.S.C. 252 (c)...... 6, 7

Section 302(c) (10), 41 U.S.C. 252

SRD cccvessispaicescnioveniwacs 12

Section 302(e) (15), 41 US.C. 252

CIID ciinaieenichchiendes as 7

Section 302(e), 41 U.S.C. 252 (e)... Pea 6,7

Section 302(e)(B), 41 U.S.C. 252

IE scibcahndneteigeieecdecininnocnnunies 6, 7, 15, 17

Section 308, 41 U.S.C. 253 -......... 4,6, 15,17

Section 310, 41 U.S.C. 260 .............. 5, 16, 17

ee Sp paetinctns iit teeniinn 15

Oe TFT Oe Sitesi on 15

“ge: 8” TR GNSS Ear eeevonn sou one soe 6, 15

Miscellaneous:

42 Cong. Rec. 1695 (1908) .....................--- 14

45 Cong. Ree. 6097 (1910) -...................... 14

H.R. Rep. No. 1166, 89th Cong., 1st Sess.

RIED ssissinisc estos elisienapecatiesatrctetersornnsanbns 16,17

S. Rep. No. 274, 89th Cong., 1st Sess.

f ,_ | TERCERA OLE A eens a ! on 16, 17

PORNO gt eT

Gu the Supreme Court of the United States

OCTOBER TERM, 1978

No.

CECcIL D. ANDRUS, SECRETARY

OF THE INTERIOR, ET AL., PETITIONERS

Vv.

GLOVER CONSTRUCTION COMPANY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

The Solicitor General, on behalf of the Secretary of

the Interior and the other appellants below, petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Tenth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-31la) is reported at 591 F.2d 554. The opinion of

the district court (App. D, infra, 34a-58a) is re-

ported at 451 F. Supp. 1102.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, 32a) was entered on January 11, 1979, and

(1)

the Secretary’s petition for rehearing was denied on

March 12, 1979 (App. C, infra, 33a). On May 30,

1979, Mr. Justice White extended the time for filing

a petition for a writ of certiorari to and including

July 10, 1979. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the Buy Indian Act, 25 U.S.C. 47, auth-

orizes the Secretary of the Interior to enter into road

construction contracts. with Indian-owned companies

without publicly advertising pursuant to the Federal

Property and Administrative Services Act of 1949,

41 U.S.C. 258.

STATUTES INVOLVED

The Buy Indian Act, 25 U.S.C. 47, provides:

So far as may be practicable Indian labor shall

be employed, and purchases of the products of

Indian industry may be made in open market in

the discretion of the Secretary of the Interior.

Section 302 of the Federal Property and Adminis-

trative Services Act of 1949, 41 U.S.C. 252, provides

in pertinent part:

(a) Executive agencies shall make purchases

and contracts for property and services in ac-

cordance with the provisions of this subchapter

and implementing regulations of the Adminis-

trator; but this subchapter does not apply—

(1) to the Department of Defense, the Coast

Guard, and the National Aeronautics and Space

Administration; or |

(2) when this subchapter is made inapplica-

ble pursuant to section 474 of title 40 or any

other law, but when this subchapter is made in-

applicable by any such provision of law, sections

5 and 8 of this title shall be applicable in the

absence of authority conferred by statute to

procure without advertising or without regard to

said section 5 of this title.

* * * * *

and services shall be made by advertising, as pro-

vided in section 253 of this title, except that such

purchases and contracts may be negotiated by

the agency head without advertising if—

* * * * *

(10) for property or services for which it is

impracticable to secure competition;

* * * * *

(15) otherwise authorized by law, except that

section 254 of this title shall apply to purchases

and contracts made without advertising under

this paragraph.

* + . * *

(e) This section shall not be construed to (A)

authorize the erection, repair, or furnishing of

any public building or public improvement, but

such authorization shall be required in the same

manner as heretofore, or (B) permit any con-

tract for the construction or repair of buildings,

roads, sidewalks, sewers, mains, or similar items

to be negotiated without advertising as required

by section 253 of this title, unless such contract

is to be performed outside the continental United

States or unless negotiation of such contract is

authorized by the provisions of paragraphs (1),

(2), (3), (10), (11), (12), or (14) of subsec-

tion (c) of this section.

Section 303 of the Act, 41 U.S.C. 253, provides:

Whenever advertising is required—

(a) The advertisement for bids shall be made

2 sufficient time previous to the purchase or

contract, and specifications and invitations for

bids shall permit such full and free competition

as is consistent with the procurement of types

of property and services necessary to meet the

requirements of the agency concerned. No ad-

vertisement or invitation to bid for the carriage

of Government property in other than Govern-

ment-owned cargo. containers shall specify car-

riage of such property in cargo containers of

any stated length, height, or width.

(b) All bids shall be publicly opened at the

time and place stated in the advertisement.

Award shall be made with reasonable promptness

by written notice to that responsible bidder whose

bid, conforming to the invitation for bids, will be

most advantageous to the Government, price and

other factors considered: Provided, That all bids

may be rejected when the agency head determines

that it is in the public interest so to do.

Section 310 of the Act, 41 U.S.C. 260, provides: -

Sections 5, 8, and 13 of this title shall not ap-

ply to the procurement of property or services

made by an executive agency pursuant to this

subchapter. Any provision of law which author-

izes an executive agency (other than an execu-

tive agency which is exempted from the provi-

sions of this subchapter by section 252(a) of

this title), to procure any property or services

without advertising or without regard to said

section 5 of this title shall be construed to auth-

orize the procurement of such property or serv-

ices pursuant to section 252(c) (15) of this title

without regard to the advertising requirements

of sections 252(c) and 253 of this title.

STATEMENT

1. The Buy Indian Act, 25 U.S.C. 47, directs the

Secretary of the Interior to employ Indian labor “[s]o

far as may be practicable,” and permits him to pur-

chase “the products of Indian industry * * * in [the]

open market * * *.” Pursuant to the Act, the Bureau

of Indian Affairs (BIA) of the Department of the In-

terior permits only Indian-owned firms to bid on its

contracts (see App. E, infra, 59a-67a). BIA invited

three Indian-owned construction companies to bid on

a five-mile segment of road in Pushmataha County,

Oklahoma, and on May 25, 1977 BIA awarded the

contract to Indian Nations Construction Company, a

wholly Indian-owned corporation (App. A, infra, 2a-

3a). Respondent, a non-Indian corporation, was not

afforded the right to bid for the contract (App. D,

infra, 39a).

Respondent then instituted this action in the United

States District Court for the Eastern District of Okla-

homa, naming as defendants the Secretary of the

Interior, the Department itself, the BIA, and the BIA

contracting officer. Respondent contended that the

Buy Indian Act provided no authority for the negotia-

tion of road construction contracts, and that the gov-

ernment was required to advertise for bids pursuant

to the Federal Property and Administrative Services

Act of 1949, 41 U.S.C. 252, 253.* |

The district court granted summary judgment for

respondent (App. D, infra, 34a-58a). The court con-

cluded that the case was governed by 41 U.S.C.

252(c) and (e). Section 252(c) provides that agency

purchases and contracts for property and services

“shall be made by advertising, as provided in section

253,” unless one of 15 enumerated exemptions is

applicable. Subsection 252(e)(B) provides that Sec-

tion 252 shall not be construed to authorize any con-

tract for the construction of roads to be negotiated

without advertising as required by Section 253 “un-

less negotiation of such contract is authorized by the

provisions of paragraph (1), (2), (3), (10), (11),

(12), or (14) of subsection (c).” The court rejected

the contention that the Buy Indian Act exempted the

Secretary from these requirements, noting that even

1 Respondent also contended that the government had vio-

lated 41 U.S.C. 5, and had denied respondent due process.

The district court held (App. D, infra, 39a) that 41 U.S.C. 5

was not applicable, and it declined to reach respondent’s con-

stitutional claims (App. D, infra, 46a-47a).

though Section 252(c)(15) provides a general

exemption from the advertising requirements when

“otherwise authorized by law,” exemption (c) (15)

was not made applicable to construction contracts

under Section 252(e)(B). The court concluded that

it was significant that “Congress saw fit to specifical-

ly exempt seven subsections of section 252(c) from

the advertising requirements with respect to road con-

struction contracts and did not include the ‘otherwise

authorized by law’ provision of subsection (c) (15)

within this category” (App. A, infra, 40a-41a; em-

phasis in original).

The court rejected the Secretary’s administrative

construction, finding that the proper construction of

Section 252(c) and (e) “is not doubtful and the

rule of deference by the court to an administrative

interpretation has therefore no application” (App.

D, infra, 45a-46a). The court also noted (App. D,

infra, 46a) that the administrative interpretation

was not contemporaneous with the enactment of either

the Buy Indian Act or the Federal Property and Ad-

ministrative Services Act.

The final judgment, entered on May 12, 1978,

declared the road construction contract entered be-

tween BIA and Indian Nations null and void and

permanently enjoined BIA from “circumventing the

advertising requirements of 41 U.S.C. § 253 in con-

nection with future road construction contracts”

(App. D, infra, 58a).

2. The government appealed, and a divided panel

of the court of appeals affirmed (App. A, infra, la-

31a). The majority first quoted at length from the

district court’s opinion (App. A, infra, 7a-13a). It

then rejected the government’s argument that the

district court had erroneously treated the Federal

Property and Administrative Services Act as im-

pliedly repealing the Buy Indian Act, contrary to the

teaching of Morton v. Mancari, 417 U.S. 535 (1974).

The majority distinguished Mancari on the ground

that, unlike the statute providing for a federal em-

ployment preference for Indians, which dealt with

precisely the same subject matter as the later pro-

visions prohibiting racial discrimination in federal

agencies, there was nothing to suggest that the Buy

Indian Act was ever intended to apply to road con-

struction contracts (App. A, infra, 13a-15a). The

court pointed out (App. A, infra, 17a) that at the

time Congress enacted the Federal Property and Ad-

ministrative Services Act, it was “fully cognizant of

the Buy Indian Act,” and was “capable of clearly

and directly providing the interpretation of the Buy-

Indian Act here urged by the Government.” Conclud-

ing that Congress “did not elect to do so,” the ma-

jority refused to “ ‘fill the gap’ by engaging in judicial

law-making” (ibid.).2 Indeed, the majority com-

2In this connection, the court noted (App. A, infra, 17a)

the government’s argument that no weight should be given to

the fact that the legislative history of the Buy Indian Act

contained no reference to road construction, since no Indian-

owned construction companies were then in existence. The

court commented (ibid.) that, assuming the truth of that con-

tention, there had been no showing that that argument had

been made to the Congress that enacted the Federal Property

and Administrative Services Act.

ee eRe TE NE eee

mented that “[i]n our view, we are here dealing

with a political question beyond the jurisdiction of

the courts” (ibid.).

The court observed (App. A, infra, 16a-17a) that

“an unambiguous statute must be given its plain

and obvious meaning,” and “construed as it was in-

tended to be understood when enacted in the light of

conditions as they then existed.” And, it argued, when

one statute speaks to a subject in general terms, and

another in specific and detailed terms, the more spe-

cific act—here the provision of the Federal Property

and Administrative Services Act dealing with road

construction contracts—should control if there is a

conflict (App. A, infra, 18a).

The court recognized “that the remedial Buy-

Indian Act is to be given a liberal construction in

order to effectuate the purpose for which it was en-

acted,” but it concluded that “it strains the most

liberal interpretation to conclude that the Act’s pref-

erence for purchase of ‘Indian supplies’ and ‘products’

applies to a roadway construction project whose con-

tract price, through Indian Construction, is $1,219,-

481.00” (App. A, infra, 19a). Noting that the con-

tract price was significantly higher than respondent’s

bid, the majority observed that “a primary, significant

remedial feature of the advertisement and competitive

bidding requirements of the Federal Property and

Administrative Services Act of 1949 is to obtain the

best and lowest bid for the benefit of the American

taxpayers in ‘high cost’ construction categories” (App.

A, infra, 19a-20a; emphasis in original). The ma-

jority concluded (App. A, infra, 20a) that “a statu-

tory exception should be strictly construed so that

the exception does not devour the general policy which

the law embodies.”

Judge McKay dissented (App. A, infra, 21a),

arguing that the court had “reache[d] a result hostile

to the remedial purposes of the Buy Indian Act’

because of rigid adherence “to formalistic rules of

statutory construction.” Judge McKay identified

“Tt]he real issue in this case” as the extent to which

the Buy Indian Act “retains vitality in light of the

advertising requirements of the Federal Property

Act” (ibid.). He observed (App. A, infra, 22a) that

“Tt]he Buy Indian Act announces a congressionally

approved policy of preferring Indian labor and prod-

ucts and grants the Interior Secretary discretionary

power to purchase Indian products on the open mar-

ket,” and that pursuant to that policy the Department

of the Interior had established a road construction

program that “has provided substantial economic en-

couragement to Indian construction enterprises.” He

argued that “[t]he obvious purpose of the Buy

Indian Act is to encourage Indian economic develop-

ment by freeing Indian industry from the competitive

strictures of advertised bidding requirements,” and

that even though the legislative history of the Act “is

rather scanty, it nonetheless manifests a clear pur-

pose to except purchases of Indian products from ad-

vertising requirements” (ibid.). Despite the remedial

purpose of the Act, the majority had found it inap-

plicable “because nothing in the language of the

Act or in its legislative history indicates it was

intended to apply to road construction projects”

(App. A, infra, 25a-26a). As Judge McKay pointed

out, “[i]mplicit in this conclusion is the troubling

notion that because a particular economic activity is

not mentioned in the Act or in its legislative history,

that activity is not covered. Such a construction,”

he contended, “may make the Act applicable to noth-

ing at all” (App. A, infra, 26a; footnote omitted).

In his view, the Act should not be limited to Indian

economic activities that were actually being conducted

in 1910, and the dissent concluded that the majority’s

ruling “threatens to relegate [the Buy Indian Act] to

a role of protecting Indian handicraft and trinket

production—economic activities that probably require

no preferential treatment at all” (App. A, infra,

27a).

