Guam Industrial Services, Inc. v. United States ( 2015 )

In the United States Court of Federal Claims
No. 15-588 C
Filed: June 23, 2015
****************************************
*
GUAM INDUSTRIAL SERVICES, INC., *
*
Plaintiff, *
*
v. *
*
THE UNITED STATES, *
* Bid Protest, 28 U.S.C. §1491(b);
Defendant, * Preliminary Injunction, RCFC 65(a)(1).
*
v. *
*
CABRAS MARINE CORP., *
*
Defendant-Intervenor. *
*
****************************************
Lee Dougherty, Offit Kurman, P.A., Tysons Corner, Virginia, Counsel for the Plaintiff.
Amelia R.S.H. Lister-Sobotkin, United States Department of Justice, Civil Division,
Washington, D.C., Counsel for the Government.
Paul Honigberg, Blank Rome LLP, Washington, D.C., Counsel for the Defendant-Intervenor.
MEMORANDUM OPINION AND ORDER REGARDING
PRELIMINARY INJUNCTION
I. RELEVANT FACTS.1
On June 10, 2015, Guam Industrial Services, Inc., d/b/a Guam Shipyard (“Guam
Shipyard”) filed a Complaint alleging that, in 2012, Guam Shipyard was awarded an Indefinite
1
The facts described herein are derived from: Plaintiff’s June 10, 2015 Complaint
(“Compl.”); the June 17, 2015 Declaration of Contracting Officer, Military Sealift Command
(“Siebeking-Knox Dec.”); the Government’s June 19, 2015 Notice Of Corrective Action; and
representations made by the parties’ counsel during telephone conferences with the court on June
10, 17, and 22, 2015.
Delivery Indefinite Quantity (“IDIQ”) contract “to provide ‘ship repair services on [Military
Sealift Command (“MSC”)] vessels in Guam . . . includ[ing,] but . . . not limited to, pipefitting,
welding, machinists, electrical work, boiler making and repairing, and diesel mechanics, etc.’ A
second company, Gulf Copper Ship Repair, NC (“Gulf Copper”), received [an] IDIQ contract as
well.” Compl. ¶ 13 (quoting Guam Shipyard’s IDIQ contract).
In late 2013, “Cabras Marine Corporation (“Cabras”) was awarded a different IDIQ to
provide ship services . . . . Cabras’ IDIQ contract was to ‘perform major ship repair availabilities
that, owing to operational and mission requirements, are restricted to performance under [its]
contract.’” Compl. ¶ 14 (quoting Cabras’ IDIQ contract).
On March 23, 2015, the MSC issued a Voyage Repair Availability Request For Quote
(“VRA RFQ”), under IDIQs awarded to Gulf Copper, Guam Shipyard, and Cabras, for repairs to
be made to the USS FRANK CABLE between June 1–30, 2015. Compl. ¶¶ 1516. Thereafter,
the MSC accepted Requests for Clarifications (“RFCs”) from prospective offerors and issued
Questions and Answers (“Q&As”). In response, the MSC issued nine amendments to the VRA
RFQ. Compl. ¶ 17.
On April 17, 2015, Guam Shipyard submitted a bid. Compl. ¶ 18.
On May 1, 2015, the MSC issued a tenth amendment, closing discussions and requesting
“final quote revisions.” Compl. ¶ 18.
On May 21, 2015, the MSC announced that the VRA RFQ was cancelled. Compl. ¶ 20.
Shortly thereafter, “Guam Shipyard learned that the repair work on the USS FRANK
CABLE was awarded to Cabras, not through its quote submitted previously in response to the
VRA RFQ, but as a direct award under its [2013] IDIQ contract.” Compl. ¶ 21; see also 6/22/15
TR (MSC Commanding Officer representing that Guam Shipyard was advised at least by on June
2, 2015 of the status of the award to Cabras).
On June 4, 2015, the MSC stated that the work on the USS FRANK CABLE was
“mischaracterized as a voyage repair,” i.e., VRA, and “given the estimated dollar value, duration,
and nature of the work to be performed, the repairs were ‘major work’ that should have been
ordered under the direct award provisions of Cabras’ [2013] contract.” Compl. ¶ 23.
