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 STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiffs' Complaint
for Temporary Restraining Order and Preliminary Injunction.
Doc. 1. On December 11, 2018, this Court GRANTED
Plaintiffs' Motion for Temporary Restraining Order and
ORDERED the parties to appear on December 14, 2018 for a
hearing regarding whether the Court should grant
Plaintiffs' request for a preliminary injunction. For the
reasons stated below, the Court GRANTS
Plaintiffs' request for a preliminary injunction under
the following terms:
Defendant, the United States of America, is
ENJOINED from proceeding with the
procurement of and specifically from making any award of the
subject Fort Benning Food Service Contract until a decision
in arbitration under the Randolph-Sheppard Act has been
rendered or upon further order of this Court.
Court's preliminary injunction is conditioned upon
Plaintiffs posting a $100, 000 cash or surety bond effective
for the duration of the injunction.
Court's preliminary injunction is further conditioned
upon GA-SLA and Mr. Lee's company continuing to provide
food services to Fort Benning under the same terms provided
in the 2016 contract during the duration of the injunction
should the appropriate Ft. Benning contracting officer
provide the opportunity to do so.
Although the Court granted Scott-Grace's motion to
intervene, it imposes no obligation upon it in this order.
Plaintiffs attempted to call into question Scott-Grace's
eligibility to qualify as a veteran owned small business, but
there is insufficient evidence before this Court for it to
consider this issue.
dispute arises under the Randolph-Sheppard Act
("RSA"), which requires federal entities to provide
priority for blind persons licensed by state agencies to
operate vending facilities on federal property. 20 U.S.C.
§ 107; 34 C.F.R. § 395.33(a). Plaintiff, Georgia
Vocational Rehabilitation Agency Business Enterprise Program
("GA-SLA") is the authorized State Licensing Agency
for the state of Georgia, and Plaintiff. Michael Lee
("Mr. Lee") is a "blind person" under the
Plaintiffs have been performing the food services contract at
the military base in Fort Benning, GA ("Fort
Benning") for the past fifteen (15) years. In 2016,
Plaintiffs were awarded a thirty-five-month contract to
perform food service operations at Fort Benning, consisting
of an eleven-month base period followed by two one-year
option periods ("The 2016 Contract"). The
Government exercised its first option to renew, but declined
to exercise its second option to renew, citing cost as a
factor. In 2018, the Government issued a new solicitation
(the "Solicitation") for bids to award a five-year
contract for the operation of food services at Fort Benning,
with a program ceiling of SI90 million to be paid over the
five-year period. The Solicitation was set aside for
Service-Disabled Veteran Owned Small Businesses, with the
exception that priority would be given to eligible blind
vendors under the RSA. Plaintiffs submitted a proposal for
the Solicitation, along with Scott-Grace ("Intervenor
Defendant'') and XXXXX other
Government intended to award the contract using the Lowest
Priced Technically Acceptable ("LPTA") process,
which evaluates: (1) Technical Capability (Subfactor 1, Key
Personnel and Qualifications; Subfactor 2, Staffing Plan);
(2) Past Performance; and (3) Price. The Solicitation was for
an Indefinite Delivery/Indefinite Quantity
("ID/IQ") contract, under which contractors are
paid an amount for serving a set range of individuals at each
vending facility. As part of the "technical"
requirements of the Solicitation, each bid was supposed to
contain a staffing plan that accounted for serving each range
(also referred to as a "band") at each building
included in the Solicitation. Particularly, the Solicitation
provided that each bidder "shall identify the burdened
labor rates for each of [the] labor categories" for
headcount bands in Building 2943.
Solicitation was also a no discussion solicitation.
Accordingly, no discussions with bidders were to take place
during the bid process, unless the contracting officer first
established a competitive range of bidders or another
evaluating each bid proposal using the LPTA factors, the
Government approved of a competitive
"range" of bidders. The competitive range of
bidders excluded all bidders except for Scott-Grace.
Scott-Grace's bid was the only bid that the Government
deemed acceptable based on technical capability, past
performance, and reasonable price, GA-SLA and another bidder
were deemed acceptable based on technical capability and past
performance; however, both of their proposed contract prices
were deemed "unreasonable." During the evaluation
process, the Contract Management Office indicated that GA-SLA
and others had submitted fully burdened labor rates, white
Scott-Grace alone did not. Scott-Grace's proposal was the only
proposal submitted with its original proposed contract price
lower than the program ceiling of XXXXX.
August 17, 2018, the Contracting Officer notified Plaintiffs
via letter that their bid was not considered to be within the
filed their complaint for Temporary Restraining Order and
Injunctive Relief on November 26, 2018. Doc. 1. On November
27, 2018, Plaintiffs filed their Motion for Temporary
Restraining Order. Doc. 2. On December 11, 2018, this Court
entered an Order GRANTING Plaintiffs' Motion for
Temporary Restraining Order and ordering the parties to
appear on December 14, 2018 for a hearing on Plaintiffs'
complaint for preliminary injunction. On December 14, 2018,
this Court held a hearing on Plaintiffs' complaint for
preliminary injunction and continued the temporary
restraining order until December 17, 2018 for further
briefing and closing arguments. Doc. 34. On December 17,
2018, the Court considered the further briefing and heard
closing arguments regarding Plaintiffs' complaint for
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. A preliminary
injunction is an "'extraordinary remed[y] involving
the exercise of a very far-reaching power to be granted only
sparingly and in limited circumstances." Sarsour v.
Trump, 245 F.Supp.3d 719, 728(E.D. Va. 2017).
for the Court to issue a preliminary injunction a party must
make a clear showing "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 lips 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.3d3O7, 320-21 (4th Cir. 2013) (each element
of the test must be satisfied). 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.
The Randolph-Sheppard Act
state licensing agency disputes a federal entity's
compliance with the RSA, the RSA requires that the state
licensing agency file a complaint with the Secretary of
Education to arbitrate the dispute before a district court
can review the merits of the state licensing agency's
claims. See 20 U.S.C. § 107d-1; Maryland State
Dep't of Educ. v. U.S. Dep't of Veterans
Affairs, 98 F.3d 165, 167 (4th Cir. 1996). Plaintiffs
have filed a complaint for arbitration with the Secretary of
Education, pursuant to the RSA. Doc. 1 -3. Plaintiffs,
however, request that this Court exercise ...