Judge McKay also argued that the majority’s opin-

ion conflicts with this Court’s teaching that “statutes

passed for the benefit of [Indians] are to be liberally

construed, doubtful expressions being resolved in favor

of Indians” (App. A, infra, 27a, quoting Bryan v.

Itasca County, 426 U.S. 373, 392 (1976) ). “I simply

do not understand,” he wrote (App. A, infra, 28a;

footnote omitted), “why we decline to apply the

meaning of the word ‘product’ in a way that actually

does some good.” The teaching of Morton v. Mancari,

he urged, required the court to “sustain both” the

Buy Indian Act and the Federal Property and Ad-

ministrative Services Act, “in a way that vitiates

neither” (App. A, infra, 31a; footnote omitted).

12.

Finally, Judge McKay argued (App. A, infra, 3la

n.10) that in any event the injunction granted by the

district court would improperly preclude the Secre-

tary from determining, in his discretion, whether

negotiation with Indian firms might still be proper

pursuant to 41 U.S.C. 252(c)(10), an exemption

from the federal advertising requirements where com-

petitive bidding would be “impractical.”

The government’s petition for rehearing was de-

nied on March 12, 1979; Judge McKay voted to grant

rehearing (App. C, infra, 33a).

REASONS FOR GRANTING THE PETITION

The court of appeals’ narrow reading of the Buy

Indian Act is unprecedented, and wholly at odds with

the remedial purpose of the statute. The decision

also ignores both the legislative history and the lan-

guage of the Federal Property and Administrative

Services Act, each of which shows unmistakably that

existing exemptions from the general federal adver-

tising requirements—including the Buy Indian Act—

were to be preserved.

Although the court of appeals’ decision is one of

first impression, its consequences are so serious that

review by this Court is now warranted. The ruling,

if permitted to stand, will effectively terminate a

federal program that has provided millions of dollars

of business each year to Indian-owned businesses.

The Secretary informs us that, in the last year un-

affected by the district court’s injunction, BIA

awarded more than $11 million worth of road con-

struction contracts to Indian-owned companies. This

business provided an important source of income to

Indian businesses and a significant source of employ-

ment on various reservations, substantially improving

the economic base of those reservations. Many of

these companies are in the Tenth Circuit, and if the

court of appeals’ decision becomes final the Secretary

anticipates that most of those firms will be forced out

of business. Moreover, the court’s narrow reading of

the Buy Indian Act is likely to be followed, at least

in that circuit, in cases involving other kinds of BIA

construction contracts that are now awarded to

Indian-owned firms without public advertising. Since

road construction contracts account for only a small

portion of the construction contracts BIA now negoti-

ates pursuant to its interpretation of the Buy Indian

Act, the Tenth Circuit’s view of the Buy Indian Act

will have a serious adverse impact on a very large

number of Indian businesses.

1. The inclusive language of the Buy Indian Act,

25 U.S.C. 47—which generally embraces “Indian

labor” and all “products of Indian industry”—applies

to the products of the Indian construction industry,

as well as the products of Indian pottery, jewelry, and

weaving industries. As this Court has previously rec-

ognized, a common purpose of the Buy Indian Act

and other Indian preference enactments is “to fur-

ther the Government’s trust obligation toward the

Indian tribes.” Morton v. Mancari, supra, 417 U.S.

at 541-542 (footnote omitted). Judge McKay cor-

rectly recognized (App. A, infra, 22a) that the Buy

Indian Act was intended to achieve this goal by “en-

courag[ing] Indian economic development by freeing

Indian industry from the competitive strictures of

advertised bidding requirements.”

Although the legislative history of the Act is

sparse, it does indicate that Congress intended both

the current Buy Indian Act and its predecessor, the

Act of April 30, 1908, ch. 153, 35 Stat. 71, to be

broad enough to apply to construction contracts, since

there were references in the debates on both acts to

contracts for the construction of irrigation systems.

42 Cong. Rec. 1695 (1908) (remarks of Rep. Sher-

man); 45 Cong. Rec. 6097 (1910) (remarks of Rep.

Burke).

In light of the remedial purpose of the Act and the

settled rule that such “ ‘ “statutes passed for the bene-

fit of dependent Indian tribes * * * are to be liberally

construed,” ’” Wilson v. Omaha Indian Tribe, Nos.

78-160 & 78-161 (June 20, 1979), slip op. 10, the

court of appeals erred in concluding that the Buy

Indian Act can have no application to road construc-

tion contracts. Even if the brief legislative history

contained no reference to any type of construction

contract, that would not relieve the court of its “duty

to give faithful meaning to the language Congress

adopted in the light of the evident legislative purpose

in enacting the law in question.” United States v.

Bornstein, 423 U.S. 308, 310 (1976).

2. The court of appeals also erred in concluding

that the advertising requirements applicable to road

construction contracts under the Federal Property

and Administrative Services Act, 41 U.S.C. 252(e)

(B) and 253, permit no exception for contracts

negotiated under the authority of the Buy Indian Act.

The Buy Indian Act was enacted as a proviso to a

statute that subjected the Indian Service (BIA’s pre-

decessor) to the only advertising statute then in ef-

fect, Section 3709 of the Revised Statutes (which is

currently codified as 41 U.S.C. 5). Section 23 of the

Act of June 25, 1910, ch. 431, 36 Stat. 861, stated:

That hereafter the purchase of Indian supplies

shall be made in conformity with the require-

ments of section thirty-seven hundred and nine

of the Revised Statutes of the United States:

Provided, That so far as may be practicable In-

dian labor shall be employed, and purchases of

the products of Indian industry may be made in

open market in the discretion of the Secretary of

the Interior. '*!

In 1965, when the more detailed procurement and

advertising requirements of the Federal Property and

Administrative Services Act were extended to execu-

tive agencies generally, including BIA, in lieu of the

provision originally contained in Section 3709, Con-

gress preserved and carried over existing exceptions

to Section 3709— including the Buy Indian Act. Sec-

8’ The portion of this section preceding the proviso, which

was codified at 25 U.S.C. 93, was repealed by the Act of

October 10, 1940, ch. 851, 54 Stat. 1112.

tion 5 of the Act of November 8, 1965, Pub. L. No.

89-343, 79 Stat. 1308, amended Section 310 of the

Federal Property and Administrative Services Act,

41 U.S.C. 260, to provide:

Any provision of law which authorizes an

executive agency * * * to procure any property

or services without advertising or without re-

gard to said section 3709 shall be construed to

authorize the procurement of such property or

services pursuant to section 302(c) (15) of this

Act [41 U.S.C. 252(c)(15)] without regard to

the advertising requirements of sections 302(c)

[41 U.S.C. 252(c)] and 303 [41 U.S.C. 253] of

this Act.

The Committee Reports confirm that Congress in-

tended to preserve “exemptions from the requirements

of Revised Statutes, section 3709 * * * by constituting

these as exceptions from the advertising requirements

of Sections 302(c) [41 U.S.C. 252(c)] (and 303)

[41 U.S.C. 253] of the act pursuant to section 302 (c)

(15) [41 U.S.C. 252(c)(15)].” H.R. Rep. No. 1166,

89th Cong., 1st Sess. 7-8 (1965); S. Rep. No. 274,

89th Cong., Ist Sess. 5 (1965).

The same intent was evinced in Section 1 of the

Act of November 8, 1965, Pub. L. No. 89-343, 79 Stat.

1303, which amended 41 U.S.C. 252(a) to provide

that the title containing the new advertising and pro-

curement requirements did not apply where an ex-

ception was provided elsewhere:

Executive agencies shall make purchases and

contracts for property and services in accordance

with the provisions of this title and implementing

regulations of the Administrator; but this title

does not apply—

* * *” * *

(2) when this title is made inapplicable pur-

suant to * * * any other law * * *.

The Committee Reports stated that Congress intended

this provision to “make[ ] clear that the limited ex-

emptions specified * * * in any other law, are not

eliminated by this section * * *.” H.R. Rep. No. 1166,

supra, at 7; S. Rep. No. 274, supra, at 4.

Since 41 U.S.C. 252(a) and 260 make the entire

title—and particularly the advertising requirements

of Section 253—inapplicable where there was a pre-

existing exemption, such as the Buy Indian Act, the

court of appeals erred in holding that BIA is re-

quired to advertise its road construction contracts.

The court’s reliance on Section 252(e)(B) was mis-

placed. Section 252(e)(B) does not, in and of itself,

state any advertising requirement. It provides only

that, with certain exceptions, Section 252 shall not

be construed to “permit any contract for the construc-

tion or repair of * * * roads * * * to be negotiated

without advertising as required by section 203,” that

is, 41 U.S.C. 253. (Emphasis added). Since the Buy

Indian Act exempts BIA from the advertising re-

quirements of Section 253, Section 252(e)(B) stands

as no obstacle to BIA’s negotiation of road construc-

tion. contracts pursuant to the Buy Indian Act.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

SARA SUN BEALE

Assistant to the Solicitor General

ROBERT L. KLARQUIST

LARRY A. BOGGS

Attorneys

JULY 1979

APPENDIX A

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

[Filed Jan. 11, 1979]

No. 78-1554

GLOVER CONSTRUCTION COMPANY, APPELLEE,

vs.

CrEcIL ANDRUS, SECRETARY OF THE DEPARTMENT OF

INTERIOR; DEPARTMENT OF INTERIOR; BUREAU OF

INDIAN AFFAIRS; and A. E. GREEN, APPELLANTS

Appeal from the United States District Court

for the Eastern District of Oklahoma

(D.C. No. 78-178-C)

Submitted: September 27, 1978

Before McWILLIAMS, BARRETT and McKAY, Cir-

cuit Judges.

BARRETT, Circuit Judge.

The United States, by and through Cecil Andrus,

Secretary of the Department of the Interior, et al.,

(Government) appeals from a summary judgment

entered on behalf of Glover Construction Company

(Glover), a non-Indian owned contracting company,

setting aside and rendering null and void a road con-

struction contract awarded by the Government,

through the Bureau of Indian Affairs (BIA), to

Indian Nations Construction Company (Indian Con-

struction), an Indian owned company. The contract

was let for the reconstruction of five miles of road-

way in Pushmataha County, Oklahoma.

The facts are not in dispute. In March of 1976,

Government, through the Commissioner of the BIA,

issued a memorandum designated as 20 BIAM Bul-

letin 1 interpretive of the Buy-Indian Act, 25

U.S.C.A. § 47.1 The memo provides that bidding on

contracts with the BIA is restricted or confined to

Indian owned companies. Non-Indian owned com-

panies are permitted to bid only if Indian owned

companies are not available to bid or do not bid.

Prior to May 25, 1977, the BIA invited three Indian

owned construction companies to submit bids on a

contract for reconstruction of five miles of existing

125 U.S.C.A. § 47 provides:

Employment of Indian labor and purchase of products of

Indian industry

So far as may be practicable Indian labor shall be

employed, and purchases of the products of Indian in-

dustry may be made in open market in the discretion

of the Secretary of the Interior. Apr. 30, 1908, c. 153,

85 Stat. 71; June 25, 1910, c. 431, § 23, 36 Stat. 861.

roadway as provided by 41 CFR § 1-3.215(a) pur-

suant to the Buy-Indian Act, supra. The contract

was awarded on May 25, 1977, to Indian Construc-

tion, whose bid was $1,219,481.00. No attempt was

made by the Government to publicly advertise for

bids pursuant to 41 U.S.C.A. § 258,? popularly known

as the Federal Property and Administrative Services

Act of 1949, in relation to its application to the rele-

vant provisions of 41 U.S.C.A. § 252.* No conten-

241 U.S.C.A. § 253 provides:

Advertising requirements

Whenever advertising is required—

(a) The advertisement for bids shall be made a suffi-

cient time previous to the purchase or contract, and

specifications and invitations for bids shall permit such

full and free competition as is consistent with the pro-

curement of types of property and services necessary to

meet the requirements of the agency concerned...

(b) All bids shall be publicly opened at the time and

place stated in the advertisement. Award shall be made

with reasonable promptness by written notice to that

responsible bidder whose bid, conforming to the invita-

tion for bids, will be most advantageous to the Govern-

ment, price and other factors considered: Provided, That

all bids may be rejected when the agency head determines

that it is in the public interest to do so. June 30, 1949,

c. 288, Title III, § 303, 63 Stat. 395; July 12, 1952, c. 703,

§ 1(m), 66 Stat. 594.

841 U.S.C.A. § 252 provides:

* * * *

Negotiated purchases and contract for property; con-

ditions

- (c) All purchases and contracts for property and

services shall be made by advertising, as provided in

section 253 of this title, except that such purchases and

tions are advanced by Government that the contract

here involved was subject to negotiation under the

exceptions of paragraphs (1), (3), (10), (12) or

(14) of subsection (c) of § 252, supra.

Glover contends that the Government violated 41

U.S.C.A. § 5 which provides that purchases and con-

tracts for supplies or services for the Government

may be made or entered into only after advertising

a sufficient time previously for proposals, except (1)

when the amount involved does not exceed $2,500.00,

(2) when the public exigencies require the immediate

delivery of the articles or performance of the service,

(3) when only one source of supply is available and

the Government officer shall so certify, or (4) when

contracts may be negotiated by the agency head without

advertising if—

(10) for property or services for which it is im-

practical to secure competition.

(15) otherwise authorized by law, except that section

254 of this title shall apply to purchases and contracts

made without advertising under this paragraph.

Exceptions to this section

(e) This section shall not be construed to: (A) author-

ize the erection, repair, or furnishing of any public build-

ing or public improvement, but such authorization shall

be required in the same manner as heretofore, or (B)

permit any contract for the construction or repair of.

buildings, roads sidewalks, sewers, mains, or similar

items to be negotiated without advertising as required

by Section 253 of this title, unless such contract is to be

performed outside the continental United States or unless

negotiation of such contract is authorized by the pro-

visions of paragraphs (1)-(3), (10)-(12), or (14) of

subsection (c) of this title.’ (Emphasis supplied.)

the services are required to be performed by the

contractor in person and are of a technical or pro-

fessional nature or under Government supervision and

paid for on a time basis. 41 U.S.C.A. § 5 was origi-

nally enacted in 1946. 60 Stat. 809.

