Veterans4you LLC v. United States

Case: 20-1175 Document: 48 Page: 1 Filed: 01/11/2021

United States Court of Appeals
for the Federal Circuit
______________________

VETERANS4YOU LLC,
Plaintiff-Appellant

v.

UNITED STATES,
Defendant-Appellee
______________________

2020-1175
______________________

Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00931-LKG, Judge Lydia Kay Griggsby.
______________________

Decided: January 11, 2021
______________________

SARAH C. REIDA, Legal Meets Practical, LLC, Naper-
ville, IL, argued for plaintiff-appellant. Also represented
by JOHN M. MANFREDONIA, Manfredonia Law Offices, LLC,
Cresskill, NJ.

DOUGLAS GLENN EDELSCHICK, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee. Also
represented by JEFFREY B. CLARK, ROBERT EDWARD
KIRSCHMAN, JR., DOUGLAS K. MICKLE, CORINNE ANNE
NIOSI.

THOMAS SAUNDERS, Wilmer Cutler Pickering Hale and
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2 VETERANS4YOU LLC v. UNITED STATES

Dorr LLP, Washington, DC, for amicus curiae Kingdom-
ware Technologies, Inc. Also represented by MATTHEW
EDWARD VIGEANT.
______________________

Before LOURIE, CLEVENGER, and CHEN, Circuit Judges.
CLEVENGER, Circuit Judge.
This is an appeal from the final judgment of the United
States Court of Federal Claims (“Court of Federal Claims”)
on a bid protest action. The Court of Federal Claims ruled
in favor of the United States, Veterans4You, Inc. v. United
States, 145 Fed. Cl. 181 (Fed. Cl. 2019), and Veterans4You,
Inc. (“Veterans4You”) appeals. For the reasons set forth be-
low, we reverse the final judgment of the Court of Federal
Claims.
BACKGROUND
I
Two statutory provisions are central to this appeal. The
first is the so-called “Rule of Two,” which establishes a con-
tracting preference of the Department of Veterans Affairs
(“VA”) for Veteran Owned Small Businesses (VOSBs) and
Service Disabled Veteran Owned Small Businesses
(SDVOSBs). Appellant Veterans4You is a certified
SDVOSB. The Veterans Benefits Act of 2006 (“VBA”), cod-
ified at 38 U.S.C. § 8127, states in relevant part:
[A] contracting officer of the Department [of Veter-
ans Affairs] shall award contracts on the basis of
competition restricted to small business concerns
owned and controlled by veterans or small business
concerns owned and controlled by veterans with
service-connected disabilities if the contracting of-
ficer has a reasonable expectation that two or more
small business concerns owned and controlled by
veterans or small business concerns owned and
controlled by veterans with service-connected
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VETERANS4YOU LLC v. UNITED STATES 3

disabilities will submit offers and that the award
can be made at a fair and reasonable price that of-
fers best value to the United States.
38 U.S.C. § 8127(d). The Supreme Court has held that
§ 8127(d) requires the VA to comply with the Rule of Two
for all contracts awarded by the VA, even if the VA has met
its annual goals for awarding contracts to VOSBs and
SDVOSBs. Kingdomware Techs., Inc. v. United States, 136
S. Ct. 1969, 1976 (2016).
A separate subsection of § 8127 addresses the situation
in which the VA does not itself execute a contract with a
non-governmental entity, but instead contracts or other-
wise arranges with another governmental agency or entity
to acquire goods or services for the VA. Section 8127(i) pro-
vides that where “the Secretary [of the VA] enters into a
contract, memorandum of understanding, agreement, or
other arrangement with any governmental entity to ac-
quire goods or services, the Secretary shall include in such
contract, memorandum, agreement, or other arrangement
a requirement that the entity will comply, to the maximum
extent feasible, with the provisions of this section in acquir-
ing such goods or services.” 38 U.S.C. § 8127(i).
II
The second statutory provision at issue is the “printing
mandate,” codified at 44 U.S.C. § 501. This section requires
that “[a]ll printing, binding, and blank-book work for Con-
gress, the Executive Office, the Judiciary, other than the
Supreme Court of the United States, and every executive
department, independent office and establishment of the
Government, shall be done at the Government Publishing
Office [“GPO”][.]” 44 U.S.C. § 501. 1 Agencies are prohibited

