Cashman Dredging and Marine Contracting Co., LLC v. United States ( 2020 )

In the United States Court of Federal Claims
No. 20-309C
(Filed Under Seal: April 9, 2020)
(Reissued for Publication: April 20, 2020) *
*************************************
CASHMAN DREDGING AND MARINE *
CONTRACTING CO., LLC, *
*
Plaintiff, *
*
v. * Postaward Bid Protest; Motion for a
* Temporary Restraining Order and
THE UNITED STATES, * Preliminary Injunction; Protest of the
* Issuance by the Small Business
Defendant, * Administration of a Certificate of
* Competency to the Awardee
and *
*
TRADE WEST CONSTRUCTION, INC., *
*
Defendant-Intervenor. *
*************************************
Jonathan M. Baker, Washington, DC, for plaintiff.
Christopher L. Harlow, United States Department of Justice, Washington, DC, for defendant.
Tracey L. Pruiett, Atlanta, GA, for defendant-intervenor.
OPINION AND ORDER
SWEENEY, Chief Judge
In this bid protest, Cashman Dredging and Marine Contracting Co., LLC (“Cashman”)
challenges the award of a dredging contract by the United States Army Corps of Engineers
(“Corps”). The court has before it Cashman’s motion for a temporary restraining order (“TRO”)
and a preliminary injunction. The court also has before it motions to dismiss, relying on Rules
12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal Claims, filed by
*
The court issued this Opinion and Order under seal on April 9, 2020, and directed the
parties to submit proposed redactions by April 20, 2020. The parties filed a status report on
April 17, 2020, in which they indicate that no material contained in the court’s decision requires
redaction.
defendant and defendant-intervenor, Trade West Construction, Inc. (“Trade West”). 1 Cashman’s
motion is fully briefed according to an expedited schedule and is ripe for decision. For the
reasons set forth below, Cashman’s motion is denied. The court also denies the motions to
dismiss as premature, because the arguments therein would be more efficiently and thoroughly
argued after an administrative record has been filed and the merits of this protest have been
briefed. 2
I. BACKGROUND
A. The Solicitation
On October 4, 2019, the Corps issued Invitation for Bids (“IFB”) No. W911XK20B0001,
titled New Soo Lock Upstream Channel Deepening. 3 The work is located at “the upstream
approach to the locks in the north channel at the Soo Locks complex in Sault Ste. Marie,
Michigan.” Pl.’s Ex. 2 at 15. The IFB was structured to award the firm, fixed-price dredging
contract, using sealed bidding procedures, “to the lowest priced bidder who [wa]s determined to
be responsive and responsible.” Id. at 18 (citing Federal Acquisition Regulation (“FAR”)
52.214-19). The IFB noted that the estimated value of the contract was between $25 million and
$100 million. The awardee was required to begin performance within ten days of its receipt of
the Corps’ notice to proceed and was required to complete the contract work within 630 days of
its receipt of the notice to proceed. After an amendment to the IFB, the bidding deadline of
November 5, 2019, was extended to November 13, 2019.
B. The Bids
Three timely bids were received by the Corps. Trade West’s bid was the lowest, at
$52,672,800. Cashman’s bid was next lowest, at $64,271,000. The third bid was for
$65,453,000. The Corps’ independent government estimate for the project was $53,645,609. As
low bidder, Trade West would be awarded the contract unless its bid was not responsive to the
IFB, or if Trade West was not a responsible contractor. An example of a nonresponsible
1
These motions were incorporated into defendant’s and Trade West’s response briefs.
2
The court observes that the parties have established, with the exhibits attached to their
briefs, an adequate record for the resolution of plaintiff’s request for preliminary injunctive
relief. The court awaits a more robust record to resolve the challenges to the complaint raised by
defendant and Trade West, because these challenges, at least in some instances, are grounded in
facts that would be more fully developed in an administrative record.
3
All citations to plaintiff’s moving brief are to the memorandum filed as an attachment
to the motion. In addition, because the exhibits attached to plaintiff’s motion are not paginated
within each exhibit, the court references these exhibit pages by the page numbers generated by
the court’s electronic filing system.
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contractor would be one that is “not capable of executing the contract successfully due to
technical, production, and quality assurance concerns.” Pl.’s Ex. 1 at 4.