Further, Glover contends that the Government was

required to publicly advertise for bids pursuant to

41 U.S.C.A. § 253, supra, and that the BIA’s con-

tracting procedure giving preference to Indians vio-

lated Glover’s rights to equal protection and due

process of law. The Government contends that the

contracting procedure is authorized by the Buy-

Indian Act, supra, and that it is constitutional.

The District Court did not reach the constitutional

contentions. The Court did conclude, however, that

under the terms of the Federal Property Act, 41

U.S.C.A. § 252, the Buy-Indian Act, 25 U.S.C.A. § 47,

could not be applied to road construction contracts;

that the contract awarded Indian Construction was

null and void; and that the Government (Interior-

BIA) should be enjoined from entering into any fu-

ture road construction contracts without complying

with the public advertising requirements.

On appeal, Government contends that the District

Court erred in finding and concluding that the BIA

(Government) may not enter into road construction

contracts with Indian owned contracting companies

without publicly advertising for bids pursuant to 41

U.S.C.A. § 253.

The District Court saw the issues framed as fol-

lows: In 1976 the BIA implemented its “new” in-

EE ee rl ll Oe rl

terpretation of the “Buy-Indian Act,” supra, (which

Act had been in effect since 1910) under which the

BIA entered into contractual negotiations with wholly

owned Indian companies for road construction proj-

ects without complying with the advertising require-

ments of 41 U.S.C.A. §§ 5 and 253; under the “new”

interpretation, bids are to be taken only among In-

dian owned contracting companies and non-Indian

contractors are to be contacted and considered for

road construction projects only after it has been

determined that there are no qualified Indian con-

tractors within the normal competitive area; Gov-

ernment claims that the “new” policy interpretive

of the Buy-Indian Act falls within the “otherwise

authorized by law’ exception to advertising provided

by 41 U.S.C.A. § 253(c) (15) ;* Glover contends that

41 U.S.C.A. § 252(e) fails to exempt contracts for

the construction of roads from the advertising re- .

quirements, since it expressly exempts 41 U.S.C.A.

§ 252(c) (1)-(3), (10)-(12), and (14) but does not

refer to subsection (15); the parties agree that 41

U.S.C.A. §§ 252 and 253 apply to the BIA.

The District Court ruled that the procedure fol-

lowed by the BIA in awarding the road construction

contract to Indian Construction contravenes the re-

quirements of 41 U.S.C.A. §§ 252 and 253. We agree.

4 Even though the parties have not referred to the pro-

visions of § 254, supra, we observe that Congress has re-

stricted the availability of the “otherwise authorized by law”

exception to § 252(c). We do not here decide the applicability

of this section to the disposition of the instant case.

The District Court’s order is, in our view, worthy of

quotation in pertinent part, to-wit:

Section 252(c) makes all purchases and con-

tracts for property and services subject to the

advertising requirements of section 253 unless

they come within any of the fifteen enumerated

exceptions. Defendants contend that the Buy

Indian Act comes within subsection (15). There

is no contention that any of the other fourteen

exceptions apply in this case. Subsection (e)

(B) specifically provides that section 252 shall

not be construed to permit any contract for the

construction of roads to be negotiated without

advertising as required by section 253 unless the

contract is to be performed outside the conti-

nental United States or unless negotiation of

such contract is authorized by the provisions of

paragraphs (1)-(3), (10)-(12), or (14) of sub-

section (c).

Defendants’ argument that subsection (e) is

an admonition rather than a prohibition and

that subsection (c)(15) authorizes negotiation

of road construction contracts under the Buy

Indian Act is unpersuasive. Congress saw fit to

specifically exempt seven subsections of section

252(c) from the advertising requirements with

respect to road construction contracts and did

not include the “otherwise authorized by law”

provision of subsection (c)(15) within this

category. This is the subsection on which defend-

ants rely.

The effect of the enumeration of express ex-

ceptions in a statute has been stated as follows:

The specification by the legislature of ex-

ceptions to the operation of a general stat-

ute, does not necessarily operate to preclude

the court from applying other exceptions.

However, where express exceptions are

made, the legal presumption is that the leg-

islature did not intend to save other cases

from the operation of the statute. Thus, the

rule generally applied is that an exception

in a statute amounts to an affirmation of

the application of its provisions to all other

cases not excepted, and excludes all other

exceptions or the enlargement of exceptions

made. Under this principle, where a gen-

eral rule has been established by a statute

with exceptions, the courts will not curtail

the former, nor add to the latter, by impli-

cation. (Emphasis added. )

73 Am.Jur.2d Statutes § 316 (1974) (footnotes

omitted). The court accordingly concludes that

contracts for the construction of roads, such as

the contract involved in the instant action, are

not excepted from the advertising requirements

of section 253 by virtue of section 252(c) (15).

Defendants contend, however, that the Buy

Indian Act has been interpreted for many years

as authorizing construction contracting with in-

vitations to bid restricted to Indian contractors,

and that this administrative construction of the

statute is entitled to great weight. Plaintiff con-

tends that 20 BIAM Bulletin 1 of March 3, 1976

(Exhibit D to defendants’ brief) represents a

new policy, and even if not new, that the statu-

tory interpretation therein espoused is entitled

to little or no weight since it is not a contempo-

raneous statutory construction.

Defendants’ exhibits establish at best that the

interpretation set forth in the 1976 bulletin may

date back as far as 1961. Assuming this to be

true for the purpose of plaintiff’s summary judg-

ment motion it does not follow that such inter-

pretation is entitled to be given great weight, or

any weight, upon the question of the proper

statutory interpretation.

Defendants rely on Udall v. Tallman, 380 U.S.

1 (1965), and United States v. Jackson, 280

U.S. 183 (1930) for the general rule of statu-

tory construction that “great weight is properly

to be given to the construction consistently given

to a statute by the Executive Department

charged with its administration.” 280 U.S. at

193. The Court emphasized in Udall, however,

that the Secretary had consistently construed the

executive order and public land order there in-

volved since their promulgation and that this

interpretation had been made a repeated matter

of public record. 380 U.S. at 4, 17. Further-

more, the Supreme Court has recognized that

[i]t has been held in many cases that a

definitely settled administrative construc-

tion is entitled to the highest respect; and,

if acted on for a number of years, such con-

struction will not be disturbed except for

cogent reasons. See e.g. Logan v. Davis, 233

U.S. 613, 627. But the court is not bound

by a construction so established. Chicago

&c. Ry. Co. v. McCaull-Dinsmore Co., 253

U.S. 97, 99. United States v. Dickson, 15

Pet. 141, 161. The rule does not apply in

cases where the construction is not doubtful.

And if such interpretation has not been uni-

10a | lla

form, it is not entitled to such respect or |

weight, but will be taken into account only

to the extent that it is supported by valid

reasons. Brown v. United States, 113 U.S.

Norwegian Nitrogen Products Co. v. United

States, 288 U.S. 294, 315 (1983). And, the Su-

preme Court further stated in Missouri Pacific:

568, 571. Merritt v. Cameron, 187 U.S. 542,

551-552. United States v. Alabama Rail-

road Co., 142 U.S. 615, 621. United States

v. Healey, 160 U.S. 136, 145. Studebaker v.

Perry, 184 U.S. 258, 268. Houghton v.

Payne, 194 U.S. 88, 99.

The language of that provision is so clear

and its meaning so plain that no difficulty

attends its construction in this case. Ad-

herence to its terms leads to nothing im-

possible or plainly unreasonable. We are

therefore bound by the words employed and

are not at liberty to conjure up conditions

United States v. Missouri Pacific R.R., 278 U.S. to raise doubts in order that resort ma

! y be

269, 280 (1929) (emphasis added). The Court had to construction. It is elementary that

has also said: where no ambiguity exists there is no room

True indeed it is that administrative prac-

tice does not avail to overcome a statute so

plain in its commands as to leave nothing

for construction. True it also is that admin-

istrative practice, consistent and generally

unchallenged, will not be overturned except

for very cogent reasons if the scope of the

command is indefinite and doubtful. United

States v. Moore, 95 U.S. 760, 763; Logan

v. Davis, 233 U.S. 618, 627; Brewster v.

Gage, 280 U.S. 327, 386; Fawcus Machine

Co. v. United States, 282 U.S. 375; Inter-

state Commerce Commn. v. N.Y., N.H. &

H.R. Co., 287 U.S. 178. The practice has

peculiar weight when it involves a contem-

poraneous construction of a statute by the

men charged with the responsibility of set-

ting its machinery in motion, of making the

parts work efficiently and smoothly while

they are yet untried and new. Fawcus Ma-

chine Co. v. United States, supra. (Empha-

sis added. )

for construction. Inconvenience or hard-

ships, if any, that result from following the

statute as written must be relieved by leg-

islation .. . . Construction may not be sub-

stituted for legislation. United States v.

Wiltberger, 5 Wheat, 76, 95-96. United

States v. Fisher, 2 Cranch 358, 386. Lake

County v. Rollins, 180 U.S. 662, 670. Cami-

netti v. United States, 242 U.S. 470. Ex

parte Public National Bank, ante, p. 101.

United States v. Colorado & N.W.R. Co.,

157 Fed. 321, 327.

. . . Where doubts exist and construction is

permissible, reports of the committees of

Congress and statements by those in charge

of the measure and other like extraneous

matter may be taken into consideration to

aid in the ascertainment of the true legis-

lative intent. But where the language of an

enactment is clear and construction accord-

ing to its terms does not lead to absurd or

12a

impracticable consequences, the words em-

ployed are to be taken as the final expres-

sion of the meaning intended. And in such

cases legislative history may not be used to

support a construction that adds to or takes

from the significance of the words employed.

United States v. Freight Ass’n, 166 U.S.

290, 325. Pennsylvania R.R. v. Interna-

tional Coal Co., 230 U.S. 184, 199. Mac-

kenzie v. Hare, 239 U.S. 299, 308. Cami-

netti v. United States, supra, 490.

278 U.S. at 277-78 (emphasis added).

The court is of the view that construction of

section 252(c) & (e) is not doubtful and that

the rule of deference by the court to an admin-

istrative interpretation has therefore no appli-

cation in this case. Moreover, even if the rule

were applicable, defendants have not shown or

even contended that the policy challenged in this

action has been in effect prior to 1961. The Buy

Indian Act has been in effect since 1910 and-41

U.S.C. §§ 252 and 253 have been in effect since

1949. There is accordingly no contemporaneous

interpretation involved in this case. It was held

in United States v. Manzi, 16 F.2d 884 (1st Cir.

1926) that a construction not adopted by the

department until after a statute had been in

operation for fourteen years was entitled to little

or no weight upon the question of the proper

interpretation of the statute. See also Citizen

Band of Potawatomie Indians of Oklahoma v.

United States, 391 F.2d 614, 621 (Ct. Cl. 1967),

cert. denied, 389 U.S. 1046 (1968).

13a

For all of the foregoing reasons and on the

basis of the authorities heretofore discussed the

court concludes that defendants’ procedure in

connection with awarding the road construction

contract involved in this case contravenes the

advertising requirements of 41 U.S.C. §§ 252 &

253. Summary judgment is accordingly granted

in favor of the plaintiff and against the defend-

ants. Defendants’ cross-motion for summary.

judgment is denied.

[R., Vol. I, pp. 30-33.]

Government’s main thrust is that the subject con-

tract does fall within the enumerated exceptions to

the advertising requirement, and that, in any event,

the list of exceptions contained in 41 U.S.C.A. § 252

(e) was not intended to preclude dispensing with the

advertising requirements where independent statu-

tory authority (the Buy-Indian Act) exists. Inas-

much as the Buy-Indian Act is not mentioned or

referred to in the Federal Property Act, the Gov-

ernment argues that “. . . the district court must

necessarily have concluded that Section 302(e) of the

Federal Property Act, 41 U.S.C. 252(e), repealed

the Buy-Indian Act in regard to construction and re-

pair contracts only by implication.” [Brief of Ap-

pellant, p. 8.] This argument, in our view, “misses

the mark.” The District Court made no reference

to the rule relating to repeal by implication of law.

The rule does not come into play here simply because,

contrary to the Government’s claim, nothing in the

Buy-Indian Act speaks to or directly mentions road-

way construction projects. The Government thus

l4a

would have us construe the language in the Buy-

Indian Act directing purchase of “Indian supplies”

and “products” on the “open market” as directly

and unequivocally relating to a contract covering a

roadway construction project. In pressing the point,

the Government relies on Bryan v. Itasca County,

426 U.S. 373 (1976) and Morton v. Mancari, 417

U.S. 585 (1974) for the rule that statutes passed for

the benefit of dependent Indian tribes are to be liber-

ally construed and doubtful expressions resolved in

favor of the Indians. The Morton case involved the

issue whether a provision allowing an employment

preference to Indians under the Indian Reorganiza-

tion Act of 1934 was impliedly repealed by Section

11 of the Equal Employment Opportunity Act of

1972, 42 U.S.C.A. § 2000e-16(a), which provides that

all personnel actions affecting employment in most

federal agencies must be made free from discrimina-

tion based on race, color, religion, sex or national

origin. The Supreme Court held that the latter act

did not repeal the former by implication because—

and this is critical—the Indian Reorganization Act

of 1934 was of a longstanding preference and an

important component of the Government’s Indian

policy. Thus, the Court refused to hold that the pro-

visions of the EEOC Act of 1972 repealed by impli-

cation of law the preference provisions of the Indian

Reorganization Act. Significantly, the Supreme Court

observed that this could come to pass only if the two

statutes are entirely irreconcilable. Such was not the

case in Morton v. Mancari, supra. The hiring pref-

15a

erences provided for under the Indian Reorganization

Act of 1934 exempted Indians from the Civil Service

laws and thus the Act spoke directly to the same sub-

ject matter as that addressed in the EEOC Act, i.e.,

employment by federal agencies. It would, in our

view, require a considerable “stretch of the imagina-

tion” to conclude that the Congress intended the Buy-

Indian Act to apply to road construction projects.

