Smith & Wesson, Div. of Bangor Punta Corp. v. U.S., 85-1697

• Decision Date: 04 March 1986
• Docket Number: No. 85-1697,85-1697
• Citation: 782 F.2d 1074
• Parties: 33 Cont.Cas.Fed. (CCH) 74,233, 19 Fed. R. Evid. Serv. 1500 SMITH & WESSON, DIVISION OF BANGOR PUNTA CORPORATION, Appellant, v. UNITED STATES of America, and John O. Marsh, Jr., Secretary of the Army, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1074

782 F.2d 1074

33 Cont.Cas.Fed. (CCH) 74,233, 19 Fed. R.

Evid. Serv. 1500

SMITH & WESSON, DIVISION OF BANGOR PUNTA CORPORATION, Appellant, v. UNITED STATES of America, and John O. Marsh, Jr., Secretary

of the Army, Appellees.

No. 85-1697.

United States Court of Appeals, First Circuit.

Argued Dec. 5, 1985.

Decided Feb. 4, 1986.

Rehearing and Rehearing En Banc Denied March 4, 1986.

Charles E. Raley, Washington, D.C., with whom James S. Phillips and Israel and Raley, Chartered, Washington, D.C., were on brief for appellant.

C. Brian McDonald, Asst. U.S. Atty., Springfield, Mass., with whom William F Weld, U.S. Atty., Boston, Mass., were on brief, Richard W. Oehler, Dept. of Justice, Civil Div., Commercial Litigation Branch, Washington, D.C., for appellees.

Before CAMPBELL, Chief Judge, and BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

After being eliminated as a candidate for a contract to supply the military with .9mm pistols, Smith & Wesson (S & W) brought an action in the district court seeking to reverse the Army's decision that the pistols manufactured by it failed two of the Army's test requirements. The district court found against S & W and refused to enjoin the Army from further proceeding with its pistol procurement program until S & W was reinstated as a contract candidate. S & W appeals that decision. ¹

Appellant mounts two lines of attack on the decision below: that the district court erred legally and factually in upholding the Army's decision; and that the district court denied S & W a fair trial.

At the outset, we note that both parties seem to assume that this is an appeal from the denial of a preliminary injunction. At least the cases they cite for the relevant standard of review are cases involving appeals from the grant or denial of preliminary injunctions. The record shows that at the start of trial the court stated: "This is a request for injunction consolidated with the trial on the merits, 65(a)(2) of the Federal Rules of Criminal [Civil] Procedure." No objection was taken to this ruling. We, therefore, treat this as an appeal from a full-fledged trial on the merits.

I. THE ARMY TEST PROCEDURE

A. Background

Several years ago the military decided to replace its .38 and .45 caliber handguns with a .9mm automatic pistol. There were two reasons for the changeover, better effectiveness and reliability and because such a weapon would use ammunition compatible with that used by NATO. The Army was given the responsibility for selecting a suitable .9mm weapon for all branches of the military. It decided that, instead of following its usual weapon procurement practice of developing its own design and putting out bid specifications, it would buy a commercially available .9mm pistol and adapt it for military use. The Congress allocated $1.9 million to fund the Army's selection process.

In November 1983, the Army issued a Request For Test Samples (RFTS) to various manufacturers of handguns, including Beretta, who was ultimately awarded the contract, and S & W. The RFTS included a cover letter, a description of the weapon characteristics required, test package requirements and a brief test summary. The RFTS cover letter made it clear that, although the Army did not then have the funds for actual weapon procurement, failure of a company's weapon to pass the testing program would eliminate that company from contract solicitation when procurement funds became available:

Manufacturers whose test samples meet or exceed the PDW characteristics described in enclosure 1 will be afforded an opportunity to compete for any future production contract, when, and if, such procurement is authorized and funded by Congress. Results from RFTS testing will be the most important of all evaluation factors under any subsequent procurement action source selection process. It is possible that the procurement action will be issued prior to completion of testing. In that event, the solicitation will be limited to those offerors whose weapons have not been eliminated from testing. If an offerors' [sic] weapon is subsequently eliminated from consideration, the offeror will be informed as soon as possible and no proposal from the offeror in response to the competitive solicitation will be considered.

In September of 1983, the Army had circulated a draft of the proposed RFTS within the industry for comment. A technical conference was held with those interested in October 1983, at which S & W was present. No one at the conference objected to the RFTS procedure or the weapon characteristics to be tested. Some questions were asked about particular test methods and evaluations. The attendees were informed that they would not be allowed to observe the testing program. S & W did not object to any of the proposed RFTS procedures or requirements.

