Opposition Brief — American Federation of Government Employees v. United States

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DFC 2¢

No. 01-664

Jn the Supreme Court of the Gnited States

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

DAVID M. COHEN

ANTHONY J. STEINMEYER

MARK L. JOSEPHS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-221 7

QUESTIONS PRESENTED

Pursuant to 28 U.S.C. 1491(b)(1) (Supp. V 1999), the

Court of Federal Claims has jurisdiction in “an action

by an interested party objecting to * * * any alleged

violation of statute or regulation in connection with a

procurement or a proposed procurement.” The ques-

tions presented are:

1. Whether federai employees or their labor unions

are “interested part{ies]” under 28 U.S.C. 1491(b)(1)

and so can challenge an agency’s cost-comparison deci-

sion that results in the contracting out of services

formerly performed by agency employees to a private

contractor.

2. Whether federal employees and their unions lack

standing to challenge an agency’s cost-comparison deci-

sion because they are not within the zone of interests

protected by the procurement statutes that require

cost comparison.

(I)

TABLE OF CONTENTS

Page

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INN siictsibscisiidiietabsidiondeesiecetstapionssincbannnsteatentiisiiienecliatticcheies saci 15

TABLE OF AUTHORITIES

Cases:

Air Courier Conference v. American Postal Workers

A i snsalssibionenvinins 12

American Fed'n of Gov't Employees v. Cohen,

Be nee FREE le OOD decteicacchienssveinnnicicinetennineteeticennie 3,11 -

American Fed’n of Gov't Employees v. Dunn,

Re BT Lt Dy; ee 3, 11

American Fed’n of Gov't Employees v. Stetson,

oe _: | IRRICeee n 3, 11

Association of Data Processing Serv. Orgs., Inc. v.

CI, Te Esees UIP cersecssstrvcbsisrncesesubvenestovseninrnactsinne 14

Emery Worldwide Airlines, Inc. v. United States,

Pe Ae Sr er Oe Es ROO) vetinarian 4

Diebold v. United States, Civ. Action No. C90-0001-

BE Fe eis GENe HRs ti ED eiirtcetacincetrntnsinincennsentinniecnians 11

Free Air Corp. v. FCC, 130 F.3d 447 (D.C. Cir.

UTD Siccinacieiaiscsikesadibasicihasiesscanaiianidinsdiasecninhinicianrtennsnaviaesetin 2

Heyer Prods. Co. v. United States, 135 Ct. Cl. 63

I iteisiabiisbetriihaibetiistneies tein thohidininicninieanicosneniniv 2

International E'ng’g Co. v. Richardson, 512 F.2d

573 (D.C. Cir. 1975), cert. denied, 423 U.S. 1048

ER TUI icestdicitecllbnaliedinebainddiadianaiieediindesninsnintsinanedsbtabearemenmnsesionsve 2-3

Lindh v. Murphy, 521 U.S. 320 (1997) .......cscscecssseesesseers 13

Midlantic Nat'l Bank v. New Jersey Dep't of Envtl.

PE BOE Ee Ge CIGD oss issintsitessssnenssbbisicsvnvinatnnssnncetinvses 12

(IIT)

Cases—Continued: Page

National Fed’n of Fed. Employees v. Cheney,

883 F.2d 1038 (D.C. Cir. 1989), cert. denied,

GBS TD. BE I ecitcierentstttinstanttnnievaniniinnen 3, 11, 14

Overstreet v. North Shore Corp., 318 U.S. 125 (1948) ..... 12

Reno v. Koray, 515 U.S. 50 (1995) .........cccscscsrscsssssesececeseees 12

Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859

CG A, RI iiseaeereiinilicerietiindhseiniaieinctlitiactnsectvniin 2

United States v. John C. Grimberg Co., 702 F.2d

i CAE Be einstein hinteceseatsennctnbestainiistninstinntininse 2

Statutes:

Administrative Dispute Resolution Act of 1996,

Pub. L. No. 104-320, 110 Stat. 3870:

B RBA, TIO aE, BU sricisinsiscdiniseteencinsnittetnitttninpvitniieacane 4

Administrative Procedure Act, 5 U.S.C. 702 ..........cccccccceeees e747

Heel Back, BO Tah Ge shicenneiehihentkeresiitetnsainitivniniin etn ll

Bail Reform Act of 1984, 18 U.S.C. 3585(b) 2.0.0... ee eeeseeee 12

Competition in Contracting Act of 1984, 31 U.S.C.

