Protech Solutions, Inc. v. The Delaware Department of Health & Human Services ( 2017 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
PROTECH SOLUTIONS, INC., )
)
Petitioner, )
)
v. ) C.A. No. 2017-0642-TMR
)
THE DELAWARE DEPARTMENT )
OF HEALTH AND HUMAN )
SERVICES, an agency of the State of )
Delaware, )
)
Respondent, )
)
v. )
)
CONDUENT STATE & LOCAL )
SOLUTIONS, INC., )
)
Nominal Respondent. )
MEMORANDUM OPINION
Date Submitted: November 14, 2017
Date Decided: November 30, 2017
David A. Felice, BAILEY & GLASSER LLP, Wilmington, Delaware; Brian A.
Glasser, Victor S. Woods, and James L. Kauffman, BAILEY & GLASSER LLP,
Washington, District of Columbia; Attorneys for Petitioner.
Lawrence W. Lewis and John H. Taylor III, STATE OF DELAWARE
DEPARTMENT OF JUSTICE, Wilmington, Delaware; Attorneys for Respondent
Delaware Department of Health and Social Services
Steven L. Caponi, K & L GATES LLP, Wilmington, Delaware; Steven G.
Schortgen and Jennifer Klein Ayers, K & L GATES LLP, Dallas, Texas;
Attorneys for Nominal Respondent Conduent State & Local Solutions, Inc.
MONTGOMERY-REEVES, Vice Chancellor.
In March 2017, the State of Delaware Division of Child Support Services (the
“Division” or the “State”) issued a Request for Proposal (“RFP”) for maintenance
and operations (“M&O”) services for the Delaware Child Support System (the
“System”).1 Ultimately, three vendors submitted bids in response to the RFP. Two
of the vendors, Conduent State & Local Solutions, Inc. (“Conduent”) and Protech
Solutions, Inc. (“Protech”), were the current contractor and subcontractor,
respectively, for the System. Protech chose to rely on nonpublic data and stale
information when writing its bid, all of which was in direct conflict with the
information provided to the bidders by the Division. The Division ultimately
rejected Protech’s bid. Protech now comes to the Court asking to be saved from its
own miscalculation because the winning bidder allegedly received nonpublic
information—information that was consistent with the publicly available
information. Specifically, Protech seeks a preliminary injunction to prevent the
Division from awarding the contract to the winning bidder, Conduent, until the Court
can determine whether to permanently enjoin the contract and require a re-bid
process. I deny the Motion for Preliminary Injunction because Protech fails to show
a reasonable probability of success in proving the contract should be permanently
enjoined and rebid.
1
Resp’t’s Ex. A Attach. B, at 4.
1
I. BACKGROUND
Conduent had a contract with the Division from May 1, 2010 to September
30, 2017 for the design, development, and implementation of the System (the “Prime
Contract”).2 Protech served as a subcontractor under the Prime Contract until the
final year.3 In late October or early November 2016, the Division began drafting the
RFP and issued it on March 1, 2017.4 The new contract was to begin in August
2017.5
Both Conduent and Protech submitted bids in response to the RFP, as did a
third non-party, Computer Aid, Inc, (“CAI”).6 The Division selected Conduent’s
bid.7 On July 24, 2017, Protech submitted a written bid protest to the Division.8 On
August 4, 2017, Protech and the Division reached a standstill agreement such that
Protech would not file or pursue litigation, and the Division would not award a
2
Resp’t’s Opening Br. 1-2.
3
Id. at 2.
4
Resp’t’s Ex. B 119: 17-20; Resp’t’s Ex. A 1.
5
Id.
6
Pet’r’s App. A735-828.
7
Pet. 2.
8
Resp’t’s Ex. J.
2
contract while the parties continued discussions between their lawyers.9 On August
11, 2017, after consideration of Protech’s bid protest, the Division issued Protech a
written denial.10 On September 5, 2017, Protech filed its Verified Petition to
Protest/Enjoin a State Contract Award (the “Petition”). On November 14, 2017, the
Court heard oral arguments on the Motion for a Preliminary Injunction.
II. ANALYSIS
A. Standard of Review
“[A] motion for preliminary injunctive relief requires [this Court] to take a
step that, procedurally speaking, is extraordinary: to make a ‘preliminary’
determination of the merits of a cause before there can be a final adjudication of
[petitioner’s] claims.”11 “To obtain a preliminary injunction, the [petitioner] must
demonstrate: (1) a reasonable probability of success on the merits; (2) that they will
suffer irreparable injury without an injunction; and (3) that their harm without an
injunction outweighs the harm to the defendants that will result from the
injunction.”12 “A party showing a ‘reasonable probability’ of success must
9
Resp’t’s Opening Br. 4.
