United States Court of Appeals for the Federal Circuit 

2008-5177 

TYLER CONSTRUCTION GROUP, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

Michael H. Payne, Payne Hackenbracht & Sullivan, of Fort Washington, 

Pennsylvania, argued for plaintiff-appellant. 

Douglas G. Edelschick, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, argued for defendant-appellee. 

With him on the brief were Michael F. Hertz, Acting Assistant Attorney General, Jeanne E. 

Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the 

brief were Thomas J. Warren, Office of the Chief Counsel, Army Corps of Engineers, of 

Washington, DC, and Charles L. Webster III, Engineer Trial Attorney, of Fort Worth, Texas. 

Appealed from: United States Court of Federal Claims 

Senior Judge John P. Wiese
United States Court of Appeals for the Federal Circuit 

 

2008-5177 

TYLER CONSTRUCTION GROUP, 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

Appeal from the United States Court of Federal Claims in 08-CV-094, Senior Judge 

John P. Wiese. 

______________________________ 

DECIDED: June 25, 2009 

______________________________ 

Before MAYER, FRIEDMAN, and RADER, Circuit Judges. 

FRIEDMAN, Circuit Judge. 

The principal issue is whether the United States Army Corps of Engineers (“the 

Corps”) was authorized to use so-called Indefinite Deliver/Indefinite Quantity Contracts 

(known as “IDIQ contracts”) for the design and construction of military buildings 

(barracks and related structures) in an eight-state area in the southeastern United 

States. As the name implies, those contracts did not state the number of such 

structures to be built or the dates for construction, but did specify the total dollar range 

the construction would involve. The Court of Federal Claims held that the Corps was 

authorized to use those contracts for this procurement, and we affirm. 
I 

A. This litigation stems from what the Corps described, in the language of the 

Court of Federal Claims’ opinion, as “part of a fundamental change in military 

construction strategy designed to transform the United States Army into a more 

modular, expeditionary, and effective fighting force.” Tyler Constr. Group v. United 

States, 83 Fed. Cl. 94, 95 (2008). The underlying facts, as stated in that opinion, are 

largely undisputed. 

The Corps stated that “its primary objective is to meet the Department of the 

Army’s time, cost, quality, and standardization targets and goals while providing new 

facilities for our soldiers and their families—an undertaking requiring a minimum of 20% 

reduction in cost and a minimum of 30% reduction in time to occupancy.” Id. at 95-96 

(internal quotation marks omitted). To accomplish that objective, the Corps: 

initiated a market research program in 2005 to acquaint 

members of the construction industry with the Army’s 

upcoming needs and to gain the industry’s perspective on 

how best to execute a construction program of the 

magnitude contemplated. The program included sponsorship of a nationwide forum, four regional forums, and a 

specialized forum with representatives of the prefabricated/pre-engineered/modular construction industry, as 

well as the implementation of an internet-based research 

questionnaire. Through these efforts, the Corps identified an 

industry consensus that the successful execution of its 

construction program would require an emphasis on 

standardization and economies of scale. Based on this 

conclusion, the Corps decided to pursue a flexible 

acquisition strategy “composed of primarily local and 

regional contracts with a possibility of national contracts, in 

order to execute an estimated $40 Billion dollar Military 

Construction . . . Program.” 

Id. at 96. 

2008-5177 2
In 2007, the Corps issued a solicitation seeking proposals for the construction. 

The amended solicitation provided for a negotiated one-year multiple award task order 

contract, with two additional one-year options, a minimum $10,000 guarantee for the 

first year, and a total estimated contract amount of $301 million. The Corps estimated 

that the value of the initial task order under the contract would be between $25 million 

and $100 million. 

 The solicitation described in general terms the facilities to be constructed under 

the initial task order. It included a 252-page statement of work outlining in detail the 

other types of facilities to be built. “The statement of work does not indicate where 

these facilities are to be built; it does, however, inform offerors that the facilities will be 

required primarily at Fort Benning, Georgia.” 

 The solicitation contemplated a two-phase proposal process in which two or 

more contractors would be selected. In the first phase, the Corps would evaluate the 

performance capabilities of the prospective contractors based on specified criteria. In 

the second phase, the contractors would submit proposals for the initial task order. 

