C&E Services, Inc. v. United States

In the United States Court of Federal Claims
No. 22-366C

(E-Filed: May 23, 2022) 1

)
C&E SERVICES, INC., )
)
Plaintiff, )
)
v. ) Competition in Contracting Act;
) 31 U.S.C. § 3553; Stay of
THE UNITED STATES, ) Performance; Preliminary Injunction;
) Bid Protest.
Defendant, )
)
and )
)
KADIAK, LLC, )
)
Intervenor-defendant. )
)

Kevin P. Connelly, Washington, DC, for plaintiff. Kelly E. Buroker and Tamara Droubi,
of counsel.

Vincent D. Phillips, Jr., Senior Trial Counsel, with whom were Brian M. Boynton,
Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and
Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, for defendant. Katherine A. Allen
and Rachel McGuane, United States Department of the Treasury, Bureau of Engraving
and Printing, of counsel.

1
This opinion was filed under seal on April 28, 2022. See ECF No. 37. The parties were
invited to identify source selection, propriety, or confidential material subject to deletion on the
basis that the matter is protectived or privileged. No redactions were proposed by the parties.
See ECF No. 40 (joint status report). Thus, the sealed and the public versions of this opinion are
identical, except for the publication date and this footnote.
Devon E. Hewitt, Tysons Corner, VA, for intervenor-defendant. 2

OPINION AND ORDER

CAMPBELL-SMITH, Judge.

This bid protest involves a challenge to the decision by the United States
Department of the Treasury, Bureau of Engraving and Printing (BEP or the agency) to
override an automatic stay pursuant to the Competition in Contracting Act (CICA), 31
U.S.C. § 3553(d)(3)(C)(i). See ECF No. 34 at 2 (corrected first amended complaint).

Presently before the court is plaintiff’s motion for a preliminary injunction, which
plaintiff filed on April 11, 2022. 3 See ECF No. 31. Defendant filed a response to the
motion on April 13, 2022, see ECF No. 35, and plaintiff filed a reply in support of the
motion on April 19, 2022, see ECF No. 36.

The motion is now fully briefed and ripe for decision. The parties did not request
oral argument, and the court deems such argument unnecessary. The court has
considered all of the parties’ arguments and addresses the issues that are pertinent to the
court’s ruling in this opinion. For the following reasons, the motion for a preliminary
injunction is DENIED.

I. Background

Plaintiff “is in the business of providing wastewater treatment and pretreatment to
government and commercial customers.” ECF No. 34 at 1. The BEP has contracted with
plaintiff for approximately twenty-four years. See id. at 5.

On March 23, 2022, plaintiff filed a protest action before the Government
Accountability Office (GAO), challenging the agency’s decision to award Contract No.
2031ZA22C00005 to intervenor-defendant. See ECF No. 34 at 2, 3. Plaintiff’s GAO
filing triggered an automatic CICA stay of performance under the contract. See id. at 4.

2
Intervenor-defendant did not file any documents relevant to the motion presently before
the court, but the court includes its counsel for completeness.
3
On April 1, 2022, the court set a schedule to govern the filing and briefing of plaintiff’s
motion for preliminary injunction. See ECF No. 23 at 2. Plaintiff timely filed its motion, which
it titled “Plaintiff’s Motion for a Preliminary Injunction.” ECF No. 31. The memorandum
attached to plaintiff’s motion, however, purports to seek declaratory, preliminary, and permanent
injunctive relief. See ECF No. 31-1 at 1, 30. The court will confine its analysis in the present
decision to the propriety of preliminary injunctive relief, as that is the only motion that has been
scheduled by the court. The court will consider an award of declaratory and permanent
injunctive relief at the procedurally appropriate time.
2
On March 29, 2022, the agency notified plaintiff that it intended to override the CICA
stay and allow performance to proceed. See id.

On March 31, 2022, plaintiff filed the instant protest challenging the agency’s
decision to override the CICA stay. See ECF No. 1 (complaint). At the time that the
plaintiff filed its initial complaint, it had not yet received any documentation related to
the override decision. See id. at 8.

