TITLE:  Intertribal Bison Cooperative, B-288658, November 30, 2001
BNUMBER:  B-288658
DATE:  November 30, 2001
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Decision

Matter of: Intertribal Bison Cooperative

File: B-288658

Date: November 30, 2001

Gene N. Lebrun, Esq., Lynn, Jackson, Shultz & Lebrun, for the protester.

Daniel S. Koch, Esq., Paley, Rothman, Goldstein, Rosenberg & Cooper, for
North American Bison Cooperative, an intervenor.

Michael Gurwitz, Esq., Department of Agriculture, for the agency.

Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where statute provides a specific appropriation for the Department of
Agriculture to purchase bison for the Food Distribution Program for Indians
on Reservations, and states that such purchases shall be made from "Native
American producers and cooperative organizations without competition," a
solicitation, issued by the agency contemplating a contract for such
purchases that permits submission of proposals from non-Native American
cooperative organizations under a competition limited to cooperative
organizations, is improper.

DECISION

Intertribal Bison Cooperative (IBC) protests request for proposals (RFP) No.
LS-80, issued by the Department of Agriculture (USDA) for the production and
delivery of ground bison and bison stew meat to participants in the Food
Distribution Program for Indians on Reservations (FDPIR). IBC protests that
the RFP violates an applicable appropriation statute.

We sustain the protest.

The Agriculture, Rural Development, Food and Drug Administration, and
Related Agencies-Appropriations Act for fiscal year ending September 30,
2001, Pub. L. No. 106-387, 114 Stat. 1549 (2000), at Title IV, Domestic Food
Programs, Food Stamp Program, stated the following:

For necessary expenses to carry out the Food Stamp Act (7 U.S.C. 2011
et seq.), $20,114,293,000 . . .: Provided, That of the funds made available
under this heading and not already appropriated to the [FDPIR] established
under section 4(b) of the Food Stamp Act of 1977 (7 U.S.C. 2013(b)), not to
exceed $3,000,000 shall be used to purchase bison for the FDPIR: Provided
further, That the Secretary shall purchase such bison from Native American
producers and Cooperative Organizations without competition . . . .

114 Stat. at 1549A-24.

Prior to issuing the RFP, the agency issued to Native American bison
producers a notice that set forth the agency's intent to purchase bison
products for the FDPIR, and stating that purchasing bison from Native
American bison producers would be a major part of the program. [1] The
agency, through designated slaughter facilities under contract with the
agency, would purchase bison from qualifying Native American producers on a
non-competitive basis. The notice set out the qualification requirements and
the price per pound to be paid. Once qualified, a producer would deliver a
specified number of bison to a designated slaughter facility for processing.
Agency Report, Tab 4, Notice to Native American Bison Producers (March
2001).

The RFP, issued on June 12, 2001, contemplates the award of a fixed-priced
contract to a cooperative organization on a "best value" basis, considering
production capability and capacity, quality assurance program, past
performance and price. [2] RFP at 11-12. The RFP states that the agency
intends to award a contract to a single offeror, and that "[a]dditional
awards will only be made if a single Offeror is not able to fulfill all the
production and processing requirements for this program in the required time
frames." RFP at 1.

The RFP's statement of work (SOW) states that the cooperative organization
that receives the contract must produce ground bison products and bison stew
meat. RFP, exh. B, SOW, at 1. The cooperative will produce ground bison by
slaughtering live bison supplied by Native American producers under contract
with USDA, which the SOW refers to as "USDA contracted bison," and blending
that bison meat with "commercial" bison meat supplied by the cooperative,
which the record shows is primarily, if not exclusively, from non-Native
American sources. Id. at 2. The agency will pay the cooperative for the
"commercial" bison meat used at a fixed price per pound as offered in the
cooperative's price proposal. RFP, exh. E, Sample Cost Proposal. The final
ground bison product will consist of 15 to 20 percent USDA contracted bison
meat (that is, the bison meat obtained from Native American producers) and
80 to 85 percent "commercial" bison meat (that is, bison meat obtained
non-Native American sources). Id. The SOW states that the cooperative will
produce the bison stew meat entirely from "commercial" bison. RFP, exh. B,
SOW, at 1; exh. E, Sample Cost Proposal.