C. Responsibility Concerns, Referral to the Small Business Administration, and Award
The Corps had concerns about Trade West’s responsibility. The regional Contract
Administration Branch (“CAB”) communicated the Corps’ concerns to Trade West and
investigated the issue. Ultimately, “the CAB concluded that Trade West was not capable of
executing the contract successfully due to technical, production, and quality assurance capability
concerns [and the] CAB recommend[ed] against awarding the contract to Trade West.” Id. The
contracting officer (“CO”) concurred, and determined that Trade West was nonresponsible. Id.
at 5.
Because Trade West qualified as a small business under the terms of the IFB, however,
the CO referred the responsibility issue to the Small Business Administration (“SBA”). The
SBA reviews the responsibility of small business offerors under its Certificate of Competency
(“COC”) program. See FAR 19.601(a) (stating that a COC certifies “that the holder is
responsible (with respect to all elements of responsibility, including, but not limited to,
capability, competency, capacity, credit, integrity, perseverance, tenacity, and limitations on
subcontracting) for the purpose of receiving and performing a specific Government contract”).
Once the CO found Trade West to be nonresponsible, the CO was obliged to refer the
responsibility issue to the SBA. See FAR 19.601(c) (“A contracting officer shall, upon
determining an apparent successful small business offeror to be nonresponsible, refer that small
business to the SBA for a possible COC, even if the next acceptable offer is also from a small
business.”).
The Corps referred the responsibility issue to the SBA on December 20, 2019. The file
sent to the SBA included the CO’s “Determination of Contractor Nonresponsibility, [the]
Solicitation and Amendments, Trade West’s bid, the bid abstract, the preaward survey
information and [the] CAB’s conclusions, Trade West’s preaward survey submission, and Trade
West’s [Contractor Performance Assessment Reporting System evaluations].” Pl.’s Ex. 1 at 5.
Once the SBA received the file, a number of email exchanges, and at least one telephone
conversation, took place between Ms. Heather Turner, the CO, and Mr. Peter Van Steyn, the
SBA’s representative. This dialog permitted the Corps to further elaborate on its concerns about
Trade West’s responsibility, to answer the SBA’s questions about the dredging contract, and to
ask questions regarding the SBA’s investigation into the responsibility issue. Most of this
activity appears to have occurred between January 7 and January 24, 2020. The Corps indicated
that it would not oppose the SBA’s issuance of a COC in favor of Trade West on January 24,
2020.
On January 24, 2020, the SBA issued a COC for Trade West and notified the Corps that
it was required to award the dredging contract to Trade West. At that time, the relevant
regulation stated:
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The contracting officer shall award the contract to the concern in question
if the SBA issues a COC after receiving the referral. An SBA-certified concern
shall not be required to meet any other requirements of responsibility. SBA
COC’s are conclusive with respect to all elements of responsibility of prospective
small business contractors.
FAR 19.602-4(b) (2018). Accordingly, the CO awarded the dredging contract to Trade West on
January 30, 2020.
D. Procedural History
On February 7, 2020, Cashman filed an agency-level protest with the Corps. Among
other concerns, Cashman argued that Trade West could not comply with the limitation on
subcontracting clause of the contract, and that this inability made Trade West’s bid
nonresponsive. However, as explained in its denial of Cashman’s protest, the Corps viewed this
concern as a matter of responsibility, not responsiveness.
First, the Corps noted an important distinction articulated in many decisions issued by the
Government Accountability Office (“GAO”). Generally, these decisions indicate that “when a
[bidder] agrees to perform the work in conformity with the solicitation the bid is responsive; any
concerns involving a small business’s ability to perform in accordance with the bid relates to
responsibility and must [be] forwarded to the [SBA].” Pl.’s Ex. 1 at 8. The Corps concluded
that “[w]hile Cashman’s concerns are valid, and in fact were raised and considered by the
Contracting Officer as well, they concern responsibility, not responsiveness. As such, this
allegation is without merit.” Id.
Regarding Cashman’s request that the Corps petition the SBA for reconsideration of the
COC, the Corps held that the redress sought by Cashman was not available in these
circumstances. The Corps noted that the SBA’s COC determination is conclusive as to a small
business concern’s responsibility. Id. at 9-10 (citing 15 U.S.C. § 637(b)(7) (2018)).
