UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ ) GRAY GRAPHICS CORP., ) ) v. ) ) UNITED STATES GOVERNMENT ) PRINTING OFFICE, et al., ) ) Defendants, ) CA 82-2869 ) and ) ) INTERNATIONAL COMPUTAPRINT ) CORPORATION, ) ) Intervenor-Defendant. ) __________________________________) MEMORANDUM AND ORDER In early September, 1982, plaintiff, a small Maryland printing firm, submitted a low bid of approximately $2.7 million in response to defendant Government Printing Office's ("GPO") invitation for bids on a one-year contract beginning October 1st, to print and distribute U.S. Patents. The GPO conducted a routine pre-award survey of plaintiff to determine if it could perform as expected if awarded the contract and concluded that it could not. Consequently on September 27th, it awarded the contract to the second low bidder, intervenor-defendant International Computaprint Corporation ("Computaprint"), the incumbent contractor, at its bid price of approximately $3 million. On October 7, 1982, plaintiff filed this action for injunctive relief (essentially mandamus) against the GPO to compel the referral of the finding of its non-responsibility to the Small Business Administration ("SBA") pursuant to the Small Business Act (the "Act"), 15 U.S.C., § 637(b)(7), before letting the contract to Computaprint. Subparagraph (A) of that statute provides, in pertinent part, that the Small Business Administration shall "...certify to Government procurement officers...with respect to all elements of responsibility [of small business concerns to receive and perform specific Government contracts], including, but not limited to, capability, competency, capacity, credit, integrity, preseverance, and tenacity..." It continues to state: "A Government procurement officer ...may not [for any of the above reasons] preclude any small business concern...from being awarded such contract without referring the matter for a final disposition to the [Small Business] Administration." Subparagraph (C) provides that procurement officers are directed to accept such SBA certifications as conclusive and shall let contracts to small business concerns "...without requiring [them] to meet any other requirement of responsibility or eligibility." (Emphasis added). Following this Court's denial of plaintiff's application for preliminary relief Computaprint intervened as a party-defendant, and all parties have proceeded to the merits on cross-motions for summary judgment, upon the foregoing facts, supported by appropriate affidavits, agreeing as well that plaintiff is a "small business concern" and that referral of the matter of its responsibility to the SBA is mandatory before the contract is awarded elsewhere if the GPO is subject to the Small Business Act, 15 U.S.C., § 631 et seq. They also agree that the GPO is an agency of the legislative branch of government. See United States v. Allison, 91 U.S. 303 (1875). Whether the Act applies to the GPO defends, of course, upon whether Congress intended it to do so.1 The Act applies to "Federal agencies," 15 U.S.C., § 632(b), as that term is defined in the Administrative Procedure Act, 5 U.S.C., § 551(1), which, in its turn, defines "agency" as "each authority of the Government of the United States...," excluding, inter alia, "the Congress," subsuming, according to defendants, all legislative branch agencies. But 15 U.S.C., § 632(b) itself also expressly exempts two other "authorities" of the United States from its operation: the U.S. Postal Service and the General Accounting Office ("GAO") - the latter being a legislative branch agency, too - while making no mention at all of the GPO. The legislative history is equivocal. The definitional section was added by the 1978 amendments to the Act which originated in and passed the House of Representatives as H.R. 11318, 95th Cong., 1st Sess. (1977), sans the definitions which were added by one Senate committee without comment and amended by a second (the Committee on Governmental Affairs) to add the express exclusion of the Postal Service and GAO, stating in its report that its "...definition of 'agency' excludes the United States Postal Service, the General Accounting Office, and agencies in the legislative and judicial branches." S. Rep. No. 1140, 95th Cong., 2nd Sess. 12 (1978) (emphasis added). The final clause of the report, however, was not reiterated in the statutory language itself, nor was it added by the Conference Committee which adopted the Senate's definitional section, also without comment. H.R. Rep. No. 1714, 95th Cong., 2nd Sess., (1978). The bill, including the definitional section, 15 U.S.C., § 637c(2), became law on October 24, 1978.2 Arguing from the premise expressio unius est exclusio alterius plaintiff asserts that the failure to number the GPO with the Postal Service and the GAO as an agency not subject to the Small Business Act indicates a legislative intent to treat the GPO as an agency which is subject to the Act. It also says that Congress meant precisely what it said when it exempted "the Congress" from the APA in 1946, i.e., the Senate and the House of Representatives but not its various appendages, and when the statutory language is clear, plaintiff notes, legislative history is irrelevant. Ex parte Collett, 337 U.S. 55, 61 (1948).3 Defendants assert that the doctrine of separation of powers has historically resulted in agencies in the different branches of government being treated separately notwithstanding similarities of function. See Pickus v. Board of Parole, 507 F.2d 1107, 1112 (D.C. Cir. 1974). On the other hand Congress has shown no reluctance to subject its own agencies to legislation implementing what it intends to be a government-wide policy, see Thompson v. Sawyer, 678 F.2d 257, 264 (D.C. Cir. 1982), and it is the declared "policy of the United States," according to the 1978 amendments to the Small Business Act, that "small business concerns" should "...have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency." 15 U.S.C., § 637(d)(1) (emphasis added). No reason is suggested as to why that policy should not obtain as well to the public printer as to any other governmental agency which might otherwise prefer to deal with more established firms.4 There appear to be no controlling judicial decisions in point. Nevertheless, the Court holds that the GPO is not subject to the Small Business Act for the reason that the SBA itself does not now and has never regarded the GPO to be subject to its jurisdiction, (Affidavit of Donald W. Farrell, Esq., Associate General Counsel of the SBA, of November 2, 1982). In the absence of compelling authority to the contrary, the Court is obliged to give great deference to an agency's own determination of its authority. United States v. Rutherford, 442 U.S. 544, 552-54 (1979); Udall v. Tallman, 380 U.S. 1, 16-17 (1965); Department of Defense, Army-Air Force Exchange Service v. F.L.R.A., 659 F.2d 1140, 1161-62 (D.C. Cir. 1981). Therefore, it is, the 20th day of December, 1982, ORDERED, that defendants' cross-motion for summary judgment is denied; and it is FURTHER ORDERED, that plaintiff's complaint is dismissed with prejudice. Thomas Penfield Jackson U.S. District Judge December 20, 1982 _______________ 1 Computaprint contends that plaintiff's deficiencies are so extensive that it is unlikely to receive SBA's certification of its competency in any event, an issue as to which material facts are in dispute but also one unnecessary to decide. 2 The legislative history of the definitional sections of both the Small Business Act and the APA are meticulously traced in the federal defendants' brief, at pp. 10-14, and plaintiff's brief at 4-7, to reach diametrically opposed results. 3 At oral argument plaintiff also, observed that the specific section of the statute in issue, 15 U.S.C., § 637(b)(7) (A-C), nowhere speaks of "agencies" but, rather, of "government procurement officers" without regard to the agencies for whom they work, thus, making the meaning of "agency" irrelevant. Defendants point out that the definitional section declares a "government procurement contract" to be any contract for the procurement of goods or services by a "Federal agency," importing the meaning of "agency" back into the debate once more. 4 The GPO says, however, that of the approximately 260,000 contracts it lets annually, over 90% are awarded to small businesses notwithstanding it is under no compulsion to do so. (Affidavit of Patricia R. Havey, Manager of the Printing Procurement Department, GPO, of October 18, 1982).