MOTION TO DISQUALIFY HEARING JUDGE DENIED:
February 4, 1994
GSBCA 11643-P-REM
BIRCH & DAVIS INTERNATIONAL, INC.,
Protester,
v.
AGENCY FOR INTERNATIONAL DEVELOPMENT,
Respondent.
Shelton H. Skolnick, Judy D. Leishman, Amy M. Hall, Wayne
Finegar, and Bruce Trimble of Skolnick & Leishman, P.C., Derwood,
MD; and Brian P. Hochheimer, General Counsel and Chief Financial
Officer of Birch & Davis International, Inc., Silver Spring, MD,
counsel for Protester.
Robert Sonenthal and Jeffrey Marburg-Goodman, Office of the
General Counsel, Agency for International Development,
Washington, DC, counsel for Respondent.
Before Board Judges LaBELLA, NEILL, and HYATT.
NEILL, Board Judge.
This protest, filed by Birch and Davis International, Inc.
(BDI), was denied by the Board on February 27, 1992. Birch &
Davis International, Inc. v. Agency for International
Development, GSBCA 11643-P, 92-2 BCA 24,881, 1992 BPD 63. It
concerns the procurement of a computerized management information
system for the Egyptian Health Insurance Organization. The
procurement is being conducted by the Agency for International
Development (AID).
A subsequent request for reconsideration was also denied.
Birch & Davis International, Inc. v. Agency for International
Development, GSBCA 11643-P-R, 92-3 BCA 25,082, 1992 BPD 121.
BDI then appealed the Board's decision. The decision was vacated
by the Court of Appeals for the Federal Circuit and remanded for
such proceedings as may be necessary consistent with the Court's
opinion. Birch & Davis International, Inc. v. Christopher, 4
F.3d 970 (Fed. Cir. 1993).
On October 28, 1993, after receiving the mandate from the
Court of Appeals, the Board convened a status conference with
counsel for the parties. At that time, the Board discussed with
counsel its plans to issue a new decision. During that
conference, a briefing schedule was established. Conference
Memorandum (Oct. 28, 1993) at 2.
On November 22, shortly before its brief was due, protester
filed two motions. In the first motion, protester moved to
disqualify the hearing judge. In the second motion, protester
moved to reopen the record to introduce evidence that
approximately eleven months of negotiations were required for AID
and the awardee to correct deficiencies in the awardee's
proposal.
In accordance with Rule 8 of the Board's Rules of Procedure,
counsel for respondent was given the opportunity to file an
opposition to protester's motions. Upon receipt of the
opposition, protester sought and received authorization to
comment on respondent's submissions. A similar request was later
made by counsel for respondent upon receipt of protester's
comments. Counsel for respondent was then given until December
23 to file his comments.
Upon consideration of the comments filed by both parties and
for the reasons set out herein, the Board denies in this decision
protester's motion to disqualify the hearing judge. In a
separate order issued this same date, the hearing judge has
granted protester's motion to reopen the record.
Background
Protester's motion to disqualify the hearing judge was
prompted by a comment made by Judge Neill at the close of a
status conference convened on October 28, 1993. The comment and
the discussion which led up to it are summarized in the Board's
memorandum of that conference. The memorandum reads:
The hearing judge observed that because the original
decision had not been reversed but rather vacated and
returned for further processing, he had concluded that
the Board is expected to issue a new decision with more
detailed findings of fact to support the conclusions
reached.
There was a brief discussion regarding the opening
of the evidentiary record for this case. The hearing
judge stated that he did not consider it appropriate to
reopen the record. In fairness to the parties, any new
decision should be based on the same record relied on
for the first decision.
Counsel for protester asked if the outcome in this
second decision might be different from that reached in
the first. The hearing judge replied that he did not
believe it would since the record would remain the
same. The new decision will be different only to the
extent that it will explicate in greater detail the
facts and rationale supporting the Board's conclusions.
Although the decision was made not to open the
evidentiary record, the Board nonetheless invited
counsel to submit briefs if they wish. The briefs
presumably will address what the parties perceive to be
the ramifications of the decision rendered by the Court
of Appeals in this case. It was agreed that these
briefs should be filed no later that [sic] the Board's
close of business on November 30, 1993.
Conference Memorandum (Oct. 28, 1993) at 2.
Protester complains: "Judge Neill has already decided the
outcome of this remand without a thorough review of the record
under the new standard to be applied." BDI's Motion To
Disqualify Hearing Judge at 2. This, argues protester,
"indicates a lack of neutrality and thus requires Judge Neill to
refrain from further involvement in the proceedings." Id.
