permitted GE to modify the guarantee. The GE proposal in question is essentially an explanation of its liability and it does not deny the liabilities which are contained in the specifications. GE did not object to the guarantee provisions in the contract, Articles 10 and 21, and executed the contract containing the original guarantee provisions without alteration.
(d) Variations from drawings in the specifications
Plaintiff complains of several instances in which the GE bid does not conform to the drawings in the specifications. These alleged variations include (1) lack of small side windows at each end of the car, (2) a "low" ceiling in the middle of the car, (3) visible screws, (4) failure to include a stainless steel rubstrip, and (5) square corners for the sash in side doors.
These variations from the drawings in the specifications do not make the GE bid nonconforming. The Invitation, § S2.05, states that the drawings showing plans of the car "are to be used as a guide and for reference purposes only". These alleged variations concern differences in the drawings which are not binding. This provision indicates that much of the interior design will be completed after the award of the contract. The testimony of SEPTA's expert witness, John R. Vollmar, indicated that this is normal in the procurement of railroad cars.
(e) Safety gates
Pullman claims that the safety gates in the GE bid did not meet the requirements of the Invitation, § S5.06. The specifications provide for "[safety] barriers of approved design which shall enclose the sides of the passageway between cars." Plaintiff asserts that the barriers proposed by GE in Figure 5.2-1 will not enclose the passageway on sharp curves and the gap between cars will be excessive. This objection would appear to be without merit since no dimensions are given in either the specifications or the GE proposal. The Invitation makes it clear that the final design must be acceptable to SEPTA.
In short, there appears to be little merit to plaintiff's claim that the award to GE was a gross abuse of discretion by SEPTA and NJDOT. Further, we find no evidence of bad faith, collusion or fraud.
Plaintiff's complaint is founded primarily upon the contention that the GE bid, which is the lowest, is nonconforming, and that it fails to comply with the Invitation to Bidders in some 12 respects, several of which appear to concern picayune matters. The specifications in the bid documents issued on May 17, 1971, consisted of 341 pages of which 260 pages were devoted to a technical description of the performance levels required. Thereafter, 13 separate addenda were issued, prior to the receipt of bids, containing more than 50 pages and with 222 changes in the specifications including at least 185 separate changes in the technical part of the documents.
Thus, we are confronted as the Court was in Steinthal "with technical and complex issues of interpretation of procurement regulations." Although we do not reach the question of the merits of plaintiff's request for a preliminary injunction, the prospects appear bleak, indeed, that plaintiff will be able to make the kind of showing required to warrant judicial interference in the procurement process under the standards articulated in Steinthal. The entire thrust of the Court's 32-page opinion in that case is to emphasize the need for extreme caution by courts in undertaking review of a procurement process. Thus, at page 21 of the Opinion, the Court pointed out that "in subsequent decisions [following Scanwell ] we have suggested the judicial responsibility to consider carefully and attentively the procurement circumstances of every case, with a view towards limiting the instances of unnecessary judicial intervention into the procurement process." Again, on page 22, the court stated that there were two principles "of especial importance for judicial consideration of emergency challenges to determinations of procurement officials: (1) court should not overturn any procurement determination unless the aggrieved bidder demonstrates that there was no rational basis for the agency's decision; and (2) even in instances where such a determination is made, there is room for subsequent judicial discretion in the presence of overriding public interest considerations, to refuse to entertain declaratory or injunctive actions in a pre-procurement context." We agree with the severe limits imposed on the scope of review by Federal Courts of procurements by Federal agencies operating under Federal Procurement Regulations, and we have no doubt that Pennsylvania and New Jersey Courts are similarly reluctant to interfere. See Blumenschein v. Pittsburgh Housing Authority, 379 Pa. 566, 109 A.2d 331 (1954); Sierra Club v. Sanitary Water Board, 3 Pa.Cmwlth. 110, 281 A.2d 256 (1971); and William A. Carey & Co. v. Borough of Fair Lawn, 37 N.J.Super. 159, 117 A.2d 140.
This, then, is a case of a disappointed bidder seeking the contract with little prospect of prevailing ultimately on the merits. This is also the case of a plaintiff clearly lacking standing to sue. Therefore, the motion of defendants for dismissal of plaintiff's complaint is granted because of plaintiff's lack of standing to sue.