1 The office of the Superintendent of the Public
Printing, as well as the congressional Joint Committee on
Printing, were established in 1852. Act of August 26, 1852,
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4 VETERANS4YOU LLC v. UNITED STATES

from obligating or spending appropriated funds on the
“procurement of any printing related to the production of
Government publications (including printed forms)” unless
by or through the GPO. 44 U.S.C. § 501 note. 2
The substantive requirement of the printing mandate
is also reflected in the Federal Acquisition Regulation
(FAR). The FAR is promulgated by the FAR Council, com-
prising members of the Department of Defense, the Gen-
eral Services Administration, and the National
Aeronautics and Space Administration. See 41 U.S.C.
§ 421. The relevant section of the FAR states that “Govern-
ment printing must be done by or through the Government
Publishing Office (GPO) (44 U.S.C. 501).” See FAR 8.802(a)
[44 C.F.R. § 8.802(a)].
III
This appeal arises from the following facts, which are
undisputed unless otherwise noted. The VA maintains a
suicide prevention Crisis Line. As relevant here, the VA
sought to procure cable gun locks with information about
the Crisis Line imprinted on the lock body and on a label
attached to the cable of the lock, as well as an

ch. 91, 10 Stat. 30, 30–35 (1852); see also R. W. Kerr, His-
tory of the Government Printing Office (at Washington,
D.C.) with a brief Record of the Public Printing for a Cen-
tury, 1789–1881 at 15–35 (1881). The language of the mod-
ern printing mandate originated in an 1895 Act. See Act of
Jan. 12, 1895, ch. 23, § 87, 28 Stat. 601, 622.
2 Legislative Branch Appropriations Act of 1995,
Pub. L. No. 103-283, § 207, 108 Stat. 1423, 1440 (1994). The
relevant Legislative Branch Appropriations Acts are re-
ferred to herein as “§ 501 note,” because they are uncodified
but have been reprinted as a note to § 501 in Title 44 of the
United States Code.
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VETERANS4YOU LLC v. UNITED STATES 5

accompanying double-sided wallet card with additional in-
formation about the Crisis Line.

J.A. 595–97.
On January 31, 2019, VA submitted a SF-1 requisition
form to the GPO to procure the imprinted and labeled cable
lock along with the printed wallet card. 145 Fed. Cl. at 185–
86; J.A. 100–101. On February 14, 2019, the GPO issued
an invitation for bids for the VA’s requirements, with un-
restricted competition (i.e. not restricted to VOSBs or
SDVOSBs). 145 Fed. Cl. at 185–86; J.A. 85, 87–90. On Feb-
ruary 21, 2019, Veterans4You filed a bid protest with the
Government Accountability Office (“GAO”) on the basis
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6 VETERANS4YOU LLC v. UNITED STATES

that the solicitation issued by GPO did not give preference
to VOSBs or SDVOSBs. 145 Fed. Cl. at 186–87; J.A. 24–44.
On June 3, 2019, GAO issued a decision recommending cor-
rective action. 145 Fed. Cl. at 186–87; J.A. 427–33. In par-
ticular, GAO concluded that 38 U.S.C. § 8127(i) applied to
the solicitation, and that “VA was required to—but did
not—alert GPO to its unique requirements, and to have
any acquisition performed by GPO on VA’s behalf imple-
ment, to the maximum extent feasible, [the] requirements
of the VBA.” J.A. 432. GAO “recommend[ed] that GPO co-
ordinate its efforts with the VA to meet the VA’s require-
ment for suicide prevention gun locks so as to give effect to
the requirements of the VBA” and “le[ft] it to the agencies
to determine the specific nature of their respective actions
necessary to implement our recommendation.” J.A. 433.
In light of this determination by GAO, VA submitted a
revised SF-1 requisition form to GPO which included the
following request: “In accordance with 38 U.S.C. [§] 8127(i),
VA requests that GPO, to that maximum extent feasible,
set-aside any procurement action resulting from this req-
uisition to verified service-disabled veteran-owned small
businesses (SDVOSBs) or verified veteran-owned small
businesses (VOSBs). VA maintains a database of all veri-
fied SDVOSB and VOSB firms that is publicly available at
https://www.vip.vetbiz.va.gov/[.]” J.A. 429–432. In re-
sponse to this request, the GPO’s contracting officer issued
a written Determination and Finding which found that, un-
der the GPO’s Printing Procurement Regulation (“PPR”),
the GPO was obligated to employ unrestricted competitive
bidding and had no authority to perform a Rule of Two
analysis and formally set aside the procurement for
SD/VOSBs. See Printing Procurement Regulation, GPO
Publication 305.3 (rev. 4-14) at VIII-1.4; J.A. 437–439
(GPO Determination and Finding). Instead, the contract-
ing officer stated that the GPO would “leverage the VA da-
tabase of all verified SDVOSB and VOSB firms that is
publicly available . . . to include verified firms[] on its Bid
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VETERANS4YOU LLC v. UNITED STATES 7

List” in order to “accommodate the spirit of VA’s re-
quest . . . by including known/verified SDVOSBs and
VOSBs to its Bid List to ensure they receive an opportunity
to bid on this [Invitation for Bids].” J.A. 438.
The GPO subsequently categorized the solicitation un-
der North Atlantic Industry Classification System
(“NAICS”) Code 323111 (Commercial Printing (except
Screens and Books)). The GPO then used VA’s VetBiz da-
tabase to search for SD/VOSBs which were associated with
this NAICS code, and which were also registered with
GPO. Ultimately, six of the 34 firms on the GPO’s bid list
were SD/VOSBs registered with VA. J.A. 599–603. The
GPO’s new solicitation and invitation for bids was issued
on June 13, 2019. J.A. 587–98. The goods sought by the so-
licitation were subsequently procured. 3 Appellant Br. 13.