IBC protests that the $3 million appropriated for bison for the FDPIR can
only be used to purchase bison from Native American sources, whether they be
producers or cooperative organizations, and thus the RFP is defective in
that it solicits proposals to provide bison meat from sources that include
non-Native American cooperative organizations. Additionally, under the RFP,
USDA will be conducting a competition among cooperative organizations, which
IBC asserts is contrary to the requirement of the statute that the bison be
purchased "without competition." We agree and sustain the protest on these
bases. [3]

USDA states that it interpreted the language of the statute, "shall purchase
such bison from Native American producers and Cooperative Organizations
without competition," to mean that USDA was to purchase bison from Native
American producers, and from Native American or non-Native American
cooperative organizations, [4] and that the agency was to do so without
competition from other types of offerors. The agency alleges that our Office
must defer to its interpretation.

In matters concerning the interpretation of a statute, the first question is
whether the statutory language provides an unambiguous expression of the
intent of Congress. If it does, the matter ends there, for the unambiguous
intent of Congress must be given effect. Chevron U.S.A. Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842-43 (1984). If, however, the statute is
silent or ambiguous with respect to the specific issue, deference to the
interpretation of an administering agency is dependent on the circumstances.
Id. at 843-45; United States v. Mead Corp., 121 S. Ct. 2164, 2171-77 (2001).
Where an agency interprets an ambiguous provision of the statute through a
process of rulemaking or adjudication, unless the resulting regulation or
ruling is procedurally defective, arbitrary or capricious in substance, or
manifestly contrary to the statute, the courts will defer to this agency
interpretation (called "Chevron deference"). [5] Mead, 121 S. Ct. at
2171-72; Chevron, 467 U.S. at 843-44. However, where the agency position
reflects an informal interpretation, "Chevron deference" is not warranted.
In these cases, deference to an agency's interpretation is not mandatory,
but rather the weight to be accorded an agency's judgment will depend on its
relative expertness, the thoroughness evident in its consideration, the
validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade,
though lacking power to control. Mead, 121 S. Ct. at 2171-72; Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944).

Even assuming the statutory language in question here was in need of
interpretation (which, as discussed below, we find is not the case), USDA's
interpretation is not entitled to "Chevron deference." USDA's interpretation
arose in the normal course of issuing a solicitation and is not the result
of either a rulemaking or an adjudication. Nor, as discussed below, does
USDA's interpretation have persuasive weight deserving of deference.

It is a fundamental canon of statutory construction that words, unless
otherwise defined by the statute, will be interpreted consistent with their
ordinary, contemporary, common meaning. State of California v. Montrose
Chem. Corp., 104 F.3rd 1507, 1519 (9th Cir. 1997); GAO, Principles of
Federal Appropriations Law, vol. 1, at 2-61 (2d ed. 1991); see Mallard v.
United States District Court for the Southern District of Iowa, 490 U.S.
296, 301 (1989).

Here, the statute requires USDA to use the funds appropriated to purchase
bison from "Native American producers and Cooperative Organizations." [6] In
this noun phrase, Congress attached the same modifier, "Native American," to
the nouns "producers" and "Cooperative Organizations," separated by only the
coordinating conjunction "and." Absent a separate modifier for the second
noun (i.e., Cooperative Organizations), the clear implication is that both
the producers and the Cooperative Organizations must be Native American. See
Martha Kolln, Understanding English Grammar 241-42 (3rd ed., MacMillan
Publishing Co. 1990). Moreover, under Pub. L. No. 106-387, the agency is to
make such purchases "without competition." The word "without" means "with
the absence, omission or avoidance of; not with; with no or none of;
lacking; . . . free from, excluding." The Random House College Dictionary
1513 (rev. ed. 1980). The plain meaning of the statute thus precludes the
agency from using competition when using the funds at issue here.

Thus, the plain meaning of the statute is that the bison may only be
obtained from Native American sources (whether producers or cooperative
organizations), and that the bison may not be obtained through competition.
As discussed below, the application of other relevant tools of statutory
construction does not counsel a finding that Congress intended a meaning
contrary to that expressed by the plain text of the statute. Therefore,
there is no basis to move beyond the plain meaning of the statutory language
and replace it with the agency's contrary interpretation, regardless of the
level of deference that would otherwise apply. See Chevron, 467 U.S.
at 842-43; B-255548, Oct. 18, 1994 at 12 n.28; GAO, Principles of Federal
Appropriations Law, vol 1, at 2-61, 2-64.

Here, the agency does not identify anything intrinsic to the statute to
support its conclusion that the language is ambiguous and in need of
interpretation. Rather, it suggests that, absent participation of non-Native
American cooperative organizations, there may be insufficient slaughtering
and processing capabilities existing among Native American sources to
process the quantity of bison to be purchased. Therefore, unless the
statutory language is interpreted to include non-Native American cooperative
organizations, the agency claims it will not be able to meet the purpose of
the statute, that is to deliver bison meat in a form that is readily
consumable by FDPIR participants (in the case of the RFP, that form would be
ground bison meat and bison stew meat in 2-pound portions).

