In the United States Court of Federal Claims

Nos. 19-308C, 19-331C, 19-372C, 19-441C, 19-472C, 19-478C (consolidated)

(Filed: April 24, 2019)

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Motion for Preliminary Injunction; 

Likelihood of Success on the Merits; 

Irreparable Harm; Balance of

Hardships; Public Interest; 28 U.S.C. § 

1491(b); RCFC 65(d); Preserve Status 

Quo; Court’s Ability to Grant 

Meaningful Relief.

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FMS INVESTMENT CORP., et al., *

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 Plaintiff, *

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v. *

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UNITED STATES, *

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 Defendant, *

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David R. Johnson, with whom were Tyler E. Robinson and Ryan D. Stalnaker, Vinson &

Elkins LLP, Washington, DC, for Plaintiff FMS Investment Corp.

Todd J. Canni, with whom were Richard B. Oliver, Alexander B. Ginsberg, J. Matthew 

Carter, Aaron S. Ralph, and Kevin R. Massuodi, Pillsbury Winthrop Shaw Pittman LLP, 

Los Angeles, California, for Plaintiff Continental Service Group, Inc. 

Townsend L. Bourne, with whom were Jonathan S. Aronie and Shaunna Bailey, Sheppard 

Mullin, Richter, & Hampton LLP, Washington, DC, for Plaintiff Account Control 

Technology, Inc. 

William M. Jack, with whom were William MacLeod, David E. Frulla, Amba M. Datta, 

and Elizabeth C. Johnson, Kelley Drye & Warren LLP, Washington, DC, for Plaintiff GC 

Services Limited Partnership. 

David T. Ralston, Jr., with whom were Frank S. Murray, Micah T. Zomer, and Krista A. 

Nunez, Foley & Lardner LLP, Washington, DC, for Plaintiff Windham Professionals, Inc. 

David R. Pehlke and Alexis J. Echols, Trial Attorneys, with whom were Jana Moses, Trial 

Attorney, Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, 

Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, 

U.S. Department of Justice, Washington, DC, as well as Tracey Sasser, Assistant General 

Counsel, Division of Business and Administrative Law, U.S Department of Education, 

Washington, DC, for Defendant. 
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OPINION AND ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

WHEELER, Judge.

Once again, this Court must decide whether a group of plaintiff Private Collection 

Agencies (“PCAs”) are entitled to a preliminary injunction forcing the Department of 

Education (“ED”) to buy more of the PCAs’ defaulted student debt collection services until 

this Court resolves their challenge to ED’s latest attempt to procure integrated student loan 

administration and collection services. 

The PCAs are currently servicing student loan accounts for ED under Award Term 

Extensions (“ATEs”) that will expire on April 21, 2019. The PCAs ask this Court to (i) 

order ED to extend their contracts until this protest is resolved and ED makes a lawful 

contract award for defaulted student debt collection services and (ii) bar ED from recalling 

the accounts that the PCAs currently service. For the reasons below, the PCAs’ motions 

for a preliminary injunction are DENIED. 

Background

The PCAs’ motions arise from a series of bid protests involving ED solicitations for 

defaulted student debt collection services and other student loan administration services. 

In 2015, ED issued an initial solicitation for defaulted student debt collection services. A 

cycle of contract awards, protests (including this one), corrective actions, and court 

decisions ensued, which have prevented ED from making and executing a contract award.

In 2017, ED began working to integrate defaulted student debt collection services 

with other student loan administration services, according to a plan it dubbed “NextGen.”

ED planned to procure all of the services necessary to administer and collect on its student 

loan portfolio through a single NextGen procurement. See FMS Inv. Corp. v. United 

States, 139 Fed. Cl. 221 (2018) clarified by 139 Fed. Cl. 439. In May 2018, ED cancelled 

the 2015 PCA solicitation, claiming that NextGen would make the PCA procurement 

superfluous. Id. In September 2018, this Court enjoined the cancellation as insufficiently 

supported by the administrative record. Id.

In October 2018, a group of PCAs filed protests in this Court challenging ED’s 

NextGen solicitation, arguing that, after the Court’s September injunction, ED improperly 

shoehorned defaulted student debt collection services into Phase II of the NextGen

procurement after already downselecting offerors from Phase I. See Navient Solutions, 

LLC, et al., v. United States, 141 Fed. Cl. 181, 182-83 (2018). 

In December 2018, ED decided to take corrective action to address the protest 

grounds, but FMS Investment Corp. (“FMS”) (which was also a plaintiff in that protest) 

still asked this Court for a preliminary injunction preventing its ATE from ending in April 
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2019 and ordering ED to give it more accounts to service. Id. at 182. This Court denied 

the motion, reasoning that granting FMS’s requested relief would go beyond preserving

the status quo that existed before the litigation began and would provide a remedy

exceeding the scope of relief available to FMS upon final judgment. Id. at 184-85. 