Discussion
It is regrettable that counsel for protester reached the
conclusion they did regarding the remarks made by the hearing
judge at the status conference of October 28. When reasonably
viewed in the overall context of these proceedings, however, the
comments do not, in our opinion, require us to grant protester's
motion to disqualify Judge Neill.
The judge's statement regarding the outcome of this case on
remand was not intended to be categorical. It was not offered
after any formal deliberation or reflection, but rather in
spontaneous response to a question posed by one of protester's
attorneys toward the close of an informal conference. It was a
personal opinion and not represented as reflecting the thinking
of the three judge panel to which this case has been assigned.
From the context, the hearing judge's reply was based upon his
own assessment, at that time, of the implications of the opinion
of the Court of Appeals. Just what these implications were,
however, was still an open issue. The establishment of a
briefing schedule on this precise issue confirms that
fact.[foot #] 1
----------- FOOTNOTE BEGINS ---------
[foot #] 1 In its most recent submission, respondent
contends that "far too much time and resources have already been
spent in briefing appellant's meritless motions . . . ." While
we can understand counsel's frustration, we nonetheless find real
(continued...)
----------- FOOTNOTE ENDS -----------
Finally, the judge's statement was prematurely given and was
premised on his initial assumption that the record should remain
unchanged. That too was an issue which the parties in subsequent
submissions could ask the Board to revisit. Protester has, in
fact, done this in its motion to reopen the record. The hearing
judge's determination to grant that motion further reduces any
significance attached to his earlier remarks.
Our decision to deny protester's motion to disqualify the
hearing judge, however, is based on more than our conclusion that
the judge's comments should not reasonably be construed as
indicating bias or predisposition. We also reject the motion
because we find the rationale offered in support of it to be
unconvincing.
Protester's motion is based on a reading of an agency
standard of conduct which we believe is unreasonable. It is also
based on the assumption that the Court of Appeals found that the
Board failed to apply the correct standard in reviewing the
contracting officer's decision to exclude BDI from the
competitive range. For reasons explained more fully below, we
disagree with this assumption.
In bringing its motion, protester cites the standards of
conduct applicable to judges on the General Services
Administration (GSA) Board of Contract Appeals. The particular
provision relied on by protester relates to disqualification and
appears in 41 CFR 105-735.70(c)(1991). It reads, in part, as
follows:
Disqualification. (1) An administrative judge must
disqualify himself or herself in any proceeding in
which the administrative judge's impartiality might
reasonably be questioned, including, but not limited to
instances when . . .
The examples which follow are basically those set out in 28
U.S.C. 455 (1988) which applies to any justice, judge, or
magistrate, of the United States.[foot #] 2
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[foot #] 1 (...continued)
benefit in counsel's briefing and the Board's ruling on
protester's motions. The exercise has essentially resulted in
the parties and the Board doing what they presumably would have
done if briefs had been submitted and read as originally planned.
Both counsel and the Board have now spent considerable time
assessing the implications of the Court's decision -- albeit in
the context of two very specific motions.
[foot #] 2 We note that while this provision of GSA's
Standards of Conduct (41 CFR Part 105-735) has not been formally
repealed, GSA's Special Counsel for Ethics and Civil Rights is
(continued...)
----------- FOOTNOTE ENDS -----------
Counsel for respondent argues that the case law regarding
disqualification, recusal, and the two principal statutes
covering those areas, namely 28 U.S.C. 144 and 455, clearly
supports the proposition that any allegation of bias "must stem
from an extrajudicial source and result in an opinion on the
merits on some basis other than what the judge learns from his
participation in the case." Phillips v. Joint Legislative
Committee, 637 F.2d 1014, 1020 (5th Cir. 1981) cert denied 456
U.S. 960 (1982), citing United States v. Clark, 605 F.2d 939, 942
(5th Cir. 1979); see also United States v. Grinnel Corp., 384
U.S. 563, 583 (1966) (to be disqualifying, the alleged bias and
prejudice must stem from an extrajudicial source and result in an
opinion on the merits on some basis other than what the judge
learned from his participation in the case).
Protester responds to the Government's reliance on the
extrajudicial source rule by noting that the regulation
applicable to GSA judges uses broader language than that found in
the statutes applicable to United States justices, judges, and
magistrates. Protester reminds us that the GSA regulation has
the added provision "including but not limited to instances when
. . . ." Accordingly, protester argues that the regulation
extends to more than just personal bias. Protester's Response to
Respondent's Objections at 5-6.