Those to whom contracts were awarded would “become the only competitors for the 

negotiation and award of all subsequent task orders, subject only to the limitation that a 

contractor is not . . . obligated to honor a task order of less than $14 million, a task 

order in excess of $47.5 million, or any order involving a combination of items in excess 

of $95 million.” Id. at 96 

 B. The appellant, Tyler Construction Group (“Tyler”), which described itself in its 

complaint as “a small business general contractor,” did not submit any proposal in 

response to the solicitation. Instead, it filed the present suit in the Court of Federal 

2008-5177 3
Claims seeking injunctive and declaratory relief against the solicitation. It challenged 

the Corps’ use of IDIQ contracts for this procurement on various grounds, including the 

claims that such use was not authorized by the Federal Acquisition Regulation (“FAR”) 

and that it violated statutory and regulatory provisions that favor and protect small 

businesses. 

 On the parties’ cross-motions for judgment on the administrative record, the 

Court of Federal Claims granted the government’s motion and dismissed the suit. Tyler 

Constr. Group, 83 Fed. Cl. at 95. After that decision, the Corps selected three firms to 

whom it awarded contracts. 

 The court rejected Tyler’s contention that the FAR does not authorize the use of 

IDIQ contracts for a major construction project. Tyler stated that such contracts “have 

historically been used for the procurement of essentially identical ‘supplies or services’ 

for which there is a recurring need at a single installation or within a small geographic 

area.” Tyler argued that FAR § 16.501-2(a), 48 C.F.R. § 16.501-2(a), “which identifies 

an IDIQ contract as a contract used ‘to acquire supplies and/or services when the exact 

times and/or exact quantities of future deliveries are not known at the time of contract 

award,’” does not cover “construction” because the latter is not a “service.” It pointed to 

other provisions of the FAR that parenthetically inserted, after “goods and services,” the 

term “(including construction).” The government countered by citing still other FAR 

provisions that stated, after “goods and services,” “(excluding construction).” 

 Noting that there is “no law, statute, or regulation that prohibits the use of an IDIQ 

contract for the procurement of construction services,” the Court of Federal Claims 

concluded that “the various provisions of the FAR offer little insight into whether 

2008-5177 4
‘construction’ is included in or excluded from ‘supplies or services.’” Tyler Constr. 

Group., 83 Fed. Cl. at 99. The court ruled that 

FAR § 1.102(d)—providing procurement officials with the 

authority to use innovative approaches to satisfy the 

government’s procurement needs so long as such 

approaches are not otherwise addressed in the FAR or 

prohibited by law—governs the instant procurement. We 

find that the solicitation represents the sort of innovation 

envisioned by that section and, with its identification of both 

a contract dollar value and a general scope of work, 

constitutes a permissible exercise of IDIQ contracting 

authority. 

Id.

 The Court of Federal Claims also rejected Tyler’s alternative contention that “the 

scope of the solicitation, as measured by both its dollar amount and the geographic 

distribution of its construction work, is of a magnitude that impermissibly forecloses 

small business participation.” Id. at 100 (footnote omitted). Tyler relied on the antibundling provision of the Small Business Act, 15 U.S.C. § 631(j)(3), which requires 

“each Federal agency” to “avoid unnecessary and unjustified bundling of contract 

requirements that precludes small business participation in procurements as prime 

contractors,” and the similar limitation on “consolidation” of procurement in 10 U.S.C. 

§ 2382(a). The court stated: “In plaintiff’s view, the Corps’ use of a single procurement 

to acquire the design and construction of multiple facilities, many of which would have 

been suitable for small-business contractors, constitutes the improper bundling the 

statute prohibits and should be enjoined on that ground.” Tyler Constr. Group, 83 Fed. 

Cl. at 100. 

 In rejecting this contention, the court relied on 15 U.S.C. § 644(e)(2)(A), which 

provides: 

2008-5177 5
Before proceeding with an acquisition strategy that could 

lead to a contract containing consolidated procurement 

requirements, the head of an agency shall conduct market 

research to determine whether consolidation of the 

requirements is necessary and justified. 

 The court 

conclude[d] . . . that the Corps has demonstrated that the 

consolidation of the contract requirements was necessary 

and justified within the meaning of the relevant statutes. 

