Given this record, the Court cannot conclude that Lockheed is likely to succeed on the merits of its contract claim.
2. The Promissory Estoppel Theory
Lockheed also fails to establish that it is likely to succeed on its promissory estoppel theory. To succeed on its claim for promissory estoppel, Lockheed must prove that (1) Hughes made a clear and unambiguous promise; (2) Lockheed relied on the promise; (3) Lockheed's reliance was reasonable; and (4) damages resulted from the reliance. See Laks v. Coast Federal Savings & Loan Ass'n, 60 Cal. App. 3d 885, 890, 131 Cal. Rptr. 836, 839 (1976). The record in this case indicates that Hughes made Lockheed aware of the need for further negotiations concerning the sensor. Under such circumstances, no promise is created. See id. at 891, 131 Cal. Rptr. at 839 (no promise created where offeree on notice that further negotiations are required to finalize terms); see also B.M.L. Corp. v. Greater Providence Deposit Corp., 495 A.2d 675, 677 (R.I. 1985) ("promissory estoppel cannot be based on preliminary negotiations and discussions"); Keil v. Glacier Park, Inc., 188 Mont. 455, 614 P.2d 502, 506 (Mont. 1980) (same).
B. Irreparable Harm
Lockheed contends that it will suffer irreparable harm if the requested temporary restraining order does not issue in that it will lose the benefit of its investment in the sensor, its reputation as a competent defense contractor will be damaged and it will have to lay off employees. Lockheed further contends that the damages resulting from the loss of the SBIRS contract are uncertain. Hughes disagrees, arguing that the urgency and the irreparable nature of the alleged harm are contrived.
Lockheed's arguments are unavailing. The investment Lockheed made in the sensor is ascertainable and compensable by monetary damages. Indeed, the Brashears declaration indicates that Lockheed's sensor-related costs total more than $ 30 million. Brashears Decl., P 49.
Furthermore, Lockheed offers no evidence to suggest that the damage to its reputation is irreparable or that it will have to reduce its workforce. Injunctive relief cannot rest on bald assertions such as these.
Finally, there is nothing in the record to suggest that Lockheed's potential damages are uncertain. The only support Lockheed cites for this argument is the Brashears declaration at paragraph 50. However, nowhere in paragraph 50 or anywhere else in his declaration does Brashears address the issue.
Therefore, the Court concludes that Lockheed has not established that it will suffer irreparable injury in the absence of a temporary restraining order.
C. Balance of Hardships
According to Lockheed, denial of the temporary restraining order could take the company out of the running for the contract, whereas granting injunctive relief will not affect Hughes' ability to submit its own SBIRS proposal. In response, Hughes argues that complying with the temporary restraining order will require it to disclose trade secrets and divert resources away from its own design. Hughes further argues that because the sensor for the SBIRS project has not been designed, the decree Lockheed seeks will require the Court to engage in the oversight of a complex multidisciplinary engineering project.
The balance of hardships does not tip sharply in Lockheed's favor. Although Lockheed risks losing the contract, Hughes' competitive position will be adversely affected by the decree Lockheed seeks. Furthermore, the relief Lockheed seeks would open a Pandora's Box of uncertainties: the price, timetable and how the proprietary rights will be allocated, to name a few.
D. Public Interest
Finally, Lockheed argues that a temporary restraining order will advance the public interest by maximizing the number of proposals from which the government may choose and by ensuring that the acquisition process is fair. Hughes maintains that the temporary restraining order will thwart the purpose of the consent order and increase the threat of monopoly.
Although the public interest may be considered in determining whether injunctive relief is appropriate, Miller v. California Pacific Medical Center, 991 F.2d 536, 540 (9th Cir. 1993), the Court concludes that a temporary restraining order will not advance the public interest. Lockheed is correct that it is in the public interest to maximize competition in federal government procurements. See Abel Converting, Inc. v. United States, 679 F. Supp. 1133, 1142 (D.D.C. 1988). However, Lockheed's proposed relief requires that Hughes be precluded from using its sensor in its SBIRS proposal. This could require Hughes to withdraw its proposal, reducing the number of bidders. The public interest also disfavors judicial meddling in the procurement process when the party requesting injunctive relief has not shown that the nonmoving party has misbehaved.
In light of the foregoing, Lockheed's request for a temporary restraining order is DENIED.
IT IS SO ORDERED.
United States District Judge
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