Protester is correct that the language of the GSA regulation
is broader. Nevertheless, while this regulation may be intended
to include more situations than those currently outlined in
statute, we find it unreasonable to conclude that the rule is
intended to go so far as to constitute an exception to the
extrajudicial source rule. This rule is well established.
Jeffrey M. Shaman et al., Judicial Conduct and Ethics 5.05
(1990). Furthermore, although the list of examples given in the
regulation is not complete, we note that no example given stems
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[foot #] 2 (...continued)
apparently of the opinion that it is no longer operative. By
memorandum dated January 6, 1993, that Counsel advised GSA
officials that the Government-Wide Standards issued August 7,
1992, by the U.S. Office of Government Ethics, would replace
substantial portions of the then-current GSA Standards of Conduct
Order. This memorandum advises GSA officials that a supplement
to the Government-Wide Standards will be issued but that, pending
issuance of that supplement and formal repeal of the agency's own
standards, the officials should consider certain provisions of
the GSA standards as still "preserved." A listing of the
"preserved" standards is provided in counsel's memorandum.
Section 105-735.7, "Special Provisions Relating to the GSA Board
of Contract Appeals" is not included in that listing.
Nevertheless, we continue to apply the strictures of the
regulation because they are fundamental to the functioning of the
Board as an impartial tribunal.
----------- FOOTNOTE ENDS -----------
from matters learned or ruled on by the judge in connection with
the proceeding itself. See 41 CFR 105-735.70(c).
As already noted, protester's motion to disqualify the
hearing judge is also based on the assumption that the Court of
Appeals found that the Board failed to apply the correct standard
in reviewing the contracting officer's decision to exclude BDI
from the competitive range of the procurement in question.
Protester's Motion To Disqualify at 1-2.
The Board disagrees with this assumption and can find
nothing in the Court's opinion which states or suggests that the
"standard"[foot #] 3 applied by the Board was
incorrect. We agree entirely with the applicable law as
explained by the Court in its decision and our original decision
is not in conflict with it. The Court questioned whether the
Board correctly applied the law to the facts of the case.
The Court wrote:
A contracting officer has broad discretion in
determining competitive range, and such decisions are
not disturbed unless clearly unreasonable. RMTC Sys.,
Inc., 92-1 B.C.A. (CCH) 24,619 at 122,800 (GSBCA
1991); Integrated Sys. Group, Inc., 91-2 B.C.A. (CCH)
23,961 at 119,956 (GSBCA 1991); Phoenix Assoc., Inc.,
88-1 B.C.A. (CCH) 20,455 at 103,451 (GSBCA 1988).
However, the FAR [Federal Acquisition Regulation] does
not allow a contracting officer to eliminate
competitors from the initial competitive range if there
is any "reasonable chance" that they will be selected.
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[foot #] 3 The term "standard," although of critical
importance to protester's motion, is unfortunately not found at
all in the opinion of the Court of Appeals. In ruling on the
motion, the Board has attempted to attribute to the term the
sense which it perceives protester intended.
----------- FOOTNOTE ENDS -----------
Birch & Davis International, Inc. v. Christopher, 4 F.3d at 973.
In our original decision we attempted to embrace this same
principle when we wrote: "The test is whether [the decision of
the contracting officer] was a reasonable decision made within
the limits of her assigned discretion." Birch & Davis
International, Inc. v. Agency for International Development, 92-2
BCA 24,881, at 124,099, 1992 BPD 63, at 8-9 (emphasis added).
Since one of the regulatory limits on that discretion is that
proposals cannot be eliminated if they have a reasonable chance
of success, it follows from our statement that a contracting
officer's decision to eliminate such a proposal would be beyond
the limits of his or her discretion and, therefore, ipso facto
unreasonable.
In short, we do not believe that the Court of Appeals
disagreed with the standard used by the Board to review the
contracting officer's decision to eliminate BDI from the
competitive range.[foot #] 4 For this reason, the
Board considers it unreasonable for protester to argue now that
the hearing judge showed himself to be of a mind to ignore
totally any alleged new standard imposed on him by the Court of
Appeals.
Decision
Protester's motion to disqualify the hearing judge is
DENIED.
_________________________
EDWIN B. NEILL
Board Judge
We concur:
_______________________ _________________________
VINCENT A. LaBELLA CATHERINE B. HYATT
Board Judge Board Judge
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[foot #] 4 In our original decision we also wrote that
where the competitive range is limited to one, the contracting
officer's discretion is subject to close scrutiny. In its
opinion vacating our decision, the Court of Appeals states its
agreement with this approach. Birch & Davis International, Inc.
__________________________________
v. Christopher, 4 F.3d at 974.
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