# I n the United States Court of Federal Claims

No. 17-1875C

(E-Filed: July 5, 2018) 1

GLOBAL DYNAMICS, LLC,

Plaintiff,

v.

THE UNITED STATES,

Defendant,

and

GIACARE and MEDT RUST JV, LLC,

and

MEDTRUST, LLC,

Intervenor-defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Bid Protest; Sole-Source Bridge Contract; Permanent Injunctive Relief, 28 U.S.C. § 1491(b)(2) (2012).

Craig A. Holman, Washington, DC, for plain tiff. Michael E. Samuels and Alexandra L. Barbee-Garret, of counsel.

Tanya B. Koenig, Trial Atto rney, with whom appeared Chad A. Readler, Acting Assistant Attorney General, Robert E. Ki rschman, Jr., Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. Jess ica E. Hom and Evan

1 This opinion was issued under seal on Ju ne 28, 2018. The parties were invited to identify source selection, proprietary or conf idential material subject to deletion on the basis that the material was pr otected/privileged. No red actions were proposed by the parties. Thus, the sealed and public versions of this opinion are identical, except for the publication date and this footnote.2 C. Williams, United States Army Legal Servic es Agency, of counsel. John T. Harryman and Eugene J. Smith, Un ited States Army Medical Command, of counsel.

Jacqueline K. Unger, Washington, DC, for intervenor-defendants.

OPINION

CAMPBELL-SMITH, Judge.

Before the court is plaintiff’s renewed motion for permanent in junctive relief. See ECF No. 81. Defendant and intervenor-defendants filed responses. See ECF Nos. 81, 82. The motion is fully briefe d and ripe for ruling. For the following reasons, plaintiff’s

motion is DENIED

.

I. Background

This bid protest involves a dispute related to the award of a contract for registered nursing (RN) services for the San Antonio Military Healthcare System (SAMHS). See ECF No. 1 at 7-8 (complaint). Given that the court has previously issued two substantive opinions in this matter, see ECF Nos. 61, 78, it will not recount the detailed facts beyond

what is relevant to d eciding the issue presently before the court.

On February 27, 2018, the court issued an opinion and order in which it ruled on two of the three counts that pl aintiff alleges in its complaint. See ECF No. 61. The court

remanded the matter to the United States Department of the Army for additional development of the factual record with regard to the second, and only remaining, count. See id. Following remand pro ceedings before the agency, th e court granted plaintiff’s motion for judgment on the admi nistrative record as to the s econd count of the complaint,

and denied defendant’s and intervenor-defe ndants’ cross-motions for judgment on the

administrative record as to the second c ount of the complaint. See ECF No. 78.

Specifically, the court held:

[T]he fifth sole-source award lacked a rational basis, and therefore, the agency’s decision to make the award did not comport with the requirements for awarding a contract out side of the competitive pr ocess. See 10 U.S.C. § 2304(c)(1). The court also finds that pl aintiff was prejudiced by the agency’s error. In the long history of this proc urement, plaintiff has been awarded the

contract three times. S ee ECF No. 61 at 3-4. Thus, had the agency timely completed the corrective action and aw arded the contract, there is good reason to believe plaintiff had a substan tial chance of being the awardee. See Alfa Laval, 175 F.3d at 1367 (stating th at in order to establish prejudice, “ the protester must show ‘that there was a substantial chance it would have3 received the contract award but for that error’”) (quoting Statistica, 102 F.3d at 1582).

ECF No. 78 at 9. The court noted, however, that plaintiff failed to “address the factors for injunctive relief as they ap ply specifically to the second co unt of the complaint.” Id. In service of the court’s goal of “fashioni ng the proper remedy,” the court “extend[ed] plaintiff the opportunity to su bmit further analysis of whet her permanent injunctive relief is appropriate here, and how that remedy would be implemente d given the unique constraints of this case.” Id. That additional analysis, along with defendant’s and intervenor-defendants’ responses , is now before the court.

II. Legal Standards

Pursuant to the Tucker Act, this court has the authority to grant “any relief the court considers proper . . . including injunctiv e relief.” 28 U.S.C. § 1491(b)(2) (2012). As the United States Court of App eals for the Federal Circuit has held:

To determine if a permanent injunction is warranted, the court must consider whether (1) the plaintiff has succeeded on the merits, (2) the plaintiff will suffer irreparable harm if the court w ithholds injunctive re lief, (3) the balance of hardships to the respective parties fa vors the grant of injunctive relief, and (4) the public interest is served by a grant of injunctive relief.

