Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW GUIN, District Judge. Petitioners contended in substance that a reorganization and a resulting reduction-in-force (RIF) among the Civil Service personnel at the Ballistic Missile Defense Systems Command (BMDSCOM) in Huntsville, Alabama violated Bureau of the Budget, now and hereinafter known as Office of Management and Budget (OMB) Circular No. A-76, Department of Defense (DOD) Directives 4100.33 and 4100.15, Army Regulation (AR) 235-5, Section XXII of the Armed Services Procurement Regulations (ASPR), and other provisions of civil service regulations. The violations allegedly occurred when BMDSCOM entered three private contracts with M & S Computing, Incorporated (M & S), Contract Number DASG60-74-C-0026, Science Applications, Incorporated (SAI), Contract Number DAHC60-72-C-0092 and Teledyne-Brown Engineering Company (Teledyne-Brown), Contract Number DAHC60-73-C-0012. The first two contracts are in support of the SAFEGUARD BMD System deployed in North Dakota. The Teledyne-Brown contract for systems engineering and technical analysis (hereinafter known as the SETAC) is in support of a BMD research and development program currently known as the Systems Technology Program (STP). Petitioners contend that these contracts provided jobs for contractor personnel which should have been potentially available to them in the face of the RIF through “bump” and “retreat” rights established by the United States Civil Service Commission regulations. On June 18, 1975 this court issued a preliminary injunction halting the U.S. Army from implementing the RIF at BMDSCOM. This court’s opinion in that matter was reported at 398 F.Supp. 176. After certifying this matter as a class action on December 30,1975, the court on January 30,1976, took under advisement the defendants’ motion for summary judgment. On 2-6 and 9-12 February 1976 the court conducted a trial on petitioners’ application for a permanent injunction and respondents’ opposition thereto. In light of the extensive factual presentation made by all the parties at that time the court, while being inclined to grant the defendants’ motion for summary judgment, bases its decision on the facts as presented. Therefore, the defendants’ motion for summary judgment is rendered moot. In light of the comprehensive evidence offered by defendants at trial, much of which had not been fully presented at the prior hearings, the court has reexamined its position on the issues raised by all parties and concludes that it must find for the defendants. For the reasons which follow the preliminary injunction is hereby dissolved, judgment is entered for the defendants and the cause is dismissed. FINDINGS OF FACT I. INTRODUCTION The individual named plaintiffs are Civil Service employees at BMDSCOM and will be affected by the proposed RIF. Plaintiff American Federation of Government Employees (AFGE) is the recognized bargaining agent for the Civil Service employees at BMDSCOM. The defendants in this case are the Secretary of the Army and the Commanding Officer of BMDSCOM, a subordinate command of the Ballistic Missile Defense Organization (BMDO). BMDSCOM scheduled a reorganization and consequent RIF to take effect there on May 23, 1975. Of the 296 permanent Federal civil servants to be affected approximately 67 employees were to be finally separated, approximately 7 were to retire under discontinued service retirement, approximately 20 others were to retire, approximately 93 were to be reassigned in their GS grade, approximately 56 were to be transferred, approximately 3 were to resign, and approximately 50 others were to be finally demoted. The reorganization and RIF flow from the Strategic Arms Limitation (SAL) Agreements, subsequent Congressional actions, and the judgment of the BMDO management that this reorganization reflects the reduced personnel needs of this nation’s BMD efforts. Through the good faith efforts of both parties the size of the class has been reduced from the initial total of 296 to a present total of 42, made up of 17 terminations, 23 downgrades, and 2 lateral reassignments. II. THESE BMD PROGRAMS ARE INTEGRALLY INVOLVED WITH U.S. FOREIGN POLICY AND DEFENSE OBJECTIVES BMD as a concept in and of itself involves highly complex and technical elements. The basic task of any BMD system is to detect, track, intercept and destroy incoming enemy ballistic missiles (TT 685-87). To accomplish this job it uses tracking radars and interceptor missiles. The Army and private industry started developing BMD system concepts and hardware in the mid-1950’s (TT 688, 694). These efforts ranged from initial and follow-on research and development work leading to the deployment of the SAFEGUARD System from 1970-75 as well as other research and development efforts such as those currently reflected in the STP. (Defendants’ Exhibit 5). The SAFEGUARD BMD System consists of two highly sophisticated radars and two types of interceptor missiles joined together by advanced data processing equipment which permits the system to track and intercept incoming ballistic missiles. The STP, formerly known as the Site Defense Prototype Demonstration Program, is a BMD research and development effort looking at the next generation of BMD systems concepts which resulted from the growing Soviet threat to our offensive ballistic missiles. The direction and scope of US BMD efforts has been and will continue to be closely interrelated to US foreign and defense policy objectives and the nature of our relationship with the Soviet Union (TT 687-93). This includes US perception of Soviet military capabilities and the extent of the threat they present to the US defense establishment (TT 700-04). The clearest example of the intertwining of BMD efforts and US foreign and defense policy perspectives can be seen in the talks culminating in the 1972 SAL Agreements which limited the US and USSR to two ABM sites (TT 690). Major General Marshall, the current BMD Program Manager, who has been associated with the various BMD programs for over 6 years, described these earlier BMD efforts as a “chip at the bargaining table” during these key negotiations (TT 690). BMD has continued to play a substantial role in subsequent international arms limitation strategies (TT 691-92). As indicated by Mr. Glen Sadler testifying on behalf of the plaintiffs concerning his membership on a committee to study the role of BMD after the SAL agreements: The committee’s job was, in light of SALT, in light of Detente, in light of the National interest in case SALT I was ever abbrogated [sic] and SALT II never came to pass or in light of the possibility that some other nation such as Communist China suddenly had the same kind of ballistic missile capability that existed at that time in Russia . ... [W]e felt our basic objective was to try to maintain in a continuous posture of readiness to deploy within minimum times and at lowest possible cost the best possible ballistic missile defense system which could be [deployed] within whatever timeframe we had. (HT 159). These types of policy considerations and implications are the mark of programs and efforts clearly intertwined with national defense and the elements of US foreign relations policies. Judicial interference with the implementation of these programs could hamper or limit the conduct of these policies and objectives. On July 3, 1974 the US and USSR entered into a Protocol to the 1972 Treaty further