Accordingly, the Corps denied Cashman’s protest on March 3, 2020.
On March 18, 2020, Cashman filed the instant protest, the grounds of which were
enumerated in Counts I, II, and III of the complaint. Those three protest grounds will be
discussed below. Because the Corps declined to voluntarily stay performance of Trade West’s
contract, the court ordered briefing on Cashman’s motion for a TRO and preliminary injunction.
Defendant and Trade West also moved to dismiss the complaint as they responded to Cashman’s
motion. The court held oral argument regarding these motions on April 9, 2020.
II. STANDARD OF REVIEW
The United States Court of Federal Claims (“Court of Federal Claims”) has the authority
to award injunctive relief to a bid protest plaintiff pursuant to 28 U.S.C. § 1491(b)(2). The court
considers four factors when ruling on a motion requesting a TRO and a preliminary injunction,
determining whether (1) plaintiff is likely to succeed on the merits; (2) plaintiff will suffer
irreparable harm if the court withholds injunctive relief; (3) the balance of hardships favors the
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grant of injunctive relief; and (4) it is in the public interest to grant injunctive relief. U.S. Ass’n
of Imps. of Textiles & Apparel v. United States, 413 F.3d 1344, 1346 (Fed. Cir. 2005); PGBA,
LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004).
None of the four factors, taken individually, is dispositive, and a “weakness of the
showing regarding one factor may be overborne by the strength of the others.” FMC Corp. v.
United States, 3 F.3d 424, 427 (Fed. Cir. 1993). Conversely, “the absence of an adequate
showing with regard to any one factor may be sufficient” to deny preliminary injunctive relief.
Id. Preliminary injunctive relief is characterized as an extraordinary remedy. Id. Nevertheless,
the decision to award such relief is within the discretion of the court. Id.
III. DISCUSSION
A. Likelihood of Success on the Merits
The first factor the court considers in its resolution of Cashman’s motion for a TRO and a
preliminary injunction is whether Cashman is likely to succeed on the merits of its bid protest.
Here, Cashman’s first protest ground is that the SBA’s issuance of the COC fails the arbitrary
and capricious standard of review. Cashman’s second protest ground is that the SBA violated its
own procedures, established by regulation, for issuing a COC. Third, Cashman asserts that the
Corps’ award of the contract, in light of these errors committed by the SBA, was itself arbitrary
and capricious. This third protest ground, as noted by the parties, succeeds or fails depending on
the merits of the first two challenges raised by Cashman. See, e.g., Pl.’s Reply 23 n.12 (“If the
Court concludes that Cashman is likely to prevail on Count I or II, then it must find that
Cashman is likely to prevail on Count III, as Count III argues that if the issuance of the COC was
flawed, then the award [by the Corps] was necessarily flawed as well.”). Here, therefore, the
court need only address Cashman’s first two protest grounds, neither of which is likely to
succeed on the merits.
1. Issuance of a COC for Trade West by the SBA
Based on the demands of the dredging contract and Trade West’s resources and
experience as a contractor, Cashman first asserts that “the SBA had no rational basis for issuing
the COC.” Pl.’s Mot. 2. In other words, Cashman argues that the SBA’s decision that Trade
West satisfied the responsibility criteria applicable to this procurement was not rational. This
argument is not likely to succeed on the merits because, pursuant to persuasive authority, the
SBA’s issuance of a COC to Trade West is not subject to review under this court’s bid protest
jurisdiction.
Only one decision by this court, Sonoran Technology & Professional Services, LLC v.
United States, 133 Fed. Cl. 401 (2017), examines this specific aspect of the court’s bid protest
jurisdiction, and the Sonoran holding directly addresses Cashman’s first protest ground. The
Honorable Thomas C. Wheeler reviewed the most relevant authorities and concluded that “based
on applicable regulations and case law, the Court . . . does not have jurisdiction to review the
SBA’s issuance of a COC to [the awardee].” Id. at 404. The court has reviewed the authorities
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cited in Sonoran, and the authorities cited by Cashman, and concludes that Cashman cannot
challenge the rationality of the SBA’s issuance of the COC in this court.