[T]he Corps’ choice of acquisition strategy was dictated by 

an industry consensus that successfully meeting the Army’s 

goals in construction costs and time would require a 

departure from the Corps’ traditional “one project at a time” 

approach in favor of an acquisition strategy that maximized 

economies of scale. Given the Corps’ extensive market 

research and its detailed analysis of the issue, we can find 

no fault with the Corps’ decision to rely on the industry’s 

counsel. 

Tyler Constr. Group, 83 Fed. Cl. at 103. 

II 

 The FAR provisions relating to IDIQ contracts (there called “indefinite delivery 

contracts”) state that such contracts “may be used to acquire supplies and/or services 

when the exact times and/or exact quantities of future deliveries are not known at the 

time of contract award.” FAR § 16.501-2(a), 48 C.F.R.. § 16.501-2(a). FAR 

§ 16.504(a)(1), 48 C.F.R. § 16.504(a)(1) provides that “[t]he contract must require the 

Government to order and the contractor to furnish at least a stated minimum quantity of 

supplies or services.” The FAR provides that contracting officers “may use” such 

contracts “when the Government cannot predetermine, above a specified minimum, the 

precise quantities of supplies or services that the Government will require during the 

contract period.” Id. § 16.504(b). Other provisions of that section also refer to “supplies 

2008-5177 6
or services” the contractor will furnish or the government will acquire. Id. § 16.504(a)(1), 

(a)(4)(iii). 

 Tyler contends that under these provisions IDIQ contracts cannot be used for 

large scale building construction because “services” as there used does not include 

“construction.” As previously noted, each party seeks to support its position by citing 

other provisions of the FAR, some of which state “(including construction)” after 

“supplies or services” and others of which state “(excluding construction)” after that 

phrase. We agree with the Court of Federal Claims that these provisions of the FAR 

“offer little insight into whether ‘construction’ is included in or excluded from ‘supplies or 

services.’” Tyler Constr. Group, 83 Fed. Cl. at 99. All that they show is that, depending 

on the context, “services” may or may not include “construction.” They do not establish, 

as Tyler contends, that in determining whether IDIQ contracts may be used for major 

military building projects, “services” does not include “construction.” 

 Like the Court of Federal Claims, we conclude that the proper inquiry is not 

whether the FAR authorizes the use of IDIQ contracts for a procurement of construction, 

but whether there is any statutory or regulatory provision that precludes such use. 

Again, like that court, we are unaware of any such provision, and Tyler has not pointed 

to any. Indeed, it appears that Tyler does not challenge that conclusion. 

 The reason that this is the appropriate inquiry is explained in FAR § 1.102(d), 48 

C.F.R. § 1.102(d), which states: 

The role of each member of the Acquisition Team is to 

exercise personal initiative and sound business judgment in 

providing the best value product or service to meet the 

customer’s needs. In exercising initiative, Government 

members of the Acquisition Team may assume if a specific 

strategy, practice, policy or procedure is in the best interests 

2008-5177 7
of the Government and is not addressed in the FAR nor 

prohibited by law (statute or case law), Executive order or 

other regulation, that the strategy, practice, policy or 

procedure is a permissible exercise of authority. 

 In other words, government officers are authorized, indeed, encouraged, in 

exercising personal initiative in procurement matters, to assume that “a specific 

strategy, practice, policy or procedure” that is not “addressed in the FAR nor prohibited 

by law (statute or case law), Executive order or other regulation” and that “is in the best 

interests of the Government,” “is a permissible exercise of authority.” 

 We agree with the Court of Federal Claims that the Corps’ use of IDIQ contracts 

to effect this procurement of military housing “represents the sort of innovation 

envisioned by that section and, with its identification of both a contract dollar value and 

a general scope of work, constitutes a permissible exercise of IDIQ contracting 

authority.” Tyler Constr. Group, 83 Fed. Cl. at 99. 

 The Corps was faced with an unusually large and novel procurement that had to 

meet the Army’s unusual and demanding standards and requirements. The Army was 

seeking what the Corps viewed as “a fundamental change in military construction 

strategy designed” to make the Army “a more modular expeditionary and effective 

fighting force.” Tyler Constr. Group., 83 Fed. Cl. at 95. The Army’s new approach to 

housing construction required a 20% reduction in cost and a 30% reduction in the time 

required until the facilities could be occupied. 

