Serco, Inc. v. United States

101 Fed. Cl. 717, 2011 U.S. Claims LEXIS 2197, 2011 WL 5822174
CourtUnited States Court of Federal Claims
DecidedNovember 8, 2011
DocketNo. 11-735 C
StatusPublished
Cited by7 cases

This text of 101 Fed. Cl. 717 (Serco, 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
Serco, Inc. v. United States, 101 Fed. Cl. 717, 2011 U.S. Claims LEXIS 2197, 2011 WL 5822174 (uscfc 2011).

Opinion

OPINION and ORDER

BLOCK, Judge.

Before the court in this post-award bid protest is plaintiffs motion for reconsideration of this court’s denial of a temporary restraining order (“TRO”). Plaintiffs initial application for a TRO was filed on November 3, 2011, along with its bid protest complaint, motion for a preliminary injunctive relief, and a memorandum of law supporting its legal and factual allegations. The court held a status conference the next day during which it (1) established a rigorous scheduling order to expedite this litigation, (2) denied plaintiffs application for a TRO, (3) granted plaintiffs motions for a protective order, and leave to file the complaint and other pleadings under seal, and (4) granted Capstone Corporation’s (Capstone) motion to intervene as a third-party. The court explicitly refused to rule on plaintiffs pending motion for interim injunctive relief before the upcoming hearing could be held on cross-motions for judgment on the administrative record and for a preliminary or final injunction. See Rule 65(a)(2), Rules of the Court of Federal Claims (“RCFC”). The court hoped that the parties would resolve this matter given that it was in the mutual interest of the parties to agree. Unfortunately, that has not happened, and this court must now decide the motion based on limited materials before the full administrative record is filed. In light of the balance of the hardships favoring interim injunctive relief, and the need to preserve the status quo ante, plaintiffs application for a TRO is GRANTED.1 As explained below, to [720]*720protect the intervenor and the government in the event that the bid protest is denied, plaintiff is DIRECTED to post a bond in the amount of $300,000.00.

I. BACKGROUND

Plaintiff, Serco, Inc., (“Serco”) is the incumbent provider of personal effects (“PE”) services at the Human Resource Command of the Army’s Joint Personal Effects Depot (“JPED”). Compl. at 2. PE services include the receiving, safeguarding, inventorying, storing, processing, and final disposition of fallen soldier’s personal effects. Id. Serco has been providing the Army with PE services since 2004. Id. at 3. The Army issued a request for proposal (“RFP”) for PE processing services at JPED on March 1, 2011 because Serco’s contract was set to expire on July 31, 2011. Id. at 4. Capstone, a competitor of Serco’s, was awarded the new contract for PE processing. This bid-protest ensued.

On October 12, 2011, the General Accountability Office (“GAO”) denied plaintiffs protest. Appx. Tab B. Thereafter, on November 3, 2011, plaintiff filed its complaint, applications for a TRO and preliminary injunction, and a memorandum in support thereof with the court. In addition, plaintiff submitted an appendix containing various documents relating to the bid process, including, inter alia, excerpts from the Source Selection Plan (“SSP”), Appx. Tab 20; the RFP, Appx. Tab 4; plaintiffs proposal, Appx. Tab 7; Capstone’s proposal, Appx. Tab 6; and documents reflecting discussions between the Army and other bidders, the Army’s evaluation of the proposals, and the decision to award the contract to Capstone, Appx. Tab 8, 10, 13, 14, 17, 23, 24, and 26. The materials also include a letter from the contracting officer (“CO”) explaining the final cost estimate, Appx. Tab A. (Aug. 30, 2011); as well as two “Statements of Fact” by the CO purporting to describe the Army’s conduct during the procurement process, Appx. Tab 1 (Aug. 4, 2011), Tab 6 (Aug. 24, 2011).

Finally, the appendix contains the Declaration of Steven Sultan, Serco’s Vice President for Defense Personnel Services, dated November 1, 2007. Appx. Tab C. The Declaration states that Serco will lose [amount redacted] per month in revenue, of which [amount redacted] represents profits, if the court denies injunctive relief. Appx. Tab C at 2. It also states that Serco will have to terminate its employment of 134 individuals in the absence of injunctive relief. Appx. Tab C at 2. Mr. Sultan in his Declaration alleges that it would be “very difficult” for Serco to rehire these employees and that terminating them would increase Serco’s business and employment costs. Appx. Tab C at 2-5.

II. DISCUSSION

RCFC 65 authorizes this court to issue provisional injunctive relief, whether a TRO or a preliminary injunction. The court may grant such relief if plaintiff establishes (1) the likelihood of success on the merits, (2) the prospect of irreparable ham to plaintiff in the absence of injunctive relief, (3) the balance of hardships, and (4) the public interest. FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.Cir.1993) (permanent injunction); CC Distribs., Inc. v. United States, 65 Fed.Cl. 813, 815 (2005) (TRO) (citing PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed.Cir.2004)); see also Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (“[W]here an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff.”). Further[721]*721more, in the context of bid protests, the Tucker Act also this court, in conducting its balancing, to “give due regard to the interests of national defense and national security and the need for expeditious resolution of the action.” 28 U.S.C. § 1491(b)(3); see also ViroMed, Labs., Inc. v. United States, 87 Fed.Cl. 493, 504 (2009).

This Federal Circuit balancing approach has a provenance rooted in “equity practice with a background of several hundred years of history.” Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 88 L.Ed. 754 (1944). Flexibility rather than rigidity has distinguished injunctive relief making it the “instrument for nice adjustment and reconciliation between the public interest and private needs.” Id. To be sure, it is inherent in the court’s balancing of competing public interests to weigh each harm or benefit based upon both its magnitude and likelihood of occurrence. Such an approach has a long lineage in the law dating back at least to Judge Learned Hand’s famous “sliding scale” formula for determining liability in negligence suits. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947); see also Linc Gov’t Servs., LLC v. United States, 96 Fed.Cl. 672, 701 (2010). Accordingly, when balancing the factors under the “sliding scale” or balancing approach, a weak showing of likelihood of success on the merits could be cured by a strong showing that the balance of the equities favors plaintiff, or vice versa. Standard Havens Prods., Inc. v. Gencor Indus., 897 F.2d 511

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101 Fed. Cl. 717, 2011 U.S. Claims LEXIS 2197, 2011 WL 5822174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/serco-inc-v-united-states-uscfc-2011.