It is clear, on its face, however, that the Congress

did intend that 41 U.S.C.A. §§ 252 and 253 apply

to road construction projects.

We agree with Glover’s analysis of the “faulty

premises” upon which the Government predicates its

argument that the contract awarded to Indian Con-

struction was authorized by subsection 15 of Section

252, supra:

. . . First, the proposition must be accepted that

25 U.S.C., Sec. 47 embraces roadway construc-

tion contracts, which it doesn’t. Second, the

proposition must be accepted that the language

of the statute which states, “this section shall

not be construed . . . to permit any contract for

the construction or repair of ... roads... to

be negotiated without advertising as required by

section 253 of this title . . .”, really just doesn’t

mean what it says, and apparently, just dosen’t

mean anything at all. Third, the proposition

must be accepted that the proviso within the ex-

ception which specifically excludes paragraph

(1)-(8), (10)-(12), or (14) or 252(c), but

omits to exclude paragraph (15) is likewise with-

out significance and can be disregarded.

[Brief of Appellee, p. 11]

16a

There is nothing in the language of the Buy-Indian

Act or its legislative history which suggests that it

was intended to apply to roadway construction proj-

ects. As if anticipating the “roadblock” created there-

by, the Government attempts to gain a legal “foot-

hold” by relating that the solicitor of the Department

of the Interior rendered an opinion on April 27,

1971, entitled “Negotiability of Construction Con-

tracts under the ‘Buy-Indian’ Act of June 25, 1910”

which confirmed the administrative interpretation of

the Act going back to about 1961. This opinion con-

cluded that the enumerated exceptions in 41 U.S.C.A.

§ 252(c) and (e) were not intended to preclude dis-

pensing with public advertising under the authority

of the Buy-Indian Act. The Government states that

the District Court failed to give any deference to the

Department of the Interior’s “long-standing” con-

struction of the Buy-Indian Act. Our response is

that if the Government’s administrative interpreta-

tion is entitled to the deference urged, the Congress

is the branch before whom the point should be

pressed. We have heretofore stated that this Court

shall not, under its classical adjudicative power, un-

dertake to legislate. In conjunction therewith, we

have held that statutes are to be construed in a

manner so as to effectuate the intent of the enacting

body, and that an unambiguous statute must be given

its plain and obvious meaning. United States v.

Ray, 488 F.2d 15 (10th Cir. 1973); United States

v. Western Pacific Railroad Company, 385 F.2d 161

(10th Cir. 1967), cert. denied, 391 U.S. 919 (1968).

17a

When the Congress was dealing with the Federal

Property and Administrative Services Act of 1949,

41 U.S.C.A. §§ 252 and 253, it was deemed to be

fully cognizant of the Buy-Indian Act of 1910. The

Congress was, accordingly, capable of clearly and

directly providing the interpretation of the Buy-

Indian Act here urged by the Government. The fact

is that it did not elect to do so. This Court cannot

“fill the gap” by engaging in judicial law-making.

Chavez v. Freshpict Foods, Inc., 456 F.2d 890 (10th

Cir. 1972), cert. denied, 409 U.S. 1042 (1972); Mc-

Cord v. Dixie Aviation Corporation, 450 F.2d 1129

(10th Cir. 1971). In our view, we are here dealing

with a political question beyond the judisdiction of

the courts. Baker v. Carr, 369 U.S. 186 (1962).

A statute must be construed as it was intended to

be understood when enacted in the light of condi-

tions as they then existed. United States v. Stewart,

311 U.S. 60 (1940). Assuming, arguendo, the truth

of the Government’s contention that there were no

Indian owned companies engaging in roadway con-

struction in 1910 when the Buy-Indian Act was

passed, still we observe that this contention is not

advanced in relation to 1949 when the Federal Prop-

erty Act was passed. In any event, we do not place

particular weight on this matter.

Words of a statute are to be interpreted in their

ordinary definitions and in the meanings commonly

attributed to them. Jones v. Liberty Glass Company,

332 U.S. 524 (1947). Even where there are two

statutes on the same subject, the earlier being special

18a

and the later being general the special act controls

as effective and all matters coming within the scope

of the special statute are governed by its provisions.

Preiser v. Rodriguez, 411 U.S. 475 (1973); Missouri

K & T Ry. Co. v. Jackson, 174 F.2d 297 (10th Cir.

1949) ; Sutherland, Statutory Construction, 4th Ed.,

Vol. 2A, § 51.05. In Sutherland, supra, the rule is

stated:

General and special acts may be in pari ma-

teria. If so, they should be construed together.

Where one statute deals with a subject in general

terms, and another deals with a part of the same

subject in a more detailed way, the two should

be harmonized if possible; but if there is any

conflict, the latter will prevail, regardless of

whether it was passed prior to the general stat-

ute, unless it appears that the legislature in-

tended to make the general act controliing. In

the language of a court: “It is the general rule

that where the general statute standing alone

would include the same matter as the specific

act, and thus conflict with it, the special act will

be considered as an exception to the general

statute whether it was passed before or after

such general enactment. Where the special

statute is later it will be regarded as an excep-

tion to or qualification of the prior general one;

and where the general act is later the special

statute will be considered as remaining an ex-

ception to its terms unless it is repealed in gen-

eral words or by necessary implication.” (Foot-

notes omitted. )

Government vigorously contends that its interpre-

tive preference, which led to the grant of the non-

19a

competitive award of the roadway construction project

to Indian Construction is based upon the remedial

aspects of the Buy-Indian Act, to-wit: Furtherance of

a “. .. longstanding and important component of the

Government’s Indian policy designed to enable In-

dians to obtain jobs without having to compete on

equal terms with non-Indians.” [Brief of Appellants,

p. 9.] We recognize that the remedial Buy-Indian Act

is to be given a liberal construction in order to ef-

fectuate the purpose for which it was enacted. Suth-

erland, Statutory Construction, 4th Ed., Vol. 3,

§ 60.01. Even so, we believe that it strains the most

liberal interpretation to conclude that the Act’s pref-

erence for purchase of “Indian supplies” and “prod-

ucts” applies to a roadway reconstruction project

whose contract price, through Indian Construction,

is $1,219,481.00. The strain is the more “painful”

when we consider that the Government engineer’s

estimate for the project was $963,117.48 and that

Glover completed the first five miles of the recon-

struction project, under normal competitive bidding

procedures, for $538,000.00. While we do not rep-

resent or pretend that these comparative figures

control in determining the reasonableness of the

Indian Construction non-competitive contract price

of $1,219,481.00, we do observe that a primary, sig-

nificant remedial feature of the advertisement and

competitive bidding requirements of the Federal

Property and Administrative Services Act of 1949

is to obtain the best and lowest bid for the benefit of

the American taxpayers in “high cost” construction

20a

categories. In that sense we observe that this Court

has held that a statutory exception should be strictly

construed so that the exception does not devour the

general policy which the law embodies. Edward B.

Marks Music Corp. v. Colorado Mag., Inc., 497 F.2d

285 (10th Cir. 1974), cert. denied, 419 U.S. 1120

(1975).

WE AFFIRM.

21a

McKay, Circuit Judge, dissenting:

By rigidly adhering to formalistic rules of statu-

_ tory construction, today’s opinion reaches a result

hostile to the remedial purposes of the Buy Indian

Act. Inasmuch as the relevant rules of statutory

construction could be applied in a reasonable manner

to reach a result more in keeping with national policy

priorities, I am compelled to dissent.

The real issue in this case is the extent to which

the Buy Indian Act, 25 U.S.C. § 47 (1976), retains

vitality in light of the advertising requirements of

the Federal Property Act, 41 U.S.C. §§ 252, 253

(1976). In order to understand the tension between

the provisions, it will be helpful to consider the pur-

poses, history and applications of the Buy Indian Act.

1In addition to dissenting from the majority’s decision on

the merits, I take exception to the statement that this case in-

volves a political question over which we have no jurisdiction.

The “political question” doctrine holds as nonjusticiable under

the separation of powers concept cases involving matters

which have been committed by the Constitution to another

branch of government. Baker v. Carr, 369 U.S. 186, 210

(1962). These cases typically involve such matters as foreign

relations, procedures for ratifying constitutional amendments,

and the republican form of government guaranty. 369 U.S. at

211, 214, 218. The suggestion that the instant case involves

a political question would appear to be novel. It certainly

is not supported by Baker v. Carr, cited by the majority, in

which the Supreme Court found the issue under consideration

there not to be a political question. In any event, to the extent

this case is said to involve a policy question, it is sufficient to

observe that Congress has already decided it in favor of

Indians by enacting the Buy Indian Act.

22a

The Buy Indian Act announces a congressionally

approved policy of preferring Indian labor and prod-

ucts and grants the Interior Secretary discretionary

power to purchase Indian products in the open mar-

ket. Pursuant to this authority, the Secretary has

authorized the negotiation of contracts with Indians

to the exclusion of non-Indians. 41 C.F.R. § 14H-

3.215.70 (1977). One result has been the develop-

ment of a program under which the Interior Depart-

ment has awarded millions of dollars in road con-

struction contracts to Indian contractors. This pro-

gram has provided substantial economic encourage-

ment to Indian construction enterprises. The pro-

gram is emasculated by today’s opinion.

The obvious purpose of the Buy Indian Act is to

encourage Indian economic development by freeing

Indian industry from the competitive strictures of

advertised bidding requirements. Its laudable goal is

furthering the economic progress of a disadvantaged

people. While the legislative history of the Buy

Indian Act is rather scanty, it nonetheless manifests

a clear purpose to except purchases of Indian prod-

ucts from advertising requirements. In 1910 changes

were made in the legislation containing the earliest

version of the language now preserved in the Act.

Some of the legislative commentary on the proposed

changes demonstrates the purpose of the Buy Indian

Act itself.

In relevant part, the language of the 1910 pro-

posed amendment reads as follows:

23a

That hereafter the purchase of Indian supplies

shall be made in conformity with the [adver-

tising] requirements of section 3709 of the Re-

vised Statutes of the United States: Provided,

That so far as may be practicable Indian labor

shall be employed and purchases of the products

of Indian industry may be made in open market,

in the discretion of the Secretary of the In-

terior. All acts and parts of acts in conflict with

the provisions of this section are hereby re-

pealed.

H.R. 24992, 61st Cong., 2d Sess. § 28 (1910), 45

Cong. Rec. 6097 (1910). This section of the bill was

virtually identical to the version ultimately enacted.

Act of June 25, 1910, Pub. L. No. 313, § 23, 36 Stat.

861 (1910).

Prior to the passage of the amendment, the House

Committee on Indian Affairs commented on its pur-

pose and compared it to the version being amended:

The purpose of this section is patent from the

text. If this section shall be enacted into law it

will repeal the following portion of the act of

April 30, 1908 (35 Stat., 71):

[Indian appropriation act, April 30, 1908

(35 Stat., 71).]

That no purchase of supplies for which

appropriations are herein or hereinafter

made for the Indian service, exceeding in

the aggregate five hundred dollars in value

at any one time, shall be made without first

giving at least three weeks’ public notice by

advertisement, except in case of exigency,

when, in the discretion of the Secretary of

24a

the Interior, who shall make official record

of the facts constituting the exigency, and

shall report the same to Congress at its next

session, he may direct that purchases may

be made in open market in amount not ex-

ceeding three thousand dollars at any one

purchase: Provided, That hereafter supplies

may be purchased, contracts let, and labor

employed for the construction of artesian

wells, ditches, and other works for irriga-

tion, not to exceed the sum of five thousand

dollars in any one purchase or contract, in

the discretion of the Secretary of the In-

terior, without advertising as hereinbefore

provided: Provided further, That as far as

practicable Indian labor shall be employed

and purchase in the open market made from

Indians, under the direction of the Secretary

of the Interior.

With the exceptions noted in the proviso, it

will bring the Indian Service, like all other

branches of the public service, under the provi-

sions of section 3709 of the Revised Statutes of

the United States, which reads as follows:

[Section 3709, Revised Statute. ]

Sec. 3709. All purchases and contracts

for supplies or services, in any of the de-

partments of the Government, except for

personal services, shall be made by adver-

tising a sufficient time previously for pro-

posals respecting the same, when the public

exigencies do not require the immediate de-

livery of the articles, or performance of the

service. When immediate delivery or per-

25a

formance is required by the public exigency,

the articles or service required may be pro-

cured by open purchase or contract, at the

place and in the manner in which such arti-

cles are usually bought and sold, or such

services engaged between individuals.

H. R. Rep. No. 1135, 61st Cong., 2d Sess. 12 (1910)

(bracketed material in original). The “exceptions

noted in the proviso” constituted the substance of the

Buy Indian Act as it now appears. The significance

of the proviso is apparent: It excepted Indian prod-

ucts from the strictures of the advertising statute

then in effect.”

The perpetuation of the proviso’s language into

the present era indicates that the purpose is still of

significance. In light of the Act’s legislative history

and for the policy reasons underlying the Act itself,

purchases of Indian products should be governed by

that Act and should not be subject to standard adver-

tising requirements not made explicitly applicable to

otherwise exempted Indian products.

Despite the message of the legislative history, and

despite the remedial purposes of the Act, the majority

concludes that the Interior Department’s road con-

2In this regard, it is noteworthy that this particular

amendment was motivated, at least in part, by an intention to

prevent abuses in the purchase of supplies for Indians. It

seems that many purchases had been accomplished by skirting

the advertising requirements then in effect. While the amend-

ment sought to strengthen generally the advertising require-

ment, an exception was expressly included for purchases of

Indian products. 45 Cong. Rec. 6097 (1910) (remarks of Rep.

Burke).

