UNITED STATES ARMY CORPS OF ENGINEERS, ET AL. V. AMERON, INC., ET AL. No. 87-163 In the Supreme Court of the United States October Term, 1987 The Solicitor General, on behalf of the United States Army Corps of Engineers, the Secretary of Defense, the Director of the Office of Management and Budget, and Lieutenant Colonel Michael K. Collmeyer, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit PARTIES TO THE PROCEEDING The petitioners, who were defendants in the district court, are the United States Army Corps of Engineers; Caspar W. Weinberger, the Secretary of Defense; James C. Miller, III, the Director of the Office of Management and Budget; and Lt. Col. Michael K. Collmeyer, a contracting officer of the Corps of Engineers. The respondents are Ameron, Inc., the plaintiff in district court; Spiniello Construction Company, a defendant in district court; and three intervenors: the United States Senate, the Speaker and Bipartisan Leadership Group of the House of Representatives, and Charles A. Bowsher, the Comptroller General of the United States. TABLE OF CONTENTS Parties to the Proceeding Opinions below Jurisdiction Constitutional and statutory provisions involved Question presented Statement A. The statutory scheme B. The response to the stay provisions by the President and other Executive officials C. The proceedings in this case Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix H Appendix I Appendix J Appendix K Appendix L OPINIONS BELOW The opinion of the court of appeals on rehearing (App., infra, 1a-58a) is reported at 809 F.2d 979. The prior opinion of the court of appeals (App., infra, 59a-100a) is reported at 787 F.2d 875. The opinion of the district court granting a preliminary injunction (App., infra, 108a-132a) is reported at 607 F. Supp. 962, and the subsequent opinion of the district court on cross-motions for summary judgment (App., infra, 135a-137a) is reported at 610 F. Supp. 750. JURISDICTION The first judgment of the court of appeals (App., infra, 103a-104a) was entered on March 27, 1986. By order dated August 19, 1986 (App., infra, 107a), the court of appeals granted rehearing. The judgment of the court of appeals on rehearing (App., infra, 101a-102a) was entered on December 31, 1986, and a timely petition for rehearing of that judgment was denied on February 27, 1987 (App., infra, 105a-106a). On May 20, 1987, Justice Brennan extended the time within which to file a petition for a writ of certiorari to and including July 27, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Relevant provisions of Articles I and II of the United States Constitution; 31 U.S.C. 702 and 703; and the Competition in Contracting Act of 1984, 31 U.S.C. (Supp. III) 3551-3556, are reproduced at App., infra, 151a-160a. QUESTION PRESENTED The Competition in Contracting Act of 1984, 31 U.S.C. (Supp. III) 3551-3556, authorizes a private party who wishes to challenge the proposed or actual award of a government contract to file a protest with the Comptroller General, an officer of the Legislative Branch who is removable only by Congress. Subject to certain exceptions, the Act requires the agency to refrain from awarding the contract, or to direct the contractor to cease performance of a contract that has already been awarded, while the protest is pending before the Comptroller General. The question presented is: Whether, under the doctrine of separation of powers and this Court's decisions in Bowsher v. Synar, No. 85-1377 (July 7, 1986), and INS v. Chadha, 462 U.S. 919 (1983), Congress may constitutionally vest power in the Comptroller General to affect the timing of the award or performance of a contract between an Executive Branch agency and a private party. STATEMENT This case involves the constitutionality of one aspect of the bid-protest provisions of the Competition in Contracting Act of 1984, 31 U.S.C. (Supp. III) 3551-3556. /1/ Those provisions authorize the Comptroller General, an officer of the Legislative Branch, to affect the timing of the award or performance of a contract between an agency of the Executive Branch and a private party. A. THE STATUTORY SCHEME The Competition in Contracting Act of 1984 (CICA) contains a number of substantive provisions designed to promote competition in government contracting. See Sections 2711-2732, 98 Stat. 1175-1199. The bid-protest procedures in the Act were intended by Congress to constitute an "enforcement mechanism" for effectuating the substantive provisions of CICA and other contracting laws. H.R. Conf. Rep. 98-861, 98th Cong., 2d Sess. 1435 (1984). Under the protest procedures, a prospective or actual bidder for a procurement contract with a federal agency may challenge the agency's solicitation of bids or its proposed or actual award of the contract by filing a protest with the Comptroller General (31 U.S.C. 3552), who "shall decide" the protest (31 U.S.C. 3553(a)). Upon receipt of the protest, the Comptroller General must immediately notify the federal agency involved. 31 U.S.C. 3553(b)(1). The agency then must submit a report on the protested procurement to the Comptroller General within 25 working days or such longer period as the Comptroller General may allow. 31 U.S.C. 3353(b)(2)(A) and (B). /2/ If the agency receives notice of the protest prior to the award of the contract, the contract "may not be awarded" while the protest is pending (31 U.S.C. 3553(c)(1)), unless the head of the agency makes a written finding that "urgent and compelling circumstances which significantly affect interests of the United States will not permit waiting for the decisions of the Comptroller General" (31 U.S.C. 3553(c)(2)(A)). Similarly, if notice of the protest is received within ten days after award of the contract, the agency "shall * * * immediately direct the contractor to cease performance under the contract and to suspend any related activities that may result in additional obligations being incurred by the United States" while the protest is pending. 31 U.S.C. 3553(d)(1). The head of the agency may authorize performance of the contract during this period only if he finds that "urgent and compelling circumstances" will not permit waiting for the decision of the Comptroller General or that "performance of the contract is in the best interests of the United States" (31 U.S.C. 3553(d)(2)). The Act gives the Comptroller General discretion to determine the period during which the protest will be considered and the award or performance of the contract will (in the absence of a "compelling circumstances" finding by the agency) be stayed. The Act contemplates that the Comptroller General "shall issue a final decision concerning (the) protest within 90 working days" of its submission, although the Comptroller General may extend that time -- and thereby further delay the award of performance of the contract -- if he determines that "the specific circumstances of the protest require a longer period" (31 U.S.C. 3554(a)(1)). The Act also directs the Comptroller General to establish an "express option" for deciding those protests that he determines are "suitable for resolution within 45 calendar days" (31 U.S.C. 3554(a)(2)), and permits the Comptroller General to dismiss summarily any protest that he determines "is frivolous or which, on its face, does not state a valid basis for protest" (31 U.S.C. 3554(a)(3)). If the Comptroller General "determines that the solicitation, proposed award, or award does not comply with a statute or regulation," his decision on the protest must contain a recommendation that the agency take some corrective action -- e.g., issue a new solicitation, terminate the contract, or "implement such other recommendations as the Comptroller General determines to be necessary in order to promote compliance with procurement statutes and regulations." 