regulations. Diverco further argues that Metalcastello has always intended to use production facilities in Italy and to manufacture the required forgings in Italy in spite of the clear requirement of federal law and Clause I81 that only domestic forgings be supplied. By contrast, defendant maintains that it did not illegally award the contract to Metalcastello because in accepting Metalcastello's proposal, it did not accept a proposal which failed to conform with all of the material requirements of the Solicitation. In defendant's view, Metalcastello's offer did not indicate on its face that the gearshaft spurs themselves would actually be forged outside the United States. Defendant further asserts that since Metalcastello did not take exception to the solicitation, there was no reason to believe that its offer was for anything but the use of domestic forgings.
The Court, however, hesitates to address the merits of Diverco's claim insofar that it requires a determination of whether DLA illegally awarded the contract since a protest has been filed with the GAO by Diverco and that is a matter properly submitted to the GAO for its consideration. Consequently, the Court will limit its discussion of this issue to an observation that the record reveals that the protest filed by Diverco is not frivolous. See United Power v. United States of America, 736 F. Supp. 354, 358 (D.D.C. 1990). In this regard, the parties agree that the Solicitation and applicable regulations mandated that an award be made only to a source that was supplying domestic forgings. It is also undisputed that, under this present Solicitation, Metalcastello is not entitled to the contract because Metalcastello has confirmed that it does not intend to comply with the domestic forgings requirement. In fact, DSCS has issued a work stop order on the contract with Metalcastello and proposes to resolicit the contract without the domestic forgings requirement. Such action confirms Diverco's assertions that the contract with Metalcastello ought to be terminated and corrective action taken. Taking into account the foregoing considerations, the Court is satisfied that Diverco's claim is not frivolous.
Second, Diverco will not suffer irreparable harm if injunctive relief is denied. The Court reaches this conclusion for several reasons. Diverco contends that because of defendant's actions it has been deprived of the "opportunities of the marketplace." Exactly what these marketplace opportunities are and how it amounts to irreparable injury is not adequately explained, however. Clearly Diverco may submit offers on future solicitations, including the proposed resolicitation of this contract, even if injunctive relief is denied. To the extent that Diverco complains that it has been denied "full and open competition", the proposed amended solicitation seeks to redress that injury.
More importantly, even if DSCS goes forward with its proposed amended resolicitation, the Court is not convinced that injunctive relief is required to prevent defendant from unlawfully awarding the contract to Metalcastello or some other contractor. If the contract is not awarded to Diverco after resolicitation, Diverco has the right to file a bid protest with GAO to obtain an automatic stay of the resolicited contract pending GAO's decision. Thus, without the intervention of this Court, Diverco may fully challenge the award of the contract -- both under the present Solicitation and under the proposed amended solicitation -- before the GAO prior to any further performance of the contract. Accordingly, Diverco has failed to demonstrate that it will suffer irreparable harm if injunctive relief is denied.
Third, with respect to the question whether the defendant will suffer substantial injury in the event the Court grants injunctive relief, the Court concludes that it will. Defendant has persuaded the Court that the need for gearshaft spurs is urgent, and may become critical if injunctive relief is ordered. Moreover, an extended delay in performance of the contract by an injunction pending GAO review is possible since GAO review may take up to 90 days. Although it is expected that the GAO would make efforts to comply with any request of them by the Court to handle Diverco's protest on an expedited basis, it is difficult to estimate how long such review -- and, consequently, the duration of the injunction -- would take since Diverco only filed its protest on August 1, 1990.
Fourth, the public interest favors denial of the requested injunctive relief since, as noted above, Diverco will be able to pursue any future protest of the proposed amended contract prior to performance of the contract. Thus, the public interest that the GAO, the agency having responsibility for addressing these types of disputes, be afforded a full opportunity to address and take any necessary remedial action will be adequately served.
After weighing all of the above factors, the Court concludes that injunctive relief should be denied. Although Diverco has made a sufficient showing that its claim is not lacking in merit, it has failed to demonstrate that it will suffer irreparable harm if the requested injunctive relief is not granted. Further, the Court concludes that the potential harm to the defendant and the public interest favor denial of the instant motion.
In view of the foregoing, it is hereby
ORDERED that plaintiff's motion for a preliminary injunction is denied.