 Prior to deciding to use IDIQ contracts for this procurement, the Corps carefully 

studied, analyzed and evaluated the situation. It conducted a research program which 

included a nationwide forum, four regional fora, and “a specialized forum with 

representatives of the pre-fabricated/pre-engineered/modular construction industry, as 

2008-5177 8
well as the implementation of an internet-based research questionnaire.” Tyler Constr. 

Group, 83 Fed. Cl. at 96. The Corps concluded that there was “an industry consensus 

that the successful execution of its construction program would require an emphasis on 

standardization and economies of scale. Based on this conclusion, the Corps decided 

to pursue a flexible acquisition strategy ‘composed of primarily local and regional 

contracts with a possibility of national contracts, in order to execute an estimated $40 

Billion dollar Military Construction . . . Program.’” Id.

 The Corps, like other federal procurement entities, has broad discretion to 

determine what particular method of procurement will be in the best interests of the 

United States in a particular situation. Cf. E.W. Bliss Co. v. United States, 77 F.3d 445, 

449 (Fed. Cir. 1996) (in negotiated contracts “[p]rocurement officials have substantial 

discretion to determine which proposal represents the best value for the government”); 

Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d 955, 958 (Fed. Cir. 1993) (“Effective 

contracting demands broad discretion.”). The Corps did not abuse that discretion in 

concluding that in the situation here, the use of IDIQ contracts to obtain this large 

military construction was the most appropriate method of proceeding and therefore best 

served the interests of the United States. Nor did the Corps violate or ignore any 

statutory or regulatory requirements, prohibitions or standards in so acting. 

III 

 A. Tyler also contends that in using this type of procurement, the Corps violated 

statutory and regulatory provisions designed to aid and protect small businesses and to 

insure that they receive a fair and adequate share of government contracts and 

business. It relies primarily on the anti-bundling provision of the Small Business Act, 

2008-5177 9
which in pertinent part requires “each Federal [acquiring] agency” to “avoid unnecessary 

and unjustified bundling of contracts requirements that precludes small business 

participation in procurements as prime contractors.” 15 U.S.C. § 631(j)(3). According to 

Tyler, the Corps’ combination (or “bundling”) of procurement of military facilities under a 

single contract resulted in a procurement whose dollar amount was beyond the financial 

capacity of small business firms, who could and would have competed for constituent 

individual components of smaller size. 

The government seeks to avoid this limitation on its contracting authority by 

arguing that this statutory provision does not apply to new construction. It relies on 

statutory provisions that state that “[t]he term ‘bundling of contract requirements’ means 

consolidating 2 or more procurement requirements for goods or services previously 

provided or performed under separate smaller contracts,” 15 U.S.C. § 632(o)(2), and 

that “[t]he terms ‘consolidation of contract requirements’ and ‘consolidation’ . . . mean a 

use of a solicitation to obtain offers for a single contract or multiple award contract to 

satisfy two or more requirements . . . for goods or services that have previously been 

provided . . . under two or more separate contracts smaller in cost.” 10 U.S.C. 

§ 2382(c)(1). According to the government, under these definitions the bundling and 

consolidation statutes “apply only to contracts that would combine existing 

requirements, previously provided, under separate smaller contracts,” but “do not apply 

to new construction, which is a new requirement.” 

 Like the Court of Federal Claims, we need not decide this question because we 

conclude that even if those provisions cover new construction, the Corps’ conduct of 

this procurement did not violate them. 

2008-5177 10
 The statute does not prohibit all bundling of contract requirements, but only 

“unnecessary and unjustified bundling.” Light on the meaning of this language is 

provided by 15 U.S.C. § 644(e)(2)(A), which states 

Before proceeding with an acquisition strategy that could 

lead to a contract containing consolidated procurement 

requirements, the head of an agency shall conduct market 

research to determine whether consolidation of the 

requirements is necessary and justified. 

 As we have noted, the Corps conducted extensive market research before 

determining that consolidation of the procurement requirements was “necessary and 

justified.” We agree with the Court of Federal Claims 

that the Corps has demonstrated that the consolidation of 

the contract requirements was necessary and justified within 

the meaning of the relevant statutes . . . the Corps’ choice of 

acquisition strategy was dictated by an industry consensus 

that successfully meeting the Army’s goals in construction 

costs and time would require a departure from the Corps’ 

traditional “one project at a time” approach in favor of an 

acquisition strategy that maximized economies of scale. 

