competition as recently as April 25, 1996, when concerns about Hill's financial stability surfaced. Eventually, after an initial review and the receipt of additional financial information about Hill and other applicants, Amtrak advised Hill on July 11, 1996 that its application package would no longer be considered because the evaluations of the top candidates had been recalculated.
Following the initial preliminary injunction hearing on August 28, 1996, Hill and Amtrak informed the court that they had negotiated an understanding, later memorialized in a letter dated September 4, 1996, under which Amtrak would give further consideration to Hill's financial stability so that Hill would present written information at a special meeting, following which Amtrak would issue a new response. On September 6, 1996, therefore, this Court entered an Order dismissing plaintiff's preliminary injunction motion without prejudice to renewal. This meeting was held on September 27, 1996, and Hill presented further information to clarify and explain its financial situation. On October 10, 1996, Amtrak issued a letter explaining that it was still unimpressed with Hill's financial stability and citing reasons why it would not enter into negotiations with Hill to become the Construction Manager.
Hill then renewed its motion for a preliminary injunction. Additional briefs were submitted and the second hearing was convened on November 8, 1996, when the court heard further oral argument and received additional exhibits upon these motions, including defendants' summary judgment motions. The record is now complete.
This opinion, then, constitutes the court's findings of fact and conclusions of law pursuant to Rule 52(a), Fed. R. Civ. P., as required by Rule 65, with respect to plaintiff's preliminary injunction motion, as well as addressing defendants' dismissal motions.
I. Procedural History
Plaintiff Hill International filed its Verified Complaint on August 7, 1996. The Complaint alleges jurisdiction under 28 U.S.C. §§ 1331 and 1349. Venue is proper under 28 U.S.C. § 1391(a) and 1931(b). The complaint alleges that defendants have violated federal procurement law, citing various parts of the D.C. Municipal Code, by failing to evaluate Hill's bid in accordance with the criteria established for the process. Hill alleges it has a "protected right and interest in the award of the Contract" (Compl. P 51) and that its right has been infringed by defendants' failure to perform a proper evaluation, especially concerning Hill's financial condition.
Upon plaintiff's motion for emergency relief, a temporary restraining order was denied by the Honorable Mary Little Parell, U.S.D.J., on August 8, 1996. Judge Parell's Order set the matter down for hearing before the Honorable Joseph Irenas, U.S.D.J., on August 15th. It was necessary for Judge Irenas to recuse himself from hearing the case, and the matter was reassigned to me on August 15th. I convened a telephone conference on August 16th, addressing expedited discovery issues and setting a schedule for supplemental briefing, preparatory to the new P.I. hearing date of August 28th. Significant discovery was provided to plaintiff by Amtrak pursuant to the parties' consent confidentiality order, which this court memorialized in the protective order signed August 27, 1996, and filed August 28, 1996. The Protective Order memorialized this court's directives from the August 16th telephone conference and provided that Amtrak shall produce all documents relating to the selection and scoring criteria adopted from the receipt of proposals, the internal grading of the bidders and all documents relating to the re-scoring of plaintiff's financial stability and the criteria for that re-scoring.
The preliminary injunction hearing went forward on August 28th. The court heard arguments of counsel, augmented by the factual record developed for this hearing, including detailed documents about the Construction Manager procurement process, consuming about four hours.
II. Standards for Preliminary Injunctive Relief and for Summary Judgment
As the party seeking preliminary injunctive relief, plaintiff Hill International must meet a demanding burden. A preliminary injunction will be granted only where a party is able to demonstrate to the court's satisfaction that (1) it has a substantial likelihood of success on the merits; (2) it will suffer irreparable injury if an injunction does not issue; (3) the interests of third parties will not be harmed; and (4) the public interest would be served and not harmed if the injunction were granted. Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797 (3d Cir. 1989) (quoting In Re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982). See also Randolph-Sheppard Vendors v. Weinberger, 254 U.S. App. D.C. 45, 795 F.2d 90, 110 (D.C. Cir. 1986); Washington Metro Area Transit Comm. v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841 (D.C. Cir. 1977); Virginia Petroleum Jobbers Ass'n v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (D.C. Cir. 1958). This Circuit has held that the first and second elements must be demonstrated by a moving party in every case in order to permit the grant of a preliminary injunction. "To obtain a preliminary injunction, the moving party must demonstrate both [emphasis in the original] a likelihood of success on the merits and the probability of irreparable harm if relief is not granted." Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 197 (3d Cir. 1990) (quoting Morton v. Beyer, 822 F.2d 364, 367 (3d Cir. 1987)).
The demonstration of probability of success on the merits in the Third Circuit does not require plaintiff to show a certainty of prevailing, but rather it requires the court to find a "reasonable probability of eventual success in the litigation," Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982) (en banc). The Third Circuit's definition of "reasonable probability of success" was concisely stated in Oburn v. Shapp, 521 F.2d 142, 148 (3d Cir. 1975):
"[it] is not necessary that the moving party's right to a final decision after trial be wholly without doubt; rather, the burden is on the party seeking relief to make a prima facie case showing a reasonable probability that it will prevail on the merits."