When filing a motion for a temporary restraining order (TRO) at the Court of Federal Claims (COFC), government contractors should be aware of the requirements. The Court looks at these motions and meeting requirements for injunction relief pretty seriously.
COFC reviews TRO requirements in a motion for injunctive relief as an “extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Jones Automation, Inc. v. United States, 92 Fed. Cl. 368, 370 (2010) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)).
Bid protest lawyers usually will file the TRO with the bid protest complaint. As a matter of practice, the court will usually hear the arguments and make a decision relatively quickly. However, contractors should realize that the Court is not always quick to halt the agency’s procurement process. Even though the protest merits may be vary disturbing, the contractor must still overcome the other requirements for the TRO motion to be granted.
COFC Temporary Restraining Order Requirements
Government contractor lawyers must meet the legal TRO requirements by showing that:
- They are likely to succeed on the merits;
- Without the injunction, they will be irreparably harmed;
- The balance of hardships tips in the contractor’s favor and
- The public interest favors the grant of injunctive relief
Mistakes to avoid in a bid protest case: The court will not grant the TRO injunction when in a lowest priced technically acceptable (LPTA) procurement, you are not next in line for award even if your allegations in the bid protest complaint had merit.
When the parties agree upon an expedited briefing schedule, the contractor may have a hard time showing that there would be injury. To show an irreparable injury in a bid protest at the Court of Federal Claims, the government contractors must show that without a preliminary injunction or TRO it will suffer irreparable harm before a decision can be rendered on the merits. With expedited schedules, this element of meeting the requirements for a TRO injunction could be dramatically decreased. See additional tips for filing Court of Federal Claims bid protests.
Avoid arguing the loss of personnel: The Court of federal claims has denied a motion for temporary restraining order injunction which made alleged that as the incumbent it would lose employments to the new contractors during the transition period.
The Court simply decided that no irreparable injury was present. See IBM Corp. v. United States, 118 Fed. Cl. 677, 684–85 (2014) (“the mere fact that an incumbent’s employees begin to move over to work for the awardee does not, without more, constitute irreparable harm”).
No irreparable harm, the balance of the hardships would then weighs against TRO requirements and injunctive relief. When a contractor fails in the earlier elements of meeting the temporary restraining order elements, the court will generally not get to the public interest element.
Think Through Temporary Restraining Order Strategies: Government contractor CEOs should seriously consider TRO requirements and other options by looking at the specific facts of their cases, discuss legal strategies, pros and cons with their lawyers to see whether the effort has any possibility of success. Find our more about the CICA stay at GAO.