Payne Hackenbracht & Sullivan

Preventing the Opening of Bids By Obtaining a Temporary Restraining Order and Preliminary Injunction

A prospective bidder can bring an injunctive and declaratory action to preserve the status quo pending a final determination on the merits of objections to a solicitation issued, or procurement process being followed by, a Federal agency. To do so, a prospective bidder needs to file an action with a Federal District Court to require the agency to formulate a solicitation consistent with statutory and regulatory guidelines.

The federal courts have the authority to review the contracting agency actions relating to the implementation of federal procurement statutes and regulations and the structuring of bid solicitations in accordance with those statutes and regulations, Aero Corporation v. Department of the Navy, 558 F.Supp 404, (D.D.C. 1983), P&B Services, Inv. v. Gardens, 525 F. Supp. 1289 (D.D.C. 1981); Related Industries, Inc. v. United States, 2 Cl. Ct. 517 (Cl. Ct. 1983); American Electric Co. v. United States, 270 F. Supp. 689 (D. Hawaii, 1967).

The federal courts also have the jurisdiction to enjoin agency action related to this review of the procurement process. Aero Corporation, supra, Trinity Services, Inc., et al. v. W. J. Usery, 428 F.Supp. 318 (D.D.C. 1976). 28 U.S.C. 1331 relating to a federal question, the Administrative Procedure Act, 5 U.S.C. 702-706; and the Declaratory Judgement Act, 28 U.S.C. [Set 4,6]2201-2202, are the statutes that provide a Federal district court with jurisdiction to grant the type of relief requested, Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970). Since a prospective bidder is requesting relief prior to the opening of any bids, the United States Court of Federal Claims does not have jurisdiction. Eagle Construction Corp. v. United States, 4 Cl.Ct. 470 (1984).

The federal courts have set certain standards for reviewing requests for injunctive relief. In Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921 (D.C. Cir. 1958), the District of Columbia Circuit set forth the following standards for temporary injunctive relief.

1. Substantial probability that the plaintiff will prevail on the merits;

2. Irreparable harm to plaintiff unless the injunction is granted;

3. Absence of substantial harm to other interested parties; and

4. Absence of harm to the public interest.

The evidence presented for each of these criteria is balanced by the court on a sliding scale analysis; a much stronger showing on one or more of the necessary factors lessens the amount of proof required for the remaining factors. WMATA v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977).