limiting the parties to one BMD site each. In the future it is intended that BMD continue to play a central role in national defense deterrent policy (TT 691-93). In view of the foreign and defense policy implications and importance of these efforts both the programs supported by these contracts have held the highest procurement priority rating granted by the President to major weapons systems (TT 690). This is the same priority held by the Trident, Polaris, B-l and other major weapons systems deemed by the President as integral to the national defense. Plaintiffs have protested most strongly the Army’s awarding of the SETAC contract to Teledyne-Brown Engineering, contending that this effort was more properly and effectively performed in-house by government civil servants. The decision to use the SETAC method of performance to support the then Site Defense Program and now STP was not one made in a cavalier manner by a small group of low level military officials. Consistent with BMD’s established importance and the recognition of a critical need for a successor to the SAFEGUARD System (TT 903-04, 710-11, 713-14) the decision to employ a SETAC was made only after careful consideration of several alternatives (TT 715-16). These alternatives were considered by the highest echelons of the Department of Defense, including the Deputy Secretary of Defense, Director of' Defense Research and Engineering, Secretary of the Army and other important defense officials. (Defendants’ Exhibit 12). In addition to the Executive the Congress has exercised close scrutiny over BMD activities. Congressional funding for BMD programs has fluctuated in line with defense and foreign policy decisions and internal priorities as viewed by the Congress (Defendants’ Exhibits 6 and 11). These financial changes have affected both Civil Service and private contractor personnel levels. (TT 706-9, Defendants’ Exhibits 7-9). The two BMD programs involved in this case, SAFEGUARD and STP, have both been directly affected by Congressional actions. The latter program represents a Congressionally directed reorientation of the previous Site Defense Program (TT 712-13). The Congress has decided to deactivate the SAFEGUARD System (TT 692-93). This is further evidence of the close involvement of these programs with national defense policy. Based on these facts it must be concluded that the BMD programs supported by the contract efforts contested by the plaintiffs are integrally intertwined with national defense and foreign policy objectives. Further, the issuance of a permanent injunction would substantially impair the Government’s ability to effectively and efficiently manage these critical programs (TT 722). III. PLAINTIFFS HAVE FAILED TO SHOW DEFENDANTS HAVE VIOLATED RIF REGULATIONS Plaintiffs did not contest defendants’ basic authority to conduct a RIF pursuant to a reorganization under the pertinent provisions of 5 CFR Part 351 (1976). Further, plaintiffs made no showing that BMDSCOM’s conduct of the proposed RIF was not fully in accord with that portion of the CFR. They did allege that defendants used AR 235-5 to justify departure from the RIF regulations in that the SETAC effort could be brought in-house. However the Civil Service regulations governing RIF’s nowhere require the command to examine how much work can be brought in-house before conducting a reorganization. Even if there were a requirement for such consideration, management is still not required by those provisions to bring the effort in-house. Thus plaintiffs’ contentions in this regard are unfounded. IV. PLAINTIFFS HAVE FAILED TO DEMONSTRATE THE CAPABILITY OF THE MEMBERS OF THEIR CLASS TO PERFORM THIS WORK Plaintiffs contend that their class members are capable of performing the work currently under these three contracts and doing so in a more economic fashion. The demonstration of this capability is of critical importance to establishing that the plaintiffs’ class members were in fact injured by the award of these contracts. Plaintiffs, however, have failed to demonstrate that capability. Plaintiffs presented witnesses at the preliminary injunction hearing who testified generally that they believed that the work called for under these contracts could be done in-house by civil servants. (HT 48, 61-2, 64-5, 135-38, 646-7, 674). However neither of those witnesses, Mr. Woods and Mr. Sadler, matched specific members of the class with any specific tasks being performed. They made no actual in-house versus contractor comparison to support their general conclusions. Further it must be noted that neither witness had any continuing professional responsibilities with respect to the SETAC, M & S or SAI efforts nor did they ever work in a capacity directly with any of the contractors (HT 80-82, 90-91, 119-122, 391). At trial plaintiffs presented further testimony regarding in-house ability to perform the SAI effort. However Mr. Fargason, one of their witnesses in that regard, admitted that there was no Government expertise to perform the contract work (TT 85-86, 95-96). Through Mr. Fargason and Mr. Head, plaintiffs also tried to demonstrate that some verification and validation capability, similar to that being performed by SAI, existed at the SAFEGUARD System Evaluation Agency (SAFSEA) at White Sands, New Mexico. (TT 72-78, 109-10, 140-147). However even if this were in fact true it fails to help further the contentions of the members of plaintiffs’ class. Plaintiffs made no specific showing that they were performing the same functions as the SAFSEA employees. Mr. Fargason specifically distinguished the responsibilities of BMDSCOM versus SAFSEA as being management of Bell Telephone Labs development and evaluation of the SAFEGUARD computer software (BMDSCOM) versus independent evaluation of the functioning of the overall SAFEGUARD System (SAFSEA) (TT'72-73, 76). Further he stated that his job remained the same even after the SAI contract was awarded (TT 82). Mr. Head, • himself a former BMDSCOM employee now working for SAI, admitted that in his current position he was managing the performance of SAI contracts, including the. one with BMDSCOM, rather than actually performing the work required (TT 115).' This was confirmed by defendants’ witness Mr. McClung (HT 523). Thus while some in-house capability may have existed at SAFSEA it does not follow that the same skills or expertise were available at BMDSCOM. Further, even if they were, plaintiffs have not shown that the members of their class were the individuals who possessed such capabilities. With respect to the M&S contract effort plaintiffs offered no evidence beyond the general allegations made at the preliminary injunction hearing that this work could be performed in-house. In the face of this evidence defendants’ witness, Mr. McClung, formerly BMDSCOM’s technical representative for both the M&S and SAI contracts since their initiation in 1972, specifically testified that there was no BMDSCOM in-house capability to do this work (HT 520-521). He contrasted the contractor and government capabilities as those of performers versus managers respectively (HT 521). • With respect to the SETAC effort none of plaintiffs’ witnesses testified unqualifiedly that the entire SETAC effort could be brought in-house (HT 48, 135). Mr. Sadler stated that in the analysis and system engineering area there was no comparison between the capabilities of in-house Civil Service personnel versus those of the