Centech Grp., Inc. v. Unite d States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (citing PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004)).

III. Analysis

In this case, plaintiff has already prevailed on the merits of its claim. See ECF No. 78. As such, the court will focus its analys is on the remaining three factors required for permanent injunctive relief.

A. Irreparable Harm

With regard to irreparable harm, plainti ff argues that it will suffer irreparable harm in the form of the lost opport unity to compete fair ly for the award at issue. See ECF No. 81 at 9. It also alleges that a permanent injunction against performance of the remainder

of the fifth sole-source contract is the only remedy that would address the improper award. See id. at 9-10. In response, both defendant and intervenor-defendants argue that plaintiff will not suffer irreparable harm abse nt injunctive relief because plaintiff would not be eligible to compete for a new sole-sour ce bridge contract. See ECF No. 82 at 7-8;

ECF No. 83 at 6.4 Plaintiff is correct that th e lost opportunity to fairly compete for an award, and the resulting lost profits, generally qualify as i rreparable harm. See, e.g., Fed. Acquisition Servs. Team, LLC v. United St ates, 124 Fed. Cl. 690, 708 (2 016) (“It is well-established that the profits lost by an offeror because of the government’s arbitrary or unlawful rejection of an offer constitute irreparable injury for purposes of injunctive relief.”); Hosp. Klean of Tex., Inc. v. United States, 65 Fed. Cl. 618, 624 (2005) (“Here, absent injunctive relief, [the protestor] will lose the opportunity to earn the profit it would have

made under this contract. Such loss of profit, stemming from a lost opportunity to compete for a contract on a level playing fi eld has been found su fficient to constitute irreparable harm.”) (citations omitted). The a pplication of this gene rally straight-forward rule to this case, howev er, is more nuanced.

The harm that plaintiff will suffer must be prospective in nature. Plaintiff must show that it “will suffer irreparable harm if th e court withholds injunctive relief,” not that it has suffered irreparable harm as a result of defendant’s conduct. Centech, 554 F.3d at 1037 (citing PGBA, 389 F.3d at 1228-29). Plaintiff alleges that it will suffer irreparable

harm if the court declines to enjoin performance of the fi fth sole-source contract because

“MEDCOM will continue its sole source contract with MedT rust.” ECF No. 81 at 9. The only way that plaintiff could be harmedby the continued performance of the solesource contract, even given that it was improperly awarded, is if injunctive relief could put plaintiff in a position to receive an award and begin performance prior to the expiration of that contract, here September 30, 2018.

Plaintiff argues that the agency “has rece ived final proposal revisions from the two remaining offerors,” and states that it cons iders allowing the agency “another 22 days for the re-competition evaluation and 45 days for transition,” to be a reasonable timeframe in which performance could begin. ECF No. 81 at 13. Counting those days out from the date on which plaintiff filed its renewed motion, it concludes that performance on the new contract should begin no later than July 16, 2 018. See id.

In making its calculation, plaintiff failed to account for the time consumed by this litigation process. The court appreciates plaintiff’s desire for a quick result in this case, but plaintiff must be mindful of the delays interposed in this process, particularly by the need for supplemental briefing on this issue. At this point, even under plaintiff’s version of a reasonable timeframe for performance on a new contract to begin, only about three weeks would remain under the presently e ffective sole-source contract. Certainly irreparable harm may be suffered in the space of three weeks, but plaintiff would stand to

suffer far less than it asserts.

B. Balance of Hardships

As to the balance of hardships, plain tiff argues that it would suffer more harm absent injunctive relief than th e agency would suffer if such relief is granted. See ECF5 No. 81 at 11. Specifically, plai ntiff claims that it would “los e the opportunity to compete

for this work.” ECF No. 81 at 11. Plaintiff also suggests that it would suffer a separate hardship as a result of the ag ency’s apparent intention to allow full performance of the improper sole-source contract. See id. Plain tiff contends that the agency would suffer no hardship as a result of inju nctive relief because it would ha ve “ample time to complete

the corrective action and transitio n the work before Ju ly 16, 2018.” EC F No. 81 at 12. For its part, defendant claims that “plaintiff’s timeline is unr ealistic,” and contends that it would be “severely harmed” by an inju nction. ECF No. 83 at 7, 8.

