contract have been fully explored by way of depositions, affidavits and numerous exhibits. There is not a scintilla of evidence to show that this process was conducted in a manner at variance from the statutory or regulatory requirements or for improper motives. No rational jury could conclude that ESC's procurement efforts constituted sham compliance with the statutes and regulations. Therefore summary judgment will be granted in favor of the government and IBM and against National Gateway on the latter's claim that the procurement was an illegal effort to procure equipment from one vendor - IBM.
3. Other Matters:
National Gateway moved for leave to amend Count Three of its complaint to allege that ESC violated the Competition in Contracting Act by awarding the contract on less than full and open competition. The motion will be deemed to have been granted.
Count Three is the same as the first ground for relief which National Gateway articulated at the preliminary injunction hearing. Summary judgment against National Gateway has been granted on that claim.
National Gateway moved for summary judgment on the first count and on the amended third count of its complaint. Having granted summary judgment against National Gateway on its amended third count, its motion for summary judgment in its favor on that count will be denied.
Count One of the complaint alleges in general terms a violation of the full and open competition requirements of the Competition in Contracting Act and applicable regulations. To the extent this count adds anything to the more particular allegations of Count Three I have rejected it as a matter of law and National Gateway's motion for summary judgment on it will be denied.
National Gateway appealed from the November 15, 1988 order of the United States Magistrate denying its application to take the deposition of William Breedlove, the IBM salesman who in mid-August, 1988, advised ESC's Colonel Lilly about the existence of the DIA contract. National Gateway took Colonel Lilly's deposition and also the deposition of Ms. Smith, the ESC contracting officer, and Paul Kittle, Assistant Deputy Director for Procurement of the Defense Intelligence Agency who worked with the Virginia Contracting Activity. In addition, the government provided a large number of documents.
The United States Magistrate denied National Gateway's motion to take Breedlove's deposition but permitted it to serve a limited set of interrogatories directed to Breedlove's role, if any, in the cancellation of the June, 1988 ESC RFP.
In response to interrogatories IBM described, in some detail, the two conversations which Breedlove had with ESC personnel concerning cancellation of the RFP, both of which took place after the cancellation had been effected.
United States Magistrates have broad discretion when deciding discovery motions. Their determinations may be overturned only if there is an abuse of discretion or legal error. There was neither in this case and, consequently, the order subject to the appeal will be affirmed.
Finally, National Gateway moved for (i), an order compelling discovery concerning the canceled June, 1988 RFP, in particular, (a) the type of equipment upon which bids of entities other than plaintiff were based, and (b), the entity that was determined to be the lowest bidder and the amount of that entity's bid, and (ii), an order compelling discovery of information about the RFP issued by the Virginia Contracting Activity, in particular, (a), the procedure utilized in issuing the request for proposals, (b), the receipt of bids and (c), the award of said contract.
I have concluded that the undisputed facts establish as a matter of law that the June, 1988 ESC RFP was validly canceled. The information which National Gateway seeks about the bids and prices quoted under the canceled RFP is confidential and, further, it is neither relevant nor likely to lead to relevant information.
I have also concluded that National Gateway did not have standing to attack the validity of the DIA contract which the Virginia Contracting Activity entered into. There is, therefore, no reason to permit National Gateway to undertake discovery concerning its origins.
National Gateway's motion for additional discovery will be denied.
D. Conclusion :
For the reasons set forth above, (i), National Gateway's motion for preliminary injunction will be denied, (ii), the government's and IBM's motions for summary judgment dismissing the complaint will be granted, and (iii), National Gateway's motion for summary judgment on Counts One and Three of its complaint will be denied, (iv), the other motions of National Gateway's appeal will be disposed of as provided above.
Counsel for the government is requested to prepare an appropriate form of order.
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