Teledyne-Brown people performing the SETAC (HT 135). Even with respect to that portion which arguably could be brought in-house he stated it would take 90 days to one year to retrain Civil Service personnel (HT 135). For development of the entire SETAC capability in-house Mr. Sadler stated it would take 3 to 5 years. (HT 661). In the face of this evidence the defendants presented equally persuasive contrary testimony by both government and contractor witnesses who had both direct contact and overall responsibility for managing these contract efforts. Mr. Charles Fendley, who drafted the initial SETAC scope of work and is annually responsible for integrating the entire scope of work into the overall procurement package, testified that neither when the contract was first initiated nor at present could the SETAC effort be brought in-house (HT 377, 379-80, 436, 478-82). Major General Marshall, in describing the evolution of BMD efforts, also stated that when faced with the commencement of the then Site Defense Program the in-house capability to perform the SETAC was not available at BMDSCOM. (TT 749-51). Finally Mr. McCarter of TeledyneBrown, who oversees the SETAC effort and is intimately familiar with the qualifications of the Brown personnel involved in that effort, indicated that a majority of the effort could not be performed by civil servants. (TR 601-03). According to both Mr. Fendley and Mr. McCarter an in-house capability at BMDSCOM could be established only with substantial retraining. (HT 405-06, TT 612-14). The BMDSCOM personnel at present are capable of managing the SETAC effort but not of performing it. (HT 504, 505, 614-15). Plaintiffs’ failure to present any evidence that any of the plaintiffs’ class can perform any of the work performed by the contractors precludes any relief for them. The heart of plaintiffs’ case is that: 1) they can perform the work performed, inter alia, by these contractors (e. g. para. 25 complaint). 2) other civil servants (not plaintiffs) should have been hired to perform the SAI work. 3) if other- civil servants had been hired, members of plaintiffs’ class — since they were capable of performing the work— would have been able to compete with the civil servants who should have been hired to do the work performed by contract. The Supreme Court in United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976) held that a civil servant is not entitled to a position until he has been duly appointed to it. Thus, since plaintiffs’ claim, as in Testan, is that they should have been appointed through bump and retreat procedures, see 5 C.F.R. part 351, they admit lack of appointment. Thus, they are entitled to no relief. The threshold question must be “can members of plaintiffs’ class perform the work now performed by contract?” If they cannot, the court need go no further, for it would be answering an academic question. Unless members of plaintiffs’ class can perform the work, they have not been harmed, regardless of whether BMDSCOM has complied with the ASPR or AR 235-5. The simple fact is that plaintiffs have offered no testimony that any of their number can perform any of the functions now being performed under the contracts with M&S, SAI, or Teledyne-Brown Engineering. Although there is conflicting evidence about whether civil servants in general, rather than plaintiffs in particular, can perform the work now performed by the three companies, a finding that civil servants in general could do so in no way aids plaintiffs. The testimony throughout the hearings, as well as the documentary evidence introduced at both hearings reflects the highly technical nature of the work in question. This, coupled with the knowledge that engineers, scientists and technical people of the caliber required to perform this type work are not fungible demonstrates that such a general showing would not entitle plaintiffs to relief. The absence of any evidence to show that members of plaintiffs’ class could perform the work under any of the contracts defeats their claim to continued employment. V. PLAINTIFFS HAVE FAILED TO PROVE THAT ANY OF THESE CONTRACTS CONSTITUTE PERSONAL SERVICES Plaintiffs’ claim, inter alia, that contracts between BMDSCOM and M&S, SAI, and Teledyne-Brown constitute contracts for personal services in violation of the ASPR section XXII, 32 C.F.R. 22.000 et seq. Complaint, paragraphs 6, 10B. (iii) (M&S), 19 (Teledyne-Brown Engineering), 22, (SAI) and 25. ASPR 22-102.1(a) defines personal services contracting as the procurement by contract of services “in such a manner that the contractor or his employees are in effect employees of the Government.” (32 C.F.R. 22.102-l(a)). ASPR XXII imposes the duty of insuring adherence to it upon the Contracting Officer, id., and grants to the Contracting Officer wide latitude in exercising his judgment in assessing whether the contract is one for personal services. 22-102.2 (32 C.F.R. 22.102-2). The ASPR then goes on to identify the following 16 factors to be reviewed by the Contracting Officer in judging whether the contract is one for personal services: A. The nature of the work. 1. To what extent the Government can obtain civil servants to do the work, (only useful in doubtful cases) (22-102.2(a)(1)) 2. To what extent the services contracted for represent the discharge of a Governmental function which calls for the contractor to exercise personal judgment on the Government’s behalf. (If present to sufficient degree, may render the services personal). 22-102.2(i)(B) (32 C.F.R. 22.102-2(a)(2)). 3. To what extent the requirement is continuing (Only useful in doubtful cases) 22-102.2(i)(C) (32 C.F.R. 22.-102-2(a)(3)). B. Contractual Provisions concerning Contractor Employees (Government control and supervision of contractor employees if present to sufficient degree may render the services personal). '4. To what extent the Government specifies the qualifications of, or reserves the right to approve the hire of contractor employees, (permissible for Government to specify technical and experience qualifications to some extent in the contract). 22-102.2(ii)(A) (32 C.F.R. 22.102-2(b)(l)). 5. To what extent the Government reserves the right to assign specific tasks to and prepare work schedules for contractor employees during contract performance. 22.102-2(ii)(B) (32 C.F.R. 22.102-2(b)(2)). 6. To what extent the Government retains thé right to supervise the work of individual contractor employees. 22-102.2(ii)(C) (32 C.F.R. 22.102-2(b)(3)). 7. To what extent the Government reserves the right to supervise or control the method in which the contractor performs the service, the number of people he will employ, the duties of individual employees or similar day-to-day details of the contractor’s operation. 22 — 102.2(ii)(D) (32 C.F.R. 22.102-2(b)(4)). 8. To what extent the Government reviews the performance of each individual contractor employee as opposed to review of a final product. 22-102.2(ii)(E) (32 C.F.R. 22.102-2(b)(5)). 9. To what extent the Government retains the right to remove contractor employees from the job for other than security or misconduct reasons. 22-102.2(ii)(F) (32 C.F.R. 22.102-2(b)(6)). C. Other Contractual Provisions 10. Whether services can properly be defined as an end product. 22-102.-2(iii)(A) (32 C.F.R. 22.102-2(c)(l)). 11. Whether the contractor undertakes a specific task definable either at the inception or at some point during the contract, or whether the Government defines the work on a day-to-day basis. 