It is important to distinguish between a protest brought by a small business concern that
contests the refusal of the SBA to issue a COC in its favor, which is within this court’s bid
protest jurisdiction, and an attempt by a competitor to invalidate a COC issued by the SBA for a
small business that is then awarded a government contract, which is not. Id. Cashman, in the
court’s view, places too much emphasis on the former category of court decisions, which are
inapposite to the jurisdictional analysis required here. As for the latter category of decisions,
Cashman has not overcome the persuasive authority of Sonoran, as explained below.
Cashman suggests that a 1986 federal district court decision, which opined that the
district court could exercise bid protest jurisdiction over a challenge to the SBA’s issuance of a
COC, contradicts the jurisdictional analysis in the Sonoran decision. See Ulstein Mar., Ltd. v.
United States, 646 F. Supp. 720 (D.R.I. 1986), aff’d, 833 F.2d 1052 (1st Cir. 1987). However,
Cashman makes no attempt to compare the bid protest jurisdiction of this court in 2020 with the
district court’s bid protest jurisdiction in 1986. Further, neither the Ulstein decision, nor its
affirmance by the United States Court of Appeals for the First Circuit, can substitute for the
guidance provided by cases decided by the United States Court of Appeals for the Federal
Circuit (“Federal Circuit”), whose precedent binds this court. The Sonoran decision relied
extensively on a precedential decision of the Federal Circuit. 133 Fed. Cl. at 404 (citing Cavalier
Clothes, Inc. v. United States, 810 F.2d 1108, 1111 & n.6 (Fed. Cir. 1987)). Cashman, in its
briefs, necessarily acknowledges the precedential guidance provided by Cavalier Clothes. The
Sonoran decision applies this binding precedent, is more persuasive than Ulstein, and will be
followed here.
Cashman also attempts to undermine Sonoran by noting that this court once exercised
jurisdiction over a challenge to the SBA’s issuance of a COC. See Lawson Envtl. Servs., LLC v.
United States, 126 Fed. Cl. 233 (2016), aff’d, 678 F. App’x 1026 (Fed. Cir. 2017) (Table). The
assertion of jurisdiction is contained in one sentence in the Lawson opinion, however, with no
distinction drawn between the type of SBA decision being challenged, i.e., refusing to issue a
COC, or issuing a COC. Id. at 249. Both of the decisions relied on in Lawson were examples of
this court reviewing the SBA’s refusal to issue a COC to the protestor. Id. (citing CSE Constr.
Co. v. United States, 58 Fed. Cl. 230, 248 (2003); Stapp Towing Inc. v. United States, 34 Fed.
Cl. 300, 306 (1995)). As noted in Sonoran, the Lawson decision includes no substantive analysis
of the court’s bid protest jurisdiction over challenges to the SBA’s issuance of a COC, in
particular. Sonoran, 133 Fed. Cl. at 404 n.2. For these reasons, the court follows Sonoran, not
Lawson.
Finally, Cashman argues that the fact that the GAO will consider challenges to the
issuance of a COC in certain circumstances is an indication that such an issuance is reviewable
here as well. It is well established, however, that the bid protest jurisdiction of this court is not
the same as the GAO’s authority to consider bid protests. See, e.g., Phoenix Air Grp., Inc. v.
United States, 46 Fed. Cl. 90, 101 (noting that the statutory grants of bid protest jurisdiction are
different for the two bid protest fora), appeal dismissed, 243 F.3d 555 (Fed. Cir. 2000). It is also
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clear from the GAO decisions cited by Cashman in its reply brief that the GAO generally follows
its own precedent and regulations, not Federal Circuit precedent. See, e.g., Integrity Mgmt.
Servs., Inc., B-283094.2, 2000 CPD ¶ 67 (Comp. Gen. May 3, 2000) (citing 4 C.F.R.
§ 21.5(b)(2) and GAO decisions for its jurisdictional analysis).
The court does not find that the GAO’s analysis of its own bid protest jurisdiction, which
does not rely on precedent that is binding on this court, is more persuasive than the jurisdictional
analysis in Sonoran. Following Sonoran, Cashman’s first protest ground, which challenges the
rationality of the SBA’s issuance of the COC to Trade West, is not within this court’s bid protest
jurisdiction. 4 The court concludes, therefore, that Cashman does not have a substantial
likelihood of success on the merits of this protest ground.