However, there is nothing in the Act that requires slaughtering and
processing services to be performed by Native American or any other
specified sources, e.g., cooperative organizations. [7] It is undisputed
that the purchase of "bison" under the statute means whatever form the bison
is in at the time of purchase by USDA. This could include live bison, bison
carcasses, ground bison meat, or bison stew meat. As discussed above, under
the statute, regardless of the form at the time of purchase, the bison is
required to be purchased from Native American sources. If bison is purchased
in a form that is deliverable to FDPIR participants, then the cost of
slaughter and processing is included in the price of the purchased bison.
However, if the bison is purchased in a form that is not deliverable to
FDPIR participants, then the agency will have to incur the expense of
transforming it into a deliverable form. While the agency states that such
expense is not otherwise provided for under the FDPIR appropriation, we
believe the expense is a necessary expense of purchasing bison for
consumption by FDPIR participants. 63 Comp. Gen. 422, 427-28 (1984); 6 Comp.
Gen. 619, 621 (1927); GAO, Principles of Federal Appropriations Law, vol. 1,
at 4-14 to 4-28. Furthermore, since the expense for these services would
arise after the bison has been purchased from Native American sources, the
Act places no restrictions on the agency's acquisition of these services.
Thus, where necessary, the agency may obtain slaughtering and processing
services under competitive procedures using otherwise available operating
appropriations (including this earmarked appropriation).

Absent USDA's perceived constraint concerning slaughter and processing
capacity, the factor that appears to drive the agency's interpretation has
nothing to do with the language of the statute. USDA apparently wants to
include non-Native American cooperative organizations in the purchase so as
to blend lower-fat Native American bison meat with higher-fat bison meat
from non-Native American sources. As contemplated in the RFP, 80 to
85 percent of the ground bison and all of the stew meat purchased under this
earmarked appropriation would come from these non-Native American sources.
Although the agency does not assert that this scheme is contemplated by the
Act, it states that, since the Act is silent on this matter, the agency has
the discretion to administer this procurement in the best interests of the
FDPIR participants. [8] However, as noted, the Act is not silent on the
required source of bison and there is insufficient evidence to suggest that
Congress intended something other than the plain meaning of the statutory
language.

Reference to the legislative history of a statute is an appropriate
additional tool of analysis "with the recognition that only the most
extraordinary showing of contrary intentions from such analysis would
justify a limitation on the 'plain meaning' of the statutory language."
Garcia v. United States, 469 U.S. 70, 75 (1984); see Chevron, 467 U.S. at
859-62. Here, the statutory history is limited, but in no way contradicts
the plain meaning of the statute. [9]

Another tool of statutory construction used to ascertain the intent of
Congress is the review of similar or related statutes. Mallard, 490 U.S. at
305-07. Referring to such legislation here proves instructive and supports
the plain meaning, as reflected in the text, of the statute in question
here.

Congress has previously enacted statutes to benefit business concerns of
people in socio-economic groups deemed to be disadvantaged in the
competitive market place, see, e.g.,15 U.S.C. sect. 637(a) (2000) (section 8(a)
of the Small Business Act provides for agencies to make non-competitive
acquisitions to benefit socially and economically disadvantaged small
businesses), [10] and has specifically authorized acquisitions limited to or
favoring Native American concerns for purchases of products of Indian
industry under the Buy Indian Act, 25 U.S.C. sect. 47 (1994). [11] In the Act at
issue here, Congress intended that Native American concerns will be the
source for purchasing bison to be provided to Native Americans on
reservations with the earmarked dollars. Such intent is consistent with the
above-cited statutes providing for non-competitive purchases from
disadvantaged and Native American concerns.