3 The government did not argue that this case is ac-
cordingly moot. We nonetheless have an obligation to “‘sat-
isfy [ourselves] . . . of [our] own jurisdiction,’ . . . even
though the parties are prepared to concede it.” Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)
(quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934)).
Here, as in the Kingdomware Technologies case (which also
concerned a short-term contract issued by the VA), “no live
controversy in the ordinary sense remains because no court
is now capable of granting the relief petitioner seeks.”
Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969,
1975 (2016). However, the Supreme Court has recognized
an exception to the mootness doctrine for a controversy
that is “capable of repetition, yet evading review.” Spencer
v. Kemna, 523 U.S. 1, 17 (1998). For essentially the same
reasons the Supreme Court articulated in Kingdomware
Technologies, we find that “[t]hat exception applies to these
short-term contracts.” 136 S. Ct. at 1976.
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8 VETERANS4YOU LLC v. UNITED STATES

IV
On June 26, 2019, prior to the opening of bids on GPO’s
new solicitation, Veterans4You filed a complaint bringing
a pre-award bid protest action, as well as a motion for a
preliminary injunction, at the Court of Federal Claims.
J.A. 20–23. The parties subsequently filed cross-motions
for judgment upon the administrative record. 145 Fed. Cl.
at 184. Veterans4You contended that the VA was not obli-
gated to invite the GPO to conduct the solicitation, and that
the VA violated 38 U.S.C. § 8127 by doing so. 145 Fed. Cl.
at 190–93.
The Court of Federal Claims heard oral argument on
August 30, 2019, and issued an oral order from the bench
denying Veterans4You’s bid protest and motion for injunc-
tion. J.A. 684–701. The Court of Federal Claims issued a
consistent written decision on September 20, 2019 which
denied Veterans4You’s cross-motion for judgment upon the
administrative record, granted the government’s cross-mo-
tion for judgment upon the administrative record, denied
Veterans4You’s motion for a preliminary injunction, and
dismissed the complaint. 145 Fed. Cl. at 194. The Court of
Federal Claims’ written decision reasoned that the goods
requested in the solicitation fall within the printing man-
date in 44 U.S.C. § 501, that the VA had “adequately ex-
plained and documented the reasons for its decision to
employ the GPO to conduct the Solicitation,” and that the
VA had adhered to its obligation under 38 U.S.C. § 8127(i)
to secure the GPO’s compliance “to the maximum extent
feasible” with the Rule of Two. 145 Fed. Cl. at 190–94. This
appeal followed.
DISCUSSION
This case is before our Court on appeal from the Court
of Federal Claims’ grant of judgment upon the administra-
tive record in a bid protest action. We review the grant of
judgment on the administrative record “without defer-
ence.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351
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VETERANS4YOU LLC v. UNITED STATES 9

(Fed. Cir. 2005). Thus, in review of the bid protest, we ap-
ply the “arbitrary and capricious” standard in 5 U.S.C.
§ 706 “anew, conducting the same analysis as the Court of
Federal Claims.” Centech v. United States, 554 F.3d 1029,
1037 (Fed. Cir. 2009) (citation omitted). We review the trial
court’s underlying findings of fact for clear error. Bannum,
404 F.3d at 1354. In review of a bid protest, we ask whether
the agency action was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law. See 28
U.S.C. § 1491(b)(4); 5 U.S.C. § 706(2)(A); Impresa Con-
struzioni Geom. Domenico Garufi v. United States, 238
F.3d 1324, 1332 (Fed. Cir. 2001). In order to satisfy this
standard, the protestor must demonstrate: (1) that the pro-
curement decision “lacked a rational basis;” or (2) “a clear
and prejudicial violation of applicable statutes or regula-
tions.” Garufi, 238 F.3d at 1332–33 (citation omitted).
The appellant challenges the constitutionality of the
printing mandate (44 U.S.C. § 501) as applied to the facts
of this case, and amicus curiae Kingdomware Technologies,
Inc. (“Kingdomware”) supports the appellant. See generally
Appellant Br.; Reply Br.; Amicus Br. This issue was neither
raised before nor decided by the Court of Federal Claims.
See 145 Fed. Cl. at 183–94. As discussed in detail below, we
nonetheless reach this issue, and we review the constitu-
tional question de novo. “The constitutionality of an act of
Congress is a question of law that is . . . reviewed de novo.”
Stauffer v. Brooks Bros. Grp., 758 F.3d 1314, 1318 (Fed.
Cir. 2014) (citing Brooks v. Dunlop Mfg., Inc., 702 F.3d 624,
628 (Fed. Cir. 2012)).
I
Among their arguments about how we should interpret
the printing mandate, Veterans4You and amicus King-
domware have urged that our interpretation of the printing
mandate must be guided by the doctrine of constitutional
avoidance because “invocation of the printing mandate . . .
violates constitutional provisions of separation of powers.”
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10 VETERANS4YOU LLC v. UNITED STATES

