NISH v. Cohen

Court Case Details
Court Case Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NISH; G

S

,

OODWILL

ERVICES

I

,

NCORPORATED

Plaintiffs-Appellants,

v.

W

S. C

, Secretary of

ILLIAM

OHEN

Defense; L

C

, Secretary

OUIS

ALDERA

of the Army,

Defendants-Appellees,

R

-S

V

ANDOLPH

HEPPARD

ENDORS OF

No. 00-1632

A

; A

C

MERICA

MERICAN

OUNCIL OF THE

B

; N

E

LIND

ATIONAL

DUCATIONAL AND

L

S

B

;

EGAL

ERVICES FOR THE

LIND

V

F

V

;

IRGINIA

ACILITIES

ENDORS

N

F

B

;

ATIONAL

EDERATION OF THE

LIND

S

T

, ex rel Texas

TATE OF

EXAS

Commission for the Blind; S

TATE OF

O

, ex rel Oklahoma

KLAHOMA

Department of Rehabilitation
Services,

Intervenors-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Gerald Bruce Lee, District Judge.

(CA-99-1632)

Argued: December 6, 2000

Decided: April 18, 2001

Before TRAXLER and KING, Circuit Judges, and

Terrence W. BOYLE, Chief United States District Judge for the

Eastern District of North Carolina, sitting by designation.

2

NISH v. C

OHEN

Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Traxler and Chief Judge Boyle concurred.

COUNSEL

ARGUED: John S. Pachter, SMITH, PACHTER, MCWHORTER &
D’AMBROSIO, P.L.C., Vienna, Virginia, for Appellants. Jeffrica
Jenkins Lee, Appellate Staff, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees
Cohen, et al.; Andrew David Freeman, BROWN, GOLDSTEIN &
LEVY, L.L.P., Baltimore, Maryland, for Appellees Randolph-
Sheppard, et al. ON BRIEF: Joseph C. Luman, Christopher Wheeler,
LUMAN, LANGE & WHEELER, Washington, D.C., for Appellants.
David W. Ogden, Assistant Attorney General, Helen F. Fahey, United
States Attorney, William Kanter, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellees Cohen, et al. John P.
Rowley, III, Christopher P. Yukins, David S. Black, HOLLAND &
KNIGHT, L.L.P., Falls Church, Virginia; Peter A. Nolan, SHEIN-
FELD, MALEY & KAY, P.C., Austin, Texas, for Appellees
Randolph-Sheppard, et al.

OPINION

KING, Circuit Judge:

In this action arising in the Eastern District of Virginia, plaintiffs

NISH and Goodwill Services, Incorporated (collectively "NISH"),
appeal the district court’s award of summary judgment to Secretary
of Defense Cohen and Secretary of the Army Caldera ("Secretaries"),
the defendants below. NISH sought a declaratory judgment with
respect to the proper interpretation of the Randolph-Sheppard Act
("RS Act"), particularly its applicability to the operation of military
mess hall facilities at Fort Lee, Virginia. The district court concluded
that the RS Act applies to the operation of such facilities, and there-
fore NISH was not entitled to negotiate the contract for mess hall ser-
vices at Fort Lee. For the reasons set forth below, we affirm.

NISH v. C

3

OHEN

I.

A.

The RS Act, 20 U.S.C. § 107, was enacted in 1936 to enlarge eco-

nomic opportunities of the blind, by giving blind persons priority to
operate vending facilities on federal property. This appeal focuses on
a 1974 amendment to the RS Act, by which the term "vending stand"
in § 107e(7) was changed to "vending facility," and by which the stat-
utory definition of vending facility was set forth as including "auto-
matic vending machines, cafeterias, snack bars, cart services, shelters,
[and] counters[.]" Id. § 107e(7). In this appeal, we specifically deal
with the meaning of the statutory term "cafeterias," and we must
decide whether that term encompasses military mess hall facilities.

B.

