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OPTIC-ELECTRONIC CORP. v. UNITED STATES

September 21, 1987

Optic-Electronic Corp., Plaintiff
v.
United States of America, et al., Defendants



The opinion of the court was delivered by: PENN

 JOHN GARRETT PENN, United States District Judge

 The plaintiff, a disappointed bidder, filed this action in which it seeks a declaratory judgment and injunctive relief. The case was filed on or about September 10, 1987. The case is now before the Court on the plaintiff's motion for a temporary restraining order and its motion for expedited discovery. The Court heard arguments on September 11, 1987.

 I

 Very briefly, the facts as alleged by the plaintiff are as follows: On or about November 3, 1986, the Department of the Army, through the United States Army Missile Command (MICOM), Redstone Arsenal, Alabama, issued Request for Proposals No. DAAHO1-87-R-0098 (RFP) for the procurement of the TOW II subsystem components for the Bradley Fighting Vehicle comprised of Integrated Sights Units, Digital Command Guidance Electronics, and Turret Cables. Hughes Aircraft Corporation designed and developed the TOW II subsystem and is the first source for the subsystem.

 In May, 1987, MICOM informed the plaintiff that discussions were being reopened allegedly to allow offerors the opportunity to correct omissions and/or deficiencies in the offerors' production plans. Later the same month, MICOM indicated that it was requesting a second BAFO in order to evaluate proposals for "technical acceptability." Plaintiff alleges that although there was no justification for a second BAFO, it submitted a second BAFO in June 1987.

 By letter dated July 13, 1987, MICOM reopened negotiations for a third time. At the same time, Amendment 0008 was issued. Plaintiff contends that, although 75 pages in length, Amendment 0008 had only a very minimal impact on the price offers. Plaintiff submitted a third BAFO.

 Eventually the contract was awarded to Texas Instruments. Plaintiff contends that it should have received the contract based on its first BAFO. Plaintiff contends that the contract was "steered" to Texas Instruments, and that bidding information was leaked to Texas Instruments. Plaintiff makes other allegations which need not be repeated here.

 II

 The plaintiff seeks to have the Court enter a temporary restraining order. To be entitled to such relief the plaintiff must demonstrate that it is likely to prevail on the merits, that it will suffer irreparable injury if injunctive relief is denied, that the issuance of an injunction would not cause substantial harm to the other parties, and finally, that the entry of an injunction will not be adverse to the public interest. Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S.App.D.C. 220, 222, 559 F.2d 841, 843 (1977). "The necessary 'level' or 'degree' of possibility of success will vary according to the court's assessment of the other factors." Id. In addition, since the plaintiff seeks a temporary restraining order, it must demonstrate that it will suffer immediate harm within the next ten days unless injunctive relief is granted.

 Turning to the question of likelihood of success, the Court notes that plaintiff has made very serious allegations concerning the underlying procurement procedure. While plaintiff may not have all of the underlying information because it has not as yet had an opportunity to engage in discovery, its allegations have, to date, not been formally challenged by the defendants. Indeed, defendants concede that there was a "problem" in the bidding process and that the contracting officer was involuntarily retired from service. The defendants also concede that they did not consider the first BAFO and thus are unable to represent whether plaintiff's first BAFO was the lowest responsive, responsible offer.

 It must be noted that the case is before the Court on a motion for a temporary restraining order and that the defendants have not had an opportunity to file a formal written opposition, although, of course, they did oppose the motion at oral argument.

 Finally, on the issue of likelihood of success, the Court must take into consideration the admonition of the Court of Appeals. That court, while recognizing that those adversely affected by the award of government contracts have standing to sue, see Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970), observed: "However, they bear a heavy burden of showing either that (1) the procurement official's decision on matters committed primarily to his own discretion had no rational basis, or (2) the procurement procedure involved a clear and prejudicial violation of applicable statutes or regulations." Kentron Hawaii, Limited v. Warner, 156 U.S.App.D.C. 274, 277, 480 F.2d 1166, 1169 (1973) (emphasis this Court's, ...


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