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 Petition for a Writ of Certiorari to the United States Court of
Appeals for the Third Circuit

   Reply Brief for the Petitioners

   We demonstrated in the certiorari petition that the stay provisions
of the Competition in Contracting Act (CICA), 31 U.S.C. (Supp. III)
3553 and 3554 -- which authorize the Comptroller General, an agent of
Congress, to control the timing of the award or performance of a
contract between an Executive Branch agency and a private party --
violate the separation of powers under the Constitution.  The court of
appeals' decision sustaining those provisions conflicts with INS. v.
Chadha, 462 U.S. 919 (1983), which held that Congress may not take
action that affects the legal "rights, duties, and relations" of
Executive Branch officials and private parties except by passing a law
(id. at 952), and with Bowsher v. Synar, No. 85-1377 (July 7, 1986),
which held that the Comptroller General "may not be entrusted with
executive powers" (slip op. 16) or "intrud(e) into the executive
function" (id. at 18).  Respondents' attempts to defend the court of
appeals' decision in the face of Chadha and Synar are without merit.

   Respondents' contention that the court of appeals' decision does
not in any event warrant review by this Court is also without merit.
The question of the constitutionality of the CICA stay provisions is
of broad practical importance because those provisons are triggered
with respect to several thousand government contract actions annually.
 The constitutional question is ripe for resolution in this case,
because the Executive and Legislative Branches have taken firm and
formal positions on the constitutional question and have consistently
regarded this as the leading case for its resolution.

   1. Respondents' principal contention in support of the
constitutionality of the CICA stay provisions is that they resemble
the so-called "report-and-wait" mechanism that the Court found to be
constitutional in Sibbach v. Wilson & Co., 312 U.S. 1, 14-15 (1941);
INS v. 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.  See Sen. &
Ameron Br. in Opp. 4, 7-12;  House Br. in Opp. 7, 13, 16.  The
report-and-wait device, however, is very different from the CICA
provisions at issue here.

   a. Under a report-and-wait provision, an agency must report a
particular administrative action to Congress, and the effective date
of the administrative action then is postponed for a specified period
during which Congress is afforded an opportunity to overturn that
action by passing a law.  In Sibbach, for example, the Court discussed
a statute that provided that certain rules of civil procedure "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." See 312 U.S. at 8, quoting Act
of June 19, 1934, ch. 651, Session 2, 48 Stat. 1064.  Similarly, in
Chadha, the Court observed that after severance of the legislative
veto, the statutory section there resembled the report-and-wait
provision discussed in Sibbach, because suspensions of deportation
would continue to be reported by the Attorney General to Congress but
would not take effect until the expiration of the following session of
Congress.  See 462 U.S. at 935 & nn.8, 9, citing 8 U.S.C. 1254(c) (2).
 And the statute involved in Alaska Airlines required the Secretary of
Labor to transmit certain proposed regulations to the transportation
committees of the Senate and House of Representatives and to wait 30
"legislative days" -- defined to mean days during which both the House
and 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 by the Court in
Sibbach, Chadha and Alaska Airlines each mandated the postponement of
administrative action for a statutorily specified period of time.
Those provisions are constitutional precisely because, unlike CICA,
they do not delegate to one House of Congress (or to an agent of
Congress, such as the Comptroller General) the power to decide on a
case-by-case basis how long the stay of a particular administrative
decision will last.  The Constitution authorizes no delegation of
power to an official of the Legislative Branch to modify the
performance of an Executive function in any particular instance in
which he sees fit.

   b. The Senate and Ameron contend (Br. in Opp. 2-3, 9-10) that the
report-and-wait provisions discussed in Sibbach, Chadha and Alaska
Airlines were comparable because the length of the postponement of the
administrative action was determined by Congress's adjournment from
day to day or at the close of a session.  This contention is without
merit for a number of reasons:

   First, the Constitution expressly grants each House of Congress the
power to "adjourn from day to day" (Art. I, Section 5, Cl. 1),
although bicameral action is required for any 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
Senate and Ameron are correct that the stay imposed by a
report-and-wait provision may constitutionally be terminated as a
result of action by Congress that does not satisfy the bicameralism or
presentment requirement of Article I, that is only because the
congressional action in question -- adjournment -- is expressly
excepted from those requirements.  Compare Chadha, 462 U.S. at
955-956;  Synar, slip op. 7.  The report-and-wait provisions at issue
in Sibbach, Chadha and Alaska Airlines therefore furnish no support
for the notion that stay-terminating power may be vested in the
Comptroller General, whose actions are not covered by any such
exception to the bicameralism and presentment requirements.