SEE 66 BIG. cecccrsccecersinyinipenerovnmnstensevssninnesiitniastyetvaceboeesuinanenney 4,9,12

31 U.S.C. 3551(2) (1994 & Supp. V 1999) ...........0000 9,13

Federal Activities Inventory Reform Act of 1998,

Pub. L. No. 105-270, 112 Stat. 2382 (31 U.S.C. 501

rh CI, FS setae icipcenscirictitinctincctentnctiripuerviinan 5

Dh, Fs Be trtecieictictcinterniciieroennnial 5,8

eee eee Seen ee 5, 14

SS, RE Beak. BOOB ceserressscsinscoveresncssreinnttoreryscaotvenmorescns 5, 6,8

Private Express Statutes:

EE Ke FF EEE IR MT EE TL 12

Ee PF ae kant Mk tener ORO Se RN A 12

Tucker Act, 28 U.S.C. 1491 et seq.:

SE UC, BEE) sicrecsrcistenivececsietlidiiiceiaticiileciiipninviniie 2

28 U.S.C. 1491(b)(1) (Supp. V 1999) ........eccessesesserseneenees 4, 7,8,

9, 10, 11, 12, 13

28 U.S.C. 1491(b)(4) (Supp. V 1999) ......c.cescsesesssseecseeeees 9,13

Statutes—Continued: Page

A MU jissesiciieictiehrsastinctislsieninbenitaimscccietielnionasbooninaniidpecaieie 8,14

ee re NE sdscacccclidinncisseibcinnsaibillisincnleuivdiadptiniinstanenibinanenveiin 4

a de NE sninssininiciigeiiinaserininsenttaeiaintinsioneiiiiiaabihonls 5, 6, 7, 8, 14

Miscellaneous:

142 Cong. Rec. (1996):

RR GSE a nasi oar Menem 11

a scpeabiicie 4

144 Cong. Rec. S9104 (daily ed. July 28, 1998) ..........sssssseees 8

H.R. Conf. Rep. No. 841, 104th Cong., 2d Sess.

GIO iieicdideisscchceniiniibiteiaiaieatenbenetnaieiintieaiibiibniediiniiceveeiidiaes 11

In the Supreme Court of the Gnited States

No. 01-664

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-14a)

is reported at 258 F.3d 1294. The opinion of the Court

of Federal Claims (Pet. App. 15a-44a) is reported at

46 Fed. Cl. 586.

JURISDICTION

The judgment of the court of appeals was entered on

July 23, 2001. The petition for a writ of certiorari was

filed on October 22, 2001 (a Monday). The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. This case involves the limits, imposed by Con-

gress and long recognized by the courts, on who may

(1)

sue to challenge an agency’s procurement-related deci-

sion to contract out certain activities to private sources

as a way of saving taxpayer dollars. Before 1996, juris-

diction over procurement protests was divided between

the Court of Federal Claims and federal district courts.

The Court of Federal Claims had jurisdiction over pre-

award procurement protests brought by disappointed

bidders.’ This jurisdiction was based on the Tucker

Act, 28 U.S.C. 1491(a)(1), which authorizes the Court of

Federal Claims to “render judgment upon any claim

against the United States founded either upon * * *

any express or implied contract,” and was premised on

the existence of an implied-in-fact contractual commit-

ment by the government to evaluate the bids of quali-

fied bidders on procurement contracts fairly and

honestly. See United States v. John C. Grimberg Co.,

702 F.2d 1362, 1367 (Fed. Cir. 1983); Heyer Prods. Co.

v. United States, 135 Ct. Cl. 63 (1956).

In contrast, beginning with the D.C. Circuit’s deci-

sion in Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d

859 (1970), federal district courts exercised jurisdiction

over certain post-award procurement protests under

the Administrative Procedure Act (APA), 5 U.S.C. 702.