The factual predicate for this litigation is straightforward. NISH is

a nonprofit agency designated in the Code of Federal Regulations, see
41 C.F.R. § 51-3.1, to represent other nonprofit agencies employing
the severely disabled in the production of items and services for pur-
chase by government agencies under the Javits-Wagner-O’Day Act,
41 U.S.C §§ 46-48c ("JWOD Act").

In November 1998, NISH

1

expressed interest in an anticipated replacement contract for mess hall
services at Fort Lee. Subsequently, on June 30, 1999, before NISH
had made a formal proposal on the Fort Lee contract, the Virginia
Agency for the Blind contacted officials at Fort Lee to convey its
interest in bidding for the same contract, in accordance with the provi-
sions of the RS Act. At the time the competing interests became

The JWOD Act empowers the Committee for Purchase from People

1

Who Are Blind or Severely Disabled ("Committee"), whose mission is
to provide opportunities for its clientele — nonprofit agencies employing
the blind or severely disabled — in producing goods and services sold
to the federal government. Like the RS Act, the JWOD Act was enacted
for the benefit of the blind, but it was later amended to include the
severely disabled. The Committee publishes the statutorily mandated
"procurement list" referred to in the accompanying text, which identifies
commodities and services produced by eligible nonprofit agencies. See
infra
Part I.C.2.

4

NISH v. C

OHEN

apparent, Fort Lee’s mess hall services contract had not been placed
upon the "procurement list" mandated by § 47(a) of the JWOD Act.

In an effort to reconcile application of the RS Act with the provi-

sions of the JWOD Act, the contracting officer responsible for food
service operations at Fort Lee ("Contracting Officer") sought assis-
tance and advice from various sources, including Fort Lee’s legal
staff, the Army’s Training and Doctrine Command ("TRADOC"), and
the Army’s Office of the Principal Assistant Responsible for Con-
tracting. In addition, the Contracting Officer consulted a November
12, 1998 memorandum prepared by the General Counsel of the
Department of Defense ("DOD"), as well as a March 22, 1999 memo-
randum from the Deputy Assistant Secretary of the Army for Procure-
ment. These memoranda discuss and analyze the applicability of the
RS Act to DOD military dining facilities, and they also address the
application of Army Regulation 210-25, which implements the RS
Act within the Army.

Using these guideposts, the Contracting Officer determined that the

mess hall facilities at Fort Lee were "cafeterias" under the terms of
the RS Act, specifically 20 U.S.C. § 107e(7), primarily because they
were "prepared food serving lines with table seating facilities." Decl.
of Terry A. Hyatt (Contracting Officer) (Feb. 16, 2000), J.A. 349.
Having concluded that the RS Act applied to Fort Lee’s food service
requirements, the Contracting Officer then ascertained that it was
inappropriate to negotiate an acquisition contract with NISH to pro-
vide mess hall services at Fort Lee. After being informed of the Con-
tracting Officer’s final decision, NISH commenced this proceeding in
the district court, seeking, inter alia, a declaration that the RS Act
does not apply to contracts to provide military mess hall services.
From the adverse ruling below, NISH takes this appeal. We possess
jurisdiction pursuant to 28 U.S.C. § 1291.

C.

NISH contends that the JWOD Act — and not the RS Act —

applies to and controls the award of the mess hall services contract
at Fort Lee. The JWOD Act governs, according to NISH, because a
third statute — the Competition in Contracting Act — precludes

NISH v. C

5

OHEN

application of the RS Act in this instance. A brief overview of all
three statutes is therefore in order.

1.

The RS Act was enacted by Congress with the purpose of provid-

ing employment opportunities and encouraging the economic self-
sufficiency of blind persons. 20 U.S.C. § 107; see Committee of Blind
Vendors v. District of Columbia
, 28 F.3d 130, 131 (D.C. Cir. 1994).
As we have noted, the RS Act was amended in 1974, effectively
establishing a cooperative federal-state program that gives contracting
priority to blind persons operating vending facilities on federal prop-
erty. See Committee of Blind Vendors, 28 F.3d at 130 (citing § 107(a)-
(b)).

