The opinion of the court was delivered by: BRYANT
Atlas complains that the contracting officer made no attempt to compute Atlas's transportation costs, and seeks to demonstrate that, in this case, the officer would have had no difficulty in making such a computation with reasonable certainty. Atlas's essential contention is that a contracting officer may have an affirmative obligation to remedy a bidder's omissions by calculating, in effect, the bidder's "worst possible realistic total cost." In the event that the bidder would have prevailed on the basis of such a calculation, Atlas suggests that the bidder is entitled to the award. In support of this proposition Atlas has brought to the Court's attention a number of decisions by the GAO.
Ultimately, a court reviewing the award of the contract to the Danish firm would be constrained by M. Steinthal & Co. v. Seamans, 147 U.S. App. D.C. 221, 455 F.2d 1289 (1971) to ask whether the contracting officer's decision not to undertake the calculations pressed by Atlas was clearly illegal or without any rational basis. See also John Reiner & Co. v. United States, 163 Ct. Cl. 381, 325 F.2d 438 (1963), cert. denied, 377 U.S. 931, 12 L. Ed. 2d 295, 84 S. Ct. 1332 (1964). In making that determination the court would look to the statutes and regulations governing the procurement process, which are cited above, and to the GAO's decisions as well, since the doctrine of primary jurisdiction applies here and requires that those decisions be given considerable weight. Steinthal, supra, 455 F.2d at 1301-1305; Wheelabrator Corp. v. Chafee, 147 U.S. App. D.C. 238, 455 F.2d 1306 (1971).
Here, issuance of a preliminary injunction is governed by the familiar standards set forth in Virginia Petroleum Jobbers Association v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921 (1958). The Court has concluded that Atlas is unable to satisfy at least two of the requisite criteria.
Second, the Court finds that Atlas cannot demonstrate that its interests coincide with those of the public. Obviously the public has an interest in the awarding of these contracts to the lowest responsive and responsible bidder. But the public has just as strong, if not stronger, an interest in preserving the objective fairness of the competitive bidding system, and that interest might well be jeopardized by a rule allowing, or compelling, contracting officers to simulate a bidder's thought processes and to award the contract accordingly. Moreover, the public has a strong interest in expeditious completion of the relocation of the radar site in Greenland, and the project would have to be delayed and possibly put off until 1978 if the Court were to grant to Atlas the relief it seeks in this case.
For these reasons, the Court finds that it should not interfere with the procurement process in the manner Atlas suggests. Accordingly, Atlas's motion for a preliminary injunction must be denied.
WILLIAM B. BRYANT / Judge
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