PNM Construction Inc. v. United States

34 Cont. Cas. Fed. 75,409, 13 Cl. Ct. 745, 1987 U.S. Claims LEXIS 218, 1987 WL 20987
CourtUnited States Court of Claims
DecidedNovember 30, 1987
DocketNo. 655-87C
StatusPublished
Cited by8 cases

This text of 34 Cont. Cas. Fed. 75,409 (PNM Construction Inc. 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
PNM Construction Inc. v. United States, 34 Cont. Cas. Fed. 75,409, 13 Cl. Ct. 745, 1987 U.S. Claims LEXIS 218, 1987 WL 20987 (cc 1987).

Opinion

OPINION

FUTEY, Judge.

Plaintiff, a general construction contractor which submitted the lowest bid on a contract solicited by the Department of the Air Force, brought suit in this court seeking injunctive and declaratory relief to enjoin defendant from awarding the contract to any other bidder and declare invalid defendant’s determination that plaintiff is non-responsible, or alternatively to declare the contract specifications defective, enjoin any award of the contract, grant plaintiff damages for its bid preparation costs, and order a resolicitation. Defendant has asked that the injunctive and declaratory relief sought by plaintiff be denied, and has moved for an entry of summary judgment dismissing plaintiff’s complaint. For the reasons stated hereinafter, the injunctive and declaratory relief sought by plaintiff is denied, and the complaint is dismissed.

FACTS

On June 15, 1987, the United States Air Force issued an invitation for bids on Solicitation No. F28609-87-B-0029, a contract for the replacement of exterior doors and windows in residential housing at McGuire Air Force Base, New Jersey. PNM Construction, Inc. (PNM) submitted a bid for the contract and, when the bids were opened on August 6, 1987, was found to be the lowest bidder at $930,120. The Air [747]*747Force contracting officer, however, determined PNM to be a non-responsible bidder and declined to award the contract. In his determination, dated September 8, 1987, the contracting officer cited plaintiff’s “previous history of poor quality workmanship and lack of timeliness” as grounds for finding that PNM was “technically incapable of performing (the) work as required by the specifications and drawings.”

As plaintiff is a small business concern, the matter was referred to the Small Business Administration (SBA) under 15 U.S.C. § 637(b)(7) for a review of the procuring agency’s determination. In a letter to PNM dated September 11, 1987, SBA advised that it would conduct an independent review of plaintiff’s capabilities and, if a favorable decision was reached, issue a certificate of competency (COC) binding the Air Force to award the contract to PNM. Upon completion of this review, however, SBA declined to issue plaintiff a COC. By letter dated October 6, 1987, SBA advised PNM that it found “no sufficient reason for disagreeing with the decision of the contracting officer,” that the “firm’s production and quality assurance is unsatisfactory for this procurement.”

PNM filed its complaint and motion for a temporary restraining order in this court on October 21, 1987. A telephone conference was held the same day in which defendant agreed not to award the subject contract for 30 days, up to and including November 20, 1987. The court ordered the parties to confer as to further proceedings and advise the court of their proposal in a telephone conference scheduled for October 29, 1987. Following this conference, the court ordered a hearing on the merits for November 18, 1987. Trial was held on the said date in Washington, D.C., wherein plaintiff moved for a permanent injunction. At the close of proceedings, defendant agreed to withhold the award of the contract through November 30, 1987.

DISCUSSION

The court’s jurisdiction over this pre-award contract action is conferred by 28 U.S.C. § 1491(a)(1) and (a)(3), The latter section provides as follows:

“To afford complete relief on any contract claim brought before the contract is awarded, the court shall have exclusive jurisdiction to grant declaratory judgments, and any such equitable and extraordinary relief as it deems proper, including but not limited to injunctive relief....”

See United States v. John C. Grimberg Co., Inc., 702 F.2d 1362 (Fed.Cir.1983) and National Forge Co. v. United States, 779 F.2d 665 (Fed.Cir.1985).

In its complaint and motion for a temporary restraining order, plaintiff alleged that injunctive relief is warranted because (1) the U.S. Air Force and SBA violated plaintiff’s due process rights under the U.S. Constitution in their review of PNM’s capacity to perform under the contract, (2) defendant SBA’s refusal to grant a COC was arbitrary and capricious, constitutionally infirm, and exceeded its statutory jurisdiction insofar as the determination was based on the interpretation of the contract specifications rather than the bidder’s responsibility, or (3) the contract specifications are defective, necessitating a resolici-tation by the Air Force.

In considering whether injunctive relief should be granted in bid protest actions under 28 U.S.C. § 1491(a)(3), this court has looked to the following factors:

(1) the likelihood of plaintiff’s “success on the merits;”
(2) the “public interest,” including any overriding public interest which would warrant, in 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.

Isometrics, Inc. v. United States, 11 Cl.Ct. 346 (1986); Drexel Heritage Furnishings, Inc. v. United States, 3 Cl.Ct. 718 (1983); [748]*748Heli-Jet Corp. v. United States, 2 Cl.Ct. 613 (1983).

SUCCESS ON THE MERITS

As the instant case has already been tried on the merits, of course, success thereon is now a prerequisite for plaintiff to obtain the injunctive relief sought. The burden of proof is high for a plaintiff seeking to establish entitlement to injunctive relief. As stated in Baird Co. v. United States, 1 Cl.Ct. 662 at 664 (1983):

“Judicial review of an agency’s pre-award procurement decision is, and should be, extremely limited in scope. The court should not substitute its judgment on such matters for that of the agency, but should intervene only when it is clearly determined that the agency’s determinations were irrational or unreasonable. It is the burden of the aggrieved bidder to demonstrate that there was no rational basis for the agency’s deter-minations____ Where injunctive relief is sought, which relief is deemed drastic in nature, the court must exercise great caution and even then, the aggrieved bidder should be made to establish its right to such drastic relief by means of clear and convincing evidence.” (Emphasis added.)

Isometrics, supra, Drexel Heritage Furnishings, Inc. v. United States, 7 Cl.Ct. 134 (1984), and Hayes International Corp. v. United States, 7 Cl.Ct. 681 (1985), also articulated the foregoing requirements that a disappointed bidder must clearly demonstrate that the agency determinations had no rational basis.

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Bluebook (online)
34 Cont. Cas. Fed. 75,409, 13 Cl. Ct. 745, 1987 U.S. Claims LEXIS 218, 1987 WL 20987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pnm-construction-inc-v-united-states-cc-1987.