The 1974 amendment directs the Department of Education

("DOE") to promulgate regulations to ensure that, whenever feasible,
one or more vending facilities are established on all federal proper-
ties, and that priority in their operation is given to licensed blind per-
sons. See 20 U.S.C. § 107(b). The Secretary of DOE is authorized to
oversee implementation of the RS Act through the Commissioner of
the Rehabilitative Services Administration ("Commissioner"). Id.
§ 107d-3(e). Among the duties assigned to the Secretary of DOE is
the designation of State Licensing Agencies ("SLAs"), which are
authorized to issue licenses to blind citizens for the operation of vend-
ing facilities on federal property for the sale of newspapers, maga-
zines, tobacco products, foods, beverages, and other items. Id.
§ 107a(a)(5). The Virginia Agency for the Blind, as well as the vari-
ous intervenors in this litigation, are SLAs designated by the Secre-
tary of DOE to participate in contracts under the RS Act.

2.

The JWOD Act was enacted in 1971, and it established an indepen-

dent federal agency now known as the Committee for Purchase from
People Who Are Blind or Severely Disabled ("Committee"). See
supra
note 1. The primary objective of the Committee is to provide
training and employment opportunities for persons who are blind or
have severe disabilities. See Barrier Indus., Inc. v. Eckard, 584 F.2d
1074, 1076 (D.C. Cir. 1978). The Committee is required to publish

6

NISH v. C

OHEN

the procurement list, consisting of commodities and services that it
considers suitable for purchase by the government from qualified
nonprofit agencies for the blind and disabled. See 41 U.S.C.
§ 47(a)(1). The procurement list is generally a mandatory procure-
ment source for the federal government, i.e., a government agency
wishing to obtain a commodity or service listed by the Committee is
required to obtain the item from the qualified agency at the price
established by the Committee. See id. § 48. The JWOD Act offers a
"sheltered" environment, permitting individuals with disabilities to
work for entities such as plaintiff Goodwill Services. By comparison,
the RS Act takes a slightly different tack by encouraging blind per-
sons to be entrepreneurial and to run their own businesses.

3.

NISH’s position on appeal, however, hinges primarily upon a third

statute, the Competition in Contracting Act, 10 U.S.C. § 2304
("CICA"). CICA, enacted in 1994, requires that the military use "full
and open competition
" when contracting for "property or services[,]"
except "in the case of procurement procedures otherwise expressly
authorized by statute[.]" Id. § 2304(a)(1). The JWOD Act, for exam-
ple, embodies procurement procedures explicitly exempted by CICA.
See id. § 2304(f)(2)(D). NISH maintains that, because the RS Act
does not specifically encompass military mess hall facilities, and does
not authorize "procurement," its auspices do not provide a similar
statutory procurement procedure. Thus, according to NISH, CICA
precludes the RS Act from governing the contract for mess hall ser-
vices at Fort Lee.

II.

Since the facts underlying this appeal are not in dispute, the district

court decided the questions of law by way of summary judgment. We
review its decision de novo. See Providence Square Assocs., L.L.C.
v. G.D.F., Inc.
, 211 F.3d 846, 850 (4th Cir. 2000). In this instance,
the district court, ruling in favor of the Secretaries, held that the mess
hall facilities at Fort Lee are "cafeterias" on eligible federal property,
and that licensed blind organizations, such as the Virginia Agency for
the Blind, are thereby accorded the favorable treatment prescribed by
the RS Act.

NISH v. C

7

OHEN

The rule to be applied here is that enunciated by the Supreme Court

in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 843 (1984). When a statute, in this instance, the RS
Act, "is silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency’s answer is based on a
permissible construction of the statute." Id. Accordingly, when an
agency determination that is entitled to deference is being challenged
— as in this case — we defer to the agency’s interpretation if it
"give[s] reasonable content to the statute’s textual ambiguities."
Department of Treasury, IRS v. FLRA, 494 U.S. 922, 933 (1990). A
reviewing court may not second-guess the wisdom of the agency’s
reasonable policy choice. Chevron, 467 U.S. at 866.

