OAO Corp. v. United States

49 Fed. Cl. 478, 2001 U.S. Claims LEXIS 86, 2001 WL 543146
United States Court of Federal Claims·Decided May 8, 2001·No. No. 01-245 C·Published·Cited by 68 cases

Opinion

OPINION AND ORDER

HEWITT, Judge.

This post-award bid protest action comes before the court on Plaintiffs Motion for Temporary Restraining Order and/or Preliminary Injunction. Plaintiff, OAO Corporation (OAO), protests the decision of the Environmental Protection Agency (EPA) to award the Facilities and Administrative Information Resources (FAIR) Management Contract (FAIR II Contract) to intervenor, Computer Sciences Corporation (CSC). Complaint (Compl.) If 1. For the following reasons, the court DENIES plaintiffs motion.

I. Background

OAO is the incumbent contractor on defendant’s FAIR Contract, providing information services technology to the EPA. Compl. H 3. Defendant issued Solicitation No. PR-HQ-00-10323 (Solicitation) on June 29, 2000, seeking offers to supply information technology services to its Office of Research and Development facilities and other EPA offices around the country. Id. If 5. The Solicitation specified that “[t]he Government will make award to the responsible offeror(s) whose offer conforms to the solicitation and is most advantageous to the Government cost or other factors considered. For this solicitation, all evaluation factors other than cost or price when combined are significantly more important than cost or price.” Defendant’s Partial Administrative Record (AR) at 157. The Solicitation also provided that the EPA would conduct a technical evaluation of bid proposals on a 100 point scale, distributed as follows:

1. Past Performance 20 points

2. Written Technical Proposal 40 points

3. Use of Small Disadvantaged 5 points Businesses

4. Key Personnel/Oral Presen- 25 points tations

5. Start-Up Plan 10 points

Id. at 158.

OAO submitted a bid with a proposed cost of [] and received a technical score of [],

distributed as follows:

1. Past Performance [ ] points
2. Written Technical Proposal [ ] points
3. Use of Small Disadvantaged [ ] points Businesses
4. Key Personnel/Oral Presen- [ ] points tations
5. Start-Up Plan [ ] points

AR at 427. CSC proposed a cost of $204,950,389 million [ ] and received a technical score of 76.7 points [ ] as follows:

1. Past Performance 16.73 points
2. Written Technical Proposal 32 points
3. Use of Small Disadvantaged Businesses 3 points
4. Key Personnel/Oral Presentations 17 points
5. Start-Up Plan 8 points

Id. The EPA awarded the FAIR II Contract to CSC. Compl. ¶ 18.

According to plaintiff, this award was improper because 1) CSC misrepresented the availability of key personnel in its proposal; [480]*4802) defendant did not engage in meaningful discussions with OAO; 3) defendant did not properly evaluate the competing proposals; and 4) defendant did not award the contract to the best value proposal, as required by the Solicitation. Compl. 111. Plaintiff seeks, a temporary restraining order (TRO) or preliminary injunction to allow it, as the incumbent contractor, to continue performance of its FAIR contract while this protest is pending. Memorandum in Support of Plaintiffs Motion for Temporary Restraining Order and/or Preliminary Injunction (TRO Mot.) at 19.

II. Discussion

A. Standard of Review

To obtain a TRO or preliminary injunction, plaintiff must show:

1. a specific, irreparable injury if the court does not enjoin contract performance;

2. a substantial likelihood of success on the merits;

3. the harm to plaintiff outweighs the harm to defendant; and

4. that granting preliminary relief is in the public interest.

11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure (Wright & Miller) § 2948 (1995); W & D Ships Deck Works, Inc. v. United States, 39 Fed.Cl. 638, 647 (1997) (“When deciding if a TRO is appropriate in a particular case, a court uses the same four-part test applied to motions for a preliminary injunction”). A TRO or preliminary injunction is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane § 2948. Courts reviewing the award of government contracts under the so-called Scanwell jurisdiction, Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C.Cir.1970), advised a stringent application of judicial restraint in the grant of injunctive relief, particularly with respect to the courts’s determination of plaintiffs likelihood of success on the merits. Princeton Combustion Research Laboratories, Inc. v. McCarthy, 674 F.2d 1016, 1019 (3d Cir. 1982); Saco Defense Sys. Div., Maremont Corp. v. Weinberger, 606 F.Supp. 446, 450 (D.Me.1985). This advice seems particularly apt where, as here, the agency action will be accorded the deference of review under the standards set forth in the Administrative Procedure Act.

B. Irreparable Injury

To demonstrate an irreparable injury, a plaintiff must show that without a preliminary injunction or TRO it will suffer irreparable harm before a decision can be rendered on the merits. Preliminary relief is generally not available if money damages would provide an adequate remedy. 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane § 2948.1; Hughes Network Sys., Inc. v. InterDigital Communications Corp., 17 F.3d 691, 694 (4th Cir.1994); Nuclear-Chicago Corp. v. Nuclear Data, Inc., 465 F.2d 428, 430 (7th Cir.1972). Only in extraordinary circumstances, such as the prospect of insolvency or an inability to collect damages, will monetary damages alone give rise to irreparable harm. See, e.g., 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane § 2948.1; Hughes, 17 F.3d at 694; Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir.1984).

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OAO Corp. v. United States, 49 Fed. Cl. 478, 2001 U.S. Claims LEXIS 86, 2001 WL 543146 (uscfc 2001).

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