Global Computer Enterprises, Inc. v. United States

81 Fed. Cl. 506, 2008 U.S. Claims LEXIS 203, 2008 WL 1885620
Procedural entryThis page is a short order in Global Computer Enterprises, Inc. v. United States. Read the opinion of the Court — 88 Fed. Cl. 350
United States Court of Federal Claims·Decided March 31, 2008·No. No. 08-133 C·Published

Opinion

ORDER GRANTING PLAINTIFF’S REQUEST FOR A TEMPORARY RESTRAINING ORDER

MARGARET M. SWEENEY, Judge.

This matter comes before the court on Plaintiffs Motion for Preliminary Injunction and Application for Temporary Restraining Order. On March 26, 2008, a hearing was held on plaintiffs motion, which seeks a temporary restraining order and preliminary in-junctive relief requiring the United States Coast Guard (“the Coast Guard”) to terminate its performance of Modifications 30 and 32 to the Systems Engineering and Technical Services II (“SETS II”) Task Order, number [507] HSCGG3-05-F-TWV436, to the Information Technology Omnibus Procurement II (“ITOP II”) contract, number GS-09F-0047Z, as that work relates to information technology support for the Coast Guard’s financial management systems, as well as on the parties’ cross-motions for judgment on the administrative record.

Both the Tucker Act, 28 U.S.C. § 1491(b)(2) (2000), 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. Id.; see also 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.

Plaintiff has demonstrated a probable likelihood of success on the merits that the Coast Guard violated applicable laws when it failed to employ competitive procedures to contract out financial management systems work it added to the SETS II task order via Modifications 30 and 32, which plaintiff alleges extended the ordering period for the underlying ITOP II contract beyond its expiration date, and instead transferred that work to defendant-intervenor, QSS Group, Inc. Prior to the issuance of these modifications, plaintiff had been previously awarded-and had been performing-the financial management software services to the Coast Guard that are encompassed by these two modifications.

Absent injunctive relief, plaintiff 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 injunc-tive relief except that any monetary relief shall be limited to bid preparation and proposal costs”) (emphasis added). Plaintiff has established irreparable injuries based upon losing (1) the opportunity to participate in a competitive procurement for this type of work, see Cardinal Maint. Serv., Inc. v. United States, 63 Fed.Cl. 98, 110 (2004), (2) potential profits, see SAI Indus. Corp. v. United States, 60 Fed.Cl. 731, 747 (2004), and (3) skilled employees critical to its ability to perform specialized financial management systems work, see Univ. Research Co., LLC v. United States, 65 Fed.Cl. 500, 514 (2005).1

Plaintiff has shown that the harm it would suffer outweighs the harm to defendant and defendant-intervenor because defendant could conduct a competition for financial systems expeditiously, can avoid significant disruption to its financial systems during the recompetition period, and can avoid the potential harms it alleges would result from this court granting plaintiffs motion because those harms are self-imposed. Additionally, any harms incurred by defendant-intervenor would stem either from losing (1) work that was the result of an unlawful contracting process, which should be discounted, see Cardinal Maint. Serv., Inc., 63 Fed.Cl. at 111, or (2) employees hired only recently to perform [508] the work encompassed by the modifications at issue to the SETS II task order.

Finally, the public interest in preserving the integrity and fairness of the procurement process and promoting competition for financial management systems work will be served by enjoining performance of the modifications at issue to the SETS II task order.

Accordingly, it is hereby ORDERED:

1. Defendant, its officers, agents, employees, representatives, and all other persons acting in connection therewith are hereby restrained and enjoined from performance of information technology support of the Coast Guard’s financial management systems under Modifications 30 and 32 to the SETS II task order, number HSCGG3-05-F-TWV436, to the ITOP II contract, number GS-09F0047Z.

2. This Temporary Restraining Order shall expire by its terms at midnight, Eastern Daylight Time, on Wednesday, April 9, 2008, unless within such time the order is extended for cause shown or unless defendant consents that it may be extended for a longer period.

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Global Computer Enterprises, Inc. v. United States, 81 Fed. Cl. 506, 2008 U.S. Claims LEXIS 203, 2008 WL 1885620 (uscfc 2008).

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