Given the Corps’ extensive market research and its detailed 

analysis of the issue, we can find no fault with the Corps’ 

decision to rely on the industry’s counsel. 

Tyler Constr. Group, 83 Fed. Cl. at 103. 

B. Tyler makes an alternative argument challenging the combination or bundling 

of these procurements, based on the requirements of the Small Business 

Competitiveness Demonstration Program Act of 1988, 15 U.S.C. § 644 note, that relate 

to set-asides of government contracts for small business. The Court of Federal Claims 

stated: 

 “As explained in the Act’s introductory findings, traditional 

efforts to implement the mandate for small business 

participation in federal procurements have resulted in an 

over-concentration of small business participation in a limited 

2008-5177 11
number of industry categories, while at the same time failing 

to expand small business participation in certain other 

categories. 15 U.S.C. § 644 note, §§ 702(3)(A), (B). FAR 

§ 19.1007(b), the regulation implementing the Act, thus 

prohibits solicitations in certain designated contract 

categories from being subject to small business set-asides, 

except for those set-asides mandated for socially and 

economically disadvantaged small businesses. 15 U.S.C. 

§ 644 note, §§ 713(a), 717(a), (b), 718(a).” 

Tyler Constr. Group, 83 Fed. Cl. at 103 n.9. 

Tyler concedes that it is not such a disadvantaged small business and that the 

statute would prohibit the Corps from awarding it a contract under a small business setaside. It argues, however, that because the Army had not met its total small business 

set-aside requirement for the year involved, the Corps on its own should have 

requested the Department of Defense to waive the foregoing statutory limitation on setasides for non-disadvantaged small businesses. It contends that the Corps’ failure to 

seek such a waiver constituted an abuse of discretion. 

 Tyler does not state that it requested the Corps to seek such a waiver, that the 

Department of Defense had any administrative procedure for doing so, or that if a 

waiver had been sought it likely would have been granted. Nor is it clear exactly what 

precise waiver was sought. Since Tyler contends that the combination of the individual 

construction projects produced a contract whose dollar amount exceeded the financial 

capacity of small businesses, it would not have aided Tyler if the entire contract project 

had been set aside for small business: The contract still would have been beyond 

Tyler’s financial capacity. What Tyler must have sought, therefore, was the breaking 

down of this large contract into its component parts and separate procurements for each 

part, for which Tyler would have had the financial capacity to compete. 

2008-5177 12
 Seeking such a waiver would have been inconsistent with the Corps’ 

determination that the consolidation of procurement it undertook was “necessary and 

justified.” The Corps did not abuse its discretion in failing sua sponte to seek a waiver 

of that statutory limitation, which would have undone that determination. 

 C. In evaluating Tyler’s contention that the Corps’ handling of this procurement 

was inconsistent with, if not contrary to, the statutory and regulatory provisions involving 

the federal commitment to aiding small business participation in government 

procurement, it is important to consider the Corps’ action here in helping small 

businesses to participate in this procurement. 

 In its “National Acquisitional Strategy” plan for this major military construction, the 

Corps directed that regional acquisition plans “must strike a balance between achieving 

economies of scale and meeting small business and other social-economic goals, as 

well as small-business considerations when unrestricted acquisitions are necessary.” 

The Acquisition Plan that covered this procurement provided that 20 percent of the 

contract dollars be set aside for small business, including 100 percent of the dollar 

amount for certain types of facilities and for projects valued at less than $15 million. 

The solicitation in the present case provided that: “All offerors (both large and small 

businesses) will be evaluated on the level of small business commitment they 

demonstrate for the proposed acquisition, and their prior level of commitment to utilizing 

small businesses in performance of prior contracts.” The Corps established 

“reasonable and achievable” subcontracting goals for the utilization of small businesses, 

including a goal that 70 percent of subcontracted work should be performed by small 

2008-5177 13
2008-5177 14

business. Firms could associate together as teams or joint ventures when submitting 

proposals. 

 The Corps endeavored, as far as practicable, to comply with the statutory and 

regulatory requirements and policies for small business participation in government 

procurement. It cannot properly be faulted for failing to do so because it did comply. 

 D. We have considered Tyler’s other contentions, but they are unconvincing. 

They do not require separate discussion. 

CONCLUSION 

 The judgment of the Court of Federal Claims is 

AFFIRMED.