The opinion of the court was delivered by: WADDY
On June 11, 1970, A.G. Schoonmaker Co., Inc. ("Plaintiff" hereinafter) instituted this action on a claim that Defendant public officials had acted arbitrarily, capriciously and unlawfully in respect to the purported cancellation of Invitation for Bids DAAK 02-70-B-1225 ("Army Invitation" hereinafter), and issuing and purporting to act on Invitation for Bids DAAK 02-70-B-3125 ("New Army Invitation" hereinafter), seeking declaratory and injunctive relief in essence prohibiting the award of any contract to anyone other than Plaintiff and requiring that a contract be issued under the Army Invitation to Plaintiff.
On June 12, 1970, this Court issued a Temporary Restraining Order enjoining the opening of bids on June 15; and on June 26, 1970, upon Findings of Fact and Conclusions of Law entered on that date, issued an Order and Preliminary Injunction restraining the opening of bids and the award of a contract under the New Army Invitation pending the determination of this cause.
On July 2, 1970, Bogue Electric Manufacturing Company ("Intervenor" hereinafter) filed a Motion for Leave to Intervene as a plaintiff and, by order of August 5, 1970, was permitted to intervene and to file a Complaint in this action. This Complaint seeks substantially the same relief sought by Plaintiff but claims that Intervenor, rather than Plaintiff, is entitled to be awarded a contract under the Army Invitation.
The trial of this cause commenced on August 20, 1970, pursuant to this Court's Order of June 26, 1970, expediting these proceedings, and concluded on August 21. All parties adduced testimony through witnesses and the authenticity and admissibility of a substantial portion of the documentary evidence introduced at the trial was stipulated. The parties also stipulated as to the authenticity of other documents at the outset of trial which were subsequently admitted into evidence by the Court.
1. Plaintiff is a corporation with its principal place of business in the State of California.
2. Defendant Stanley R. Resor is Secretary of the Army and is authorized to conduct all of the affairs of the Department of the Army, including those of the United States Army Mobility Equipment Research and Development Center, Fort Belvoir, Virginia ("Army" hereinafter). Defendant Melvin R. Laird is Secretary of Defense and exercises direction, authority and control over the Department of Defense. Defendant Staats is Comptroller General of the United States and is charged with the control and direction of the General Accounting Office.
3. Intervenor is a corporation with its principal place of business in the State of New Jersey. Approximately ninety percent of its business is with the Government. Mr. William Guttenberg is its President and has been employed by Intervenor for twenty-six years.
4. In 1968, the Department of Defense developed a program for the standardization of 15 KW through 200 KW engine-driven generator sets for the Armed Services. The Department of Defense assigned responsibility for the procurement of 15 KW and 30 KW generator sets (the "Generator Sets" hereinafter) to the Army and responsibility for the procurement of 100 KW and 200 KW sets to the Department of the Air Force ("Air Force" hereinafter).
5. This program was and is administered by the Department of Defense Project Manager -- Mobile Electric Power. The Project Manager for the program is Col. J.J. Rochefort, Jr. Mr. Bart Bingham is, and at all times pertinent hereto was, the chief of the procurement branch of the Project Manager's Office. Mr. Bingham has, and at all times pertinent hereto had, responsibility for planning the procurement of the standardized generator sets with jurisdiction over both the Army and Air Force Invitations.
6. On February 18, 1969, the Army issued Solicitation No. DAAK 02-69-R-2200, constituting the first step of a two-step, formally advertised, multi-year procurement of the Generator Sets, to Plaintiff, Intervenor and numerous other companies. Plaintiff and Intervenor devoted substantial time and effort and incurred substantial expense in developing technical proposals for the production of the Generator Sets in response to the Solicitation, and, after their respective technical proposals had been accepted by the Army, devoted ...