2

When, as here, an agency, such as DOE, is charged with imple-

mentation of a statute, its policy decisions are entitled to deference.
See Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155, 161
(4th Cir. 1998) ("[A] precondition to deference under Chevron is a
congressional delegation of administrative authority.") (quoting
Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990)), aff’d 529 U.S.
120 (2000); see also Randolph-Sheppard Vendors of Am. v. Weinber-
ger
, 795 F.2d 90, 111 (D.C. Cir. 1986) ("The scope of the statute and
the regulations promulgated thereunder should, in the first instance,
be one for the agency charged with its administration."); cf. Newport

NISH contends that Chevron deference does not apply because this

2

case "involves pure statutory interpretation[.]" Appellant’s Br., at 20. To
buttress its position, NISH relies on an inapposite and unpublished deci-
sion of this Court, EFCO Corp. v. NLRB, Nos. 99-1147, 99-1277, 2000
WL 632468, at *3-4 (4th Cir. May 17, 2000) (refusing to apply Chevron
deference to a decision of the NLRB, because the "Board was engaged
in the classic judicial exercise of resolving competing claims under the
statute, a function which does not implicate the Supreme Court’s central
concerns in Chevron") (citation omitted). In addition to running afoul of
Local Rule 36(c) (citation of unpublished opinions disfavored), NISH’s
position on this issue must be rejected because it contravenes the explicit
instructions of Chevron. Furthermore, this is not a case where the statutes
at issue unambiguously conflict with the result reached by the Contract-
ing Officer. See Chevron, 467 U.S. at 842-43 (holding that courts should
reject agency interpretations that are contrary to unambiguous and clear
congressional intent). Indeed, as we explain, the relevant statutes man-
date that the RS Act applies to the Fort Lee contract.

8

NISH v. C

OHEN

News Shipbldg. & Dry Dock Co. v. Stilley, No. 00-1155, 2001 WL
242187, *1 (4th Cir. Mar. 12, 2001) (refusing to accord deference to
adjudicatory board not charged with policy making role).

III.

A.

We first analyze the plain meaning of the RS Act, and we must

decide whether it reasonably encompasses military mess hall facili-
ties, including those at Fort Lee. The term "cafeterias" — found in the
1974 amendment — is not otherwise defined in the RS Act. However,
duly promulgated regulations of both DOE and DOD describe "cafe-
terias" as "food dispensing" and "capable of providing [or currently
providing] a broad variety of prepared foods and beverages (including
hot meals) primarily through the use of a [serving] line where the cus-
tomer serves [or selects for] himself from displayed selections." 34
C.F.R. § 395.1(d) (1999) (DOE); 32 C.F.R. § 260.6(b) (1999) (DOD)
(bracketed terms are exclusive to DOD regulations).

Moreover, both

3

the DOD and DOE regulations explain that a cafeteria may be "fully
automatic" or with "some limited waiter or waitress service." Id.

4

The RS Act requires DOE to promulgate regulations establishing

priority for blind vendors to operate cafeterias, subject to certain
restrictions. See 20 U.S.C. § 107d-3(e).

DOE regulations offer two

5

The RS Act’s regulations are consistent with common definitions of

3

"cafeteria." For example, one dictionary defines the term as "a self-
service restaurant or lunchroom." Webster’s Third New International
Dictionary 313 (3d ed. 1976).

The DOE and DOD regulations each specify that "[t]able or booth

4

seating facilities are always provided." 34 C.F.R. § 395.1(d) (1999)
(DOE); 32 C.F.R. § 260.6(b) (1999) (DOD).