31 U.S.C. 3554(b)(1). The agency head must report to the Comptroller General if he has not fully implemented the recommendations within 60 days. 31 U.S.C. 3554(e)(1). Although the Comptroller General may not insist that the agency comply with his decision, he may award the prevailing protester its bid-preparation costs, as well as attorney's fees and costs associated with the protest. 31 U.S.C. 3554(c)(1). Such an award must be paid by the agency concerned "out of funds available * * * for the procurement of property and services." 31 U.S.C. 3554(c)(2). B. THE RESPONSE TO THE STAY PROVISIONS BY THE PRESIDENT AND OTHER EXECUTIVE OFFICIALS When President Reagan signed the Deficit Reduction Act of 1984, he formally took the position that the stay provisions of the CICA title "unconstitutionally attempt to delegate to the Comptroller General of the United States, an officer of Congress, the power to perform duties and responsibilities that in our constitutional system may be performed only by officials of the executive branch" (20 Weekly Comp. Pres. Doc. 1037 (July 18, 1984); compare Bowsher v. Synar, No. 85-1377 (July 7, 1986), slip op. 3 n.1). Accordingly, the President instructed the Attorney General "to inform all executive branch agencies as soon as possible with respect to how they may comply with the provisions of this bill in a manner consistent with the Constitution" (20 Weekly Colmp. Pres. Doc. 1037). The Attorney General then rendered an opinion concluding that the stay provisions of CICA are invalid in their entirety because the constitutionally defective portions authorizing the Comptroller General to affect the timing of contracts are inseverable from the remainder of 31 U.S.C. 3553(c) and (d) (C.A. App. 99). /3/ On November 21, 1984, the Attorney General formally conveyed his conclusions to the Speaker of the House of Representatives and the President of the Senate, pursuant to statutory provisions requiring the Attorney General to report to Congress whenever he determines that the Department of Justice will not defend the constitutionality of an Act of Congress (C.A. App. 99, 111-120). App., infra, 63a, 117a-118a. Based on the Attorney General's legal conclusions, the Director of the Office of Management and Budget instructed Executive agencies to proceed with the procurement process "as though no (stay) provision(s) were contained in the Act," but informed them that they "may voluntarily agree to stay procurements pending the resolution of bid protests" and that they should cooperate with the Comptroller General's investigation of bid protests (OMB Bull. No. 85-8 at 2 (Dec. 17, 1984) (App., infra, 83a-84a n.10; C.A.App. 99)). The CICA-related amendments to the Federal Acquisition Regulation also implemented this position of the Executive Branch regarding the constitutionality of the stay provisions. See 50 Fed. Reg. 2271 (1985), adding 48 C.F.R. 33.104 (preamble), (b) and (c). As the Attorney General explained in his letter to the Speaker and the President of the Senate, the Executive Branch pursued this course in order to "best assure a rapid and definitive judicial resolution of th(e) constitutional issues," since "(a)ny bid protester who is aggrieved with (the CICA stay) provisions may raise the constitutional issues for judicial resolution" (C.A. App. 120). See App., infra, 118a. C. THE PROCEEDINGS IN THIS CASE 1. This case arises out of a November 19, 1984, announcement by the United States Army Corps of Engineers that invited interested parties to submit bids for the repair of sewer lines at the United States Military Academy at West Point, New York. The invitation required submission of a bond guaranteeing 20% of the bid amount. When the sealed bids were opened, respondent Ameron was the apparent low bidder, with an offer of $1,033,000, approximately $200,000 less than that of the next lowest bidder, respondent Spiniello Construction Company. However, the dollar amount of the bond submitted by Ameron had been altered. Because there was no indication that the surety had agreed to be bound by the change, the Corps of Engineers rejected Ameron's bid as nonresponsive to the invitation. The contract therefore was awarded to Spiniello. C.A. App. 51-52. 2. a. On March 1, 1985, within ten days of the award to Spiniello, Ameron filed a protest with the Comptroller General (C.A. App. 47-49). Three days later, Ameron filed this action in the United States District Court for the District of New Jersey (C.A. App. 4-10). In response to Ameron's motion for a preliminary injunction, the district court rejected Ameron's challenge to the Corps of Engineers' selection of Spiniello (App., infra, 112a-115a). In the court's view, the "decision to reject Ameron's bid was clearly justified," because the alteration of the bond created doubt with respect to the surety's obligations (id. at 115a). Nevertheless, in an order dated March 27, 1985, the court entered a preliminary injunction barring Spiniello from performing any work under the contract until the Comptroller General ruled on Ameron's bid protest raising the identical issue (id. at 133a-134a). The court was unpersuaded by the Corps of Engineers' contention that the CICA stay provisions are unconstitutional because they vest in the Comptroller General, an officer of the Legislative Branch, the power to alter the legal rights, duties, and relations of persons outside that Branch (id. at 112a, 122a-123a, 129a-130a). The court acknowledged that the Comptroller General "exercises authority over the Executive Branch" under CICA (id. at 128a), but it believed that the Comptroller General "may exercise law enforcement functions" (id. at 126a) because he is appointed by the President; the court concluded that this made him an officer of the Executive Branch (id. at 125a-128a). b. Approximately one month after the district court entered the preliminary injunction, the Comptroller General denied Ameron's bid protest, finding that "Ameron's bid was properly rejected as nonresponsive" because of the alteration of the bond. In re Ameron, Inc., No. B-218262 (Apr. 29, 1985) (Corps C.A. Br. App. 1a-3a). The district court then disposed of this case in an opinion and orders dated May 28, 1985 (App., infra, 135a-150a). First, the court granted summary judgment in favor of the Corps of Engineers on Ameron's challenge to the contract award (id. at 137a, 