   Second, the adjournment of a session of Congress (as in Sibbach and
Chadha) or the adjournment of both Houses of Congress at the close of
a specified "legislative day" (as in Alaska Airlines) is an
objectively ascertainable event of independent public significance,
and it occurs without reference to any particular administrative
action that might have been reported to Congress.  By contrast, the
termination of the waiting period under CICA occurs by virtue of
action by the Comptroller General that directly relates to the
particular government contact, so that CICA effectively gives him
discretion to determine when it shall commence.

   Third, the principal purpose of a report-and-wait provision is to
afford Congress the opportunity to overturn the administrative action
through the exercise of its "legislative Powers" under Article I --
i.e., through the passage of a law by bicameral action and presentment
to the President.  See Sibbach, 312 U.S. at 15-16 & n.17;  Chadha, 462
U.S. at 935 & nn.8, 9;  Alaska Airlines, slip op. 11 & n.12.  Because
adjournment terminates the occasions on which Congress may exercise
its legislative powers, adjournment provides an appropriate statutory
benchmark for terminating the stay of administrative action under a
report-and-wait provision.  By contrast, the Comptroller General
cannot under Synar be given the power to make a binding decision
affecting a government contract (see Pet. 18 n.9), and there
accordingly is no constitutional basis for linking the termination of
a stay under CICA to any action of the Comptroller General -- there is
no valid legislative action the Executive is being to required to wait
for.

   2. Respondents also appear to contend (Sen. & Ameron Br. in Opp.
8-9;  Comp. Gen. Br. in Opp. 6-7) that the length of the stay under
CICA is wholly unrelated to the Comptroller General's determination of
the merits of the bid protest, and that for this reason CICA does not
mandate an impermissible intrusion by the Comptroller General into the
execution of the procurement laws.  But the Comptroller General's
authority to dismiss a protest at the outset if it is "frivolous" or
"does not state a valid basis for protest" (31 U.S.C. (Supp. III)
3554(a) (3)) directly ties the length of a stay to the Comptroller
General's assessment of the merits.  And the length of time the
Comptroller General takes to resolve any protest necessarily will be
determined in large part by his assessment of the merits, and the stay
is in fact lifted only when the Comptroller General issues his
decision on the merits.  Indeed, respondents make essentially no
effort to rebut our showing, based on repeated statements in the
legislative history (see Pet. 23-24), that the very purpose of the
CICA bid-protest provisions was to enable the Comptroller General to
intervene in the execution of the procurement laws.

   For the foregoing reasons, the CICA stay provisions are
constitutionally indistinguishable from the statute at issue in AFGE
v. Pierce, 697 F.2d 303, 306 (D.C. Cir. 1982), which barred an
executive department from using appropriated funds for a
reorganization without the prior approval of the Appropriations
Committees of the House and Senate.  The D.C. Circuit held that
statute unconstitutional because it delegated to committees of
Congress the power to lift a statutory restriction.  Similarly here,
Congress has unconstitutionally delegated legislative power to the
Comptroller General to lift a congressionally imposed restriction on
the award or performance of a government contract.  The decision of
the Third Circuit sustaining such an arrangement therefore conflicts
with the D.C. Circuit's decision in AFGE v. Pierce.

