Valley Const. Co. v. Marsh ( 1993 )

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 92-7443
Summary Calendar
_____________________________________
VALLEY CONSTRUCTION COMPANY,
Plaintiff-Appellant,
VERSUS
JOHN MARSH, Secretary of the
Army of the Unites States, ET AL.,
Defendant-Appellee.
______________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(EC91-33-S-D)
______________________________________________________
(January 14, 1993)
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:1
Valley Construction Co. appeals the district court's grant
of summary judgment in favor of the United States Army Corps of
Engineers. Finding that no genuine issue of material fact
exists, and that the Corps is entitled to judgment as a matter of
law, we affirm.
FACTS
Valley Construction Co. (Appellant) bids competitively on
1
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
military and civil construction projects procured by the U.S.
Army Corps of Engineers (Appellee) and other U.S. agencies.
Appellant is a small business concern within the meaning of 15
U.S.C. § 632,2 but is not a socially and economically
disadvantaged small business concern as defined in 15 U.S.C. §
637(a).3 These disadvantaged small business concerns are known
as "8(a)" contractors, and may bid on contracts that are
exclusively designated for the Small Business Administration's
8(a) Program.4
Appellee sought to open bidding on a contract to build the
Dewayne Hayes/Stinson Creek Project (the contract), a recreation
park to be built in Mississippi. Appellee offered the contract
to the SBA and, after considering the factors enumerated in the
Federal Acquisition Regulations, 48 C.F.R. § 19.804-1,5 Appellee
2
15 U.S.C. § 632(a) states in part "[f]or the purposes of this
chapter, a small business concern, . . . shall be deemed to be
one which is independently owned and operated and which is not
dominant in its field of operation."
3
15 U.S.C. § 637(a)(5) states "[s]ocially disadvantaged
individuals are those who have been subjected to racial or ethnic
prejudice or cultural bias because of their identity as a member
of a group without regard to their individual qualities."
15 U.S.C. § 637(a)(6)(A) states in part "[e]conomically
disadvantaged individuals are those socially disadvantaged
individuals whose ability to compete in the free enterprise
system has been impaired due to diminished capital and credit
opportunities as compared to others in the same business area who
are not socially disadvantaged."
4
48 C.F.R. Subpart 19.8 sets forth the Federal Acquisition
Regulations for contracting with the Small Business
Administration (the 8(a) Program).
5
48 C.F.R. § 19.804-1 provides:
In determining the extent to which a requirement
2
designated the contract for exclusive bidding by 8(a)
contractors.
Appellant, desiring to bid on the contract, sued alleging
that the Corps failed to conduct a required proportional impact
analysis to determine any possible effect exclusion would have on
small business non-8(a) contractors, such as Appellant.
Appellant argued that this failure caused Appellee to designate
the contract for 8(a) contractors in an arbitrary and capricious
manner. Appellant sought and was granted a temporary restraining
order to prevent Appellee from awarding the contract. Appellant
then sought a preliminary injunction, which was denied.
Thereafter both parties requested summary judgment, and the
district court ruled in favor of Appellee. Appellant appeals
this ruling.
DISCUSSION
should be offered in support of the 8(a) Program, the
agency should evaluate-
(a) Its current and future plans to acquire the
specific items or work that 8(a) contractors are
seeking to provide, identified in terms of-
(1) Quantities required or the number of
construction projects planned; and
(2) Performance or delivery requirements,
including required monthly production rates, when
applicable.
(b) Its current and future plans to acquire items
or work similar in nature and complexity to that
specified in the business plan;
(c) Problems encountered in previous acquisitions
of the items or work from the 8(a) contractors and/or
other contractors;
(d) The impact of any delay in delivery;
(e) Whether the items or work have previously been
acquired using small business set-asides; and
(f) Any other pertinent information . . . .
3
Standard of Review
Summary judgment is appropriate if the record discloses "that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." Fed.
R. Civ. P. 56(c). In reviewing the summary judgment, we apply the
same standard of review as did the district court. Waltman v.
International Paper Co., 875 F.2d 468, 474 (5th Cir. 1989); Moore
v. Mississippi Valley State Univ., 871 F.2d 545, 548 (5th Cir.
1989). We must "review the facts drawing all inferences most
favorable to the party opposing the motion." Reid v. State Farm
Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). If the
record taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no genuine issue for trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); see Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th
Cir. 1969) (en banc).
Impact Analysis Requirement
No impact analysis was conducted for this contract. Appellant
argues that 48 C.F.R. § 19.804-1(2)(e) requires Appellee to conduct
an impact analysis prior to offering the contract into the SBA's
8(a) Program.6 Appellee responds that § 19.804-1(2)(e) only
requires Appellee to consider whether the work being set aside for
the 8(a) Program has "previously been acquired using small business
6
Appellant relies upon Fordice Construction Co. v. Marsh, Civil
Action No. W81-0028(W) (S.D. Miss. Mar. 14, 1990), an unpublished
decision. Not only is Fordice factually distinguishable from
this case, but it is non-binding on this court. We are not
persuaded to follow the reasoning in Fordice.
4
set-asides." Appellee has interpreted this regulation to require
impact analysis only when a contract previously available to all
small businesses is redesignated as an exclusive 8(a) contract,
thereby causing a non-8(a) small business to lose the contract;
such analysis does not apply to new, non-recurring construction
contracts because "a business cannot be historically dependent on
a contract that it has never in fact obtained or performed."
It is well settled that we must respect Appellee's
interpretation of § 19.804-1(2)(e) if it is reasonable, even if we
may have interpreted the regulation differently. Kinnet Dairies,
Inc. v. Farrow, 580 F.2d 1260, 1270 (5th Cir. 1978) (quoting Udall
v. Tallman, 380 U.S. 1, 4 (1965)). Appellee's interpretation of
the regulation to require impact analysis only when recurring
contracts are redesignated as exclusively available to 8(a)
contractors is well-reasoned. Furthermore, it is consistent with
the plain meaning of the regulation, which states that Appellee
should consider whether "the items or work have previously been
acquired using small business set-asides." 48 C.F.R. § 19.804-
1(2)(e). The district court properly granted summary judgment in
favor of Appellee.
Finding that Appellee is entitled to judgment as a matter of
law, we AFFIRM the district court's grant of summary judgment.
5