Nortel Government Solutions, Inc. v. United States

84 Fed. Cl. 243, 2008 U.S. Claims LEXIS 301, 2008 WL 4666667
CourtUnited States Court of Federal Claims
DecidedOctober 10, 2008
DocketNo. 08-682C
StatusPublished
Cited by11 cases

This text of 84 Fed. Cl. 243 (Nortel Government Solutions, Inc. 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
Nortel Government Solutions, Inc. v. United States, 84 Fed. Cl. 243, 2008 U.S. Claims LEXIS 301, 2008 WL 4666667 (uscfc 2008).

Opinion

OPINION & ORDER

FUTEY, Judge.

This matter is before the Court on Plaintiffs Complaint For Declaratory And Injunctive Relief. Insofar as plaintiff has requested injunctive relief, it has filed separate motions for a Temporary Restraining Order and a Preliminary Injunction. Also before the Court are Defendant’s Motion For Judgment And Opposition To Plaintiffs Motion For Injunctive Relief, Interve-nor-Defendant’s Opposition To Plaintiffs Application For Temporary Restraining Or[245]*245der And Motion For Preliminary Injunction, and Plaintiffs Reply To Defendant’s Opposition To Plaintiffs Motion For In-junctive Relief And Cross-Motion For Judgment On The Administrative Record. Plaintiff, Nortel Government Solutions Incorporated (“NGS”), contests a Drug Enforcement Agency (“DEA”) override of an automatic Competition in Contracting Act (“CICA”) stay that was triggered when plaintiff filed a bid protest at the Government Accountability Office (“GAO”). The protested procurement was awarded to Systems Research and Applications Corporation (“SRA”), intervenor-defendant in this action. Plaintiff alleges that defendant’s override decision is arbitrary and capricious, and requests that this Court declare that the DEA override decision is invalid, and enjoin and restrain DEA from proceeding with performance of the protested contract.

Plaintiff asserts five bases in support of its claim. First, plaintiff points out that DEA’s Determinations and Findings (“D & F”), in which defendant justifies its decision to override the stay pursuant to 31 U.S.C. § 3553(d)(3)(C) (2004), does not address whether and how overriding the stay will remedy the alleged adverse consequences defendant attributes to maintaining the status quo. Second, plaintiff contends that defendant’s assertions of adverse consequences are based on factual misstatements and that extending the current contracts is a reasonable alternative to the override. Third, plaintiff claims that defendant failed to fully consider the risks to DEA if the GAO sustains plaintiff’s protest. Fourth, plaintiff argues that defendant did not consider the impact of the override on competition and the integrity of the procurement system. Finally, plaintiff asserts that the prospect of cost savings is an insufficient basis for overriding the stay.

Defendant, on the other hand, argues that the Acting Administrator of the DEA permissibly decided to override the automatic stay of the contract award due to deterioration of DEA’s information technology (“IT”) capabilities under the current situation. Specifically, defendant claims that the override is in the best interests of the United States and that the current situation presents an “urgent and compelling” circumstance because delay in proceeding with the contract will [***]. D & F at 6, H 5. Additionally, defendant asserts that plaintiff is not otherwise entitled to injunctive relief because: (1) plaintiff fails to demonstrate immediate irreparable harm; (2) plaintiff fails to show that the balancing of the harms favors injunctive relief; and (3) plaintiff has not established that public interest favors injunctive relief.

Intervenor-Defendant, SRA, similarly opposes plaintiff’s requests, and argues that plaintiff cannot meet the four standards necessary for an award of temporary or preliminary injunctive relief. SRA claims that plaintiff is unlikely to succeed on the merits of its case at the GAO, and that the balance of harms favors the DEA.

1. Background

The record reveals that the dispute over the procurement currently at issue has been on-going for more than two years. The procurement was initiated by DEA in July 2006, and is for Enterprise Management Services (“EMS”), which involves the consolidation of all DEA’s IT operations and maintenance (“O & M”) efforts under one contract. The EMS procurement seeks to consolidate work that was and is being performed by multiple IT contractors, including plaintiff. Since January 2007, DEA’s IT systems have been operating under month-to-month “bridge” contracts with the incumbent contractors; the same bridge contracts that DEA now claims must be vacated due to urgent and compelling circumstances.

The EMS contract was initially awarded to plaintiff, NGS, in January 2007, but was subsequently protested by SRA at the GAO. At the time of SRA’s protest, defendant entered into bridge contracts with the incumbent contractors to maintain defendant’s IT support services until the protest was resolved. Plaintiff holds two of the four bridge contracts.1 Defendant did not defend the award [246]*246decision, but instead took corrective action that included issuing a revised statement of work in September 2007.

In January 2008, DEA awarded the contract to SRA. Plaintiff protested that contract award at the GAO, and defendant, on the recommendation of the GAO, again took corrective action; plaintiffs protest action was consequently dismissed. In June 2008, defendant re-opened the solicitation, and again awarded the contract to SRA on September 10, 2008. On September 22, 2008, plaintiff filed a protest action at the GAO, which triggered an automatic stay of performance on the contract under CICA. On September 26, 2008, however, defendant notified GAO and the parties of its decision to override the stay under 31 U.S.C. § 3553(d)(3)(C), asserting that performance of the contract is in the best interests of the government, and that urgent and compelling circumstances do not permit delay of contract performance until the GAO decision.2

On September 29, 2008, plaintiff filed a complaint with this Court, challenging defendant’s override decision, and requesting declaratory and injunctive relief.

2. Discussion

A. Standard of Review

“[A] Motion for Judgment on the Administrative Record, pursuant to RCFC 52. 1, is similar but not identical to a Motion for Summary Judgment, pursuant to RCFC 56.” Info. Scis. Corp. v. United States, 73 Fed.Cl. 70, 97-98 (2006)(citing Bannum, Inc. v. United States, 404 F.3d 1346, 1355 (Fed.Cir. 2005)). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Jay v. Sec’y of DHHS, 998 F.2d 979, 982 (Fed.Cir.1993). In contrast, under Rule 52. 1, the court must weigh the evidence when considering a motion for judgment on the administrative record. See Bannum, 404 F.3d at 1355-56. RCFC 52.1 is “designed to provide for a trial on a paper record, allowing fact-finding by the trial court.” Id. at 1356.

This Court reviews bid protest actions under the standards of the Administrative Procedure Act (“APA”). See 28 U.S.C. § 1491(b)(l)-(4) (2008).

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Bluebook (online)
84 Fed. Cl. 243, 2008 U.S. Claims LEXIS 301, 2008 WL 4666667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nortel-government-solutions-inc-v-united-states-uscfc-2008.