COFC decision denying a bid protest is reversed. The VA asked the Government Printing Office (GPO) to procure gun lock labels with information about the VA’s suicide prevention hotline. The GPO issued an unrestricted solicitation for the labels. The protester filed suit with the COFC arguing that the VA should not have allowed GPO to conduct procurement; rather, the protester agued, the VA should have conducted the procurement itself and set the contract aside for SDVOSBs. The COFC found that the VA was required to submit the procurement to GPO under the federal printing mandate, which obligated executive branch agencies to use the GPO for government printing. On appeal, the protester argued that the printing mandate was an unconstitutional violation of the separation of powers between the legislative and executive branches. Applying the canon of constitutional avoidance, the Federal Circuit evaded the constitutional question. Instead, the court found that it could interpret the word “printing” as applying to bound materials like books, not to labels for gun locks. Because the labels did not fall within this definition of printing, they were not subject to the printing mandate. As a result, the COFC erred in finding that the VA was obligated to conduct this procurement through the GPO.
The Department of Veterans wanted to obtain cable gun locks with information about the agency’s suicide prevention hotline printed on the locks and on double-sided wallet cards. Under the federal printing mandate, codified at 44 U.S.C. § 501, executive agencies must obtain all printing, binding, and blank-book work from the Government Publishing Office. Thus, the VA submitted a requisition form to the GPO to procure the lock labels and cards. The GPO then issued an invitation for bids with unrestricted competition.
Veterans4U, LLC filed a protest with GAO, arguing that GPO’s solicitation should have been set aside for service-disabled veteran-owned small business (SDVOSB), or veteran-owned small businesses. Veterans4U reasoned that under the Rule of Two, codified at 38 U.S.C. §8127, the VA must set aside contracts for small business if it has a reasonable expectation that two or more SDVOSBs are capable of performing the contract at a reasonable price. If the VA arranges to procure it requirement through another agency, it must make an arrangement so that the other agency complies with the Rule of Two to the maximum extent possible.
GAO sustained the protest, finding that the VA failed to alert GPO of its veteran-preference requirements and failed to make arrangement for GPO to comply with the Rule of Two. In light of the GAO decision, the VA submitted a new requisition request to GPO requesting that to the maximum extent possible, GPO comply with the Rule of Two. GPO issued a determination stating that under its own regulations, it was required to use unrestricted competitive bidding and ha not authority to use a Rule of Two analysis. Nevertheless, to accommodate the spirit of the VA’s request, GPO decided to include SDVOSBs and VOSBs on its bid list.
Before GPO could issue a new invitation to bid, Veterans4U filed a protest with the Court of Federal Claims, arguing that the VA was not obligated by the printing mandate to have GPO conduct the procurement. The COFC ruled against Veterans4U, reasoning that the warning and wallet cards fell within the printing mandate, so the VA was required to conduct the procurement through the GPO. The COFC further found that the VA had complied with its obligations under the Rule of Two by asking the GPO to comply with the Rule of Two the maximum extent possible. Veterans4U appealed to the Federal Circuit.
On appeal, Veterans4U argued that the printing mandate was unconstitutional. Veterans4U contended that the GPO was a legislative agency subject to congressional control. Because the printing mandate required executive agencies to procure all their printing requirements from the GPO, the mandate violated the separation of powers between the legislative and executive branches.
As an initial matter, the government argued that Veterans4U had waived this constitutional argument because it had not raised below before the COFC. The Federal Circuit reasoned that generally a federal appellate court does not consider an issue not passed upon below. But appellate courts have discretion to deviate from this rule. A circuit court can disregard the waiver rule if the issue is a matter of law that has been fully briefed. The court decided it could disregard the waiver rule. The constitutionality of the printing mandate broached a question of law, and the issue had been fully briefed by the parties.
Turning to the merits of the issue, the court noted that the government’s position in the case was somewhat complicated because the government agreed with Veterans4U position—i.e., that the printing mandate was unconstitutional. Indeed, for years Presidents, the Department of Justice, and other executive branch officials had issued decisions finding the printing mandate unconstitutional.
The government attempted to avoid this uncomfortable fact by arguing that there was no separation of powers problem in this case because the VA’s actions were controlled by a FAR provision that directs agencies to use the GPO for government printing. But the court was not persuaded that the FAR provision got the government off the hook. Just because a regulation parroted the printing mandate statute did not remedy any constitutional infirmity in the statute itself. Indeed, the FAR mandate did not purport to impose a separate printing mandate independent from the statute. In fact, the FAR provision cited the statutory printing mandate as it authority.
Although the FAR did not negate the constitutional issue, the court found that it could evade the issue under the canon of constitutional avoidance. Under that canon, when a court faces serious doubt about the constitutionality of a statute, it should first ascertain whether it can construe the statue in a way that avoids the constitutional question. The canon is a tool that allows a court avoid a decision on constitutional questions on the presumption that Congress would not have intended an interpretation that raises serious constitutional issues.
Applying the canon of constitutional avoidance, the court found that the term “printing” is susceptible to more than one plausible construction—specifically to the production of written or graphic published materials. The court found that this construction was consistent with the dictionary definition of “printing” in dictionaries from the late 19th century when the printing mandate was enacted. These definitions referred to book-binding to which the printing mandate similarly refers.
The court also reasoned that its narrow definition of “printing” was supported by the context of the statutory language. The printing mandate refers to “government publications.” The U.S. Code defines government publications as information which is published as an informational document at government expense. The court opined that the definition of a government publication referenced published written and graphic materials in the traditional sense.
The court further found that its construction of printing was supported by modern dictionaries, which define printing as transferring characters or design to paper, such as the production of books, newspapers, magazines etc. While this was not the only possible construction of the word printing, it was a reasonable construction.,
The court also opined that its interpretation of printing as generally referring to bound books comported with the historical functions and activities of the GPO. In fact, the court cited photographic history of the GPO’s facilities and equipment, noting that the GPO has traditionally performed tasks incident to the production of written and graphic published materials, like typesetting, proofing, binding, and engraving.
The court reasoned that the warning and wallet cards did not qualify as printing under the printing mandate and thus did not fall within the printing mandate. The court therefore reversed the COFC on that issue. The court, however, declined to consider whether the VA had (1) sufficiently arranged for GPO to follow the Rule of Two the maximum extents possible, or (2) whether the VA properly routed the procurement through the GPO. The court remanded to the COFC for further consideration.
Veterans4U is represented by Sarah C. Reida of Legal Meets Practical, LLC and John J. Manfredonia of Manfredonia Law Offices, LLC. Amicus curiae Kingdomware Technologies is represented by Thomas Saunders and Matthew Edward Vigeant of Wilmer Cutler Pickering Hale and Dorr LLP. The government is represented by Douglas Glenn Edelschick, Jeffrey B. Clark, Robert Edward Kirschman, Jr., Douglas K. Mickle, and Corrine Anne Niosi of the Department of Justice.
