Contract is not reviewable under the APA. Nothing in the APA or cases with which the Court is familiar support Defendants' contention. Although the case is not directly on point, the Court in Scanwell does identify the primary concerns a reviewing court should have in deciding questions of jurisdiction. The Court there looked to the injury to Plaintiff's economic livelihood and the public's interest in preventing the granting of contracts through arbitrary or capricious action. Here, Plaintiff alleges prospective loss of a complex system for guiding missiles developed by Plaintiff over several years at great expense. Additionally, the public's interest is apparent in preventing arbitrary or capricious action by Government officials in distributing the proprietary data of contractors submitted to the Government for national security programs. Thus, the alleged threat of legal wrong to Plaintiff's interests are sufficient to warrant some means of judicial redress.
In exercising jurisdiction over Plaintiff's claim, the Court provides the "aggrieved" contractor with the only forum in which it can obtain the relief sought and thereby prevent irreparable damage to its competitive position. Neither the Armed Services Board of Contract Appeals nor the Court of Claims has jurisdiction to grant Plaintiff the injunctive relief sought in the present case. For example, the Armed Services Board of Contract Appeals is authorized to grant relief in the form of an equitable adjustment under a substantive provision of the contract such as the "disputes" article clause in interaction with the "changes" articles in the contract at bar. See The Breed Corp, ASBCA Nos. 14074 and 14344. In Breed, the Government argued that the Board lacked jurisdiction to grant the relief in the nature of an injunction as requested by appellant. Indeed, the Government advised the Board that only the United States District Court could provide injunctive relief against the Government. The Board agreed that the relief requested was beyond the delegation of the Board's "Charter" and denied appellant's motion to stay the Contracting Officer's actions in that case. Now the Government chooses to come before the Court and argue that this forum is not authorized to issue the relief sought. Thus the Government places Plaintiff in a "Catch 22" predicament plainly contrary to the interests of justice. Consequently this Court holds that jurisdiction indeed exists in the instant matter.
It should be noted that the Court of Claims is not expressly authorized by Congress to grant the kind of relief sought here. United States v. King, 395 U.S. 1, 89 S. Ct. 1501, 23 L. Ed. 2d 52 (1969). Other avenues of review are also blocked; Plaintiff sought administrative relief from the Secretary of the Air Force's Deputy Counsel and from the Comptroller General, both of whom denied the availability of review, the latter because IEC's claim for relief was not made in connection with a procurement.
Therefore, for the reasons stated above, the Court concludes that it has jurisdiction over the parties and the subject matter of this action. 28 U.S.C. §§ 1331, 1361, 2201 and 2202, and 5 U.S.C. § 702.
2. The Contracting Officer's Failure to Elucidate the Basis for His Decision Prevents the Court's Expeditious Review of the Record.
The record reflects the Contracting Officer's opinion that IEC made a full and complete presentation in an attempt to substantiate its claim that the Government has only "limited rights" to certain material contained in the three Final Reports at issue. However, his response to IEC's presentation at the June 26, 1972 meeting with all interested parties present was that IEC had not "furnished the substantiation required for a determination that the Government was entitled to only 'Limited Rights' to the data in question." (Affidavit of Raphael Harsfield, May 16, 1973). Further submissions by Plaintiff were also determined by the Contracting Officer to contain no substantiation to justify IEC's claim. In his responses, the Contracting Officer has offered conclusions unsupported by a statement of the determinative reasons. See Camp v. Pitts, 411 U.S. 138, 93 S. Ct. 1241, 36 L. Ed. 2d 106 (1973). In light of the extensive technical material before the Court which documents the correspondence between IEC and the Contracting Officer, the Court finds the Contracting Officer's brief conclusion inadequate for effective review of the Contract materials at issue and the Armed Services Procurement Regulations which bear on those materials.
In an area as complex as Government procurement, the Court needs the benefit of the Contracting Officer's underlying reasoning in order to expeditiously review the record. To allow brief indications of reasons for what constitutes final agency action is to impede the Court's participation in the "'partnership' in furtherance of the public interest" that court and agency must share. Greater Boston Television v. FCC, 143 U.S. App. D.C. 383, 444 F.2d 841, 851-852, cert. denied, 403 U.S. 923, 91 S. Ct. 2233, 29 L. Ed. 2d 701 (1971). The Contracting Officer's conclusory response to Plaintiff's submissions informed neither Plaintiff nor the Court of the reasons Plaintiff's descriptions of materials developed at private expense were inadequate. Without a more sufficient indication of the basis of his decision the Court cannot effectively review the Contracting Officer's exercise of his statutory power to determine whether his action embodied an abuse of discretion or error of law.
The Court has scrutinized the asserted justification for the Contracting Officer's practice of not explaining his reasons for distinguishing Contract material developed at private expense from that generated by Government funding and is dissatisfied with the Government's position. Although, as the Government contends, it may be extremely burdensome for the Contracting Officer to investigate the accounting records of the contractor, the instant case has convinced the Court that there are situations of fact and characteristics of action in which a Contracting Officer's one sentence response to a detailed record undermines effective judicial review. Here, for example, no extensive investigation was demanded of the Contracting Officer since the contractor attempted to identify the source of expense for each page of data contained in the Reports. However, his impressions of the contractor's efforts, particularly at the June 26, 1972 conference, need elucidation and that need for the purposes of judicial review, outweighs any Governmental interest in avoiding administrative burdens.
Furthermore, the Government's reassurance to the Court that, as a matter of policy, the Government employees involved rarely challenge restrictive legends because of the resulting administrative burden falls short of its mark. The Court firmly believes that an articulated basis for each of the Contracting Officer's decisions will offset any risk of an arbitrary departure from the aforementioned policy to the detriment of a contractor's property interests. See Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S. App. D.C. 74, 439 F.2d 584 (1971); Environmental Defense Fund v. E.P.A., 150 U.S. App. D.C. 348, 465 F.2d 528 (1972).
Assuredly, the Court has no intention of substituting its judgment for that of the Contracting Officer, but it is the Court's duty to consider whether "the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 824, 28 L. Ed. 2d 136 (1971). Given that duty, the Court must have a meaningful indication in the record of the basis upon which the Contracting Officer acted. As Judge Leventhal recently commented in Portland Cement Association v. Ruckelshaus, D.C. Cir., 158 U.S. App. D.C. 308, 486 F.2d 375 (1973): "While we remain diffident in approaching problems of this technical complexity, * * * the necessity to review agency decision, if it is to be more than a meaningless exercise, requires enough steeping in technical matters to determine whether the agency 'has exercised a reasoned discretion.' Greater Boston TV v. FCC (supra)." Similarly in the case at bar, the Court must have a clarification of Armed Services Procurement Regulations' impact on Plaintiff's efforts to substantiate its claim that explains what factors were dispositive of the claim raised by Plaintiff.
The Court's requirement that the Contracting Officer provide a statement of reasons, where a contractor has attempted to substantiate its claim within the period provided under ASPR § 9-202.3(d) and the Contracting Officer determines that effort inadequate, will not defeat countervailing Government interests. The time and energy expended by the Contracting Officer in complying with the Court's demand that he provide a basis for his decision threatens no harm to the public's health and safety, or to national security, and does not compromise the performance of a vital governmental function. But the benefit of requiring such explanation is fundamental to our system of justice; there will be both a reduction in the possibility of error and the protection of the contractor against the precipitate use of governmental authority.
For the above reasons, the Court finds it necessary to remand the subject matter of this litigation to the Contracting Officer for a statement of reasons regarding his actions on the Contract before the Court.