The court convened an initial status conference with the parties on March 31,
2022. See ECF No. 10 (order memorializing the status conference). During the
conference, counsel for defendant transmitted to all participants, by email, a copy of the
contracting authority’s documented justification for the override decision dated March
28, 2022. See id. at 2. The document is concise, and consists, in its entirety, of the
following:

In accordance with FAR 33.104(c)(2), as the Head of Contracting Authority
(HCA) for the Department of the Treasury, Bureau of Engraving and Printing
(BEP), I find that it is in the best interest of the United States for Kadiak,
LLC[] to continue performance on Contract No. 2031ZA22C00005 to ensure
sufficient contractor staffing and environmentally safe operation of BEP’s
Wastewater and Storm Water Program, pending the final decision by the
Government Accountability Office (GAO).

BEP awarded Contract No. 2031ZA22C00005 to Kadiak, LLC, an 8(a)
Alaskan Native Company, effective November 1, 2021. The contract is
valued at $17,826,641.98, including base and all options. Kadiak, LLC is
providing essential services to BEP, including managing, operating,
maintaining supplies, performing maintenance, and providing technical
support for BEP’s Wastewater and Storm Water Program at the District of
Columbia Currency Facility, in Washington, DC.

Sufficient contractor staffing and environmentally safe operation of the
BEP’s Wastewater and Storm Water Program is critical to accomplishing
BEP’s mission of manufacturing the nation’s currency and to its ability to
produce Federal Reserve notes to meet the increased volume of the Yearly
Currency Order. Any interruption to BEP’s Wastewater and Storm Water
Program would negatively impact BEP’s ability to manufacture and produce
the Federal Reserve notes in a timely and environmentally safe manner and
may potentially endanger the United States’ currency supply to the Federal
Reserve System.

See ECF No. 34-1 at 2.

3
 Plaintiff alleges that it “has performed this contract work at BEP for 24 years
without ever impacting BEP’s ability to manufacture and produce the Federal Reserve
notes in a timely and environmentally safe manner.” ECF No. 34 at 5. In support of this
assertion, plaintiff references the April 7, 2022 declaration of Carl Biggs, plaintiff’s
president, owner, and general manager. See id. (citing ECF No. 34-2 at 4). Plaintiff also
disagrees with the agency’s assessment that intervenor-defendant was prepared to
perform under the contract at the time of the override decision. See id.

Plaintiff further alleges that, after this protest action was initiated, the agency
extended the contract under which plaintiff is presently performing through April 2022,
rather than allow intervenor-defendant to assume performance on April 1, 2022. See id.
According to plaintiff, the agency chose to extend the present contract because
intervenor-defendant “did not have the necessary personnel” to begin performance
because “the only individuals performing the necessary BEP work” are plaintiff’s
employees. Id. (citing ECF No. 34-2 at 5-6).

In response to plaintiff’s motion, defendant produced the declaration of Patricia
M. Greiner, the Deputy Director and Chief Administrative Officer and Head of
Contracting Authority for the agency. See ECF No. 35-1 at 1-5. Ms. Greiner refers to a
second declaration, from Myron Hodge, an Environmental Specialist with the agency, for
documentation of the concerns that led to her decision to override the CICA stay at issue
in this case. See id. at 4.

Mr. Hodge states that plaintiff “has been operating with a less than full staff on
this contract for the entire period of performance,” which has “compromised” plaintiff’s
ability to meet its obligations. ECF No. 35-2 at 3. Mr. Hodge further represents that
plaintiff’s inadequate staffing created a risk to environmental and personal safety. See id.
at 4. Mr. Hodge then explains a series of performance failures on plaintiff’s part, and
attaches a number of exhibits as proof of the same. See id. at 4-250.

In reply, plaintiff offers a second declaration from Mr. Biggs, dated April 19,
2022, in which Mr. Biggs counters Mr. Hodge’s contentions that plaintiff was under-
staffed and under-performing. See ECF No. 36-1. Mr. Biggs also explains the
irreparable harm—lost personnel, lost opportunities to compete, and lost revenue—that
plaintiff alleges it will suffer absent the requested injunctive relief. See id. at 6-7.