On June 10, 2015, Guam Shipyard (“Plaintiff”) filed a bid protest in the United States Court
of Federal Claims and a Motion For Preliminary Injunction And Permanent Injunction. On June
10, 2015, the court convened a telephone status conference with the parties. 6/10/15 TR 114. At
that conference, the Government advised the court that Cabras began work on June 1, 2015, and
had completed 34% of the job that was estimated to conclude on June 30, 2015. 6/10/15 TR 34.
The court asked what the MSC intended to do with the ship on June 30, 2015, and the Government
responded:
2
The [USS FRANK CABLE] will be leaving Guam for a special mission they were
not allowed to discuss, and she will be returning to Guam in the middle of August
[2015].
6/10/15 TR 4.
At that point, MSC Counsel interrupted and stated:
I . . . spoke to . . . one of the engineers down in our Norfolk office and he confirmed
that the mission that was originally scheduled in July is not going to occur. So, I
don’t believe that ship is going to get underway on the 30th, and I don’t think there’s
anything currently scheduled. But that, of course, could change.
6/10/15 TR 45.
With this clarification, the court requested that the MSC voluntarily stay further action on
the contract until the administrative record was produced. 6/10/15 TR 7. The Government advised
the court that production would take two weeks, i.e., until June 24, 2015, although “that would
push us.” 6/10 15 TR 5, 7. The Government added, however, “we don’t need an administrative
record to decide the preliminary injunction because there’s no jurisdiction[.]” 6/10/15 TR 7.
The court emphasized:
We’re not issuing a preliminary injunction. I’m asking for the [MSC] not to do
anything on the contract, until I can get a record. But you say I don’t have any
jurisdiction. I don’t have any papers in front of me. I don’t have a motion to
dismiss. I don’t have anything.
6/10/15 TR 7–8.
The Government counsel responded:
I think if we brief the preliminary injunction motion, we could expedite that without
doing the entire administrative record, we could expedite that quicker.
6/10/15 TR 910.
The court restated:
[I]f you want to file a motion to dismiss, you can do that. I may say to you[,] I
don’t know enough to dismiss . . . or I might agree with you. But that’s the—first
step.
3
I am not . . . going to move to go to a preliminary injunction until I have an
administrative record. That’s how we do things. I need to have a record to know
whether or not someone has a likelihood of succeeding on the merits.
6/10/15 TR 10.
The court added:
So, here [is] what I suggest you do. You do what you want to do. If you don’t agree
to stay the case, I’m going to authorize my law clerk today to enter in a TRO,
whether it’s been asked for or not, until I get back in the United States on—back in
the office, let’s just say on Wednesday morning. If you don’t like that, you’re
welcome to appeal that with the Federal Circuit. And the reason for me asking for
that is I don’t know enough about what’s going on right now, and the ship is not
going to go into service, so there’s no harm to the Government for the moment,
until we wait and see what happens. Okay. So, if you don’t agree, he’ll issue a
TRO under my authority. Now, if you do agree, to allow us to, basically, stop the
contract, okay, until we get an administrative record and you can then file our
motion, we’ll see where we go from there. I’ll be back in States, we can have
another conference on Wednesday. All right?
6/10/15 TR 12.
The court next inquired about potential intervenors and the Government responded:
[W]e have . . . reached out to the other two possible interveners [sic]. Cabras, which
is currently doing the work, has indicated that they do not intend to intervene.
6/10/15 TR 13.
On June 11, 2015, pursuant to the court’s request, the Government filed a Notice Of
Voluntary Stay until the next status conference scheduled for June 17, 2015.
On June 17, 2015, Cabras Marine Corp. (“Intervenor”) filed a Motion To Intervene that
the court granted. 6/17/15 TR 4.
On June 17, 2015, the MSC contracting officer filed a Declaration that stated:
1) The USS FRANK CABLE is a submarine tender homeported in Guam.
The ship, which is a warship serving a national defense mission, serves as a mobile
support facility for U.S. nuclear submarines in the U.S. 7th Fleet area of operations.
That area includes the Western Pacific and Indian Oceans. The USS FRANK
CABLE resupplies and conducts scheduled or emergent repairs to deployed
submarines and provides limited support to deployed surface ships. It is a critical
defense asset with specialized facilities for servicing nuclear submarines.
