C&E Services, Inc. v. United States

In the United States Court of Federal Claims

No. 22-366C

(E-Filed: May 23, 2022) 1

)

C&E SERVICES, INC., )

)

Plaintiff, )

)

v. ) Competition in Contracting Act;

) 31 U.S.C. § 3553; Stay of

THE UNITED STATES, ) Performance; Preliminary Injunction;

) Bid Protest.

Defendant, )

)

and )

)

KADIAK, LLC, )

)

Intervenor-defendant. )

)

Kevin P. Connelly, Washington, DC, for plaintiff. Kelly E. Buroker and Tamara Droubi,

of counsel.

Vincent D. Phillips, Jr., Senior Trial Counsel, with whom were Brian M. Boynton,

Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and

Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, DC, for defendant. Katherine A. Allen

and Rachel McGuane, United States Department of the Treasury, Bureau of Engraving

and Printing, of counsel.

1

This opinion was filed under seal on April 28, 2022. See ECF No. 37. The parties were

invited to identify source selection, propriety, or confidential material subject to deletion on the

basis that the matter is protectived or privileged. No redactions were proposed by the parties.

See ECF No. 40 (joint status report). Thus, the sealed and the public versions of this opinion are

identical, except for the publication date and this footnote.

Devon E. Hewitt, Tysons Corner, VA, for intervenor-defendant. 2

OPINION AND ORDER

CAMPBELL-SMITH, Judge.

This bid protest involves a challenge to the decision by the United States

Department of the Treasury, Bureau of Engraving and Printing (BEP or the agency) to

override an automatic stay pursuant to the Competition in Contracting Act (CICA), 31

U.S.C. § 3553(d)(3)(C)(i). See ECF No. 34 at 2 (corrected first amended complaint).

Presently before the court is plaintiff’s motion for a preliminary injunction, which

plaintiff filed on April 11, 2022. 3 See ECF No. 31. Defendant filed a response to the

motion on April 13, 2022, see ECF No. 35, and plaintiff filed a reply in support of the

motion on April 19, 2022, see ECF No. 36.

The motion is now fully briefed and ripe for decision. The parties did not request

oral argument, and the court deems such argument unnecessary. The court has

considered all of the parties’ arguments and addresses the issues that are pertinent to the

court’s ruling in this opinion. For the following reasons, the motion for a preliminary

injunction is DENIED.

I. Background

Plaintiff “is in the business of providing wastewater treatment and pretreatment to

government and commercial customers.” ECF No. 34 at 1. The BEP has contracted with

plaintiff for approximately twenty-four years. See id. at 5.

On March 23, 2022, plaintiff filed a protest action before the Government

Accountability Office (GAO), challenging the agency’s decision to award Contract No.

2031ZA22C00005 to intervenor-defendant. See ECF No. 34 at 2, 3. Plaintiff’s GAO

filing triggered an automatic CICA stay of performance under the contract. See id. at 4.

2

Intervenor-defendant did not file any documents relevant to the motion presently before

the court, but the court includes its counsel for completeness.

3

On April 1, 2022, the court set a schedule to govern the filing and briefing of plaintiff’s

motion for preliminary injunction. See ECF No. 23 at 2. Plaintiff timely filed its motion, which

it titled “Plaintiff’s Motion for a Preliminary Injunction.” ECF No. 31. The memorandum

attached to plaintiff’s motion, however, purports to seek declaratory, preliminary, and permanent

injunctive relief. See ECF No. 31-1 at 1, 30. The court will confine its analysis in the present

decision to the propriety of preliminary injunctive relief, as that is the only motion that has been

scheduled by the court. The court will consider an award of declaratory and permanent

injunctive relief at the procedurally appropriate time.

2

On March 29, 2022, the agency notified plaintiff that it intended to override the CICA

stay and allow performance to proceed. See id.

On March 31, 2022, plaintiff filed the instant protest challenging the agency’s

decision to override the CICA stay. See ECF No. 1 (complaint). At the time that the

plaintiff filed its initial complaint, it had not yet received any documentation related to

the override decision. See id. at 8.

