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 ----------- FOOTNOTE BEGINS --------- [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 ----------- FOOTNOTE BEGINS --------- [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. ----------- FOOTNOTE BEGINS --------- [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 ----------- FOOTNOTE BEGINS --------- [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. ______________