Appellant Br. 22; see also Reply Br. 10–13; Amicus Br. 12–
18. It is undisputed that no issue of the constitutionality of
the printing mandate, including constitutional avoidance
as a doctrine of statutory interpretation, was raised before
or decided by the Court of Federal Claims. See 145 Fed. Cl.
at 183–94; J.A. 605–702. The government urges that Vet-
erans4You has waived any argument sounding in the con-
stitutionality of the printing mandate. Appellee Br. 42–43.
“‘It is the general rule, of course, that a federal appel-
late court does not consider an issue not passed upon be-
low[.]’ [W]hen to deviate from this rule [is] a matter ‘left
primarily to the discretion of the courts of appeals, to be
exercised on the facts of individual cases[.]’” Exxon Ship-
ping Co. v. Baker, 554 U.S. 471, 487 (2008) (quoting Single-
ton v. Wulff, 428 U.S. 106, 120–121 (1976)). The Supreme
Court has “stopped short of stating a general principle to
contain appellate courts’ discretion.” Id. So long as an issue
is properly before our Court, the rule of waiver is pruden-
tial and does not constrain the scope of our jurisdiction. See
Interactive Gift Exp., Inc. v. Compuserve Inc., 256 F.3d
1323, 1345 (Fed. Cir. 2001). We have explained that “[a]
circuit court will disregard the rule [of waiver] in compel-
ling circumstances[,] . . . [p]articularly . . . if the issue has
been fully briefed, if the issue is a matter of law or the rec-
ord is complete, if there will be no prejudice to any party,
and if no purpose is served by remand . . . .” Automated
Merch. Sys., Inc. v. Lee, 782 F.3d 1376, 1380 (Fed. Cir.
2015) (internal citations and quotations omitted).
We find that the constitutionality of the printing man-
date, to the extent that it impacts our statutory interpreta-
tion of the printing mandate by way of the doctrine of
constitutional avoidance, is such an issue. The constitu-
tionality of the printing mandate is a pure question of law
which has been fully briefed by the parties before our
Court, and we perceive no prejudice to any party in consid-
ering this issue now, nor any purpose to be served by re-
mand. Thus, to whatever extent Veterans4You waived any
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VETERANS4YOU LLC v. UNITED STATES 11

constitutional challenge to the printing mandate by failing
to raise it in the proceedings below, we exercise our discre-
tion to nonetheless consider the issue. We do not reach Vet-
erans4You’s argument that the constitutional avoidance
issue was not waived because it is merely a new argument
in support of an existing claim. Reply Br. 10–11.
II
The GPO is a congressional entity. Involvement of the
Government Printing Office 4 in Executive Branch Printing
& Duplicating, 20 Op. O.L.C. 214, 223 (1996) (“The GPO,
since its inception, has been conceptualized as a congres-
sional entity.”); see also Thompson v. Sawyer, 678 F.2d 257,
264 (D.C. Cir. 1982) (“The Government Printing Office is a
unit of the legislative branch employing workers in the
competitive service.”); United States v. Int’l Bus. Machines
Corp., 892 F.2d 1006, 1009 (Fed. Cir. 1989) (referencing
“legislative agencies like the GPO”). Congress created the
Joint Committee on Printing (“JCP”) by statute, see 44
U.S.C. § 101, and empowered the Committee to “use any
measures it considers necessary to remedy neglect, delay,
duplication, or waste in the public printing and binding
and the distribution of Government publications,” id.
§ 103. The JCP comprises ten members of Congress: the
chairman and four members of the Committee on Rules
and Administration of the Senate, and the chairman and
four members of the Committee on House Oversight of the
House of Representatives. Id. § 101.

4 The “Government Printing Office” was redesig-
nated the “Government Publishing Office” in 2014. Consol-
idated and Further Continuing Appropriations Act, 2015,
Pub. L. 113–235, div. H, title I, § 1301, 128 Stat. 2130,
2537–39 (2014). It has been referred to as the “GPO” both
before and after the redesignation.
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12 VETERANS4YOU LLC v. UNITED STATES

