plaintiff; (2) an order compelling SBA to issue a COC to TSSI; (3) reimbursement of the accounting expenses plaintiff incurred in filing its COC; and (4) attorney's fees and costs. On December 8, 1988, TSSI filed a motion for a temporary restraining order as to DOD, seeking to prevent it from taking any action on the Williams contract until after a decision was issued on the merits, and a motion to compel as to SBA, seeking an order requiring it to issue a COC to plaintiff.
A scheduling conference was held that same day, at which time plaintiff agreed to convert his motion for a temporary restraining order into a motion for summary judgment and proceed to a final disposition on the merits. See Order of December 8, 1988.
On December 21, 1988, TSSI amended its complaint by adding two new paragraphs. One challenged the DOD's decision as unreasonable, arbitrary and capricious, and a breach of its implied contract to fairly and honestly consider TSSI's offer; the other challenged the SBA's decision as unreasonable, arbitrary and capricious, and unsupported by substantial evidence.
Subsequently, defendants filed their own motion for summary judgment. A hearing was held on the parties' cross-motions on January 13, 1989.
II. Governing Legal Standards
Fed. R. Civ. P. 56(c) provides that summary judgment may be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." The Supreme Court has recently proclaimed that summary judgment "is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corporation v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 1). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), articulated two inquiries that must be made before summary judgment may be granted. First, there must be no dispute as to any material fact, which the Court described as one "that might affect the outcome of the suit under governing law." 477 U.S. at 248. Second, even if such a dispute exists, summary judgment will be granted if the dispute is not genuine. In this regard, the trial judge must not "weigh the evidence and determine the truth of the matter" but rather should perform "the threshold inquiry of determining whether there is a need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 249-50. Finally, the Court pointed out that "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.
Other standards also govern the consideration of this case. In reviewing final action by an administrative agency under the Administrative Procedure Act, this Court may only overturn those findings and conclusions which are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law 5 U.S.C. § 706(2)(A). The Supreme Court has cautioned that, under arbitrary and capricious review, "a court is not to substitute its judgment for that of the agency." Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983). At the same time, however, the reviewing court must be satisfied that "the agency's decisionmaking was 'reasoned,'"
and that it "considered the relevant factors and explained the facts and policy concerns on which it relied, and whether those facts have some basis in the record." National Treasury Employees Union v. Horner, 272 U.S. App. D.C. 81, 854 F.2d 490, 498 (D.C. Cir. 1988).
Moreover, in M. Steinthal & Co. v. Seamans, 147 U.S. App. D.C. 221, 455 F.2d 1289 (D.C. Cir. 1971), Judge Leventhal observed that, because of "the application of technical, and often esoteric, regulations to the complicated circumstances of individual procurements," the reviewing court "is obligated to restrict its inquiry to a determination of whether the procurement agency's decision had reasonable basis." 455 F.2d at 1301. Accordingly, review of procurement decisions "is, and should be, extremely limited in scope," Baird Corporation v. United States, 1 Cl. Ct. 662, 664 (1983), and the burden of demonstrating an unreasonable decision lies with the disappointed bidder. Id. If a reasonable basis exists the court must sustain the agency's action, "even though [the court] might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations." Steinthal, 455 F.2d at 1301.
With these standards in mind, we consider the decisions under review.
A. The Air Force Decision
The criteria governing responsibility determinations are set forth at 48 C.F.R. § 9.104-1.
It provides in pertinent part:
To be determined responsible, a prospective contractor must