UNITED STATES ARMY CORPS OF ENGINEERS, ET AL., PETITIONERS V.
AMERON, INC., ET AL.

   No. 87-163

   In the Supreme Court of the United States

   October Term, 1987

   On Writ Of Certiorari To The United States Court Of Appeals For The
Third Circuit

   Brief For The Petitioners

   PARTIES TO THE PROCEEDING

   The petitioners, who were defendants in the district court, are the
United States Army Corps of Engineers;  Frank Carlucci, the Secretary
of Defense (substituted for Caspar W. Weinberger pursuant to this
Court's Rule 40.3);  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 the district
court;  Spiniello Construction Co., a defendant in the district court;
 the United States Senate and the Speaker and Bipartisan Leadership
Group of the House of Representatives, who were granted leave to
intervene in the district court;  and Charles A. Bowsher, the
Comptroller General of the United States, who was granted leave to
intervene in the court of appeals.

            TABLE OF CONTENTS
   Questions presented
   Parties to the proceeding
   Opinions below
   Jurisdiction
   Constitutional and statutory provisions involved
   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
   Summary of argument
   Argument:
      I. The stay provisions of the Competition in Contracting
         Act violate the separation of powers under the Constitution
         A. Chadha and Synar establish that Congress may not vest
            the Comptroller General with the power to control the
            timing of contracts between Executive Branch agencies
            and private parties
         B. The stay provisions cannot be sustained as a necessary
            and proper means of implementing Congress's legislative
            powers
         C. The stay provisions cannot be sustained by analogy to
            "report and wait" provisions
         D. The stay provisions of CICA cannot be sustained under a
            balancing test
     II. The stay provisions should be severed from the remainder of
         the procurement-protest subtitle of CICA
   Conclusion

   OPINIONS BELOW

   The opinions of the court of appeals (Pet. App. 1a-58a, 59a-100a)
are reported at 809 F.2d 979 and 787 F.2d 875.  The opinions of the
district court (Pet. App. 108a-132a, 135a-147a) are reported at 607 F.
Supp. 962 and 610 F. Supp. 750.

   JURISDICTION

   The judgment of the court of appeals on rehearing (Pet. App.
101a-102a) was entered on December 31, 1986, and a petition for
rehearing was denied on February 27, 1987 (Pet. App. 105a-106a).  On
May 20, 1987, Justice Brennan extended the time within which to file a
certiorari petition to July 27, 1987.  The petition was filed on that
date and was granted on March 21, 1988 (J.A. 75).  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 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 Pet. App.
151a-160a.

   QUESTIONS PRESENTED

   The protest provisions of the Competition in Contracting Act of
1984 (CICA), 31 U.S.C. (Supp. III) 3551-3556, authorize a private
party who wishes to challenge an Executive Branch agency's proposed or
actual award of a procurement 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, CICA
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, until the Comptroller General renders his
decision on the protest.  The questions presented are:

   1. 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 constitutuinally 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.

   2. Whether, if the CICA stay provisions are unconstitutional, those
provisions should be severed from the remainder of the
procurement-protest subtitle of CICA.

   STATEMENT

   The case involves the constitutionality of one feature of the
bid-protest provisions of the Competition in Contracting Act of 1984
(CICA), 31 U.S.C. 3551-3556.  /1/ That feature authorizes the
Comptroller General, a Legislative Branch officer who may be removed
from office only by Congress (31 U.S.C. 703(e)(1)), to control the
timing of the award or performance of a contract between an Executive
Branch agency and a private party.

   A. The Statutory Scheme

   1. CICA was enacted as Title VII of Division B of the Deficit
Reduction Act of 1984 (DEFRA), Pub. L. No. 98-369, 98 Stat. 1175.
Most of CICA consists of extensive substantive amendments to the
Federal Property and Administrative Services Act of 1949, Tit. III, 41
U.S.C. (& Supp. III) 251 et seq., which governs procurement by
civilian agencies, and the Armed Services Procurement Act of 1947, 10
U.S.C. (& Supp. IV) 2301 et seq., which governs procurement by the
Department of Defense (DOD), the Cost Guard, and the National
Aeronautics and Space Administration (NASA).  Those amendments were
designed to promote competition in the procurement of goods and
services by mandating the use of competitive procedures except where
other methods are expressly authorized, tightening restrictions on
noncompetitive procurement, mandating planning and specifications that
facilitate competition, prescribing procedures for the evaluation of
sealed bids and competitive proposals, and requiring contractors to
submit detailed cost and pricing data.  See Sections 2711-2714 of
DEFRA, 98 Stat. 1175-1185, 41 U.S.C. (Supp. III) 253-254;  Sections
2721-2727 of DEFRA, 98 Stat. 1185-1195, 10 U.S.C. (& Supp. IV)
2301-2306, 2310-2311.  In addition, CICA amends the Office of Federal
Procurement Policy Act of 1974, 41 U.S.C. (& Supp. III) 401 et seq.,
/2/ to prescribe new notification requirements for the solicitation of
bids and proposals;  direct each agency to submit an annual report to
Congress on competition-promoting measures;  and require each agency
to designate an advocate for competition, with responsibility to
challenge barriers to competition.  Section 2732(a) of DEFRA, 98 Stat.
1195-1197, 41 U.S.C. (Supp. III) 417-419.  See generally H.R. Conf.
Rep. 98-861, 98th Cong., 2d Sess. 1422-1432 (1984);  S. Rep. 98-50,
98th Cong., 1st Sess. (1983);  S. Rep. 98-297, 98th Cong., 1st Sess.
(1983);  H.R. Rep. 98-1157, 98th Cong., 2d Sess. (1984);  Pet. App.
5a-8a.

   2. The final subtitle of CICA, at issue here, establishes a
"Procurement Protest System," which authorizes the Comptroller General
to entertain objections to agency procurement decisions and requires
the agency to stay the award or performance of the contract pending
his decision.  Section 2741(a) of DEFRA, 98 Stat. 1199-1203, 31 U.S.C.
3551-3556.  Under the statutory scheme, a prospective or actual bidder
for a procurement contract with an agency of the Executive Branch may
challenge the agency's solicitation of bids or its proposed or actual
award of a contract by filing a protest with the Comptroller General
(Section 3552), who "shall decide" the protest (Section 3553(a)).
Upon receipt of the protest, the Comptroller General must immediately
notify the federal agency involved (Section 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 Section 3553(b)(2)(A) and (B)).  /3/

   If the agency receives notice of the protest prior to 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 and notifies the Comptroller General that "urgent and
compelling circumstances which significantly affect interests of the
United States will not permit waiting for the decision of the United
States will not permit waiting for the decision of the Comptroller
General" (Section 3553(c)(2)).  /4/ If the agency receives notice of
the protest within 10 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
under that contract" (Section 3553(d)(1)).  The head of the agency
then may authorize performance of the contract while the protest is
pending 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" (Section 3553(d)(2)).

   The Comptroller General has discretion to determine how long he
will retain a bid protest under consideration and therefore how long
the contract will be delayed.  CICA contemplates that the Comptroller
General "shall issue a final decision concerning a protest within 90
working days," but he may extend that time -- and thereby further
delay the award or 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)).  CICA also directs the Comptroller
General to establish an "express option" for deciding protests that
are "suitable for resolution within 45 claendar days" (Section
3554(a)(2)) and permits him summarily to dismiss any protest that he
determines "is frivolous or which, on its face, does not state a valid
basis for protest" (Section 3554(a)(3)).

   If the Comptroller General "determines that the solicitation,
proposed award, or award does not comply with a statute or
regulation," he must recommend that the agency take corrective action
-- award the contract to the protester, 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 must report to the Comptroller General if it
has not fully implemented those recommendations within 60 days
(Section 3554(e)(1)).  Although the Comptroller General may not insist
that the agency comply with his recommendations, he may award a
prevailing protester its bid-preparation costs, as well as attorneys'
fee and costs incurred in pursuing the protest (Section 3554(c)(1)).
Such an award must be paid by the agency "out of funds available * * *
for the procurement of property and services" (Section 3554(c)(2)).
/5/

   b. The Comptroller General's practice of entertaining bid protests
predates the enactment of CICA in 1984.  The practice originally was
an outgrowth of his authority to "settle" accounts (31 U.S.C. 3526),
the rationale being that the Comptroller General was offering an
opinion on what he considered to be "required of a procurement
official in order to clear a public account." Wheelabrator Corp. v.
Chafee, 455 F.2d 1306, 1313-1314 (D.C. Cir. 1971).  Prior to CICA,
however, the Comptroller General had no authority to direct an agency
to cease the award or performance of a contract while he had a protest
under consideration.  36 Fed. Reg. 24791 (1971).  Rather, the
Comptroller General's pre-CICA regulations provided that if a protest
was filed with the General Accounting Office (GAO) before the contract
was awarded, "the agency will not make an award prior to resolution of
the protest except as provided in the applicable procurement
regulations" (4 C.F.R. 21.4 (1984);  see Robert E. Derecktor of Rhode
Island, Inc. v. Goldschmidt, 506 F. Supp. 1059, 1061-1062 (D.R.I.
1980)).

   The applicable "procurement regulations" for executive agencies
were contained in the Federal Acquisition Regulation (FAR), which is
promulgated jointly by DOD, NASA, and the General Services
Administration (GSA) to ensure uniformity in contracting throughout
the Executive Branch (see 48 C.F.R. 1.102).  The relevant pre-CICA
section of the FAR provided that when a protest was received by either
the agency or GAO prior to award of the contract, the "award shall not
be made until the matter is resolved, unless the contracting officer
determines that (i) (t)he materials and services to be contracted for
are urgently required;  (ii) (d)elivery or performance will be unduly
delayed by failure to make award promptly;  or (iii) (a) prompt award
will otherwise be advantageous to the Government" (48 C.F.R.
14.407-8(b)(4) (1984);  see also id. Section 14.407-8(b)(3)).  /6/
This standard was far less restrictive than the "urgent and compelling
circumstances" test under CICA (31 U.S.C. 3553(c)(2)).  Moreover, the
FAR did not require that performance be halted if a protest was filed
with the agency or GAO after the contract was awarded;  rather, the
FAR left the handling of post-award protests to the contracting
agency, with the suggestion that the contracting officer seek the
contractor's agreement to suspend performance pending resolution of
the protest (48 C.F.R. 14.407-8(c) (1984)).  The bid-protest
provisions of CICA were intended to change the fact that "GAO ha(d) no
power to stop a contract award or contract performance while a protest
is pending" (H.R. Rep. 98-1157, supra, at 24).