II. Legal Standards

In its corrected first amended complaint, plaintiff invokes this court’s bid protest
jurisdiction. See ECF No. 34 at 7. This court’s bid protest jurisdiction is based on the
Tucker Act, which gives the court authority:

4
 to render judgment on an action by an interested party objecting to a
solicitation by a Federal agency for bids or proposals for a proposed contract
or to a proposed award or the award of a contract or any alleged violation of
statute or regulation in connection with a procurement or a proposed
procurement . . . . without regard to whether suit is instituted before or after
the contract is awarded.

28 U.S.C. § 1491(b)(1). The Tucker Act also states that the court may grant “any relief
that the court considers proper, including . . . injunctive relief.” 28 U.S.C. § 1491(b)(2).

To establish jurisdiction, a plaintiff must demonstrate that it is an “interested
party.” 28 U.S.C. § 1491(b)(1). The United States Court of Appeals for the Federal
Circuit has held that the “interested party” requirement “imposes more stringent standing
requirements than Article III.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359
(Fed. Cir. 2009). Though the term “interested party” is not defined by the statute, courts
have construed it to require that a protestor “establish that it ‘(1) is an actual or
prospective bidder and (2) possess[es] the requisite direct economic interest.’” See id.
(quoting Rex Serv. Corp. v. United States, 448 F.3d 1305, 1308 (Fed. Cir. 2006))
(alteration in original). Although “standing is not often discussed at length in CICA stay
override cases,” the court makes the same inquiry into actual or prospective bidder status
and direct economic interest in such circumstances. PMTech, Inc. v. United States, 95
Fed. Cl. 330, 348 (2010).

Once jurisdiction is established, the court’s analysis of a “bid protest proceeds in
two steps.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005). First,
the court determines, pursuant to the Administrative Procedure Act standard of review,
5 U.S.C. § 706, whether the “agency’s action was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with [the] law.” Glenn Def. Marine (ASIA),
PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir. 2013) (citing 28 U.S.C.
§ 1491(b)(4) (adopting the standard of 5 U.S.C. § 706)). If the court finds that the agency
acted in error, the court then must determine whether the error was prejudicial. See
Bannum, 404 F.3d at 1351.

To establish prejudice, “the protester must show ‘that there was a substantial
chance it would have received the contract award but for that error.’” Alfa Laval
Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir. 1999) (quoting
Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed. Cir. 1996)). “In other words,
the protestor’s chance of securing the award must not have been insubstantial.” Info.
Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003)
(citations omitted). The substantial chance requirement does not mean that plaintiff must
prove it was next in line for the award but for the government’s errors. See Sci. & Mgmt.
Res., Inc. v. United States, 117 Fed. Cl. 54, 62 (2014); see also Data Gen. Corp. v.
Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996) (“To establish prejudice, a protester is not

5
required to show that but for the alleged error, the protester would have been awarded the
contract.”). But plaintiff must, at minimum, show that “had the alleged errors been
cured, . . . ‘its chances of securing the contract [would have] increased.’” Precision Asset
Mgmt. Corp. v. United States, 125 Fed. Cl. 228, 233 (2016) (quoting Info. Tech., 316
F.3d at 1319).

Given the considerable discretion allowed contracting officers, the standard of
review is “highly deferential.” Advanced Data Concepts, Inc. v. United States, 216 F.3d
1054, 1058 (Fed. Cir. 2000). As the Supreme Court of the United States has explained,
the scope of review under the “arbitrary and capricious” standard is narrow. See
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974). “A
reviewing court must ‘consider whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment,’” and “‘[t]he court
is not empowered to substitute its judgment for that of the agency.’” Id. (quoting
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)); see also Weeks
Marine, 575 F.3d at 1368-69 (stating that under a highly deferential rational basis review,
the court will “sustain an agency action ‘evincing rational reasoning and consideration of
relevant factors’”) (citing Advanced Data Concepts, 216 F.3d at 1058).