The DOE regulations, promulgated pursuant to the RS Act, provide:

5

Priority in the operation of cafeterias by blind vendors on Fed-
eral property shall be afforded when the Secretary determines, on
an individual basis, and after consultation with the appropriate
property managing department, agency, or instrumentality, that
such operation can be provided at a reasonable cost, with food

NISH v. C

9

OHEN

options by which a federal agency may implement the priority man-
dated for blind vendors. First, the agency may "[e]stablish the ability
of blind vendors to operate a cafeteria . . . at comparable cost and of
comparable high quality [by inviting SLAs] to respond to solicitations
. . . when a cafeteria contract is contemplated." 34 C.F.R. § 395.33(b).
Second, the agency may, in the alternative, enter into direct negotia-
tions with the SLA to implement the cafeteria priority. If the agency
determines that the SLA proposal is competitive, and if the SLA pro-
posal has been ranked among those that have a reasonable chance of
being selected for final award, the agency is to consult with DOE. See
id.
§ 395.33(b), (d). If, however, the SLA proposal is determined not
to be within the competitive range, the agency may award the contract
to the most highly evaluated offeror. See 32 C.F.R. § 260.3(g)(1)(i).

Plaintiffs contend that military mess hall facilities are not "cafete-

rias" under the RS Act because, in contrast to typical cafeterias
(where meals are purchased by the general public from private funds),
meals at military mess halls are provided to soldiers from appropri-
ated funds, as part of the military mission. Indeed, the RS Act
exempts certain military-controlled vending facilities from its provi-
sions. By its terms, the RS Act does not apply to "income from vend-
ing machines
within retail sales outlets under the control of exchange

of a high quality comparable to that currently provided employ-
ees, whether by contract or otherwise. Such operation shall be
expected to provide maximum employment opportunities to
blind vendors to the greatest extent possible.

34 C.F.R. § 395.33(a).

The DOD regulations regarding cafeteria contract priorities are strik-

ingly similar to those promulgated by DOE. See 32 C.F.R.
§ 260.3(g)(1)(i)-(iii) (1999); see also 43 Fed. Reg. 25337, 25338 (1978)
(explaining that DOD intended to implement rules consistent with those
of DOE). This fact is significant, underscoring the point that DOD’s role
in implementation of the RS Act is primarily to follow the decisions of
DOE. It is DOE’s administration of the RS Act that is authorized by stat-
ute, and thus entitled to deference. Shanty Town Assocs. Ltd. P’ship v.
EPA
, 843 F.2d 782, 790 n.12 (4th Cir. 1988) (concluding that there is no
deference accorded interpretation of a statute that agency does not
administer).

10

NISH v. C

OHEN

or ships’ stores systems . . . [or] by the Veterans Canteen Service[.]"
20 U.S.C. § 107d-3(d) (emphasis added). Significantly, however, the
RS Act makes no such distinction regarding cafeterias. Instead, it sim-
ply indicates that cafeterias are to be considered covered under the RS
Act as "vending facilities." See id. § 107e(7).

The Fort Lee facilities at issue do not fall under the explicit vend-

ing machine exception contained in the RS Act. And it would be inap-
propriate for us to read an additional exception into the RS Act. The
omission by Congress of language in one section of a statute that is
included in another section of the same statute generally reflects Con-
gress’s intentional and purposeful exclusion in the former section. See
Piney Mountain Coal Co. v. Mays
, 176 F.3d 753, 765 (4th Cir. 1999)
(citing Russello v. United States, 464 U.S. 16, 23 (1983)). Thus, there
is no basis for us to conclude that the Contracting Officer acted unrea-
sonably in deciding that the term "cafeterias" applies to the mess hall
facilities at Fort Lee.

6

B.

NISH also contends that CICA prevents the RS Act from applying

to the contract for mess hall services at Fort Lee, and that the JWOD
Act instead applies. Under CICA, any expenditure of tax dollars on
federal procurements through means other than open competition
must be expressly authorized by statute. See 10 U.S.C. § 2304(a)(1).
The Secretaries maintain, however, that the competition requirements
of CICA do not apply to the RS Act because of the exception for
"procurement procedures otherwise expressly authorized by statute."