Executive branch actors have long maintained the po-
sition that the printing mandate in 44 U.S.C. § 501 violates
the separation of powers between the legislative and exec-
utive branches mandated by the Constitution. The most
thorough analysis comes from a 1996 opinion of the Office
of Legal Counsel (“OLC”), signed by Walter Dellinger as
Assistant Attorney General in charge of the OLC. In this
opinion, OLC determined that “the GPO is subject to the
sort of control that Congress may not exercise over an actor
that performs non-legislative functions.” 20 Op. O.L.C. at
224. The opinion thus concluded that “[b]ecause the GPO
is subject to congressional control and because the GPO
performs executive functions . . . the language in 44 U.S.C.
§§ 501 & 501 note requiring the executive branch to pro-
cure all of its printing by or through the GPO is unconsti-
tutional.” 20 Op. O.L.C. at 226.
Other executive branch actors have reached the same
conclusion. Upon signing the Legislative Branch Appropri-
ations Act of 1995, President Clinton issued a signing
statement expressing the view that the GPO’s role in exec-
utive branch printing “raises serious constitutional con-
cerns,” and indicating that the President would “interpret
the amendments to the public printing provisions in a man-
ner that minimizes the potential constitutional deficiencies
in the Act.” Statement on Signing the Legislative Branch
Appropriations Act of 1995, 30 Weekly Compilation of
Presidential Documents 1541, 1542 (July 29, 1994). An ear-
lier OLC opinion during the Reagan Administration,
signed by Ted Olson as Assistant Attorney General in
charge of the OLC, expressed related concerns about the
mechanism by which the JCP exercises control over the
GPO (i.e. without bicameralism and presentment): Ҥ 501
improperly seeks to delegate legislative power to the JCP
in abrogation of the constitutional requirements of bicam-
eral passage and presentment.” Constitutionality of Pro-
posed Regulations of Joint Committee on Printing, 8 Op.
O.L.C. 42, 51 (1984). Finally, the Director of the Office of
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VETERANS4YOU LLC v. UNITED STATES 13

Management and Budget in the George W. Bush Admin-
istration issued a memorandum 5 to the heads of executive
branch departments which cited OLC’s 1996 opinion and
stated that “Congress could not constitutionally obligate
Executive Branch departments and agencies to utilize
GPO.” Memorandum from Mitchell E. Daniels, Jr., to
Heads of Executive Departments and Agencies (May 3,
2002),
https://www.whitehouse.gov/sites/whitehouse.gov/files/om
b/memoranda/2002/m02-07.pdf (emphasis in original).
Indeed, we do not understand the government to con-
test Veterans4You’s and amicus’s position that the statu-
tory printing mandate in 44 U.S.C. § 501, standing alone,
is unconstitutional as applied to the executive branch. At
oral argument, counsel for the government confirmed that
the OLC opinions discussed above reflect the current posi-
tion of the Department of Justice. Recording of Oral Argu-
ment at 23:50–25:20 (Nov. 2, 2020),
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20-
1175_11022020.mp3.
III
Rather than directly defending the constitutionality of
the printing mandate at 44 U.S.C. § 501, the government

5 Following the issuance of this memorandum, Pub-
lic Printer Bruce R. James “proposed to resolve the dispute
with OMB by creating a printing ‘compact’ that would pro-
vide agencies with more choice and potentially reduce costs
while keeping printing within the requirements of the law.
In June 2003, OMB and GPO jointly announced this agree-
ment, and OMB’s directive was quietly withdrawn.” George
D. Barnum & Andrew M. Sherman, Government Publish-
ing Office, Keeping America Informed: The U.S. Govern-
ment Publishing Office, A Legacy of Service to the Nation
1861–2016 at 139 (revised ed. 2016).
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14 VETERANS4YOU LLC v. UNITED STATES

argues that no constitutional separation of powers con-
cerns are raised here, because VA’s actions were controlled
by an executive branch regulation rather than by statute.
In particular, the government points to Federal Acquisition
Regulation (“FAR”) 8.802(a) [44 C.F.R. § 8.802(a)], which
directs that “Government printing must be done by or
through the Government Publishing Office (GPO) (44
U.S.C. 501).” Appellee Br. 43–46. The FAR is promulgated
by the FAR Council, comprising members of the Depart-
ment of Defense, the General Services Administration, and
the National Aeronautics and Space administration. See 41
U.S.C. § 421. FAR 8.802(a) is thus not a legislative di-
rective.
However, we are not persuaded that the existence of
FAR 8.802(a) bears on the question of whether a constitu-
tional separation of powers issue is raised by the invocation
of the printing mandate in this case. We agree with Veter-
ans4You that “FAR 8.802(a), which parrots the language of
[and cites] 44 U.S.C. § 501,” Reply Br. 11–12, does not rem-
edy any constitutional infirmity in 44 U.S.C. § 501 itself.
As a general matter, “the existence of a parroting regula-
tion does not change the fact that the question . . . is not
the meaning of the regulation but the meaning of the stat-
ute.” Gonzales v. Oregon, 546 U.S. 243, 257 (2006); cf. Pres-
idential Authority to Decline to Execute Unconstitutional
Statutes, 18 Op. O.L.C. 199 (1994). We conclude that the
principle of interpretation expressed in Gonzales applies
equally to questions about a statute’s constitutionality
where, as here, a regulation parrots a potentially unconsti-
tutional statute. FAR 8.802(a) does not purport to impose
a separate and independent printing mandate as a matter
of (for example) executive branch internal management,
nor does it purport to rely on a source of authority separate
from the statutory printing mandate—to the contrary, FAR
8.802(a) merely paraphrases and cites 44 U.S.C. § 501 et
seq. Thus, even assuming arguendo that the VA’s actions
at issue here were based entirely on adherence to FAR
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VETERANS4YOU LLC v. UNITED STATES 15

