Bilfinger Berger AG Sede Secondaria Italiana v. United States

94 Fed. Cl. 389, 2010 WL 3385987
CourtUnited States Court of Federal Claims
DecidedAugust 26, 2010
DocketNo. 10-480 C
StatusPublished
Cited by9 cases

This text of 94 Fed. Cl. 389 (Bilfinger Berger AG Sede Secondaria Italiana v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bilfinger Berger AG Sede Secondaria Italiana v. United States, 94 Fed. Cl. 389, 2010 WL 3385987 (uscfc 2010).

Opinion

ORDER GRANTING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER

SWEENEY, Judge.

This postaward bid protest comes before the court on Plaintiffs Motion for a Temporary Restraining Order and a Preliminary Injunction. On August 13, 2010, a hearing was held on plaintiffs motion, wherein Bil-finger Berger AG Sede Secondaria Italiana (“BBSSI”) seeks a temporary restraining order and preliminary injunction that (1) prevents the United States Army Corps of Engineers (“Corps”) from issuing any task orders to the awardee and defendant-intervenor, Cooperativa Muratori Riuniti Impresa Gene-rale di Construzioni (“CMR”), under Job Order Contract (“JOC”) number W912GB-10-D-0007, and (2) requires the Corps to suspend performance of the JOC, including all task orders issued to CMR, until this action is resolved.1

Both the Tucker Act, 28 U.S.C. § 1491(b)(2) (2006), and RCFC 65 grant the United States Court of Federal Claims the authority to issue temporary restraining orders and preliminary injunctions. Preliminary injunctive relief is an extraordinary and drastic remedy. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam); FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.Cir.1993). The standards for obtaining emergency relief, such as a temporary restraining order, are identical to those that must be satisfied before a preliminary injunction may issue. Four Rivers Invs., Inc. v. United States, 77 Fed.Cl. 592, 594-95 (2007). The moving party must demonstrate that: (1) it has a likelihood of success on the merits; (2) it will suffer irreparable harm if preliminary relief is not granted; (3) the harm it will suffer outweighs the harm to the government and to third parties; and (4) the grant of relief is not contrary to the public interest. Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir.1983); accord FMC Corp., 3 F.3d at 427; Chrysler Motors Corp. v. Auto Body Panels of Ohio, Inc., 908 F.2d 951, 952 (Fed.Cir.1990); Hosp. Klean of Tex., Inc. v. United States, 65 Fed.Cl. 618, 625 (2005). “No one factor, taken individually, is necessarily dispositive.... [T]he weakness of the showing regarding one factor may be overborne by the strength of the others.” FMC Corp., 3 F.3d at 427. Conversely, “the ab[392]*392sence of any one factor may be sufficient” to deny preliminary injunctive relief. Id.

The court “has considerable discretion in determining whether to award injunc-tive relief in a bid protest.” Magnum Opus Techs., Inc. v. United States, 94 Fed.Cl. 512, 543, 10-127C, 2010 WL 2255523, at *26 (Fed.Cl.2010); accord FMC Corp., 3 F.3d at 427. “LEJven if a trial court finds that the govern ment’s actions in soliciting and awarding a contract were arbitrary, capricious, or not in accordance with law, the trial court retains discretion on whether to issue an injunction.” Acad. Facilities Mgmt. v. United States, 87 Fed.Cl. 441, 472 (2009). “When injunctive relief is warranted, it will only be issued upon a showing by a preponderance of the admissible evidence.” Textron, Inc. v. United States, 74 Fed.Cl. 277, 287 (2006); accord GraphicData, LLC v. United States, 37 Fed. Cl. 771, 779 (1997); see also Acad. Facilities Mgmt., 87 Fed.Cl. at 472 (“The standard of proof required for injunctive relief is a preponderance of the evidence.”); Idea Int’l, Inc. v. United States, 74 Fed.Cl. 129, 137 (2006) (applying a preponderance standard in ruling on a permanent injunction).

Plaintiff has demonstrated a probable likelihood of success on the merits that the Corps arbitrarily, capriciously, or unlawfully determined that BBSSI was ineligible for the JOC award because it submitted a Societa Organismi DAttestazione (“SOA”) certification in the name of Bilfinger Berger Hoch-bau GmbH (“BBH”), a debarred company, as part of its proposal. Plaintiff maintains that Italian law permits it to utilize an SOA certification in the name of BBH without relying upon any of BBH’s resources during contract performance. Although the Corps procured a legal opinion addressing the SOA certification under Italian law, it failed to provide Italian counsel with all relevant and critical facts related to BBSSI’s specific use of BBH’s SOA certification in connection with the JOC procurement. Utilizing this Italian legal opinion to assess plaintiffs proposal, the contracting officer determined that BBSSI was nonresponsible and ineligible for the JOC award. Therefore, based upon the record developed on its motion for a temporary restraining order and preliminary in-junctive relief, plaintiff shows a likelihood of success on the merits that the Corps’ exclusion of BBSSI from consideration for the JOC award was arbitrary, capricious, or not in accordance with law.

Absent injunctive relief, plaintiff has shown that it would be irreparably damaged, and an action at law would be unavailing because plaintiff could only recover bid preparation and proposal costs in a suit for damages and not the loss of anticipated profits. 28 U.S.C. § 1491(b)(2) (providing that the court “may award any relief ... including declaratory and injunctive relief except that any monetanj relief shall be limited to bid preparation and proposal costs ” (emphasis added)); see also Heritage of Am., LLC v. United States, 77 Fed.Cl. 66, 78 (2007) (stating that, “where ... plaintiff has no action against the United States for lost profits, the harm to plaintiff is irreparable and that harm satisfies the second criterion for injunctive relief”). Plaintiff has established irreparable injuries based upon: (1) a loss of work flow and dependency upon the work encompassed under the JOC in order to maintain its viability in Italy, see Cardinal Maint. Serv., Inc. v. United States, 63 Fed.Cl. 98, 110 (2004) (recognizing that “a party suffers irreparable injury when it loses the opportunity to com pete on a level playing field with other bidders .... [Wjhen a plaintiff shows that it was excluded from the bidding process, perhaps solely because of the government’s improper conduct, the plaintiff has satisfied requirement for irreparable injury”); accord PGBA, LLC v. United States, 57 Fed.Cl. 655, 664 (2003); and (2) an anticipated loss of approximately forty percent of revenue, a figure that is based upon the revenue BBSSI derived from the predecessor JOC and its expected revenue from the JOC at issue in this case,2 [393]*393see SAI Indus. Corp. v. United States, 60 Fed.Cl. 731, 747 (2004) (recognizing that irreparable injury can be demonstrated via lost profits).

Plaintiff has shown that the harm it would suffer outweighs the harm to defendant and defendant-intervenor. Whereas defendant could have begun issuing task orders under the JOC in May 2010, the record indicates that it did not do so until at least early June 2010. The reasons for this perceived delay have not been fully explained.

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Bluebook (online)
94 Fed. Cl. 389, 2010 WL 3385987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bilfinger-berger-ag-sede-secondaria-italiana-v-united-states-uscfc-2010.