“In a recent bid protest, A.T. Kearney Pub. Sector & Def. Servs., LLC v. United States, the U.S. Court of Federal Claims (COFC) created a wrinkle in its precedent when it denied the protester’s motion for a preliminary injunction. While obtaining permanent injunctive relief is arguably the most important goal of any bid protest brought at the COFC, obtaining preliminary injunctive relief, a stay of award or performance while the protest is resolved, can sometimes be equally significant for business purposes. The COFC’s decision in Kearney may signal a shift in its evaluation of motions for preliminary injunction, which could impact future outcomes for protesters who seek a stay until the protest is resolved.”
“The COFC considers four factors when deciding whether to grant a preliminary injunction:
- whether the protester is likely to succeed on the merits;
- whether the protester will suffer from irreparable harm if an injunction is not granted;
- whether the balance of hardships tips in the protester’s favor; and
- whether the public interest favors injunctive relief.”
“A protester ‘must establish the existence of both of the first two factors to be entitled to a preliminary injunction.'”
“In Kearney, the COFC appears to have made it more difficult for protesters to establish that they will suffer irreparable harm by not being able to compete for task order awards under a multiple-award indefinite delivery, indefinite quantity (IDIQ) contract while the protest is pending. This may in turn make it more difficult for protesters to stop the government from issuing task orders under such contracts during that time…” Read the full article here.
Source: Establishing Irreparable Harm in Bid Protests: Does the Value of the Lost Opportunity Really Matter? – By Katherine B. Burrows and Eric Valle, January 5, 2022. PilieroMazza.