The court convened an initial status conference with the parties on March 31,

2022. See ECF No. 10 (order memorializing the status conference). During the

conference, counsel for defendant transmitted to all participants, by email, a copy of the

contracting authority’s documented justification for the override decision dated March

28, 2022. See id. at 2. The document is concise, and consists, in its entirety, of the

following:

In accordance with FAR 33.104(c)(2), as the Head of Contracting Authority

(HCA) for the Department of the Treasury, Bureau of Engraving and Printing

(BEP), I find that it is in the best interest of the United States for Kadiak,

LLC[] to continue performance on Contract No. 2031ZA22C00005 to ensure

sufficient contractor staffing and environmentally safe operation of BEP’s

Wastewater and Storm Water Program, pending the final decision by the

Government Accountability Office (GAO).

BEP awarded Contract No. 2031ZA22C00005 to Kadiak, LLC, an 8(a)

Alaskan Native Company, effective November 1, 2021. The contract is

valued at $17,826,641.98, including base and all options. Kadiak, LLC is

providing essential services to BEP, including managing, operating,

maintaining supplies, performing maintenance, and providing technical

support for BEP’s Wastewater and Storm Water Program at the District of

Columbia Currency Facility, in Washington, DC.

Sufficient contractor staffing and environmentally safe operation of the

BEP’s Wastewater and Storm Water Program is critical to accomplishing

BEP’s mission of manufacturing the nation’s currency and to its ability to

produce Federal Reserve notes to meet the increased volume of the Yearly

Currency Order. Any interruption to BEP’s Wastewater and Storm Water

Program would negatively impact BEP’s ability to manufacture and produce

the Federal Reserve notes in a timely and environmentally safe manner and

may potentially endanger the United States’ currency supply to the Federal

Reserve System.

See ECF No. 34-1 at 2.

3

Plaintiff alleges that it “has performed this contract work at BEP for 24 years

without ever impacting BEP’s ability to manufacture and produce the Federal Reserve

notes in a timely and environmentally safe manner.” ECF No. 34 at 5. In support of this

assertion, plaintiff references the April 7, 2022 declaration of Carl Biggs, plaintiff’s

president, owner, and general manager. See id. (citing ECF No. 34-2 at 4). Plaintiff also

disagrees with the agency’s assessment that intervenor-defendant was prepared to

perform under the contract at the time of the override decision. See id.

Plaintiff further alleges that, after this protest action was initiated, the agency

extended the contract under which plaintiff is presently performing through April 2022,

rather than allow intervenor-defendant to assume performance on April 1, 2022. See id.

According to plaintiff, the agency chose to extend the present contract because

intervenor-defendant “did not have the necessary personnel” to begin performance

because “the only individuals performing the necessary BEP work” are plaintiff’s

employees. Id. (citing ECF No. 34-2 at 5-6).

In response to plaintiff’s motion, defendant produced the declaration of Patricia

M. Greiner, the Deputy Director and Chief Administrative Officer and Head of

Contracting Authority for the agency. See ECF No. 35-1 at 1-5. Ms. Greiner refers to a

second declaration, from Myron Hodge, an Environmental Specialist with the agency, for

documentation of the concerns that led to her decision to override the CICA stay at issue

in this case. See id. at 4.

Mr. Hodge states that plaintiff “has been operating with a less than full staff on

this contract for the entire period of performance,” which has “compromised” plaintiff’s

ability to meet its obligations. ECF No. 35-2 at 3. Mr. Hodge further represents that

plaintiff’s inadequate staffing created a risk to environmental and personal safety. See id.

at 4. Mr. Hodge then explains a series of performance failures on plaintiff’s part, and

attaches a number of exhibits as proof of the same. See id. at 4-250.

In reply, plaintiff offers a second declaration from Mr. Biggs, dated April 19,

2022, in which Mr. Biggs counters Mr. Hodge’s contentions that plaintiff was under-

staffed and under-performing. See ECF No. 36-1. Mr. Biggs also explains the

irreparable harm—lost personnel, lost opportunities to compete, and lost revenue—that

plaintiff alleges it will suffer absent the requested injunctive relief. See id. at 6-7.