4
6/17/15 Siebeking-Knox Dec. at ¶ 1.
* * *
Specifically,
3) Any additional delay would profoundly compromise the ship’s ability to
get underway for typhoon avoidance, as well as its ability to meet unscheduled
mission requirements. The ship is currently not in a condition to get underway
owing to the partially completed work resulting from the stop work order.
4) The suspended work most significantly affecting the ship’s ability to be
fully operational:
a. The ship’s magnetic and gyro compasses (Work Items 402 and
403) were both being serviced. The ship requires a working
compass for safe navigation. The magnetic compass has been
sent to the Continental U.S. for repair. Therefore, maintenance
on at least the gyrocompass must be completed immediately to
ensure reliable function of that system.
b. Work Item 501 requires testing of various relief valves,
including those on the ship’s service turbine generators
(SSTGs). The SSTGs provide electrical power to the ship. The
USS FRANK CABLE requires two SSTG’s for normal
operation with a third SSTG providing ABS required
redundancy in order to get underway. Valves for two of the
ship’s four SSTGs are at Cabras’s facility in an unknown
condition. The SSTGs cannot operate with the valves removed.
Therefore, work on the valves must be completed immediately
to ensure a sufficient number of SSTGs are available for the
safe operation of the ship.
c. The ship does not have its required life rafts installed. The
existing life rafts were removed as part of Work Item 605. The
replacement life rafts are on Guam, but work remains to
correctly mount the rafts for their proper operation in the event
of an emergency. The rafts are lifesaving equipment for the
crew’s use in the event of an emergency. Although the new
rafts could be temporarily placed aboard the ship, they could
not be rigged to deploy as designed in the event of an
emergency. Such a safety compromise would require USCG
approval, which is unlikely. Immediate completion of the life
raft installation is needed for crew safety.
5
5) Typhoons on Guam are a constant threat. In the event of a typhoon, the
ship is more vulnerable to damage and loss in port than while underway. The ship
is kept in a 96-hour readiness status while repair work is being performed to support
a typhoon sortie. However, the ship’s Commanding Officer states that historically
the ship should be ready to sail within 72 hours of a storm warning. The
Commanding Officer believes his crew can make the ship ready to sail within 48
hours of a storm warning, although the deficiencies related to Work Items 402, 403,
501, and 605 would have to be addressed. Nevertheless, the efforts of the crew
would not be a substitute for the proper repair of critical systems and the correction
of safety deficiencies. The current inability to immediately correct these
deficiencies, particularly those affecting the ship’s ability to get underway, has
unacceptably placed the ship and crew at risk. The Government suffers harm each
day the ship remains in a degraded material condition rather than being in a proper
state that maximizes the safety of the ship and crew, for whom the ship is home.
6/17/15 Siebeking-Knox Dec. at ¶¶ 24.
On June 17, 2015, the Government filed an Unopposed Motion For Protective Order that
the court granted on June 18, 2015.
On June 17, 2015, the court also convened a telephone status conference, where the
Declaration was discussed.
THE COURT: I see the declaration . . . of the contracting officer, and I
appreciate that the work needs to be done. But the [MSC]
didn’t seem to feel that the [typhoon] season was any
problem because they took their good ol’ time scheduling . . .
and did not even put out the request until—we’ve checked
the website to find out when the rainy season and the
[typhoon] season is. So, there were—they didn’t seem to be
worried about any of that in May. So . . . that doesn’t
impress me.
* * *
If you urgently needed to do this to get the ship out of there,
you certainly took your good, sweet time in getting this work
underway. That’s a fact. . . . [W]hy didn’t you do this work
six months ago?
GOV’T COUNSEL: [T]yphoons can develop at any time and the ship would have
to be put out to sea within a couple days, very quickly in
order to avoid the monsoon. And as is set out in the
declaration of the contracting officer, there’s a number of
very critical work items that are currently dismantled
essentially, including the life raft, the turbine generators and
6
the compasses. Those are the most critical issues right
now[.]
THE COURT: [T]he problem is [the MSC] knew that when [the MSC]
began doing this work, and if [the MSC] needed to have that
boat ready to go, you should have been on this six months
ago, not now. It doesn’t wash, okay?