8.802(a) (as distinct from adherence to 44 U.S.C. § 501), we
conclude that this does not obviate any potential separa-
tion of powers concern.
The government further argues that no separation of
powers issue is raised because the FAR Council was aware
of the 1996 OLC opinion (and a 2002 OLC opinion reaffirm-
ing OLC’s view), and yet declined to adopt a proposed mod-
ification to FAR 8.8 which would have “[r]emov[ed]
restrictions in FAR 8.8 that mandated exclusive use of
GPO for printing and related supplies.” Appellee Br. 44
(citing Federal Acquisition Regulation; Procurement of
Printing and Duplicating Through the Government Print-
ing Office, 67 Fed. Reg. 68,914 (Nov. 13, 2002)). However,
even presuming that some form of executive-branch acqui-
escence to the printing mandate is relevant in theory to the
separation of powers analysis, 6 OLC’s explicit, consistent,
and current position on the constitutionality of the printing
mandate directly contradicts any argument that such ac-
quiescence has in fact occurred. The FAR Council’s failure
to amend FAR 8.8 does not affect any separation-of-powers
analysis regarding the printing mandate.

6 See generally Shalev Roisman, Constitutional Ac-
quiescence, 84 GEO. WASH. L. REV. 668, 668–680 (2016)
(“Under the traditional approach to looking at past prac-
tice, past practice is deemed to be indicative of constitu-
tional meaning [regarding separation of powers] if one
branch has engaged in certain conduct consistently over
time and the other has ‘acquiesced’ in that conduct. If there
has been such ‘acquiescence,’ we are to assume that the
practice was constitutional, primarily because practice and
acquiescence evince some sort of agreement between the
branches on the constitutionality of the practice.”).
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16 VETERANS4YOU LLC v. UNITED STATES

IV
Given that we do not understand the government to
dispute Veterans4You’s position that the statutory print-
ing mandate at 44 U.S.C. § 501, standing alone, is uncon-
stitutional as applied to the executive branch, and given
our determination that the government’s regulatory argu-
ments do not resolve the separation of powers issue that
would be implicated by affirming application of the print-
ing mandate in this case, we conclude that the canon of
constitutional avoidance counsels us to construe the print-
ing mandate narrowly and avoid its application to the pro-
curement at issue here.
The canon of constitutional avoidance provides that
“[w]hen ‘a serious doubt’ is raised about the constitutional-
ity of an act of Congress,” courts should “first ascertain
whether a construction of the statute is fairly possible by
which the question may be avoided.” Jennings v. Rodri-
guez, 138 S. Ct. 830, 842 (2018) (quoting Crowell v. Benson,
285 U.S. 22, 62 (1932)). The canon “allows courts to avoid
the decision of constitutional questions. It is a tool for
choosing between competing plausible interpretations of a
statutory text, resting on the reasonable presumption that
Congress did not intend the alternative which raises seri-
ous constitutional doubts.” Clark v. Martinez, 543 U.S. 371,
381 (2005). The Supreme Court has repeatedly cautioned
that the canon “comes into play only when, after the appli-
cation of ordinary textual analysis, the statute is found to
be susceptible of more than one construction.” Id. at 385.
Here, we find that 44 U.S.C. § 501—in particular, the
statutory term “printing”—is susceptible of more than one
plausible construction. Veterans4You and Kingdomware
do not challenge that the broadest reading of the statutory
term “printing” would reach any kind of printed matter, in
any format and on any substrate, and as such would em-
brace the subject matter of the VA’s solicitation at issue
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VETERANS4YOU LLC v. UNITED STATES 17

here. 7 They however argue that a narrower reading of the
term, limited to a particular category of printed matter, is
both appropriate and supported by the historic context in
which the term has been used in the statute. Thus, the stat-
utory term is susceptible of more than one construction,
and the interpretative canon of constitutional avoidance is
invoked.

7 The term “printing” is not defined in 44 U.S.C.
§ 501, or elsewhere in 44 U.S.C. Chapter 5. Section 501
note states that “as used in this section, the term ‘printing’
includes the processes of composition, platemaking, press-
work, duplicating, silk screen processes, binding, micro-
form, and the end items of such processes.” There is some
ambiguity regarding whether this definition of “printing”
is properly applied to the term as used in § 501. The lan-
guage in § 501 note arose from the Legislative Branch Ap-
propriations Act of 1995, which did not purport to amend §
501—it amended Section 207 of the Legislative Branch Ap-
propriations Act of 1993. See Pub. L. 103-283, 108 Stat.
1423, 1440 (“Section 207(a) of the Legislative Appropria-
tions Act, 1993 (Public Law 102-392) is amended . . .”).
Thus, the phrase “this section” as used in § 501 note refers
to Section 207 of the 1993 Act, not § 501. The Court of Fed-
eral Claims concluded without discussion that the defini-
tion of “printing” in § 501 note applied to the term
“printing” as used in § 501. 145 Fed. Cl. at 190–91. Before
our Court, amicus Kingdomware articulated the above ba-
sis for its argument that the definition in § 501 note does
not apply to § 501. Amicus Br. 7–9. The government did not
respond to this argument, and instead asserted without
discussion that “Congress further defined printing to in-
clude [the definition in § 501 note].” Appellee Br. 29–30. We
need not resolve this issue conclusively because it does not
alter our conclusion that the printing mandate does not ap-
ply to the solicitation at issue here.
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18 VETERANS4YOU LLC v. UNITED STATES

