John T. Brady & Co. v. United States

Per Curiam:

This Wunderlich Act case concerns, in part, plaintiffs entitlement to consideration of its request for an exception to the Buy American Act provisions¹ incorporated in a construction contract between the Veterans Administration and plaintiff. Plaintiff made its request for an exception after the construction contract was awarded to it. The contracting officer refused to consider plaintiffs request on the ground that the request was required to have been made at the time of bid. The Veterans Administration Contract Appeals Board sustained the contracting officer’s position. VACAB No. 1300, 79-1 BCA ¶ 13,717. Plaintiff appeals from this administrative decision.

The case comes before the court on the parties’ cross-motions for summary judgment. Plaintiff asserts that the administrative decision is unsupported by substantial evidence. Additionally, plaintiff argues that the decision "contains errors of law” concerning the correct application of the Buy American Act. According to plaintiff, these alleged errors of law present "legal issues * * * of first impression to this Court.” Because plaintiff believes the legal issues to be of first impression, plaintiff suggests, pursuant to Rule 166, that the cross-motions be referred to a trial judge under Rule 54.

Defendant argues that the administrative decision correctly applies the Buy American Act to the facts of this case and that the decision is supported by substantial evidence. Defendant does not oppose, however, plaintiffs suggestion that the cross-motions be referred to a trial judge. Because defendant expresses no opposition to this suggestion, because the legal issues raised concerning the Buy American Act appear to be of first impression, and because plaintiff challenges several fact-findings in the administrative decision, we believe it appropriate to refer the cross-motions to a trial judge.

rr is therefore ordered, pursuant to Rule 54(a), that the cross-motions for summary judgment are referred to the trial division for an opinion and recommendation for the conclusion of law by a trial judge.

1 The Buy American Act is codified at 41 U.S.C. §§ 10a-10d (1976).