   B. The Response To The Stay Provisions By The President And Other
Executive Officials

   When the President signed the Deficit Reduction Act of 1984, he
"vigorously object(ed)" to the provision of CICA that
"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.)) /7/ 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
Consitution" (ibid.).  In response to the President's directive, the
Attorney General issued an opinion on October 17, 1984, in which he
concluded that the authorization for the Comptroller General to affect
the timing of contracts between Executive Branch agencies and private
parties is unconsitutional and is inseverable from the remainder of
the stay provisions in 31 U.S.C. 3553(c) and (d) (J.A. 53, 57).  /8/
On November 21, 1984, the Attorney General formally conveyed these
conclusions to the Speaker of the House of Representatives and the
President of the Senate, pursuant to statutory requirements that he
report to Congress whenever the Department of Justice will not defend
the constitutionality of an Act of Congress (J.A. 56-67).  Pet. App.
117a-118a.

   Based on the Attorney General's legal conclusions, the Director of
the Office of Management and Budget (OMB) instructed all Executive
Branch agencies to preceed with the procurement process "as though no
(stay) provisions were contained in the Act," although he stated that
the agencies "may voluntarily agree to stay procurements pending the
resolution of bid protests" and should cooperate with the Comptroller
General's investigation of bid protests (OMB Bull. No. 85-8, at 2
(Dec. 17, 1984);  Pet. App. 83a-84a n.10;  J.A. 52, 54).  This
position was implemented in CICA-related amendments to the FAR issued
in January 1985, which stated that executive agencies need not comply
with the stay provisions of CICA, but instead should follow the
pre-CICA standards in the FAR governing the award or performance of a
contract when a bid protest is pending.  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 of the House 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 who is
aggrieved by an Executive agency's failure to comply with (the CICA
stay) provisions may raise the constitutional issues for judicial
resolution" (J.A. 67).  See Pet. App. 118a.

   C. The Proceedings In This Case

   1. On November 17, 1984, the Army Corps of Engineers solicited 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
$1,033.00, 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, relying
on the consistent view of the Corps and the Comptroller General that
such a bid is nonresponsive.  The contract therefore was awarded to
Spiniello.  Pet. App. 3a-4a, 110a-111a;  J.A. 32-33;  C.A. App. 55-72.

   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 challenging the contract
award (id. at 4-10).  In an opinion dated March 27, 1985, the district
court held that Ameron was not entitled to a preliminary injunction
based on the merits of its challenge (Pet. App. 112a-115a), because
the alteration of the bond created doubt about the surety's
obligations and therefore "clearly justified" the Corps of Engineers'
rejection of Ameron's bid (id. at 115a).  But the court nevertheless
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 petitioners' contention that the CICA
provisions requiring such a delay are unconstitutional because they
vest the Comptroller General, an officer of the Legislative Branch,
with the power to alter the legal rights, duties, and relations of
persons outside that Branch (id. at 112a, 122a-123a, 129-130a).  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, which the
court found sufficient to make him an officer of the Executive Branch
(id. at 125a-128a).

   b. The Comptroller General denied Ameron's bid protest on April 29,
1985, almost two months after it was filed.  Like the Corps of
Engineers and the district court, the Comptroller General concluded
that "Ameron's bid was properly rejected as nonresponsive" because of
the alteration of the bond.  In re Ameron, Inc., No. B-218262 (J.A.
10-13).  The district court then made a final disposition of this case
in an opinion and orders dated May 28, 1985 (Pet. App. 135a-150a).
First, the court granted summary judgment in favor of the Corps of
Engineers on Ameron's challenge to the award of the contract to
Spiniello (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 Ameron and the Senate and
the Speaker and Bipartisan Leadership Group of the House of
Representatives, who had been permitted to intervene (id. at 146a,
149a-150a;  see C.A. Supp. App. 41-42).  Third, the court entered a
permanent injunction that (i) barred the Director of OMB and the
Secretary of Defense from applying OMB Bulletin 85-8 or the January
1985 amendments provisions of CICA, and (ii) directed them "to secure
the issuance of regulations which comply with and implement 31 U.S.C.
Section 3553" (Pet. App. 140a-146a, 150a).

   c. In response to the district court's broad injunction and the
advice of the Attorney General that executive agencies should comply
with the CICA stay provisions pending the appeal in this case, the
Director of OMB withdrew OMB Bulletin 85-8 (OMB Bull. No. 85-17 (June
4, 1985)) and DOD, NASA and GSA amended the FAR to require executive
agencies to stay the award or performance of a contract when a protest
is filed with the Comptroller General, unless one of the exceptions in
CICA itself is satisfied.  50 Fed. Reg. 25680-25681 (1985);  see 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 (Pet. App. 59a-100a).  The court of appeals first
held that the Comptroller General's ruling on Ameron's protest did not
render the case moot, because the question of the constitutionality of
CICA is capable of repetition yet evading review (id. at 66a, citing
Murphy v. Hunt, 455 U.S. 478, 482 (1982), and Roe v. Wade, 410 U.S.
113, 125 (1973)).  The court reasoned that the issue would evade
review because protest ordinarily will be resolved by the Comptroller
General within 90 days, and tha the controversy is capable of
repetition because Ameron is "a company frequently seeking government
contracts" and had "represented that it is likely to be faced with a
similar situtation again:  desiring to protest a contract decision but
being unable to obtain the statutorily guaranteed stay while its
protest is being reviewed" (Pet. App. 66a).  /9/

   On the merits, the court declined to reach the question whether the
authorization in 31 U.S.C. 703(e)(1) for Congress to remove the
Comptroller General is constitutional, because it believed that
question was not ripe judicial resolution in the absence of an attempt
by Congress to remove the Comptroller General (Pet. App. 72a-74a).
The court also noted the parties' agreement 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).  But it
avoided this difficulty by characterizing 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, the court held that "the Comptroller
General may constitutionally exercise executive functions in reviewing
bid protests" (id. at 77a).  /10/ The court accordingly affirmed the
district court's declaratory judgment that the CICA stay provisions
are constitutional, although it narrowed the scope of the injunctive
relief (id. at 80a-88a, 102a, 104a).  /11/

   4. After the panel rendered its first opinion, this Court handed
down its decision in Synar.  The Court held in Synar that the Blanced
Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177,
Tit. III, 99 Stat. 1038, violated the separation of powers by vesting
executive powers in the Comptroller General, because Congress has
reserved the power to remove the Comptroller General and therefore
maintains influence over him.  Slip op. 10-16;  id. at 6-11 (Stevens,
J., concurring in the judgment) (the Comptroller General is an agent
of Congress).

   5. In light of Synar, the court of appeals granted rehearing and,
on December 31, 1986, rendered a new opinion (Pet. App. 1a-58a).  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 Comptorller may not
exercise any power which Congress itself may not possess" (id. at
4a-5a;  accord, id. at 39a-40a (Garth, J., concurring)).  /12/ 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 have a binding effect on 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" (Pet. App. 10a).  But the court rejected the
contentions (i) that INS v. Chadha, 462 U.S. 919 (1983), bars Congress
from bringing about that result except by the normal legislative
process of bicameral action and presentment to the President, and (ii)
that Synar bars Congress from circumventing these limitations by
delegating to its agent, the Comptroller General, the power to take
action that has a legal effect outside the Legislative Branch (Pet.
App. 23a).  The court reasoned that Congress's "legislative Powers"
under the Constitution include the power to investigate -- and, the
court believed, to influence -- contract awards by executive agencies,
and that Congress, in enacting CICA, had merely delegated those powers
to the Comptroller General (id. at 25a-26a).  In the court's view,
Congress may "delay procurement activity" -- by means of a stay
terminable by an agent of Congress -- in pursuit of its goals of
investigating and influencing the actions of an executive agency (id.
at 26a & n.9).

   The majority also rejected the contention that CICA impermissibly
authorizes the Comptroller General to participate in the execution of
the procurement laws (Pet. App. 27a-31a).  The court 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" (id. at 29a);  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 decision on the protest (id. at 30a).  The majority
acknowledged that Congress 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
that those 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" (id. at 15a, 34a).  But, adopting a balancing
approach (id. at 32a-33a), the majority concluded that this intrusion
by the Comptroller General into the procurement process was minimal
and was justified by Congress's desire to investigate contract actions
while they are still remediable (id. at 34a-36a).

   b. In a concurring opinion (Pet. App. 38a-44a), Judge Garth
believed 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 * * * than
it is a theoretical exercise in questioning whether, in embryo, a
dangerous violation of principle lurks beneath an apparently benign
legislative mechanism" (ibid. (imphasis 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).  /12/

   SUMMARY OF ARGUMENT

   I. 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 the
separation of powers between the Legislative and Executive Branches or
with this Court's decisions in INS v. Chadha, 462 U.S. 919 (1983), and
Bowsher v. Synar, No. 85-1377 (July 7, 1986).  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 law, in
conformity with the bicameralism and presentment requirements of the
Constitution.  An Synar makes clear that Congress cannot circumvent
those requirements by delegating power to the Comptroller General,
since Congress retains influence over the Comptroller General by
virtue of its statutory authority to remove him from office.

   The court of appeals erred in holding that the CICA stay provisions
could be sustained as furthering Congress's legislative power to
investigate procurement by the Executive Branch.  Congress's implied
power of investigation, like its expressly enumerated prowers, is
subject to limitations in the Constitution itself, including the
fundamental principle of separation of powers that bars an agent of
Congress from controlling activities in an executive agency.  Nor can
the stay provisions be sustained as furthering a supposed power of
Congress, acting through the Comptroller General, to "influence"
activities in the Executive Branch.  Although Members, committees and
agents of Congress often seek to exert such influence, that practice
does not find recognition in the Constitution, and it therefore does
not furnish a rationale for permitting the Comptroller General to
continue a stay of procurement activities by an executive agency until
he has had an opportunity to influence them.

