Accelgov, LLC v. United States ( 2021 )

In the United States Court of Federal Claims
No. 21-1647C
Filed: August 13, 2021
ACCELGOV, LLC,
Plaintiff,
v.
THE UNITED STATES,
Defendant,
and
UNITED SUPPORT SERVICES, INC.,
Intervenor-Defendant.
ORDER DENYING INJUNCTION
Before the Court is AccelGov, LLC’s (“AccelGov”) Motion for a Temporary Restraining
Order and Preliminary Injunction. (Mot. for TRO, ECF No. 29). AccelGov filed its Complaint in
this protest on August 2, 2021. (ECF No. 1). The United States filed the Administrative Record
on August 6 (AR, ECF No. 24), and AccelGov filed an Amended Complaint on August 8, 2021.
(Am. Compl., ECF No. 28). With its Amended Complaint, AccelGov also renewed its earlier
motion for a preliminary injunction and moved for a Temporary Restraining Order. (Mot. for
TRO). The Court held oral argument on August 12, 2021.
AccelGov seeks to enjoin the United States Marine Corps (the “Corps”) from proceeding
with a sole source award to Intervenor-Defendant United Support Services, Inc. (“USS”) during
the pendency of this protest. (Mot. for TRO at 1). In support of its Motion, AccelGov alleges that
the proposed bridge contract is unlawful under Section 8(a) of the Small Business Act and the
administering regulations. (Id. at 9). The United States refutes AccelGov’s allegations on their
merits. But more importantly to this decision, the United States credibly asserts substantial
national security interests that would be endangered or impaired if the Court ordered an
interlocutory injunction. (USA Resp. at 21–24, ECF No. 33).
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 entitlement to emergency or preliminary injunctive relief, the
plaintiff must establish: (1) a likelihood of success on the merits; (2) irreparable harm is likely to
befall the plaintiff in the absence of injunctive relief; (3) the balance of hardships tips in the
plaintiff’s favor; and (4) the public interest favors the grant of injunctive relief. Id. No single
factor is dispositive. “[T]he weakness of the showing regarding one factor may be overborne by
the strength of the others. If the injunction is denied, the absence of an adequate showing with
regard to any one factor may be sufficient, given the weight or lack of it assigned the other
factors.” FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993). Additionally, when
considering injunctive relief in cases that may implicate national security interests of the United
States, Congress has mandated that the Court “give due regard to the interests of national defense
and national security and the need for expeditious resolution of the action.” 28 U.S.C. §
1491(b)(3).
The challenged procurement seeks to award a short-term bridge contract for information
technology services for the Marine Corps. (Am. Compl. at 3). That contract, the United States
avers, implicates “profound national security concerns” such that even if the Court were to agree
with AccelGov’s theories of liability and irreparable harm, the Court should find that both the
public interest in national security and the balance of hardships weigh against injunctive relief.
(USA Resp. at 21–22). The Court agrees with the United States and expresses no opinion as to
the likelihood AccelGov’s challenge will succeed on the merits—a question ripe for resolution in
the coming days. (See Sched. Order, ECF No. 14). Even if AccelGov were likely to succeed, its
identified injuries are financial and ethereal—the “loss of an opportunity to fairly compete for an
award and enjoy the resulting benefits.” (Mot. for TRO at 16). To be clear, the Court recognizes
that these are cognizable injuries. But they cannot outweigh the tangible risks to national security
the United States has credibly put forth in some detail. 1 (See Decl. of Ryan Thompson, ECF No.
33-2); see also Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 164 (1951) (describing
national security interests as “the greatest of all public interests[.]”); Wayte v. United States, 470
U.S. 598, 611 (1985) (“Few interests can be more compelling than a nation’s need to ensure its
own security”).
Accordingly, the Court ORDERS the following:
(1) AccelGov’s Motion for a Temporary Restraining Order (ECF No. 29) is
DENIED.
(2) AccelGov’s Motion for a Preliminary Injunction (ECF No. 3) is DENIED.
IT IS SO ORDERED.
s/ David A. Tapp
DAVID A. TAPP, Judge
1
The Court is mindful of recent and well-documented cybersecurity threats and breaches to
private companies, critical infrastructure, and agencies of the United States. See Center for
Strategic & International Studies, Significant Cyber Incidents (accessed and archived August 13,
2021, available at: https://perma.cc/XKZ6-A3AS).
2