By Government Contracts Editorial Staff
The Court of Appeals for the Federal Circuit reversed the denial of a challenge to the terms of an invitation for bids for suicide prevention gun locks because the requirement did not involve printing and did not have to be procured through the Government Publishing Office. Wanting to procure cable gun locks with information about a suicide crisis hotline imprinted on the lock body, a label attached to the cable, and a wallet card, the Department of Veterans Affairs submitted a requisition to GPO pursuant to the requirement under 44 USC 501 that executive branch departments must use GPO, a legislative branch entity, for printing. In accordance with 38 USC 8127(i), VA requested that GPO set aside the procurement for veteran-owned small businesses and service-disabled VOSBs to “the maximum extent feasible.” GPO’s contracting officer issued a determination and finding that GPO’s Printing Procurement Regulation required GPO to employ unrestricted competitive bidding, but the CO committed to “accommodate the spirit of VA’s request … by including known/verified SDVOSBs and VOSBs to its Bid List to ensure they receive an opportunity to bid on this [invitation for bids].” Before the Court of Federal Claims, the protester, an SDVOSB, contended VA was not obligated to invite GPO to conduct the procurement and VA violated §8127. The CFC determined the GPO printing mandate applied, VA had adequately explained and documented its decision to employ GPO to conduct the procurement, and VA had adhered to its obligation under §8127(i) to secure GPO’s compliance with the Rule of Two “to the maximum extent feasible” (63 CCF ¶81,761). On appeal, the protester for the first time challenged the constitutionality of the printing mandate as applied to the facts of the protest.
Written or Graphic Published Materials. Exercising its discretion to disregard the waiver rule, the Federal Circuit observed that “[e]xecutive branch actors have long maintained … that the printing mandate in [§501] violates the separation of powers between the legislative and executive branches mandated by the Constitution.” It also rejected the government’s argument there were no constitutional separation of powers concerns because VA’s actions were controlled by an executive branch regulation—FAR 8.802(a), which directs that “Government printing must be done by or through the [GPO].” The court found FAR 8.802(a) merely cites and parrots the language of §501 and does not impose a separate and independent printing mandate. The court then invoked the canon of constitutional avoidance, which comes into play when a statute is susceptible of more than one construction and provides that courts should first determine whether statutory construction can avoid the question of constitutionality. The court found the term “printing” in §501 was susceptible of more than one plausible construction, and it held the printing mandate applied “only to the production of written or graphic published materials.” The solicitation did not involve “printing” within the meaning of §501, because the solicited goods, including the wallet card and the body of the padlocks with imprinted information, were not written or graphic published materials. The court reversed the CFC’s determination the goods sought under the solicitation fell within the printing mandate, but it did not address whether VA could permissibly route the solicitation through GPO as a matter of discretion and whether the statutory preferences for award to a VOSB or SDVOSB would then apply. (Veterans4You LLC v. U.S., CA-FC, 65 CCF ¶82,055)
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