   The CICA stay provisions differ from a report-and-wait mechanism,
which mandates postponement of action by the Executive Branch for a
determinate period of time specified in a duly enacted law, in order
to afford Congress an opportunity to overturn the action by passing a
new law.  CICA, by contrast, delegates to the Comptroller General, an
agent of Congress, the power to determine the length of a stay of
procurement activity on a case-by-case basis and is not intended to
afford Congress an opportunity to act by legislation.  The CICA stay
provisions likewise cannot be sustained under a balancing test drawn
from Nixon v. Administrator of Gen. Services, 433 U.S. 425 (1977), or
CFTC v. Schor, No. 85-621 (July 7, 1986).  Those cases did not involve
a violation of the structural provisions of the Constitution or an
effort by Congress to impose its will on a coordinate Branch by a
means short of a duly enacted law, as in Chadha, Synar and this case.
But even if a balancing test were appropriate, the interest in
facilitating bid-protests does not weigh significantly in favor of
vesting an agent of Congress with control over Executive Branch
activities, since Congress, without violating the separation of
powers, can provide for bid protests to be entertained by boards of
contracts appeals in executive agencies or by the courts, as indeed
CICA also contemplates.

   II. The stay provisions are severable from the remainder of the
procurement-protest title of CICA, because that remainder is fully
operative as a law and serves the important purpose of regulating the
Comptroller General's investigation of bid protests.  The Court should
decline the suggestion that it sever a provision in another statute --
the authorization for Congress to remove the Comptroller General,
which was first enacted in the Budget and Accounting Act of 1921 -- in
lieu of severing the stay provisions in CICA itself.  As this Court
recognized in Synar, the removal provision was an important feature of
the 1921 Act, because it enables Congress to influence the Comptroller
General's various investigatory activities.  Moreover, legislation
enacted since 1921 confirms Congress's intention that the Comptroller
General be an officer of the Legislative Branch who performs his
duties on behalf of Congress.  Because Congress as a whole gave little
attention to the CICA stay provisions when they were enacted, there is
no reson to believe that Congress wanted the courts to transform the
Office of Comptroller General in order to save the stay provisions.

   ARGUMENT

   I. THE STAY PROVISIONS OF THE COMPETITION IN CONTRACTING ACT
VIOLATE THE SEPARATION OF POWERS UNDER THE CONSTITUTION

   A. Chadha and Synar Establish That Congress May Not Vest The
Comptroller General With The Power To Control The Timing Of Contracts
Between Executive Branch Agencies And Private Parties

   1. The first three Articles of the Constitution "'divide the
delegated powers of the * * * Federal Government into three defined
categories, Legislative, Executive, and Judical'" (Synar, slip op. 6
(quoting Chadha, 462 U.S. at 951)), and they assign each category of
delegated powers to a separate Branch:  "All legislative Powers * * *
shall be vested in a Congress of the United States" (Art. I, Section
1);  "The executive Power shall be bested in a President of the United
States of America" (Art. II, Section 1, Cl. 1);  and "The judicial
Power of the United States shall be vested in one supreme Court, and
in such inferior Courts as the Congress may from time to time ordain
and establish" (Art. III, Section 1).

   The Constitution also prescribes the manner in which each of the
three separate Branches may exercise its specially assigned powers.
The legislative power granted by Article I is "'the authority to make
laws.'" Buckley v. Valeo, 424 U.S. 1, 139 (1976) (quoting Springer v.
Phillippine Island, 277 U.S. 189, 202 (1928)).  Indeed, as Alexander
Hamilton put it in explaining the import of the Necessary and Proper
Clause (Art. I, Section 8, Cl. 18):

         What is a LEGISLATIVE power but a power of making LAWS?  What
      are the means to execute a LEGISLATIVE power but LAWS?

   The Federalist No. 33, at 202 (C. Rossiter ed. 1961);  accord,
M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 412 (1819) ("Could it
be necessary to say, that a legislature should exercise legislative
powers through the enactment of laws requires the approval of both
Houses and presentment to the President (Art. I;  Art. I, Section 7,
Cls. 2 & 3).  These procedural hurdles were intended to guard against
oppressive, improvident or ill-considered measures and thereby to
stand as formidable barriers between the Legislative Branch on the one
hand and the coordinate Branches and the people on the other.  Chadha,
462 U.S. at 946-951.

   The judicial power conferred by Article III, in contrast, limits
the federal courts to the adjudication of "Cases" and "Controversies"
that are properly brough before them by parties outside the Judicial
Branch.  This is an essential institutional limitation on the ability
of the courts to take action that may profoundly affect the interests
of the coordinate Branches and individual members of society (Valley
Forge Christian College v. Americans United for Separation of Church &
State, Inc., 454 U.S. 464, 471-474 (1982)), and it reflects "'concern
about the proper -- and properly limited -- role of the courts in a
democratic society'" (Allen v. Wright, 468 U.S. 737, 750 (1984),
quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).  Similarly, the
executive power granted by Article III is subject to its own
limitations, most prominently the fact that, aside from functions
conferred on the President by the Constitution itself, the Executive
may act only pursuant to and in the manner prescribed by a previously
enacted law.  See Art. II, Section 3 (the President "shall take Care
that the Laws be faithfully executed");  Art. I, Section 9, Cl. 7 ("No
Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law");  Synar, slip op. 18 ("undoubtedly the
content of the Act determines the nature of the executive duty");  cf.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587-588 (1952).

   The Framers thus made clear that the three Branches are to "be
largely separate from one another" (Buckley, 424 U.S. at 120), and
they expressly identified those occasions on which one Branch may
depart from its accustomed mode of operation and play a role in the
actions of another Branch -- such as the President's veto power (Art.
I, Sections 7) and the Senate's advice and consent function (Art. II,
Section 2, Cl. 2).  But where the Constitution does not expressly
authorize one Branch to participate in the affairs of another, such
participation is prohibited.  Synar, slip op. 7;  Chadha, 462 U.S. at
955-956;  Buckley, 424 U.S. at 127;  see The Federlist Nos. 47 & 48
(J. Madison).  This division of powers among the Branches -- and the
limitations on the manner in which each Branch may bring its will to
bear on the coordinate Branches and the people -- were intended by the
Framers to be "the foundation of a structure of government that would
protect liberty." Synar, slip op. 6.  Under that structure, once
Congress has made its policy choice and has passed a law, the exercise
of the legislative power is completed and Congress's role with respect
to the measure is at an end.  Any official responsibility for
implementation of the law by the United States Government thereafter
devolves upon the Executive Branch in carrying the law into effect,
and upon the Judicial Branch in deciding cases of controversies
arising under the law.

   As we explain below, the stay provisions of CICA have two
independent but overlapping defects under these separation-of-powers
priciples:  first, they permit Congress (through the Comptroller
General) to intervene in the execution of the law by contracting
agencies;  and second, they permit Congress (through the Comptroller
General) to take action that affects not only executive agencies, to
take action that affects not only executive agencies, but also private
parties, without following the "finely wrought and exhaustively
considered" procedures (Chadha, 462 U.S. at 951)-bicameral approval
and presentment to the President-that the Constitution prescribes as
necessary prerequisites for Congress to work its will.

   2.a. The Framers were especially attentive to Montesquieu's warning
that "'there can be no liberty where the legislative and executive
powers are united in the same person, or body of magistrates'" (The
Federalist No. 47, at 302 (J. Madison)), and they therefore "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).  The President appoints the Officers of
the United States who assist him in the execution of the laws, subject
to the advice and consent of the Senate (Art. II, Section 2, Cl. 2),
and Congress may remove those Officers only upon impeachment by the
House and conviction by the Senate (Art. I, Section 2, Cl. 5;  Art. I,
Section 3, Cl. 6).  In Synar, the Court Concluded that "(a) direct
congresssional 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).  As the
Court noted in Synar, this limitation on Congress's power was
confirmed by the First Congress's explicit rejection of a
congressional role in the removal process (id. at 7-8), and was
recognized 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, 626-627 (1935).  Slip op. 8-10.

   These principles were found in Synar to be fully applicable to the
Comptroller General, who may be removed from office only by joint
resolution of Congress (or impeachment).  31 U.S.C. 703(e)(1).  It is
irrelevant, the Court explained, whether it seems likely that Congress
will actually remove the Comptroller General, 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." Slip op. 14.
Moreover, the Court stressed that the removal provision was included
in the Budget and Accounting Act, of 1921 (Section 303, 42 Stat.
23-24) for the very purpose of ensuring congressional control over the
Comptroller General (slip op. 12-13), and that "political realities"
refute the notion that the Comptroller General is free from influence
by Congress, because "Congress has consistently viewed the Comptroller
General as an officer of the Legislative Branch" (id. at 14-15);  id.
at 11 (Stevens, J., concurring in the judgment) ("the Comptroller
General is properly characterized as an agent of the Congress").

   On this basis, the Court held in Synar that Congress had acted
unconstitutionally in conferring powers on the Comptroller General
under the Balanced Budget and Emergency Deficit Control Act that were
executive in nature.  By providing for participation in the execution
of the Act by an officer who was subject to removal by Congress,
"Congress in effect ha(d) retained control over the execution of the
Act and ha(d) intruded into the executive function" (slip op. 18);
see id. at 16 (the Comptroller General "may not be entrusted with
executive powers").

   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 the budget reductions.  But that is not what Congress
did in CICA.  Rather, as in Synar, Congress eschewed any definite rule
in the law itself and instead vested the Comptroller General with
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 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 under 31 U.S.C. 3553(c)(2) or
(d)(2)), the timing of the contract is legally subject to the complete
control of the Comptroller General:  he may dismiss the protest at any
time if he finds that it is "frivolous" or "does not state a valid
basis for protest" (Section 3554(a)(3));  he may designate the case
for expedited disposition under the "express option" (Section
3554(a)(2);  he may delay his decision for 90 working days (Section
3554(a)(1));  or he may extend that time still further if he
determines that "specific circumstances of the protest require a
longer period" (Section 3554(a)(1)).  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).

