BREAKING: The U.S. Small Business Administration (SBA), in consultation with the U.S. Department of the…
Sarah Schauerte Reida, Esq
For the first time in judicial history, the U.S. Federal Circuit Court (the “Court”) examined the scope of the Government Publishing Office’s (“GPO”) authority. And the GPO must not like the attention it received–the Court rejected the Government’s expansive interpretation of the “printing mandate” that requires executive agencies to procure printing supplies and services through the GPO. (As relevant here, this would include VA opportunities subject to a statutory veteran preference). The Court also indicated, more generally, that applying the “printing mandate” violates the constitutional separation of powers.
This bid protest decision challenging the VA’s decision to route a procurement for imprinted gunlocks and wallet cards to be used for Veteran Suicide Prevention Month originated at the Government Accountability Office (“GAO”). The VA had invoked the “printing mandate” of 44 U.S.C. 501 in arguing it had no choice. This states: “[a]ll printing, binding, and blank-book work for Congress, the Executive Office, the Judiciary, other than the Supreme Court of the United States, and every executive department, independent office and establishment of the Government, shall be done at the Government Publishing Office [“GPO”][.]” Because the supplies sought contained elements of printing, the VA argued, the printing mandate applied to require the acquisition to be conducted via the GPO. Then, because it became a GPO procurement, the requirements of the Veterans Benefits Act (“VBA”) at 38 U.S.C. 8127-8128 to set aside the opportunity for veteran firms did not apply. (These only apply to the VA). Veterans4You challenged this as violating the VBA and the Supreme Court Kingdomware mandate that when the VA acquires supplies or services for its use, it must apply the “Rule of Two” to determine if the opportunity should be set aside for veterans.
In a sustained decision, the GAO found that the VA had violated the VBA by routing the opportunity to the GPO with no consideration to its requirements. Because the GAO found in Veterans4You’s favor on the Kingdomware issue, it did not examine the interplay with the printing mandate. Immediately thereafter, the VA turned around to issue another seemingly-identical procurement via the GPO, which Veterans4You again protested, this time to the U.S. Court of Federal Claims (“CoFC”)(19-931c).
Ruling from the bench, Judge Lydia K. Griggs by found against Veterans4You. First, she held that the printing mandate had been properly invoked, as the printing mandate is “broad” and the sources sought fell within the definition of “printing.” Second, although conducting the acquisition via the GPO would result in the Kingdomware mandate not being followed at all (the GPO has no set aside procedures or means to providing veteran credit or preference), she held that the VA had met the requirements of the Veterans Benefits Act. Under one particular section that applies to contracts with other agencies (38 U.S.C. 8127(i)), the VA must request the agency to comply to “the maximum extent feasible.” In the form submitted to the GPO requesting it to conduct the procurement, the VA did include this language.
On appeal to the Court, Veterans4You raised the constitutional issue with the “printing mandate.” It argued this was exacerbated by the “broad-sweeping” ruling of the CoFC, which would enable virtually any supply containing an element of printing to be labeled as “printing” and routed through the GPO. Veterans4You and Kingdomware (which submitted an amicus brief) urged that the Court’s interpretation of the printing mandate must be guided by the doctrine of constitutional avoidance because “invocation of the printing mandate . . . violates constitutional provisions of separation of powers.”
The Court exercised its discretion in hearing the constitutional issue, noting that “executive branch actors have long maintained the position that the printing mandate in 44 U.S.C. § 501 violates the separation of powers between the legislative and executive branches mandated by the Constitution.” After describing this history, the Court found that acquiescence by the executive agency had not occurred, while acknowledging that the FAR Council had been aware of positions of unconstitutionality regarding the printing mandate yet had not revised FAR 8.8 accordingly (FAR 8.8 encompasses the printing mandate).
The Court concluded that the canon of constitutional avoidance counseled it to construe the printing mandate narrowly and to avoid its application to the procurement at issue. In so doing, the Court noted that both Veterans4You and Kingdomware (which submitted a brief as amicus) argued that a narrower reading of the term “printing,” limited to a particular category of printed matter, was both appropriate and supported by the historical context in which the term has been used in the statute. Here, the gunlocks (including the components that involve some element of “printing” in a broad sense, such as the wallet card and the imprinted information on the body of the padlocks) are not “written or graphic published material,” and therefore, the printing mandate was not invoked to require the VA to conduct the acquisition via the GPO.
The Court then provided a detailed analysis based on dictionary definitions, statutory analysis, and the historical functions and activities of the GPO in order to narrowly define “printing” as “written or graphic published material.” It also noted that “in view of our determination that the canon of constitutional avoidance compels a nar-row interpretation of the printing mandate, we need not conclude that our construction is the only possible construction. These dictionary definitions support our view that our construction of the statutory term “printing” is reasonable.”
Accordingly, the Court reversed and remanded the CoFC decision, holding that the VA had improperly concluded that the printing mandate was triggered. Based on the administrative record, the Court noted that it “underst[oo]d VA’s decision to route this solicitation through the GPO to have been premised on an understanding on the part of VA, confirmed by GPO, that VA was obligated by the printing mandate to route this solicitation through GPO.” Because the Court reversed the CoFC’s determination that the goods sought under the solicitation fell within the printing mandate, it did not reach the question of whether VA was in compliance with its obligations under § 8127(i). Nor did it analyze any constraints imposed by the VBA if the VA had exercised discretion in procuring through the GPO (versus arguing that the mandate applied).
In this case, what the court didn’t say is almost as interesting as what it did. The Court clearly found issue with a broad interpretation of the “printing mandate,” adopting a more targeted definition in its holding that this particular procurement didn’t fall within it. Executive agencies aren’t required to use the GPO unless the solicitation calls for “written or graphic published materials.” At the same time, the Court didn’t analyze how the constitutional separation of powers issue would be impacted if an executive agency chose to procure a “non-printing” procurement via the GPO because it had some elements of printing. The judges’ questioning of the Government during the oral argument was skeptical that the encroached agency consenting to the violation would fix the separation of powers issue. Also, the Government’s own prior questioning of the printing mandate’s constitutionality hinged not just on the executive agencies being required to hand over the printing work, but that a legislative agency was actually performing it. Regardless of whether the hand-off is consented to or not, the effect is the same with respect to a legislative branch agency conducting a procurement for an executive branch agency.
The Court also didn’t touch on Kingdomware and the limits it imposes on the VA’s ability to route procurements through other agencies. Had the VA said it was exercising its discretion in procuring the gunlocks via the GPO, would it have been permitted to do so considering the impact would be that the GPO has no means to complying with the VBA? That seems contrary to the intent of Congress.
This case may need a sequel. If another “non-printing” procurement comes along where an executive agency chooses to route through the GPO due to minor printing components, a constitutional challenge to that decision may provide further scope and clarification to this decision.