There are also relevant statutes that consistently identify the meaning of
the term "without competition" to mean that the government is to award
contracts without using any competitive selection process. For example,
under an act authorizing the Secretaries of Agriculture and of the Interior
to sell timber to specified groups of private purchasers without the
purchasers participating in competitive bidding, 16 U.S.C. sect.sect. 583a, 583b
(2000), the act identifies the sales as agreements made "without
competition." [12] 16 U.S.C. sect. 583d. We are aware of no statute which uses
the term "without competition" to include limited competitions. [13]

Another factor in determining the persuasiveness of an agency's
interpretation is to consider its consistency with prior interpretations of
the statute. Mead, 121 S. Ct. at 2171, 2176. Here, this is the first time
the provision in question appeared in USDA's annual appropriation. However,
the agency has essentially interpreted the language in two different ways
within the context of the Act. When contemplating the purchase of live
bison, the agency restricts the acquisition to Native American sources
without competition; in that case, the agency interprets the statute to mean
that it has authority to exclude non-Native American sources from those
purchases and to conduct the acquisition without competition. However, when
buying bison meat to blend with the Native American bison meat from live
bison, USDA interprets the statute to mean that it has the authority to
include non-Native American sources and to conduct a limited competition
that will result in the bulk of the bison meat funded by the appropriation
being obtained from non-Native American sources. The agency's
interpretations are inconsistent and, as noted earlier, we are unable to
square the latter interpretation with the plain language of this statute.

USDA nevertheless contends that Congress's intent to include all cooperative
organizations, not only Native American organizations, is apparent from the
statements of individual Congressmen in letters sent to USDA after enactment
of the appropriations legislation (one after the filing of the agency-level
protest). The agency acknowledges that these post-enactment statements are
not legislative history per se, but insists that the provision at issue is
obscure and thus the post-enactment statements, though not dispositive,
should be given some weight in determining the intent of Congress at the
time of enactment.

Generally, post-enactment statements by members of Congress are not
persuasive evidence of congressional intent at the time of enactment unless
accompanied by other types of evidence that corroborate the intent at the
time of enactment, or where there is absolutely nothing else from which to
determine intent. Pittston Coal Group v. Sebben, 488 U.S. 105, 118-19 (1988)
(such statements could not possibly have informed the vote of the enacting
legislators); GAO, Principles of Federal Appropriations Law, vol. 1, at 2-69
to 2-70. Here, as apparent from our prior analysis, there is no
corroborating evidence to support a conclusion that the post-enactment
statements here show that the enacting Congress intended to include all
cooperative organizations as sources of bison to be purchased with the
earmarked funds. Thus, we do not consider the letters from individual
legislators as authoritative evidence of the intent of Congress at the time
of enactment.

In sum, whether one looks to the clear and unambiguous meaning of the
language of the statute, or turns to extrinsic evidence for the intent of
Congress, we find the plain meaning of the language in the statute holds
fast--the agency must purchase bison without competition and only from
Native American sources.

We recommend that the agency cancel the RFP and purchase bison from Native
American sources consistent with the Act and this decision. To the extent
the agency needs to further process the bison purchased from Native American
sources in order to deliver it to FDPIR participants, it may acquire these
processing services under appropriate competitive procedures using otherwise
available operating appropriations (including this earmarked appropriation);
however, the agency should not use the funds earmarked for this purchase of
bison to purchase or process bison acquired from non-Native American
sources. We also recommend that USDA reimburse the protester its costs of
pursuing this protest, including reasonable attorney's fees. 4 C.F.R.
sect. 21.8(d) (2001). The protester should submit its certified claim for costs,
detailing the time expended and the costs incurred, directly to the
contracting agency within 60 days of receipt of this decision. 4 C.F.R.
sect. 21.6(f)(1).

The protest is sustained.

Anthony H. Gamboa

General Counsel

Notes

1. USDA required a Native American producer to be a member of one of the 556
Indian entities recognized by the Bureau of Indian Affairs (BIA).

2. The RFP and the agency report misstated the applicable statute as Public
Law No. 106-554. This miscitation has no effect on our decision.

3. The authority of our Office to decide bid protests is established by the
Competition in Contracting Act of 1984 (CICA), 31 U.S.C. sect.sect. 3551-3556 (Supp.
IV 1998). CICA provides that the Comptroller General shall decide "[a]
protest concerning an alleged violation of a procurement statute or
regulation." 31 U.S.C. sect. 3552. The appropriations act at issue in this
protest requires USDA to purchase bison and, in that respect, it is a
procurement statute. Thus, CICA grants our Office authority to consider a
protest alleging that the terms of the RFP violate the related requirements
of the statute. See Department of the Air Force et al., B-253278.3 et al.,
Apr. 7, 1994, 94-1 CPD para. 247 at 7.

4. Neither the RFP nor the agency define the term "cooperative
organization." A relevant definition might be the following one provided by
the Agricultural Marketing Act, 12 U.S.C. 1141j (2000):

For purposes of this chapter, the term "cooperative association" means any
association in which farmers act together in processing, preparing for
market, handling, and/or marketing the farm products of persons so engaged,
and also means any association in which farmers act together in purchasing,
testing, grading, processing, distributing, and/or furnishing farm supplies
and/or farm business services [and which satisfies various stated
conditions.]