10
Id.
11
In re the New Maurice J. Moyer Acad., Inc., 108 A.3d 294, 311 (Del. Ch. 2015).
12
C & J Energy Servs., Inc. v. City of Miami Gen. Empls.’ & Sanitation Empls.’ Ret.
Tr., 107 A.3d 1049, 1066 (Del. 2014).
3
demonstrate that it ‘will prove that it is more likely than not entitled to relief.’”13
The preliminary injunction “burden is not a light one,” and such an “extraordinary
remedy. . . will never be granted unless earned.”14
Here, in order to prevail, Protech must demonstrate that it is more likely than
not that the Division violated the express requirements of the procurement statute,
employed a process that was arbitrary or capricious, or acted in bad faith.15
This Court will not normally or lightly decline to defer to
a . . . decision made by [an agency]. Given the broad
discretion conferred upon the agency . . . and the highly
deferential nature of the applicable judicial review
standard, only in extraordinary cases would this Court be
justified in setting aside such a decision.16
“Simple disagreement with the agency’s evaluations or conclusions is . . . not enough
to support allegations of bias.”17 “Neither [are] [b]ald allegations of bias; inferences,
suspicion and innuendo; nor the possibility and appearance of impropriety, without
13
Id. at 1067.
14
Wayne Cty. Empls.’ Ret. Sys. v. Corti, 954 A.2d 319, 329 (Del. Ch. 2008).
15
Doctors Pathology Servs. P.A. v. State Div. of Pub. Health, Dept. of Health & Soc.
Servs., 2009 WL 4043299, at *4-5 (Del. Ch. Nov. 20, 2009).
16
Id. at *5 (alterations in original) (quoting Harmony Constr., Inc. v. State Dept. of
Transp., 668 A.2d 746, 752 (Del. Ch. 1995)).
17
Id. at *8.
4
‘hard facts’ implying actual misconduct, . . . sufficient to fulfill the clear and
convincing proof required to show bias on the part of the government.”18
B. Protech Has Not Demonstrated a Reasonable Probability of
Success on the Merits
Protech advances four main arguments related to alleged deficiencies or
biases in the procurement process, which it contends are sufficient to require a do-
over of the entire bidding process. First, Protech asserts the RFP was not
“sufficiently definite to permit free, open, and competitive bidding on a common
basis.”19 Second, Protech contends the Division provided Conduent with inside
information about “personnel resources.”20 Third, Protech argues the Division
utilized a “deficient and otherwise arbitrary” process by not disclosing the use of a
technology scoring committee in the RFP.21 Fourth and finally, Protech avers that
Conduent’s proposal “failed to meet the material requirements of the RFP and should
have been summarily rejected.”22 Unfortunately for Protech, however, these
arguments are based on misunderstanding of Delaware procurement law,
18
Id.
19
Pet’r’s Opening Br. 31.
20
Id.
21
Id. at 31-32.
22
Id. at 32.
5
misconstruction of the facts, and rather ironic allegations of use of nonpublic
information.
1. Protech fails to show a reasonable probability that the
Division used unlawful procurement procedures
Protech’s initial argument fails for two reasons. First, Protech’s arguments
about the statutory requirements of the RFP apply the standard for large public work
contracts rather than the correct standard for professional services contracts.
Second, even applying the correct standard, Protech has failed to demonstrate a
reasonable probability that the Division violated an express requirement of the
procurement statute.
Procurement law in Delaware is largely statutory and found in Title 29,
Chapter 69 of the Delaware Code. Under the current statutory configuration,
Chapter 69 has six subchapters: general provisions, central contracting, materiel and
nonprofessional services, public works contracting, the energy performance
contracting act, and professional services.23 “‘Professional services’ means services
which generally require specialized education, training or knowledge and involve
intellectual skills. Examples of professional services include, but are not limited to,
. . . computer information management . . . .”24 The professional services subchapter