II. Legal Standards

In its corrected first amended complaint, plaintiff invokes this court’s bid protest

jurisdiction. See ECF No. 34 at 7. This court’s bid protest jurisdiction is based on the

Tucker Act, which gives the court authority:

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to render judgment on an action by an interested party objecting to a

solicitation by a Federal agency for bids or proposals for a proposed contract

or to a proposed award or the award of a contract or any alleged violation of

statute or regulation in connection with a procurement or a proposed

procurement . . . . without regard to whether suit is instituted before or after

the contract is awarded.

28 U.S.C. § 1491(b)(1). The Tucker Act also states that the court may grant “any relief

that the court considers proper, including . . . injunctive relief.” 28 U.S.C. § 1491(b)(2).

To establish jurisdiction, a plaintiff must demonstrate that it is an “interested

party.” 28 U.S.C. § 1491(b)(1). The United States Court of Appeals for the Federal

Circuit has held that the “interested party” requirement “imposes more stringent standing

requirements than Article III.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359

(Fed. Cir. 2009). Though the term “interested party” is not defined by the statute, courts

have construed it to require that a protestor “establish that it ‘(1) is an actual or

prospective bidder and (2) possess[es] the requisite direct economic interest.’” See id.

(quoting Rex Serv. Corp. v. United States, 448 F.3d 1305, 1308 (Fed. Cir. 2006))

(alteration in original). Although “standing is not often discussed at length in CICA stay

override cases,” the court makes the same inquiry into actual or prospective bidder status

and direct economic interest in such circumstances. PMTech, Inc. v. United States, 95

Fed. Cl. 330, 348 (2010).

Once jurisdiction is established, the court’s analysis of a “bid protest proceeds in

two steps.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005). First,

the court determines, pursuant to the Administrative Procedure Act standard of review,

5 U.S.C. § 706, whether the “agency’s action was arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with [the] law.” Glenn Def. Marine (ASIA),

PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir. 2013) (citing 28 U.S.C.

§ 1491(b)(4) (adopting the standard of 5 U.S.C. § 706)). If the court finds that the agency

acted in error, the court then must determine whether the error was prejudicial. See

Bannum, 404 F.3d at 1351.

To establish prejudice, “the protester must show ‘that there was a substantial

chance it would have received the contract award but for that error.’” Alfa Laval

Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999) (quoting

Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996)). “In other words,

the protestor’s chance of securing the award must not have been insubstantial.” Info.

Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003)

(citations omitted). The substantial chance requirement does not mean that plaintiff must

prove it was next in line for the award but for the government’s errors. See Sci. & Mgmt.

Res., Inc. v. United States, 117 Fed. Cl. 54, 62 (2014); see also Data Gen. Corp. v.

Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996) (“To establish prejudice, a protester is not

5

required to show that but for the alleged error, the protester would have been awarded the

contract.”). But plaintiff must, at minimum, show that “had the alleged errors been

cured, . . . ‘its chances of securing the contract [would have] increased.’” Precision Asset

Mgmt. Corp. v. United States, 125 Fed. Cl. 228, 233 (2016) (quoting Info. Tech., 316

F.3d at 1319).

Given the considerable discretion allowed contracting officers, the standard of

review is “highly deferential.” Advanced Data Concepts, Inc. v. United States, 216 F.3d

1054, 1058 (Fed. Cir. 2000). As the Supreme Court of the United States has explained,

the scope of review under the “arbitrary and capricious” standard is narrow. See

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974). “A

reviewing court must ‘consider whether the decision was based on a consideration of the

relevant factors and whether there has been a clear error of judgment,’” and “‘[t]he court

is not empowered to substitute its judgment for that of the agency.’” Id. (quoting

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)); see also Weeks

Marine, 575 F.3d at 1368-69 (stating that under a highly deferential rational basis review,

the court will “sustain an agency action ‘evincing rational reasoning and consideration of

relevant factors’”) (citing Advanced Data Concepts, 216 F.3d at 1058).