22-102.2(iii)(B) (32 C.F.R. 22.102 — 2(c)(2)). 12. Whether payment is for results accomplished or for time worked, (useful only in doubtful cases). 22-102.-2(iii)(C) (32 C.F.R. 22.102-2(c)(3)). 13. To what extent the Government furnishes office space, facilities, equipment, and supplies necessary for contract performance (useful only in doubtful cases) 22-102.2(iii)(D) (32 C.F.R. 22.102-2(c)(4)). D. Contract Administration 14. To what extent contractor and Government employees are used interchangeably to perform the same function. 22-102.2(iv)(A) (32 C.F.R. 22.102(d)(1)). 15. To what extent the contractor employees are integrated into the Government’s organizational structure. 22-102.2(iv)(B) (32 C.F.R. 22-102.2(d)(2)). 16. To what extent factors B and C are present in the contract’s administration regardless of whether the contract’s terms provide for them. 22-102.2(iv)(C) (32 C.F.R. 22.102-2(d)(3)). As can be seen from these factors, the ASPR requires the Contracting Officer to make judgments based on the contract, its administration and his experience. In short ASPR XXII confers upon the Contracting Officer broad discretion in reaching his judgment on whether the contract is one for personal or nonpersonal services. The presence of this broad discretion will be treated more fully in the conclusions of law, infra, p. 1079. A. The M & S Contract The most significant testimony regarding the M & S contract was the unrebutted testimony that when the contract expired on June 30, 1976, it would not be renewed. (HT 519, 520; TT 175). Accordingly, plaintiffs’ allegations regarding that contract became moot on that date. Most damaging to plaintiffs’ case is their failure to adduce any evidence that any among their number are capable of performing the analytical tasks required to be performed under the M & S contract. Mr. D. R. McClung testified at the hearings on the preliminary injunction that the personnel at BMDSCOM failed to possess the technical capability to perform the analysis required by the M & S contract (HT 521). Plaintiffs offered no testimony to show that any of their number could perform the analytical tasks required of M & S personnel under the contract. Consequently, without such a showing they are entitled to no relief. Furthermore, the record affirmatively reflects that the contract between BMDSCOM and M & S Computing, Inc. can in no way be construed to be a contract for personal services. The sixteen criteria on which the contracting officer is to make his judgment regarding personal services are listed in ASPR 22-102.2(i), (ii), (iii) and (iv). The record shows as follows: 22-102.2 (i) (A) Can the Government obtain civil servants to do the work? The contracting officer said no. (Plaintiffs’ Exhibits 5 and 6). Wilbur Davis said yes (TT 239). Although the evidence is conflicting, it need not be resolved. ASPR 22-102.2(i)(A) states this provision has little weight. (B) Do the services represent a discharge of a Governmental function? D. R. McClung said no (HT 518). The contracting officer said no (para. 1. c. d. Plaintiffs’ Exhibits 5, 6). The unrebutted evidence demonstrates that M & S does not perform a Governmental function. (C) Is the requirement a continuing one? D. R. McClung testified no. (HT 519, 520) Frank Brown stated it was not a continuing requirement (TT 175). The contracting officer stated it was not a continuing requirement, (paragraph 1. e., Plaintiffs’ Exhibits 5, 6). The unrebutted evidence demonstrates that the requirement is not a continuing one. 22-102.2 (ii) (A) Does the Government specify the qualifications of individual M & S employees? Frank Brown testified the Government does not specify the qualification of the individual M & S employees. (TT 175). The contracting officer stated the Government did not specify qualifications of M & S employees. (Para. II a., b., Plaintiffs’ Exhibits 5 and 6). The unrebutted evidence demonstrates that the Government does not specify the qualifications of individual M & S employees. (B) Does the Government assign tasks or prepare work schedules for individual M & S employees? Frank Brown stated the Government did not assign tasks or work schedules for M & S employees (TT 175). The contracting officer reported the Government did not assign tasks or prepare work schedules for individual M & S employees (para II c., Plaintiffs’ Exhibits 5, 6). Frank Brown noted that there was communication between BMDSCOM and M & S (TT 164). He also stated that when discussing specific tasks with M & S personnel the purpose of the contact was to establish priorities or clarifications among the tasks required by the scope of work of the contract (TT 160, 162-163, 165,167, 175). Although Mr. Brown indicated that he recommended to M & S which employees should be used to perform tasks required by the contract’s scope of work, he emphasized that it was done solely within the context of priorities. (TT 167-168). This provision of the ASPR addresses task assignments of individual contractor employees, or work schedules of individual contractor employees. On that precise question Frank Brown testified: Q. And you don’t prepare work schedules for individual contractor employees? A. Not for the individual, for the task, yes. Q. But you merely assign, as far as dealing with the M & S supervisory [personnel], you are talking with them in order to clarify priorities among tasks? A. That’s correct, yes, sir. (TT 175). Q. It’s up to M & S to determine how to perform their tasks? A. Yes. (TT 176) Consequently, the evidence affirmatively shows that the Government neither prepares work schedules for, nor assigns tasks to, individual M & S employees. (C) Does the Government supervise the work of individual M & S employees? The only evidence on this point was the contracting officer’s statement that the Government did not. (Para II. d., Plaintiffs’ Exhibits 5, 6). The unrebutted evidence shows that the Government does not supervise the work of M & S employees. (D) Does the Government supervise or control the method by which M & S performs its service? Frank Brown testified the Government did not (TT 176). The contracting officer stated the Government did not. (paras, II a.-d., Plaintiffs’ Exhibits 5, 6). The contract between Frank Brown and M & S in the context of priorities is no evidence that BMDSCOM supervises or controls the method by which M & S performs its service. In any event, Mr. Brown specifically testified that it was up to M & S to determine the method by which it performs its service (TT 176). Thus, the evidence reflects that M & S, not BMDSCOM, controls the method by which M & S will perform. (E) Does the Government review the performance of individual M & S employees? Frank Brown reported that BMDSCOM did not. (TT 175). The contracting officer reported the Government did not. (para II. e., Plaintiffs’ Exhibits 5, 6). The unrebutted evidence reflects that the Government does not review the performance of individual M & S employees. (F) Does the Government have the right to remove individual M & S employees? The only evidence on this criterion is the contracting officer’s conclusion that the Government does not have that right, (para II. f., Plaintiffs’ Exhibits 5, 6). The unrebutted evidence demonstrates the Government has no right to remove individual M & S employees. (iii)(A) Are services an end product? The contracting officer concluded services were not the end product (para