Such Scanwell jurisdiction provides that “sufficiently

viable runners-up in a procurement process have

standing to allege that an illegality in the process

caused the contract to go to someone else and not to

them.” Free Air Corp. v. FCC, 130 F.3d 447, 450 (D.C.

Cir. 1997); see also International E'ng’g Co. v. Richar-

dson, 512 F.2d 573, 579 (D.C. Cir. 1975) (Scanwell held

1 Prior to 1992, the Court of Federal Claims was the United

States Claims Court; prior to 1982, the court’s functions were

performed by the United States Court of Claims. For simplicity,

the court is referred to throughout as the Court of Federal Claims.

only “that. a disappointed bidder on a government

contract was a person aggrieved under the APA and

had standing to seek a limited review of the contract

award.”), cert. denied, 423 U.S. 1048 (1976); Pet. App.

10a, lla.

Scanwell jurisdiction is thus generally limited to

qualified disappointed bidders. Of particular relevance

to this case, the courts of appeals wniformly have held

that government employees and their unions lack

standing under Scanwell to challenge government pro-

curement decisions. E.g., American Fed’n of Gov’t Em-

ployees v. Cohen, 171 F.3d 460, 469-475 (7th Cir. 1999);

National Fed’n of Fed. Employees v. Cheney, 883 F.2d

1038, 1052-1054 (D.C. Cir. 1989), cert. denied, 496 U.S.

936 (1990); American Fed’n of Gov’t Employees v. Stet-

son, 640 F.2d 642, 645-646 (5th Cir. 1981); American

Fed’n of Gov’t Employees, v. Dunn, 561 F.2d 1310, 1313

(9th Cir. 1977).

Against this backdrop, Congress passed the Admini-

strative Dispute Resolution Act of 1996 (ADRA), Pub.

L. No. 104-320, § 12, 110 Stat. 3874. This statute, which

was enacted to resolve problems caused by the divided

nature of procurement-protest jurisdiction, provides in

part:

Both the Unties [sic] States Court of Federal Claims

and the district courts of the United States shall ©

have jurisdiction to render judgment on an action by

an interested party objecting to a solicitation by a

Federal agency for bids or proposals for a proposed

contract or to a proposed award or the award of a

contract or any alleged violation of statute or regu-

lation in connection with a procurement or a pro-

posed procurement. Both the United States Court

of Federal Claims and the district courts of the

United States shall have jurisdiction to entertain

such an action without regard to whether suit is in-

stituted before or after the contract is awarded.

28 U.S.C. 1491(b)(1) (Supp. V 1999) (emphasis added).

The ADRA thus allowed both federal district courts

and the Court of Federal Claims to hear “the full range

of bid protest cases previously subject to review in

either system.” 142 Cong. Rec. 26,646 (1996) (state-

ment of Sen. Levin). See Pet. App. 48a-5la.

The ADRA’s grant of full and concurrent jurisdiction

to the Court of Federal Claims and federal district

courts, however, was temporary. To prevent forum

shopping and to promote uniformity in government pro-

curement law, Congress sought to channel all jurisdic-

tion over government procurement protests to the

Court of Federal Claims. Therefore, as part of the

ADRA, Congress enacted a sunset provision that

terminated federal district court jurisdiction over bid

protests on January 1, 2001. ADRA § 12(d), 110 Stat.

3875; Pet. App. 50a. Consequently, the Court of

Federal Claims now has exclusive jurisdiction under

Section 1491(b)(1) to hear government procurement

protests. Emery Worldwide Airlines, Inc. v. United

States, 264 F.3d 1071, 1079-1080 (Fed. Cir. 2001).’

2. a. The procurement challenge in this case involves

two government procurement statutes and Circular

A-76 of the Office of Management and Budget (OMB).

Pursuant to 10 U.S.C. 2462(a), the Department of

Defense must procure the supplies and services it needs

(except for those necessary for functions that the

2 The General Accounting Office (GAO), an Article I admini-

trative forum, also reviews procurement protests, but such admini-

strative review does not exclude judicial review under 28 U.S.C.

1491(b)(1) (Supp. V 1999). See 31 U.S.C. 3551 et seg.