B. Preliminary Injunctive Relief

The Federal Circuit has held:

To obtain the extraordinary relief of an injunction prior to trial, the movant

carries the burden to establish a right thereto in light of the following factors:

1) that the movant is likely to succeed on the merits at trial; 2) that it will

suffer irreparable harm if preliminary relief is not granted; 3) that the balance

of the hardships tips in the movant’s favor; and 4) that a preliminary

injunction will not be contrary to the public interest.

FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (citations omitted). When

considering these factors, “the weakness of the showing regarding one factor may be

overborne by the strength of the others,” while “the absence of an adequate showing with

regard to any one factor may be sufficient . . . to justify the denial” of the preliminary

injunction. Id. (citations omitted). The Circuit also notes, however that “[a]bsent a

showing that a movant is likely to succeed on the merits,” it is unclear “whether the

movant can ever be entitled to a preliminary injunction unless some extraordinary injury

or strong public interest is also shown.” 4 Id.

4

The United States Court of Appeals for the Federal Circuit has held that a failure to show

likelihood of success on the merits is dispositive. See, e.g., Nat’l Steel Car, Ltd. v. Canadian

Pac. Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir. 2004) (stating that “a movant is not entitled to a

preliminary injunction if he fails to demonstrate a likelihood of success on the merits”) (citation

and footnote omitted); Amazon.com, Inc. v. Barnsandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed.

6

III. Analysis

A. Likelihood of Success on the Merits

In this case, plaintiff challenges the agency’s decision to override a CICA stay,

and has standing to do so as the incumbent contractor performing the work at issue in the

procurement that was stayed by plaintiff’s GAO protest. See ECF No. 34 at 11;

PMTech,, 95 Fed. Cl. at 348. The CICA states, in relevant part, as follows:

(A) If the Federal agency awarding the contract receives notice of a protest

in accordance with this section during the period described in

paragraph (4)—

(i) the contracting officer may not authorize performance of the

contract to begin while the protest is pending; or

(ii) if authorization for contract performance to proceed was not

withheld . . . before receipt of the notice, the contracting officer

shall immediately direct the contractor to cease performance

under the contract and to suspend any related activities that may

result in additional obligations being incurred by the United

States under that contract.

(B) Performance and related activities suspended pursuant to

subparagraph (A)(ii) by reason of a protest may not be resumed while

the protest is pending.

Cir. 2001) (stating that “a movant cannot be granted a preliminary injunction unless it establishes

both of the first two factors, i.e., likelihood of success on the merits and irreparable harm”).

These cases and others like them issued by the Federal Circuit are patent cases. The court found

only one instance outside the patent context in which the Federal Circuit affirmed a decision that

cites to patent cases to support the proposition that a movant must establish both a likelihood of

success on the merits and irreparable harm in order to obtain a preliminary injunction. See

Treadwell Corp. v. United States, 133 Fed. Cl. 371, 380 (2017), aff’d, 726 F. App’x 826 (Fed.

Cir. 2018) (“Although the factors are not applied mechanically, a movant must establish the

existence of both of the first two factors to be entitled to a preliminary injunction.”) (citation

omitted). Because the Circuit’s decision in Treadwell was issued without any substantive

analysis, it is not clear to the court whether the Circuit intends the rule it has applied in patent

cases, which involve a statutory basis for injunctive relief, see 35 U.S.C. § 283, to apply more

broadly. See Treadwell, 726 F. App’x 826. The court need not resolve the issue here, however,

because the outcome in this case is not dependent on this fine point of law.

7

(C) The head of the procuring activity may authorize the performance of

the contract (notwithstanding a protest of which the Federal agency

has notice under this section)—

(i) upon a written finding that—

(I) performance of the contract is in the best interests of the

United States; or

(II) urgent and compelling circumstances that significantly

affect interests of the United States will not permit waiting

for the decision of the Comptroller General concerning the

protest; and

(ii) after the Comptroller General is notified of that finding.

31 U.S.C. § 3553(d)(3).

In order to successfully challenge an agency’s decision to override a CICA stay, a

plaintiff must show that the agency’s decision was “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with [the] law.” Reilly’s Wholesale Produce v.