26a

struction program is illegal. It makes this conclusion

by determining that there is no conflict between the

Buy Indian Act and the Federal Property Act’s ad-

vertising requirements. This determination depends,

in turn, on the majority’s view that because nothing

in the language of the Act or in its legislative history

indicates it was intended to apply to road construc-

tion projects, the term “products of Indian industry”

does not include Indian built roads. Implicit in this

conclusion is the troubling notion that because a

particular economic activity is not mentioned in the

Act or in its legislative history, that activity is not

covered. Such a construction may make the Act

applicable to nothing at all. .

Alternatively, the majority may be suggesting that

only those Indian activities conducted in 1910 are

covered by the Act.‘ The record does not inform us

whether Indian road construction enterprises existed

in that year.’ Regardless of this latter fact, the

Congress often casts “statutory provisions in general

terms, leaving to the agency the task of spelling out the spe-

cific regulations and programs.” Ray Baillie Trash Hauling,

Inc. v. Kleppe, 477 F.2d 696, 703 (5th Cir. 1973), cert. denied,

415 U.S. 914 (1974).

* The opinion contends that the Interior Department’s long-

standing interpretation of the Act is not persuasive because

that interpretation was not articulated in 1910.

* Legislative history does indicate that Indians participated

in reservation road construction projects during this period.

See Letter from James Rudolph Garfield, Secretary of the

Interior, to Senator Moses E. Clapp (Feb. 19, 1908), reprinted

in S. Rep. No. 278, 60th Cong., Ist Sess. 18-19 (1908).

ee eee e

27a

thrust of this rationale would have the effect of re-

stricting the Act’s application to activities of a 1910

vintage—which is hardly a reasonable way to en-

courage significant economic development in a modern

market context.° There is no indication Congress in-

tended the preferential treatment to be limited to

economic activities Indians were involved in at the

time of enactment. Indeed, the Act’s very purpose is

to encourage Indian economic enterprises that would

suffer in a competitive context. The view of the Act

expressed in today’s opinion threatens to relegate it

to a role of protecting Indian handicraft and trinket

production—economic activities that probably require

no preferential treatment at all.

Today’s opinion ignores the Supreme Court’s clear

instructions on statutory construction where Indians

are involved. Writing for a unanimous Court in

Bryan v. Itasca County, 426 U.S. 373 (1976), Mr.

Justice Brennan characterized as an “eminently

sound and vital canon” the proposition that “statutes

passed for the benefit of [Indians] are to be liberally

construed, doubtful expressions being resolved in

favor of the Indians.” 426 U.S. at 392. It seems to

me that we have done just the opposite in this case.

I am perplexed by the court’s unwillingness to apply

* The majority’s concern about noncontemporaneous inter-

pretations of the Act fails to consider the often unavoidable

generality of statutory language. See note 8, supra. It also

begs the more pertinent question whether the Act as passed in

1910 gave he Secretary authority to negotiate contracts for

all varieties of Indian products—beads or roads. I believe the

Act could have no other reasonable meaning.

28a

the label “product of Indian industry” to highways

produced by Indian companies. I am certain the ma-

jority would have had little difficulty determining

that Indian blankets and beads are products of In-

dian industry. Indeed, counsel for Glover Construc-

tion admitted in oral argument that a multimillion

dollar computer would be an Indian product if it

were manufactured by an Indian company. I fail to

see why an Indian built road is not an Indian product.

I simply do not understand why we decline to apply

the meaning of the word “product” in a way that

actually does some good.’

My view of the Buy Indian Act does result in

apparent conflict between it and the advertising re-

quirements of the Federal Property Act. If this con-

flict is to result in a resolution that applies the

advertising provisions to Indian roadway construc-

tion contracts, then to this extent the Buy Indian Act

will have been repealed by implication. It seems to

me that a much more sensible outcome could be

obtained. An example of such an outcome appears

7In Great Western Broadcasting Corp. v. N.L.R.B., 310

F.2d 591, 595 (9th Cir. 1962), the following definition of

“product” was given: “In its broadest sense, the term ‘prod-

uct’ denotes anything which is produced. Since economic ac-

tivity includes the rendition of services, it is appropriate,

where the context otherwise permits, to refer to a completed

service as a ‘product.’” The context of the instant statutory

provision permits a broad definition to be employed. If pure

services are thought to be includable within the definition, so

ought to be activities such as road building which, though

labor intensive, result in a tangible product.

ts tt wa ag

29a

in the Supreme Court’s opinion in Morton v. Mancar,

417 U.S. 535 (1974).

The Morton v. Mancari case presented the question

whether the Indian employment preference provision —

of the Indian Reorganization Act, 25 U.S.C. § 472,

was impliedly repealed by Section 11 of the Equal

Employment Opportunity Act of 1972, 42 U.S.C.

§ 2000e-16(a). This section of the Employment Act

requires federal agencies to make personnel actions

without regard to race, color, religion, sex or national

origin. Thus a conflict was presented between the

Indian Reorganization Act’s preferential mandate

and the Employment Act’s proscriptions against dis-

crimination. After examining the history and pur-

pose of Indian preference statutes (including the

one under consideration here), the Court said that in

the absence of an affirmative showing of an intention

to repeal, the only justification for a repeal,.by impli-

cation is that the statutes are irreconcilable. The

Court found that the statutes were not. It concluded

that a provision aimed at furthering Indian self-

government by granting employment preference to

Indians for positions in the Bureau of Indian Affairs

can readily co-exist with a general proscription

against employment discrimination. “Any other con-

clusion,” said the Court, “can be reached only by

formalistic reasoning that ignores both the history

and purposes of the preference and the unique legal

relationship between the Federal Government and

tribal Indians.” 417 U.S. at 550. The Court went

on to observe that the preference statute applied to a

very specific situation, while the Employment Act

30a

provision applied to Federal employment generally.

In upholding the preference statute, the Court noted

that a specific statute will not be controlled by a more

general one.

Essentially the same considerations apply to the

case before this Court. Once again, an Indian pref-

erence statute is involved.* Neither the language nor

the legislative history of the Federal Property Act

indicates an intent to repeal or modify the Buy

Indian Act. The Act applies in limited circumstances

only; the relevant Federal Property Act provisions

apply to general Federal procurement of construction

contracts.” Like the employment preference in Man-

cart, the Buy Indian Act arises from the unique legal

relationship between Indians and the Federal Govern-

ment. As the Mancari preference was designed to

promote Indian self-government, the preference here

is designed to promote Indian economic development

and self-sufficiency. And, as the preference statute

in Maneari could co-exist with a general policy of

non-discrimination in government employment, the

Buy Indian Act’s authorization of the negotiation of

road construction contracts with Indian firms can

co-exist with a broad rule requiring public advertis-

ing for bids on Government construction contracts.

® The Mancari Court listed the Buy Indian Act among the

preference statutes similar to the one under consideration

in that case. 417 U.S. at 538 n.2, 541 n.8.

® The majority’s argument about specific statutory provi-

sions controlling general ones is, in this sense, supportive of

a result opposite to that reached in its opinion.

2 a a el i il a se :

This result is consistent with the following admoni-

tion from Mancari:

The courts are not at liberty to pick and choose

among congressional enactments, and when two

statutes are capable of co-existence, it is the

duty of the courts, absent a clearly expressed

congressional intention to the contrary, to regard

each as effective.

417 U.S. at 551. Given the Supreme Court’s admoni-

tion, our decision in this case should be to sustain

both statutory provisions in a way that vitiates

neither.’°

I would reverse.

10 Even if the majority’s general perception of the domi-

nance of the advertising provisions were correct, there would

still be a problem with the remedy in this case. An injunction

has been upheld, and upheld in the face of substantial work

on the construction project. It seems to me that this remedy

prevents the Secretary from exercising his discretion in a way

that might still except this contract from the advertising re-

quirements. The policy of the Buy Indian Act is to encourage

Indian economic development by shielding Indian economic

enterprises from the full rigors of market pressure. It is

obvious that this policy purpose would be frustrated by an

imposition of market pressures in the form of advertised

bidding. In light of the purpose of the Buy Indian Act, ad-

vertised bidding with its inherent competitiveness may be

within the “impracticability” exception to the advertising

requirements of 41 U.S.C. § 252(c), (e) (1976). See Ray

Baillie Trash Hauling, Inc. v. Kleppe, 477 F.2d 696, 708 (5th

Cir. 1973), cert. denied, 415 U.S. 914 (1974) (holding com-

petition “impractical” where as cross-purposes with the Small

Business Act). At the very least, this case should be remanded

with instructions allowing the Secretary to determine whether

that exception applies. I believe the exception might well

apply as a matter of law.

a ee Teen te eet ean

32a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

NOVEMBER TERM—January 11, 1979

Before Honorable Robert H. McWilliams, Honor-

able James E. Barrett and Honorable Monroe G.

McKay, Circuit Judges.

GLOVER CONSTRUCTION COMPANY,

PLAINTIFF-APPELLEE,

v8.

CECIL ANDRUS, SECRETARY OF THE DEPARTMENT

OF INTERIOR; DEPARTMENT OF INTERIOR ;

BUREAU OF INDIAN AFFAIRS, and A. E.

GREEN, DEFENDANT-APPELLANTS.

JUDGMENT

No. 78-1554

(D.C. No. 78-178-C)

This cause came on to be heard on the record on

appeal from the United States Court for the Eastern

District of Oklahoma, and was argued by counsel.

Upon consideration whereof, it is ordered that the

judgment of that court is affirmed. Judge McKay,

Circuit Judge, dissents.

/s/ Howard K. Phillips

HowarbD K. PHILLIPS,

Clerk

Leni SOL Trt ai as lindas) Cn

33a

APPENDIX C

MARCH TERM—March 12, 1979

Before Honorable Robert H. McWilliams, Honor-

able James E. Barrett, Honorable Monroe G. McKay,

Circuit Judges.

No. 78-1554

GLOVER CONSTRUCTION COMPANY,

PLAINTIFF-APPELLEE,

vs.

CECIL ANDRUS, SECRETARY OF THE DEPARTMENT

OF INTERIOR; DEPARTMENT OF INTERIOR;

BUREAU OF INDIAN AFFAIRS, and A. E.

GREEN, DEFENDANT-APPELLANTS.

This matter comes on for consideration of appel-

lants’ motion for leave to file petition for rehearing

out of time and the appellants’ petition for rehearing.

Upon consideration whereof, it is ordered as fol-

lows:

1. Appellants’ petition for rehearing is ordered

filed as of March 2, 1979.

2. The petition for rehearing is denied on the

merits. Judge McKay voted to grant rehearing.

/s/ Howard K. Phillips

HowarD K. PHILLIPS,

Clerk

34a

APPENDIX D

GLOVER CONSTRUCTION COMANY, PLAINTIFF,

Vv.

CECIL ANDRUS, SECRETARY OF THE DEPARTMENT

OF INTERIOR, et al., DEFENDANTS.

No. 77-178-C

UNITED STATES DISTRICT COURT,

E. D. OKLAHOMA

March 29, 1978

On Motion for Clarification May 12, 1978

ORDER GRANTING SUMMARY JUDGMENT

MORRIS, Chief Judge.

This action is before the court on motions for sum-

mary judgment filed by the plainitff and the defend-

ants. The parties have filed briefs setting forth their

respective positions in connection with these motions.

Plaintiff contends that it is entitled to summary

judgment on its claim that the policy of the Bureau

of Indian Affairs (BIA) of entering into contractual

negotiations with wholly Indian owned companies

regarding road construction without complying with

the advertising requirements of 41 U.S.C. §5 and 41

U.S.C. § 253 denies plaintiff equal protection of the

laws and due process of law. In this connection plain-

tiff asserts that the BIA, in 1976 began implementing

35a

a new interpretation of the “Buy Indian Act,” 25

U.S.C. § 47, which act has been in effect since 1910.

Plaintiff points to an interdepartmental memoran-

dum, 20 BIAM Bulletin 1, March 3, 1976 (Exhibit D

to defendants’ brief) providing that negotiations are

to be conducted with Indian contractors and that non-

Indian contractors are to be contacted only after it

has been determined that there are no qualified Indian

contractors within the normal competitive area.

Plaintiff contends that the Buy Indian Act does not

authorize contract negotations for the construction

of roads and that such a procurement must be ob-

tained in accordance with the requirements set out

in 41 U.S.C. §§ 5 and 253.

Defendants claim that they have consistently fol-

lowed the policy set out in the bulletin and that the

Buy Indian Act falls within the “otherwise auth-

orized by law” exception to advertising under 41

U.S.C. § 252(c) (15). See Exhibit J to defendants’

brief. In response to the latter contention plaintiff

states that 41 U.S.C. § 252(e) fails to exempt con-

tracts for the construction of roads from the adver-

tising requirements, since it expressly exempts 41

U.S.C. § 252(c) (1)-(8), (10)-(12), and (14) but

does not refer to subsection (15). Thus, plaintiff

argues, subsection (15) is not excluded from the pro-

visions of 41 U.S.C. § 253 under the maxim “expressio

unius est exclusio alterius.”

25 U.S.C. § 47 provides:

So far as may be practicable Indian labor

shall be employed, and purchases of the products

(SERIE TTA os a NOELIA SO eee OTRO ENT TT ES ee ee

36a

of Indian industry may be made in open market

in the discretion of the Secretary of the Interior.

Section 47 was codified from the Act of June 25,

1910, ch. 431, § 23, 36 Stat. 861 which provides in its

entirety as follows:

That hereafter the purchase of Indian supplies

shall be made in conformity with the require-

ments of section thirty-seven hundred and nine

of the Revised Statutes of the United States:

Provided, That so far as may be practicable In-

dian labor shall be employed, and purchases of

the products of Indian industry may be made

in open market in the discretion of the Secretary

of the Interior. All Acts and parts of Acts in

conflict with the provisions of this section are

hereby repealed.

Since title 25 of the United States Code is not among

the titles of the United States Code which have been

enacted into law, see Preface to 1976 Edition of the

United States Code, reference to the Statutes at Large

is proper. Section 3709 of the Revised Statutes has

been codified as 41 U.S.C. § 5.