Secretary of Defense “determines must be performed

by military or Government personnel”) from the

private sector if a private contractor can provide them

at a cost lower than the cost of providing them in-house

with government personnel. In making these cost

comparisons, the Secretary shall ensure that all costs

considered are “realistic and fair.” 10 U.S.C. 2462(b).

b. The Federal Activities Inventory Reform Act of

1998 (FAIR), Pub. L. No. 105-270, 112 Stat. 2382

(31 U.S.C. 501 note (Supp. V 1999)), requires all Execu-

tive Branch agencies to prepare an annual list of

activities that they perform that are not “inherently

governmental functions.” FAIR § 2(a), 112 Stat. 2382.

Using language identical to the cost-comparison

provision in 10 U.S.C. 2462(b), FAIR provides that

when an agency considers contracting with a private

source to perform an activity on this list, it must select

the source using a competitive process that includes a

“realistic and fair” cost comparison. FAIR § 2(d) and

(e), 112 Stat. 2383. It also provides that any “interested

party,” defined to include prospective contractors,

employees of the agency that is an actual or prospective

offeror to perform the activity, and their unions, can file

an administrative challenge to the inclusion or omission

of any activity from the annual list. FAIR § 3, 112 Stat.

2383. FAIR, however, makes no provision for challeng-

ing an agency’s cost comparison. See Pet. App. 38a-40a.

c. OMB Circular A-76 (Pet. App. 54a-62a) is an

internal Executive Branch directive from OMB to the

heads of executive agencies. It sets forth “the general

policy of the Government to rely on commercial sources

to supply the products and services the Government

needs.” Circular para. 4(a); Pet. App. 54a. The Circular

directs that, except for “functions [that] are inherently

Governmental in nature,” “the Government shall not

start or carry on any activity to provide a commercial

product or service if the product or service can be

procured more economically from a commercial source.”

Circular paras. 5(b) and (c); Pet. App. 55a. To

determine whether an activity that could be performed

by the private sector should be contracted out or

retained in-house, an agency conducts a comprehensive

cost comparison in accordance with the Circular and its

Supplement. The activity must then be contracted out

unless the cost comparison demonstrates that in-house

performance by the government would be more eco-

nomical than performance by the private sector. Circu-

lar paras. 5(a) and 8(d); Pet. App. 55a, 61a. The Circular

also provides: “This Circular and its Supplement shall

not * * * [eJstablish and shall not be construed to

create any substantive or procedural basis for anyone

to challenge any agency action or inaction on the basis

that such action or inaction was not in accordance with

this Circular,” except for the administrative appeal

provided by the Circular and by Section 3 of FAIR,

which allows administrative challenges to the annual

list required by that statute. Circular para. 7(c)(8); Pet.

' App. 58a, 59a.

3. In accord with 10 U.S.C. 2462(b), FAIR, and

Circular A-76, the Defense Logistics Agency (DLA)

undertook a cost comparison for material distribution

services at the Defense Distribution Depot in Barstow,

California. Pet. App. 17a, 19a. DLA first conducted a

competitive acquisition among private sources and

determined that EG&G Logistics, Inc. (EG&G) offered

the best value among the seven private offerors. Id. at

17a-18a. Government management submitted its own

proposal to perform the same work using government

employees. /d. at 15a, 17a-18a.

Following receipt and amendment of the EG&G and

in-house proposals, DLA compared their costs, It de-

termined that EG&G’s cost of $14,521,719 was

approximately $2.5 million lower than the in-house cost

of $17,032,459. Pet. App. 19a-20a. Accordingly, DLA

decided to contract out the Barstow Depot operations

to EG&G. Id. at 20a. DLA subsequently denied an

administrative appeal of the cost comparison brought

by Barstow Depot employees and their union, Ameri-

can Federation of Government Employees (AFGE). Jd.

at 20a-21a.

4. Petitioners, two DLA employees at the Barstow

-Depot and AFGE, filed this action in the Court of

Federal Claims challenging DLA’s decision to award

the Barstow Depot contract to EG&G. Pet. App. 15a,

2la. Petitioners alleged that EG&G substantially

underbid the work and that DLA failed to confirm

EG&GQ’s costs in violation of 10 U.S.C. 2462(b), FAIR,

and OMB Circular A-76. Pet. App. 21a-22a. Petitioners

sought to invoke the jurisdiction of the Court of

Federal Claims under 28 U.S.C. 1491(b)(1) (Supp. V

1999), which limits the court’s procurement-related

jurisdiction to actions “by an interested party” to the

agency’s procurement decision.