148a). Second, the court formally declared that the stay provisions of CICA are constitutional and granted summary judgment on that issue in favor of the United States Senate and the Speaker and Bipartisan Leadership Group of the House of Representatives, who had been permitted to intervene (id. at 146a, 149a-150a). Third, the district court entered an injunction requiring petitioners to implement the CICA stay provisions on a government-wide basis (id. at 140a-146a, 150a). c. In response to the district court's injunction, as well as the advice of the Attorney General that all Executive agencies should comply with the CICA stay provisions pending a ruling by the Third Circuit on the constitutional issue (see 50 Fed. Reg. 25680 (1985)), the Director of OMB withdrew the directive in OMB Bulletin 85-8 that Executive agencies should proceed with the procurement process as if the stay provisions were not in effect. OMB Bull. No. 85-17 (June 4, 1985). In addition, the Federal Acquisition Regulation was amended by an interim rule, likewise pending the appeal in this case, to provide that Executive agencies should stay the award or performance of a contract when a protest is filed with the Comptroller General under CICA. 50 Fed. Reg. 25680 (1985); see also id. at 25681, amending 48 C.F.R. 33.104(b) and (c). 3. In an opinion dated March 27, 1986, the court of appeals affirmed the district court's holding that the CICA stay provisions are constitutional (App., infra, 59a-100a). As a threshold matter, the court of appeals held that the Comptroller General's ruling on Ameron's bid protest did not render this case moot, because the question of the constitutionality of CICA is capable of repetition yet evading review (App., infra, 66a (citing Murphy v. Hunt, 455 U.S. 478, 482 (1982), and Roe v. Wade, 410 U.S. 113, 125 (1973)); see also id. at 138a-140a). The court reasoned that a bid protest ordinarily will be resolved by the Comptroller General within 90 days and that Ameron is "a company frequently seeking government contracts" and had "represented that it is likely to be faced with a similar situation again: desiring to protest a contract decision but being unable to obtain the statutorily guaranteed stay while its protest is being reviewed" (App., infra, 66a). /4/ Turning to the merits, the court declined to reach the question whether the provision in 31 U.S.C. 703(e)(1) for Congress to remove the Comptroller General is constitutional, because it believed that that question was not ripe for judicial resolution in the absence of an actual attempt by Congress to remove the Comptroller General (App., infra, 72a-74a). The majority then noted that the parties agreed that "the key issue in this case is the characterization of the Office of the Comptroller General," since "(i)f the Comptroller General, as the Army argues, is deemed to be an agent of Congress, then his possession of executive powers and duties is arguably unconstitutional" (id. at 68a). However, the majority chose to characterize the Comptroller General "as a part of a headless 'fourth branch' of government consisting of independent agencies having significant duties in both the legislative and executive branches but residing not entirely within either" (id. at 76a). For this reason, and because the Comptroller General is appointed by the President, the majority reasoned that "the Comptroller General may constitutionally perform executive functions in reviewing bid protests" (id. at 77a). /5/ 4. After the panel rendered its first opinion, this Court handed down its decision in Synar. The Court held in Synar that the provisions of the Balanced Budget and Emergency Deficit Control Act of 1985 that vested executive powers in the Comptroller General violated the separation of powers under the Constitution, because Congress has reserved for itself the power to remove the Comptroller General and therefore has reserved influence or control over him. Slip op. 10-16; see also id. at 6-11 (Stevens, J., concurring in the judgment) (concluding that the Comptroller General is an agent of the Congress). 5. In light of Synar, the court of appeals in the instant case granted the Corps of Engineers' petition for rehearing, entertained reargument, and, on December 31, 1986, rendered a new opinion (App., infra, 1a-58a). In its second opinion, the court conceded that "(t)he Supreme Court's decision in Synar was contrary to the reasoning of the panel majority in the first Ameron opinion: the Supreme Court held that for separation of powers purposes the Comptroller General must be regarded as an agent of the Legislative Branch, and therefore that the Comptroller General may not exercise any power which Congress itself may not possess" (id. at 4a-5a); accord, id. at 39a-40a (Garth, J., concurring). /6/ But the panel nevertheless again held that the stay provisions of CICA are constitutional. a. The majority acknowledged that the Comptroller General's actions under CICA affect the timing of the award or performance of a contract between an Executive agency and a private party, because "a contract cannot be executed until the protest has been resolved" (App., infra, 10a). But the court rejected the contentions that INS v. Chadha, 462 U.S. 919 (1983), bars Congress from bringing about that result except by following the normal legislative process of bicameral action and presentment to the President, and that Synar bars Congress from circumventing the legislative process by delegating to its agent, the Comptroller General, the power to take action that has a legal effect outside the Legislative Branch (id. at 23a). The court observed that Congress has the power to investigate actions of an Executive agency and that it may seek to influence the agency's actions by expressing an opinion regarding them. In CICA, the court continued, Congress had simply delegated to the Comptroller General these "legislative" powers to investigate contract awards and to influence those awards, by rendering decisions on bid protests (id. at 25a-26a). In the court's view, Congress may "delay procurement activity" of an Executive agency -- by means of a stay terminable by an agent of Congress -- in pursuit of those investigatory and influencing goals (id. at 26a). The majority also rejected the contention that CICA authorizes the Comptroller General to participate impermissibly in the execution of the procurement laws (App., infra, 28a-31a). The court relied in part on its belief that the Comptroller General, in deciding whether to extend or shorten a stay, considers "only the length of time needed to decide the merits of the bid protest" (id. at 29a). The court also found it significant that the Comptroller General does not initiate procurement decisions, but rather, "like a court," acts "only in those cases which other parties submit for decision" (ibid.); that the agency may override a stay, albeit only in "limited" circumstances (id. at 29a-30a); and that the agency is not bound by the Comptroller General's ultimate decision on the protest (id. at 30a). The majority acknowledged that