41 U.S.C. § 252 provides in pertinent part:

(a) Executive agencies shall make purchases

and contracts for property and services in ac-

cordance with the provisions of this chapter and

implementing regulations of the Administrator;

but this chapter does not apply—

(1) to the Department of Defense, the Coast

Guard, and the National Aeronautics and Space

Administration; or

(2) when this chapter is made inapplicable

pursuant to section 474 of Title 40 or any other

EEE Ae oO OC TE EET NN NN Mn Tn SON ei ar Tn

eee

37a

law, but when this chapter is made inapplicable

by any such provision of law sections 5 and 8

of this title shall be applicable in the absence of

authority conferred by statute to procure with-

out advertising or without regard to said sec-

tion 5.

and services shall be made by advertising, as

provided in section 253 of this title, except that

such purchases and contracts may be negotiated

by the agency head without advertising if—

(15) otherwise authorized by law, except that

section 254 of this title shall apply to purchases

and contracts made without advertising under

this paragraph.

(e) This section shall not be construed to (A)

authorize the erection, repair, or furnishing of

any public building or public improvement, but

such authorization shall be required in the same

manner as heretofore, or (B) permit any con-

tract for the construction or repair of buildings,

roads, sidewalks, sewers, mains, or similar items

to be negotiated without advertising as required

by section 253 of this title, unless such contract

is to be performed outside the continental United

States or unless negotiation of such contract is

authorized by the provisions of paragraphs (1)-

(3), (10)-(12), or (14) of subsection (c) of this

section.

41 U.S.C. § 253(a) provides:

Whenever advertising is required—

38a

(a) The advertisement for bids shall be made

a sufficient time previous to the purchase or con-

tract, and specifications and invitations for bids

shall permit such full and free competition as is

consistent with the procurement of types of prop-

erty and services necessary to meet the require-

ments of the agency concerned. No advertise-

ment or invitation to bid for the carriage of

Government property in other than Government-

owned cargo containers shall specify carriage of

such property in cargo containers of any stated

length, height, or width:

41 U.S.C. § 5 provides:

Unless otherwise provided in the appropriation

concerned or other law, purchases and contracts

for supplies or services for the Government may

be made or entered into only after advertising a

sufficient time previously for proposals, except

(1) when the amount involved in any one case

does not exceed $10,000, (2) when the public

exigencies require the immediate delivery of the

articles or performance of the service, (3) when

only one source of supply is available and the

Government purchasing or contracting officer

shall so certify, or (4) when the services are

required to be performed by the contractor in

person and are (A) of a technical and profes-

sional nature or (B) under Government super-

vision and paid for on a time basis. Except (1)

as authorized by section 16388 of Appendix to

Title 50, (2) when otherwise authorized by law,

or (3) when the reasonable value involved in

any one case does not exceed $500, sales and con-

tracts of sale by the Government shall be gov-

erned by the requirements of this section for

advertising.

39a

In the case of wholly owned Government cor-

porations, this section shall apply to their ad-

ministrative transactions only.

41 U.S.C. § 260 provides:

Sections 5, 8 and 13 of this title shall not ap-

ply to the procurement of property or services

made by an executive agency pursuant to this

chapter. Any provision of law which authorizes

an executive agency (other than an executive

agency which is exempted from the provisions of

this chapter by section 252(a) of this title), to

procure any property or services without adver-

tising or without regard to said section 5 shall

be construed to authorize the procurement of

such property or services pursuant to section

252(c) (15) of this title without regard to the

advertising requirements of sections 252(c) and

253 of this title.

The parties agree that 41 U.S.C. §§ 252 and 253

apply to the BIA. Since Section 252 does so apply it

appears that 41 U.S.C. §5 does not apply in this

case. See 41 U.S.C. §§ 252(a)(1) & (2), 260.

The material facts are not in dispute in this case.

On May 25, 1977, the BIA entered into a road con-

struction contract with the Indian Nations Construc-

tion Company. The BIA had invited three Indian

owned companies to bid for the contract, but only

the company contracted with submitted a bid. The

bidding was restricted to Indian owned firms and no

attempt was made to comply with the advertising pro-

visions of 41 U.S.C. § 253. Plaintiff was not afforded

an opportunity to bid.

40a

Purchases of property and services for the United

States are governed by the Federal Property and Ad-

ministrative Services Act of 1949, ch. 288, 63 Stat.

377. As indicated previously, there is no dispute that

‘1 US.C. §§ 252 and 253, which are sections 302 and

303 of the Act, see 63 Stat. 393-95, apply to the BIA.

The court will accordingly turn to the question wheth-

er the procedure followed by the BIA in awarding

the road construction contract involved in this case

contravenes the requirements set out in 41 U.S.C.

§§ 252 and 253.

Section 252(c) makes all purchases and contracts

for property and services subject to the advertising

requirements of section 253 unless they come within

any of the fifteen enumerated exceptions. Defendants

contend that the Buy Indian Act comes within sub-

section (15). There is no contention that any of the

other fourteen exceptions apply in this case. Subsec-

tion (e)(B) specifically provides that section 252

shall not be construed to permit any contract for

the construction of roads to be negotiated without

advertising as required by section 253 unless the con-

tract is to be performed outside the continental United

States or unless negotiation of such contract is autho-

rized by the provisions of paragraphs (1)-(3), (10)-

12), or (14) of subsection (c).

Defendants’ argument that subsection (e) is an

admonition rather than a prohibition and that sub-

section (c) (15) authorizes negotiation of road con-

struction contracts under the Buy Indian Act is un-

persuasive. Congress saw fit to specifically exempt

4la

' seven subsections of section 252(c) from the adver-

tising requirements with respect to road construction

contracts and did not include the “otherwise autho-

rized by law” provision of subsection (c) (15) within

this category. This is the subsection on which defend-

ants rely.

The effect of the enumeration of express exceptions

in a statute has been stated as follows:

The specification by the legislature of excep-

tions to the operation of a general statute, does

not necessarily operate to preclude the court

from applying other exceptions. However, where

express exceptions are made, the legal presump-

tion is that the legislature did not intend to save

other cases from the operation of the statute.

Thus, the rule generally applied is that an ex-

ception in a statute amounts to an affirmation

of the application of its provisions to all other

cases not excepted, and excludes all other excep-

tions or the enlargement of exceptions made.

Under this principle, where a general rule has

been established by a statute with exceptions, the

courts will not curtail the former, nor add to the

latter, by implication. (Emphasis added.)

73 Am.Jur.2d Statutes § 316 (1974) (footnotes

omitted). The court accordingly concludes that con-

tracts for the construction of roads, such as the con-

tract involved in the instant action, are not excepted

from the advertising requirements of section 253 by

virtue of section 252(c) (15).

Defendants contend, however, that the Buy Indian

Act has been interpreted for many years as authoriz-

42a

ing construction contracting with invitations to bid

restricted to Indian contractors, and that this admin-

istrative construction of the statute is entitled to great

weight. Plaintiff contends that 20 BIAM Bulletin 1

of March 3, 1976 (Exhibit D to defendants’ brief)

represents a new policy, and even if not new, that the

statutory interpretation therein espoused is entitled

to little or no weight since it is not a contemporaneous

statutory construction.

Defendants’ exhibits establish at best that the in-

terpretation set forth in the 1976 bulletin may date

back as far as 1961. Assuming this to be true for

the purpose of plaintiff’s summary judgment motion

it does not follow that such interpretation is entitled

to be given great weight, or any weight, upon the

question of the proper statutory interpretation.

Defendants rely on Udall v. Tallman, 380 U.S. 1,

85 S.Ct. 792, 138 L.Ed.2d 616 (1965), and United

States v. Jackson, 280 U.S. 188, 50 S.Ct. 148, 74

L.Ed. 361 (1930) for the general rule of statutory

construction that “great weight is properly to be

given to the construction consistently given to a stat- |

ute by the Executive Department charged with its

administration.” 280 U.S. at 193, 50 S.Ct. at 146.

The Court emphasized in Udall, however, that the

Secretary had consistently construed the executive

order and public land order there involved since their

promulgation and that this interpretation had been

made a repeated matter of public record. 380 U.S.

at 4, 17, 85 S.Ct. at 801. Furthermore, the Supreme

Court has recognized that

EES SSS eo OR Lee ON a Oe OE eo ERT ERECTA mT

43a

[i]t has been held in many cases that a definitely

settled administrative construction is entitled to

the highest respect; and, if acted on for a num-

ber of years, such construction will not be dis-

turbed except for cogent reasons. See e.g. Logan

v. Davis, 233 U.S. 618, 627 [84 S.Ct. 685, 5

L.Ed. 1121]. But the court is not bound by a

construction so established. Chicago &c. Ry. Co.

v. McCaull-Dinsmore Co., 253 U.S. 97, 99 [40 S.

Ct. 504, 64 L.Ed. 801]. United States v. Dickson,

15 Pet. 141, 161 [10 L.Ed. 689]. The rule does

not apply in cases where the construction is not

doubtful. And if such interpretation has not

been uniform, it is not entitled to such respect

or weight, but will be taken into account only to

the extent that it is supported by valid reasons.

Brown v. United States, 113 U.S. 568, 571 [5

S.Ct. 648, 28 L.Ed. 1079]. Merritt v. Carreron,

137 U.S. 542, 551 552 [11 S.Ct. 174, 34 L.Ed.

772]. United States v. Alabama Railroad Co.,

142 U.S. 615, 621 [12 S.Ct. 306, 35 L.Ed. 1134].

United States v. Healey, 160 U.S. 136, 145 [16

S.Ct. 247, 40 L.Ed. 369]. Studebaker v. Perry,

184 U.S. 258, 268 [22 S.Ct. 463, 46 L.Ed. 528].

Houghton v. Payne, 194 U.S. 88, 99 [24 S.Ct.

590, 48 L.Ed. 888].

United States v. Missouri Pacific R.R., 278 U.S. 269,

280, 49 S.Ct. 133, 137, 73 L.Ed. 322 (1929) (em-

phasis added). The Court has also said:

True indeed it is that administrative practice

does not avail to overcome a statute so plain in

its commands as to leave nothing for construc-

tion. True it also is that administrative practice,

consistent and generally unchallenged, will not

44a

be overturned except for very cogent reasons if

the scope of the command is indefinite and doubt-

ful. United States v. Moore, 95 U.S. 760, 763

[24 L.Ed. 588]; Logan v. Davis, 233 U.S. 6138,

627 [34 S.Ct. 685, 58 L.Ed. 1121]; Brewster v.

Gage, 280 U.S. 327, 336 [50 S.Ct. 115, 74 L.Ed.

457]; Fawcus Machine Co. v. United States, 282

U.S. 375 [51 S.Ct. 144, 75 L.Ed. 397]; Interstate

Commerce Comm. v. N.Y., N. H. & H. R. Co.,

287 U.S. 178 [53 S.Ct. 106, 77 L.Ed. 248]. The

practice has peculiar weight when it involves a

contemporaneous construction of a statute by the

men charged with the responsibility of setting

its machinery in motion, of making the parts

work efficiently and smoothly while they are yet

untried and new. Fawcus Machine Co. v. United

States, supra. (Emphasis, added. )

Norwegian Nitrogen Products Co. v. United States,

288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796

(1933). And, the Supreme Court further stated in

Missouri Pacific:

The language of that provision is so clear and

its meaning so plain that no difficulty attends its

construction in this case. Adherence to its terms

leads to nothing impossible or plainly unreason-

able. We are therefore bound by the words em-

ployed and are not at liberty to conjure up con-

ditions to raise doubts in order that resort may

be had to construction. Jt is elementary that

where no ambiguity exists there is no room for

construction. Inconvenience or hardships, if any,

that result from following the statute as written

must be relieved by legislation. . . . Construction

may not be substituted for legislation. United

45a

States v. Wiltberger, 5 Wheat. 76, 95-96 [5

L.Ed. 37]. United States v. Fisher, 2 Cranch

358, 386 [2 L.Ed. 304]. Lake County v. Rollins,

130 U.S. 662, 670 [9 S.Ct. 651, 32 L.Ed. 1060].

Caminetti v. United States, 242 U.S. 470 [87

S.Ct. 192, 61 L.Ed. 442]. Ex parte Public Na-

tional Bank, ante, p. 101 [278 U.S. 101, 49 S.Ct.

43, 73 L.Ed. 202]. United States v. Colorado &

N. W. R. Co., 157 F. 321, 327.

. .. Where doubts exist and construction is per-

missible, reports of the committees of Congress

and statements by those in charge of the measure

and other like extraneous matter may be taken

into consideration to aid in the ascertainment of

the true legislative intent. But where the lan-

guage of an enactment is clear and construction

according to its terms does not lead to absurd or

impracticable consequences, the words employed

are to be taken as the final expression of the

meaning intended. And in such cases legislative

history may not be used to support a construc-

tion that adds to or takes from the significance

of the words employed. United States v. Freight

Ass’n 166 U.S. 290, 325 [17 S.Ct. 540, 41 L.Ed.

1007]. Pennsylvania R. R. v. Internaitonal Coal

Co., 230 U.S. 184, 199 [33 S.Ct. 893, 57 L.Ed.

1446]. Mackenzie v. Hare, 239 U.S. 299, 308

[36 S.Ct. 106, 60 L.Ed. 297]. Caminetti v.

United States, supra, 490 [of 242 U.S. (87 S.Ct.

192) ].

278 U.S. at 277-78, 49 S.Ct. at 136. (emphasis

added).

The court is of the view that construction of section

252(c) and (e) is not doubtful and that the rule of

46a

deference by the court to an administrative interpre-

tation has therefore no application in this case. More-

over, even if the rule were applicable, defendants

have not shown or even contended that the policy

challenged in this action has been in effect prior to

1961. The Buy Indian Act has been in effect since

1910 and 41 U.S.C. §§ 252 and 253 have been in

effect since 1949. There is accordingly no contem-

poraneous interpretation involved in this case. It was

held in United States v. Manzi, 16 F.2d 884 (1st Cir.