Also, you talked about the mission. The last time we
talked . . . [t]he gentleman from the [MSC] said [the USS
FRANK CABLE] didn’t have an assignment . . . and likely
wouldn’t have one for several months.
Now, you may need all of this done, but [the MSC] could
have scheduled it earlier. And[,] the Plaintiff is entitled—he
may not have a case, but he’s entitled to go through the
process, which is going to take some time, you see. You just
don’t get to jam it[,] because you feel like it.
GOV’T COUNSEL: However, while the Plaintiff is entitled to go through the
process, the Plaintiff still has to meet the minimum
requirements for a preliminary injunction. The Plaintiff –
THE COURT: Well, that’s true, but I have to look at a record and decide
whether and—look at the briefs and decide that issue . . .
I’m sorry you need to have this done yesterday, but I can’t
do my job—you know, it’s taken you two weeks to get the
administrative record put together. . . . [T]he Plaintiff is
entitled to go through the process and I am entitled and
required by Congress to review what the contracting officer
has done.
Now, that is—it is inconvenient to [the MSC]. But, you
know, when the [MSC] scheduled this basically during the
rainy season, which it started in May. I don’t understand if
this was so urgent why [the MSC] waited that long. That
was [the MSC’s] decision. But that doesn’t mean that you
get to preempt the Plaintiff from having its day in court,
okay?
Now, they may be wrong and there may be nothing wrong
that was done. But you’ve got to let that process go through.
So, you’ve got a third of the work done.
Now, if I let you go on ahead and continue, then all the work
is going to be done and, so, tell me exactly what it is the
7
Plaintiff is supposed to do if I find—what if I find that the
[MSC] was—did act in an arbitrary and capricious manner,
that they fit squarely into [Parcel 49C Ltd. P’ship v. United
States, 31 F.3d 1147 (Fed. Cir. 1994)].
* * *
GOV’T COUNSEL: Although the work may have been scheduled in the rainy
season, the [MSC] obviously did not expect a bid protest in
the middle of this project. It did not expect this project to be
put on hold for potentially months. And what’s—
THE COURT: Well, what did you think was going to happen? That the
other [bidders] were going to say that’s fine? You could
have had a protest by the other [bidder] that bid on this. Why
would that not be something that you would factor in?
GOV’T COUNSEL: Well, Your Honor, the work simply needs to be done and it
has to be scheduled when the ship is available. And as to
these three—these three elements that are very critical, the
compass, the turbine generators and the life raft, the ship
cannot put out to sea unless those are fixed.
THE COURT: That’s not my problem. That’s not my problem.
GOV’T COUNSEL: I mean, it’s—Your Honor, it’s akin to driving right now
without airbags, a seatbelt and with an obstructed
windshield.
THE COURT I understand that, but the point is it’s [the MSC’s] boat.
Presumably, [the MSC] know[s] how to schedule things
about when [the boat] need[s] repairs and you’ve got to
factor in time that you could have a protest. It would be
malpractice not to do that. I mean, you don’t know whether
someone’s going to protest or not. You can’t just assume
that they won’t. I mean, I sympathize with your problem,
but I didn’t create it, [the MSC] did. . . .
I don’t know why they changed course from the solicitation
and I—this affidavit is quite interesting because, first of all,
portions of it are hearsay. We’ve got . . . the commanding
officer’s views expressed by the contracting officer. That
carries no weight with me.
8
And we’ve got the magnetic compass has been sent to the
continental United States for repair. Is the Intervenor doing
that work in the United States? Mr. Intervenor?
INT. COUNSEL: Your Honor, we’re so new to this matter, I don’t know the
answer to the question.
* * *
THE COURT: If you’ve got the compass in the United States and the storm
comes, you’re not going to get the compass back in time to
get the boat out anyway, you see. So, that’s an interesting
argument, but it doesn’t wash based on [the contracting
officer’s] declaration.
Two of the valves are in the Intervenor’s facility in an
unknown condition. Well, . . . you don’t know what the
condition is, how am I supposed to figure it out? For all I
know, it could be perfectly fine. For all you know, it could
be perfectly fine based upon—I mean, I—this is not very
helpful is what I’m trying to say.