B. Preliminary Injunctive Relief

The Federal Circuit has held:

To obtain the extraordinary relief of an injunction prior to trial, the movant
carries the burden to establish a right thereto in light of the following factors:
1) that the movant is likely to succeed on the merits at trial; 2) that it will
suffer irreparable harm if preliminary relief is not granted; 3) that the balance
of the hardships tips in the movant’s favor; and 4) that a preliminary
injunction will not be contrary to the public interest.

FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (citations omitted). When
considering these factors, “the weakness of the showing regarding one factor may be
overborne by the strength of the others,” while “the absence of an adequate showing with
regard to any one factor may be sufficient . . . to justify the denial” of the preliminary
injunction. Id. (citations omitted). The Circuit also notes, however that “[a]bsent a
showing that a movant is likely to succeed on the merits,” it is unclear “whether the
movant can ever be entitled to a preliminary injunction unless some extraordinary injury
or strong public interest is also shown.” 4 Id.
4
The United States Court of Appeals for the Federal Circuit has held that a failure to show
likelihood of success on the merits is dispositive. See, e.g., Nat’l Steel Car, Ltd. v. Canadian
Pac. Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir. 2004) (stating that “a movant is not entitled to a
preliminary injunction if he fails to demonstrate a likelihood of success on the merits”) (citation
and footnote omitted); Amazon.com, Inc. v. Barnsandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed.
6
III. Analysis

A. Likelihood of Success on the Merits

In this case, plaintiff challenges the agency’s decision to override a CICA stay,
and has standing to do so as the incumbent contractor performing the work at issue in the
procurement that was stayed by plaintiff’s GAO protest. See ECF No. 34 at 11;
PMTech,, 95 Fed. Cl. at 348. The CICA states, in relevant part, as follows:

(A) If the Federal agency awarding the contract receives notice of a protest
in accordance with this section during the period described in
paragraph (4)—

(i) the contracting officer may not authorize performance of the
contract to begin while the protest is pending; or

(ii) if authorization for contract performance to proceed was not
withheld . . . before receipt of the notice, the contracting officer
shall immediately direct the contractor to cease performance
under the contract and to suspend any related activities that may
result in additional obligations being incurred by the United
States under that contract.

(B) Performance and related activities suspended pursuant to
subparagraph (A)(ii) by reason of a protest may not be resumed while
the protest is pending.

Cir. 2001) (stating that “a movant cannot be granted a preliminary injunction unless it establishes
both of the first two factors, i.e., likelihood of success on the merits and irreparable harm”).
These cases and others like them issued by the Federal Circuit are patent cases. The court found
only one instance outside the patent context in which the Federal Circuit affirmed a decision that
cites to patent cases to support the proposition that a movant must establish both a likelihood of
success on the merits and irreparable harm in order to obtain a preliminary injunction. See
Treadwell Corp. v. United States, 133 Fed. Cl. 371, 380 (2017), aff’d, 726 F. App’x 826 (Fed.
Cir. 2018) (“Although the factors are not applied mechanically, a movant must establish the
existence of both of the first two factors to be entitled to a preliminary injunction.”) (citation
omitted). Because the Circuit’s decision in Treadwell was issued without any substantive
analysis, it is not clear to the court whether the Circuit intends the rule it has applied in patent
cases, which involve a statutory basis for injunctive relief, see 35 U.S.C. § 283, to apply more
broadly. See Treadwell, 726 F. App’x 826. The court need not resolve the issue here, however,
because the outcome in this case is not dependent on this fine point of law.

7
 (C) The head of the procuring activity may authorize the performance of
the contract (notwithstanding a protest of which the Federal agency
has notice under this section)—

(i) upon a written finding that—

(I) performance of the contract is in the best interests of the
United States; or

(II) urgent and compelling circumstances that significantly
affect interests of the United States will not permit waiting
for the decision of the Comptroller General concerning the
protest; and

(ii) after the Comptroller General is notified of that finding.