   The Senate and Ameron attempt to distinguish AFGE v. Pierce on the
ground (Br. in Opp. 8 n.8) that the statute there gave the
congressional committees the power "to dictate the substantive
obligations of the executive," while CICA requires executive agencies
to suspend their activities "temporarily," until the Comptroller
General acts.  However, the statute in AFGE v. Pierce did not
authorize the congressional committees to "dictate" executive action;
the committees were only authorized to free the executive agency to
pursue the particular action if it wished to do so, just as the
lifting of a stay under CICA frees the executive agency to proceed
with the contract.  The fact that the committees' lifting of the
statuory restriction in AFGE v. Piece might have been coupled with an
expression of "approval" is constitutionally irrelevant, and indeed in
this case the Comptroller General likewise expressed his approval of
the pertinent executive action (the Corps of Engineers' award of the
contract to Spiniello) when he issued his decision that lifted the
statutory stay.  See Pet. 7-8.

   3. In seeking to avoid the controlling force of Synar, respondents
seize upon the Court's statement that the Comptroller General there
was given the "ultimate authority" to determine budget cuts.  Slip op.
17.  This case is different, respondents contend, because the
contracting agency is not required to follow the Comptroller General's
decision on the bid protest.  See Sen. & Ameron Br. in Opp. 2, 6;
House Br. in Opp. 14, 16.  Respondents misapprehend the import of
Synar.  The issue in Synar concerned the substance of the budget cuts,
and the statutory provision in question was unconstitutional because
the Comptroller General's determination of that question was
controlling on the Executive Branch.  This case concerns the timing of
executive action, and under CICA, the Comptroller General, not the
responsible executive agency, has "ultimate authority" over that issue
for as long as a bid protest is pending.  /1/ Congress's retention of
such 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.

   4. Contrary to respondents' contention (Sen. & Ameron Br. in Opp.
14-15;  House Br. in Opp. 17;  Comp. Gen. Br. in Opp. 7-8), this
Court's decisions in Nixon v. Administrator of GSA, 433 U.S. 425
(1977), and CFTC v. Schor, No. 85-621 (July 7, 1986), do not support
the constitutionality of the CICA stay provisions.  As we explained in
the certiorari petition (at 25-26), Nixon and Schor, unlike this case,
did not involve an attempt by Congress to vest in one of its agents
the authority to take action that affects the legal rights, duties and
relations of government officials and private persons outside the
Legislative Branch.  To the contrary, the Court found it "highly
relevant" in Nixon that custody of the Presidential materials was
vested in Executive Branch officials (433 U.S. at 433-445), and the
Court stressed that in Schor, unlike Synar, there was "no question of
the aggrandizement of congressional power at the expense of a
coordinate branch" (slip op. 22).  Nixon and Schor involved the quite
distinct question whether a duly enacted law that did not
impermissibly enlarge the power of the Legislative Branch nevertheless
impermissibly interfered with the internal operations of a coordinate
Branch.  Applying a balancing test, the Court found in each case that
it did not.  Nixon, 433 U.S. at 441-446;  Schor, slip op. 16-23.  But
the Court did not suggest that a balancing approach would be proper
where the very "structure of the Constitution" and its attendant
"structural protections against abuse of power" are at issue, as they
are with respect to the Comptroller General's functions here and in
Synar (slip op. 10, 14).  /2/

   5. Finally, respondents contend (Sen. & Ameron Br. in Opp. 3,
15-20;  House Br. in Opp. 10-11;  Comp. Gen. Br. in Opp. 11) that,
irrespective of the merits, review by this Court is not warranted
because there is no conflict in the lower courts on the legal
questions presented.  It is true that there is no conflict with
respect to the precise issue of the constitutionality of the CICA stay
provisions.  But as we have explained (see pages 5-6, supra), the
Third Circuit's decision in this case is inconsistent with the D.C.
Circuit's decision in AFGE v. Pierce, which held unconstitutional a
similar statutory provision that permitted an agent of Congress to
lift a statutorily imposed restriction on executive action.

   Moreover, the CICA stay provisions are triggered with respect to
several thousand government contracts each year.  The question of the
constitutionality of the Comptroller General's power to control the
length of the stay is therefore of broad practical significance in the
administration of the government procurement programs.  And the
possibility of a stay subject to termination only by the Comptroller
General may also affect the procurement process in other cases as
contracting officials seek to avoid a dispute with the Comptroller
General that might delay the contract.