23
29 Del. C. §§ 6901-6988.
24
29 Del. C. § 6902(19).
6
governs the contract at issue in this litigation.25 The contract at issue in this litigation
is a “large professional service procurement process” under Sections 6981 and
6982.26
Protech relies on a standard from Delaware Technical and Community
College v. C & D Contractors, Inc., where the Supreme Court of Delaware examined
a prior version of the public works subchapter.27 “‘Public works contract’ means
construction, reconstruction, demolition, alteration and repair work and maintenance
work paid for, in whole or in part, with public funds.”28 Current Section 6962
governs large public works contract procedures. Subsection (d) is titled “Bid
specifications and plans requirements,” and states in part:
Preparation of plans and specifications and approvals. --
The contracting agency shall cause suitable plans and
specifications to be prepared for all contracts pursuant to
this section. All plans and specifications shall be prepared
by registered and licensed architects and/or engineers who
25
Resp’t’s Ex. A 1 (“This request for proposals (“RFP”) is issued pursuant to 29 Del.
C. §§ 6981 and 6982.”).
26
Id.
27
Del. Tech. & Cmty. Coll. v. C & D Contractors, Inc., 338 A.2d 568, 569 (Del. 1975)
(“It follows that ‘suitable’ plans and specifications, within the meaning of § 6905(b),
are only those which are sufficiently complete, definite, and explicit as to permit
free, open, and competitive bidding on a common basis.”).
28
29 Del. C. § 6902(22).
7
shall sign the plans and specifications and affix their seals
thereto.29
Case law has developed around this Section and its prior incarnations, specifically
about what suitable plans and specifications entail.30 Protech relies on this case law
for its argument that the RFP, issued pursuant to Sections 6981 and 6982 and not
Section 6962, was not “sufficiently complete, definite, and explicit as to permit free,
open, and competitive bidding on a common basis,”31 because it did not provide
bidders with exact staffing numbers and a budget expectation, which Protech alleges
were necessary for it to prepare its bid competitively.32 None of the case law Protech
relies on applies to professional services procurement or the current case.33
29
29 Del. C. § 6962(d)(1) (emphasis added).
30
See, e.g., Del. Tech. & Cmty. Coll., 338 A.2d 568; Harmony Const., Inc. v. State
Dep’t of Transp., 668 A.2d 746 (Del. Ch. 1995); Wohlsen Constr. Co. v. Dep’t of
Admin. Servs., 1998 WL 157365 (Del. Ch. Mar. 31, 1998).
31
Pet’r’s Opening Br. 32.
32
Id. at 22-24.
33
Protech also cites a case from 1954 interpreting the requirements under then Title
22, Chapter 5, which governed the establishment of municipal parking authorities.
Wilm. Parking Auth. v. Ranken, 105 A.2d 614 (Del. 1954). This case also is not on
point as to the statutory requirements of the RFP. Furthermore, Protech fails to
show a reasonable probability that the Division failed “so far as possible” to put the
bidders “on terms of perfect equality, so that they may bid on substantially the same
proposition, and on the same terms.” Id. The Division provided all bidders with the
same information, but Protech drew different conclusions based on their own
nonpublic information. See infra Section II.B.2.a.
8
Instead, the requirements for a large professional service RFP are more
flexible and set out in Section 6981:
(f) Each agency shall establish written administrative
procedures for the evaluation of applicants. These
administrative procedures shall be adopted and made
available to the public by each agency before publicly
announcing an occasion when professional services are
required. One or more of the following criteria may be
utilized in ranking the applicants under consideration:
(1) Experience and reputation;
(2) Expertise (for the particular project under
consideration);
(3) Capacity to meet requirements (size, financial
condition, etc.);
(4) Location (geographical);
(5) Demonstrated ability;
(6) Familiarity with public work and its
requirements; or
(7) Distribution of work to individuals and firms or
economic considerations.
(g) In addition to the above, other criteria necessary for a
quality, cost-effective project may be utilized.
(h) Each project shall be given individual attention, and a
weighted average may be applied to criteria according to
its importance to each project.
(i) For the selection process described in § 6982(b) of this
title, price may be a criteria used to rank applicants under
consideration.34
34
29 Del. C. § 6981 (emphasis added).
9
This Court analyzed the standards for professional services RFPs in Doctors
Pathology Services P.A. v. State Division of Public Health, Department of Social
Services.35 There, this Court considered a request for injunctive and declaratory
relief when “a frustrated provider of laboratory services, assert[ed] that the agency
failed to comply with the statutes governing its procurement of professional
services.”36 “Agency procurement procedures are deemed ‘lawful unless they
deviate materially from the relevant statute.’” 37 Section 6981 establishes only two
requirements for the professional services procurement process: there must be (1) a
public announcement including several enumerated items of information, and (2)
“written administrative procedures for the evaluation of applicants.”38 This Court
has recognized that the remainder of “the professional services negotiation
subchapter establishes only general guidelines for the procurement process: agencies
are granted great discretion to shape the process to meet their needs.”39
35
2009 WL 4043299 (Del. Ch. Nov. 20, 2009).
36
Id. at *1.