The Court of Federal Claims dismissed petitioners’

suit for lack of standing. Pet. App. 15a-44a. The court

first concluded that its jurisdiction over procurement

actions under 28 U.S.C. 1491(b)(1) (Supp. V 1999) was

coextensive with that of district courts under the

Administrative Procedure Act, 5 U.S.C. 702, so that

any person who would have had standing to sue in dis-

trict court is an “interested party” under Section

1491(b)(1). Pet. App. 32a. The court then held that

petitioners, as potentially displaced federal workers

and their union, lack standing because they are not

within the zone of interests of 10 U.S.C. 2462 or FAIR.

Pet. App. 35a-44a. Although FAIR § 3, 112 Stat. 2383,

includes agency employees and their unions as

“interested part[ies],” the court noted that this Section

is expressly limited to challenges to the initial inclusion

or omission of agency activities on the annual list of

activities that are appropriate for contracting-out. The

court also observed that petitioners in this case do not

challenge the inclusion decision, and that nothing in

FAIR or its definition of interested parties provides for

challenges to an agency’s cost comparisons. Pet. App.

38a-39a. In light of this express limitation, the court

held that “Congress did not intend for federal

employees and their unions to be able to challenge cost

comparisons.” Jd. at 39a.

The court also held that the legislative history of

FAIR showed that its purpose is to provide the “best

value to the American taxpayer,” not “to support con-

tinued employment by federal workers.” Pet. App. 40a

(quoting 144 Cong. Rec. $9104 (daily ed. July 28, 1998)

(statement of Sen. Thomas)). In addition, the court

observed that courts have uniformly rejected the argu-

ments of federal workers and their unions for standing

under 10 U.S.C. 2462(b), which contains the same cost-

comparison language as Section 2(a) of FAIR. Pet.

App. 40a. Further, the court held that “[blecause OMB

Circular A-76 is an executive order and not a statute or

regulation, it does not by itself confer any rights to

judicial review.” Jd. at 33a n.18.

5. The Federal Circuit affirmed the district court’s

dismissal for lack of standing on a different ground,

holding that 28 U.S.C. 1491(b)(1)’s (Supp. V 1999) grant

of jurisdiction to the Court of Federal Claims to

hear procurement challenges brought by “interested

part[ies}” includes only challenges brought by bidders

and prospective bidders on government procurement

contracts. Pet. App. la-14a.

The court of appeals concluded that the text and

legislative history of 28 U.S.C. 1491(b)(1) (Supp. V

1999) indicate that Congress intended to confer upon

the Court of Federal Claims jurisdiction over post-

award procurement protests to the same extent that

federal district courts had previously exercised that

jurisdiction under Scanwell. Pet. App. 10a. The court

‘of appeals reasoned that (1) Scanwell jurisdiction

generally had been limited to procurement challenges

brought by qualified disappointed bidders, and had

uniformly been held by the courts of appeals to

preclude standing in procurement protests brought by

government employees or their labor unions; (2)

although Congress expressly adopted the APA’s stan-

dard of review in another section of the ADRA, 28

U.S.C. 1491(b)(4) (Supp. V 1999) , it chose the term

“interested party” to define standing under the ADRA,

rather than invoke the APA’s standing provision; (3)

the term “interested party” is also used in a related

procurement statute, the Competition in Contracting

Act of 1984 (CICA), 31 U.S.C. 3551 et seq., which pro-

vides for administrative review of procurement chal-

lenges, and which explicitly defines “interested party”

to include only “an actual or prospective bidder or

offeror whose direct economic interest would be

affected by the award of the contract or by failure to

award the contract,” 31 U.S.C. 3551(2) (1994 & Supp. V

1999); and (4) adopting a narrower definition of “inter-

ested party” is consistent with the principle that

waivers of sovereign immunity, such as contained in 28

U.S.C. 1491(b)(1) (Supp. V 1999), are to be construed

narrowly. See Pet. App. 9a-13a. Accordingly, the court

of appeals held that “[bJecause [petitioners] here are

not actual or prospective bidders or offerors, they do

not have standing to challenge the DLA’s cost

comparison analysis or its decision to award the depot

services contract to EG&G.” Id. at 14a.