Congress had conferred bid-protest powers on the Comptroller General for the specific purpose of causing procurement officials to "go about their business differently" (id. at 34a). And the majority acknowledged as well that procurement officials might "exercise their discretion in ways which are not required by the procurement laws, and which they would not otherwise have chosen, in order to minimize conflict with the Comptroller General" and thereby reduce delays in the procurement process (id. at 15a, 34a). But, adopting a balancing approach to the division of powers between the Legislative and Executive Branches (id. at 32a-33a), the majority concluded that this supposedly minimal intrusion by the Comptroller General into the procurement process was justified by Congress' desire to permit the Comptroller General to investigate contract actions while they are still remediable (id. at 34a-36a). b. Judge Garth filed a concurring opinion (App., infra, 38a-44a), in which he argued that the court should attempt to measure "the degree of the alleged intrusion into the authority of the coordinate branch" (id. at 41a). This he regarded as "more of an empirical exercise * * * then it is a theoretical exercise in questioning whether, in embryo, a dangerous violation of principle lurks beneath an apparently benign legislative mechanism" (ibid. (emphasis in original)). Applying that test, Judge Garth concluded that "the stay power granted to the Comptroller General is not of such magnitude that it should be stricken as unconstitutional" (id. at 44a). /7/ REASONS FOR GRANTING THE PETITION The stay provisions of the Competition in Contracting Act authorize the Comptroller General, an agent of Congress who is subject to removal only by Congress, to control the timing of the award or performance of a contract between an agency of the Executive Branch and a private party. This intrusion by the Comptroller General into the execution of the procurement laws cannot be reconciled with this Court's decisions in Bowsher v. Synar, No. 85-1377 (July 7, 1986), and INS v. Chadha, 462 U.S. 919 (1983). The Court held in Chadha that Congress may alter the legal rights, duties, and relations of persons outside the Legislative Branch only by passing a new law, in conformity with the bicameralism and presentment requirements of the Constitution. Synar makes clear that Congress cannot circumvent those limitations by delegating power to its agent, the Comptroller General. Thus, the Court held in Synar that because Congress retains influence and control over the Comptroller General by virtue of its statutory power to remove him from office, the Comptroller General cannot participate in the execution of the laws. The court of appeals' holding that the stay provisions of CICA are constitutional therefore disregards the clear teachings of Synar and Chadha. In fact, the court of appeals appeared to recognize in its first opinion that the CICA stay provisions could not be sustained if, as this Court subsequently held in Synar, Congress's power to remove the Comptroller General renders him subservient as a constitutional matter, to Congress. The question of the constitutionality of the stay provisions of CICA is of broad practical significance. Several thousand bid protests are filed with the Comptroller General annually, each of which triggers a stay that can be terminated only by action of the Comptroller General. Moreover, the mere existence of the stay provisions of CICA casts far broader uncertainty over the government contract process generally, because thousands of procurement decisions are covered by the CICA bid-protest mechanism and are therefore potentially subjected to the disruption and delay caused by a stay of indeterminate duration. The instant case presents an appropriate occasion for a definitive resolution of the constitutionality of this statutory arrangement. The House and Senate have so regarded it from the outset, for they sought and obtained in district court an injunction requiring petitioners to assure compliance with the stay provisions on a government-wide basis. Although the court of appeals narrowed the injunctive relief, this case has remained the focal point for litigation of the constitutionality of the stay provisions. Review by this Court is therefore clearly warranted. 1. The decision of the court of appeals is inconsistent with both of this Court's recent decisions addressing the separation of powers between the Legislative and Executive Branches, Chadha and Synar. We shall address the inconsistency with the latter decision first, because it specifically concerns the status and powers of the Comptroller General. a. In Synar, the Court held that "because Congress ha(s) retained removal authority over the Comptroller General, he may not be entrusted with executive powers" (slip op. 16). This holding was firmly grounded in the text and contemporaneous interpretation of the Constitution, the Court's own precedents addressing the removal power, and the history of legislation concerning the office of Comptroller General. Through the distinct provisions of Articles I, II and III of the Constitution, the Framers "'sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.'" Synar, slip op. 6 (quoting Chadha, 462 U.S. at 951). The limitations on each Branch's powers, coupled with the constitutionally prescribed system of checks and balances among the three, "were the foundation of a structure of government that would protect liberty." Synar, slip op. 6. The Framers were especially aware of Montesquieu's warning that "'(t)here can be no liberty where the legislative and executive powers are united in the same person, or body or magistrates'" (The Federalist No. 47, at 302 (Rossiter ed. 1961)), and they accordingly "provided a vigorous legislative branch and a separate and wholly independent executive branch, with each branch responsible ultimately to the people" (Synar, slip op. 6). Within this structure, the President appoints officers of the United States subject to the check of the advice and consent of the Senate (Art. II, Section 2), but such officers may be removed by Congress only upon impeachment by the House of Representatives and conviction by the Senate (Art. I, Section 2, Cl. 5; Art. I, Section 3, Cl. 6). The Court concluded in Synar that "(a) direct congressional role in the removal of officers charged with the execution of the laws beyond this limited one (of impeachment) is inconsistent with (the) separation of powers" (slip op. 7). The Court found this limitation on Congress's powers confirmed by the First Congress's explicit rejection of a congressional role in the removal process in the "Decision of 1789" (id. at 7-8) and by the Court's own decisions in Myers v. United States, 272 U.S. 52 (1926), and Humphrey's Executor v. United States, 295 U.S. 602 (1935). In Myers, the Court held that for Congress to "draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power * * * would be * * * to infringe the constitutional principle of separation of governmental powers" (272 U.S. at 161). And although the Court held in Humphrey's Executor that the President's power to remove a member of the Federal Trade Commission was not "illimitable" (295 U.S. at 629), the Court did not question the holding in Myers that congressional participation in the removal of executive officers is unconstitutional. These principles were found in Synar to be fully applicable to the Comptroller General, who may be removed from office by joint resolution of Congress. 