Plaintiff would only be precluded from competing for the work left to perform

between a transition of the contract and Se ptember 30, 2018. As plaintiff notes, it remains an offeror with regard to the main procurement. See ECF No. 81 at 13. And the court agrees that plaintiff’s proposed date for termination of the present sole-source contract of July 16, 2018, is unreasonable. As explained above, this is true even under plaintiff’s own rationale. Therefore, the c ourt concludes that the balance of hardships militates against the requested injunction in this case.

C. Public Interest

With regard to how an injunction would impact the public interest, the court notes

that “[i]t is axiomatic that the p ublic has an interest in hone st, open, and fair competition in the procurement process. Whenever a pl aintiff is improperly excluded from that process, that interest is co mpromised.” Cincom Sys., Inc. v. United States, 37 Fed. Cl. 266, 269 (1997) (citing Magellan Corp. v. Un ited States, 27 Fed. Cl . 446, 448 (1993));

s ee also Alion Sci. & Tech. Corp . v. United States, 74 Fed. Cl . 372, 376 (2006) (“It is

well established that there is an overriding public interest in preserving the integrity of the federal procurement process by requiring government officials to follow procurement statutes and regulations.”) (c itation omitted); Metcalf Cons tr. Co. v. United States, 53 Fed. Cl. 617, 645 (2002) (noting the twin goa ls of preserving “public confidence and competition in the federal procurem ent process”) (citation omitted).

The court also recognizes the “paramount im port” of the public interest in protecting

services related to national de fense and national security. Se e Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 702 (2010) (quoting Al Ghan im Combined Gr p. Co. Gen.

Trad. & Cont. W.L.L. v. Unite d States, 56 Fed. Cl. 502, 5 21 (2003)). “This paramount interest is directly implicated when a procur ement involves services critical to the success of military operations and to th e health and safety of our servicemen and women in the field.” Id. The agency’s miss ion in this case implicates those concerns. See ECF No. 47- 1 at 1015 (administrative record) (“The missi on of the military healthcare system (MHS)

is to enhance our Nation’s s ecurity by ensuring the nation has a healthy military force capable of providing th e full range of military operations supported by a combat ready healthcare system sustaining the h ealth of DoD beneficiaries.”).6 In addition, as this court has noted, “pro tecting the public fisc ” is also a strong public interest. Furniture by Thurston v. United States, 103 Fe d. Cl. 505, 521 (2012). In order to protect this interest , injunctive relief may be inappr opriate “when a contract has been substantially completed.” Id. See also CW Gov’t Travel, Inc. v. United States, 163 Fed. App’x 853, 859 (Fed. Cir. 2005) (affirmi ng this court’s denial of injunctive relief despite a presumption of success on the merits and irreparable harm where a significant portion of the work on a contr act had been completed and a new contractor was not ready to immediately take over performance).

The court acknowledges the tension created in attempting to protect all of these public interests in the present case. Defenda nt has clearly acted improperly in awarding

the fifth sole-source contract in this inst ance. See ECF No. 78 . But despite the undeniable interest in protecting the fair ness of our procurement process, the court cannot, in good conscience, gr ant an injunction that would ri sk an interruption in medical services to military personnel and their dependents, particular ly given that the contract would be nearly complete by the time a tr ansition of services could be made. Accordingly, plaintiff has failed to demonstrat e that the public interest weighs in its

favor.

IV. Conclusion

For the foregoing reasons, plaintiff’s renewed motion for permanent injunctive relief, ECF No. 81, is DENIED

.

The clerk’s office is directed to ENTER final judgment in plaintiff’s favor as to the remaining claim (Count Two) in this ma tter, pursuant to the co urt’s April 25, 2018 opinion, ECF No. 78.

On or before July 13, 2018 , the parties shall CONFER and FILE a joint proposed redacted version of this opinion, with any co mpetition-sensitive or otherwise protectable informatio n blacked out.

IT IS SO ORDERED.

s/Patricia Campbell-Smith

PATRICIA CAMPBELL-SMITH Judge