31 U.S.C. § 3553(d)(3).

In order to successfully challenge an agency’s decision to override a CICA stay, a
plaintiff must show that the agency’s decision was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with [the] law.” Reilly’s Wholesale Produce v.
United States, 73 Fed. Cl. 705, 709 (2006) (citing 28 U.S.C. § 1491(b)(4); 5 U.S.C. §
706(2)(A)). An agency decision is arbitrary or capricious when:

[T]he agency has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983); see also Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d
1372, 1375 (Fed. Cir. 2009).

In Reilly’s Wholesale, 73 Fed. Cl. 705, this court developed what plaintiff
characterizes as a “template for evaluating an override determination.” ECF No. 31-1 at
20. The Federal Circuit has recently clarified, however, “that the Reilly’s factors do not
even bind the Claims Court, let alone comprise an indispensable aspect of agency rational
basis.” Safeguard Base Operations, LLC v. United States, 792 Fed. App’x 945, 948-49
(Fed. Cir. 2019) (internal citations omitted). Accordingly, the court will evaluate this
case under the test articulated by the Supreme Court, and consider whether the agency
has: (1) relied on factors Congress did not intend for the agency to consider; (2) failed to
consider an important aspect of the problem; (3) offered an explanation for the override

8
decision that is contrary to the evidence; or (4) offered an explanation that is implausible.
See Motor Vehicle Mfrs., 463 U.S. at 43.

In this case, a stay of contract performance was triggered pursuant to 31 U.S.C. §
3553(d)(3)(a) when plaintiff filed its currently-pending protest before the GAO on March
23, 2022. See ECF No. 34 at 3-4. The agency then decided to override the stay on
March 28, 2022, when it determined that “it is in the best interest of the United States for
Kadiak, LLC[] to continue performance on Contract No. 2031ZA22C00005 to ensure
sufficient contractor staffing and environmentally safe operation of BEP’s Wastewater
and Storm Water Program, pending the final decision by the Government Accountability
Office (GAO).” ECF No. 34-1 at 2.

Plaintiff alleges that the agency’s “best interests” override decision is
unsupportable for, essentially, two reasons: (1) plaintiff had successfully performed the
contract for approximately twenty-four years; and (2) the agency knew or should have
known that staffing problems would prevent intervenor-defendant from beginning
performance on April 1, 2022. See ECF No. 34 at 5; ECF No. 31-1 at 16.

According to plaintiff, its successful performance record indicates both that the
CICA stay would not result in adverse consequences for the agency and that its continued
performance was a reasonable alternative to the override. See ECF No. 31-1 at 22-24.
Plaintiff also asserts that the agency’s decision to extend plaintiff’s bridge contract
through April supports both its argument that plaintiff was successfully performing, and
its claim that intervenor-defendant “was not physically able or ready to start contract
performance.” Id. at 23.

In response, defendant focuses the court’s attention on the agency’s identification
of staffing and environmentally safe practices as areas of concern. See ECF No. 35 at 17-
18. Defendant argues that the agency sufficiently explained the critical nature of the
staffing and environmental concerns, both of which are supported by Mr. Hodge’s
declaration outlining various of plaintiff’s failures on both issues. See e.g., ECF No. 35-2
at 3-4 (noting that plaintiff “has been operating with a less than full staff on this contract
for the entire period of performance,” which has resulted in “management requirements
being unmet,” and the need for the agency to “perform some of the contracted services”);
id. at 4 (stating that inadequate staffing “creates an additional risk to BEP in the case of a
chemical spill”); id. at 4-10 (detailing technical and maintenance issues with important
instruments); id. at 10 (stating that the agency directed plaintiff to “stop using the
instrument to prevent further damage to the instrument and waste chemicals”); id. at 10-
11 (explaining that “[i]f the intaglio printing process is flawed, the currency that is
ultimately produced is also flawed and cannot be used”). Defendant concludes that
“these substantial risks would not be mitigated if BEP were to maintain the status quo,”
and therefore, “BEP rationally concluded that it was in the best interest of the United
States to override the automatic CICA stay.” ECF No. 35 at 19.

