through preliminary stages, such as laboratory operation of the process and probably small scale pilot plant operation, sufficiently for it to invite proposals by interested contractors to manufacture the machinery, equipment, buildings and other plant facilities according to specifications.
There is also a strong inference that since there has not been extensive (or perhaps any) experience in the function of manufacturing this special purpose machinery, DOE is contracting with three separate prime suppliers, each of whom is to produce some number of the same kind of units, more or less on the same time scale, independently of each other.
The units so manufactured will then be installed in a small production plant and operated. From this stage, DOE evidently expects to obtain information as to the manufacturing capabilities, quality and other characteristics of the three prime suppliers, including their comparative costs. This latter item evidently will be derived from the fact that the contracts for the first stage are on the basis of cost plus a fixed fee (i. e., the fee will not vary with the cost as finally experienced).
After the first small production plant has been built, with units made by all three of the prime suppliers, DOE will then take up the question of letting contracts for the manufacture of the larger number of units for the full production plant. At that time, and with the information and experience derived from the first stage production plant, DOE will decide whether to order the remaining units from only one of the three prime contractors or from more than one, or from all. That decision will involve complex considerations. Will it be better to have multiple sources of supply, or will any advantage so gained be outweighed by looking to a single source of supply whose performance was clearly superior and of lower cost? If multiple sources are to be used, will DOE be assured that parts and components made by one will be interchangeable with those made by others for long-term maintenance and repair purposes?
The question to be decided by DOE at that time will be not unlike that which would be faced if the program were to design and have built a motor vehicle of standard, uniform design and specifications, with initial contracts awarded to GM, Ford and Chrysler to each make a small production run, after which the cars produced by each would be put into actual use for evaluating their performance, reliability, efficiency, and so on, after which a full order would be placed with one, two or all three of the manufacturers.
All of the foregoing is background context for a clear understanding of the claims made here by Electro-Nucleonics (ENI), and evaluation of the record for deciding ENI's application for preliminary injunctive relief.
When DOE first published its request for proposals (RFP), a number of potential bidders obtained the documents to consider whether to make a submission. ENI was one of these, and initially gave thought to making a submission for possible selection as one of the three prime suppliers contemplated for the first stage. For whatever reason, it decided instead to solicit a number of other companies known or believed to be interested in making a proposal as a prime supplier, with the object of becoming a sub-contractor for some part of the entire work. It made its interest known to at least 3 of these. Of the 3, Goodyear evidently was the only one that indicated interest in entering into a "teaming agreement" whose ultimate object it was to designate ENI as a subcontractor for some segment of the work. As worked out between the parties, this was defined as the production of what will be called an upper subassembly of centrifuge units. Goodyear's proposal to DOE was thus to comprise the sum of its own production and that of ENI.
ENI submitted to Goodyear a number of proposals in respect to its proposed subcontract. In each one of the series, the aggregate estimate of ENI for its subcontract, composed of estimated cost plus fixed fee, was reduced. In the last one submitted, the lowest figure was shown. In discussions between the parties, ENI indicated that it might be able to reduce the figure by $ X during final negotiations. Goodyear so informed DOE, along with its own view that the subcontract amount probably could be negotiated for a reduction of $ 4X. The $ X reduction was about 1% of the subcontract figure, while the $ 4X reduction was about 4%.
The record does not disclose what information DOE had for its evaluation. It may have its own engineers and cost estimators. It may have had comparable cost estimates from the other two proposed prime suppliers (whose data is evidently not disclosed outside DOE). In any event, whatever the information was, DOE took the position that the figures on ENI's subcontract were too high, and asked Goodyear to prepare an estimate of cost to compare the figures for subcontracting the upper subassemblies to ENI against the figures for Goodyear performing the same work itself (in-house). That comparison reflected a potential saving for the upper subassemblies of the order of some 40%. DOE then indicated that it could not approve ENI as a subcontractor. Goodyear then so informed ENI, and ENI proposed to Goodyear that it would accept a subcontract at the estimated in-house Goodyear cost, and also waive the fixed fee. This proposed solution was not formally relayed to DOE by Goodyear, although DOE has been made fully aware of the circumstances through delivery to it of all the papers then on file here as of the time the order to show cause was issued, at the court's suggestion that DOE might wish to consider an application to intervene, or at least appear as amicus curiae.
As matters stand, DOE has entered into a contract with Goodyear as one of the 3 prime suppliers, which contemplates that Goodyear will itself manufacture the upper subassemblies, and DOE has not approved ENI as a subcontractor, a specified precondition in the main contract before Goodyear may enter into a subcontract.
Orders for materials, supplies and the like, plant preparation, hiring of engineers and labor, and so on, are already under way at Goodyear.
In this suit, which is in 3 counts, ENI seeks a variety of forms of relief. On the first count, ENI seeks (aside from temporary restraints, which were denied):
1. preliminary injunction restraining Goodyear from negotiating or communicating with DOE in respect to ENI unless and until Goodyear employs ENI as its prime (sic) subcontractor for the first stage;
2. permanently restraining Goodyear from