Newport News Shipbuilding & Dry Dock Co. v. General Dynamics Corp.

960 F.2d 386
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 16, 1992
DocketNos. 91-2211, 91-2212
StatusPublished
Cited by3 cases

This text of 960 F.2d 386 (Newport News Shipbuilding & Dry Dock Co. v. General Dynamics Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Newport News Shipbuilding & Dry Dock Co. v. General Dynamics Corp., 960 F.2d 386 (4th Cir. 1992).

Opinion

OPINION

NIEMEYER, Circuit Judge:

Two shipyards in the United States have the capability of building the Seawolf nuclear submarine for the U.S. Navy, one operated by the Electric Boat Division of General Dynamics Corporation in Groton, Connecticut, and the other by Newport News Shipbuilding and Dry Dock Company in Newport News, Virginia. This appeal involves the dispute between these shipyards over the award of the next Seawolf contract.

The Seawolf is the Navy’s most advanced submarine, replacing both the Los Angeles class attack submarine and the Trident bal[388]*388listic missile submarine. Because recent budgetary cutbacks in the Seawolf program permit the construction of only one ship per year, the award to one shipyard of the next Seawolf, the SSN-22, will inevitably threaten the viability of the other. The loss of jobs that will result from losing the bid will have a significant impact not only on the losing bidder, but also on the community in which the shipyard is located.1

It is basic that awarding Navy contracts for the construction of nuclear submarines must remain the responsibility of the executive branch in conformity with legislative funding authorizations and that the judiciary must scrupulously refrain from injudicious intermeddling. The judiciary is given the responsibility of determining only whether the Navy complied with the law in awarding the contract and whether its conduct in doing so was rational. We have reviewed the congressional authorization for the Seawolf and the Navy’s conduct in soliciting and awarding the contract to Electric Boat, and we are satisfied that the Navy complied with applicable statutes and that its decision-making process was directed by relevant and rational factors. We therefore defer to the Navy’s decision in awarding the contract to Electric Boat and reverse the decision of the district court, 771 F.Supp. 739 (E.D.Va.1991).

I

For the past twenty years, Newport News and Electric Boat have constructed nuclear-powered ships, including submarines, for the Navy, and they are the only two shipyards that have that capability. The complexity of the task, the initial expense, and the long lead time to develop a skilled work force virtually assured that no other would emerge. For the same reasons, once one shipyard is closed, the likelihood of its competing again for nuclear-powered ship construction in the absence of an emergency is almost nil.

In 1982 the Navy began development of the Seawolf class nuclear attack submarine. The Seawolf is designed to achieve unprecedented levels of technical performance and war-fighting capability. Armed with an advanced combat system, it will be extremely quiet, fast, and “survivable.” The Seawolf is the only type of nuclear submarine that the Navy currently plans to build, and both the Los Angeles class attack submarine and the Trident ballistic missile submarine programs will be phased out upon completion in the mid-1990’s of those presently under construction.

In its original plan, the Navy intended to construct 15 Seawolf class submarines through Fiscal Year (“FY”) 1995: the lead ship in FY 89, two ships each in FY 91 and FY 92, three ships each in FY 93 and FY 94, and four ships in FY 95. According to Rear Admiral Millard S. Firebaugh, the Seawolf program manager, the Navy planned to continue this course into the future, to “sustain a force structure” of 100 attack submarines. The Navy’s plan included an acquisition strategy which stressed the importance of maintaining the submarine construction capability of both Electric Boat and Newport News, and emphasized the merit of fostering competition between them. The strategy recognized that the continued participation of both shipbuilders in the Navy’s nuclear submarine program was essential to maintain critical skills and capabilities to meet any “surge requirements” in the event of national emergency. The preservation of an industrial base that assures two sources of supply which can be mobilized to meet [389]*389emergency needs is known as the “industrial mobilization” factor.

Following the collapse of the Berlin Wall, the end of the Cold War, and subsequent defense budgetary reductions, the number of Seawolf submarines authorized was accordingly decreased. The Navy’s subsequent attempt to accommodate reductions and still maintain the viability of two shipyards to provide the base for industrial mobilization produced the tension that is at the heart of this litigation.

For the prototype submarine in the Sea-wolf program, the SSN-21, the Navy solicited competitive bids, and in 1989 made the award to Electric Boat on its low bid of $726 million. The Navy recognized that the award would give Electric Boat a significant advantage over Newport News in future competitive Seawolf procurements due to the enormous start-up costs associated with Seawolf construction. Therefore, in order to preserve the industrial base of two shipyards for future mobilization, the Navy authorized a sole-source award for the second ship, the SSN-22, to Newport News on a negotiated basis. The Navy and Newport News, however, were unable to arrive at an acceptable price before the negotiations were preempted by the enactment of the Department of Defense Appropriations Act of 1991, Pub.L. No. 101-511, 104 Stat. 1856 (1990), which mandated competition in the SSN-22 award. The Appropriations Act explicitly required that awards be the product of competition between the shipyards. At the same time the act mandated that the Navy “consider all applicable factors” and the legislative reports make clear an intent to encourage continued attempts to satisfy the policy of preserving the industrial base.

During the period when the Appropriations Act was being considered, in August 1990, the Secretary of Defense completed his Major Warship Review. This review, which was part of a broad-based analysis of future defense requirements, resulted in the reduction of the Seawolf program to one ship in FY 91, two ships in FY 92, and so on at the rate of three ships every two years. According to Assistant Secretary of the Navy Gerald Cann, this change “reduced the procurement quantities to what appeared to be the minimum necessary to effectuate the original competitive acquisition strategy and maintain both shipyards in [Seawolf] construction through the life of the program.”

On November 9, 1990, Rear Admiral Firebaugh proposed a specific acquisition strategy for the second Seawolf submarine, the SSN22, which was approved by the Department of Defense. In his recommendation memorandum, he identified three alternative approaches to the procurement: (1) provide a sole-source award to Newport News in order to establish a second source; (2) conduct a “[sjtraight competition between the yards[;]” or (3) allow for “[c]om-petitive acquisition with the Navy reserving the right to allocate, if necessary, to maintain the mobilization base.” Because the 1991 Appropriations Act required the Navy to “compete” the award, he rejected the first approach of negotiating solely with Newport News.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
960 F.2d 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newport-news-shipbuilding-dry-dock-co-v-general-dynamics-corp-ca4-1992.