31 U.S.C. 703(e)(1). It is irrelevant, the Court explained, whether the Comptroller General is likely to be removed by Congress, because "(t)he Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty. In constitutional terms, the removal powers over the Comptroller General's office dictate that he will be subservient to Congress." Synar, slip op. 14. /8/ The Court therefore held that Congress had acted unconstitutionally in fashioning a role for the Comptroller General under the Balanced Budget and Emergency Deficit Control Act, because it found that his powers under that Act were executive in nature. By providing for participation in the execution of the Act by an officer who was subject to removal by Congress, the Court concluded, "Congress in effect ha(d) retained control over the execution of the Act and ha(d) intruded into the executive function" (slip op. 18). b. The reasoning of Synar compels the conclusion that the stay provisions of CICA are also unconstitutional. Congress could, of course, have directed that the award or performance of some or all government contracts must be delayed for a definite period prescribed by law, just as in Synar Congress could have specified by law the exact amount of budget reductions required for any particular year. But that is not what Congress did in CICA. Rather, as in Synar, Congress eschewed any such definite rule in the law itself and instead delegated to the Comptroller General the authority to determine the application of the law to particular Executive Branch actions. Under CICA, once a bid protest is filed with the Comptroller General, the contract may not be awarded by the Executive agency -- or, if the contract has already been awarded, the agency must direct the contractor to cease performance -- until the Comptroller General renders his decision on the protest. 31 U.S.C. 3553(c) and (d). As a result (and in the absence of "exigent circumstances" permitting the contracting agency to override the stay (App., infra, 10a)), the timing of the contract is legally subject to the complete control of the Comptroller General, an agent of Congress: the Comptroller General may dismiss the protest at any time if he finds that it is "frivolous" or "does not state a valid basis for protest" (31 U.S.C. 3554(a)(3)); he may designate the case for expedited disposition under the "express option" (31 U.S.C. 3554(a)(2)); he may delay his decision for 90 working days (31 U.S.C. 3554(a)(1)); or he may extend that time still further if he determines that "specific circumstances of the protest require a longer period" (ibid.). By thus vesting in the Comptroller General the power to control the timing of a contract between an agency of the Executive Branch and a private party, Congress has "retained control over the execution of the Act" and "intruded into the executive function" (Synar, slip op. 18). Contrary to the court of appeals' belief (App., infra, 30a, 31a), it is irrelevant for present purposes that the contracting agency is not bound by the Comptroller General's ultimate decision on the bid protest. /9/ The fact that the agency and the private party are not permanently barred from proceeding with the contract once the Comptroller General has lifted the stay does not undo the fact that they are prevented from proceeding for as long as the Comptroller General has the merits of the dispute under submission. The procurement decision by an Executive agency involves not only the determination of what to purchase and from whom, but also when the contract shall be awarded or the performance of the contract shall commence. Such questions of timing are as much a part of the execution of the laws as is the substance of administrative actions. Congress therefore cannot, under Synar, vest in the Comptroller General the power to control that timing. 2. The decision below likewise cannot be squared with Chadha. There, the Court held unconstitutional a "legislative veto" provision that permitted one House of Congress to override the Attorney General's decision to suspend the deportation of an alien. The Court reasoned that the legislative veto conflicted with the constitutional requirement that all actions by the Legislative Branch that affect "the legal rights, duties and relations" of persons outside that Branch must be taken by Congress itself pursuant to the lawmaking provisions in Articles I and II (462 U.S. at 944-959). The Court explained (id. at 954-955): Disagreement with the Attorney General's decision on Chadha's deportation -- that is, Congress' decision to deport Chadha -- no less than Congress' original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way; bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked. In Synar, the Court relied on Chadha to reinforce its conclusion that Congress may not vest power in the Comptroller General to participate in the execution of the laws (slip op. 11): To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory. See also id. at 11 (White, J., dissenting) ("Chadha expressly recognizes that * * * congressional meddling with administration of the law outside of the legislative process is impermissible"). This reasoning applies equally here. The actions of the Comptroller General under the stay provisions of CICA have a direct legal effect on the "rights, duties, and relations of persons, including * * * Executive Branch officials and (private parties), all outside the Legislative Branch." 462 U.S. at 952. By shortening or lengthening the stay, the Comptroller General traverses the legal authority of the responsible contracting officials in the Executive Branch to award or direct performance of the contract at whatever time they might otherwise select. Furthermore, as demonstrated by the facts of this case, the Comptroller General's actions also affect the rights of at least two private parties: (i) the successful bidder (Spiniello), which is denied the benefit of the contract for as long as the Comptroller General chooses to keep the protest under submission, but which then is restored to its prior right to proceed with the contract when the Comptroller General acts; and (ii) the protester (Ameron), which benefits from the Comptroller General's investigation and the resulting stay of all contracting activity, but which then loses its right to the Comptroller General's intervention and to the preservation of the status quo when the Comptroller General rules on the bid protest. Chadha cannot be distinguished on the ground that CICA itself provides that the contract may not be awarded (or that performance of an existing contract shall cease) until the Comptroller General acts