1926) that a construction not adopted by the depart-

ment until after a statute had been in operation for

fourteen years was entitled to little or no weight

upon the question of the proper interpretation of the

statute. See also Citizen Band of Potawatomie In-

dians of Oklahoma v. United States, 391 F.2d 614,

621, 179 Ct.Cl. 473 (1967), cert. denied, 389 U.S.

1046, 88 S.Ct. 771, 19 L.Ed.2d 839 (1968).

For all of the foregoing reasons and on the basis

of the authorities heretofore discussed the court con-

cludes that defendants’ procedure in connection with

awarding the road construction contract involved in

this case contravenes the advertising requirements of

41 U.S.C. §§ 252 and 253. Summary judgment is

accordingly granted in favor of the plaintiff and

against the defendants. Defendants’ cross-motion for

summary judgment is denied.

In view of the court’s conclusion that defendants’

procedure in restricting bids with respect to road

construction contracts to Indian owned companies

contravenes 41 U.S.C. §§ 252 and 2538, it is unneces-

i i

47a

sary to reach plaintiff’s alternative constitutional

arguments. _

Defendants are hereby enjoined from continuing

to circumvent the advertising requirements of 41

U.S.C. § 253 in connection with the road construc-

tion contract awarded to Indian Nations Construc-

tion Company. Defendants are permanently enjoined

from circumventing the advertising requirements of

section 253 with respect to any future contracts for

the construction of roads.

Plaintiff and defendants are directed to file within

ten days from the date of this order a joint status

report indicating whether road construction work has

been commenced pursuant to the contract between

defendants and Indian Nations Construction Com-

pany, and if so, the percentage of completion of the

construction work under the contract. If the parties

cannot agree on a joint status report each side will

file such a report within the same ten day period.

Plaintiff is directed to file within ten days from the

date of this order a brief setting forth the appro-

priate relief to be granted in this case by way of final

judgment in accordance with the views expressed in

this order and on the basis of the status of the con-

struction work under the contract challenged in this

action. Defendants will have ten days thereafter to

file a response brief. The court is particularly con-

cerned with the question of the appropriate equitable

relief to be granted with respect to the unperformed

balance, if any, of the construction contract in ques-

48a

tion and invites the parties to specifically address this

issue in their briefs.

ON MOTION FOR CLARIFICATION

In its order entered March 29, 1978, granting sum-

mary judgment in favor of the plaintiff and against

the defendants, the court directed the parties to file

briefs regarding the appropriate relief to be granted

in this case by way of final judgment. The parties

have filed such briefs. In addition, defendants have

filed a motion for clarification, which motion is ac-

companied by a brief in support thereof.

Defendants seek clarification of the March 29, 1978

order with respect to the scope of the injunction is-

sued and whether it is a preliminary or permanent

injunction. Defendants request separate findinws of

fact and conclusions of law pursuant to Rule 52(a)

Fed.R.Civ.P., and a description in reasonable detail

of the acts sought to be restrained pursuant to Rule

65(d) Fed.R.Civ.P.

With respect to the proper relief to be granted in

this case, plaintiff requests the court (1) to cancel

the construction contract and have the unperformed

balance submitted for competitive bidding; (2) to

order Indian Nations Construction Company to re-

fund all monies heretofore paid under the contract;

and (3) to award plaintiff its costs and attorneys’

fees incurred in this action.

Defendants admit that to declare the contract null

and void constitutes a reasonable relief in this case

49a

in light of the summary judgment order, but they

contend that it would not be proper for the court to

order refund of monies paid by the defendants to

Indian Nations for work heretofore performed under

the contract and to permit plaintiff to recover at-

torneys’ fees.

Defendants’ status report reflects that 9.7 percent

of the construction contract had been completed when

the United States issued a stop order on March 31,

1978. Defendants state that Indian Nations has been

paid only for work actually performed and that no

money has been advanced to it for anticipated per-

formance.

“Where performance has been entered upon under

an illegal bargain the general rule is that the court

will leave the parties to the illegal bargain as it finds

them.” J. Calamarie & J. Perillo, The Law of Con-

tracts 567 (1970) (footnote omitted). However, in

some instances quasi contractual recovery has been

allowed in cases where there has been some perform-

ance under an illegal contract. Jd. at 573.

The court hereby declares the road construction

contract entered into between defendants and Indian

Nations as null and void. Schoenbrod v. United

States, 410 F.2d 400, 187 Ct.Cl. 627 (1969); J.

Calamarie & J. Perillo, The Law of Contracts § 376

(1970). However, no refund is to be made of any

sums heretofore paid under the contract. Even if the

court could order a refund, which is doubtful since

Indian Nations is not a party to this action, the court

finds that it would be inequitable to require a refund

50a

of monies earned by Indian Nations for work per-

formed in reliance upon and pursuant to the contract.

Cf. Prestex, Inc. v. United States, 320 F.2d 367, 373,

162 Ct.Cl. 620, 626 (1963).

Plaintiff’s request that the court order defendants

to advertise the unperformed balance of the road con-

struction contract is denied for the reason that it

would constitute an improper interference with the

executive branch. Defendants as members “of the

executive branch of the United States ... are not

subject to supervision or direction by the courts as to

how they shall perform the duties imposed by law

upon them.” Giancana v. Hoover, 322 F.2d 789, 790

(7th Cir. 1963). See In re Daley, 549 F.2d 469, 480

n. 11 (7th Cir. 1977), cert. denied, 434 U.S. 829, 98

S.Ct. 110, 54 L.Ed.2d 89 (1978).

Regarding plaintiff’s request for costs and at-

torneys’ fees the court notes initially that plaintiff

will be free to file its bill of costs with the court clerk

within the time limits prescribed by Local Rule 6 and

in accordance with Rule 54(d) Fed.R.Civ.P. and 28

U.S.C. §§ 1920 and 2412. The taxability of costs is

therefore not properly before the court at this time.

Turning to plaintiff’s request for attorneys’ fees

the court notes that 28 U.S.C. § 2412 provides:

Except as otherwise specifically provided by

statute, a judgment for costs, as enumerated in

section 1920 of this title but not including the

fees and expenses of attorneys may be awarded

to the prevailing party in any civil action

brought by or against the United States or any

annie

5la

agency or official of the United States acting in

his official capacity, in any court having juris-

diction of such action. A judgment for costs

when taxed against the Government shall, in an

amount established by statute or court rule or

order, be limited to reimbursing in whole or in

part the’ prevailing party for the costs incurred

by him in the litigation. Payment of a judgment

for costs shall be as provided in section 2414 and

section 2517 of this title for the payment of judg-

ments against the United States. (Emphasis

added. )

“The principle of sovereign immunity precludes

the award of costs and fees against the United States

‘in the absence of a statute directly authorizing

it....’” Natural Resources Defense Council, Inc. v.

Enypironmental Protection Agency, 168 U.S. App.D.C.

111, 113, 512 F.2d 1351, 1853 (1975). See Parker

v. Califano, 182 U.S. App.D.C. 322, 327, 561 F.2d

320, 325, n. 15 (1977). Plaintiff has not cited any

statute expressly authorizing attorneys’ fees in a

case of this type and the court is not aware of any

such statute. Plaintiff instead relies on two equitable

exceptions to the American rule pursuant to which

attorneys’ fees cannot be awarded to the successful

litigant as a matter of course, see Note, 11 Tulsa L.J.

420 (1976), namely, the common fund doctrine and

the private attorney general theory. The court is of

the view that recovery of attorneys’ fees cannot be

had against the United States under the equitable

exceptions to the American rule in light of the express

prohibition contained in 28 U.S.C. § 2412. Natural

Resources Defense Council, Inc. v. Environmental

52a

Protection Agency, 168 U.S.App.D.C. 111, 118, 512

F.2d 1351, 13853 (1975). See Parker v. Califano, 182

U.S.App.D.C. 322, 327, 561 F.2d 320, 325 n. 15

(1977). Plaintiff has not cited any statute expressly

authorizing attorneys’ fees in a case of this type and

the court is not aware of any such statute. Plaintiff

instead relies on two equitable exceptions to the

American rule pursuant to which attorneys’ fees can-

not be awarded to the successful litigant as a matter

of course, see Note, 11 Tulsa L.J. 420 (1976), name-

ly, the common fund doctrine and the private attorney

general theory. The court is of the view that recov-

ery of attorneys’ fees cannot be had against the

United States under the equitable exceptions to the

American rule in light of the express prohibition con-

tained in 28 U.S.C. § 2412. Natural Resources De-

fense Council, Inc. v. Environmental Protection Agen-

cy, 168 U.S.App.D.C. 111, 113, 512 F.2d 1351, 1353

(1975). However, even if these equitable doctrines

could furnish a basis for an award of attorneys’ fees

against the United States, the court must neverthe-

less conclude that plaintiff could not recover in this

case under either the common fund doctrine or the

private attorney general theory.

Although the common fund doctrine has been ex-

panded considerably by recent Supreme Court deci-

sions, Hall v. Cole, 412 U.S. 1, 98 S.Ct. 1948, 36

L.Ed.2d 702 (1978); Mills v. Electric Auto-Lite Co.,

396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970) ;

Sprague v. Ticonic National Bank, 307 U.S. 161, 59

S.Ct. 777, 83 L.Ed. 1184 (1939), it requires that

53a

those benefited by the litigation be an ascertainable

class. See Note, 11 Tulsa L.J. 420, 424-25, 428 n. 56

(1976). “ ‘It is necessary to determine .. . that it is

plaintiffs effort which caused others to benefit.’” 6 J.

Moore, Federal Practice Par. 54.77[2], at 1708 (2d

ed. 1976) (footnote omitted). Plaintiff has not made

the requisite showing here upon which the court could

base such a determination.

Plaintiff cites several cases in support of its claim

for attorneys’ fees pursuant to the private attorney

general theory, but fails to mention Alyeska Pipeline

Service Co. v. Wilderness Society, 421 U.S. 240, 95

S.Ct. 1612, 44 L.Ed.2d 141 (1975) in which the

Supreme Court dealt a death blow to the private at-

torney general theory. See Note, Alyeska Pipeline

Service Co. v. Wilderness Society: The Demise of the

Private Attorney General Theory as a Basis for

Awarding Attorneys’ Fees in Public Interest Liti-

gation, 11 Tulsa L.J. 420 (1976). That theory is

therefore no longer a viable exception to the Ameri-

can rule except as it has been revived in the areas of

civil rights and taxation with the passage of the Civil

Rights Attorney’s Fees Awards Act of 1976, Pub.L.

No. 94-559, 90 Stat. 2641, codified in 42 U.S.C.

§ 1988.

In a supplemental brief filed on May 10, 1978,

plaintiff concedes that Alyeska repudiated the private

attorney general theory. Plaintiffs points out, how-

ever, that Alyeska specifically recognizes the common

fund doctrine and plaintiff contends that it is entitled

to its attorneys’ fees pursuant to a reimbursement

plan similar to the one suggested by the Court of

54a

Appeals for the District of Columbia Circuit in Na-

tional Treasury Employees Union v. Nixon, 172 U.S.

App.D.C. 217, 521 F.2d 317 (1975). The court notes

however, that the government in that case was said

to have conceded that 28 U.S.C. § 2412 was not

directly applicable because the request for attorneys’

fees was based on reimbursement from employees

benefited by pay adjustments on account of plaintiff’s

suit and not on reimbursement from the public treas-

ury. Id. at 219, 521 F.2d at 319. 7

Defendants in the instant case cannot be said to

have made such a concession. Furthermore, the court

cannot ascertain in this case the class which plaintiff

claims it has benefited as the court was able to with

respect to the federal employees who were entitled to

a pay raise in Nixon. The court would have to engage

in speculation in this case in order to ascertain which

contractors might have been or would be awarded

which road construction contract. The Nixon case is

therefore not controlling here. Moreover, the District

of Columbia Circuit has held in two cases subsequent

to Nixon ihat absent specific statutory authorization

section 2412 bars recovery of attorneys’ fees against

the United States and that the common fund doctrine

does not avoid the bar of section 2412 when an award

of attorneys’ fees would in effect have to be satisfied

out of government funds. Pealo v. Farmers Home

Administration, 183 U.S.App.D.C. 225, 562 F.2d 744

(1977); National Council of Community Mental

Health Centers, Inc. v. Mathews, 178 U.S.App.D.C.

237, 546 F.2d 1003 (1976), cert. denied, 431 U.S.

954, 97 S.Ct. 2674, 53 L.Ed.2d 270 (1977).

55a

The court accordingly concludes that 28 U.S.C.

§ 2412 bars an award of attorneys’ fees in this case,

and that even in the absence of such a statutory bar,

plaintiff could not recover attorneys’ fees either un-

der the private attorney general theory or the com-

mon fund doctrine. Plaintiff’s request for attorneys’

fees is in all respects denied.

Defendants’ motion for clarification is directed to-

ward the following paragraph of the court’s order of

March 29, 1978 granting summary judgment:

Defendants are hereby enjoined from continu-

ing to circumvent the advertising requirements

of 41 U.S.C. § 253 in connection with the road

construction contract awarded to Indian Nations

Construction Company. Defendants are perma-

nently enjoined from circumve ting the adver-

tising requireuents of section 253 with respect

to any future contracts for the construction of

roads.

Defendants state that there is disagreement as to

the meaning of the first sentence in light of the fact

that no further advertising is anticipated in the road

construction project and since it is not clear whether

it constitutes a preliminary or a permanent injunc-

tion. Defendants suggest that the injunction relief

ordered in the above paragraph is preliminary and

request separate findings of fact and conclusions of

law pursuant to Rule 52(a) Fed.R.Civ.P., and a de-

scription in reasonable detail of the acts sought to

be restrained pursuant to Rule 65(d) Fed.R.Civ.P.