37
Id. at *4 (quoting Danvir Corp. v. City of Wilm., 2008 WL 4560903, at *5 (Del. Ch.
Oct. 6, 2008)).
38
29 Del. C. § 6981; see also Doctors Pathology, 2009 WL 4043299 at *4.
39
Doctors Pathology, 2009 WL 4043299 at *4.
10
Thus, to show a material deviation from Section 6981 sufficient to obtain a
preliminary injunction, Protech must show a reasonable probability of success on
claims that the Division failed to make the necessary public announcement or had
no written procedures for the evaluation of applicants. At oral argument, Protech
withdrew its argument that the Division did not make the necessary public
announcement,40 and Protech has not alleged that there were no written procedures
for the evaluation of applicants. Therefore, the Division’s procedures did not deviate
materially from Section 6981.
2. Protech fails to show a reasonable probability that the
Division’s process was arbitrary, capricious, or in bad faith
Protech’s remaining three arguments relate to whether the Division’s decision
process was arbitrary, capricious, or in bad faith.
a. Protech fails to show a reasonable probability that
Conduent’s alleged “inside information” was
inconsistent with information provided to all bidders
Ultimately, Protech objects to three forms of alleged inside information that
Conduent received: the September 9, 2016 email from Midge Holland41 to John
40
Oral Arg. Tr. 28.
41
Midge Holland was the Chief of Administration of the Division until March 2016.
Pet. ¶ 34. After March 2016, Holland became the Director of Information Resources
Management (“IRM”). IRM is responsible for the Delaware Department of Health
and Social Services’ information technology, including the System. Id. ¶ 35.
11
Polk42 and Maggie Claypool,43 the June and July 2016 meetings about staffing under
the Prime Contract, and the “dreaming sessions” Conduent conducted under the
Prime Contract.
Conduent had a contractual relationship with, and contractual obligations to,
the Division until September 30, 2017. The June and July 2016 meetings were to
discuss the operations of the Division and Conduent’s staff, and available office
space, through the final year of the prime contract—October 2016 to September
2017.44 The allegedly “secret meetings” on June 16 and July 25 were about business
under the Prime Contract. Protech’s objection to these meetings suggests that either
Conduent should have stopped communicating with the Division about anything
three months before the new RFP was even conceived of, regardless of any ongoing
contractual obligations Conduent had under the Prime Contract, or that the Division
had a duty to disclose any and all information about current operations in the RFP.
Neither of these outcomes is tenable.
Conduent conducted the “dreaming session” Protech objects to in January
2017, and it was a service provided to many customers in many jurisdictions, not
42
John Polk is Senior Vice President and Managing Director of Child Support
Services for Conduent. Id. ¶ 29.
43
Maggie Claypool is Conduent’s Project Manager for the System. Id. ¶ 26.
44
Resp’t’s Ex. B 33-37.
12
some elaborate scheme to illicit nonpublic information as Protech suggests.45
Moreover, by the time Conduent submitted its bid, it had already “provided a set of
a dozen or more recommendations that will have positive program impact” from the
“dreaming session.”46 The dreaming sessions were about providing a service under
the Prime Contract. For the Court to penalize Conduent in this bidding process for
providing services under a prior contract would result in an absurd rule.
Furthermore, as a matter of public policy, the Court would be unwise to
disincentivize state contractors from striving to improve their performance under
their contracts by precluding them from, or crippling them in, forthcoming bids for
other contracts.
The September 9, 2016 email exchange is more relevant to the current
litigation. On September 9, 2016 at 4:18 pm, John Polk, Managing Director at
Conduent, wrote to Midge Holland and Maggie Claypool:
Midge, I think he’s playing this.
We’ve had many conversations about this and the quality
of their work has never been part of the discussion.
Simply stated, we told him we wanted to be able to bid on
the work in Oct. 2017 and we would not be able to if we
didn't have some experience in the technical aspects of the
work.
45
Pet’r’s App. A745.
46
Id.
