United States District Court, E.D. Virginia, Newport News Division
GEORGIA VOCATIONAL REHABILITATION AGENCY BUSINESS ENTERPRISE PROGRAM et al, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
OPINION & ORDER
COKE MORGAN, JR. SENIOR UNITED STALES DISTRICT JUDGE
matter comes before the Court on Georgia Vocational
Rehabilitation Agency Business Enterprise Program
("GA-SLA") and Michael C. Lee's ("Mr.
Lee") (collectively "Plaintiffs'") Motion
for Temporary Restraining Order (the "Motion").
Doc. 2. A hearing in this matter was held on Tuesday,
December 4, 2018 at 11:00 a.m. For the reasons stated below,
the Court GRANTED Plaintiffs' Motion.
Plaintiffs bring this action pursuant
to the Randolph-Sheppard Act ("RSA") and Army
Regulation ("AR") 210-25 against the United States
of America, by and through the Honorable James N. Mattis,
Secretary of Defense, The Honorable Mark Thomas Esper,
Secretary of the Army, and Contracting Officer Rhoda C.
Harrison-Spence, (collectively "the Government").
See Compl. Both the RSA and AR 210-25 provide
priority for blind persons in the operation of vending
facilities on Federal property. Compl. ¶ 1. Plaintiffs
are currently performing the food services contract at Fort
Benning and have been doing so "for over fifteen (15)
consecutive years." Id. ¶31. Plaintiffs
entered into its most recent food services contract with the
Government in July of 2016. The contract was awarded based on
Plaintiffs' competitive bid and provided for a one-year
contract with two optional renewal periods. The Government
exercised the first option to renew and renewed the contract
for an eleven-month period. However, the Government decided
not to exercise the second option to renew and instead
solicited new bids for a multi-year food services contract
contract was to be awarded by contracting officer, Rhoda C.
Harrison-Spence (the "Contracting Officer"), who is
Mission and Installation Contract Command at Fort Eustis, VA.
Id. GA-LSA submitted a proposal on behalf of Mr. Lee
in response to the Solicitation. Compl. ¶¶ 24. On
August 17, 2018, the Contracting Officer rejected the
GA-LSA's proposal because their "price was
determined to be unreasonably high." Compl. ¶
November 26, 2018, Plaintiffs filed a complaint for
arbitration with the Secretary of Education. Doc. 1-3
("Compl. Ex. C"). Plaintiffs claim that the
Contracting Officer violated the RSA by failing to consult
with the Secretary of Education before denying
Plaintiffs' proposal, Compl. ¶28, which failure is
governed in the improper computation of the competitive range
August 17, 2018, the Government rejected Plaintiffs'
proposal. On August 22, 2018, Plaintiffs filed a protest with
the Government Accountability Office ("GAO")
challenging their exclusion, which triggered a stay
preventing the Government from awarding the contract to
someone else. Doc. 12-1 ("Spence Decl.") ¶ 9.
On November 23, 2018, the GAO dismissed Plaintiffs'
protest. Id. On November 26, 2018, Plaintiffs filed
a complaint for arbitration with the Secretary of Education
and filed a complaint for Temporary Restraining Order and
Preliminary Injunction with this Court. Compl.
November 27, 2018, Plaintiffs filed their Motion for
Temporary Restraining Order. Doc. 2. The Government appeared
in the matter and filed a Notice on November 29, 2018. Docs.
6, 7. On November 30, 2018, this Court entered an Order
requiring the Government to file its response on or before
12:00 p.m. on December 3, 2018, and on December 3, 2018 the
Government promptly filed its response. This matter was heard
on December 4, 2018 at 11:00 a.m.
Rule 65 of the Federal Rules of Civil Procedure, the court
may issue a preliminary injunction after notice has been
provided to an adverse party. Fed.R.Civ.P. 65. "The
standard for granting either a TRO or a preliminary
injunction is the same." Sarsour v. Trump. 245
F.Supp.3d 719, 728 (E.D. Va. 2017). Like a preliminary
injunction, a temporary restraining order is an
'extraordinary remed[y] involving the exercise of a very
far-reaching power to be granted only sparingly and in
limited circumstances." Id.
for the Court to grant a motion for a temporary restraining
order the moving party must demonstrate "that he is
likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an
injunction is in the public interest." Id.
(citing Winter v. Natural Res. Def. Council Inc..
555 U.S. 7, 24 (2008)) (internal quotations omitted): see
also Pashby v. Delia. 709 F.3d 307, 320-21 (4th Cir.
2013) (each element of the test must be satisfied). "A
party seeking preliminary injunction ... must clearly show
that it is likely to succeed on the merits."
Sarsour. 245 F.Supp.3d at 729 (alterations and
quotation marks omitted). Irreparable harm means harm that is
"neither remote nor speculative, but actual and
imminent." Direx Israel. Ltd. v. Breakthrough Med.
Corp.. 952 F.2d 802, 812 (4th Cir. 1991). When
evaluating whether to issue an injunction, a court
"should pay particular regard for the public
consequences in employing the extraordinary remedy of
injunction." Winter. 555 U.S. at 24.
Summary of Argument
Plaintiffs move this Court to enter an Order temporarily
restraining the Government from:
(a) moving forward with the procurement process with respect
to the subject Solicitation, including but not limited to
making award of a contract to an offeror other than the
GA-SLA, entering into such a contract, or initiating
performance under such contract until
(i) a hearing has been held on a preliminary injunction and
the Court's orders with respect thereto have been issued,
(ii) an arbitration pursuant to the Randolph-Sheppard Act
("R-S Act") has been conducted and the R-S Act
arbitration panel has issued a decision with respect to the
GA-SLA's Complaint for Arbitration alleging the
Army's violation of the R-S Act arbitration decision, and
(iii) the Court has had the opportunity to review said
decision as a final agency action in accordance with the
Administrative Procedure Act, 5 U.S.C. §§ 701 et
seq. and issued orders with respect thereto; and
(b) awarding a contract to an offeror other than GA-SLA until
(i) a hearing on preliminary injunction and the Court's
orders with respect thereto as to whether the Army has fully
complied with Army Regulation 210-25, subparagraph 6.b.
(1)(c), particularly as regards the requirement for the
Army's requesting, receiving, and complying with the
approval or ...