UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LEWIS MACHINE & TOOL COMPANY,
Plaintiff-Appellant,

v.

U.S. DEPARTMENT OF DEFENSE;
WILLIAM PERRY, SECRETARY OF
DEFENSE,                                                            No. 97-1035
Defendants-Appellees,

and

UNITED DEFENSE LIMITED
PARTNERSHIP,
Intervenor-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-96-1275-A)

Argued: July 10, 1997

Decided: October 6, 1997

Before NIEMEYER, MICHAEL, and MOTZ,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Alan Mark Grayson, ALAN M. GRAYSON & ASSO-
CIATES, McLean, Virginia, for Appellant. Stuart Wilson Risch,
UNITED STATES ARMY LITIGATION DIVISION, Arlington, Vir-
ginia, for Appellees. ON BRIEF: Michael A. Lewis, ALAN M.
GRAYSON & ASSOCIATES, McLean, Virginia, for Appellant.
Helen F. Fahey, United States Attorney, James E. Macklin, Special
Assistant United States Attorney, Alexandria, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Lewis Machine & Tool Company filed this action against the
Department of the Army, contending that Lewis Machine had been
wrongfully eliminated from the competition to supply the Army with
a new, lightweight 155mm howitzer. The district court denied Lewis
Machine's motion for injunctive relief and entered summary judg-
ment for the Army.

After the Army surveyed its arsenals for their interest in producing
new howitzers and found none, it decided to buy the howitzers from
the private sector, as authorized by the Arsenal Statute, 10 U.S.C.
§ 4532. In its request for proposal addressed to the private sector, the
Army stated that it would make multiple competitive shoot-off
awards and that the winner of the shoot-off competition would receive
an engineering and manufacturing development contract.

Rock Island Arsenal, an Army arsenal that had developed a howit-
zer but was not interested in producing it for the Army, contacted
Lewis Machine, offering the howitzer to Lewis Machine for the
shoot-off competition. Because the Army had closed the competition
to Department of Defense activities, Rock Island Arsenal persuaded
the Army to amend the request for proposal to provide for "competi-
tion between Department of Defense Activities and private firms for
subcontracting pursuant to 10 U.S.C. § 2208(j)." (Emphasis added).

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Section 2208(j) authorizes defense facilities to manufacture and sell
articles to persons outside of the Department if-- "(1) the person
purchasing the article . . . is fulfilling a Department of Defense con-
tract; and (2) the Department of Defense solicitation for such contract
is open to competition between Department of Defense activities and
private firms." Rock Island Arsenal then agreed with Lewis Machine
to provide a prototype howitzer which Rock Island Arsenal had devel-
oped with government funds. Although the agreement specified that
the United States would retain all rights to technical data, the agree-
ment gave Lewis Machine the right to sell to the United States any
design changes or technical improvements. Rock Island Arsenal did
not advertise the howitzer or offer it to the other private parties in the
shoot-off competition.

On April 25, 1996, Lewis Machine presented Rock Island Arse-
nal's prototype for the shoot-off competition. When, however, the
Army discovered that Lewis Machine's entry was entirely Rock
Island Arsenal's product, it rejected the entry because Rock Island
Arsenal's involvement was tantamount to direct competition for the
prime contract, violating the Army's rules for the competition. Lewis
Machine filed this action for equitable relief, and both parties filed
motions for summary judgment. From the district court's judgment
affirming the Army's decision, Lewis Machine noticed this appeal.

After carefully reviewing the record in this case and considering
the arguments of counsel, we have decided to affirm for the reasons
stated by the district court in its opinion granting summary judgment.
See Lewis Machine & Tool Co. v. United States Dep't of Defense,
Civil No. 96-1275-A (E.D. Va. Nov. 22, 1996).

AFFIRMED

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