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The Court of Federal Claims (“COFC”) recently rejected an attempt by the Army to bypass the strict requirements of a permanent injunction. In Gemini Tech Services LLC v. United States, the COFC ruled that “[a] party may not do indirectly what he is barred from doing directly” under an injunction by relabeling its conduct or attempting to maneuver around the injunction’s restrictions.
The Army issued a solicitation for proposals for logistics support services at its Redstone Arsenal in Alabama. Proposals were to be evaluated based on several factors, including “technical acceptability, past performance, and cost.” After the solicitation period closed, Gemini filed a bid protest with the Government Accountability Office (“GAO”). In its protest, Gemini claimed that the Army violated the terms of the solicitation by discussing technically unacceptable offers, failing to inform Gemini that its price proposal was higher than its competitors’ proposals, and improperly evaluating competitor JP Logistics & Consulting, LLC’s (“JP Logistics”) proposal.
The GAO denied Gemini’s protest. Gemini subsequently initiated a bid protest at the COFC challenging the award of a task order to JP Logistics. Gemini argued that the Army’s evaluation of proposals was arbitrary and capricious because its proposal was the only technically acceptable proposal submitted and it was improper for the Army to open discussions with technically unacceptable offerors, such as JP Logistics. Gemini sought injunctive relief that would prevent the Army from proceeding with the task order to JP Logistics and also exclude JP Logistics from further consideration.
The COFC ruled that the Army’s opening of discussions violated FAR 15.306(c)(1) and unfairly prejudiced Gemini. It issued a permanent injunction requiring the Army to “conduct a new evaluation of the offerors’ initial proposal submissions in accordance with the Solicitation[.]” The Army reevaluated the remaining initial proposals, but did not make an award based on that reevaluation. Instead, the Army amended its original solicitation and requested revised proposals.
Gemini subsequently moved to enforce the injunction on the grounds that the Army’s decision to amend the original solicitation, request revised proposals, and make an award based on the evaluation of the revised proposals, rather than reevaluating initial proposals, violated the injunction’s terms. The Army asserted that it did not violate the injunction because it did technically comply with the injunction’s terms by reevaluating the remaining offerors’ initial proposals.
The COFC sided with Gemini and concluded that the Army failed to fully comply with the terms and “remedial spirit” of the injunction. The Army’s argument that it complied with the injunction because it conducted a reevaluation was not credible, because its ultimate award decision was not based on that reevaluation. Merely “undergoing the motions” of reevaluating the initial proposals was not enough to comply with the injunction. The injunction required the Army’s final procurement decision to be based on the reevaluation, not an amended solicitation and revised proposals. The Army thwarted the purpose of the injunction by evaluating revised proposals submitted in response to an amended solicitation. The COFC ruled that a party could not “evade” or “maneuver around” the remedial intent of an injunction by acting in a way that would ultimately frustrate its purpose. The COFC granted Gemini’s motion to enforce the permanent injunction.
Injunctive relief is the backbone of remedies available from the COFC in a bid protest. This case serves as a reminder that permanent injunctions, when issued, will be strictly construed and enforced.
Smith Currie Oles LLP provides comprehensive legal services to all parts of the construction industry across the nation. Smith Currie lawyers have decades of demonstrated success representing construction and federal government contracting clients “From the Ground Up,” including procurement matters, contract formation and negotiation, project administration, claims prosecution and, when necessary, in litigation and other forms of dispute resolution.
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