9
 In the court’s view, the present record does not support a finding that plaintiff is
likely to succeed on the merits of its case. Plaintiff does not appear to contend that the
agency relied on improper considerations or failed to consider important factors in
deciding to override the CICA stay. See Motor Vehicle Mfrs., 463 U.S. at 43. Rather,
plaintiff seems to suggest that the agency’s explanation for the override decision is either
contrary to the evidence or implausible. See id.; ECF No. 31-1 at 22-24. More
specifically, plaintiff strongly disagrees with defendant’s characterization of its
performance as deficient. See ECF No. 31-1 at 22. Plaintiff argues that it “has been able
to complete all work and all tasks” despite a loss of personnel, id., and cites to Mr. Biggs’
declaration as support, id. (citing ECF No. 31-3 at 3). To the extent that a disagreement
exists with regard to whether plaintiff has properly maintained certain instruments,
plaintiff indicates that the agency is the source of any problems. See id. at 22-23 n.9;
ECF No. 31-3 at 4; ECF No. 36 at 16.

The evidence offered by defendant in response effectively calls into question
plaintiff’s assertions. Mr. Hodge’s declaration and the voluminous attachments thereto
provide significant detail in support of defendant’s position that the agency had well-
founded concerns about plaintiff’s performance. See ECF No. 35-2. The court, though,
does not have before it the complete administrative record. That complete record may
include documents to provide context for the parties’ divergent views that is not readily
apparent from the documents before the court at this time.

Furthermore, plaintiff’s argument that the agency should have known that
intervenor-defendant was not ready to assume contract responsibilities focuses on events
that post-date the override decision. See ECF No. 31-1 at 21 (plaintiff arguing that
defendant’s March 31, 2022 decision to extend plaintiff’s bridge contract through April
2022 demonstrates that intervenor-defendant was unprepared to perform); ECF No. 36 at
15-16 (same). For this reason, the court cannot properly consider it when evaluating the
rationality of the override decision based on the information considered by the agency at
the time the decision was made.

As such, the court cannot yet predict which party is likely to prevail, and the court
finds that plaintiff has not shown that this factor weighs in its favor. See FMC Corp., 3
F.3d at 427.

B. Irreparable Harm

Plaintiff first argues that if the court does not grant a preliminary injunction
against the agency’s decision to override the CICA stay, it will suffer irreparable harm:

because, if [plaintiff] were to prevail at the GAO in early July 2022 . . .,
[plaintiff] will have been deprived of the opportunity to compete in the fair

10
 competitive bidding process that would have occurred but for BEP’s
improper movement of the contract into the 8(a) program, which was
premised on the SBA’s arbitrary and capricious adverse impact analysis and
related conclusions.

ECF No. 31-1 at 27. “In addition,” plaintiff continues, intervenor-defendant “intends to
hire nearly all of [plaintiff’s] employees and supervisors working on the contract,” and
“the loss of the majority of the workforce will irreparably harm [plaintiff] in the future
competition for the long-term contract.” Id. Defendant contends that any harm plaintiff
may suffer “amounts to nothing more than a potential economic loss.” ECF No. 35 at 26.

While it is true that plaintiff may suffer an economic loss absent the CICA stay, and
that this court has held that “economic loss alone does not constitute irreparable harm,”
the harm plaintiff has alleged it will suffer is more than simply economic. Chapman Law
Firm Co. v. United States, 67 Fed. Cl. 188, 193 (2005). This court has also held that “the
failure of an agency to stay performance could result in a competitive disadvantage that
might not be remedied, causing a contractor to lose an important business opportunity.”
Reilly’s Wholesale, 73 Fed. Cl. at 717 (citations omitted).

Here, plaintiff argues that intervenor-defendant intends to hire plaintiff’s employees
to perform the contract work, which would place plaintiff at a material competitive
disadvantage if the GAO sustains its protest and it has the opportunity to compete for the
contract. See ECF No. 31-1 at 27. It is reasonable to conclude that the loss of qualified,
experienced personnel would put plaintiff in a relatively weaker position with regard to a
potential future competition. That said, if the workforce is likely to follow the work rather
than the employer in these circumstances, it also stands to reason that the agency would
understand the flow of employees and consider that pattern in weighing the importance of
presently employed personnel. As such, this factor weighs in plaintiff’s favor, but not
heavily.

