Heli-Jet Corp. v. United States

31 Cont. Cas. Fed. 71,233, 2 Cl. Ct. 613, 1983 U.S. Claims LEXIS 1732
CourtUnited States Court of Claims
DecidedMay 31, 1983
DocketNo. 328-83C
StatusPublished
Cited by30 cases

This text of 31 Cont. Cas. Fed. 71,233 (Heli-Jet Corp. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heli-Jet Corp. v. United States, 31 Cont. Cas. Fed. 71,233, 2 Cl. Ct. 613, 1983 U.S. Claims LEXIS 1732 (cc 1983).

Opinion

ORDER DENYING TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

YANNELLO, Judge.

Plaintiff’s complaint, seeking a temporary restraining order, a preliminary injunction, and such other relief as appropriate, was filed on May 23, 1983. On that same day, a Conference Call was held, with counsel for both parties, to discuss a hearing schedule and to define the issues.

Defendant’s response was filed in the morning of May 24. It alleged the court’s lack of jurisdiction and plaintiff’s inability to satisfy the criteria necessary to warrant the specific relief requested. Consequently, defendant also moved for summary judgment.

A hearing was conducted on May 24, 1983, from 11:00 a.m. to 4:45 p.m. E.D.T. At the outset of the hearing, counsel, in response to the judge’s inquiry, stated that the purpose of the hearing was to enable a ruling on plaintiff’s requests for a temporary restraining order and a preliminary injunction. In addition, counsel entered into stipulations of fact based on the affidavits and exhibits appended to their motions and memoranda.

The government had agreed to postpone any award of the contract in issue until 5:00 p.m. E.D.T., on May 24,1983, and the judge issued a decision orally at the conclusion of the hearing, approximately 4:30 p.m. E.D.T. This Order embodies the decision issued during the hearing of this matter.

Standards of Review

Plaintiff seeks a temporary restraining order and preliminary injunction, to prevent the government from making an award of the contract to another bidder.

Such relief as is sought here should be granted only in infrequent and limited circumstances where such relief is clearly appropriate. These strictures have been the subject of comprehensive, and well-reasoned, opinions by other judges of the court, with which this court agrees. See, e.g., the opinions of Judge Lydon in Baird Corpora[616]*616tion v. United States, 1 Cl.Ct. 662 (Cl.Ct. 1983) and of Judge Nettesheim in Harris Data Communications Inc. v. United States, 2 Cl.Ct. 229 (Cl.Ct.1983). It is not necessary to restate here the detailed discussions of those opinions.

It is sufficient here to note that plaintiff, if it is to ultimately prevail on the merits, must sustain its burden of establishing:

(1) that the procurement procedure involved a clear and prejudicial VIOLATION OF APPLICABLE STATUTES or regulations; OR
(2) that there was NO RATIONAL BASIS for the agency’s decision in a matter committed primarily to the contracting officer’s discretion.

See Kentron Hawaii v. Warner, 480 F.2d 1166 (D.C.Cir.1973).

(3) Moreover, the court must consider, in connection with any grant of injunctive relief, the following:

(1) the LIKELIHOOD OF plaintiff’s SUCCESS on the merits (noting the criteria set forth above);
(2) the PUBLIC INTEREST, including any overriding public interest which would warrant, in the exercise of sound judicial discretion, a refusal to grant injunctive relief, even if plaintiff were likely to prevail on the merits;
(3) the possibility of any IRREPARABLE INJURY to the plaintiff if the injunction is not granted, including, but not limited to, the ABSENCE OF ADEQUATE REMEDY at law, and the possibility of any INJURY TO OTHERS if the injunction is granted.

See N.V. Philips Gloeilampenfabrieken v. United States, 1 Cl.Ct. 783 (Cl.Ct.1983).

The application of these standards and criteria naturally depend upon the facts of each case.

For the reasons set forth below, it is determined that plaintiff’s motion for a temporary restraining order and preliminary injunction should be denied, and defendant’s motion for summary judgment should be denied pending further proceedings.

Facts

A solicitation for bids was issued by the Department of Agriculture on approximately April 8, 1983, calling for the opening of bids on May 10,1983. The solicitation contained three items; item 1 related to a negotiated procurement, items 2 and 3 related to competitive bids. Item 2 was set aside for small business, and it is the only item at issue in this case.