13
And, we have not closed the door on teaming with them
on the rebid but did tell them based on our understanding
the contract would be about half what it is today.
We’ll make it work Midge.
Nagaraj is just running the plays in his playbook.47
Midge Holland replied at 4:30 pm the same day:
Not sure where half came from - I have not heard that from
IRM although I know that child support is really interested
in cutting costs. [W]hile a 50% reduction would great for
the business’s expenses, from the technical side I have not
see[n] anything that indicates that the state would be able
to competently pick up that much of the work. That being
said, I would ask that if they will agree to team for the bid,
in writing of course, we consider the impact on the current
team with that in mind.48
The Division’s corporate representative Midge Holland has admitted she presumed
John Polk was referencing the upcoming bid for the 2017-2018 contract in his
email.49 Ultimately, however, this conversation does not show that Protech has a
reasonable probability of success in showing bad faith or an arbitrary or capricious
process because Ms. Holland only conveyed information that was consistent with
publicly available information during the bid process.
The publicly available information is as follows. First, Amendment Six of the
Prime Contract, the 2016 amendment which is a public document, clearly identifies
47
Id. at A532-33.
48
Id. at A532.
49
Resp’t’s Ex. B 78: 20-23.
14
47,040 as the total number of hours Conduent was contractually obligated to provide
in 2016-2017.50 Second, at the mandatory pre-bid meeting a non-party asked, “[c]an
you provide the current team size/expected staffload throughout the engagement?”51
The Division replied that the “[c]urrent team size is 22, excluding batch operations,
technical and non-technical. We are looking for efficiencies.”52 Third, in the written
public response to pre-bid questions the Division confirms “[t]here are 23 full-time
positions and 1 part-time position vendor staff supporting the M&O section of the
current contract.”53
Instead of relying on this publicly available information, Protech accessed a
nonpublic database to make its own projections of staffing needs in the future based
on trends in tickets.54 Protech combined its nonpublic information with the vague
statement that the Division was “looking for efficiencies” and statements of hope
about the Division taking over more of the M&O work from contracts that were
50
Resp’t’s Ex. D.
51
Resp’t’s Ex. W.
52
Id.
53
Resp’t’s Ex. N.
54
Resp’t’s Ex. M 61-62. The doctrine of unclean hands may bar Protech’s claims
should this litigation advance. Nakahara v. NS 1991 American Tr., 718 A.2d 518
(Del. Ch. 1998). Under the doctrine of unclean hands, this “Court refuses to
consider requests for equitable relief in circumstances where the litigant’s own acts
offend the very sense of equity to which he appeals.” Id. at 522.
15
years old.55 Protech then came up with a staffing suggestion significantly lower than
the current staffing needs, from which the Division gave no indication it was
considering deviating, and lower than both other bidders. Protech gambled based
on its inside information and now asks the Court to grant a re-do based on a
convoluted and manufactured suggestion that Conduent had inside information that
gave it an unfair advantage. Thus, Protech fails to show a reasonable probability of
success on the merits of this argument.
b. Protech fails to show a reasonable probability that it
was prejudiced by the Division’s failure to uphold its
implied obligation to adhere to the terms of the RFP
The Division had an implied obligation to the bidders to adhere to the terms
of the RFP.56 The bidders’ alleged reliance on the RFP, however, must be
reasonable, and the bidder must show it was misled and prejudiced by the supposed
non-adherence by the State.57 Protech argues the Division failed to adhere to its own
RFP. Protech’s two main objections are that (1) the technology scoring committee
was not disclosed in the RFP and (2) the Department of Health and Social Services’
Division of Management Services, Office of Contracts Management and
55
Resp’t’s Ex. W; Pet’r’s App. A543.
56
See Autotote Lottery Corp. v. Del. State Lottery, 1994 WL 163633, at *8 (Del. Ch.
Apr. 22, 1994).
57
Id.
16
Procurement approved the RFP instead of the Delaware State Procurement Office.
Protech has not shown a reasonable probability of success on the merits of either of
these arguments.
First, the RFP disclosed that the business and technology portions of the bid
would be considered separately by a two-tier scoring system. Protech was not
“misled” because the Division did not explicitly explain that slightly different group
of people would score the two tiers.58 Second, Protech has not alleged any prejudice
from either of these supposed procedural deficiencies and, therefore, fails to show a
reasonable probability that the Division acted in bad faith or employed an arbitrary
or capricious process.
c. Protech fails to show a reasonable probability that
Conduent’s proposal was materially deficient
Finally, Protech argues Conduent’s bid was materially deficient in that it
failed to adhere to the two percent inflation rate cap between the first and second
years or to include a separate line item for the Affordable Care Act (“ACA”) safe
harbor fee. Both of these arguments are without merit.