   The issue of the constitutionality of the CICA stay provisions is
ripe for final resolution by this Court.  That issue has been squarely
joined by the Executive and Legislative Branches:  the President
formally took the position that the CICA stay provisions are
unconstitutional when he signed the Deficit Reduction Act;  the
Attorney General rendered an opinion to the same effect and formally
notified Congress that the Department of Justice would not defend the
constitutionality of the provisions because they violate the
separation of powers;  and the Director of the Office of Management
and Budget issued a formal, Executive Branch-wide directive that
contracting should proceed as if the CICA stay provisions were not in
effect (although contracting agencies were instructed to cooperate
with the Comptroller General's investigation of bid protests).  See
Pet. 5-6.  The Senate and House of Representatives in turn intervened
in this suit, formally taking the position that the CICA stay
provisions are constitutional and seeking to require adherence to the
stay provisions on a government-wide basis.  Pet. 8;  Pet. App. 146a,
149a-150a.  And the district court in fact entered broad injunctive
relief, which respondents defended on appeal.  See Sen. & Ameron C.A.
Br. 57-59;  see also House C.A. Br. 48-60.  Although the court of
appeals concluded that the injunctive relief should be limited to
respondent Ameron, the Executive Branch has maintained the status quo
nationwide pending the Court's disposition of this case.  See Pet. 6,
8, 13 n.7.  In short, this case has at all times been the focal point
of litigation on the constitutional questions raised by CICA.  Those
questions are purely legal and will not be illuminated by litigation
in other factual contexts in the lower courts.  And the questions are
of course ones with which this Court has particular familiarity in
view of its recent decisions in Chadha and Synar.

   For the foregoing reasons and the reasons stated in the petition,
it is respectfully submitted that the petition for a writ of
certiorari should be granted.

   CHARLES FRIED

      Solicitor General

   OCTOBER 1987

   /1/ Contrary to respondents' contention (Sen. & Ameron Br. in Opp.
14;  Comp. Gen. Br. in Opp. 9), the fact that the executive agency may
proceed with the contract if it makes a finding of exigent
circumstances (see 31 U.S.C. (Supp. III) 3553(c) and (d)) does not
undermine the conclusion that the Comptroller General retains
"ultimate authority" over the timing of the contract when the agency
cannot make such a finding.

   /2/ The House of Representatives errs in suggesting (Br. in Opp.
2-3 & n.2, 4, 11, 15) that the CICA stay provisions at issue here
amount to little more than a continuation of the regime established by
pre-CICA regulations.  For example, in quoting an earlier GAO
regulation that was reproduced in Merriam v. Kunzig, 476 F.2d 1233 (3d
Cir.), cert. denied, 414 U.S. 911 (1973) (see House Br. in Opp. 2
n.2), the House conspicuously omits the concluding portion of the
regulation, which made clear that a contract could be awarded after a
protest was lodged if the contracting agency furnished GAO with a
statement of the factors that would not permit delay until GAO ruled
(476 F.2d at 1236 n.1).  In Robert E. Derektor of Rhode Island, Inc.
v. Goldschmidt, 506 F. Supp. 1059, 1061-1062 (D.R.I. 1980), upon which
the House also relies (Br. in Opp. 2 n.2), the court appeared to
acknowledge (506 F. Supp. at 1062) that the 1980 version of the
Executive Branch's pre-CICA procurement regulations did not require
the contracting agency to wait for the views of GAO before proceeding
with the contract.  See 41 C.F.R. 1-2.407-8(b)(3) (1979).  Similarly,
the 1984 version of the pre-CICA procurement regulations, in a passage
omitted from the House's discussion (see Br. in Opp. 2-3 n.2),
expressly provided that the "award need not be withheld pending final
disposition by the GAO of a protest," although it provided that notice
of intent to proceed "shall" be furnished to GAO and GAO's advice
concerning the status of the case "should" be obtained before the
award was made.  See 48 C.F.R. 14.407-8(b)(3), as added, 48 Fed. Reg.
42184 (1983).  See also 48 C.F.R. 14.407-8(b)(4), as added, 48 Fed.
Reg. 42184 (1983) (more lenient standards for proceeding despite a
protest).