We agree that the canon of constitutional avoidance al-
lows a narrow interpretation, and we hold that the printing
mandate in 44 U.S.C. § 501 applies only to the production
of written or graphic published materials. Based on the un-
disputed factual record, we thus conclude that the solicita-
tion at issue here does not involve “printing” within the
meaning of 44 U.S.C. § 501, because the goods which are
the object of the solicitation (including the components that
involve some element of “printing” in a broad sense, such
as the wallet card and the imprinted information on the
body of the padlocks) are not written or graphic published
materials. 8
V
Several lines of reasoning support and underlie our de-
termination that this is a reasonable construction of the
printing mandate. First, this scope of the term “printing” is
consistent with the broader context of the term’s usage in
the statute, as well as with dictionary definitions of “print-
ing.” In determining the meaning of, and potential ambigu-
ity in, a statute, we look to “the [statutory] language itself,
the specific context in which that language is used, and the
broader context of the statute as a whole.” Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997). The language of the
first statutory printing mandate, enacted in 1895, referred

8 We also reject the government’s apparent position
that the application of 44 U.S.C. § 501 to this solicitation is
a finding of fact, which we are to review for clear error. Ap-
pellee Br. 30 (“[T]he trial court did not clearly err in finding
that the printing and imprinting here is ‘printing’ for the
purposes of the GPO’s printing statute.”). The trial court
made factual findings about the nature and characteristics
of the goods sought by this solicitation, see e.g. 145 Fed. Cl.
at 185–86, 190–91, which we do not understand the parties
to dispute. However, the meaning of the term “printing” in
§ 501 is a question of law, which we review de novo.
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VETERANS4YOU LLC v. UNITED STATES 19

to “[a]ll printing, binding, and blank books.” Act of Jan. 12,
1895, ch. 23, § 87, 28 Stat. 601, 622. The current printing
mandate similarly refers to “printing, binding, and blank-
book work.” 44 U.S.C. § 501. As the contemporary diction-
aries cited by amicus Kingdomware demonstrate, the
terms “binding” and “blank-book work” refer to the produc-
tion of written and graphic published materials. Webster’s
Common School Dictionary 31 (1892) (defining “binding” as
referring to “anything that binds; . . . the cover of a book”);
American Dictionary of Printing and Bookmaking 47–48
(1894) (describing “blank-books” as bound volumes of blank
pages or forms, such as account ledgers and address books).
Our construction of the term “printing” is thus supported
by “the canon noscitur a sociis, according to which ‘a word
is known by the company it keeps.’” Ali v. Fed. Bureau of
Prisons, 552 U.S. 214, 226 (2008) (citations omitted). In
other words, we understand “printing” to encompass the
production of written and graphic published materials, just
as the terms “binding” and “blank-book work” do.
We are further persuaded by Kingdomware’s argument
that the context of the statutory language supports our con-
struction of the term “printing.” See Amicus Br. 4–11. The
Legislative Branch Appropriations Act of 1993 (the Act
which was modified by the Legislative Appropriations Act
of 1995, which 1995 Act included the definition of “print-
ing” in § 501 note) refers specifically to “printing related to
the production of Government publications (including
printed forms).” 106 Stat. at 1719. “Government publica-
tions” is (and was at the time of the 1993 Act) defined in 44
U.S.C. § 1901 to mean “informational matter which is pub-
lished as an individual document at Government expense,
or as required by law.” See Act of Oct. 22, 1968, Pub. L. 90-
620, 82 Stat. 1238, 1283. These references to “Government
publications” and “printed forms,” both of which encompass
published written and graphic materials in the traditional
sense, support our view that “printing” within the meaning
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20 VETERANS4YOU LLC v. UNITED STATES

of § 501 is limited to written or graphic published materi-
als.
Our construction of the term “printing” is also sup-
ported by modern dictionary definitions. “Printing” means
“the transfer of characters or designs on to paper, etc., by a
mechanical process; the production of books, newspapers,
magazines, etc., by this means.” Oxford English Dictionary
Online (Sept. 2020); see also Collins English Dictionary
1579 (12th ed. 2014) (defining “printing” as “the process,
business, or art of producing printed matter[;] . . . printed
text[;] . . . all the copies of a book or other publication
printed at one time[;] . . . a form of writing in which letters
resemble printed letter[.]”). In view of our determination
that the canon of constitutional avoidance compels a nar-
row interpretation of the printing mandate, we need not
conclude that our construction is the only possible con-
struction. These dictionary definitions support our view
that our construction of the statutory term “printing” is
reasonable.
Second, this scope of the printing mandate comports
with the historical functions and activities of the GPO,
which evidence a nearly universal focus on the production
of written or graphic published materials. The statutory
history demonstrates this focus as a textual matter. The
earliest qualifications for the Superintendent of Public
Printing were that “said Superintendent shall be a practi-
cal printer, versed in the various branches of the arts of
printing and book-binding.” Act of August 26, 1852, ch. 91,
10 Stat. 30, 30 (1852). The 1895 Act, where the language of
the statutory printing mandate originated, also evidences
this focus. That Act refers in several places to “printing,
binding, lithographing, or engraving,” and includes, for ex-
ample, extensive provisions governing the Public Printer’s
acquisition of paper for use by the GPO. 28 Stat. at 601–
06.
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VETERANS4YOU LLC v. UNITED STATES 21