United States, 73 Fed. Cl. 705, 709 (2006) (citing 28 U.S.C. § 1491(b)(4); 5 U.S.C. §

706(2)(A)). An agency decision is arbitrary or capricious when:

[T]he agency has relied on factors which Congress has not intended it to

consider, entirely failed to consider an important aspect of the problem,

offered an explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

43 (1983); see also Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d

1372, 1375 (Fed. Cir. 2009).

In Reilly’s Wholesale, 73 Fed. Cl. 705, this court developed what plaintiff

characterizes as a “template for evaluating an override determination.” ECF No. 31-1 at

20. The Federal Circuit has recently clarified, however, “that the Reilly’s factors do not

even bind the Claims Court, let alone comprise an indispensable aspect of agency rational

basis.” Safeguard Base Operations, LLC v. United States, 792 Fed. App’x 945, 948-49

(Fed. Cir. 2019) (internal citations omitted). Accordingly, the court will evaluate this

case under the test articulated by the Supreme Court, and consider whether the agency

has: (1) relied on factors Congress did not intend for the agency to consider; (2) failed to

consider an important aspect of the problem; (3) offered an explanation for the override

8

decision that is contrary to the evidence; or (4) offered an explanation that is implausible.

See Motor Vehicle Mfrs., 463 U.S. at 43.

In this case, a stay of contract performance was triggered pursuant to 31 U.S.C. §

3553(d)(3)(a) when plaintiff filed its currently-pending protest before the GAO on March

23, 2022. See ECF No. 34 at 3-4. The agency then decided to override the stay on

March 28, 2022, when it determined that “it is in the best interest of the United States for

Kadiak, LLC[] to continue performance on Contract No. 2031ZA22C00005 to ensure

sufficient contractor staffing and environmentally safe operation of BEP’s Wastewater

and Storm Water Program, pending the final decision by the Government Accountability

Office (GAO).” ECF No. 34-1 at 2.

Plaintiff alleges that the agency’s “best interests” override decision is

unsupportable for, essentially, two reasons: (1) plaintiff had successfully performed the

contract for approximately twenty-four years; and (2) the agency knew or should have

known that staffing problems would prevent intervenor-defendant from beginning

performance on April 1, 2022. See ECF No. 34 at 5; ECF No. 31-1 at 16.

According to plaintiff, its successful performance record indicates both that the

CICA stay would not result in adverse consequences for the agency and that its continued

performance was a reasonable alternative to the override. See ECF No. 31-1 at 22-24.

Plaintiff also asserts that the agency’s decision to extend plaintiff’s bridge contract

through April supports both its argument that plaintiff was successfully performing, and

its claim that intervenor-defendant “was not physically able or ready to start contract

performance.” Id. at 23.

In response, defendant focuses the court’s attention on the agency’s identification

of staffing and environmentally safe practices as areas of concern. See ECF No. 35 at 17-

18. Defendant argues that the agency sufficiently explained the critical nature of the

staffing and environmental concerns, both of which are supported by Mr. Hodge’s

declaration outlining various of plaintiff’s failures on both issues. See e.g., ECF No. 35-2

at 3-4 (noting that plaintiff “has been operating with a less than full staff on this contract

for the entire period of performance,” which has resulted in “management requirements

being unmet,” and the need for the agency to “perform some of the contracted services”);

id. at 4 (stating that inadequate staffing “creates an additional risk to BEP in the case of a

chemical spill”); id. at 4-10 (detailing technical and maintenance issues with important

instruments); id. at 10 (stating that the agency directed plaintiff to “stop using the

instrument to prevent further damage to the instrument and waste chemicals”); id. at 10-

11 (explaining that “[i]f the intaglio printing process is flawed, the currency that is

ultimately produced is also flawed and cannot be used”). Defendant concludes that

“these substantial risks would not be mitigated if BEP were to maintain the status quo,”

and therefore, “BEP rationally concluded that it was in the best interest of the United

States to override the automatic CICA stay.” ECF No. 35 at 19.