I. f., Plaintiffs’ Exhibits 5, 6). Mr. Davis agreed that services were not the end product. (TT 244). The unrebutted evidence demonstrates services are not an end product. (B) Does the Government define the work M & S performs on a day-to-day basis? The only evidence offered on this criterion was the contracting officer’s statement that the Government did not. (para 1. g., Plaintiffs’ Exhibits 5, 6). Although Frank Brown testified that he spoke with M & S, he emphasized that the discussions were only in terms of priorities among tasks defined by the scope of work. (TT 167-168, 175). The evidence demonstrates that the Government does not define the work M & S performs on a day-to-day basis. (C) Will payment be solely for time worked? The only evidence on this point is the contracting officer’s conclusion that payment would not be solely for time worked, (para I. h, Plaintiffs’ Exhibits 5, 6). The unrebutted evidence reflects that payment is not made solely for time worked. (D) Does the Government furnish office space or supplies to M & S? The only evidence on this criterion is the contracting officer’s statement that the Government did not. (para I. i., Plaintiffs’ Exhibits 5, 6). The unrebutted evidence reflects that the Government does not furnish M & S office space or supplies. (iv)(A) Will M & S and Government employees be used interchangeably? Frank Brown testified they were not. (TT 174-175). The contracting officer reported they were not. (para III. a., Plaintiffs’ Exhibits 5, 6). The unrebutted evidence demonstrates that M & S and Government employees were not used interchangeably. (B) Will M & S employees be integrated into the BMDSCOM organizational structure? Frank Brown testified they were not. (TT 175). The contracting officer stated they were not. (para III. b., Plaintiffs’ Exhibits 5, 6). (C) Are any elements in (ii) and (iii) present in the administration of the contract? The testimony of Frank Brown, discussed above, dealt with the administration of the contract. The contracting officer concluded that there would be no change during the administration of the contract (para III. c., Plaintiffs’ Exhibits 5, 6). As noted above, the only testimony of Frank Brown specifically addressing the ASPR criteria indicates that M & S is not a personal services contract. Even viewed in the light most favorable to plaintiffs, they presented evidence which would raise questions on only five of the sixteen ASPR criteria. In each of those five instances the evidence for BMDSCOM was more compelling. The critical point is that even in the disputed areas, the ASPR requires the exercise of judgment in the evaluation. As plaintiffs’ Mr. Davis testified, analysis of the ASPR criteria requires the exercise of judgment, and judgment in the area of ASPR XXII is something on which reasonable men could differ. (TT 324-325). Accordingly, the judgment exercised by BMDSCOM in evaluating the M & S contract for personal services is well within the latitude of reasonableness. The facts demonstrate that the contract between BMDSCOM and M & S is not inconsistent with the requirements of ASPR XXII. It is not a personal services contract. B. The SAI Contract As with the other contracts, the fatal flaw in plaintiffs’ case is their failure' to present any evidence that the members of their class could perform any of the tasks required to be performed under the SAI contract. Mr. McGlung testified at the hearings on the preliminary injunction that BMDSCOM personnel had no technical capability to perform the work done by SAL (HT 521). Plaintiffs’ witness John Fargason agreed. He explained: Q. Would it be fair to say they [SAI] were giving you the technical expertise you did not have available to you in-house at that time? A. That’s correct. The software, as I said directed the radar, it directed the missile systems. We didn’t have anybody in our group that was familiar enough with the ballistic missile peculiarities or the radar[’]s limitations to properly evaluate the software in this area. (TT 95). He also testified that SAI was used because they had that necessary expertise. (TT 97). Another of plaintiffs’ witnesses, Donald Head, testified that he went to work for SAI after being notified that he would be affected by the RIF challenged by this litigation. (TT 100). Yet, he was careful to note that rather than performing the technical, analytical work required of SAI under its BMDSCOM contract, or other contracts, he managed contractual effort for SAL (TT 115, 116). Therefore, the testimony of record shows BMDSCOM had no people with the technical expertise necessary to perform the functions SAI performed under its contract. Plaintiffs’ failure to prove that any of their number could perform the work leaves this court without authority to grant them any relief. Furthermore, the record affirmatively reflects that the contract between BMDSCOM and SAI can in no way be considered to be a contract for personal services. Analyzing the sixteen ASPR criteria on which the contracting officer must make his judgment regarding personal services, ASPR 22-102.2(i), (ii), (iii) and (iv), the record shows as follows: (i)(A) Can the government obtain civil servants to do the work? D. R. McClung testified that BMDSCOM has no personnel qualified to do the work. (HT 521). Wilbur Davis believed that civil servants with the ability to perform the work could be found. (TT 239). With regard to four modifications to the SAI contract, the contracting officer for the procurement concluded civil servants could perform the work specified by those modifications, (para I. a., Plaintiffs’ Exhibits 8-11). With regard to the basic SAI contract and its two modifications, the contracting officer for the particular procurement concluded civil servants were unavailable to perform the work, (para I. a., Plaintiffs’ Exhibits 7, 12 and 13). Although the record is conflicting regarding the different procurements, the court need not resolve the conflict. First, the determination is within the realm of judgment and discretion granted to the contracting officer. Second, ASPR 22-102.-2(i)(A) indicates that this factor is only useful in “doubtful case[s],” and this is not such a case. (B) Do the services represent a discharge of a Governmental function requiring SAI to exercise personal judgment on behalf of the Government? D. R. McClung testified no. (HT 517-518). John Fargason stated that SAI provided technical data and the judgment and discretion was exercised by BMDSCOM based in part on that data (TT 88, 90). Donald Head’s testimony was to the same effect (TT 128, 130, 134, 136). The contracting officer for the various procurements concluded, in each case, that no Governmental function, requiring SAI to exercise personal judgment on behalf of the Government, was involved, (para I. c., d., Plaintiffs’ Exhibits 7-13). The unrebutted evidence demonstrates that the SAI contract does not require SAI to discharge a governmental function or require SAI to exercise personal judgment on behalf of the Government. (C) Is the requirement a continuing one? D. R. McClung reported that the SAI effort was significantly diminishing (HT 519, 520). Donald Head also testified that the effort performed by SAI was diminishing (TT 116). Wilbur Davis felt the requirement was continuing (TT 234). For each of the SAI procurements, the contracting officer concluded the requirement was not a continuing one (para I. e., Plaintiffs’ Exxhibits 7-13). Despite the conflicting conclusions, this conflict need not be resolved. This criterion is insignificant. ASPR 22-102.