Presumably, if there’s a typhoon, the crew will go someplace
and get off the boat. So, they’re not at risk any place. I
presume that you have a place for them someplace in Guam
where they can hide in a basement. You know, I’m sure that
you need to get the boat out of there, but you have waited
this time period to get this job done and that is not my
problem. It may be that what you’ve done by awarding this
to the Intervenor is fine, but I am not going to allow [the
MSC]. . . to continue this work based on this declaration.
This is not adequate.
You also say on your -- this is interesting because the
[declaration] makes my point. “Typhoons are a constant
threat.” Well, didn’t you think about that when you decided
to do this work in this way?
We don’t even know that this boat is going to be needed for
anything. . . . [T]o me, this demonstrates is just very poor
planning by Military Sealift Command. And I’m sorry for
it, but that’s what, to me, it looks like. And I intend to do
the job that Congress has asked me to do. So, we’re going
to wait for your papers.
9
I don’t know whether the Plaintiff is planning to amend their
motion for injunctive relief that they filed in June based on
your statement or what they intend to do.
* * *
PL. COUNSEL: Well, again, Your Honor, we’ve sought injunctive relief and
a restraining order and we think it’s appropriate. This work
has been scheduled—as far as we know, this is routine
maintenance that was scheduled, you know, according to the
Navy, at least as far back as October of last year. We found
a scheduling order scheduling this work for this period. So,
this isn’t a surprise.
And even under the declaration, the hearsay, the commander
says even in its current condition, he could get it out of port
within 48 hours[.]
* * *
PL. COUNSEL: If a typhoon popped up and the Government truly thought
that it was an emergency and they needed to do, you know,
some partial lifting the injunction in order for an emergency
situation, frankly, I wouldn’t object to that.
* * *
THE COURT: Let me ask the Intervenor something. Have you been paid
for the third of the work that you’ve done?
INT. COUNSEL: Your Honor, we don’t know that. I don’t know the answer to
that question either. But we will have all that information in
the next—you know, we’ll answer the Court’s questions and
others within the next 48 hours. We have this issue with the
time change and travel, but we can certainly get the answer
to that question, Your Honor.
THE COURT: Well, let me tell you, we have a practical problem. I had
asked the Government to voluntarily stop work on this until
I could get back into the country and we could get the record
and motions and everything filed. That . . . agreement by the
Government ends today. So, we’re either going to have to
extend it for a period of time[.] From your perspective, if
you’ve been paid for the third of the work that you’ve done,
okay, and [the MSC has] done something wrong, [Guam
10
Shipyard doesn’t] get the contract. They just have to go
through the process again.
INT. COUNSEL: Yes, Your Honor.
THE COURT: Okay. And I don’t know what happens after that. I mean, I
don’t know whether that will be helpful or not. I don’t know
if there’s something that the [MSC] can be creative enough
to make the problem go away. That’s not up to me. They
say they need to have this done. [Guam Shipyard] want[s]
to have a job. [Cabras] want[s] to have [the] job. [The MSC
has] work to be given out. Maybe they can be creative and
find a way of solving the Plaintiff’s problem on another
piece of work. I don’t know. And make the case go away.
But it seems to me [the MSC] need[s] to understand that—
and [Cabras] would feel the same way[,] if you were
protesting. I mean, you know, it does you no good basically
to protest if the other guy basically has done all the work and
there’s no work to be had. The only thing I can do at that
point is make the Government pay for their mistake, and
that’s really not a good way of, you know, doing business
for the Government. I mean, they shouldn’t be putting
themselves in a position where they’re in that type of
situation, but they have.
So, let me see what we can do here. Can I get the
Government’s agreement that we can at least continue the
stay that we have through another week to at least let the
Intervenor find out some facts and get some—in a position
to put some paper together? [The MSC is] not going to get
your work done anyway until Friday. The Plaintiff has got
a right to respond. I don’t know why we can’t wait for
another week, at least. I can’t rule . . . overnight. I’ve got to
be able to look at things.
* * *
So, I don’t know what the Government’s counsel is planning
to do, but I’m asking her to extend it. And I think what we
ought to do is have her work with the Intervenor and
Plaintiff’s counsel to figure out a reasonable time period so
we don’t do this in dribs and drabs. Now, if you want to
push me, I will enjoin it and I will say why and I will rip
apart this [declaration], which is not going to be very
11
pleasant for you to look at or your supervisors to look at. So,
that’s where we are.