9

In the court’s view, the present record does not support a finding that plaintiff is

likely to succeed on the merits of its case. Plaintiff does not appear to contend that the

agency relied on improper considerations or failed to consider important factors in

deciding to override the CICA stay. See Motor Vehicle Mfrs., 463 U.S. at 43. Rather,

plaintiff seems to suggest that the agency’s explanation for the override decision is either

contrary to the evidence or implausible. See id.; ECF No. 31-1 at 22-24. More

specifically, plaintiff strongly disagrees with defendant’s characterization of its

performance as deficient. See ECF No. 31-1 at 22. Plaintiff argues that it “has been able

to complete all work and all tasks” despite a loss of personnel, id., and cites to Mr. Biggs’

declaration as support, id. (citing ECF No. 31-3 at 3). To the extent that a disagreement

exists with regard to whether plaintiff has properly maintained certain instruments,

plaintiff indicates that the agency is the source of any problems. See id. at 22-23 n.9;

ECF No. 31-3 at 4; ECF No. 36 at 16.

The evidence offered by defendant in response effectively calls into question

plaintiff’s assertions. Mr. Hodge’s declaration and the voluminous attachments thereto

provide significant detail in support of defendant’s position that the agency had well-

founded concerns about plaintiff’s performance. See ECF No. 35-2. The court, though,

does not have before it the complete administrative record. That complete record may

include documents to provide context for the parties’ divergent views that is not readily

apparent from the documents before the court at this time.

Furthermore, plaintiff’s argument that the agency should have known that

intervenor-defendant was not ready to assume contract responsibilities focuses on events

that post-date the override decision. See ECF No. 31-1 at 21 (plaintiff arguing that

defendant’s March 31, 2022 decision to extend plaintiff’s bridge contract through April

2022 demonstrates that intervenor-defendant was unprepared to perform); ECF No. 36 at

15-16 (same). For this reason, the court cannot properly consider it when evaluating the

rationality of the override decision based on the information considered by the agency at

the time the decision was made.

As such, the court cannot yet predict which party is likely to prevail, and the court

finds that plaintiff has not shown that this factor weighs in its favor. See FMC Corp., 3

F.3d at 427.

B. Irreparable Harm

Plaintiff first argues that if the court does not grant a preliminary injunction

against the agency’s decision to override the CICA stay, it will suffer irreparable harm:

because, if [plaintiff] were to prevail at the GAO in early July 2022 . . .,

[plaintiff] will have been deprived of the opportunity to compete in the fair

10

competitive bidding process that would have occurred but for BEP’s

improper movement of the contract into the 8(a) program, which was

premised on the SBA’s arbitrary and capricious adverse impact analysis and

related conclusions.

ECF No. 31-1 at 27. “In addition,” plaintiff continues, intervenor-defendant “intends to

hire nearly all of [plaintiff’s] employees and supervisors working on the contract,” and

“the loss of the majority of the workforce will irreparably harm [plaintiff] in the future

competition for the long-term contract.” Id. Defendant contends that any harm plaintiff

may suffer “amounts to nothing more than a potential economic loss.” ECF No. 35 at 26.

While it is true that plaintiff may suffer an economic loss absent the CICA stay, and

that this court has held that “economic loss alone does not constitute irreparable harm,”

the harm plaintiff has alleged it will suffer is more than simply economic. Chapman Law

Firm Co. v. United States, 67 Fed. Cl. 188, 193 (2005). This court has also held that “the

failure of an agency to stay performance could result in a competitive disadvantage that

might not be remedied, causing a contractor to lose an important business opportunity.”

Reilly’s Wholesale, 73 Fed. Cl. at 717 (citations omitted).

Here, plaintiff argues that intervenor-defendant intends to hire plaintiff’s employees

to perform the contract work, which would place plaintiff at a material competitive

disadvantage if the GAO sustains its protest and it has the opportunity to compete for the

contract. See ECF No. 31-1 at 27. It is reasonable to conclude that the loss of qualified,

experienced personnel would put plaintiff in a relatively weaker position with regard to a

potential future competition. That said, if the workforce is likely to follow the work rather

than the employer in these circumstances, it also stands to reason that the agency would

understand the flow of employees and consider that pattern in weighing the importance of

presently employed personnel. As such, this factor weighs in plaintiff’s favor, but not

heavily.