We also find no support for NISH’s contention that military mess

6

halls are not "vending facilities" because no point of sale transaction
occurs and because the vendor does not set a price for sale to the public.
Whether such mess halls actually engage in "vending," under the ordi-
nary meaning of "vending," is irrelevant. Congress specifically defined
"vending facilities" as, inter alia, "cafeterias" for purposes of 20 U.S.C.
§ 107e(7), and DOE has properly construed the term "cafeterias" to
include military mess halls. See, e.g., United States v. Midgett, 198 F.3d
143, 146 (4th Cir. 1999) (concluding that courts should only look to the
ordinary meaning of a statutory term in the "absence of a definition from
Congress").

NISH v. C

11

OHEN

Id. Indeed, the RS Act contains an authorized set of procurement pro-
cedures, see supra Part III.A, that would seem to make CICA inappli-
cable here. NISH contends, on the other hand, that because the RS
Act is not itself a statutory procurement procedure, the RS Act fails
to meet CICA’s exemption for "procurement procedures otherwise
expressly authorized by statute[.]"

CICA, however, broadly defines "procurement" as including "all

stages of the process of acquiring property or services, beginning with
the process for determining a need for property or services and ending
with contract completion and closeout." 10 U.S.C. § 2302(3)(A)
(adopting the definition of "procurement" in the Office of Federal
Procurement Policy Act, 41 U.S.C. § 403). The provisions of the RS
Act clearly fit this sweeping definition of procurement. Indeed, it
authorizes the Secretary of DOE to secure "the operation of cafeterias
on Federal property by blind licensees . . . whether by contract or oth-
erwise." 20 U.S.C. § 107d-3(e).

Our adoption of the contrary position

7

— that the RS Act is not a procurement statute pursuant to CICA —
would require a misreading and misapplication of both statutes.

C.

Finally, we analyze the provisions of the JWOD Act itself, absent

the limitations imposed by CICA. On their face, both the RS Act and
the JWOD Act appear to apply in this case. The Contracting Officer
observed this apparent conflict, but followed the advice of TRADOC
that "[i]t is a basic tenet of statutory construction that when two stat-
utes ostensibly apply, the more specific of the two control[s]." Decl.
of Terry A. Hyatt (Feb. 16, 2000), J.A. 350. We find the conclusion
of TRADOC and the Contracting Officer on this point to be not only

NISH also points to the Federal Acquisition Regulation ("FAR"),

7

which, by its terms, does not apply when "statutes, such as the following,
expressly authorize or require that acquisition be made from a specified
source or through another agency." 48 C.F.R. § 6.302-5(b) (1998) (listing
statutes). NISH relies on the omission of any reference to the RS Act in
this portion of FAR as evidence that the RS Act does not involve govern-
ment purchases of goods or services. NISH’s reliance on FAR is mis-
placed, however, because FAR — by use of the phrase "such as the
following" — makes clear that its list is not exhaustive.

12

NISH v. C

OHEN

reasonable, but also entirely correct. The RS Act deals explicitly with
the subject at issue — the operation of cafeterias — whereas the
JWOD Act is a general procurement statute. Because the RS Act is
a "specific statute closely applicable to the substance of the contro-
versy at hand[,]" it must control. Sigmon Coal Co. v. Apfel, 226 F.3d
291, 302 (4th Cir. 2000) (citing Farmer v. Employment Sec. Comm’n
of North Carolina
, 4 F.3d 1274, 1284 (4th Cir. 1993)); see also
HCSC-Laundry v. United States
, 450 U.S. 1, 6 (1981); Radaznower
v. Touche Ross & Co.
, 426 U.S. 148, 153 (1976).

D.