   Indeed, the legislative history establishes that the very purpose
of CICA 's bid-protest provisions was to enable the Comptroller
General to intervene in and affect the execution of the procurement
laws.  As the Conference Report explains, the bid-protest provisions
were intended by Congress to be an "enforcement mechanism * * * to
insure that the madate for competition is enforced" (H.R. Conf. Rep.
98-861, supra, at 1435).  Similarly, the House Report observes that
CICA responded to complaints that "GAO has no power to stop a contract
award or contract performance while a protest is pending" (H.R. Rep.
98-1157, supra, at 24) and that CICA therefore "establishes an
enforcement mechansim which prohibits the award or performance of a
contract while a protest is pending" (id. at 25).  The court of
appeals also acknowledged that Congress conferred bid-protest powers
on the Comptroller General for the purpose of causing procurement
officials to "go about their business differently" (Pet. App. 34a) and
that CICA gives the Comptroller General leverage over the contracting
process because procurement officials might find it necessary as a
practical matter to exercise their discretion so as to minimize
conflict with the Comptroller General and thereby minimize the
potential for delay (ibid.).  The Constitution prohibits Congress from
assuming, either for itself or for its agent, such a role in the
execution of the laws.

   c. 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).  Congress recognized that the
Comptroller General's role under CICA would be essentially identical
to that of a court (or an adjudicatory body within an executive
agency, such as a board of contract appeals (see p. 43, infra)), and
that, like a court, he must seek to ensure "that vendors wrongly
excluded from competing for government contracts receive equitable
relief" (H.R. Conf. Rep. 98-861, supra, at 1435).  See H.R. Rep.
98-1157, supra, at 23 ("Although the courts also decide constractual
disputes, GAO has become the principal forum for resolving such
procurement protests.").  /15/ Because of this similarity of
functions, Congress felt compelled to provide -- in a section entitled
"(n)onexclusivity 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 of 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 would facilitate his performance of adjudicatory functions
that are essentially identical to those assigned to the Executive and
Judicial Branches -- rather than facilitate the performance of the
legislative function of passing new laws.  /16/ Chadha, 462 U.S. at
952-954;  Synar, slip op. 21 (Stevens, J., concurring in the
judgment).  Synar does not permit an officer who is subservient to
Congress to intervene in this manner in the affairs of another Branch.

   3. 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 one -- House veto conflicted with the constitutional
requirement that all actions by the Legilsative Branch that alter "the
legal rights, duties, and relations" of persons outside that Branch
must be taken by Congress it self, pursuant to the lawmaking
provisions in Article I (462 U.S. at 944-959).  The Court explained
(id. at 954-955 (footnote omitted)):

         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 deligate 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
      * * * .

   Of course, all three Branches may take action that has some impact
on the legal rights, duties, and relations of persons outside that
branch.  But as Chadha and Synar recognize, in order for the actions
of any one Branch to have a legally binding effect on persons outside
that Branch, the action must be consistent with constitutional
limitations unique to that Branch.  In the case of the Legislative
Branch, this means that any action that will have such an effect must
be approved by both Houses of Congress and presented to the President.

   The reasoning of Chadha is fully applicable 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 lengthening the stay, the Comptroller General, as an
responsible contracting officials in the Executive Branch to award or
direct performance of the contract at whatever time existing law would
otherwise permit.  The Comptroller General's actions also affect the
rights of private parties -- in this case:  (i) the successful bidder
(Spiniello), which was denied the benefit of the contract for as long
as the Comptroller General chose to keep the protest under submission,
but then was granted the right to proceed when the Comptroller General
rendered his decision;  and (ii) the protester (Ameron), which
obtained the benefit of a stay of performance simply by invoking the
jurisdiction of the Comptroller General, but then lost its right to a
stay by the action of the Comptroller General in ruling on the bid
protest.

   In an analogous case, the District of Columbia Circuit invalidated
a statutory 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).  Because Synar establishes that "the Comptroller
General may not exercise any power which Congress itself may not
possess" (Pet. App. 5a), the rationale of Pierce requires the
conclusion that the Comptroller General likewise cannot be given the
power to "lift the congressionally-imposed restrictions" on the timing
of government contracts.  Conversely, if the stay provisions of CICA
are constitutional, then there would appear to be no reason why
Congress could not also pass a statute that in effect delegated the
power given to the Comptroller General under CICA to one House or
committee of Congress.  The leverage over the actions of the Executive
Branch that would be afforded by vesting Congress (or its Houses,
committees, and agents) with the authority to determine when executive
actions may be implemented would substantially erode the structural
protections of liberty that are afforded by the separation of powers
under the Constitution and this Court's decisions in Chadha and Synar.

   4. Respondents seize upon the Court's statement in Synar that the
Comptroller General there was given "ultimate authority" to determine
the amount of the budget cuts.  Slip op. 17.  In this case,
respondents argue, the Comptroller General does not have such
"ultimate authority" because his decision on the merits of the bid
protest is not binding on the contracting agency.  Senate & Ameron Br.
in Opp. 6;  Spkr. et al. Br. in opp. 13, 15;  see also Lear Siegler,
slip op. 3544-3547, 3552.

   We of course agree with respondents' apparent concession that,
under Synar, Congress could not require the contracting agency to
follow the decision of the Comptroller General on the merits of a bid
protest.  See Synar, slip op. 11 & n.5 (Blackmun, J., dissenting);  42
Op. Att'y Gen. 405, 415-416 (1969);  Miguel v. McCarl, 291 U.S. 442,
454, 456 (1934);  cf. S. Rep. 95-715, 95th Cong., 2d Sess. 17, 23-24
(1978).  The Comptroller General's decision in such a situation would
embody his interpretation of the applicable law 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 id. at 17-18).
But "congressional meddling with the administration of the law outside
of the legislative process is impermissible" (id. at 11 (White, J.,
dissenting)) whenever it has a legally binding impact in the course of
that process, even if it stops short of directing the final
disposition.

   For example in Synar itself, Congress clearly would have been
barred from authorizing the Comptroller General to direct the
President to sequester funds on a temporary basis, even if the
President were free to spend the sequestered funds after the directive
expired.  Similarly, in Chadha, Congress would have been barred from
authorizing one of its Houses to pass a resolution that merely
postponed the effective date of the Attorney General's suspension of
deportation (and thereby postponed the alien's eligibility for
adjustment of status and attendant benefits), even if the Attorney
General were free to give effect to his order at a later date.  In
either case, the directive by the Comptroller General or one House of
Congress would have had a binding effect on the "rights, duties, and
relations" of the responsible executive official and private parties
under existing law -- just as a preliminary injunction entered by a
court imposes legal obligations on the defendant and alters the legal
relations of the parties for as long as it remains in effect.  Walker
v. City of Birmingham, 388 U.S. 307 (1967);  United States v. United
Mine Workers of America, 330 U.S. 258, 289-295 (1947).

   Similarly, under CICA, the fact that the contracting agency and the
successful bidder will not be permanently barred from proceeding with
the contract once the Comptroller General lifts the stay does not undo
the fact that they are prevented from proceeding for as long as the
Comptroller General retains the matter under submission.  In an
analogous situation, it clearly would be regarded as a radical
departure from separation-of-powers principles if Congress passed a
statute that (i) provided for a stay of the mandate of an Article III
court upon the motion of the losing party to case in order to allow
that party to file a "protest" of the court's decision with the
Comptroller General, and (ii) vested the Comptroller General with
discretion to determine the duration of the stay necessary to enable
him to render a decision and submit an amicus "recommendation" to the
court.  The fact that the Comptroller General would not have "ultimate
authority" (in the sense that respondents use that term) over the
judgment of the Article III court (cf. Hayburn's Case, 2 U.S. (2
Dall.) 409 (1927);  United States v. O'Grady, 89 U.S. (22 Wall.) 641,
647-648 (1874);  Chicago & Southern Air Lines v. Waterman S.S. Corp.,
333 U.S. 103, 113-114 (1948)) would not eliminate the distinct
separation-of-powers defect arising from the Comptroller General's
ability to control the timing of the Judicial Branch's disposition of
a pending matter.  The same defect is present where the matter is
pending before the Executive Branch.

   The foregoing discussion makes clear that the term "ultimate
authority" was not used in Synar to suggest that the
separation-of-powers principles articulated by the Court apply only
where Congress has authorized the Comptroller General to make a
permanently binding disposition of a matter pending before the
Executive Branch.  Rather, the Court's use of the term "ultimate
authority" merely emphasized that no other officer, not even the
President of the United States, could overrule or disregard the
particular action of the Comptroller General there at issue, which
concerned the amount of budget cuts for the fiscal year.  This case
concerns the timing of executive action, and under CICA, the
Comptroller General, not the responsible officer of the Executive
Branch, has the "ultimate authority" over that issue for as long as
the Comptroller General retains the bid protest under submission.
Congress's vesting of such interim control in its agent likewise
violates the separation of powers, because "as Chadha makes clear,
once Congress makes its choice in enacting legislation, its
participation ends.  Congress can thereafter control the execution of
its enactment only indirectly -- by passing new legislation" (Synar,
slip op. 18).  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 essential
aspects of administrative decisionmaking, and delay in fact can
seriously disrupt the contracting process of executive agencies.  See
Department of HHS v. FLRA, No. 86-2619 (4th Cir. Apr. 19, 1988) (en
banc), slip op. 17.  For this reason, under Chadha and Synar, Congress
cannot vest in the Comptroller General the power to control that
timing.  /17/

   B. The Stay Provisions Cannot Be Sustained As A Necessary And
Proper Means Of Implementing Congress's Legislative Powers

   1. In its first opinion, the court of appeals expressly
acknowledged that the Comptroller General's powers under CICA are
"executive" in nature (Pet. App. 68a, 77a, 79a;  id. at 96a-97a
(Becker, J., concurring in part)).  The court also appeared to
acknowledge that the Comptroller General may not 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 in part)).  The court avoided that
result only by holding 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 p. 13,
supra), that reasoning directly conflicts with Synar.  It should have
followed inexorably that the CICA stay provisions are
unconstitutional.

   Nevertheless, on rehearing, the court again sustained the stay
provisions.  This time, it concluded that the Comptroller General's
powers under CICA are not 'executive" after all, but that giving him
control over the length of a stay of contracting activity instead
could be justified as a reasonable means of facilitating Congress's
exercise of its "legislative" powers -- principally its power of
investigating the activities of contracting agnecies (Pet. App.
23a-26a).  To be sure, "the power to investigate is inherent in the
power to make laws because '(a) legislative body cannot legislate
wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change.'"
Eastland v. United States Servicemen's Fund, 421 U.S. 491, 504 (1975)
(quoting McGrain v. Daugherty, 273 U.S. 135, 175 (1927));  see also
Barenblatt v. United States, 360 U.S. 109, 111 (1959);  Watkins v.
United States, 354 U.S. 178, 187, 194-195 (1957);  Kilbourn v.
Thompson, 103 U.S. 168 (1880).  And this power permits Congress to
conduct "probes into departments of the Federal Government to expose
corruption, inefficiency or waste" (Watkins, 354 U.S. at 187),
especially since the executive departments are created by law and are
the subject of potential legislation in virtually all aspects of their
operation (Daugherty, 273 U.S. at 177-178).  But the invocation of a
proper legislative purpose does not insulate the means by which
Congress chooses to exercise its powers from other limitations in the
Constitution.  M'Culloch v. Maryland, 17 U.S. (4 Wheat.) at 421
(Necessary and Proper Clause permits measures that "are not
prohibited, but consist(ent) with the letter and spirit of the
constitution").

