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Small Business Contractor Entitled to Preliminary Injunction
A preliminary injunction was granted in a pre-award bid protest seeking to
enjoin the government from evaluating a proposal solicited using full and open
competition because, according to the Court of Federal Claims, the protester had
a chance to succeed on the merits and demonstrated it would suffer irreparable
harm if it did not receive equitable relief, the balance of the hardships
weighed in favor of the protester, and the injunction served the public
interest. The small business protester was the incumbent contractor on a
contract to provide programmatic services in support of a weapon systems
development. After the government chose to open the procurement to non-small
businesses, the contractor challenged the decision, arguing the government's
action was unreasonable and violated applicable procurement law, specifically
the "Total small business set-asides" provision in the Federal
Acquisition Regulation (FAR
19.502-2). In ruling on preliminary injunctive relief, a court weighs four
factors: the likelihood of protester's success on the merits, irreparable harm
to protester if the injunction is not granted, the balance of hardships on all
the parties, and the public interest.
"Compelling Showings"
Here, the government challenged the protester's likelihood of success on the
basis the court lacked jurisdiction, which is a predicate to qualify for success
on the merits. The court, however, had previously rejected the government's
jurisdictional challenge (53
CCF ¶79,067), and found unconvincing the government's argument the
protester's failure to submit a response to the solicitation rendered it a
non-interested party. An affidavit submitted by the protester stated it did not
submit a proposal because it was unfairly "pre-judged" by the
government to be "incapable of satisfying [the government's]
requirements." Although the reasonableness of the government's
determination and findings in support of using full and open competition could
not be discounted, the court concluded the protester "made compelling
showings with respect to the three other factors that outweigh the
prognostication of [the protester]'s ultimate success on the merits." With
regard to the second and third factors, the protester showed the irreparable
harm it would suffer if the interim injunction were denied outweighed the harm
the government might suffer. The contemplated delay would not unduly prejudice
the government, but the risk of harm associated with continuing the procurement
posed a greater danger to the protester in terms of both expense and opportunity
costs. Finally, the public interest would be served by assuring the government
follows appropriate procurement procedures. (Rhinocorps Ltd. v. U.S.,
FedCl, 53
CCF ¶79,095)
(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )
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