contract would disrupt the draft registration program and cause harm to the party implementing the conversion, Systems Automation Corporation ("SAC"). The balance of equities, in the government's view, points toward maintenance of the status quo pending the GAO's resolution of the CompuServe protest; in other words, the Boeing contract should be performed on schedule.
The intervenor-defendant Boeing suggests a factual pattern similar to that described by the federal defendants. Boeing focuses on areas of the dispute relevant to its interest. First, Boeing addresses the harm that it would suffer if this Court granted the requested relief. Boeing has already committed personnel to the contract, has sold $ 1,500 worth of computer time to the Army, and partly in reliance on the Army contract, has ordered a $ 1.3 million computer unit scheduled for delivery in November, 1980. Were this Court to order that performance cease on the contract, Boeing ponders that it may have to cancel that order and, should the contract be later reinstated, face a six to nine months delay for a reorder, a delay that would jeopardize the government's interests as well.
Second, Boeing insists that the communications it had with the GSA after the submission of best and final offers were wholly proper. These communications, Boeing alleges, can be divided into two categories. The first concerned an attempt by Boeing to increase and adjust its price which the GSA denied. The second group of correspondence involved minor clarifications in the actual contract price, adjustments which Boeing claims were in accord with applicable procurement regulations.
The plaintiff must satisfy four requirements for a preliminary injunction. It must demonstrate that there is a substantial likelihood that it will succeed on the merits, that it would suffer irreparable harm without injunctive relief, that no substantial harm would accrue to the interests of third parties and lastly, that an injunction would serve the public interest. Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958). It if appears that there is compelling proof on the showing of irreparable harm, then the Court may award the requested relief even though its view on the merits of the dispute differs from the plaintiff's. See Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S.App.D.C. 220, 223-24, 559 F.2d 841, 843-44 (1977).
I. Likelihood of Success on the Merits.
The dispute over the merits in this case centers on two broad issues, whether the CompuServe proposal met the requirements of the RFP and whether GSA treated CompuServe unequally. The first of these issues concerns precisely the question whether CompuServe's RCR met the specific requirement of the RFP that the government be able to audit each specific variable used to calculate the computer charge. The second question to be resolved is whether GSA acted improperly either in communicating with Boeing after the submission of best and final offers or in rejecting CompuServe's proposal without giving it a further opportunity to correct it.
A. CompuServe's RCR.
There are two components to the inquiry of whether the plaintiff has demonstrated a substantial likelihood that it could prove that its proposal met the requirements of the RFP. The dispute concerns CompuServe's calculation of central processor usage, or CPU, the measure of the time used in processing the program, and CompuServe's method of dynamically allocating memory space both before the running of the program and during the run itself. Both aspects of the dispute center directly on the government's ability to audit the charges made under the contract.
Brief background discussion is necessary. The government was clearly dissatisfied with its ability to audit the precise elements of the charges for which it is billed for Army usage under the incumbent contract. Accordingly, a computer system was sought that would permit government auditors to examine the precise elements that combined into the resulting charge, to assure accurate billings. For the auditing to take place, whatever elements making up the final charge had to be calculated and displayed separately, or in an "unbundled" fashion. It was, therefore, to facilitate the important goal of auditing the expenditure of the taxpayers' money, that the GSA included in the RFP the following requirements:
P F.184.108.40.206b ... A routine shall be provided to the Government which will record and point out the Elapsed Time ... and all computer resources consumed during the execution of any program to which the routine is applied. The purposes of this routine are to provide the Government with a tool for use in auditing system performance and costs, and in optimizing application software during development ... The printout must display specifically and separately all unique resource elements for which a charge is made. Any elements that are bundled to produce a compound billing unit of any kind shall be displayed and quantified separately (unbundled) ....
The basic requirement is that all elements which, directly or indirectly impact on the bill must be displayed in their fundamental unbundled form.