   That principle was applied in the separation-of-powers context in
Buckley.  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 Appointments Clause by clear implication prohibits if
      from doing so.

   Likewise, in Chadha, Congress's power over naturalization (Art. I,
Section 8, Cl. 4) did not justify the exercise of a one-House veto of
an executive decision concerning an alien (see 462 U.S. at 940-941);
and in Synar, Congress' power over appropriations (Art. I, Section 9,
Cl. 7) did not permit it to give the Comptroller General a role in the
execution of appropriations laws (see slip op. 6 (White, J.,
dissenting)).  A fortiori, Congress's power to investigate procurement
activities of the Executive Branch -- which, in contrast to the powers
at issue in Buckley, Chadha and Synar, is not even expressly mentioned
in the Constitution -- furnishes no basis for Congress to enact a
mechansim that violates the separation of powers under the
Constitution.  Cf. Watkins, 354 U.S. at 195-201.

   Moreover, nothing in the nature of Congress' power of investigation
suggests that Congress also possesses, as a necessary incident
thereto, the power to control the occurrence of events outside the
Legislative Branch while it is investigating them (unless, of course,
Congress passes a law regulating those events).  To the contrary, an
investigator typically takes the facts as he finds them.  It follows
that right of Congress to confer the power of investigation on its
committees or agents, such as the Comptroller General, does not imply
a right in Congress to confer on its committees or agents the power to
control the unfolding of the subject matter being investigated.  /18/

   2. The court of appeals appeared to recognize that the sections of
CICA that give the Comptroller General authority to control the timing
of the award or performance of a contract cannot be justified on the
ground that they assist Congress in carrying out its power of
investigation.  The court therefore held that the stay provisions
could be justified as furthering a supposed power of Congress to
attempt to influence activities in the Executive Branch -- a power
which, the court reasoned, requires that executive activities be
frozen until Congress, through its agent, submits its opinion to the
responsible executive official.  This reasoning is seriously flawed.

   Congressional investigation of matters in the Executive Branch and
elsewhere stands on a far firmer constitutional footing than do
congressional efforts to influence decisions as they are being made in
the Executive Branch.  In explaining the basis of Congress's authority
to investigate, the Court has stated that the Houses of Congress
"possess not only such powers as are expressly granted to them by the
Constitution, but such auxiliary powers as are necessary and
appropriate to make the express powers effective" (Daugherty, 273 U.S.
at 173).  The power to investigate is one such "auxiliary power." By
contrast, the ability to "influence" a coordinate Branch through the
submission of advice and recommendations or by other means short of
passing a law is not an "auxiliary power" that is necessary to make
effective Congress's express power to pass laws.  Unlike
investigation, through which Congress gathers information for use
within its own assigned sphere and which therefore is one step in the
lawmaking process, the exertion of direct influence on officials of
another Branch bypasses the formal lawmaking process altogether and
seeks to affect decisions to be made under existing law and outside of
Congress's assigned sphere.

   It is significant in this respect that where the Framers intended
to confer on one of the Branches a formal constitutional role in
submitting its advice and recommendations to another Branch, they
expressly so provided.  Compare Art. II, Section 2, Cl. 2 (the
President shall have the power, "by and with the Advice and Consent of
the Senate," to appoint officers and make treaties);  Art. (II,
Section 3 (the President "shall from time to time** * * recommend to
(Congress's) Consideration such Measures as he shall judge necessary
and expedient").  /19/ The fact that the Constitution does not
expressly provide for Congress to give advice and make recommendations
concerning matters arising the Executive Branch (other than the
nomination and appointment of officers and making of treaties)
indicates that Congress has no constitutionally based right, as such,
to do so -- although of course the practical dialogue between the
political Branches may give rise to numerous occasions for committees,
Members and agents of Congress to express their views in a manner that
does not rise to the level of recognition in the Constitution itself.

   The Court in fact has recognized this point in considering the
scope of the protection afforded by the Speech or debate Clause, Art.
I, Section 6, Cl. 1.  As the Court stated in Gravel v. United States,
408 U.S. 606, 625 (1972):  "Members of Congress are constantly in
touch with the Executive Branch of the Government and with
administrative agencies pp they may cajole, and exhort with respect to
the administration of a federal statute -- but such conduct, though
generally done, is not protected legislative activity." /20/ Accord,
United States v. Brewster, 408 U.S. 501, 512-513 (1972);  Doe v.
McMillian, 412 U.S. 306, 315-316 (1973);  Hutchinson v. Proxmire, 443
U.S. 111, 131-133 (1979).

   We do not suggest that it is imporper for Congress to provide for
the Comptroller General to express his view on procurement matters.
We suggest only that Congress's interest in exerting influence on the
Executive Branch by means short of enacting a law is not not part of
the "legislative Powers" conferred on Congress by Article I itself and
thus is not an interest of independent constitutional stature.  /21/
It necessarily follows that Congress's desire to assure that its
agent, the Comptroller General, will have an opportunity to exert
influence on decisionmaking by officers in the Executive Branch before
they carry their procurement decisions into effect does not justify
the breach of fundamental separation-of-powers principles that is
occasioned by the provisions of CICA that authorize the Comptroller
General to determine the duration of stay of procurement activities.

   C. The Stay Provisions Cannot Be Sustained By Analogy To "Report
And Wait" Provisions

   Respondents contend (Senate & Ameron Br. in Opp. 4, 7-12;  Spkr. et
al. Br. in Opp. 7, 13) that the stay provisions of CICA resemble the
so-called "report-and-wait" device that was discussed in Sibbach v.
Wilson & Co., 312 U.S. 1, 14-15 (1941);  Chadha, 462 U.S. at 935 n.9;
and Alaska Airlines, Inc. v. Brock, No. 85-920 (Mar. 25, 1987), slip
op. 11 & n.12.  The two devices are, however, quite different;  even
the court of appeals concluded that "(t)he stay provision at issue in
CICA is not a report and wait provision" (Pet. App. 26a n.9).

   1. Under a typical report-and-wait provision, an agency must notify
Congress of action it has taken, and the effective date of the action
is postponed for a determinate period prescribed by law in order to
afford Congress itself an opportunity to overturn it by passing a law.
 Sibbach, for example, involved the statute providing that the Federal
Rules of Civil Procedure promulgated by this Court "'shall not take
effect until they shall have been reported to Congress by the Attorney
General at the beginning of a regular session thereof and until after
the close of such session.'" 312 U.S. at 8 (quoting Act of June 19,
1934, ch. 651, Section 2, 48 Stat. 1064).  Similarly, in Chadha, the
Court observed that if the legislative veto provision was severed, the
remainder of the statutory provision there at issue (8 U.S.C. 1254(c))
would resemble a report-and-wait provision:  it would require the
Attorney General to report a suspension of deportation to Congress,
and the order of deporation would not be cancelled until the close of
the following Session of Congress, during which time Congress could
enact a law overturning the Attorney General's decision (assuming that
no other provision of the Constitution barred Congress from singling
out an individual alien in this manner) (462 U.S. at 935 & n.8, 954
n.17).  Finally, the statute involved in Alaska Airlines required the
Secretary of Labor to transmit proposed regulations to committees of
the Senate and House and to wait 30 "legislative days" -- defined to
mean days furing which both the House of Senate were in session --
before issuing the regulations in final form.  Slip op. 11, & n.12,
citing 49 U.S.C. App. 1552(f)(3).

   Thus, the report-and-wait provisions discussed in Sibbach, Chadha
and Alaska Airlines each mandated postponement of action by the
Judicial or Executive Branch for a period of time that was specified
by Congress itself in the authorizing law.  Those statutes did not
delegate to an agent of Congress within the Legislative Branch, such
as the Comptroller General, the power to decide on a case-by-case
basis how long the stay of the decision by a coordinate Branch would
last.

   2. The Senate and Ameron contend (Br. in Opp. 2-3, 9-10), however,
that the CICA stay provisions are comparable to those report-and-wait
provisions because the length of the delay was determined by
Congress's adjournment at the close of a session (in Sibbach and
Chadha) or from day to day (in Alaska Airlines, which established the
number of elapsed "legislative days").  Respondents argue that because
adjournment is congressional action "short of lawmaking" (Senate &
Ameron Br. in Opp. 10), Congress may permit the length of a stay under
CICA to be determined by other action of the Legislative Branch short
of lawmaking -- namely a decision of the Comptroller General.  We may
assume for present purposes that the statutes in Sabbach, Chadha and
Alaska Airlines that tied the delay of Judicial or Executive Branch
action to adjournments by Congress present no constitutional
difficulties, although the Court did not actually consider that issue
in any of those three cases.  /22/ But for a number of reasons, it
does not follow that the CICA stay provisions are constitutional.

   a. The principal purpose of a report-and-wait provision is to is to
afford Congress the opportunity to overturn administrative action
through the passage of a law, which requires bicameral action and
presentment to the President.  See Sibbach, 312 U.S. at 14-15 & n.17;
Chadha, 462 U.S. at 935 & nn.8, 9;  Alaska Airlines, slip op. 11 &
n.12.  Because adjournment terminates Congress's ability to pass such
a law, adjournment also may appropriately terminate the stay of
administrative action under a statutory report-and-wait provision.  By
contrast, the purpose of a stay under CICA is not to afford Congress
an opportunity to pass a law;  as the court below explained, "reports
do not necessarily reach Congress (via the Comptroller General's
annual summary) until after (contract) execution is completed," and
"(o)ften, therefore, legislation based on these reports will come too
late to affect the specific executive actions about which Congress
receives reports" (Pet. App. 26a n.9).  In this case, therefore, there
is no valid legislative action that the contracting agency is being
required to wait for.  /23/

   b. The Constitution expressly grants each House of Congress the
power to "adjourn from day to day" (Art. I, Section 5, Cl. 1), subject
to the consent of the other House for an adjournment of more than
three days (Art. I, Section 5, Cl. 4), and a resolution of adjournment
is expressly excepted from the requirement of presentment to the
President (Art. I, Section 7, Cl. 3).  Thus, although the stays
imposed by the report-and-wait provisions in Sibbach, Chadha and
Alaska Airlines were terminable by action of Congress that did not
satisfy the presentment requirement of Article I, the Congressional
action question -- adjournment -- is expressly excepted from that
requirement.  See Chadha, 462 U.S. at 955-956;  Synar, slip op. 7.
Those report-and-wait provisions therefore furnish no support for
vesting stay-terminating power in the Comptroller General, whose
actions are not covered by any similar exception to the bicameralism
and presentment requirements.

   c. An adjournment by Congress is an objectively identifiable event
that has independent public significance.  Adjournment affects the
ability of Congress to legislate generally, and it therefore almost
invariably occurs without reference to any particular administrative
action that has been reported to Congress.  As a result, the ability
of Congress to lengthen or shorten the stay by deciding when to
adjourn is unlikely in itself to give rise to significant influence by
Congress over any discrete executive decision.  By contrast, a stay of
a contract award or performance under CICA is terminated by a decision
of the Comptroller General that directly relates to -- and only to --
that contract, and therefore effectively gives the Comptroller General
focused discretion to determine when that contract will be awarded or
performed.  The potential for leverage over the particular executive
decision obviously is far greater in that situation than under a
typical report-and-wait provision.

