Xerox Corporation v. United States ( 2021 )

In the United States Court of Federal Claims
No. 21-1807
(Filed: September 17, 2021)
NOT FOR PUBLICATION
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XEROX CORPORATION, *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant, *
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and *
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TRIDENT E&P, INC. *
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Defendant-Intervenor. *
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MEMORANDUM OPINION AND ORDER
Incumbent contractor and Plaintiff in this post-award bid protest, Xerox Corporation
(“Xerox”), seeks a temporary restraining order (“TRO”) and preliminary injunction to prohibit
the Defense Logistics Agency (“DLA”) from proceeding with performance of the disputed
contract awarded to Defendant-Intervenor, Trident E&P, Inc. (“Trident”). See Pl. Mot. at 1, ECF.
No. 20. The Court held a hearing on the motion for injunctive relief on September 16, 2021.
Because Xerox has not demonstrated that it will be irreparably harmed absent injunctive relief,
its motion is denied.
In 2019, DLA issued Solicitation No. SP7000-19-R-1001 for the award of a single
contract (“the Contract”) to provide commercial copier machines and similar devices, along with
associated technical support and supplies, for use aboard military ships. Mem. in Supp. of Pl.
Mot. at 1, ECF No. 20-1 [hereinafter Pl. Mem.]. Following a technical evaluation of proposals
from Xerox and Trident, DLA conducted a reverse auction and selected Trident as the lowest
bidder. Id. at 7-9. DLA awarded the Contract to Trident on August 20, 2021, after an
unsuccessful protest by Xerox before the U.S. Government Accountability Office. Id. at 9.
Xerox filed its protest in this Court on September 3, 2021, challenging the procurement
on two grounds. First, Xerox argues that DLA should have deemed Trident’s proposal as
technically unacceptable based on its alleged failure to meet three material requirements. Id. at
11-12. Second, Xerox argues that a lack of transparency in the reverse auction system unfairly
led Xerox to believe that it was the only bidder, causing it to submit a higher final bid than it
otherwise would have had it known it was competing with another bidder on price. Id. at 17.
At present, DLA is in a period of transition from Xerox to Trident, and Trident is in the
required equipment testing period of the Contract. Def. Opp’n to Pl. Mot. at 1-2, ECF No. 23.
DLA is prohibited from placing orders with Trident during this period, which the solicitation
contemplates will take approximately 180 days from the date of the award—August 20, 2021. Id.
As the incumbent contractor, Xerox has performed its responsibilities under a series of bridge
contracts since the issuance of the solicitation in 2019. Pl. Mem. at 27-28. Xerox contends that
the government has declined to obligate funds to purchase equipment from Xerox under the
existing bridge contract or to execute a new bridge contract with Xerox during the current
transition to Trident. Id. at 27-28. With its present motion, Xerox seeks an order that prohibits
DLA from proceeding with the Contract (including the testing of Trident’s equipment), placing
orders with Trident, and “impairing Xerox’s ability to serve its existing customers.” Id. at 33.
Xerox has not met its burden to show that it is entitled to injunctive relief. Injunctive
relief is “an extraordinary remedy that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
To demonstrate a right to injunctive relief, whether in the form of a TRO or preliminary
injunction, a plaintiff must establish: 1) that it is likely to succeed on the merits of its claim; 2)
that it will suffer irreparable harm in the absence of injunctive relief; 3) that the balance of
hardships weighs in the plaintiff’s favor; and 4) that the injunctive relief will not be contrary to
public interest. FMC Corp. v. United States, 3 F.3d 424, 427 (1993); see also Land Shark
Shredding, LLC v. United States, 142 Fed. Cl. 301, 305-06 (2019). While no one factor is
dispositive, “the absence of an adequate showing with regard to any one factor may be sufficient,
given the weight or lack of it assigned to the other factors, to justify the denial.” FMC Corp., 3
F.3d at 427. Further, the Federal Circuit has stated that “a movant cannot be granted a
preliminary injunction unless it establishes both of the first two factors[.]” Amazon.com, Inc. v.
Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (2001) (emphasis in original).
The Court finds unconvincing each of Xerox’s arguments that it will suffer irreparable
harm in the absence of injunctive relief. First, Xerox argues that potential orders placed with
Trident constitute irreparable harm in the form of lost profits to Xerox. Pl. Mem. at 27. But DLA
is prohibited from placing orders with Trident during the approximately 180-day testing period.
With an expedited briefing schedule, it is reasonable to believe that this case will be resolved
before testing is complete, meaning that no orders will have been placed in this transition period.
If Xerox is successful in its challenge and later wins the contract, it will then be in a position to
fulfill the orders that may have accumulated during the pendency of this litigation.
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Xerox next alleges that its inability to serve existing customers and the resulting customer
ire constitute irreparable harm. Pl. Mem. at 27-29. As Xerox notes, these harms result from
DLA’s decision not to execute a new bridge contract or obligate more funds to place purchase
orders from Xerox. Id. To this end, Xerox requests an order “prohibiting [DLA] from impairing
Xerox’s ability to serve its existing customers,” id. at 33, which the Court construes as a
creatively phrased request for a new bridge contract. Xerox has not explained its entitlement to a
new bridge contract or the authority of the Court to obligate DLA not only to execute a new
bridge contract but also to place orders under that contract. See Quality Control Int’l, LLC v.
United States, 147 Fed. Cl. 193, 200 (2020); Bannum, Inc. v. United States, 121 Fed. Cl. 543,
551 (2015). The Court leaves that decision to the discretion of the agency, which, as Xerox
acknowledges, “has initiated the process of requesting authority to execute a new bridge contract
with Xerox[.]” Pl. Mem. at 29 n. 12.
Finally, Xerox argues that allowing the testing of Trident’s equipment to proceed will
irreparably harm Xerox’s competitive advantage, as Xerox’s own equipment is already fully
tested and approved by DLA. Pl. Mem. at 29. The testing requirement, however, occurs post-
award; that Xerox had preapproved equipment (and Trident did not) provided Xerox with no
advantage (and Trident with no disadvantage) during the evaluation of their respective proposals.
Trident’s proposal qualified for the award without preapproved equipment, and the selection for
the award was based solely on the lowest price from eligible bidders. In other words, the testing
of Trident’s equipment will have no bearing on the outcome should DLA be required to
reevaluate the award decision. Further, any advantage lost by Xerox on future procurements as a
result of the testing of Trident’s equipment under the Contract is speculative and alone is not
sufficient for establishing irreparable harm in this case. See SVD Stars II, LLC v. United States,
138 Fed. Cl. 483, 488 (2018); Sierra Military Health Services, Inc. v. United States, 58 Fed. Cl.
573, 582-83 (2003).
Based on the limited record, the Court makes no determination on the likelihood of
success on the merits other than to say that Xerox has not established it so overwhelmingly so as
to overcome the lack of irreparable harm. Similarly, the remaining factors do not provide a
compelling reason to grant injunctive relief.
Accordingly, Xerox’s motion for a TRO and preliminary injunction, ECF No. 20, is
DENIED. The parties SHALL FILE a joint status report by September 24, 2021, proposing
further proceedings in this case.
IT IS SO ORDERED.
s/ Thompson M. Dietz
THOMPSON M. DIETZ, Judge
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