-2(i)(C). (ii)(A) Does the Government specify the qualifications of individual SAI employees? 1 No witness specifically addressed this question. Mr. Fargason testified that BMDSCOM did not tell SAI who should work on tasks (TT 97) and that SAI was free to do its job any way it wanted to (TT 98). The contracting officer for each of the SAI procurements concluded the Government did not specify the .qualifications of individual SAI employees (para II. a., b., Plaintiffs’ Exhibits 7-13). The unrebutted evidence demonstrates that the Government does not specify the qualifications of individual SAI employees. (B) Does the Government assign tasks or prepare work schedules for individual SAI employees? Mr. Fargason testified that BMDSCOM did not tell SAI how to perform its work or who should work on a task (TT 97). He reported that SAI was free to do its job any way it wanted to, and it was up to SAI how to perform the work required by the contract’s scope of work (TT 98). Mr. Head stated that BMDSCOM did not supervise SAI employees (TT 136). He also indicated that BMDSCOM did not tell SAI how to perform its tasks (TT 138). The various contracting officers for the procurements in question concluded that the Government did not assign tasks or prepare work schedules for individual SAI employees, (para II. e., Plaintiffs’ Exhibits 7-13). Mr. Head indicated that he informed SAI that they should have people at a particular test (TT 129, 131), but he explained that often the only way to observe a test was to view video scopes during a test since the printouts of those tests were valueless. (TT 133). In any event, he gave no indication that he, or anyone, assigned tasks to or prepared work schedules for SAI employees by name. The evil addressed by this ASPR criterion is the Government’s assignment of tasks or work schedules to individual contractor employees. There is no evidence that this was done. The evidence affirmatively shows that the Government neither prepares work schedules for nor assigns tasks to individual SAI employees. (C) Does the Government supervise the work of individual SAI employees? Mr. Head stated BMDSCOM did not (TT 136). The contracting officers concluded that, in each of the SAI procurements, the government did not supervise the work of individual SAI employees, (para Il.d., Plaintiffs’ Exhibits 7-13): The unrebutted evidence shows that the Government does not supervise the work of individual SAI employees. (D) Does the Government supervise or control the method by which SAI performs its service? Mr. Fargason stated that BMDSCOM did not tell SAI how to perform its tasks (TT 97). He also reported that SAI was free to do its job anyway it wanted to. (TT 98). Mr. Head stated that SAI was told which tests to analyze, not what types of tests to run during that analysis. (TT 120, 138-139). The contracting officers who evaluated the procurements in question all concluded that the Government did not dictate or control the method by which SAI performed its service (para II.a.-d, Plaintiffs’ Exhibits 7-13). The oral contact between SAI and Head and Fargason is of little weight in view of their specific testimony that it was up to SAI how it performed its work under the contract. The evidence of record shows that SAI, not BMDSCOM, controls the manner in which SAI performs its service. (E) Does the Government review the performance of individual SAI employees? Mr. Head testified that BMDSCOM did not rate the performance of individual SAI employees. (TT 136). Mr. Fargason’s testimony is to the same effect. He stated he knew who some of the SAI personnel were only because they occasionally signed the reports sent to BMDSCOM. (TT 91). Obviously, he could not have been rating the performance of individual SAI employees. The conclusions of the contracting officers for the various procurements agreed that the Government did not review the performance of individual SAI employees, (para II.e., Plaintiffs’ Exhibits 7-13). The unrebutted evidence demonstrates that the Government did not review the performance of individual SAI employees. (F) Does the Government have the right to remove individual SAI employees for other than security or misconduct reasons? The only evidence on this criterion is the various contracting officers’ conclusions that the Government does not have that right, (para Il.f., Plaintiffs’ Exhibits 7-13). Mr. Fargason reported that after he reported to his superiors that an SAI employee, Vic Salem, provided information which Fargason believed inadequate, Salem faded out of the picture (TT 93). He was careful to note, however, that he, Fargason, had no knowledge of what happened to Salem (TT 93). Plaintiffs offered no other evidence on this point. This testimony provides no evidence that Salem was removed from the job, or that anyone in BMDSCOM caused it. Furthermore, even if it could be so construed, one instance in over five years is insufficient evidence to conclude that BMDSCOM has the right to remove SAI employees. The evidence reflects that the Government has no right to remove SAI employees for other than security or misconduct reasons. (iii)(A) Are services an end product? All the contracting officers for the various procurements but one agreed that services were not the end product (para I.f., Plaintiffs’ Exhibits 7, 9-13). (In Plaintiffs’ Exhibit 8, the contracting officer concluded services were an end product). Even Mr. Davis agreed that services were not the end product. (TT 244). The evidence demonstrates services are not the end product. It should be noted that this criteria cannot be of significant importance. The ASPR gives as example of a nonpersonal services contract in which services are the end product, a contract for janitorial services. ASPR 22-102.(b)(iii). A further example of a nonpersonal services contract given by the ASPR is one for the delivery of lectures; there the lectures, not the service, would be the end product. Thus, whether services or reports constitute the end product makes little difference. Mr. Davis conceded this at the hearing on the preliminary injunction (HT 741). The evil to be avoided is an employer-employee relationship between the Government and SAI employees. Without analysis of other factors, whether services are an end product is of little aid. (B) Does the Government define the work performed by SAI on a day-to-day basis? Mr. Head testified that the work was spelled out in the scope of work of the SAI contract: evaluate tasks, analyze codes and perform special studies. (TT 135). The contracting officers for the procurements agreed that the Government does not define the work to be performed by SAI on a day-to-day basis, (para I.g., Plaintiffs’ Exhibits 7-13). Mr. Head indicated that the specific tests to be analyzed by SAI were not identified in the contract’s scope of work, that was done during the course of the contract (TT 119); he pointed out, however, that when the tests to be analyzed were identified, SAI was not directed to analyze them in a particular way. (TT 120). The significant point here is that the work to be performed was identified in the scope of work of the SAI contract. SAI was bound to perform by that contract. Thus, the work required was defined by the contract and not defined on a day-to-day basis by BMDSCOM. (C) Is payment to SAI made solely for the time worked? The only