Federal Circuit Adopts Narrow Definition of “Printing” to Avoid Constitutional Separation of Powers Question

01/20/2021 by Daniel Salmon

The U.S. Court of Appeals for the Federal Circuit recently reversed a bid protest decision appealed from the Court of Federal Claims after the protester raised a constitutional question.  In Veterans4You LLC v. United States, the Department of Veterans Affairs (“VA”), an executive branch entity of the United State government (“USG”), sought to procure cable gun locks with information on the VA’s suicide prevention hotline to be printed on the lock body, on a label attached to the cable, and on a wallet card included with the lock.  However, under 44 U.S.C. §501, the government is required to use the Government Publishing Office (“GPO”), a legislative branch entity, for its printing needs.  Thus, the VA submitted its requisition to the GPO, who then solicited bids for the locks through unrestricted competition, pursuant to the GPO’s Printing Procurement Regulation (“PPR”).

Prior to the opening of bids, Veterans4You, a service-disabled veteran owned small business (“SDVOSB”), filed a GAO protest challenging the GPO’s solicitation because it failed to adhere to 38 U.S.C. §8127(i), which requires the VA to give preference to veteran-owned small businesses (VOSB) and SDVOSBs when soliciting contracts.  The GAO agreed with Veterans4You and recommended that the GPO coordinate with the VA to complete the procurement while adhering to the VA’s requirement.  After a second VA requisition, the GPO’s contracting officer denied the VOSB/SDVOSB preference request, citing the PPR, but stated that it would attempt to comply with the “spirit of VA’s request” by utilizing the VA VOSB/SDVOSB database.  Veterans4You subsequently filed another protest, this time in the Court of Federal Claims, challenging the VA’s obligation to utilize the GPO for the solicitation.

The Court of Federal Claims denied the protest, and Veterans4You appealed the decision to the Federal Circuit. The appeal raised a new challenge to the constitutionality of the statutory mandate to use the GPO, essentially a separation of powers argument.  Veterans4You argued that the 44 U.S.C. 501 mandate was unconstitutional in that it forced executive branch agencies such as the VA to utilize a legislative branch entity for printing services.  After considering the history of the question, wherein both the Clinton and second Bush administrations had officially questioned the constitutionality of the statute, the Federal Circuit observed that the government did not defend the constitutionality of the printing statute standing alone.  To avoid the constitutional question, the court tailored its analysis to consider whether the statute could be construed narrowly to avoid its application to this procurement such that the type of printing information on cable gun locks would not be subject to the GPO printing mandate.

After analyzing the term, “printing,” as used in 44 U.S.C. 501, the Federal Circuit concluded that the term was susceptible to more than one understanding and held that the mandate applied only to the “production of written or graphic published materials” rather than a broader application to any printed matter in any form.  However, the court declined to reach the question of the statute’s constitutionality, even as narrowly applied to the facts of the case.  Thus, the GPO printing mandate remains in effect and open to further challenge.  Ultimately, the court found that the VA’s requirement did not involve printing and therefore did not have to be procured through the GPO.  Based on this holding, the court also declined to consider whether the GPO is required to adhere to the statutory VA preferences for award to VOSB and SDVOSB.

In short, the Federal Circuit has left open an interesting constitutional question, should the proper facts arise.  Are executive branch entities required to utilize the GPO when they have requirements for the “production of written or graphic published materials?”  The answer remains to be determined.

As always, Vandeventer Black’s Government Contracts attorneys are ready to assist their government contractor clients by continuing to stay abreast of new developments in the field.


About the Author:

Government Contracts AttorneyDaniel is an associate in the Construction & Government Contracts practice group working out of the Norfolk office of Vandeventer Black LLP.  His primary focus is supporting his practice group, but he is also interested in technology law and business law. Daniel received his J.D. from Washington University in St. Louis.  During law school, Daniel completed the InSITE Fellowship, where he worked on several interdisciplinary teams that provided consulting services to early-stage start-up companies.  Additionally, he served as a federal judicial extern to the Honorable Nancy J. Rosenstengel of the Southern District of Illinois.  Daniel also served as an Associate Articles Editor for the Washington University Jurisprudence Review. For more information, contact Daniel at dsalmon@vanblacklaw.com.

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