Plaintiff claimed initially that Harris' "past performance" was considered in evaluating cost realism and DTUPC, while the RFP indicated it was a subfactor only in the management area. Affidavits from the chairmen of the price and management teams of the SSEB effectively refute this claim, and Harris failed to develop any evidence during discovery to support it. Similarly, while Harris' employees gathered from the debriefing that the DTUPC factor had been ignored, the detailed SSEB evaluations of Harris and Magnavox in that area and the SSAC's report to General Morgan more than demonstrate the inaccuracy of that charge. See Plaintiff's Exhibit 6, at 4.1.a; Plaintiff's Exhibit 7, at 4.1.a, Plaintiff's Exhibit 3, at 13. Thus, the initial claim that the evaluative factors were changed without notifying the offerors is baseless.
Harris also believed that its rating in the ILS area was based on its original proposal rather than its final offer, a claim which, if true, would be a violation of 48 C.F.R. 15.611(d). Again, the documentary evidence and the unchallenged affidavits of SSEB members refute this claim. See Affidavit of Jon Ford (Feb. 7, 1986); Plaintiff's Exhibit 7, at 2e-2h. In addition, there is nothing in the record to support Harris' assertion that the government failed to conduct meaningful communications with Harris regarding the deficiencies of its cost realism proposal. The intermediate evaluation report shows that five IFNs (items for negotiations) were issued after the initial evaluation and Harris provided written responses to each. Id. at 5.2.d.
The original complaint and motion for preliminary injunction challenges the Army's use of cost realism as an evaluation factor since this procurement was for a fixed price contract. Harris also objects to the consideration of its past performance on previous cost-reimbursement type contracts in the evaluation of its management proposal. The Comptroller has held that cost realism is a valid evaluation factor even in procurements where total price is the primary concern, which is not the case here, because it helps in assessing the offeror's understanding of the government's requirements. See General Management Systems, Inc., Comp. Gen. B-2124246, 84-2 CPD para. 351, at 4 (1984). In any event, Harris' claim is untimely. Harris was required to challenge evaluation factors before submitting its BAFO. 4 C.F.R. § 21.2(a) (1) (1985). It had ample opportunity to do so.
In evaluating past performance under the management factor, the Army reviewed 13 prior contracts of Harris considered comparable in complexity to the SCOTT project and which had a contract value of at least $10 million. Affidavit of Keith Maurer, para. 7 (Feb. 6, 1986); Plaintiff's Exhibit 7, at 3.1.c. Only five of the 13 contracts were fixed price contracts. The survey of past performance revealed instances where Harris was lacking in cost control. Id. at 3.1.d. This information was relevant to an evaluation of Harris' management capabilities even if most of the prior contracts were not fixed price contracts. From such an analysis it cannot be said that the Army's evaluation of Harris' proposal in this regard was improper.
In sum, most of Harris' initial claims in this lawsuit amounted to very little once discovery was obtained. Harris argues that all of the inconsistencies and problems with the procurement that it has identified, when lumped together, lead to the conclusion that the Magnavox award lacked a rational basis. The Court understands that Harris is not required to show that each of its challenges standing alone justifies overturning the procurement, but fails to see how any of the challenges Harris has brought are significant or present a serious question. Harris has failed to make a convincing showing on the merits that would justify issuance of a preliminary injunction.
B. The Public Interest
The plaintiff correctly points out that the public has a great interest in seeing that its tax dollars are distributed fairly by government agencies. But the public interest is also served by avoiding disruptions of the procurement process. M. Steinhal & Co., 455 F.2d at 1300; see also Yakus v. United States, 321 U.S. 414, 440, 88 L. Ed. 834, 64 S. Ct. 660 (1944). This interest is especially great in this case since it involves a project important to national security.
On this issue, the Court has noted the public and, particularly, the in camera declaration of J.R. Sculley, Assistant Secretary of the Army. The government's, and therefore the public's, interest in having this particular contract proceed according to schedule weighs heavily in the balance. A much stronger case on the merits than the plaintiff has presented would be necessary to counter-balance the public interest in this case.
THE MOTIONS FOR SUMMARY JUDGMENT
To prevail on their motions for summary judgment, the government and the intervenor must demonstrate that there are no material facts presenting a genuine issue for trial and that, as a matter of law, they are entitled to judgment. Goodrich v. Int'l Brotherhood of Electrical Workers, 229 U.S. App. D.C. 456, 712 F.2d 1488, 1494 (D.C. Cir. 1983); Perry v. Block, 221 U.S. App. D.C. 347, 684 F.2d 121, 126 (D.C. Cir. 1982). Plaintiff claims that factual issues still exist because the government witnesses have merely denied what Harris' representatives say they were told at the debriefing. But beyond the affidavit attached to the original complaint that relates plaintiff's version of the events at the debriefing, Harris has developed only the slightest evidence that supports its claims. While all inferences from the factual material before the Court must be drawn in favor of Harris, a mere denial or recitation of conclusory allegations is insufficient to raise a genuine issue of material fact where the record does not support those allegations. Briggs v. Goodwin, 225 U.S. App. D.C. 320, 698 F.2d 486, 489 n.2 (D.C. Cir. 1983), rev'd on rehearing on other grounds, 229 U.S. App. D.C. 412, 712 F.2d 1444 (D.C. Cir. 1983); Bloomgarden v. Coyer, 156 U.S. App. D.C. 109, 479 F.2d 201, 208 (D.C Cir. 1973).
A number of uncontroverted affidavits have been submitted by the government. They relate to the central issues in this litigation and are more than sufficient to show that the Army's decision had a rational basis and was not arbitrary and capricious. The plaintiff has not demonstrated that there are unresolved material facts which preclude the relief sought by the defendants and the intervenor. Summary judgment for the government and the intervenor Magnovox is appropriate as a matter of law.
An order consistent with the above Memorandum Opinion is entered as of this date.
ORDER GRANTING SUMMARY JUDGMENT
On February 18, 1986, this Court entered an order denying the plaintiff's motion for preliminary injunction and indicated that a Memorandum Opinion would be filed immediately thereafter. The promised memorandum opinion was filed as of this date. On the basis thereof, and as previously ordered, the motion for preliminary injunction is denied; and further, for the reasons set out in the Memorandum Opinion, it is this 19th day of February, 1986,
That the defendants' and the intervenor's motions for summary judgment are granted and the plaintiff's complaint is dismissed.