In addition to devising and implementing regulations, DOE has

been quite explicit and consistent in expressing its position regarding
the applicability of the RS Act to military mess hall facilities. Cf.
Credit Union Ins. Corp. v. United States
, 86 F.3d 1326, 1332 (4th Cir.
1996) ("[W]e accord much less deference to an agency’s interpreta-
tions of a statute that conflict with the agency’s previous interpreta-
tions of that same statute."). In addressing the issue, the
Commissioner decided that "the RS Act clearly covers all types of
food service operations on military bases, including military troop
mess halls[.]" Mem. of Frederick K. Schroeder, Commissioner of
Rehabilitative Services Administration (Aug. 14, 1997), J.A. 675-78.
The Commissioner concluded:

Any attempt to draw a distinction between appropriated
funded cafeterias and concession cafeterias is merely a fic-
tion to justify placing full food service activities on Com-
mittee’s procurement list. There is no basis either in the Act
or in the legislative history for [such a] position.

Id. at 678. Similarly, the General Counsel of DOD, after reviewing
and analyzing the RS Act, the applicable regulations, and other DOE
memoranda, determined that "the assertion that the Act does not apply
to military dining facilities cannot withstand analysis." Mem. of
Judith A. Miller, General Counsel of DOD (Nov. 12, 1998), J.A. 670-
73.

Furthermore, the Comptroller General of the United States has

twice opined that an appropriated funds food service contract consti-

NISH v. C

13

OHEN

tutes a cafeteria subject to the RS Act’s priorities. See Matter of:
Dep’t of the Air Force—Reconsideration
, 1993 WL 212641 at *7;
Comptroller General of the United States, Opinion Letter to Senator
Jennings Randolph, B-176886 (June 29, 1976) ("Nowhere is there
support for the view that the [RS Act], even by implication, contem-
plates priority to be given to only those vending facilities where a
sales transaction takes place contemporaneously with the vendee
obtaining the articles purchased.") (emphasis in original). Although
the decisions of the Comptroller General were announced before
CICA was enacted, and come from a political authority which has
been characterized as "undeserving of judicial deference[,]" Delta
Chem. Corp. v. West
, 33 F.3d 380, 382 (4th Cir. 1994), we find it sig-
nificant that yet another federal government decisionmaker has found
that the RS Act applies in a similar instance.

Insofar as the Contracting Officer’s decision conforms with the

various governmental authorities that have previously considered the
issue, the reasonableness of her decision is strongly indicated. While
the fact of consistency, standing alone, may not warrant affirmation
of her judgment, our independent analysis confirms that her applica-
tion of the RS Act was both permissible and correct.

IV.

For these reasons, we find that the district court correctly upheld

the Contracting Officer’s decision that the RS Act applies to the mess
hall facilities at Fort Lee. The judgment of the district court must
accordingly be affirmed.

AFFIRMED

Referenced Cases

  1. Committee of Blind Vendors of the District of Columbia v. District of Columbia
  2. Randolph-Sheppard Vendors of America v. Caspar W. Weinberger v. Caspar W. Weinberger
  3. Barrier Industries, Inc. v. Jack M. Eckard
  4. Radzanower v. Touche Ross & Co.
  5. Chevron USA Inc. v. Natural Resources Defense Council, Inc.
  6. Adams Fruit Co. v. Barrett
  7. Department of Treasury, IRS v. FLRA
  8. Russello v. United States
  9. HCSC-Laundry v. United States
  10. FDA v. Brown & Williamson Tobacco Corp.
  11. Sigmon Coal Company v. Kenneth S. Apfel
  12. Shanty Town Associates Limited Partnership v. Environmental Protection Agency Worcester County Sanitary Commission State of Maryland
  13. Providence Square Associates v. G.D.F. v. Boney Wilson & Sons
  14. Piney Mountain Coal Company v. Shirley Mays
  15. Almeda Farmer Jacqueline v. Employment Security Commission of North Carolina Carolina Employers' Association
  16. United States v. Thomas Lee Midgett, III
  17. Credit Union Insurance Corporation v. United States
  18. Delta Chemical Corporation v. Togo D. West