The proposed contract relating to item 2 of the solicitation called for aerial spraying of insecticide to control a spruce budworm infestation in certain national forest lands in Oregon. It was anticipated that spraying would begin between June 10 and June 17, 1983, allowing the contractor sufficient time to, inter alia, acquire the needed chemicals, and noting the need for timely spraying given the larval cycles of the spruce budworm.

The solicitation, part II, Schedule of Items, page 10 of 13, contained the following language:

For the purpose of establishing offer responsibility, offerors on this item must affirmatively show a minimum application capability for this project of 5000 acres per hour.
OFFERORS INDICATING AN APPLICATION CAPABILITY LESS THAT THE MINIMUMS ESTABLISHED ABOVE WILL BE CONSIDERED NON-RESPONSIBLE.

As part of their response to the solicitation, bidders were requested, at page 11 of 13, to provide the following information:

Offerors shall list below the information relative to the aircraft they will use to accomplish the work. Listing will be by make and model of aircraft, “N” number and average production in acres per available hour at the minimum established application rates listed below which include loading, fueling, and ferry time.

The solicitation, at page 13 of 13, pointed out that awards would be made for full [617]*617items and that, if a bidder received award of more than one item, all items were to be performed simultaneously. The solicitation continues as follows:

For purposes of establishing contractor’s ability to perform, bidder must show capacity for both bid items [2 and 3].

When bids were opened on May 10, there were two bidders: Golden Eagle Helicopter (hereinafter “GEH”) whose unit price for the acreage in issue was $6.57, and the plaintiff whose unit price for the acreage in issue was $8.83. Both bidders included a schedule of the aircraft they (purportedly) intended to use in contract performance.

When the bids were opened, the contracting officer announced that GEH was the apparent low bidder, and would receive award of the contract.

He noted that two of the aircraft listed by GEH duplicated those listed by other companies for use on other separate items of the solicitation. The contracting officer did not attempt to separately verify the other aircraft listed by GEH.

However, by letter of May 11, the contracting officer did ask all prospective contractors to furnish, by approximately May 18, firm commitments for the aircraft they intended to use to perform the contract.

Immediately after bids were opened, plaintiff asked the contracting officer for the aircraft identification provided by GEH’s bid documents; this information was furnished.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Obxtek Inc. v. United States
Federal Claims, 2018
DynCorp International LLC v. United States
76 Fed. Cl. 528 (Federal Claims, 2007)
Delbert Wheeler Construction, Inc. v. United States
42 Cont. Cas. Fed. 77,257 (Federal Claims, 1997)
Minor Metals, Inc. v. United States
41 Cont. Cas. Fed. 77,145 (Federal Claims, 1997)
IMS Services, Inc. v. United States
40 Cont. Cas. Fed. 76,784 (Federal Claims, 1995)
McMaster Construction, Inc. v. United States
37 Cont. Cas. Fed. 76,150 (Court of Claims, 1991)
Bean Dredging Corp. v. United States
36 Cont. Cas. Fed. 76,017 (Court of Claims, 1991)
TRW Environmental Safety Systems, Inc. v. United States
35 Cont. Cas. Fed. 75,712 (Court of Claims, 1989)
Honeywell, Inc. v. United States
35 Cont. Cas. Fed. 75,611 (Court of Claims, 1989)
PNM Construction Inc. v. United States
34 Cont. Cas. Fed. 75,409 (Court of Claims, 1987)
Howell Construction, Inc. v. United States
34 Cont. Cas. Fed. 75,297 (Court of Claims, 1987)
Electro-Methods, Inc. v. United States
32 Cont. Cas. Fed. 73,426 (Court of Claims, 1985)
Aviation Enterprises, Inc. v. United States
32 Cont. Cas. Fed. 73,403 (Court of Claims, 1985)
Management Science America, Inc. v. Pierce
598 F. Supp. 223 (N.D. Georgia, 1984)
Isometrics, Inc. v. United States
32 Cont. Cas. Fed. 72,562 (Court of Claims, 1984)
Harris Systems International, Inc. v. United States
32 Cont. Cas. Fed. 72,486 (Court of Claims, 1984)
Golden Eagle Refining Co. v. United States
31 Cont. Cas. Fed. 72,190 (Court of Claims, 1984)
Acme of Precision Surgical Co., Inc. v. Weinberger
580 F. Supp. 490 (E.D. Pennsylvania, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
31 Cont. Cas. Fed. 71,233, 2 Cl. Ct. 613, 1983 U.S. Claims LEXIS 1732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heli-jet-corp-v-united-states-cc-1983.