*Pursuant to Local Rule 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstancesset forth in LocalRule 47.5.4.

1 5 U.S.C. § 702 et seq.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-41126

Summary Calendar

MCKINLEY DARDEN,

Plaintiff-Appellant,

VERSUS

JOHN H. DALTON,

Defendant-Appeleee.

Appeal from the United States District Court

For the Southern District of Texas

(C-96-CV-421)

June 18, 1997

Before WISDOM, KING, and SMITH, Circuit Judges.

PER CURIAM:*

McKinley Darden filed a pro se suit against Secretary of the

Navy John H. Dalton under 28 U.S.C. § 1332 and the Administrative

Procedures Act (APA)1 challenging the award of a contract for

cleaning services to a competing bidder. Darden alleged that the

competing bid of $787,519.70 was unreasonably low and that his
2 48 C.F.R. § 14.407-2 (1996).

3 Fed. R. Civ. P. 12(b)(6).

4 Guthrie v. Tifco Indus., 941 F.2d 374, 379 (5th Cir.

1991); Shawnee Int'l, N.V. v. Hondo Drilling Co., 742 F.2d 234, 236

(5th Cir. 1984).

2

bid of $1,006,545.20 should have been considered the most

advantageous bid for the Government because it was closest to the

Government’s own cost estimate of $1,455,504.91. He alleged

that, in awarding the contract, the Government did not follow the

proper contracting procedures outlined in the Federal Acquisition

Regulations Systems,2 and that the selection of the lowest bidder

was arbitrary and capricious. 

After conducting an initial pretrial conference the district

court dismissed the action for failure to state a claim for which

relief may be granted.3 The district court found that Darden

failed to allege that the “procurement official’s decision had no

rational basis, or that the procurement procedure involved a

clear and prejudicial violation of applicable statutes or

regulations.” Further, the district court noted that Darden

stipulated at the pretrial conference that his complaint was not

based on fraud or “bad faith.” Darden timely noticed his appeal. 

We now affirm.

A district court may dismiss a complaint for failure to

state a claim upon its own motion.4 A Rule 12(b)(6) dismissal is

appropriate only if it appears beyond doubt that the plaintiff
5 McCormack v. National Collegiate Athletic Ass'n, 845 F.2d

1338, 1343 (5th Cir. 1988) (internal quotation and citation

omitted).

6 Id.

7 Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260, 1271

(5th Cir. 1978).

3

can prove no set of facts in support of his claim which would

entitle him to relief.5 Although this court takes a complaint's

allegations as true, it does not assume facts not alleged.6 A

plaintiff challenging a contract-award decision must demonstrate

that “(1) the procurement official’s decision on matters

committed primarily to his own discretion had no rational basis;

or (2) the procurement procedure involved a clear and prejudicial

violation of applicable statutes or regulations.”7

Darden argues that the Government failed to follow “proper

contracting procedures” contained in § 14.408-2. He argues that

under § 15.805-2 the Government was compelled to award the

contract to his firm.

Section 14.408-2(a) provides in pertinent part:

[t]he contracting officer shall determine that a

prospective contractor is responsible (see Subpart 9.1)

and that the prices offered are reasonable before

awarding the contract. The price analysis techniques

in 15.805-2 may be used as guidelines. In each case

the determination shall be made in the light of all

prevailing circumstances. . . . [emphasis added]

Section 15.805-2 provides in pertinent part: 

[t]he contracting officer is responsible for selecting

and using whatever price analysis techniques will

ensure a fair and reasonable price. One or more of the
4

following techniques may be used to perform price

analysis:

***

(e) Comparison of proposed prices with independent

Government cost estimates.

Title 4 of the Code of Federal Regulations, § 21.0 et seq.,

details the procedures for filing a bid protest with the General

Accounting Office. Section 21.5(c) provides that “an affirmative

determination of responsibility will not be reviewed absent a

showing of bad faith on the part of government officials or that

definitive responsibility criteria in the solicitation were not

met.” 

Darden’s assertions are without merit. Darden cannot

challenge the affirmative determination of responsibility under 4

C.F.R. § 21.5(c) because, as he conceded in the pretrial

conference, his claim was not based on fraud or bad faith. 

Further, the Federal Acquisition Regulations Systems instruct

that a contract award will be made to a “responsible bidder whose

bid, conforming to the invitation for bids, will be most

advantageous to the Government, considering only price and the

price-related factors included in the invitation.” Although §

15.805-2 illustrates techniques for ensuring a fair and

reasonable price, the regulations instruct that the techniques

may be used as a guideline. Further, Darden ignores § 15.805-

2(a), also listed as a technique for determining a fair and
5

reasonable price, which states that a fair and reasonable price

may be determined by, “[c]omparison of proposed prices received

in response to the solicitation.” Darden concedes that his bid,

although arguably close to the Government’s cost analysis, was

the twelfth low bid. 

Under § 15.805-2(e), the Government was permitted to compare

the proposed prices received in response to the solicitation for

bids. The language of the provision does not, however, mandate

that the Government must accept the bid most closely aligned with

the Government’s cost estimate if other bids are lower. Rather,

§ 14.101(e) instructs that contract award will be made to the bid

that is most advantageous to the Government “considering only

price and the price related factors”. Therefore, considering

only price, the Government received 11 bids more advantageous

than Darden’s bid. Darden has failed to allege any facts to show

that the Government’s refusal to award the contract to his firm

was arbitrary, capricious, or in violation of the applicable

regulations.

AFFIRMED.