arising out of contracting activity, at least in cases where, as in this instance, the award precedes suit for equitable relief. See also John C. Grimberg, supra.
Finally, to endorse the government's position would be to rule that the plaintiff has no forum for his suit. Section 133(a) granted the Claims Court jurisdiction to hear only pre-award disputes. Defendant argues that neither court may review post-award disputes requesting injunctive relief. Even if this court could ignore the contrary authority, the legislative history, and the language of the statute itself, the court could not easily infer that Section 133(a) was intended by Congress to remove plaintiffs' rights to judicial review of post-award contract protests. Accordingly, defendant's motion to dismiss is denied.
Plaintiff's Motion for A Preliminary Injunction
The factors which guide this court in its decision to grant or deny an application for injunctive relief are set forth in Washington Metropolitan Area Transit Authority v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841 (D.C. Cir. 1977). The court must consider whether the moving party has made a strong showing that (1) it is likely to prevail on the merits; (2) likely to suffer irreparable injury; and (3) that the balance of interests favors the plaintiff. Id. at 843.
A. Likelihood of Success on the Merits
Judicial review of procurement decisions is a very limited one. M. Steinthal & Co. v. Seamans, 147 U.S. App. D.C. 221, 455 F.2d 1289 (D.C. Cir. 1971). In reviewing the reasonableness of the agency's decision, the court must accord proper deference to the agency's discretion in evaluating bids. Id. See also Wheelabrator Corp. v. Chafee, 147 U.S. App. D.C. 238, 455 F.2d 1306, 1312 (D.C. Cir. 1971); General Electric Co. v. Kreps, 456 F. Supp. 468 (D.D.C. 1978). Generally, a reviewing court may not overturn a procurement decision unless the party challenging the decision demonstrates that the decision was arbitrary and capricious, or that the procurement procedure involved a clear and prejudicial violation of regulations. See e.g. Kentron Hawaii, Ltd. v. Warner, 156 U.S. App. D.C. 274, 480 F.2d 1166, 1169 (D.C. Cir. 1973).
Applying this exacting standard of review to this action, this court must determine whether the plaintiff has shown a likelihood that the procurement process was conducted in violation of procurement regulations, or that the decision was arbitrary. The court finds that the plaintiff's showing falls far short of "substantial likelihood of success."
1. Violation of DOE Regulations for RFP Evaluation Criteria
Plaintiff alleges that the defendant did not follow the evaluation process set forth in the RFP. Specifically, the plaintiff alleges that both Morrison-Knudsen and DOE violated DOE procurement regulations and the FRP by failing to clearly set forth and abide by the evaluation criteria in the RFP. Plaintiff states that the technical specifications set forth in the RFP and an admonition against "brochuremanship" in the RFP indicated that the procurement agent sought a proposal that satisfied the design provisions of the specification at the lowest possible price, rather than one with features that exceeded the specifications. Plaintiff states that "under these criteria, a proposal that satisfied the specifications should have received maximum 'performance' points. Defendants, however, failed to follow these criteria when they did not so award ADT's proposal the maximum number of performance points." Plaintiff's Mem. at 14-15.
The essence of plaintiff's complaint is that the RFP requested that the proposal be prepared with maximum economy and admonished against "brochuremanship" and that the RFP led plaintiff ineluctably to the conclusion that the procuring agent would grant maximum technical points to proposals that met the minimum specifications of the RFP. Plaintiff further states that other bidders submitted proposals that exceeded the minimum specifications and that such proposals were considered favorably in comparison with plaintiff's proposal.
However, the RFP indicates that offerors were advised of the evaluation factors to be used and the relative importance of those factors. The original RFP stated that technical performance capability would constitute 60% of the final evaluation of any bid. Indeed, the cover letter attached to the RFP noted that technical features were by far the most important part of the bid for the system. In addition, the RFP itself does not state that the low bid meeting the minimum requirements will be selected. Rather, the RFP conveys the opposite. It states, in part:
The subcontract will be awarded to a responsible proposer whose proposal will be most advantageous to Morrison-Knudsen Company, Inc., price, qualifications and other evaluation factors considered.
Plaintiff's Ex. A, RFP P 11 at p. 5.
A second provision in the RFP also should have put ADT on notice of the importance of technical considerations in any proposal. The RFP states:
Morrison-Knudsen further reserves the right to award the subcontract at its discretion to any proposer other than the one proposing the lowest price, on the basis of its evaluation of the foregoing criteria. Proposers are advised that, although negotiations may follow receipt of proposals, award may be made without discussion on proposals received and thus proposals should be submitted initially on the most favorable terms with respect to price, technical exceptions, completeness and the foregoing criteria.