   D. The Stay Provisions Of CICA Cannot Be Sustained Under A
Balancing Test

   1. The court of appeals erred in believing that the CICA stay
provisions could be sustained under a balancing approach drawn from
Nixon v. Administrator, 433 U.S. at 443.  See Pet. App. 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 through
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 rejected a facial
challenge, based only on generalized separation-of-powers notions, to
a duly enacted law that committed responsiblity for the disposition of
presidential materials entirely to officers of the Executive Branch
(433 U.S. at 441-445).  Although Congress had therefore not exceeded
the procedural limitations imposed by the Constitution on its exercise
of legislative power, the Court believed 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 (id. at 443-445).

   Similarly, CFTC v. Schor, supra, also cited by the court below
(Pet. App. 35a;  id. at 41a-43a (Garth, J., concurring)), involved a
claim that the provisions of a duly enacted law impermissibly
interfered with the functioning of the Judicial Branch by authorizing
the CFTC to adjudicate certain counterclaims;  there again was not
statutory provision purporting to authorize Congress or its agent to
control the actions of a coordinate Branch by means other than through
the passage of a law, and the Court in fact stressed that there was
"no question of the aggrandizement of congressional power at the
expense of a coordinate branch" (slip op. 22).  Moreover, Schor
involved the distinctive body of law governing the Judicial Branch
under Article III (slip op. 23), not a displacement of executive
authority under Article II.  And the CFTC's jurisdiction over the
counterclaims depended on the consent of the parties (slip op. 13-15,
20);  here, by contrast, the stay provisions vest discretionary
authority in the Comptroller General to disrupt voluntary contractual
relationships between executive agencies and private contractors.

   Accordingly neither Nixon v. Administrator 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 that alters
the legal rights, duties and relations of persons outside that Branch
does not take the form of a duly enacted law.  To the contrary, the
Court in Synar held the Comptroller General's powers unconstitutional
despite the fact that Congress had confered those powers in response
to "fiscal and economic problems of unprecedented magnitude" (slip op.
20) -- a fact that would have weighed heavily in favor of the
constitutionality of the statute if a balancing approach had been
appropriate.  Nor is this an instance in which action by Congress in
aid of its legislative powers affects persons outside the Legislative
Branch only incidentally and only in their relation to the Legislative
Branch -- as is the case, for example, when an Executive Branch
official or private party must respond to a congressional subpoena
seeking information that will be used in Congress's internal
deliberations regarding possible future legislation.  Rather, in CICA,
Congress has sought to authorize the Comptroller General to regulate
primary conduct by an executive agency and private parties that has no
relation to Congress's internal legislative deliberations.  Cf. Thomas
v. Arn, 474 U.S. 140, 146-147 & n.5 (1985);  Hanna v. Plumer, 380 U.S.
460, 471-472 (1965);  id. at 474-475 (Harlan, J., concurring);  United
States v. Pyner, 447 U.S. 727, 737 (1980).

   2. In any event, a balance of the relevant interests does not
support the instrusion into the responsibilities of the Executive
Branch brought about by the stay provisions of CICA.  The court of
appeals relied upon legislative history demonstrating Congress'
purpose of asssuring competition in government procurement (Pet. App.
5a-12a).  But as explained above (see pp. 2-3, supra), this interest
is furthered primarily by CICA's substantive amendments to the
procurement laws.  See H.R. Conf. Rep. 98-861, supra, at 1421-1434,
1435-1437;  H.R. Rep. 98-1157, supra, at 11-23, 23-27;  S. Rep. 98-50,
supra.  The procedural provisions in CICA's bid-protest subtitle were
not central to Congress's efforts to promote competition in government
procurement.  In fact, the legislative history of CICA shows that the
procurement-protest subtitle was added to the Deficit Reduction Act of
1984 at the last minute and received virtually no attention by
Congress as a whole.  /24/

   What is more, Congress's interest in affording disappointed bidders
a forum for filing protests of contract actions does not require that
that responsibility be given to the Comptroller General.  As the
legislative history shows, Congress understood that the courts and the
contracting agencies themselves also entertain bid protests.  And by
making the GAO process non-exclusive, Congress anticipated that there
would be a duplication of remedies.  See pp. 24-25, supra.  The stay
provisions of CICA that confer stay-terminating powers on the
Comptroller General therefore are not critical to fulfilling
Congress's interest in establishing a workable procurement-protest
system.  Moreover, CICA itself suggests an alternative approach that
would be entirely constitutional.  In Section 2713 of DEFRA (98 Stat.
1182), Congress provided that bid protests concerning procurement of
data processing equipment could be handled by the GSA Board of
Contract Appeals (see 40 U.S.C. (Supp. III) 759(h)), in addition to
the Comptroller General.  See H.R. Conf. Rep. 98-861, supra, at 1430.
The House Report explained (H.R. Rep. 98-1157, supra, at 26):

         The GSA Board of Contract Appeals has a reputation of being
      fair and impartial while providing its opinions in a timely
      fashion.  Although Board members are appointed by and
      accountable to the Administrator, the operation of the Board is
      outside the scope of GSA's normal everday operations.  As such,
      the Board is looked upon by agencies and the vendor community as
      an objective forum in which to resolve contractual disputes.
      The Committee believes the Board is well equipped to provide
      meaningful relief in this area and should be given a chance to
      prove it is capable of doing so.

   The courts also can grant relied, as respondent Ameron sought but
was denied by the district court in this case.  There simply is no
practical necessity for departing from the division of powers between
the Legislative and Executive Branches by giving the Comptroller
General authority over the timing of contracting actions of the
Executive Branch.

   3. 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 each Branch must not be eroded"
(Chadha, 462 U.S. at 958).  The procurement-protest provisions of CICA
clearly erode those limits, and they cannot be sustained.

   II. THE STAY PROVISIONS SHOULD BE SEVERED FROM THE REMAINDER OF THE
PROCUREMENT-PROTEST SUBTITLE OF CICA

   For the reasons stated in Point I, the authorization in 31 U.S.C.
3553(c) and (d) for the Comptroller General to control the timing of
the award or performance of a contract between an executive agency and
a private party is unconstitutional.  The remaining issue concerns the
proper remedy, which in turn presents a question of severability.  See
Synar, slip op. 18.

   A. The constitutional defect in the procurement-protest subtitle of
CICA has no effect on the validity of the other subtitles, which
prescribe comprehensive substantive standards and procedures to be
followed by all Executive Branch agencies in order to promote
competition in contracting.  See pp. 2-3, supra.  Those other
subtitles are the core of CICA, and they are entirely independent of
the procurement-protest title;  indeed, the bill passed by the Senate,
which was the basis for the bill adopted by the DEFRA conference
Committee (H.R. Conf. Rep. 98-861, supra, at 1421), contained no
section addressing the subject of procurement protests (id. at 1435).
See n.24, supra.

   We also believe that the constitutional defect in the stay
provisions need not result in the invalidation of the entire
procurement-protest subtitle of CICA, because 31 U.S.C. 3553(c) and
(d) may be severed from the remainder of that subtitle.  /25/ The
Court recently reiterated that "'(u)nless it is evident that the
Legislature would not have enacted those provisions which are within
its power, independently of that which is not, the invalid part may be
dropped if what is left is fully operative as a law'" (Alaska
Airlines, slip op. 5-6 (citations omitted)).  If the stay provisions
are severed from the remainder of the procurement-protest subtitle of
CICA, "what is left is fully operative as a law," because the
Comptroller General could continue to entertain bid-protests, just as
he did before CICA was enacted in 1984.  Nor is it "evident" that
Congress would have refused to enact the remainder of the
procurement-protest subtitle independently of its stay provisions.
Even without the stay feature, the protest subtitle serves the
important purposes of furnishing a statutory basis for and regulating
this activity of the Comptroller General.  See H.R. Rep. 98-1157,
supra, at 23-25.  Thus, if the stay provisions are severed, the
contracting agency will be required to furnish relevant information to
the Comptroller General (31 U.S.C. 3554(b)(2));  the Comptroller
General will be obligated to decide protests (Section 3553(a)) within
the time frames in the Act (Section 3554(a)), and to make an
appropriate recommendation to the contracting agency if he finds a
violation of a law or regulation (Section 3554(b)(1));  the head of
the agency will be required to report to the Comptroller General if he
does not fully implement that recommendation (Section 3554(e)(1));
and the Comptroller General will be required to submit an annual
report to Congress about the protest system, including instances in
which his recommendations were not implemented (Section 3554(a)(2)).

   B. The Senate and Ameron state in passing in their Brief in
Opposition (at 18-19) -- apparently suggesting the possibility of an
alternative ground for affirmance -- that the Court should consider
whether, in lieu of severing the stay provisions from the remainder of
CICA, the authorization in 31 U.S.C. 703(e)(1)(B) for Congress to
remove the Comptroller General should be severed from the other
statutory provisions concerning the creation and duties of that
office.  The premise presumably is that if the office of Comptroller
General were altered in this manner, the incumbent could be vested
with "executive" authority to control the timing of a procurement
contract between an executive agency and a private party.  This
approach, however, would work a fundemental change in the office of
Comptroller General as it has existed since enactment of the Budget
and Accounting Act of 1921.  There is no reason to believe that
Congress, in enacting CICA, intended to permit a court to bring about
that result.