On its face, Conduent’s proposal appears to violate the two percent inflation
rate cap. The first-year quote is $3,750,000 and the second-year quote is
58
Resp’t’s Ex. A Attach. B, at 30.
17
$4,314,600.59 Assuming each yearly quote is for 47,000 hours, the first year comes
out to $79 per hour, and the second year is $91.80 per hour. This reflects an increase
of greater than two percent per year. This is a miscalculation, however, since
Conduent explains in its “Assumptions” section of the Project Cost Information that
the Operational costs are based on 41,667 hours in year one and 47,000 hours in the
following years.60 This decrease in hours prevents Conduent from double billing the
Division for the roughly two months of overlap between the Prime Contract and new
2017-2018 contract overlap.61 The two-month overlap was a built-in “transition
period” in case the Division selected a new vendor.62 If the Division selected
Conduent for the new contract, then the Division would owe Conduent
compensation under both the Prime Contract and the new contract. The decrease in
hours and price for the first year essentially was a discount offered by the incumbent
bidder so as to not double-bill the Division for the same services. Taking into
account this assumption of lower hours, the hourly rate for year one is actually
$89.97 per hour. The increase to $91.80 per hour in year two is two percent and,
thus, in line with the two percent cap.
59
Pet’r’s App. A749.
60
Resp’t’s Ex. H A-3.
61
Oral Arg. Tr. 88-89.
62
Id.
18
Protech argues that Conduent unfairly provided this discount that no other
bidder could provide. In order for the Division’s process to be arbitrary or
capricious, however, the Division must do something to treat the bidders differently.
That is not the case here. Instead, Conduent was in a position, through no fault of
the Division, to offer a discounted rate of services in the first year. As with the
services provided under the Prime Contract, it would be unwise for the Court to state
a rule that would incentivize current state contractors to double-bill the State for the
same work. Likewise, the Division is not acting in bad faith by preventing double-
billing for the same work.
Protech also alleges that the RFP required Conduent to include a separate line
item denoting the additional fee required by the State in case the State is deemed a
Common-Law Employer under the Affordable Care Act (the “Additional Fee”). The
RFP says, “[t]he State requires that all Vendors shall identify the Additional Fee to
obtain health coverage from the Vendor and delineate the Additional Fee from all
other charges and fees.”63 Appendix E to Attachment B of the RFP, however, says
“Operational Costs may be categorized separately . . . or bidder may choose to bid a
single all-inclusive total operational cost per year.”64 Moreover, the schedule
63
Resp’t’s Ex. A 16.
64
Resp’t’s Ex. A Attach. B, at 53.
19
supplied in Exhibit E to be used by the bidders does not include a separate line item
for the Additional Fee,65 and the scoring criteria supplied in the RFP has a single
item that says “Cost (including ACA Safe Harbor Additional Fees).”66 It is
reasonable to submit a total operation cost for the year on the Schedule supplied in
Appendix E that does not have a separate line item for the Additional Fee as long as
it is for the total operation cost. In fact, the other bidder in this process, CAI, also
opted to submit a single, all-inclusive total operational cost without a separate line
item for the ACA fee.67 Finally, Protech admits that failure to separate the ACA fee
is not material enough alone to warrant setting aside the entire bidding process.68
For all these reasons, Protech has not met its burden of showing a reasonable
probability of success on the merits. Because Protech fails “to demonstrate a
reasonable probability of success on the merits of any of the claims . . . [Protech has]
65
Id.
66
Resp’t’s Ex. A 12.
67
Pet’r’s App. A818.
68
Even if the allegations are true, the RFP gives the Division “the right to waive minor
irregularities and minor instances of non-compliance,” Resp’t’s Ex. A Attach. B, at
30, and thus, Protech has not shown a reasonable probability of success on the merits
by this argument either.
20
not satisfied the standard to earn a preliminary injunction. I thus need not address
the elements of irreparable injury or the balance of the equities.”69
III. CONCLUSION
For the foregoing reasons, the Motion for a Preliminary Injunction is denied.
IT IS SO ORDERED.
69
In re New Maurice J. Moyer Acad., Inc., 108 A.3d 294, 325-26 (Del. Ch. 2015).
21