for adoption. An elaborate assessment process which considered both technical and economic factors was developed and carried out. When the members of the CAG Steering Committee voted on their choices, Scanning Beam was preferred over Doppler 9 to 6 with 2 abstentions. The abstainers stated that either one would be satisfactory. This careful and open process of determining which optimized technique merits further support is certainly rational and would appear to limit further federal support to the two contractors, Bendix and Texas Instruments, which had been engaged in developing scanning beam systems.
Hazeltine protests that the tentative selection of an optimized scanning beam technique should not foreclose it from competing in that technique for Phase III work. Hazeltine argues that technology it developed for the government under a Phase II contract constitutes a valuable segment of the optimized scanning beam technique. In particular, Hazeltine has developed a Doppler scan electronic antenna which may be converted to fit the requirements of the optimized scanning beam system. (Both systems, Doppler and Scanning Beam, have benefited by input from a number of foreign and domestic sources of technological competence.) Therefore, plaintiff claims that it has earned the right to compete on equal terms with Bendix and Texas Instruments for the third and final phase of the development.
Plaintiff Hazeltine seeks an injunction to
(1) Prevent FAA from continuing to brief Bendix and Texas Instruments with further scanning beam information unless Hazeltine is allowed to participate in the briefing;
(2) Prevent defendants from entering into contracts unless plaintiff is given opportunity to participate in a new contract award; and
(3) Continue aforesaid injunctions if the Comptroller General of GAO decides plaintiff's protest adversely to plaintiff.
Plaintiff further seeks a Declaratory Judgment granting plaintiff opportunity to participate in Phase III program as a prime contractor on the Scanning Beam with time reference technique.
Bendix and Texas Instruments have filed for leave to intervene as defendants.
Conclusions of Law
1. The Court finds that the original procurement was competitive; that it was a package of three phases which started with nine contractors, was reduced to six for Phase I, to four for Phase II, and to two for Phase III; that it was always contemplated that a single, most effective technique would go forward by the contractors associated with the selected technique.
2. The Court grants Bendix Corporation's and Texas Instruments' motions to intervene. Nuesse v. Camp, 128 U.S.App.D.C. 172, 385 F.2d 694, 702-04 (D.C.Cir. 1967); Scanwell Laboratories v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970).
3. The Court denies plaintiff's motion for a preliminary injunction and declaratory judgment. Virginia Petroleum Jobbers v. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921 (Cir.1958).
The Court finds that the public interest is best served by expeditiously permitting the FAA to proceed forthwith with its final selection of technique, and thereafter in Phase III, contract with whichever contractors are associated with the selected technique. Hazeltine is associated with the Doppler technique. If the Doppler technique is chosen, the contractors would be Hazeltine and ITT. If the Scanning Beam with Time Reference System format is selected, the contractors would be Bendix and Texas Instruments. Kentron-Hawaii Ltd. v. Warner, 156 U.S.App.D.C. 274, 480 F.2d 1166, 1169, 1182 (1973); Steinthal v. Seamans, 147 U.S.App.D.C. 221, 455 F.2d 1289, 1301 (1971); Wheelabrator Corp. v. Chafee, 147 U.S.App.D.C. 238, 455 F.2d 1306, 1313-17 (1971).
5. Plaintiffs have raised questions relative to alleged violations in the government's permitting all contracts to expire and alleged irregularities in their subsequent extension. The Court declines to consider the merits of these allegations since the activity occurred subsequent to the filing of this case. Plaintiff's allegations may properly be pursued before the General Accounting Office as plaintiff has done in the past.
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