on the bid protest, while in Chadha it was the action of one House of Congress that had the initial impact on the action of the Executive Branch official. As explained in the preceding paragraph, the lifting of the stay, which is under the Comptroller General's exclusive control, unquestionably affects the legal rights, duties and relations of persons outside the Legislative Branch. In an analogous case, the District of Columbia Circuit held that the unconstitutionality of the legislative veto device required invalidation of a provision that "grant(ed) the Appropriations Committees (of the House and Senate) the power to lift a congressionally-imposed restriction on the use of appropriated funds." AFGE v. Pierce, 697 F.2d 303, 306 (1982). As the court below recognized, Synar holds that "the Comptroller General may not exercise any power which Congress itself may not possess" (App., infra, 5a). The rationale of AFGE v. Pierce therefore requires invalidation of the CICA provisions that permit the Comptroller General to affect the timing of government contracts. Conversely, if the reasoning of the court below were correct, Congress presumably could confer on one of its committees the power to "lift the congressionally-imposed restriction," as in AFGE v. Pierce, and thereby allow a committee of Congress to control the timing of government contracts. The holding by the court below therefore conflicts with AFGE v. Pierce. /10/ 3. The court below, in its first opinion, expressly acknowledged that the Comptroller General's powers under CICA are "executive" in nature (App., infra, 68a, 77a, 79a; id, 96a-97a (Becker, J., concurring)). The court also appeared to acknowledge that the Comptroller General could not constitutionally be vested with the executive power to alter the timing of the award or performance of a government contract if, for purposes of constitutional analysis, he is an agent of Congress or is subject to its control by virtue of Congress's power of removal (id. at 68a, 74a-75a, 79a-80a; id. at 97a-98a (Becker, J., concurring)). The court avoided that result only by concluding that the Comptroller General is part of a "headless 'fourth branch' of government" (id. at 76a, 77a, 78a n.5, 79a). As the panel recognized on rehearing (id. at 4a-5a; see page 10, supra), that reasoning directly conflicts with Synar. It should have followed inexorably that the CICA stay provisions are unconstitutional. Nevertheless, on rehearing, the panel again sustained the stay provisions. This time, it concluded that vesting the Comptroller General with control over the length of the stay could be justified as a reasonable means of effectuating Congress's powers to investigate and influence the activities of contracting agencies. That rationale, however, squarely conflicts with a principle announced in Buckley v. Valeo, 424 U.S. 1 (1976). There, the Court rejected the contention that because Congress has plenary power to regulate elections, it could provide for congressional appointment of Members of the Federal Election Commission. 424 U.S. at 132-135. The Court stated (id. at 135): Congress could not, merely because it concluded that such a measure was "necessary and proper" to the discharge of its substantive legislative authority, pass a bill of attainder or ex post facto law contrary to the prohibitions contained in Section 9 of Art. I. No more may it vest in itself, or in its officers, the authority to appoint officers of the United States when the Appoinitments Clause by clear implication prohibits it from doing so. Likewise, in Chadha, Congress's express constitutional power over naturalization (Art. I, Section 8, Cl. 4) did not justify exercise of a one-House veto of an Executive decision concerning an alien (see 462 U.S. at 940-941); and in Synar, Congress's express power over appropriations (Art. I, Section 9, Cl. 7) did not authorize it to permit the Comptroller General to participate in the execution of appropriations laws (see slip op. 6 (White, J., dissenting)). A fortiori, Congress's power -- which is not expressly mentioned in the Constitution -- to investigate procurement activities of the Executive Branch furnishes no basis for Congress to enact a statutory mechanism that violates the separation of powers under the Constitution. Compare Watkins v. United States, 354 U.S. 178, 195-201 (1957). In any event, it is quite inaccurate to characterize the stay of the award or performance of a contract under CICA as nothing more than an incidental feature of a process by which Congress, through the Comptroller General, may investigate and express its "opinion" on contracting matters arising in Executive agencies. The very purpose of the bid-protest provisions was to enable the Comptroller General to intervene in the execution of the procurement laws. As the Conference Report explains, the bid-protest mechanism, including the provisions placing the stay of contracting activities under the control of the Comptroller General, was intended by Congress to be an "enforcement mechanism * * * to insure (both) that the mandate for competition is enforced and that vendors (who are) wrongly excluded from competing for government contracts receive equitable relief." H.R. Conf. Rep. 98-861, supra, at 1435; see also H.R. Rep. 98-1157, 98th Cong., 2d Sess. 25 (1984) (CICA "establishes an enforcement mechanism which prohibits the award or performance of a contract while a protest is pending"). /11/ The court of appeals in fact, acknowledged that Congress conferred bid protest powers on the Comptroller General under CICA for the purpose of causing procurement officials "to go about their business differently" (App., infra, 34a). And the court of appeals also acknowledged that CICA gives the Comptroller General leverage over the contracting process because procurement officials may find it necessary as a practical matter to exercise their discretion in a way not required by the procurement laws in order to minimize conflict with the Comptroller General and thereby minimize the potential for protracted stays of contracting activity (ibid.; see also id. at 15a). Moreover, under our system of separated powers, if there is to be a check, external to the Executive Branch, on the execution of the laws, that check must come not from the Legislative Branch (except through the enactment of a new law), but from the Judicial Branch, in a case properly brought before it by a party aggrieved by the executive action. See Chadha, 462 U.S. at 957 n.22; id. at 961-967 (Powell, J., concurring in the judgment). Indeed, when Congress enacted CICA, it recognized that the Comptroller General's role was essentially identical to that of a court or of an adjudicatory body within an executive agency. See H.R. Rep. 98-1157, supra, at 23 ("Although the courts also decide contractual disputes, GAO has become the principal forum for resolving such procurement protests"); see also App., infra, 29a (the Comptroller General acts "like a court"). Congress therefore found it necessary to provide -- in a section entitled "Nonexclusivity of remedies" -- that the bid-protest provisions of CICA "do( ) not give the Comptroller General exclusive jurisdiction over protests" and do not "affect the right of any interested party to file a protest with a contracting agency or to file an action in a district court of the United States or the United States Claims Court." 