   The Senate and the other appellants in Synar made a similar
argument -- suggesting that the removal provision in 31 U.S.C.
703(e)(1) should be stricken, in lieu of holding that the Comptroller
General could not perform the deficit-reduction duties assigned to him
under the Balanced Budget and Emergency Deficit Congrol Act of 1985.
The Court did not reach the severability issue as such, because of the
existence of a "fallback" mechanism in the 1985 Act that provided for
Congress to enact the deficit reduction requirements into law.  Slip
op. 19-20.  But the Court nevertheless expressed considerable
skepticism about performing the type of "creative and imaginative
statutory surgery" that the Senate and Ameron propose here (id. at
20), observing that "(s)everance at this late date of the removal
provisions enacted 65 years ago would significantly alter the
Comptroller General's office, possibly by making him subservient to
the Executive Branch" (id. at 18).  /26/ Such "(r)ecasting (of) the
Comptroller General as an officer of the Executive Branch," the Court
continued, would "alter the balance that Congress had in mind in
drafting the Budget and Accounting Act of 1921 and the Balanced Budget
and Emergency Deficit Control Act, to say nothing of the wide array of
other tasks and duties Congress has assigned the Comptroller General
in other statutes" (id at 18-19).  For this reason, a severability
argument focusing on the removal section "would require this Court to
undertake a weighing of the importance Congress attached to the
removal provisions in the (1921 Act) as well as in other subsequent
enactments against the importance it placed on the (1985 Act)" (id. at
19).

   As the Court recognized in Synar, the legislative history of the
Budget and Accounting Act of 1921 establishes that "(t)he removal
provision was an important part of the legislative scheme," because it
was intended to be the means by which Congress reserved influence over
the Comptroller General and, therefore, over the conduct of his audit
of government programs and accounts (slip op. 13).  But the
significance of the provision extends beyond the influence that is
occasioned by the potential for removal standing alone.  See id. at
14.  The provision also is emblematic of the placement of the office
of Comptroller General in the Legislative Branch and of his status as
an agent of Congress in the performance of his investigatory,
auditing, and other work.  See Bowsher v. Merck & Co., 460 U.S. 824,
844 (1983) ("The GAO is an independent agency within the Legislative
Branch that exists in large part to serve the needs of Congress.").
The Legislative-Branch perspective from which the Comptroller General
must perform his tasks is reinforced by the numerous statutory
provisions that specifically describe the duties he owes to Congress
(Synar, slip op. 6-11 (Stevens, J., concurring in judgment)) and tha
independently render him "an agent of the Congress" (id. at 11).

   Furthermore, during the 65-year period since the creation of the
office, Congress repeatedly has made clear that it considers the
Comptroller General to be an officer of the Legislative Branch.  /27/
For example in the General Accounting Office Act of 1980 (Section 104,
94 Stat. 314-315), Congress provided for the President to select a
nominee for the office of Comptroller General from among a list of
three individuals recommended by the Speaker of the House and the
President pro tempore of the Senate (31 U.S.C. 703(a)(2) and (3)),
"because of 'the special interest of both Houses in the choice of an
individual whose primary function is to provide assistance to
Congress'" (Synar, slip op. 12 n.6, quoting S. Rep. 96-570, 96th
Cong., 2d Sess. 10 (1980));  see also S. Rep. 96-570, supra, at 1;
H.R. Rep. 96-425, 96th Cong., 1st Sess. 14 (1979).  And in the General
Accounting Office Personnel Act of 1980, Congress exempted GAO
employees from the civil service laws and prescribed special personnel
rules for GAO because of the possible conflict of interest that might
otherwise result from the fact that GAO is a "legislative branch
agency" charged with evaluating Executive Branch agencies (H.R. Rep.
96-494, 96th Cong., 1st Sess. 2 (1979);  S. Rep. 96-540, 96th Cong.,
1st Sess. 2 (1979)).  See Pub. L. No. 96-191, 94 Stat. 27;  5 U.S.C.
2302(a) and (c), 3132(a)(1), 4301(1), 7103(a)(3)(A);  31 U.S.C.
731-755.  /28/

   Thus, when Congress passed CICA in 1984, it acted against the
backdrop of a firmly established practice, reiterated twice in special
statutes passed only four years earlier, that GAO is part of the
Legislative Branch and performs its auditing and investigatory
functions as an agent of Congress.  The scant attention that Congress
paid to the procurement-protest subtitle when CICA was added to DEFRA
at the last minute (see n.24, supra) falls far short of the compelling
evidence that would be necessary to demonstrate that Congress regarded
the CICA stay provisions as so critical that it would have preferred
to work a fundamental change in the nature of the Office of
Comptroller General in order to preserve those provisions.  In fact,
the legislative history of the protest provisions of CICA indicates
that Congress simply took the Comptroller General as it found him --
"as an officer of the legislative branch" (H.R. Rep. 98-1157, supra,
at 23).

   CONCLUSION

   The judgment of the court of appeals should be reversed and the
case remanded with directions to enter judgment for the petitioners.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   JOHN R. BOLTON

      Assistant Attorney General

   THOMAS W. MERRILL

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   DOUGLAS N. LETTER

   THOMAS M. BONDY

      Attorneys

   MAY 1988

   /1/ All citations to the bid-protest provisions of CICA are to
Supplement III to the 1982 edition of Title 31.

   /2/ The 1974 Act "establish(ed) an Office of Federal Procurement
Policy in the Office of Management and Budget to provide overall
direction of procurement policies, regulations, procedures, and forms
for executive agencies in accordance with appliable laws" (31 U.S.C.
402(b)).  See 41 U.S.C. 404.

   /3/ If the Comptroller General finds that the case is suitable for
expedited treatment under 41 U.S.C. 3554(a)(2) (see pp. 4-5, infra),
the agency must submit its report within 10 working days (Section
3553(b)(2)(C)).  If the Comptroller General dismisses the protest
under 31 U.S.C. 3554(a)(3) (see p. 5, infra), the agency need not
submit a report (Section 3553(b)(3)).

   /4/ The agency head may not make such a finding "unless the award
of the contract is otherwise likely to occur within 30 days
thereafter" (31 U.S.C. 3553(c)(3)).

   /5/ The Comptroller General recently announced a new policy under
which "the costs of filing and pursuing a protest generally should be
granted whenever a protest is sustained based on more than some
technical violation of statute or regulation, whether or not other
remedies also are appropriate" (52 Fed. Reg. 46448 (1987)).  The
Comptroller General also has adopted new procedures permitting GAO to
conduct hearings and make findings of fact on issues raised in the
protest.  4 C.R.R. 21.5(b);  see 52 Fed. Reg. 46449 (1987).  Finally,
the Comptroller General has taken the position that he, not the
contracting agency, may make the final determination whether agency
documents concerning the procurement decision will be made available
to the protester and other parties under applicable standards.  4
C.F.R. 21.3(c)-(h);  see 52 Fed. Reg. 46446-46447 (1987).

   /6/ The FAR provisions made clear that "award need not be withheld
pending final disposition by the GAO of the protest," but that notice
of intent to proceed should be furnished to GAO (48 C.F.R.
14.407-8(b)(3) (1984)).

   /7/ Compare Bowsher v. Synar, No. 85-1377 (July 7, 1986), slip op.
3 n.1.  The President pointed out that "(t)he administration's
position on the unconstitutionality of these provisions was clearly
articulated to Congress by the Department of Justice on April 20,
1984" (20 Weekly Comp. Pres. Doc. 1037 (July 18, 1984)).  See J.A. 57;
 H.R. Rep. 98-1157, supra, at 59 & n.1.

   /8/ The Attorney General also concluded that the Comptroller
General cannot constitutionally make a binding award of the costs of
preparing a bid or pursuing a protest (J.A. 53).

   /9/ Apparently, the representation to which the court of appeals
referred in holding that the controversy is capable of repetition was
the statement in the Joint Brief for Ameron and the Senate as Appelles
(at 55) that "(Ameron) bids periodically on government contracts, and
will face a recurring need to make decisions on the filing of bid
protests under CICA." The Joint Brief added (at 55 n.49):  Ameron has
filed at least one previous bid protest, Decision of the Comptroller
General, B-172840 (July 13, 1971) (available July 19, 1985 on WESTLAW,
CG file).  See also 55 Comp. Gen. 955 (1976) (Ameron was supplier to
low bidder)." Compare Honig v. Doe, No. 86-728 (Jan. 20, 1988), slip
op. 10-16.

   /10/ In a separate opinion (Pet. App. 88a-100a), Judge Becker
concluded that the Comptroller General is an officer of the
Legislative Branch (id. at 89a-92a) and that his critical functions
under CICA are not "legislative" in nature (id. at 93a-94a), but he
nevertheless concluded that the conferral of these "executive-judcial
powers" on the Comptroller General was constitutional because they did
not threaten "individual liberty" (id. at 96a-98a).

   /11/ The court of appeals concluded that the injunctive relief
granted by the district court, which appeared to bind petitioners
throughout the United States (Pet. App. 2a-3a n.1, 150a), was too
broad (id. at 80a-87a).  In the court's view, because the Senate and
the Speaker and Bipartisan Leadership Group of the House did not have
independent standing to seek injunctive relief, any such 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 (Pet. App. 86a-87a).  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 FAR requiring exceptive agencies to follow the CICA
stay provisions pending the appeal in this case has not been
rescinded, and OMB Bulletin 85-8 has been reinstated.  See pp. 10-11,
supra.  This voluntary continuation of the conditions that were
imposed by the district court's injunction does not render this case
moot.  See Honig v. Doe, slip op. 13-15;  Chicago Teachers Union,
Local No. 1 v. Hudson, 475 U.S. 292, 299, 305 n.14 (1986);  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).

   /12/ The court likewise recognized that after Synar, 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 affect the timing of government contracts (Pet. App.
13a-15a;  see Synar, slip op 12).  The court further recognized that
Synar forecloses Judge Becker's prior view (see n.10, supra) that
there is no separation-of-powers violation in the absence of a
demonstrable threat to individual liberty (Pet. App. 4a n.2;  id. at
39a n.1 (Garth, J., concurring)).

   /13/ A panel of the Ninth Circuit also has recently held that the
stay provisions of CICA are constitutional, albeit on grounds somewhat
different from those adopted by the Third Circuit in this case.  See
Lear Siegler, Inc. v. Lehman, No. 85-5670 (Mar. 23, 1988).  The Lear
Siegler panel stated that Chadha and Synar offer "superficial support"
for the proposition that "Congress and its agents are forbidden from
'executing the law' * * * where doing so affects actors outside the
legislative branch" (slip. op. 3543).  But the Lear Siegler panel read
Chadha and Synar to bar such involvement only where Congress or its
agent exercises "ultimate authority" in a way that permanently alters
legal rights of persons outside the Legislative Branch (id. at
3544-3547), not where the legislative agent "temporarily 'bind(s)'"
such persons, as under CICA (id. at 3550-3552).  After thus finding
the "formal" requirements of Chadha and Synar inapplicable (id. at
3547), the court applied balancing test and held that Congress's
interests in promoting competition in intrusion into the contracting
process (id. at 3552-3555).  On May 6, 1988, the government filed a
petition for rehearing in Lear Siegler and requested that the petition
be held pending this Court's decision in the instant case.

