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OCUTO BLACKTOP & PAVING CO. v. PERRY

October 15, 1996

OCUTO BLACKTOP AND PAVING CO., INC., GEORGE A. ROSSI CONSTRUCTION CORP., HANNA CONSTRUCTION, INC., ALTAMURO CONSTRUCTION CO., INC., ADVANCED MAINTENANCE, INC., and LANZ CONSTRUCTION, INC.,
v.
HON. WILLIAM PERRY, SECRETARY OF DEFENSE, UNITED STATES OF AMERICA



The opinion of the court was delivered by: POOLER

 Plaintiffs, contractors in the area of Griffiss Air Force Base ("Griffiss"), allege that the defendant, Secretary of Defense William Perry, violated the statutory and regulatory requirements of the Defense Authorization Act for Fiscal Year of 1994 (the "Act") by failing to implement a contracting preference for local contractors when decommissioning Griffiss. See Pub. L. No. 103-160, § 2912; 48 C.F.R. pt. 226, subpt. 71. In their complaint, plaintiffs seek injunctive relief including an order directing defendant to develop a local preference. Compl. at 5-6. Plaintiffs claim jurisdiction pursuant to Chapter 7 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701-706 and 28 U.S.C. § 1361. Compl. at 1. Perry moves to dismiss arguing that (1) the court lacks subject matter jurisdiction, (2) plaintiffs lack standing, (3) the agency's construction of the Act is controlling, and (4) the Court of Federal Claims has exclusive jurisdiction. In the alternative, the government seeks summary judgment. Because this court lacks subject matter jurisdiction, I grant defendant's motion to dismiss.

 BACKGROUND

 I. Procedural

 On August 31, 1995, plaintiffs filed a complaint, a motion for a temporary restraining order ("TRO") and a motion for a preliminary injunction. *fn1" On September 5, 1995, I denied the TRO, and on November 6, 1995, I reserved on the motion for a preliminary injunction and a renewed request for a TRO. Dkt. Nos. 6 & 16. The government then made a motion to dismiss returnable on January 22, 1996. However, on January 22, 1996, I granted the parties' request to adjourn the motion in order to allow the plaintiffs time to consider information provided by the Department of Defense. I heard argument on the government's motion on May 20, 1996.

 II. Factual Background

 Griffiss is located in Rome, New York. Compl. P 6. In 1993, the Base Realignment and Closure Commission nominated Griffiss for decommissioning under the Base Realignment and Closure Act. Id. P 7; Dkt. No. 23, Rice Decl. P 1. Griffiss officially closed on September 30, 1995. Dkt. No. 23, Rice Decl. P 8.

 In 1994, Congress passed and the President signed the Defense Authorization Act for Fiscal Year 1994. Pub. L. No. 103-160. In relevant part, the Act provides that:

 
In entering into contracts with private entities as part of the realignment of a military installation under a base closure law, the Secretary of Defense shall give preference, to the greatest extent practicable, to qualified businesses located in the vicinity of the installation and to small business concerns and small disadvantaged business concerns. Contracts for which this preference shall be given include contracts to carry out activities for the environmental restoration and mitigation at military installations to be closed or realigned.

 Pub. L. No. 103-160, § 2912(a) (emphasis added). The implementing regulation provides that:

 
Businesses located in the vicinity of a military installation that is being closed or realigned under a base closure law . . . shall be provided maximum practicable opportunity to participate in acquisitions that support the closure or realignment, including acquisitions for environmental restoration and mitigation.

 48 C.F.R. 226.7102 (emphasis added).

 Much of the work to be done at Griffiss involves environmental restoration. Dkt. No. 1, Compl. PP 19-20, 26; Dkt. No 10, Smigal Decl. P 3. Plaintiffs claim that the Air Force's use of large scale Indefinite Delivery/Indefinite Quantity ("IDIQ") contracts for environmental remediation prevents small contractors from successfully bidding on work at Griffiss in violation of the Act. Dkt. No. 3, Ocuto Decl. PP 6-15; see also Dkt. No. 10, Smigal Decl. P 14. Perry responds that he has discharged his discretionary duties under the Act to the maximum extent ...


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