1Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession." 

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 92-7443

Summary Calendar

_____________________________________

VALLEY CONSTRUCTION COMPANY, 

Plaintiff-Appellant,

VERSUS

JOHN MARSH, Secretary of the 

Army of the Unites States, ET AL.,

Defendant-Appellee.

______________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(EC91-33-S-D)

______________________________________________________

(January 14, 1993)

Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:1

Valley Construction Co. appeals the district court's grant

of summary judgment in favor of the United States Army Corps of

Engineers. Finding that no genuine issue of material fact

exists, and that the Corps is entitled to judgment as a matter of

law, we affirm.

FACTS

Valley Construction Co. (Appellant) bids competitively on
215 U.S.C. § 632(a) states in part "[f]or the purposes of this

chapter, a small business concern, . . . shall be deemed to be

one which is independently owned and operated and which is not

dominant in its field of operation."

3 15 U.S.C. § 637(a)(5) states "[s]ocially disadvantaged

individuals are those who have been subjected to racial or ethnic

prejudice or cultural bias because of their identity as a member

of a group without regard to their individual qualities."

15 U.S.C. § 637(a)(6)(A) states in part "[e]conomically

disadvantaged individuals are those socially disadvantaged

individuals whose ability to compete in the free enterprise

system has been impaired due to diminished capital and credit

opportunities as compared to others in the same business area who

are not socially disadvantaged."

448 C.F.R. Subpart 19.8 sets forth the Federal Acquisition

Regulations for contracting with the Small Business

Administration (the 8(a) Program).

548 C.F.R. § 19.804-1 provides:

In determining the extent to which a requirement

2

military and civil construction projects procured by the U.S.

Army Corps of Engineers (Appellee) and other U.S. agencies. 

Appellant is a small business concern within the meaning of 15

U.S.C. § 632,2 but is not a socially and economically

disadvantaged small business concern as defined in 15 U.S.C. §

637(a).3 These disadvantaged small business concerns are known

as "8(a)" contractors, and may bid on contracts that are

exclusively designated for the Small Business Administration's

8(a) Program.4

Appellee sought to open bidding on a contract to build the

Dewayne Hayes/Stinson Creek Project (the contract), a recreation

park to be built in Mississippi. Appellee offered the contract

to the SBA and, after considering the factors enumerated in the

Federal Acquisition Regulations, 48 C.F.R. § 19.804-1,5 Appellee 
should be offered in support of the 8(a) Program, the

agency should evaluate-

(a) Its current and future plans to acquire the

specific items or work that 8(a) contractors are

seeking to provide, identified in terms of-

(1) Quantities required or the number of

construction projects planned; and

(2) Performance or delivery requirements,

including required monthly production rates, when

applicable.

(b) Its current and future plans to acquire items

or work similar in nature and complexity to that

specified in the business plan;

(c) Problems encountered in previous acquisitions

of the items or work from the 8(a) contractors and/or

other contractors;

(d) The impact of any delay in delivery;

(e) Whether the items or work have previously been

acquired using small business set-asides; and

(f) Any other pertinent information . . . .

3

designated the contract for exclusive bidding by 8(a)

contractors.

Appellant, desiring to bid on the contract, sued alleging

that the Corps failed to conduct a required proportional impact

analysis to determine any possible effect exclusion would have on

small business non-8(a) contractors, such as Appellant. 

Appellant argued that this failure caused Appellee to designate

the contract for 8(a) contractors in an arbitrary and capricious

manner. Appellant sought and was granted a temporary restraining

order to prevent Appellee from awarding the contract. Appellant

then sought a preliminary injunction, which was denied. 

Thereafter both parties requested summary judgment, and the

district court ruled in favor of Appellee. Appellant appeals

this ruling.

DISCUSSION
6Appellant relies upon Fordice Construction Co. v. Marsh, Civil

Action No. W81-0028(W) (S.D. Miss. Mar. 14, 1990), an unpublished

decision. Not only is Fordice factually distinguishable from

this case, but it is non-binding on this court. We are not

persuaded to follow the reasoning in Fordice.

4

Standard of Review

Summary judgment is appropriate if the record discloses "that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law." Fed.

R. Civ. P. 56(c). In reviewing the summary judgment, we apply the

same standard of review as did the district court. Waltman v.

International Paper Co., 875 F.2d 468, 474 (5th Cir. 1989); Moore

v. Mississippi Valley State Univ., 871 F.2d 545, 548 (5th Cir.

1989). We must "review the facts drawing all inferences most

favorable to the party opposing the motion." Reid v. State Farm

Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). If the

record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there is no genuine issue for trial.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986); see Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th

Cir. 1969) (en banc).

Impact Analysis Requirement

No impact analysis was conducted for this contract. Appellant

argues that 48 C.F.R. § 19.804-1(2)(e) requires Appellee to conduct

an impact analysis prior to offering the contract into the SBA's

8(a) Program.6 Appellee responds that § 19.804-1(2)(e) only

requires Appellee to consider whether the work being set aside for

the 8(a) Program has "previously been acquired using small business
5

set-asides." Appellee has interpreted this regulation to require

impact analysis only when a contract previously available to all

small businesses is redesignated as an exclusive 8(a) contract,

thereby causing a non-8(a) small business to lose the contract;

such analysis does not apply to new, non-recurring construction

contracts because "a business cannot be historically dependent on

a contract that it has never in fact obtained or performed." 

It is well settled that we must respect Appellee's

interpretation of § 19.804-1(2)(e) if it is reasonable, even if we

may have interpreted the regulation differently. Kinnet Dairies,

Inc. v. Farrow, 580 F.2d 1260, 1270 (5th Cir. 1978) (quoting Udall

v. Tallman, 380 U.S. 1, 4 (1965)). Appellee's interpretation of

the regulation to require impact analysis only when recurring

contracts are redesignated as exclusively available to 8(a)

contractors is well-reasoned. Furthermore, it is consistent with

the plain meaning of the regulation, which states that Appellee

should consider whether "the items or work have previously been

acquired using small business set-asides." 48 C.F.R. § 19.804-

1(2)(e). The district court properly granted summary judgment in

favor of Appellee.

Finding that Appellee is entitled to judgment as a matter of

law, we AFFIRM the district court's grant of summary judgment.