   Two district courts have also rejected constitutional challenges to
CICA's stay provisions.  Parola v. Weinberger, No. C-85-20303-WAI
(N.D. Cal. Feb. 13, 1987), appeal pending, No. 86-2963 (9th Cir.),
Universal Shipping Co. v. United States, 652 F. Supp. 668 (D.D.C.
1987), appeal pending, No. 87-5120 (D.C. Cir.).

   /14/ See also The Federalist No. 75, at 450 (A. Hamilton) ("(T)he
essence of the legislative authority is to enact laws, or, in other
words, to prescribe rules for the regulation of society.").

   /15/ The Comptroller General has acknowledged that his authority
under CICA is judicial in nature.  He explained in the preamble to the
first set of regulations implementing the protest subtitle of CICA
that "(o)ne important purpose of the bid protest forum is to provide a
procedure through which provate parties may enforce the substantive
provisions of the (CICA)." 49 Fed. Reg. 49419 (1984).  See also 52
Fed. Reg. 46448 (1987) (a person who files a protest with GAO acts as
a "private attorney general").  The court of appeals also recognized
that the Comptroller General acts "like a court" under CICA (Pet. App.
29a).

   /16/ The duplication of the judicial function is especially vivid
in this case, because Ameron respondent sought from the district
court, but was based on the merits of its challenge to the selection
of Spiniello.  But Ameron did obtain a preliminary injunction barring
performance of the contract until the Comptroller General ruled on
that same challenge.  See 9-10, supra.  That preliminary injunction
had essentially the same effect as the Comptroller General's
continuation of the statutory stay of Spiniello's performance while he
considered Ameron's challenge.

   /17/ Contrary to respondents' contention (Senate & Ameron Br. in
Opp. 14;  Comp. Gen. Br. in Opp. 9), the fact that the agency may
proceed with the contract if the head of the agency makes the
requisite finding of exigent circumstances (see 31 U.S.C. 3553(c) and
(d)) does not undermine the conclusion that the Comptroller General,
rather than an officer of the Executive Branch, retains "ultimate
authority" over the timing on the contract in those cases in which the
agency head cannot make such a finding.

   /18/ As Montesquieu observed in The Spirit of Laws Bk. XI, ch. 6,
at 208 (Carrithers ed. 1977):  "(I)t is not proper * * * that the
legislative power should have a right to stop the executive.  For as
the execution has its natural limits, it is useless to confine it;
besides the executive power is generally employed in momentary
operations.  * * * But if the legislative power in a free government
has no right to stay the executive, it has a right and ought to have
the means of examining in what manner its laws have been executed."

   /19/ Cf. Art. II, Section 2, Cl. 1 (the President "may require the
Opinion, in writing, of the principal Officer in each of the executive
Departments, upon any Subject relating to the Duties of their
respective Offices").

   /20/ See also Burton v. United States, 202 U.S. 344, 367-368 (1906)
("The proper discharge of (his) duties does not require a Senator to
appear before an executive Department in order to enforce his
particular views, or the views of others, in respect of matters
committed to that Department for determination," although "(h)e may
often do so without impropriety.").

   /21/ The decisions cited by the court of appeals (Pet. App.
25a-26a) indicate only that a contracting officer in an executive
agency might properly decline to enter into a contract or terminate a
contract for the convenience of the government in light of views
expressed by the Comptroller General or a congressional committee;
those decisions do not hold that the ability to exert influence on
individual contracting decisions is a necessary part of Congress's
legislative powers under Article I.  See City of Alexandria v. United
States, 737 F.2d 1022, 1025-1027 (Fed. Cir. 1984);  Schlesinger v.
United States, 390 F.2d 702, 710 (Ct. Cl. 1968);  John Reiner & Co. v.
United States, 325 F.2d 438, 442-443 (Ct. Cl. 1963).

   /22/ Under a statute such as that at issue in Alaska Airlines,
intrasession recesses or adjournments have the effect of enlarging the
period of time necessary for the specified number of "legislative
days" to elapse.  The Constitution does not contemplate that Congress
may frustrate actions of the Executive Branch simply by declining to
be in session.  See Art. I, Section 7, Cl. 2 (Pocket Veto Clause);
Art. II, Section 2, Cl. 3 (Recess Appointments Clause).

   /23/ Moreover, in Sibbach, Chadha and Alaska Airlines, Congress by
law had prescribed a stay of all Judicial or Executive Branch actions
in the specified category, and the stay therefore was automatically
triggered whenever the Judicial or Executive Branch entity took such
action.  Under CICA, by contrast, Congress did not mandate a stay of
all contracting decisions, and a stay therefore is not automatically
triggered whenever an executive agency makes a contracting decision.
Instead, the stay is triggered only when a private party files a
protest with GAO.  This feature underscores the fact that the CICA
stay mechanism principally serves the interests of individual parties
in contract disputes pending in a non-legislative forum, rather than
legislative interests of more general applicability that typically
underlie a report-and-wait provision.

   /24/ CICA was fashioned by the conference committee on the bill
that was enacted as DEFRA.  H.R. Conf. Rep. 98-861, supra, at 1421.
The Senate had added to the DEFRA bill the substance of S. 338, 98th
Cong., 1st Sess. (1983) (see 130 Cong. Rec. S5020-S5027 (daily ed.
Apr. 30, 1984)), a competition-in-contracting bill that previously had
passed the Senate.  129 Cong. Rec. S15998-S16009 (daily ed. Nov. 11,
1983).  But the floor amendment to DEFRA in the Senate did no contain
a procurement-protest subtitle.  Ibid.; H.R. Conf. Rep. 98-861, supra,
at 1435.  The House version of the DEFRA bill did not contain any
competition-in-contracting title.  H.R. Conf. Rep. 98-861, supra, at
1421.  However, two bills had been introduced in the House that
addressed the subject of competition in contracting:  H.R. 2545, 98th
Cong., 1st Sess. (1983), which was still pending before the House
Armed Services Committee, and H.R. 5184, 98th Cong., 2d Sess. (1984),
which although it had been ordered reported out of the House Committee
on Government Operations on May 9, 1984, was not actually reported to
the House (with a printed report) until October 10, 1984, well after
DEFRA was passed by Congress and approved by the President on July 18,
1984.  See H.R. Rep. 98-1157, supra, at 1, 10, 61 n.11;  130 Cong.
Rec. H11829 (daily ed. Oct. 10, 1984).

   CICA represents a compromise worked out by the DEFRA conference
committee between S. 338 and the two House bills, and the
procurement-protest provisions were added to the DEFRA bill at that
time.  H.R. Conf. Rep. 98-861, supra, at 1435.  For this reason, the
protest provisions did not come before either House of Congress until
the last minute, when they voted on the conference report on DEFRA --
a 700-page bill with enormous budgetary consequences that overshadowed
CICA in its entirety, not to mention CICA's bid-protest subtitle.  Not
surprisingly, CICA was not even mentioned during the Senate debate on
the conference report (130 Cong. Rec. S8371-S8422 (daily ed. June 27,
1984)), and there were only a few references to CICA (which included
passing references to the bid-protest mechanism, but not specifically
to the stay feature) during the brief House debate (id. at H7091
(remarks of Rep. Mitchell);  id. at 7102 (remarks of Rep. Horton);
id. at 7107 (remarks of Rep. Brooks);  ibid. (remarks of Rep.
Stratton)).

   /25/ The provisions imposing a stay when a protest is filed and
lifting the stay when the Comptroller General dismisses the protest or
renders a decision are inextricably intertwined, and 31 U.S.C. 3553(c)
and (d) therefore must be severed in their entirety.  Cf. Pierce, 697
F.2d at 307.  If only the provision for limiting the stay were
severed, the mere filing of a protest would result in a permanent stay
of the award or performance of the contract, unless the contracting
agency was able to make the requisite finding of exigent
circumstances.  Nor could difficulties be avoided by limiting the
duration of such a stay to 90 working days, the time within which
Congress expected the Comptroller General to render his decision.  31
U.S.C. 3554(a)(1).  That approach would require redrafting, not
severing, and it would result in an automatic stay for 90 working days
(18 weeks) even if the protest was frivolous, since the Comptroller
General would not be empowered to shorten the stay by dismissing a
petition under 31 U.S.C. 3554(a)(3).  That safety valve is critical,
because it "reflects the intent of the conferees to keep proper
contract awards or due performance of contracts from being interrupted
by technicalities which interested parties in bad faith might
otherwise attempt to exploit." H.R. Conf. Rep. 98-861, supra, at
1436-1437.

   /26/ Compare Morgan v. TVA, 115 F.2d 990, 993 (6th Cir. 1940),
cert. denied, 312 U.S. 701 (1941);  cf. Shurtleff v. United States,
189 U.S. 311, 315-316 (1903);  Parsons v. United States, 167 U.S. 324,
343 (1897);  In re Hennen, 38 U.S. (13 Pet.) 230, 259-260 (1839).

   /27/ The Reorganization Acts of 1945 and 1949 specified that the
Comptroller General and GAO are "a part of the legislative branch of
the Government" (Section 7, 59 Stat. 616;  Section 7, 63 Stat. 205),
and in the Accounting and Auditing Act of 1950, Congress directed that
the auditing of government accounts shall be "conducted by the
Comptroller General of the United States as an agent of the Congress"
(Section 111(d), 64 Stat. 835).

   /28/ See also 2 U.S.C. 701(e), 703(b) (GAO is part of the
"legislative branch" for purposes of financial disclosure reporting).
In addition, appropriations for GAO are set forth annually in the
Legislative Branch Appropriations Act.  See e.g., Pub. L. No. 99-151,
99 Stat. 792;  Pub. L. No. 99-591, Section 101(j), 100 Stat. 3341-287;
 Pub. L. No. 99-500, Section 101(j), 100 Stat. 1783-287;  H.R. Conf.
Rep. 99-805, 99th Cong., 2d Sess. 6 (1986).  See also Pub. L. No.
100-120, Section 101(a)(1), 101 Stat. 789.