Documentary history of the GPO’s activities since 1895
also demonstrates this focus as a practical matter. For ex-
ample, a collected photographic history of the GPO from
1861 to 1961 catalogs the evolution of the GPO’s facilities
and equipment, and documents the GPO’s performance of
the tasks incident to the production of written or graphic
published materials, such as typesetting, proofing, binding,
and engraving. See Government Printing Office, 100 GPO
Years, 1861–1961: A History of United States Public Print-
ing 78–79 (2010 ed.) (spanning 40 unnumbered pages of
photographs). These photographs also document special-
ized equipment and methods for the production of particu-
lar government documents for which the GPO has
historically maintained responsibility, such as patents, fed-
eral income tax forms, the Congressional Record, and the
Federal Register. Id. This focus has remained during unu-
sual historical circumstances as well—for example, during
WWI, the GPO produced “millions of copies of drillbooks,
handbooks, regulations, etc.” for the Army, “75 million
thrift cards, 25 million questionnaires and blanks, 27 mil-
lion notices of classifications, and numerous orders ranging
from one to five million each” for the Navy, and “many mil-
lions of posters, pamphlets, and circulars” for the Depart-
ment of Agriculture. George D. Barnum & Andrew M.
Sherman, Government Publishing Office, Keeping America
Informed: The U.S. Government Publishing Office, A Leg-
acy of Service to the Nation 1861–2016 at 54 (revised ed.
2016) (internal quotations omitted). In summary, we con-
clude that our construction of the term “printing” within
the meaning of 44 U.S.C. § 501 comports with the GPO’s
historical focus on the production of written or graphic pub-
lished materials.
VI
Finally, we turn to § 8127 of the VBA (38 U.S.C.
§ 8127), the statutory provision containing the so-called
Rule of Two. As discussed, the Court of Federal claims held
that the goods sought under the solicitation at issue here
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22 VETERANS4YOU LLC v. UNITED STATES

fall within the printing mandate at 44 U.S.C. § 501, 145
Fed. Cl. at 190–91, a holding we presently reverse. Follow-
ing from this holding, the Court of Federal Claims con-
cluded that since the GPO (not the VA) was properly
conducting the solicitation, 38 U.S.C. § 8127(i) (not
§ 8127(d)) controlled. 145 Fed. Cl. at 191–94. The Court of
Federal Claims further concluded that VA had complied
with its obligations under § 8127(i) “to request that the
GPO employ a Rule of Two analysis ‘to the maximum ex-
tent feasible,’” though it is undisputed that GPO’s own reg-
ulations prevent GPO from adhering to a formal veteran
preference or set-aside of the nature that § 8127(d) re-
quires VA to perform where VA is conducting a procure-
ment itself. Id.
In light of the administrative record, we understand
VA’s decision to route this solicitation through the GPO to
have been premised on an understanding on the part of VA,
confirmed by GPO, that VA was obligated by the printing
mandate 9 to route this solicitation through GPO. See, e.g.,
J.A. 50–53, 58–59, 437–39. Because we reverse the Court
of Federal Claims’ determination that the goods sought un-
der the solicitation fall within the printing mandate, we do
not reach the question of whether VA was in compliance
with its obligations under § 8127(i). We also do not reach
the issue of whether VA could permissibly route solicita-
tions like this one through GPO as a matter of discretion,
rather than as a matter of legal obligation under the print-
ing mandate, and what (if any) constraints on such a

9 Including both the statutory printing mandate at
44 U.S.C. § 501 and FAR 8.802. The record is at times am-
biguous regarding whether VA understood itself to be fol-
lowing FAR 8.802, or 44 U.S.C. § 501 directly. As explained,
we do not find any distinction between these sources of au-
thority to be meaningful with respect to either the scope of
the printing mandate or the separation of powers analysis.
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VETERANS4YOU LLC v. UNITED STATES 23

decision would be imposed by the various provisions of the
VBA.
CONCLUSION
We have considered the parties’ remaining arguments,
and find them unpersuasive. For the reasons above, we re-
verse the Court of Federal Claims’ determination that the
printing mandate applied to the solicitation at issue here,
and thereby obligated VA to route the solicitation through
GPO. We remand to the Court of Federal Claims for further
proceedings consistent with this opinion. The final judg-
ment of the Court of Federal Claims is
REVERSED AND REMANDED
COSTS
No costs.