2. Procedure Followed by the SBA in Issuing a COC for Trade West
Cashman next contends that the award to Trade West should be invalidated because the
SBA did not follow its own procedures before it issued the COC. Factually, this is a
straightforward dispute that focuses on the period of time between the referral to the SBA of the
Corps’ Determination of Contractor Nonresponsibility on December 20, 2019, and the SBA’s
issuance of the COC on January 24, 2020. The legal significance of the communications
between the SBA and the Corps during this time period is also fairly straightforward. But before
turning to the factual record and the parties’ arguments founded on that record, the court
addresses a threshold legal question: Does the court possess bid protest jurisdiction to consider
whether a regulation has been violated if the regulation is not for the bidders’ benefit? The court
must answer that question in the affirmative.
Each party has discussed this threshold legal question although the parties’ arguments are
somewhat cursory on this topic. The legal inquiry into whether a regulation was established to
benefit bidders was articulated by the United States Court of Claims: “Not every regulation is
established for the benefit of bidders as a class, and still fewer may create enforceable rights for
the awardee’s competitors.” Keco Indus., Inc. v. United States, 492 F.2d 1200, 1206 (Ct. Cl.
1974) (citing Chris Berg, Inc. v. United States, 426 F.2d 314, 317 (Ct. Cl. 1970)). However, the
Keco analysis of bid protest errors, to the extent that analysis contradicts the current standard, is
no longer the law of the Federal Circuit. E.g., Res. Conservation Grp., LLC v. United States,
597 F.3d 1238, 1242 n.7 (Fed. Cir. 2010) (citing Emery Worldwide Airlines, Inc. v. United
States, 264 F.3d 1071, 1078 (Fed. Cir. 2001); Keco, 492 F.2d at 1203-04); Am. Fed’n of Gov’t
4
Cashman argues that the Sonoran decision erred in its interpretation of Cavalier
Clothes. The court believes, however, that Judge Wheeler correctly applied the guidance
provided by Cavalier Clothes to the issue of this court’s bid protest jurisdiction over a challenge
to the SBA’s issuance of a COC, under the facts of that case. The court notes that an
administrative record was filed in that protest before Judge Wheeler issued the Sonoran decision.
133 Fed. Cl. at 403. The limited facts before the court here, where the administrative record has
not yet been filed, do not indicate that the circumstances of this protest are distinguishable from
the facts in Sonoran. Accordingly, the court declines to rule on the jurisdictional issues at this
juncture without the benefit of an opportunity to review a complete administrative record.
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Employees v. United States, 258 F.3d 1294, 1300 (Fed. Cir. 2001) (citing 28 U.S.C. § 1491(b)(4)
(2018); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1331-33
(Fed. Cir. 2001); Keco, 492 F.2d at 1203-04).
Thus, it is no longer appropriate to inquire, in the bid protest context, into the question of
whether a regulation was established to benefit bidders. See Impresa, 238 F.3d at 1333 (“[C]ases
such as Keco and [Trilon Educational Corp. v. United States, 578 F.2d 1356 (Ct. Cl. 1978),] are
based on the implied contract theory of recovery and do not govern [Administrative Procedure
Act, 5 U.S.C. § 706,] review of contracting officer decisions.”). The burden is simply for “the
disappointed bidder [to] show ‘a clear and prejudicial violation of applicable statutes or
regulations.’” Id. (quoting Latecoere Int’l, Inc. v. U.S. Dep’t of Navy, 19 F.3d 1342, 1356 (11th
Cir. 1994); Kentron Haw., Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973)). Here,
therefore, the court does not inquire into the intended beneficiaries of the regulation alleged by
Cashman to have been violated by the SBA.
The regulation in question is 13 C.F.R. § 125.5, titled “What is the Certificate of
Competency Program?” Portions of this regulation identify the steps the SBA must follow
regarding certain notifications due the procuring agency before the SBA issues a COC. One set
of steps applies to contracts of a value between $100,000 and $25 million. See 13 C.F.R.
§ 125.5(h) (2019). At this level of contract value, the SBA must contact the procuring agency’s
CO.