evidence on this criterion is the unanimous agreement of the contracting officers that payment was not made solely for the time worked, (para I.h., Plaintiffs’ Exhibits 7-13). (D) Does the Government furnish office space or supplies to SAI? The unanimous agreement of the contracting officers for the various procurements that the Government provides neither office space nor supplies to SAI stands unrebutted, (para I.i., Plaintiffs’ Exhibits 7-13). (iv)(A) Will SAI employees be used interchangeably with Government employees? The contracting officers all agreed they would not. (para IILa., Plaintiffs’ Exhibits 7-13). The unrebutted evidence demonstrates that Government and SAI employees would not be used interchangeably. (B) Will SAI employees be integrated into the BMDSCOM organizational structure? The only evidence, the unanimous conclusion of the contracting officers for the various procurements, demonstrates that SAI employees are not integrated into the BMDSCOM organizational structure, (para IILb., Plaintiffs’ Exhibits • 7-13). (C) Will any of the criteria in (ii) and (iii) be present during the administration of the contract? The testimony of Donald Head, John Fargason or D. R. McClung specifically addressing the sixteen criteria to be assessed by the contracting officer indicates that none of those criteria are present. The contracting officers all agreed that there would be no change during the performance of the contract, (para III.c., Plaintiffs’ Exhibits 7-13). At best there is conflicting evidence regarding only six of the sixteen ASPR criteria. Plaintiffs’ NASA expert, Mr. Davis, based his conclusion that the contract was for personal services on only two of the ASPR criteria. Contrary to the contracting officers who reviewed the SAI procurements, Mr. Davis believed that the requirement for the SAI contract was a continuing one (TT 234) (ASPR 22-102.2(i)(C)). Mr. Davis also believed that civil servants could perform the effort performed under the SAI contract. (TT 239, 242) (ASPR 22-102.-2(i)(A)). The only ASPR criteria specifically addressed by Mr. Davis are, by the ASPR itself, very minor considerations: “This is a factor which might be useful in a doubtful case . . . ” (emphasis added) (ASPR 22-102.2(i)(A) and (Q). More importantly, Mr. Davis emphasized that the judgment of whether a contract was one for personal services required attention to the administration of the contract, as well as the contract files (TT 214, 217; HT 724). On cross examination, counsel embarked on a course of questions dealing with the specific ASPR criteria. Mr. Davis was asked whether M&S employees were integrated into the BMDSCOM organizational structure (ASPR 22-102.2(iv)(B)): Mr. Davis had no knowledge of whether they were (TT 287). When the same question was asked regarding SAI, Mr. Davis explained that he had not reviewed the administration of any of the contracts. (TT 287-288). Hence, not only did Mr. Davis contradict the contracting officers’ judgments on only two insignificant entries of the sixteen ASPR criteria, he conceded he made his judgment without reviewing the actual performance under the contracts. Interestingly, Mr. Davis, in agreement with the all but one contracting officer’s conclusions (para I.f., Plaintiffs’ Exhibit 8) believed that since, inter alia, services were not an end product, the contract was one for personal services (TT 244). Yet, it is when services are the end product, that the contracting officer should perhaps be more cautious. Indeed, ASPR 22-101(a) indicates that “[a] service contract is one which calls directly for a contractor’s time and effort . ” In that case service would be an end product. Thus, the fact that services are not an end product weighs in favor of non-personal, rather than personal, services. Mr. Davis apparently conceded as much earlier (HT 741). Mr. Davis’ conclusion that services are not an end product supports the contracting officers’ determinations of non-personal services rather than his own conclusion of personal services. Mr. Davis also gave his opinion that the memoranda in the form of checklists in the contract files, Plaintiffs’ Exhibits 7-13, did not satisfy the memorandum requirement of ASPR. Yet, as he conceded, the ASPR does not define memorandum (TT 307). He admitted that, until this case, he had never made an ASPR XXII determination (TT 205), and he admitted that ASPR XXII was inserted into the regulations after he left Army procurement (HT 713). Mr. Davis admitted he had never even made a determination as a contracting officer under the NASA equivalent of ASPR XXII (TT 206). Mr. Davis ceased to execute contracts for NASA in 1960 or 1961. (Id.) The NASA equivalent to ASPR XXII did not become a part of the NASA procurement regulations until 1964 (TT 1164). Consequently, Mr. Davis has never drafted or reviewed such a memorandum under ASPR. The only evidence bearing on whether the memoranda Davis questioned were adequate, was the complimentary review of BMDSCOM procurement practices conducted under the auspices of the Assistant Secretary of the Army for Installations and Logistics: (Defendants’ Exhibit 14) (see AR 715-11, Defendants’ Exhibit 13). The review team noted that the contract files “were completely adequate to support the actions taken . . . ” (para II., p. 7, Defendants’ Exhibit 14). The key to resolving whether the SAI contract is one for personal, or non-personal services, as with the other contracts, is in the judgmental discretion conferred upon the contracting officer. As Mr. Davis acknowledged, the determination is a judgment based on all sixteen factors; the factors are of varying importance; and, the judgment is not a question of black and white, but a question of degree (TT 217). Indeed, as this court noted, the criteria are quite subjective (HT 727). Obviously judgments on these criteria are ones on which reasonable men can differ based on a given set of facts (TT 324-325). The record in the case of SAI supports defendants’ contention that the contract between BMDSCOM and SAI is a ftonpersonal services contract. Certainly, the conclusion of the contracting officers is well within the reasonable judgment range. Plaintiffs have failed to show those judgments were arbitrary or capricious, or that they constituted an abuse of discretion. (C) The Teledyne-Brown, SETAC, Contract As with the other two contracts, plaintiffs failed to introduce any evidence that any members of their class can perform any of the tasks required to be performed by the contractor under the Teledyne-Brown, SETAC, contract. Plaintiffs’ witness Glen Sadler testified that the systems analysis-systems engineering portion of the SETAC contract could never have been done in-house; BMDSCOM just does not possess talent comparable to Teledyne-Brown. (HT 135, 136). Charles K. Fendley, from the Site Defense Project Office (now the Systems Technology Project Office) testified that systems analysis-systems engineering was 90 to 100% of the Teledyne-Brown contract (HR 379-380). Mr. McCarter for amicus Teledyne-Brown stated the contract was almost entirely systems analysis-systems engineering (TT 510). Although he indicated the effort was not completely systems analysis (TT 653), Mr. McCarter described the SETAC as a systems analysis unit. (TT 651). The point is that plaintiffs’ witness conceded that the systems analysis could not be performed in-house, and the people most knowledgeable about the Teledyne-Brown, SETAC, contract, Mr. Fendley and Mr. McCarter, described the contract as nearly totally systems analysis. Thus, the testimony shows the effort cannot be performed in-house. Furthermore, plaintiffs offered no testimony which addressed the ability of any of their number to perform the work performed by Teledyne-Brown Engineering. Accordingly, even if the effort could be performed in-house, there has been no evidence to show that plaintiffs in this action could do it, Unless plaintiffs have the talent to perform the work, they have not been harmed by BMDSCOM’s failure to have performed the SETAC effort in-house. Since plaintiffs have not adduced any evidence in support of their claim that they can perform, they are entitled to no relief. In any event, the record affirmatively demonstrates that the Teledyne-Brown, SETAC, contract is not one for personal services. The record reveals the following regarding the sixteen criteria in ASPR 22-102.2 on which the contracting officer must make his judgment. 