31 U.S.C. 3556; see also 4 C.F.R. 21.9(a) (GAO will dismiss a bid protest where the subject matter is before a court of competent jurisdiction). Congress's recognition that the Comptroller General's bid-protest functions under CICA essentially duplicate already existing adjudicatory functions of the Executive and Judicial Branches underscores the conclusion that the Comptroller General, as an officer of the Legislative Branch, may not be given the power to affect the legal rights of persons interested in such a contract dispute. Cf. Synar, slip op. 21 (Stevens, J., concurring in the judgment). /12/ Finally, the court of appeals erred in believing that the CICA stay provisions could be sustained under a balancing approach drawn from Nixon v. Administrator of GSA, 443 U.S. 425, 443 (1977) (see App., infra, 33a-36a). That case did not involve an attempt by Congress to control the actions of the Executive Branch and private parties by means other than the normal lawmaking process, with its attendant protections of bicameral approval by the House and Senate and presentment to the President. Rather, Nixon v. Administrator of GSA involved restrictions on Executive actions that were contained in a duly enacted law. Although Congress had therefore not exceeded the procedural limitations on the exercise of its power, the Court concluded that a weighing of interests nevertheless was required in order to determine whether the law impermissibly interfered as a substantive matter with the functions of the Executive Branch. CFTC v. Schor, No. 85-621 (July 7, 1986), also cited by court below (App., infra, 35a; id. at 41a-43a (Garth, J., concurring)), similarly involved a claim that the provisions of a duly enacted law impermissibly interfered with the functioning of the Judicial Branch; there again was no statutory provision purporting to authorize Congress or its agent to control the actions of a coordinate Branch by means other than the legislative process. Accordingly, neither Nixon v. Administrator of GSA, nor CFTC v. Schor supports a balancing approach to the division of powers between the Legislative and Executive Branches where, as here and in Chadha and Synar, the challenged action of the Legislative Branch does not take the form of a duly enacted law. To the contrary, the Court held that the Comptroller General's powers in Synar were unconstitutional even though Congress had conferred those powers on him in response to "fiscal and economic problems of unprecedented magnitude" (slip op. 20). Although the intrusion by the Comptroller General into the execution of the laws may be less dramatic here than it was in Synar, "'(t)he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.'" Synar, slip op 11 (quoting Chadha, 462 U.S. at 951). "The Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty" (Synar, slip op. 14); accordingly, "the carefully defined limits on the power of eachs Branch must not be eroded" (Chadha, 462 U.S. at 958). 4. For the foregoing reasons, this case presents an important question regarding the separation of powers between the Legislative and Executive Branches under the Constitution. That question plainly warrants review by this Court. When the President signed the Deficit Reduction Act, he formally took the position that the stay provisions of CICA are unconstitutional. The Attorney General then formally communicated his opinion to the same effect to the Speaker of the House of Representatives and the President of the Senate, and that position was implemented by the Director of OMB in OMB Bulletin No. 85-8 and by the principal procurement agencies in amendments to the Federal Acquisition Regulation. See 50 Fed. Reg. 2271 (1985). The House and Senate took the contrary position by intervening in this case, and indeed they sought a definitive resolution of the constitutional question in this case by moving for, and obtaining from the district court, a government-wide injunction against petitioners. Although the court of appeals narrowed the scope of the injunctive relief, this continues to be regarded as the test case concerning the constitutionality of the CICA stay provisions generally. See note 7, supra. /13/ The question of the validity of the CICA stay provisions is also of broad practical importance in the administration of the procurement laws. According to the Comptroller General's most recent annual report to Congress on the operation of CICA (No. B-158766 (Jan. 31, 1987)), there were 2891 protests filed with the Comptroller General during fiscal year 1986 (id. at 4). Virtually all of these protests triggered a stay of contracting activity that could be lifted only by the Comptroller General. Moreover, the significance of the stay provisions extends beyond the many cases in which protests are actually filed, because the existence of the stay feature of the Act creates uncertainty in many thousands of additional procurement actions that are subject to the potential for delay and controversy occasioned by the filing of a protest and the resulting stay of indeterminate duration. The question of the proper relationship between the Comptroller General and the Executive agencies under CICA therefore warrants prompt resolution by this Court. /14/ CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General LOUIS R. COHEN Deputy Solicitor General JAMES M. SPEARS Deputy Assistant Attorney General EDWIN S. KNEEDLER Assistant to the Solicitor General DOUGLAS N. LETTER HAROLD J. KRENT Attorneys 4 JULY 1987 /1/ CICA was enacted as Title VII of Division B of the Deficit Reduction Act of 1984, Pub. L. No. 98-369, 98 Stat. 1175. Hereafter, all citations to CICA are to Supplement III to the 1982 edition of Title 31 of the United States Code. /2/ If the Comptroller General finds the case to be suitable for expedited treatment under 31 U.S.C. 3554(a)(2) (see page 4, infra), the agency must submit its report within ten working days. 31 U.S.C. 3553(b)(2)(C). If the Comptroller General dismisses the protest under 31 U.S.C. 3554(a)(3) (see page 4, infra), the agency need not submit a report. 