GOV’T COUNSEL: I’ve spoken with the Military Sealift Command—[and] my
client is not willing to extend the voluntary stay because of
these critical safety issues that are outstanding.
THE COURT: Okay, all right. Then I will—I’m going to enter a preliminary
injunction on the phone today based on the reasons that I
have set forth in examining the affidavit. We will try to get
a short written opinion out as soon as we can early next
week. But the procurement is enjoined as of today.
* * *
I am doing this to protect myself, to protect my—the job that
I have to do. . . I cannot put myself in a position of not
having a record before me and being forced in a position
where the [declaration] really does not support the request
that you made today on the phone. So, I’m going to enjoin
it as of today, issue a preliminary injunction as of today. We
will put together a decision . . . early next week. . . . I don’t
know what the merits are because I don’t have any of the
paperwork yet. I don’t even have—I don’t have the
administrative record. So, that’s where we are.
6/17/15 TR 619.
The Government indicated that it was ready to file the administrative record on June 19,
2015. 6/17/15 TR 5.
Pursuant to the June 17, 2015 status conference, the court entered a Preliminary Injunction
Order, indicating that a written opinion would follow.
On June 19, 2015, the Government was supposed to file the administrative record but
instead filed a Notice Of Corrective Action, indicating the:
cancellation of the request for quote (RFQ) for repair and maintenance work on the
USS FRANK CABLE, originally intended to be performed from June 1, 2015
through June 30, 2015, which is the subject of the instant protest, terminating for
convenience the delivery order previously issued to defendant-intervenor Cabras
Marine Corp. for the work encompassed in the RFQ, and reissuing the RFQ,
modified to take into account work performed prior to the filing of the instant
protest and subsequent stay.
6/19/15 Gov’t Notice Of Corrective Action.
12
On June 22, 2015, the court convened another telephonic status conference. During that
conference, the Government stated that it intended to take corrective action by rescinding the
cancellation for quotes, except for those items that were totally complete or so complete as to be
impracticable to re-bid.2 When the court asked the Intervenor how much it had been paid, the
Intervenor replied that it had one invoice for over $500,000 and itemized additional costs of
$684,000. Plaintiff expressed concern that if the Intervenor had already spent $1.1 million and the
total contract award was $1,722,848.84 (Compl. ¶ 15), there would be little left to do on the
contract. The Government responded that Plaintiff waived the right to complain, since it waited
ten days after the contract start date to file this protest. The court rejected this argument.
II. LEGAL STANDARD FOR A PRELIMINARY INJUNCTION.
The United States Court of Federal Claims has the authority to issue a preliminary
injunction only on notice to the adverse party. See RCFC 65(a)(1). The United States Court of
Appeals for the Federal Circuit requires the trial court to consider:
(1) whether, as it must, the plaintiff has succeeded on the merits of the case;
(2) whether the plaintiff will suffer irreparable harm if the court withholds
injunctive relief; (3) whether the balance of hardships to the respective parties
favors the grant of injunctive relief; and (4) whether it is in the public interest
to grant injunctive relief.
PGBA, LLC v. United States, 389 F.3d 1219, 1228–29 (Fed. Cir. 2004) (applying the factors for a
permanent injunction). “The standard for a preliminary injunction is essentially the same as for a
permanent injunction with the exception that the plaintiff must show a likelihood of success on the
merits rather than actual success.” Amoco Prod. Co. v. Vill. of Gambell, Ark., 480 U.S. 531, 546
n.12 (1987). “No one factor, taken individually, is necessarily dispositive. . . . [T]he weakness of
the showing regarding one factor may be overborne by the strength of others.” FMC Corp. v.
United States, 3 F.3d 424, 427 (Fed. Cir. 1993).