Because S & W's brief is laced with allegations that the Army used "covert" test procedures and altered the test results from "pass to fail," it is necessary to explain the Army's test evaluation process. The tests were performed at three sites: Fort Benning, Georgia; Fort Dix, New Jersey; and Aberdeen Proving Ground, Maryland. The raw test data was given to the test coordinator who compiled it and turned it over to the Test Evaluation Board. The Evaluation Board was composed of civilians and representatives from each branch of the armed services, all of whom were technical experts on small arms. It reviewed the data supplied, evaluated it, and reported its results to the Test Advisory Board. The Advisory Board consisted of senior officers representing all branches of the services. The function of the Test Advisory Board was to review the report of the Test Evaluation Board to ensure that its evaluation comported with the procedures outlined in the RFTS. If the Advisory Board felt that a candidate should be terminated because of a failure to meet the test requirements, it so recommended to the Source Selection Authority, a single individual who alone had the authority to terminate a candidate, and furnished him with the pertinent test data. ²

In May of 1984, procurement funds were authorized and a Request for Proposals (RFP) was issued to all RFTS candidates who, at that time, had not been eliminated. S & W was still a candidate when the RFP was issued. It was eliminated as a candidate on September 18, 1984, before it submitted its proposal in response to the RFP. Its proposal, which was subsequently submitted, was not considered.

B. Testing and Evaluation

The RFTS described three categories of characteristics that a candidate's weapon would be required to meet in order for the candidate to be eligible for a procurement contract. ³ Categories one and two were absolutely mandatory; failure to meet them would result in elimination from the procurement process. The Army might allow a manufacturer to correct a category three deficiency. We are concerned here with two characteristics, both within mandatory category two, and the tests used to determine them: firing pin energy, which required that a minimum of twenty-four-inch ounces of energy be delivered to the cartridge primer; and a service-life requirement of at least 5,000 rounds. The Army determined that S & W's weapons failed the firing-pin-energy test and the service-life test and eliminated S & W as a candidate for the .9mm pistol contract.

Before considering S & W's objections to the testing program, we set out the standard of review that controls. A disappointed bidder on a government contract must show that the decision by the government agency either had no rational basis or involved a clear and prejudicial violation of applicable statutes or regulations. Choctaw Manufacturing Co., Inc. v. United States, 761 F.2d 609, 616 (11th Cir.1985); Delta Data Systems Corp. v. Webster, 744 F.2d 197, 204 (D.C.Cir.1984); Princeton Combustion Research Laboratories, Inc v. McCarthy, 674 F.2d 1016, 1021-22 (3d Cir.1982); Kinnett Dairies, Inc. v. J.C. Farrow, 580 F.2d 1260, 1271 (5th Cir.1978); Kentron Hawaii, Limited v. Warner, 480 F.2d 1166, 1169 (D.C.Cir.1973).

S & W attacks the firing-pin-energy test on the grounds that it was performed in a sequence contrary to the test summary sequence outlined in the RFTS and that the test itself was inaccurate. We think S & W misinterprets the scope of the RFTS. The RFTS was not intended to limit or restrict the Army's testing program. It stated what weapon characteristics would be required. The RFTS test summary outlined the test program generally. The Army deliberately did not detail the procedures or methods that would be used. Its RFTS cover letter stated, inter alia: "Weapons will be tested and evaluated to determine their conformance to these characteristics." Nothing in the RFTS suggests that the Army agreed to use certain tests or follow a prescribed sequence in performing them. If the Army had changed its RFTS announced pistol characteristics, a disqualified candidate might cry "foul," but this was not done. The RFTS was advisory only. S & W's attempt to transform it into a regulation binding the Army to follow it in lockstep distorts its purpose, negates its meaning, and ignores its language.

We now turn to the test used to determine firing pin energy which S & W attacks as inaccurrate and fallacious. The district court has explained at length the details of this test so we only outline the procedures followed. There were two procedures used; both involved measuring the indentation (indent) the firing pin made when it struck a copper cylinder fixed in a holder so as to simulate a cartridge ready for firing. In the first procedure a series of indents were made in the copper cylinders by pulling the trigger of the pistol. Five indents were made in the single action mode and five by double action firing. Both sets of indents were measured and recorded. In the second procedure, the indents were made by dropping a set weight a predetermined distance on a firing...