In January 2019, ED completed its corrective action and reissued three separate 

NextGen solicitations, including one calling for proposals on defaulted debt collection 

work. Inevitably, a group of PCAs challenged the three solicitations (the current protest)

alleging, among other defects, illegal bundling of defaulted debt collection services with 

other student loan administration services. On March 6, 2019, ED cancelled the 2015 PCA 

solicitation—again—and the protesters modified their claims to allege that ED’s second 

attempt to cancel that procurement is also illegal.

Five PCAs filed motions for a preliminary injunction. The PCAs claim that they 

will suffer irreparable harm if their ATEs end, as scheduled, on April 21, 2019, while their 

protests are pending. The Government responds that the PCAs are unlikely to win on the 

merits and that the Court lacks jurisdiction to enjoin the ATEs from expiring because they

lack a sufficient nexus to the underlying protest. 

Analysis

This Court has broad authority to order injunctive relief in bid protest cases. See 28 

U.S.C. § 1491(b). But a “preliminary injunction is an extraordinary and drastic remedy” 

that is not “routinely granted.” Akal Sec., Inc. v. United States, 87 Fed. Cl. 311, 316 (2009).

In deciding whether to grant a preliminary injunction, the Court weighs four factors: (1) 

the likelihood of plaintiff’s success on the merits; (2) the prospect of irreparable harm to 

the plaintiff in the absence of injunctive relief; (3) the balance of hardships; and (4) the 

public interest. KWV, Inc. v. United States, 108 Fed. Cl. 448, 455 (2013). 

A court usually issues a preliminary injunction to preserve the status quo that existed 

before the litigation began until the court can make a final decision on the merits. Cont’l

Serv. Grp., Inc. v. United States, 722 Fed. App’x 986, 994 (Fed. Cir. 2018) (citing Litton 

Sys., Inc. v. Sunstrand Corp., 750 F.2d 952, 961 (Fed. Cir. 1984)). A court may also issue 

a preliminary injunction to preserve the court’s ability to grant meaningful relief upon 

reaching a final decision. See id. at 995 (citing 11A Wright & Miller, Fed. Practice and 

Procedure § 2948 3d ed. 1998). Preliminary injunctions can compel affirmative acts if 

necessary to achieve either end. See, e.g., id. (citing 11A Wright & Miller § 2948); Canal 

Auth. of State of Fla. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974) (citations omitted). 

The PCAs ask this Court to (i) order ED to extend their contracts until the protest is 

resolved and ED makes a lawful contract award for defaulted student debt collection 

services and (ii) bar ED from recalling the accounts that the PCAs currently service. This 

relief would serve neither valid purpose for granting a preliminary injunction. 
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When the litigation began, ED was free to let the PCAs’ ATEs expire on April 21, 

2019. That is still the case. Ordering ED to funnel more business to the PCAs—an option 

committed to ED’s discretion under the ATEs’ terms—merely because the PCAs are 

protesting a different ED solicitation to procure defaulted student debt collection services,

would alter the status quo, not preserve it. See Cont’l Serv. Grp., Inc., 722 Fed. App’x at 

994; Navient Solutions, LLC, et al., 141 Fed. Cl. at 184-85. 

A preliminary injunction is also unnecessary to preserve the Court’s ability to grant 

meaningful relief in the underlying protest. If the PCAs succeed on the merits, denying

the motions for preliminary injunction here will have no impact on the Court’s power to 

enjoin ED from cancelling the PCA solicitation and moving ahead with the NextGen 

solicitations. This is the case because the PCAs’ claimed irreparable harm of going out of 

business arises from the ATEs expiring, not the underlying protest grounds. 

The PCAs also argue that this Court can provide the relief they request because “ED 

has abandoned any pretense of conducting the PCA solicitation in good faith.” FMS Reply 

at 5-6 (citing Cont’l Serv. Grp., 722 Fed. App’x at 995-96 (finding no evidence of bad faith 

in ED’s conduct of the procurement at issue)). Agency bad faith can be evidence of 

likelihood of success on the merits of the underlying protest, but it cannot expand the 

Court’s power to grant injunctive relief. Regardless, the PCAs’ requested relief has nothing 

to do with the performance and expiration of the ATEs according to their terms, or with 

the relief the PCAs would be entitled to if they won the underlying protest. 

Conclusion

Applying the above analysis to the four-factor test, the Court concludes that (1) the 

PCAs’ likelihood of success on the merits of the underlying protest is irrelevant to the 

preliminary relief that they seek, and (2) the PCAs’ claimed irreparable harm does not stem 

from the lack of injunctive relief, but from their ATEs in a different procurement expiring 

as scheduled. Thus, factors (1) and (2) wholly favor the Government, and the Court need 

not address factors (3) and (4). 

As this Court previously noted, “[the PCAs] chose to depend upon ED contracts to 

survive.” Navient Solutions, LLC, 141 Fed. Cl. 181, 185 (2018). “The Court’s power to 

issue a preliminary injunction does not exist to remedy” harm arising from the PCAs’ own 

business decisions. Id. The Plaintiffs’ motions for a preliminary injunction are DENIED. 

IT IS SO ORDERED.

s/ Thomas C. Wheeler 

THOMAS C. WHEELER

Judge