# In the United States Court of Federal Claims

No. 17

- 449

Filed: M arch 29, 2017 at 18:30 (E.S.T.)

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CONTINENTAL SERVICES *

GROUP, INC., * *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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MEMORANDUM OPINION A ND TEMPORARY RESTRAINING ORDER

I. RELEVANT FACTS AND PROCEDURAL HISTORY. 1

On December 11, 2015, the United States Department of Education ( “ ED ” ) issued

Solicitation No. ED

- FSA

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- R

- 0009 ( “ the Solicitation ” ) for “ the collection and administrative

resolution of debts resulting from non

- payment of student loans and grants made under several

federal programs, including the Federal Family Education Loan Program, Stafford Loans, Federal

Perkins Loans, and the Pell Gran t Program

. ” Compl. at ¶ 25. Under the Solicitation, ED would

award an “ Indefinite Delivery Indefinite Quantity contract [with] a five (5) year Base Ordering

Period [ and] an additional Optional Ordering Period of five (5) years. ” Compl. at ¶ 26.

On February 22, 2016 and February 29, 2016 , Continental Services Group, Inc.

( “ Continental Services ” ) submitted an offer for the S o licitation

. Compl. at ¶ 35.

On December 9, 2016, ED notified Continental Services that it was not selected for award ;

Continental Services requested a debriefing. Compl. at ¶ 19. On December 29, 2016, ED issued

a D ebriefing L etter, stating that

,

Although [Continental Services ’ ] proposal was one of the most highly rated

proposals, [ Continental Services]

, was not selected for an award based on the fact

that the [ ED] determined that they were not responsible [because] [ C o ntinental

Services] did not submit an acceptable subcontracting plan that reflects and is

1 The relevant facts and procedural history are derived from the C ontinental Services

Group, Inc. ’ s M arch 28, 2017 ( “ Compl. ” ) and the court ’ s March 29, 2017 Status Conference

. Temporary Restraining Order

RCFC 65(d)2

consistent with the commitments it offered in its small business participation plan,

as required by the Solicitation.

Compl. at ¶ 51.

On January 3, 2017, Continental Service s filed bid protest at the General Accountability

Office ( “ GAO ” ) . Compl. at ¶ 60. Because Continental Services filed a bid protest in the GAO

within five days of re ceiving a debriefing, the bid protest triggered an automatic stay of the

performance, pursuant to 31 U.S.C. § 3553(d)(3)(A), (4)(B). Compl. at ¶ 60. “ Several other

disappoint ed offerors also filed protests of this procurement at the GOA

. ” Compl. at ¶ 60. Some

of these protests a lso triggered the automatic stay. Compl. at ¶ 60.

On March 28, 2017, C o ntinental Services filed a Complaint in the United States Court of

Federal Claims. ECF N o. 1. On March 29, 2017, the court convened a Status Conference. Du ring

the status conference, the Government informed th e court that the stay (s)

, pursuant to 31 U.S.C. §

3553(d)(3)(A), (4)(B)

, h ad not been lifted

, because the GAO had decide d another simi lar protest

. The Government also represented that the GAO m ay issue a decision in that case in the near future

,

at whic h point the automatic stay would be lifted and performance would begin on the c ontract

. The Government was not clear whether the GAO lifted the s tay in the bid protest filed concerning

Continental Services. T h e Governm ent, howe ver, advised the court that it c ould not currently

commit to staying performanc e

, pending the resolution of t his bid protest before the United States

Court of Federal Claims. Continental Services advised t he court that ED has been undermining

the GAO automatic stay by t ransferring work t o be performed under the stayed contracts to other

contractors to circumvent or moot this pending bid protest.

On March 29, 2017, Continental Services filed a Motion For Temporary Restraining Order

( “ TRO ” ) , pursuant to Rule of the United States C o urt of Federal Claims ( “ RCFC ” ) 65 (d)

. ECF

No. 7.

II. DISCUSSION.

On a motion for temporary injunctive relief, t he court must weigh four factors: “ (1)

immediate and irreparable injur y to the movant; (2) the movant ’ s likelihood of success on the

merits; (3) the public interest; and (4) the balance of hardship on all the parties. ” U.S. Ass ’ n of

Importers of Textiles & Apparel v. United States, 413 F.3d 1344, 1347

- 48 (Fed. Cir. 2005). “ No

one factor , taken individually, is necessarily dispositive

. . . . [T]he weakness of the showing

regarding one factor may be overborne by the strength of others. ” FMC Corp. v. Unite d States , 3

F.3d 424, 427 (Fed. Cir. 1993) (emphasis added).

Regarding the first factor, the court has determined that Continental Services would be

imme diately and irreparably injured, i f ED move d forward with performance on the contr a ct at

issue in this case

, or otherwise transferred work to another contracting vehi cle to circumvent or

moot this bid protest.

Regarding the second factor, since the Government has not yet produced the

Administrative Record and the parties have not had an opportunity to brief the merits of this bid

protest, the court is not in a position to decide Continental Services ’ likelihood of success.3

Regarding the third factor, the public inter est is served by open and fair com petition in

public procurement and preserving the integrity of the competitive pro cess. See PGBA, LLC v.

United States , 57 Fed. Cl. 655, 663 (2003)

.

Regarding the fourth factor, the balance of hardships weighs in favor of Continental

Services . Courts have generally recognized that any harm to the Government caused by delay in

performance is generally less significant than the harm caused to the bid protestor. Id

.

For these reasons, the court has determined that the weight of the factors is in favor of

injunctive relief

. See FMC Corp , 3 F.3d a t 427 ( “ [T]he weakness of the showing regarding one

factor may be overborne by the strength of others

. ” )

. Accordingly

, it is hereby ordered that the

United States of America, the U nited States Department of Education , and their officers, agents,

servants, employees, and representatives are Temporarily Restrained , pursuant to RCFC 65 (d)

, from :

(1) authorizing the purported awardees to perform on the contract a ward under Solicitation

No. ED

- FSA

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- 0009 for a period of f ourteen days

, i.e. until April 12 , 2017; and

(2) transferring work to be performed under the contract at issue in this case to o ther

contracting vehicles to circumvent or moot this bid protest for a period of f ourteen days

, i.e. until April 12 , 2017

.

IT IS SO ORDERED.

s/Susan G. Braden

SUSAN G. BRADEN

Chief Judge