22-102.2 (i)(A) Can the Government obtain civil servants to do the work? Mr. Fendley testified civil servants could not. (HT 379-380, 436, 456). Mr. McCarter testified that at best civil servants could perform only 15% of the work (TT 602). Even plaintiffs’ witness agreed that at least 30% of the effort could not be performed in-house (HT 650). The evidence demonstrates that the SETAC effort could not be performed by civil servants. It should be noted that plaintiffs have offered no testimony or any other evidence giving any indication that an effort must be dismembered to achieve adherence to either the ASPR or AR 235-5. (B) Do the services represent the discharge of a governmental function requiring Teledyne-Brown to exercise personal judgment and discretion on behalf of the Government? Mr. Fendley testified that the Government makes the judgment based, inter alia, on technical data provided by Teledyne-Brown (HT 384, 392, 395). Mr. McCarter, a Vice President of Teledyne-Brown, testified that the contractor did not exercise personal judgment on behalf of the Government (TT 534). The unrebutted evidence demonstrates that Teledyne-Brown exercises no personal judgment on behalf of the Government. (C) Is the requirement a continuing one? Mr. Fendley testified that the effort was conceived as a five year requirement, which was extended to eighty months (HT 378). He also noted that the nature of the Site Defense Program has been changed from a prototype demonstration program to a technology validation program (HT 926). General Marshall described the evolution in detail (TT 710-713). It is now called the Systems Technology Program. Although the need for a SETAC would have diminished under the prototype demonstration program, whether there will be a continuing need for the SETAC now is unclear from the record. Whether the requirement can be denominated a continuing one need not be resolved. As noted above, this factor is useful only in doubtful cases, and this is not such a case. (ii)(A) Does the Government specify the qualifications of individual TeledyneBrown employees? The unrebutted testimony of Mr. McCarter demonstrates that the Government does not specify the qualifications of Teledyne-Brown employees. (TT 535-536). (B) Does the Government assign tasks to or prepare work schedules for TeledyneBrown employees? Mr. Fendley, who knew the proscription against personal services from his NASA days (HT 374-375, 396), testified emphatically that the Government did not (HT 396, 435). Mr. McCarter was equally clear; the Government does not assign tasks to or prepare work schedules for TeledyneBrown employees (TT 535). The unrebutted testimony demonstrates that the Government neither assigns tasks to nor prepares work schedules for Teledyne-Brown employees. (C) Does the Government supervise the work of individual Teledyne-Brown employees? Mr. Fendley testified that TeledyneBrown supervises its employees (HT 435). Mr. McCarter stated that TeledyneBrown, not BMDSCOM, supervised the Teledyne-Brown employees (TT 535). The unrebutted testimony demonstrates that the Government does not supervise the work of individual TeledyneBrown employees. (D) Does the Government supervise or control the method by which TeledyneBrown performs its service? Mr. Fendley testified that the Government neither, supervises nor controls the method by which Teledyne-Brown performs its contract (HT 396, 435). Mr. McCarter testified that TeledyneBrown, not the Government, determines Teledyne’s method of performance (TT 535). The unrebutted testimony demonstrates that the Government neither supervises nor controls the method of performance of Teledyne-Brown. (E) Does the Government review the performance of individual Teledyne-Brown employees? Mr. Fendley reported that BMDSCOM did not review individual TeledyneBrown employee performance (HT 435). Mr. McCarter testified that only Teledyne-Brown reviewed the performance of its employees (TT 535). The unrebutted evidence demonstrates that the Government does not review the performance of individual TeledyneBrown employees. (F) Does the Government have the right to remove individual Teledyne-Brown employees for other than security or misconduct reasons? Mr. Fendley testified that he had neither control nor exercised any managerial responsibility regarding Teledyne-Brown personnel (HT 396, 435). Mr. McCarter testified only TeledyneBrown could remove its employees (TT 535). (iii)(A) Are services an end product? Mr. Fendley testified that the end products were the deliverable reports and analyses required by the contract (HT 395). Mr. McCarter testified the end product was the study, analysis or report (TT 510-11, 532). Mr. Davis testified that there were no end products required by the contract (HT 735); however, he later admitted that a study or report can be an end product (TT 300). Mr. Davis’ testimony is consistent with Mr. McCarter’s and Mr. Pendley’s. The evidence demonstrates that services are not an end product. (B) Does the Government define the work to be performed by Teledyne-Brown on a day-to-day basis? Mr. Fendley reported the Government did not (HT 396, 435) Mr. McCarter testified that the Government did not (TT 531-32). The unrebutted testimony demonstrates that the Government does not define the work to be performed by Teledyne-Brown on a day-to-day basis. (C) Is payment to be made to TeledyneBrown solely for time worked? No. evidence was introduced on this point. (D) Does the Government furnish office space or supplies to Teledyne-Brown? Mr. McCarter testified emphatically that the Government did not (TT 536). Mr. Davis testified that some TeledyneBrown personnel worked at the SAFEGUARD site in North Dakota (TT 287). Mr. McCarter specifically contradicted that testimony (TT 536). The evidence demonstrates that the Government furnishes neither office space nor supplies to Teledyne-Brown. (iv)(A) Will Teledyne-Brown employees be used interchangeably with Government employees? Mr. Fendley testified that BMDSCOM employees absolutely could not perform the work being performed by TeledyneBrown (HT 377, 379-380). Mr. McCarter testified that at most only 15% of the work performed by Teledyne-Brown could be performed' by BMDSCOM employees (TT 602). A fortiori, if BMDSCOM personnel cannot perform the effort, Teledyne-Brown employees cannot be used interchangeably with Government employees. The evidence therefore demonstrates that BMDSCOM and Teledyne-Brown employees a