While the protester asserts that it is a Native American cooperative
organization because all of its members are qualified Native Americans and
that the North American Bison Cooperative, which is assertedly composed of
members who are not Native American, is not a Native American cooperative
organization, we do not decide here what organizations may qualify as Native
American cooperative organizations.

5. There are exceptions to the rule whereby the absence of authority for an
agency to use formal administrative procedures to interpret laws does not
alone bar this level of deference. Mead, 121 S. Ct at 2173 n.13 (citing
NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251
(1995) for the example that the deliberative conclusions of the Comptroller
of the Currency as to the meaning of banking laws are deserving of this
higher level of deference due to the Comptroller's specific authority to
enforce such laws).

6. The capitalization of "cooperative organization" first appears in the
final version of the Act that was enacted into law. The legislative history
does not attach any significance to and does not use the capitalized form of
this term. See, e.g., H.R.. Conf. Rep. No. 106-948, at 132 (2000), reprinted
in 2000 U.S.C.C.A.N. 1412, 1435-36. Nor is there any argument in the record
that attaches any significance to this typographic anomaly.

7. We do not decide the reasonableness or propriety of the agency's
position, which is disputed by IBC, that there may be insufficient
slaughtering and processing capabilities obtainable from Native American
sources.

8. USDA's position rests largely on research indicating that meat from
grain-fed bison has a higher fat content and is thus more palatable than
that of grass-fed (i.e., range-fed) bison. Contracting Officer's Statement
at 3-4. While we do not decide this issue, the documentation in the record
cited by the agency in support of this point is equivocal.

9. The history of this provision began with an amendment to S. 2536, 106th
Cong. (2000) (which concerned among other things the appropriation of the
Department of Agriculture). 146 Cong. Rec. S7369 (daily ed. July 20, 2000)
(amend. No. 4007). (There was no similar provision in the House bill.) The
amendment in the Senate bill appropriated $7.3 million for the purchase of
bison and to "provide a mechanism for the purchases from Native American
producers and cooperative organizations." 146 Cong. Rec. S7369, supra. The
day after the Senate adopted the amendment by unanimous consent, one of the
sponsors of the amendment stated that the purpose of the amendment was to
provide a healthier diet for Indian people on reservations in order to
counter the ill health effects attributed to the poor diet of meat high in
fat and sodium that is presently available to this population. 146 Cong.
Rec. S7439-40 (daily ed. July 21, 2000) (statement of Sen. Campbell).

As noted, the statute ultimately enacted appropriated only $3 million and
provided that the bison was to be purchased from "Native American producers
and Cooperative Organizations without competition." The conference report
addressed the changes as follows:

The conference agreement does not include Senate language providing for an
additional amount, not to exceed $7,300,000, for bison purchases for the
[FDPIR]. The conferees encourage the Department to continue and increase, to
the extent practicable, purchases of bison for FDPIR and to use every
opportunity to acquire purchases from Native American producer [sic] and
cooperative organizations. . . .

The conferees recognize the severe health problems facing Native Americans,
including diabetes and heart disease. The conferees expect the Secretary to
purchase bison meat for the FDPIR to promote health benefits in the Native
American population.

H.R. Conf. Report No. 106-948, supra.

10. In implementing this statute, the Small Business Administration states
that there is a presumption that American Indians are socially
disadvantaged. 13 C.F.R. sect. 124.103(b) (2001).

11. BIA has been delegated the authority under this act, which uses it to
set aside BIA procurements for Indian-owned concerns. See Means Constr. Co.
and Davis Constr. Co., a joint venture, B-187082, Dec. 14, 1976, 76-2 CPD para.
483 at 2-3.

12. In another example, the Merchant Marine Act requires the Secretary of
Transportation to establish a competitive selection process for the
appointment of cadets to the United States Merchant Marine Academy, but also
allows the Secretary to appoint a limited number of cadets "without
competition" in order to further such goals as achieving a national
demographic balance at the Academy. 46 App. U.S.C. sect. 1295b(b)(2)(A), (3)(D)
(1994).

13. The Competition in Contracting Act of 1984 does not use the term
"without competition"; it uses the term "noncompetitive procedures" and
"other than competitive procedures" to refer to exceptions to requirement
for full and open competition; noncompetitive procedures include limited
competitions. 41 U.S.C. sect. 253(c), (e) (1994).