In this procurement, the CO for the Corps is Ms. Heather Turner. According to the
documents supplied by defendant, the SBA’s communications between December 20, 2019, and
January 24, 2020, were with Ms. Turner. According to Cashman, the SBA appears to have
followed, at least in most respects, the notification protocol set forth in 13 C.F.R. § 125.5(h),
which is for contracts of a lesser monetary value than Trade West’s contract with the Corps. 5
For contracts of a value above $25 million, the SBA is required to follow the steps
identified in 13 C.F.R. § 125.5(j) before issuing a COC. Cashman alleges that the SBA did not
comply with the following provisions of the regulation:
(1) Prior to taking final action [on a COC], SBA Headquarters will contact the
contracting agency at the secretariat level or agency equivalent and afford it the
following options:
(i) Ask SBA Headquarters to suspend the case so that the agency can meet with
Headquarters personnel and review all documentation contained in the case file;
or
5
Cashman argues that the SBA representative providing notification to Ms. Turner was
not identified as an Area Director, the type of official required to provide notification to the
procuring agency under 13 C.F.R. § 125.5(g)-(h).
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(ii) Submit to SBA Headquarters for evaluation any information which the
contracting agency believes has not been considered.
13 C.F.R. § 125.5(j) (2019). Ms. Turner, the CO, does not appear to be at the “secretariat level
or agency equivalent”; thus, in Cashman’s view, for this and other reasons the SBA’s
communications with the Corps fail to satisfy the procedural requirements of 13 C.F.R.
§ 125.5(j)(1). 6
Defendant does not insist, on these facts, that the SBA complied with the procedural
requirements of 13 C.F.R. § 125.5(j)(1). Instead, defendant points to the communications with
Ms. Turner and concludes that the Corps was given adequate notice of the SBA’s intention to
issue a COC and notice of the Corps’ options should it wish to oppose that action. Further,
defendant argues that the jurisdictional holding in Sonoran, regarding challenges to the rationale
of the issuance of a COC, should also apply to challenges to procedural defects in the issuance of
a COC. In other words, it is the government’s position that there is no jurisdiction in this court
for Cashman’s second protest ground, just as there is no jurisdiction in this court for Cashman’s
first protest ground.
The court agrees with defendant that the SBA provided adequate notice to the Corps.
Whether the holding in Sonoran should be extended to bar challenges to procedural defects in the
SBA’s issuance of a COC is a different question. Although it would be a small leap, logically, to
extend the Sonoran holding to exclude from this court’s bid protest jurisdiction challenges to
defects in the SBA’s notification procedures as it issues a COC, the court need not decide that
issue. Here, it is more important that Cashman has not shown that it was prejudiced by the lack
of formality in the notification the SBA provided the Corps.
It is the bid protest plaintiff’s burden to show that a prejudicial violation of a procurement
regulation occurred. Impresa, 238 F.3d at 1333. Ms. Turner’s communications with her
colleagues at the Corps show that the Corps was on notice, before January 24, 2020, that it could
oppose the impending issuance of the COC. Further delays to contract performance, beyond the
delay occasioned by Cashman’s agency-level protest, were weighed against the potential benefits
of questioning and/or resisting the SBA’s competency finding. The Corps had already
communicated some of its most urgent concerns, through Ms. Turner, to the SBA between
January 15, 2020, and January 23, 2020, which did not persuade the SBA to decline to issue a
COC. The Corps knew that the SBA Headquarters would make the final decision as to the COC,
and that intervening in that decisional process would cost valuable time. The Corps made an
informed decision and did not oppose the COC.
6
Cashman also argues that the SBA did not provide clear and detailed information
regarding the options available to the Corps should it decide to oppose the COC. The CO,
however, appears to have had adequate notice regarding the options available to the Corps. The
CO was informed, for example, that the Corps could provide additional information to the SBA
should the Corps oppose the COC.
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Although Cashman argues that a formal notification, in compliance with 13 C.F.R.
§ 125.5(j)(1), would have led to a different result, the record shows no indication that the Corps
would have responded any differently. Cashman must show that the violation of 13 C.F.R.
§ 125.5(j)(1) prejudiced it, or, in other words, that it might have received the contract award in
the place of Trade West if the violation had not occurred. That burden has not been met, and
does not appear likely to be met once the merits of this protest have been briefed. Absent “a
showing of harm specific to the asserted error, there is no injury to redress.” Labatt Food Serv.,
Inc. v. United States, 577 F.3d 1375, 1381 (Fed. Cir. 2009).