C. Balance of Hardships

The court next considers the balance of hardships that may suffered by the parties.

FMC Corp., 3 F.3d at 427. “Under this factor, the court must consider whether the

balance of hardships leans in the plaintiff’s favor.” Reilly’s Wholesale, 73 Fed. Cl. at

715. This inquiry also requires the court to consider “the harm to the government and to

the intervening defendant.” Id. Here, plaintiff identifies its hardship as the lost

opportunity to fairly compete—the same harm identified in considering whether plaintiff

will suffer irreparable harm absent a CICA stay. See ECF No. 31-1 at 28-29; ECF No. 36

at 22. Defendant contends that the court should disregard plaintiff’s argument due to this

repetition, but offers no further, substantive argument. See ECF No. 35 at 27. Neither

party addressed any hardship that might be borne by intervenor-defendant.

11

As noted above, while it is certainly reasonable to view the loss of qualified

employees as a real potential harm to plaintiff, it does not appear to be a particularly

grave or extraordinary one in these circumstances. On the other hand, if the court

requires defendant to continue allowing plaintiff to perform under the contract, it will not

be permitted to take the steps it considers necessary to remedy plaintiff’s allegedly

deficient performance. In the most generous view of the facts for plaintiff’s case, these

hardships are in equipoise, but do not “lean[] in the plaintiff’s favor.” Reilly’s

Wholesale, 73 Fed. Cl. at 715.

D. Public Interest

Finally, the court must consider whether injunctive relief serves the public interest.

FMC Corp., 3 F.3d at 427. Plaintiff defines the public interest at issue as “preserving the

integrity of the competitive process,” as well as the “long-term interest in ensuring that

the new contract represents the best overall value to the government.” ECF No. 31-1 at

29. Plaintiff argues that “requiring the agency to implement the stay provides the best

opportunity to achieve that goal.” Id. Defendant, in response, insists that “the public’s

interests in BEP staying compliant with environmental standards or maintaining the

required manufacturing capability necessary to ensure that BEP can meet the United

States’ currency printing obligations” must also be considered in evaluating this factor.

See ECF No. 35 at 27.

The public certainly has an interest in the integrity of the competitive process, but

plaintiff has failed to adequately explain why allowing the agency to follow the

procedures provided by CICA to override the otherwise mandatory stay would result in a

loss of integrity in the procurement system. Plaintiff’s assertion that “reinstituting the

stay will not impair the [a]gency’s ability to obtain the services,” is not enough in this

case. See ECF No. 31-1 at 29. As the court has previously noted, the agency’s concerns

about plaintiff’s performance appear to have at least some basis in fact. See ECF No. 35-

2 (Hodge declaration explaining and attaching documentation of a series of performance

failures on plaintiff’s part). As such, the court finds that injunctive relief does not clearly

serve the public interest in this case. FMC Corp., 3 F.3d at 427.

Having reviewed the relevant factors, the court finds that plaintiff has shown, by a

slight margin, that it may suffer irreparable harm absent the requested injunction. None

of the remaining three factors, however—including and most importantly, the likelihood

of success on the merits—militates in favor of the court’s intervention here. Therefore,

plaintiff has not demonstrated that it is entitled to preliminary injunctive relief.

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IV. Conclusion

Accordingly:

(1) Plaintiff’s motion for a preliminary injunction, ECF No. 31, is DENIED;

(2) On or before May 13, 2022, the parties are directed to CONFER and FILE

a joint status report informing the court as to how the parties wish to

proceed in this case and proposing a schedule for doing so; and

(3) On or before May 20, 2022, the parties are directed to CONFER and FILE

a notice attaching the parties’ agreed upon redacted version of this opinion

and order, with all competition-sensitive information blacked out.

IT IS SO ORDERED.

s/Patricia E. Campbell-Smith

PATRICIA E. CAMPBELL-SMITH

Judge

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