C. Balance of Hardships

The court next considers the balance of hardships that may suffered by the parties.
FMC Corp., 3 F.3d at 427. “Under this factor, the court must consider whether the
balance of hardships leans in the plaintiff’s favor.” Reilly’s Wholesale, 73 Fed. Cl. at
715. This inquiry also requires the court to consider “the harm to the government and to
the intervening defendant.” Id. Here, plaintiff identifies its hardship as the lost
opportunity to fairly compete—the same harm identified in considering whether plaintiff
will suffer irreparable harm absent a CICA stay. See ECF No. 31-1 at 28-29; ECF No. 36
at 22. Defendant contends that the court should disregard plaintiff’s argument due to this
repetition, but offers no further, substantive argument. See ECF No. 35 at 27. Neither
party addressed any hardship that might be borne by intervenor-defendant.

11
 As noted above, while it is certainly reasonable to view the loss of qualified
employees as a real potential harm to plaintiff, it does not appear to be a particularly
grave or extraordinary one in these circumstances. On the other hand, if the court
requires defendant to continue allowing plaintiff to perform under the contract, it will not
be permitted to take the steps it considers necessary to remedy plaintiff’s allegedly
deficient performance. In the most generous view of the facts for plaintiff’s case, these
hardships are in equipoise, but do not “lean[] in the plaintiff’s favor.” Reilly’s
Wholesale, 73 Fed. Cl. at 715.

D. Public Interest

Finally, the court must consider whether injunctive relief serves the public interest.
FMC Corp., 3 F.3d at 427. Plaintiff defines the public interest at issue as “preserving the
integrity of the competitive process,” as well as the “long-term interest in ensuring that
the new contract represents the best overall value to the government.” ECF No. 31-1 at
29. Plaintiff argues that “requiring the agency to implement the stay provides the best
opportunity to achieve that goal.” Id. Defendant, in response, insists that “the public’s
interests in BEP staying compliant with environmental standards or maintaining the
required manufacturing capability necessary to ensure that BEP can meet the United
States’ currency printing obligations” must also be considered in evaluating this factor.
See ECF No. 35 at 27.

The public certainly has an interest in the integrity of the competitive process, but
plaintiff has failed to adequately explain why allowing the agency to follow the
procedures provided by CICA to override the otherwise mandatory stay would result in a
loss of integrity in the procurement system. Plaintiff’s assertion that “reinstituting the
stay will not impair the [a]gency’s ability to obtain the services,” is not enough in this
case. See ECF No. 31-1 at 29. As the court has previously noted, the agency’s concerns
about plaintiff’s performance appear to have at least some basis in fact. See ECF No. 35-
2 (Hodge declaration explaining and attaching documentation of a series of performance
failures on plaintiff’s part). As such, the court finds that injunctive relief does not clearly
serve the public interest in this case. FMC Corp., 3 F.3d at 427.

Having reviewed the relevant factors, the court finds that plaintiff has shown, by a
slight margin, that it may suffer irreparable harm absent the requested injunction. None
of the remaining three factors, however—including and most importantly, the likelihood
of success on the merits—militates in favor of the court’s intervention here. Therefore,
plaintiff has not demonstrated that it is entitled to preliminary injunctive relief.

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IV. Conclusion

Accordingly:

(1) Plaintiff’s motion for a preliminary injunction, ECF No. 31, is DENIED;

(2) On or before May 13, 2022, the parties are directed to CONFER and FILE
a joint status report informing the court as to how the parties wish to
proceed in this case and proposing a schedule for doing so; and

(3) On or before May 20, 2022, the parties are directed to CONFER and FILE
a notice attaching the parties’ agreed upon redacted version of this opinion
and order, with all competition-sensitive information blacked out.

IT IS SO ORDERED.

s/Patricia E. Campbell-Smith
PATRICIA E. CAMPBELL-SMITH
Judge

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