III. THE COURT’S RESOLUTION.
A. Whether Plaintiff Is Likely To Succeed On The Merits.
Based on the June 10, 2015 Complaint, Plaintiff alleged a plausible case that the MSC
improperly cancelled the solicitation. See Parcel 49C, 31 F.3d at 1151 (affirming a “trial court’s
findings that the Government’s justifications for cancellation of the procurement were pretextual
and incredible”). In addition, as discussed herein, the contracting officer’s June 17, 2015
Declaration is internally inconsistent, contrary to the facts, based on hearsay, and clearly was
manufactured as a post-hoc justification, disregarding Plaintiff’s right to challenge the MSC’s
actions in this case. The Government has represented that the administrative record would be
2
As of the time of publication, the court had not received the official transcript from the
June 22, 2015 status conference. The facts in this paragraph were derived from the law clerk’s
notes taken during the conference.
13
provided by this date. But, as of close of business at 5:00pm EST June 23, 2015, the Government
still has not produced the administrative record, without which the court cannot evaluate MSC’s
actions. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743–44 (1985) (“The task of the
reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency
decision based on the record the agency presents to the reviewing court.”). Under these
circumstances, a preliminary injunction is necessary to maintain the status quo.
B. Whether Plaintiff Is Likely To Suffer Irreparable Harm In The Absence Of Relief.
According to the Government, nearly 34% of the work under the disputed contract is
complete, and the final completion date is June 30, 2015. 6/10/15 TR 4. Therefore, if the court
does not enter a preliminary injunction, the contract will be completed prior to adjudication of this
bid protest, and Plaintiff would be irreparably harmed.
C. Whether The Balance Of Equities Is In Plaintiff’s Favor.
MSC advised the court that the USS FRANK CABLE is not needed to perform any military
missions in the immediate future. 6/10/15 TR 4–5. Although repairs to this ship are necessary,
the MSC elected to schedule maintenance during this time when a typhoon is “a constant threat.”
6/17/15 Siebeking-Knox Dec. at ¶ 5; see also 6/17/15 TR 13 (Plaintiff’s counsel) (“This work has
been scheduled—as far as we know, this is routine maintenance that was scheduled, you know,
according to the Navy, at least as far back as October of last year.”). In addition, the ship’s
magnetic compass is currently in the continental United States for repair, so if a typhoon occurred,
the MSC would be in no position to move it. 6/17/15 Siebeking-Knox Dec. at ¶ 4a. Therefore,
there appears to be no compelling reason for the MSC not to allow Plaintiff the opportunity for
judicial review. 6/17/15 TR 8 (the court) (“I don’t understand if this was so urgent why [the MSC]
waited that long. That was [the MSC’s] decision. But that doesn’t mean that [the MSC] get[s] to
preempt the Plaintiff from having his day in court.”). Under these circumstances, the balance of
the equities weighs in Plaintiff’s favor.
D. Whether An Injunction Is In The Public Interest.
“The public has an interest in honest, open[,] and fair competition, and [w]henever a
plaintiff is improperly excluded from that process, that interest is compromised.” Global
Computer Enters., Inc. v. United States, 88 Fed. Cl. 350, 461 (2009) (internal quotation marks and
citations omitted). “Healthy competition ensures that the costs to the taxpayer will be minimized.”
Id. (quoting SAI Indus. Corp. v. United States, 60 Fed. Cl. 731, 747 (2004)). “The public interest
is clearly served when suppliers engage in fair and robust competition for government contracts,
and granting injunctive relief in this case ensures that public confidence and competition in the
federal procurement process will be preserved.” Id. (internal citations and quotation marks
omitted); see also PGBA, LLC v. United States, 57 Fed. Cl. 655, 663 (2003) (“[T]he public’s
interest likewise lies in preserving the integrity of the competitive process[.]”).
In this case, the public’s interest in open, honest, and fair government contracting
outweighs any potential harm from a preliminary injunction. MSC counsel reported that the USS
FRANK CABLE will not be going on a mission in the immediate future. 6/10/15 TR 4–5. There
is no indication that a preliminary injunction while the court conducts an expedited review of the
14
administrative record will threaten any public interest. Since the MSC may have “violated its duty
to conduct a fair procurement,” a preliminary injunction serves the public interest. See Parcel
49C, 31 F.3d at 1151.
IV. CONCLUSION.
For these reasons, the Government is preliminarily enjoined from performing any work
on the disputed contract until the court can adjudicate the merits of Plaintiff’s bid protest.
IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Judge
15