Magic Brite Janitorial v. United States

69 Fed. Cl. 319, 2006 U.S. Claims LEXIS 10, 2006 WL 148892
CourtUnited States Court of Federal Claims
DecidedJanuary 19, 2006
DocketNo. 05-1380C
StatusPublished
Cited by3 cases

This text of 69 Fed. Cl. 319 (Magic Brite Janitorial 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
Magic Brite Janitorial v. United States, 69 Fed. Cl. 319, 2006 U.S. Claims LEXIS 10, 2006 WL 148892 (uscfc 2006).

Opinion

MEMORANDUM OPINION

WOLSKI, Judge.

This matter involves a post-award bid protest filed by Magic Brite Janitorial, regarding the procurement of janitorial services for certain federal buildings in Little Rock, Arkansas. Magic Brite challenges the decision of the federal government, specifically the General Services Administration (“GSA”) and the Committee for Purchase From People Who Are Blind or Severely Disabled (“the Committee”), not to exercise an option under a contract to perform these services. Magic Brite has moved for a preliminary injunction to prevent the contract from being performed by another entity. It argues that the Government was required to assess the economic impact on the incumbent before deciding not to exercise the option to extend the contract for another year. The Court heard oral arguments on this motion on December 30, 2005, and denied it for reasons stated on the record. This memorandum provides a written explanation of that decision.

I. BACKGROUND

The Javits-Wagner-O’Day Act (“JWOD”), codified at 41 U.S.C. §§ 46-48c, established the Committee for Purchase from People [320]*320Who Are Blind or Severely Disabled. In 1991, pursuant to its statutory mandate, the Committee placed the janitorial contract at issue in this case on the JWOD procurement list. See 56 Fed.Reg. 63936 (Dec. 6, 1991).

On December 1, 2004, Pathfinder, Inc.— which was at that time the incumbent nonprofit agency qualified by the National Industries for the Severely Handicapped (“NISH”) to perform the Little Rock contract — informed the GSA that it could no longer perform the contract at the requested price. See Def.’s App. at 4 (letter from Pathfinder to GSA). In its letter, Pathfinder asked NISH and the Committee to issue a one-year purchase exception for the contract, which would open it to commercial bidding. See 41 C.F.R. § 51-5.4 (authorizing the nonprofit agency to issue a purchase exception if the nonprofit agency cannot furnish the service within the specified period and the service is available commercially); 48 C.F.R. § 8.706(a) (authorizing the purchase from commercial sources if authorized by a purchase exception). On December 2, 2004, NISH issued a purchase exception for the contract for a one year period from January 1, 2005, through December 31, 2005. Def.’s App. at 5. Magic Brite was awarded the contract for a one-year period, with four one year options, on December 7, 2004. Complaint ¶ 7; see also Def.’s App. at 6; Ex. 1 to Gomez Aff.1

On July 8, 2005, GSA contacted Pathfinder to invite it to perform the contract after the expiration of the exception period. Def.’s App. at 7. On July 27, 2005, Pathfinder accepted. Id. at 8. Subsequently, in a letter dated October 4, 2005, GSA notified Magic Brite that it would not exercise its option to extend the contract beyond the base year. Id. at 9. Magic Brite wrote to the GSA contracting officer on November 4, 2005 asking for reconsideration, id. at 10, but on December 6, 2006, the contract was officially awarded to Pathfinder. Id. at 12. Magic Brite wrote the GSA to request reconsideration again on December 15, 2005, id. at 13-14, and then filed a complaint in this Court on December 29, 2005. Because Pathfinder was to assume the contract on January 1, 2006, the Court promptly held a status conference via telephone on December 29, 2005, and a hearing, again via telephone, on Magic Brite’s motion for a preliminary injunction, on December 30, 2005.

In its motion for a preliminary injunction (“Pl.’s Mot.”), Magic Brite argued that the Government’s decision not to exercise the contract’s first option year violated regulations requiring the Committee to analyze the impact that such action would have on the current contractor. Pl.’s Mot. at 4. The Government filed a brief opposing the motion on the morning of the hearing. After considering the written and oral argument of counsel for the parties, the Court denied Magic Brite’s motion.

II. DISCUSSION

In determining whether to grant a motion for a preliminary injunction, the Court considers four factors. Under this standard, the plaintiff must carry the burden of establishing the right to the extraordinary remedy requested, in light of the following factors: 1) that it will suffer irreparable injury if the contract award is not enjoined; 2) a reasonable likelihood of success on the merits of its claim; 3) that the harm suffered by it, if the contract award is not enjoined, will outweigh the harm to the Government and third parties; and 4) that granting injunctive relief serves the public interest. FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.Cir.1993); Chrysler Motors Corp. v. Auto Body Panels, Inc., 908 F.2d 951, 953 (Fed.Cir.1990); Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir.1983); see also University Research Co., LLC v. United States, 65 Fed.Cl. 500, 504 (2005). None of the four factors, standing alone, is dispositive; thus, “the weakness of the showing regarding one factor may be overborne by the strength of the others.” Chrysler Motors, 908 F.2d at 953; FMC Corp., 3 F.3d at 427. Conversely, the lack of an “adequate showing with regard to any one factor may [321]*321be sufficient, given the weight or lack of it assigned the other factors,” to deny the injunction. Chrysler Motors, 908 F.2d at 953. It appears clear, however, that in a certain sense minimally satisfying the first two factors is necessary — if a party either will suffer no amount of irreparable harm or has no chance of succeeding on the merits, an injunction will rarely, if ever, issue. See FMC Corp., 3 F.3d at 427.

Under the circumstances of this case, it stands to reason that some irreparable injury will be suffered by Magic Brite in the absence of an injunction. Unlike the typical bid protest, in which there is some uncertain.ty as to whether a protester would have received a contract had the legal infirmities complained of not existed, this case concerns the exercise of an option year. If Magic Brite is correct, then the option could not have been declined in the manner it was, and Magic Brite would have continued performing the contract on January 1, 2006. If the contract award is not enjoined, but Magic Brite ultimately succeeds on the merits, a subsequent order to terminate the Pathfinder contract and exercise the Magic Brite option will not compensate Magic Brite for the delay in earning its stream of profits under the contract. The government concedes that this economic injury may not be remedied through a damages award; hence, the injury is by definition irreparable.

Magic Brite’s motion runs into difficulty, however, under the second factor. Its legal theory is flawed, and thus it failed to demonstrate any likelihood of success on the merits, at least at this initial stage of proceedings.2 Magic Brite relies on the “severe adverse impact" language of 41 C.F.R.

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Bluebook (online)
69 Fed. Cl. 319, 2006 U.S. Claims LEXIS 10, 2006 WL 148892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/magic-brite-janitorial-v-united-states-uscfc-2006.