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or any

other court of appeals. The decision below is also

consistent with the uniform decisions of the courts of

appeals holding that federal employees and their unions

are not within the zone of interests protected by the

government contracting-out statutes. Accordingly,

further review by this Court is unwarranted.

1. The court of appeals correctly held that peti-

tioners are not “interested part[ies]” within the mean-

ing of 28 U.S.C. 1491(b)(1) (Supp. V 1999). Section

1491(b)(1) confers jurisdiction on the Court of Federal

Claims in “an action by an interested party objecting to

* * * any alleged violation of statute or regulation in

connection with a procurement or a proposed procure-

ment.” The statute, however, does not explicitly define

“interested party.”

Petitioners argue that potentially displaced employ-

ees and their unions are within the plain meaning of

“interested party,” and they cite a dictionary meaning

of “interested” as “[hJaving an interest in something;

concerned” or “[pjarticipating; * * * having money

involved.” Pet. 8n.8. Petitioners’ proposed definition is

potentially so broad as to encompass persons having

only a generalized, academic curiosity about a govern-

ment contract or an indirect financial interest, such as

owning shares in a potential bidder. The court below,

in contrast, looked to accepted aides to statutory con-

struction to determine the meaning of “interested

party” in Section 1491(b)(1).

As the court of appeals stated, Section 1491(b)(1) was

intended to confer upon the Court of Federal Claims

post-award procurement-protest jurisdiction previously

exercised by the district courts under Scanwell. Pet.

App. 9a-10a (quoting 142 Cong. Rec. 26,645 (1996)

(statement of Sen. Cohen), and H.R. Conf. Rep. No. 841,

104th Cong., 2d Sess. 10 (1996)). Contrary to peti-

tioners’ contention, moreover, Scanwell and its progeny

allowed suits brought by qualified disappointed bidders

to challenge the award of a government contract,

but wniformly held that displaced federal workers and

their unions lack standing to challenge an agency’s

contracting-out procurement decisions. E.g., American

Fed’n of Gov’t Employees v. Cohen, 171 F.3d at 469-475;

National Fed’n of Fed. Employees v. Cheney, 883 F.2d

at 1052-1054; American Fed’n of Gov’t Employees v.

Stetson, 640 F.2d at 645-646; American Fed’n of Gov't

Employees v. Dunn, 561 F.2d at 1313.°

3 Petitioners’ reliance (Pet. 14) on Cohen, 171 F.3d at 469-475, is

misplaced. In Cohen, the Seventh Circuit held that displaced

federal workers and their unions are not within the zone of

interests protected by the general procurement statutes. Id. at

469-474. The court, however, concluded that federal employees

and their unions are within the zone of interest of the Arsenal Act,

10 U.S.C. 4532, a specific statutory provision that is not applicable

in this case and that petitioners do not seek to invoke. The

Seventh Circuit based its standing decision on the fact that unlike

most procurement statutes, which focus on saving taxpayer dollars

and are antithetical to federal employees’ interests in job security,

the Arsenal Act “appears to be aimed at preserving the govern-

ment’s in-house military production capabilities.” 171 F.3d at 473.

Similarly, petitioners’ reliance (Pet. 10 n.9, 16, 17 n.20) on the

unreported district court decision in Diebold v. United States, Civ.

Action No. C90-0001-L(A) (W.D. Ky. Apr. 2, 1993) (reproduced at

Moreover, those court of appeals decisions rejecting

procurement-protest standing for federal employees

and their unions are fully consistent with this Court’s

decision in Air Courier Conference v. American Postal

Workers Union, 498 U.S. 517 (1991), which held that

unions representing postal employees lack standing to

challenge a rule allowing private courier companies to

engage in international remailing because the unions

and the employees are not within the zone of interests

of the Private Express Statutes, 18 U.S.C. 1693 et seq.

and 39 U.S.C. 601 et seq.

In addition, the court of appeals properly construed

“interested party” in Section 1491(b)(1) in accord with

the definition of that same term in a related govern-

ment procurement statute. Pet. App. 13a; see Reno v.