The injunctive relief is part of the final judgment

entered this day and constitutes permanent injunctive

56a

relief. Defendants are accordingly now in a position

to file their notice of appeal. With respect to de-

fendants’ request for separate findings the court notes

that Rule 52(a) provides:

In all actions tried upon the facts without a

jury or with an advisory jury, the court shall

find the facts specially and state separately its

conclusions of law thereon, and judgment shall

be entered pursuant to Rule 58; and in granting

or refusing interlocutory injunctions the court

shall similarly set forth the findings of fact and

conclusions of law which constitute the grounds

of its action. Requests for findings are not nec-

essary for purposes of review. Findings of fact

shall not be set aside unless clearly erroneous,

and due regard shall be given to the opportunity

of the trial court to judge of the credibility of

the witnesses. The findings of a master, to the

extent that the court adopts them, shall be con-

sidered as the findings of the court. If an opin-

ion or memorandum of decision is filed, it will

be sufficient if the findings of fact and conclu-

sions of law appear therein. Findings of fact

and conclusions of law are unnecessary on deci-

sions of motions under Rules 12 or 56 or any

other motion except as provided in Rule 41(b).

(Emphasis added. )

This matter was before the court on motions for

summary judgment by both plaintiff and the de-

fendants under Rule 56. There has been full com-

pliance with the rules.

The court is further convinced that the injunctive

relief ordered satisfies the detail requirements of

ee ees ee

57a

Rule 65(d) and that its meaning is clear. By virtue

of the injunctive relief granted in this case defend-

ants are simply commanded to follow the proper

procedure in awarding road construction contracts

in conformity with the applicable statutes as inter-

preted in the court’s order of March 29, 1978. De-

fendants are correct when they state that they are

not subject to judicial supervision regarding the man-

ner in which they are to perform their responsibili-

ties and exercise their judgment and discretion as

members of the executive branch of government. In

re Daley, 549 F.2d 469, 480 n. 11 (7th Cir. 1977),

cert. denied, 484 U.S. 829, 98 S.Ct. 110, 54 L.Ed.2d

89 (1978). Giancana v. Hoover, 322 F.2d 789 (7th

Cir. 1963). Obviously, the permanent injunction is-

sued in this case does not in any manner, whatsoever,

impinge upon such executive department functions

of the defendants, but merely enjoins them from vio-

lating applicable statutory provisions, if and when

they decide to enter into road construction contracts.

ORDERED this 12th day of May, 1978.

FINAL JUDGMENT

In conformity with the court’s orders entered in

this action on March 29, 1978 and on this date, it is

hereby ordered, adjudged and decreed

(1) that the road construction contract entered

into between defendants and Indian Nations Con-

struction Company is null and void;

58a

(2) that no refund is to be made of any sums here-

tofore paid under the contract to Indian Nations Con-

struction Company ;

(3) that defendants are permanently enjoined

from circumventing the advertising requirements of

41 U.S.C. § 253 in connection with future road con-

struction contracts.

ORDERED this 12th day of May, 1978.

‘ ee

59a

APPENDIX E

[SEAL]

United States Department of the Interior

OFFICE OF THE SOLICITOR

WASHINGTON, D.C. 20240

Memorandum [APR. 27, 1971]

To: Commissioner of Indian Affairs

From: Solicitor

Subject: Negotiability of construction contract un-

der the “Buy Indian” Act of June 25,

1910

Your memorandum of March 23, 1971, requested

our opinion concerning the use of Section 23 of the

Act of June 25, 1910, 36 Stat. 855, 25 U.S.C. § 47,

as authority to enter into negotiated construction

contracts with Indians. 25 U.S.C. § 47 reads:

So far as may be practicable Indian labor shall

be employed, and purchases of the products of

Indian industry may be made in open market

in the discretion of the Secretary of the Interior.

We believe this will support negotiated construction

contracts with Indians.

In consic2ring the scope and applicability of that

part of Section 23 of the Act of June 25, 1910 36

Stat. 861, codified as 25 U.S.C. § 47 and conveniently

referred to as the “Buy Indian” Act, we must neces-

sarily point out that it confers no substantive au-

thority to contract for anything. See our memoran-

dum of June 20, 1969, to the Assistant Secretary,

60a

Public Land Management. The codified language

quoted above was actually a proviso in a section of the

1910 Act which in its entirety reads as follows:

That hereafter the purchase of Indian supplies

shall be made in conformity with the require-

ments of section thirty-seven hundred and nine

of the Revised Statutes of the United States.

Provided, that so far as may be practicable

Indian labor shall be employed, and purchases

of the products of Indian industry may be made

in open market in the discretion of the Secretary

of the Interior. All Acts and parts of Acts in

conflict with the provisions of this section are

hereby repealed.

Section 3709 of the Revised Statutes, referred to

in the quoted language, is codified as 41 U.S.C. §5

and requires with certain exceptions that “purchases

and contracts for supplies or services for the Gov-

ernment may be made or entered into only after

advertising a sufficient time previously for proposals.”

Its applicability was limited, in the purchase of In-

dian supplies pursuant to the 1910 Act, by a provi-

sion found in the Bureau of Indian Affairs Appro-

priation Act of May 18, 1916, 39 Stat. 128, 126,

which reads as follows:

Provided further, that section thirty-seven hun-

dred and nine, Revised Statutes, in so far as that

section requires advertisement be made, shall

apply only to those purchases and contracts for

supplies or services, except personal services, for

the Indian field service which exceed in the

amount the sum of $50 each, and section twenty-

6la

three of the Act of June twenty-fifth, nineteen

hundred and ten (Thirty-sixth Statutes at Large,

page eight hundred and sixty-one), is hereby

amended accordingly.

In legal effect, the $50 limitation of the 1916

amendment was raised to $100 by a provision found

in the Act of January 25, 1927, 44 Stat. 934, 936.

The part of Section 23 of the 1910 Act which was

not codified as 25 U.S.C. § 47 was, as amended by

the 1916 Act, and modified by the 1927 Act, codified

as 25 U.S.C. § 93. The net result was a statutory

requirement that all contracts in excess of $100 for

the purchase of Indian supplies had to conform to

the advertising requirements of Section 3709 of the

Revised Statutes, except that “purchases of the prod-

ucts of Indian industry may be made in the open

market in the discretion of the Secretary of the

Interior.”

That portion of the amended and modified 1910

Act which was codified as 25 U.S.C. § 98, and which

required compliance with Section 3709 of the Revised

Statutes for non-Indian industry Indian supplies con-

tracts in excess of $100, was repealed by Section 4

of the Act of October 10, 1940, 54 Stat. 1109, 1112.

The 1940 Act was a substantive enactment of earlier

exceptions to Section 3709 of the Revised Statutes,

including that previously codified as 25 U.S.C. § 98,

and permitted open-market purchasing of supplies by

all bureaus of the Department where the aggregate

amount of the purchase or service did not exceed

$100 in any one instance. The 1940 exemption was

62a

in turn repealed by Section 9(b) of the Act of Au-

gust 2, 1946, 60 Stat. 809, which engrafted general

exceptions on Revised Statutes § 3709 but left un-

affected the provisions for open-market purchasing

of “the products of Indian industry.”

Thus, there is no question of the survival of the

authority for negotiated purchases of the products

of Indian industry, at least until and, we believe,

after, the enactment of the procurement provisions

of the Federal Property and Administrative Services

Act of June 30, 1949, 63 Stat. 393. For convenience

that act, as amended, will be hereinafter be cited to

Title 41, United States Code.

41 U.S.C. § 252(a) provides in part that executive

agencies shall, with certain exceptions not here mate-

rial, make purchases and contracts for property and

services in accordance with the provisions of the act

and the implementing regulations of the Adminis-

trator of General Services. That being so, Section

252(c) of Title 41 is applicable:

be made by advertising, as provided in section

253 of this title, except that such purchases and

contracts may be negotiated by the agency head

without advertising if

* * * * *

(15) otherwise authorized by law, except that

section 254 of this title shall apply to purchases

and contracts made without advertising under

this paragraph.

Section 260 of Title 41 provides that any provision

of law which authorizes an executive agency to pro-

63a

cure any property or services without advertising

“shall be construed to authorize the procurement of

such property or services pursuant to section 252(c)

(15) of the title [quoted above] without regard to

the advertising requirements of sections 252(c) and

258 of this title.” Thus, we have no difficulty in con-

cluding that the open-market procurement authorized

by 25 U.S.C. § 47 is, to the extent of its literal ap-

plicability and except as elsewhere limited by statute,

“otherwise authorized by law” within the meaning of

41 U.S.C. §§ 252(c) (15) and 260. In applying this

exception to the advertising requirements of 41 U.S.C.

§§ 252(c) and 258, full compliance with 41 U.S.C.

§254 is mandatory. The same is true of the advance

payments limitations of 41 U.S.C. § 255, and of the

laws specifically made applicable by 41 U.S.C. § 258.

If we are correct in our conclusion that the Fed-

eral Property and Administrative Services Act of

1949, as amended, is applicable to Bureau of Indian

Affairs procurement, and we believe the literal and

mandatory language of the act makes this conclusion

inescapable, then 25 U.S.C. § 47 may have consider-

able significance as an exception to the advertising

requirements of 41 U.S.C. §§ 252(c) and 253. Be-

fore proceeding, however, it is necessary to examine

the provisions of 41 U.S.C. § 252(e):

(e) This section shall not be construed to (A)

authorized the erection, repair, or furnishing of

any public building or public improvement, but

such authorization shall be required in the same

manner as heretofore, or (B) permit any con-

64a

tract for the construction or repair of buildings,

roads, sidewalks, sewers, mains, or similar items

to be negotiated without advertising as required

by section 253 of this title, unless such contract

is to be performed outside the continental United

States or unless negotiation of such contract is

authorized by the provisions of paragraphs (1)-

(3), (9)-(11), or (13) of subsection (c) of

this section.

The language just quoted is in the form of an ex-

planation or admonition, not a prohibition. It has

been explained by the General Counsel of the General

Services Administration in this way:

(e) No change in requirements regarding con-

struction. repair, etc.—For clarity, this subsec-

tion provides that section '! does not change

the existing requirements for authorization for

the erection or repair of buildings, roads, side-

walks, or similar items to be negotiated without

advertising as required by section '**! except in

the cases as specified in the subsection.'

We observe that among the subsection’s enumera-

tion of paragraphs of 41 U.S.C. § 252(c) which are

excepted from the admonition that § 252 does not

authorize negotiated construction and repair con-

tracts, paragraph (15) (“otherwise authorized by

law”) is not listed. We do not believe the omission

is critical to a determination that if negotiated con-

struction and repair contracts are “otherwise au-

1 Federal Property and Administrative Services Act of

1949, as amended, with Analysis and Index, p. 71 (GC, GSA,

Rev. 1958).

65a

thorized by law” they are not subject to the advertis-

ing requirements of 41 U.S.C. § 253, and we so

hold.?

This brings us back to the question presented,

viz, does 25 U.S.C. § 47 authorize negotiated con-

struction contracts with Indians? The basic ques-

tion is whether roads, buildings, sewers, utility sys-

tems, and the like may be considered to be the “prod-

ucts of Indian industry.” We have found no judicial

or Departmental decision on the point. There is no

meaningful legislative history to indicate the inten-

tion of the Congress. There are no qualifying words

or phrases elsewhere in the underlying statute. There

is no inherent inconsistency in phrase itself. In short,

we need only to define the language in its usual sense.

“Product” is defined in Webster’s Third Interna-

tional Dictionary (1961) as:

* * * something produced by physical labor or

intellectual effort: the result of work or thought

* * *

In Great Western Broadcasting Corporation v.

N. L. R. B., 310 F.2d 591, 595 (9th Cir. 1962), the

court said:

In its broadest sense, the time “product” denotes

anything which is produced. Since economic ac-

tivity includes the rendition of services, it is

appropriate, where the context otherwise per-

2 This section “does not authorize or change the existing

requirements for authorization for the erection or repair of

buildings, roads, sidewalks, or similar items.” (Emphasis

added) See 1949 U.S. Code Cong. & Adm. News, 1457, 1498.

66a

mits, to refer to a completed service as a “pro-

duct.”

“Industry” in its usual sense is defined, again in

Webster’s Third International Dictionary (1961),

as:

* * * a use or application of skill or clever-

ness * * * diligence in an employment or pur-

ean * *°*.

Putting these definitions together, we believe that

25 U.S.C. § 47 will permit the negotiation of con-

tracts, where substantive authority exists, for the

purchase by your Bureau of the end product of

physical labor or intellectual effort and requiring skill

or diligence, of, by, and from Indians. This would

include construction and repair of roads, bridges,

buildings, and similar things, as well as supplies and

services.

In reaching this conclusion, we rely in part on

what you represent to be a long period of uninter-

rupted administrative interpretation of the law. One

of the documents submitted with your memorandum

reports that “during the past ten years the Bureau

has negotiated thousands of contracts with Indians

for construction work. The emphasis has occurred in

recent years when it has not been uncommon to

negotiate as many as 130 contracts for construction

work in any given fiscal year. While the monetary

value of these contracts has remained below the

$100,000 level, there have been contracts for over

$1,000,000.” Under these circumstances, the admin-

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istrative construction of the statute, implemented by

unchallenged practice for many years, is entitled to

great weight.’ United States v. Jackson, 280 U.S.

183, 193 (1930); Udall v. Tallman, 380 U.S. 1

(1965). In addition, the views herein expressed are

consistent with the present position of Assistant Gen-

eral Counsel, Division of Business and Administra-

tive Law, Department of Health, Education and Wel-

fare, as stated in his memorandum of September 25,

1970, to the Acting Director, Office of Procurement

and Material Management, of that Department.

/s/ Mitchell Melich

MITCHELL MELICH

Solicitor

8 We also understand that the appropriations committees of

the Congress have been informed of proposals to contract

with Indians under the “Buy Indian” Act for construction

and maintenance. See e.g., Hearings on H.R. 12781 before a

Subcommittee of the Senate Committee on Appropriations,

91st Cong., 1st Sess. Pt. 1, pp. 190-194 (1969).

W ov. S. GOVERNMENT PRINTING OFFice; 1979 296267 21

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