31 U.S.C. 3553(b)(3). /3/ The Attorney General also concluded that the Comptroller General cannot constitutionally award bid-preparation costs or the costs of filing and pursuing a protest (C.A. App. 118). /4/ For the reasons stated by the court of appeals, we agree that this case is not moot. /5/ In a separate concurring opinion (App., infra, 88a-100a), Judge Becker rejected the majority's notion that the Comptroller General is part of a "headless 'fourth branch'" (id. at 89a-91a) and concluded instead that he is an officer of the Legislative Branch (id. at 91a-92a). Although Judge Becker was of the view that the Comptroller General's critical functions under CICA -- to decide bid protests, terminate or extend stays of contracts, and award fees and costs -- are not "legislative" in nature (id. at 93a-94a), he nevertheless concluded that the conferral of these "executive-judicial powers" on the Comptroller General was constitutional because they did not threaten "individual liberty" (id. at 96a-98a). /6/ The court likewise recognized that after Synar (slip op. 12 n.5), it could no longer avoid, on ripeness grounds, the question whether Congress's power to remove the Comptroller General barred it from vesting him with authority to alter the timing of government contracts (App., infra, 13a-15a). The court further recognized that Synar foreclosed Judge Becker's prior view (see note 5, supra) that there is no separation-of-powers violation in the absence of an immediate threat to individual liberty (App., infra, 4a n.2; id. at 39a n.1 (Garth, J., concurring)). /7/ Although the court of appeals sustained the CICA stay provisions and affirmed the district court's declaratory judgment to that effect (App., infra, 81a, 87a, 102a, 104a), it held that the injunctive relief granted by the district court, which purported to bind petitioners on a government-wide basis, was too broad (id. at 2a-3a n.1, 80a-87a). The court concluded that because the Senate and the Speaker and Bipartisan Leadership Group of the House did not have independent standing to seek injunctive relief, injunctive relief must be confined to that which respondent Ameron could obtain (id. at 81a-82a). The court therefore modified the injunction to require petitioners to comply with 31 U.S.C. 3553 only in connection with Ameron's bid protest of March 1, 1985 (App., infra, 86a-87a). As a result, there now is no outstanding injunction requiring Executive agencies to honor the stay provisions of CICA. However, the status quo that has existed since the district court entered its government-wide injunction has been maintained, because the interim amendment to the Federal Acquisition Regulation requiring covered agencies to honor the stay provisions pending the appeal in this case (discussed at page 8, supra) has not been rescinded; OMB Bulletin 85-8 (discussed at pages 6 and 8, supra) has not been reinstated; and Executive agencies therefore are honoring the CICA stay provisions. This voluntary continuation, pending the disposition of this case, of the conditions that were imposed by the district court's injunction obviously does not render this case moot. See Chicago Teachers Union v. Hudson, No. 84-1503 (Mar. 4, 1986), slip op. 6, 7-8, 12 n.14; County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). /8/ The Court observed that the provision for congressional removal of the Comptroller General "was an important part of the legislative scheme" designed to give Congress control over his actions (see Synar, slip op. 13) and that the Comptroller General traditionally has been regarded as an officer of the Legislative Branch (see id. at 14-16; see also id. at 6-11 (Stevens, J., concurring in the judgment)). /9/ It is of course clear after Synar that Congress could not require the contracting agency to follow the decision of the Comptroller General on the merits of a bid protest. See also Synar, slip op. 11 & n.5 (Blackmun, J., dissenting); 42 Op. Att'y Gen. 405, 415-416 (1969); cf. Miguel v. McCarl, 291 U.S. 442, 454, 456 (1934). The Comptroller General's decision would embody his interpretation of the laws governing the particular procurement and his ascertainment of the relevant facts -- both of which are integral aspects of the execution of the laws (Synar, slip op. 17) -- and his ruling would operate as a directive to the contracting agency in the same manner as the deficit reduction "report" at issue in Synar (see slip op. 17-18). /10/ The statute involved in AFGE v Pierce provided that the Department of Housing and Urban Development could not use appropriated funds to implement a reorganization of the Department "without the prior approval of the Committees on Appropriations" (see 697 F.2d at 304). However, the holding of unconstitutionality in AFGE v. Pierce did not rest on the theory that the committees' decision on the merits of the reorganization was impermissibly made binding on the Department; it was sufficient that the committees were given the power to lift the restriction (id. at 306), just as the Comptroller General does when he renders a decision on the merits of a protest under CICA. In any event, the court of appeals in this case was wrong in suggesting (App., infra, 29a) that the Comptroller General does not consider the merits of the protest when he determines the duration of the stay of contracting activity. He must make a threshold determination whether the protest is "frivolous" or fails to "stat(e) a valid basis" for relief, and therefore is subject to dismissal. Moreover, the length of time the Comptroller General needs to resolve any protest is presumably related to his perception of the merits, and the stay of contracting activities in fact is lifted simultaneously with the issuance of the Comptroller General's decision on the merits. /11/ See also H.R. 98-1157, supra, at 23 ("the current bid protest process does not provide an adequate remedy to those wrongfully excluded from procurements"); ibid. (GAO is hampered by institutional limitations "which preclude it from acting as an aggressive enforcer of competitive policies"); id. at 24 (CICA is necessary because GAO has "no power to stop a contract award or contract performance while a protest is pending"). The Comptroller General also statged when he promulgated regulations implementing CICA that "(o)ne important purpose of the bid protest forum is to provide a procedure through which private parties may enforce the substantive provisions of the (CICA).'" 49 Fed. Reg. 49419 (1984). /12/ The duplication of the judicial function is especially vivid in this case, because respondent Ameron sought, but was denied, a preliminary injunction barring performance of the contract based on the merits of its challenge to the selection of Spiniello. See page 7, supra. But Ameron did obtain a preliminary injunction barring performance until the Attorney General ruled on that same challenge. That preliminary injunction had essentially the same effect as the Comptroller General's continuation of the stay of Spiniello's performance of the contract until he ruled on Ameron's challenge. /13/ As noted above (see page 8 and n.7, supra), the interim amendment to the Federal Acquisition Regulation that is now in effect, as well as the related advice and instructions of Executive Branch officials concerning the stay provisions of CICA, have been tied directly to this case. /14/ A constitutional challenge to the stay provisions also was rejected in Lear Siegler v. Lehman, No. CV 85-1125-Kn (C.D. Cal. Dec. 31, 1986), appeal pending, No. 86-6496 (9th Cir.); Parola v. Weinberger, No. C-85-20303-WAI (N.D. Cal. Feb. 13, 1987), appeal pending, No. 86-2963 (9th Cir.); and Universal Shipping Co. v. United States, 652 F.Supp. 668 (D.D.C. 1987), appeal pending, No. 87-5120 (D.C. Cir.). APPENDIX