In addition, the flaws in the notification provided to the Corps by the SBA constitute only
a de minimis error under the circumstances of this procurement. De minimis errors are not
enough to overturn a contract award. Grumman Data Sys. Corp. v. Widnall, 15 F.3d 1044, 1048
(Fed. Cir. 1994). Minor flaws in notification procedures that have no substantive effect on the
party receiving the notification are best characterized as harmless defects. Cf. Decker & Co. v.
West, 76 F.3d 1573, 1579 (Fed. Cir. 1996) (stating that “harm should accompany a defect in an
otherwise proper termination notice in order for the contractor to seek relief based on that defect”
(citing Phila. Regent Builders, Inc. v. United States, 634 F.2d 569, 572-73 (Ct. Cl. 1980))).
Because Cashman has identified only a de minimis error regarding 13 C.F.R. § 125.5(j)(1), and
has not shown that this error prejudiced it, its second protest ground does not have a likelihood of
success on the merits.
B. Irreparable Injury
With respect to irreparable injury, the second injunctive relief factor, a protestor “must
show that without a preliminary injunction it will suffer irreparable harm before a decision can
be rendered on the merits.” Akal Sec., Inc. v. United States, 87 Fed. Cl. 311, 319 (2009); accord
IBM Corp. v. United States, 118 Fed. Cl. 677, 683-84 (2014). The Court of Federal Claims has
recognized that a lost opportunity to compete for a contract—and the attendant inability to obtain
the profits expected from the contract—can constitute an irreparable injury. See, e.g., Akal Sec.,
87 Fed. Cl. at 319. Cashman argues that it will lose the opportunity to compete for the dredging
contract, and that it will lose the profits it would have gained from the contract, “should the
Corps allow Trade West to move forward with performance during the pendency of this protest.”
Pl.’s Mot. 22.
Defendant and Trade West argue that if Cashman prevails in this protest, it is highly
likely that Cashman, as the bidder with the next lowest price, will not only compete for the
dredging contract, it will be awarded the contract. Thus, in their view, there is no irreparable
harm to Cashman in the absence of preliminary injunctive relief. In its reply brief, Cashman
notes that the government has not waived its right to later argue that its investment in Trade
West’s contract performance should be weighed against the issuance of a permanent injunction
in favor of Cashman.
The court concludes that the IFB effectively nullifies the irreparable harm posited by
Cashman, because Cashman stands next in line for the dredging contract if it prevails on the
merits of its protest. Further, should the government invoke its investment in Trade West’s
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continuing contract performance as a harm weighing against the issuance of a permanent
injunction of Trade West’s contract, the court would regard that investment as flowing from the
government’s decision to proceed with contract performance, at its own risk, despite Cashman’s
protest in this forum. See Peraton Inc. v. United States, 144 Fed. Cl. 59, 72 (2019) (citing GTA
Containers, Inc. v. United States, 103 Fed. Cl. 471, 491 (2012)) (noting that when the
government chooses not to voluntarily stay performance during a bid protest, the foregone
investment in an enjoined, terminated contract is a calculated risk of the government’s own
choosing). Because Cashman has not shown that “it will suffer irreparable harm before a
decision can be rendered on the merits,” Akal Sec., 87 Fed. Cl. at 319, the second injunctive
relief factor weighs against the issuance of a TRO and preliminary injunction.
C. Balance of Hardships
The third injunctive relief factor is the balance of the hardships among the parties. In
addition to considering whether a protestor would suffer an irreparable injury absent injunctive
relief, “[t]he court must balance the harm plaintiff would suffer without preliminary relief against
the harm that preliminary relief would inflict on defendant and defendant-intervenor. Generally,
if the balance tips in favor of defendant, a preliminary injunction is not appropriate.” Id. at 320
(citations omitted). Here, as stated above, the court sees no hardship for Cashman if preliminary
injunctive relief is withheld at this time.