Koray, 515 U.S. 50, 58 (1995) (using meaning of “official

detention” in related sentencing provisions and the Bail

Reform Act of 1984 to aid interpretation of same term

in 18 U.S.C. 3585(b), noting same term “should bear the

same meaning” in “related” statutes); Overstreet v.

North Shore Corp., 318 U.S. 125, 131-132 (1943) (using

Federal Employers’ Liability Act to aid interpretation

of Fair Labor Standards Act of 1938). The Competition

in Contracting Act of 1984 (CICA), 31 U.S.C. 3551 et

seq., which governs administrative review of certain

procurement protests, defines “interested party” as “an

actual or prospective bidder or offeror whose direct

Pet. App. 63a-73a), is unavailing. In amending Section 1491(b)(1),

Congress is presumed to have acted on the basis of the reported

court of appeals decisions cited above, not on an unreported, inter-

locutory district court decision. See Midlantic Nat'l Bank v. New

Jersey Dep't of Envtl. Prot., 474 U.S. 494, 501 (1986) (“The normal

rule of statutory construction is that if Congress intends for legis-

lation to change the interpretation of a judicially created concept,

it makes that intent specific.”).

economic interest would be affected by the award of the

contract or by failure to award the contract.” 31 U.S.C.

3551(2) (1994 & Supp. V 1999). Petitioners are not

included in this definition.

The court of appeals’ interpretation of “interested

party” is further confirmed by the fact that, in enacting

the ADRA, “Congress did not explicitly invoke the

APA standing requirements, although it did explicitly

invoke the APA standard of review.” Pet. App. i3a

(quoting 28 U.S.C. 1491(b)(4) (Supp. V 1999), which

provides: “In any action under this subsection, the

courts shall review the agency’s decision pursuant to

the standards set forth in section 706 of title 5”). The

ADRA’s standard of review provision demonstrates

that Congress knew how to incorporate APA standards

into the ADRA when it so desired. That Congress made

no such incorporation with regard to the APA’s

standing provision, and instead adopted the narrower

“interested party” standard used in the CICA, strongly

supports the court of appeals’ interpretation. Cf. Lindh

v. Murphy, 521 U.S. 320, 327-331 (1997).

2. Moreover, even if petitioners were held to be

“interested part{ies]” so as to establish jurisdiction un-

der Section 1491(b)(1), they would still lack standing to

challenge the DLA’s cost comparison. As the Court of

Federal Claims held (Pet. App. 35a-44a), potentially

displaced federal employees and their unions are not

within the zone of interests protected by the statutes

upon which petitioners rely. Petitioners invoke 10

U.S.C. 2462 and FAIR. See Pet. App. 21a.‘ Section

2462 directs the Department of Defense to obtain its

goods and services from the private sector if a private

contractor can provide them at a cost below the cost of

providing them in-house, except where the Secretary of

Defense determines that the goods and services must

be provided by government personnel. FAIR requires

all agencies to select a source for the activities they

perform (other than inherently governmental functions)

using a competitive process employing a “realistic and

fair” cost comparison. FAIR § 2(d), 112 Stat. 2383.

The Court of Federal Claims correctly held that

these statutes were enacted to provide the “best value

to the American taxpayer,” not to promote continued

federal employment, a purpose that could frequently

prove antithetical to the purposes of the cost-compari-

son provisions. See Pet. App. 40a. As both courts

below correctly noted, and as explained above, the

courts of appeals are uniform in holding that federal

employees and their unions are not within the zone of

interests protected by 10 U.S.C. 2462(b) or other gen-

eral procurement statutes. Pet. App. 10a-12a, 40a-43a.

4 Petitioners do not claim standing based upon OMB Circular

A-76. Pet. App. 33a n.18. To have standing, a plaintiff must be

arguably within the zone of interests of a relevant statute or con-

stitutional guarantee. Association of Data Processing Serv. Orgs.,

Inc. v. Camp, 397 U.S. 150, 153 (1970). Executive orders, such as

the Circular A-76, cannot confer judicial standing. National Fed’n

of Fed. Employees v. Cheney, 883 F.2d at 1043.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.