As to the other parties, the government argues that the Corps would be greatly harmed by
a preliminary injunction of Trade West’s contract: “Any delay now . . . would consume a large
part of the viable construction season and cause delays that would cascade through all three New
Soo Lock construction phases. . . . [A] delay in New Soo Lock construction could have
catastrophic results.” Def.’s Resp. 11 (citing Def.’s App. 3). Trade West persuasively argues
that it would be harmed if its mobilization of employees and equipment were halted, because part
of the prime construction season would be lost. Defendant and Trade West have demonstrated
the hardships they would experience if a preliminary injunction issues at this time.
In its reply brief, Cashman cites System Studies & Simulation, Inc. v. United States, 146
Fed. Cl. 186, 203 (2019), for the proposition that only in exceptional circumstances will delays
in contract performance suffice to avoid an injunction. Here, however, all parties acknowledge
that the New Soo Lock dredging contract is part of a large and critical upgrade to navigation
through the Great Lakes. Delays to the dredging contract at issue in this protest would be
exceptionally harmful in light of the parties’ representations. Here, the court sees the balance of
the hardships as weighing heavily against the issuance of preliminary injunctive relief.
D. Public Interest
The fourth and final injunctive relief factor is the public interest. When “employing the
extraordinary remedy of injunction,” a court “should pay particular regard for the public
consequences” of doing so. Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). It is
undisputed that there is a strong public interest in safeguarding the fairness of government
procurements. Bona Fide Conglomerate, Inc. v. United States, 96 Fed. Cl. 233, 242 (2010)
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(noting the “overriding public interest in preserving the integrity of the procurement process”).
However, “the public interest is also served when the court does not interfere in a procurement
absent a legally compelling reason to do so.” Akal Sec., 87 Fed. Cl. at 321.
Cashman argues that it is in the public interest for the SBA to follow its regulations and
to only issue a COC when there is a rationale that can withstand this court’s scrutiny. Defendant
contends that a preliminary injunction is not in the public interest, because there was no violation
of procurement laws in the award of the dredging contract to Trade West, and because Trade
West’s dredging contract is of critical importance and should not be delayed. Trade West argues
that it is in the public interest to support small businesses such as Trade West, and notes further
that taxpayers will realize considerable savings because the Corps chose the lowest-priced bid on
the dredging contract.
Cashman makes two principal points in its reply brief. First, Cashman views the harm
caused by a delay of contract performance on the dredging contract to be exaggerated by the
government. Second, Cashman suggests that it is not in the public interest to have an
ill-prepared small business concern attempt to perform a critical project that it cannot
successfully complete.
The court concludes, having considered all of the parties’ arguments and the exhibits
attached to their briefs, that the public interest factor also weighs heavily against the issuance of
preliminary injunctive relief in this protest. There is a stronger public interest in the continued
performance of the dredging contract, especially where, as here, Cashman will be able to fairly
compete for and likely win the dredging contract if its arguments on the merits prevail. Further,
it is difficult to see the public interest in a preliminary injunction where, as here, plaintiff’s
success on the merits is so unlikely. See Wind Tower Trade Coal. v. United States, 741 F.3d 89,
101 (Fed. Cir. 2014) (“[I]t is [not] in the public interest to issue preliminary injunctions in
actions where there is no likelihood of success on the merits.” (quoting and affirming Wind
Tower Trade Coalition v. United States, 904 F. Supp. 2d 1349, 1359 (Ct. Int’l Trade 2013))).
IV. CONCLUSION
The court has considered all of the parties’ arguments. To the extent not discussed
herein, they are unpersuasive, without merit, or are unnecessary for resolving the matters
currently before the court.
Cashman has not shown a likelihood of success on the merits. Further, the irreparable
harm, balance of hardships, and public interest factors all weigh in favor of defendant and Trade
West. Therefore, the court DENIES Cashman’s motion for a temporary restraining order and a
preliminary injunction. The court also DENIES defendant’s and Trade West’s motions to
dismiss as premature. The parties shall file a joint status report suggesting a schedule for further
proceedings no later than Monday, April 20, 2020.
The court has filed this ruling under seal. The parties shall confer to determine proposed
redactions that are agreeable to all parties. Then, no later than Monday, April 20, 2020, the
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parties shall file a joint status report under seal indicating their agreement with the proposed
redactions and attaching a complete copy of the court’s opinion with all redactions clearly
indicated. The parties also shall, by the same date, file any redacted versions of documents
they filed under seal in this case to the extent such redacted versions have not already been filed.
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Chief Judge
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