make it likely that the project could not be completed in a timely fashion.
The Court notes that there is a dispute as to whether the plaintiff has submitted protests with respect to both the RFP DMA600-90-R0032 contract and the contemporaneous subcontract, sometimes referred to as the "Eurostyle contract." Defendant contends that the plaintiff has not filed a protest with respect to the subcontract, and if that be the case, any injunction issued by the Court would not affect EPE's performance under the "Eurostyle contract."
After giving careful consideration to the motion, the Court concludes that the motion should be granted. First, as noted above, while the Court will not address the merits of plaintiff's claim in view of the pending protest before GAO, the Court is satisfied that the claim is not frivolous. It is now clear that EPE is not a small business and that, on hindsight, it should not have received the contract. Moreover, if the Contracting Officer had not determined that the notice required by Section 15.1001(b)(2) could be waived, the defendant would have had access to the SBA decision before having awarded the contract to EPE.
Second, the plaintiff will suffer irreparable harm if it loses the contract. While it is true that, assuming plaintiff prevails before the GAO, the contract awarded to EPE could be terminated, it would appear that the longer EPE works on the contract, the less likely the possibility of termination of the contract.
Third, it is unlikely that the defendant will suffer any injury if the Court grants injunctive relief because the duration of the injunction would be relatively short. It is anticipated that GAO will render its determination within 25 days. Such a short period should not prevent completion of the contract by November 1990. Plaintiff has stated that it can complete the contract within the applicable timeframe if it begins by the end of June 1990, and EPE has already begun the contract and thus should be able to complete within the same timeframe, notwithstanding the brief delay. Finally, in this connection, the Court notes that the defendant had planned to make the contract award on or about May 1, 1990, but made the award on March 16, 1990, out of fear that the funds would be frozen. The Court's injunction would delay the contract no more than 25 days and the defendant awarded the contract 45 days earlier than it intended date, thus, the time permitted for completion of the contract is still greater than that originally contemplated by the defendant. Last, in this regard is that, if defendant is correct and a protest has not been filed with GAO challenging the Eurostyle contract, EPE is free to continue to work on the subcontract notwithstanding the Court's order granting an injunction. This is so because the Court's order is only intended to maintain the status quo as to those matters actually before the GAO.
Fourth, the granting of a short duration injunction is in the public interest. The defendant had determined that the contract would be awarded to a small business concern. Presumably it made that determination after factoring in the time for completion and the cost of the contract. It is in the public interest that the contract be awarded to a small business if possible and it is in the public interest that the GAO, the agency having the responsibility of addressing disputes of this nature, be afforded a full opportunity to address, and if necessary, remedy the instant dispute.
The defendant argues that the injunction should not be granted because the Contracting Officer has already determined that it will not award the contract to the plaintiff in any event. The Court has avoided addressing the merits of plaintiff's claim and will not consider whether such a decision by the Contracting Officer is arbitrary or an abuse of discretion since, depending on the action of GAO such a determination may be unnecessary. The Court only observes that the pronouncement by the Contracting Officer should not be dispositive as to the request for injunctive relief.
The Court notes that the controversy may have been avoided if the defendant, after being advised that a size protest was being submitted to SBA, would have stayed the contract until SBA had made a decision. The defendant knew that any application to SBA by plaintiff and any decision by SBA had to be expedited. The plaintiff's protest was timely and SBA was required to respond within ten days of receiving the protest and information pertinent to the protest. See 48 C.F.R. § 19.302(g).
After weighing all of the above factors, the Court concludes that injunctive relief should be granted as to the protest submitted by plaintiff to the GAO.
At the hearing on plaintiff's application for a temporary restraining order, plaintiff argued that it should not be required to post a bond if injunctive relief is granted. On the other hand, the defendant argues that the plaintiff should be required to post a bond in the amount of $ 2.5 million dollars. The Court must reject the plaintiff's contention on this matter and the Court concludes that the defendant's request is excessive considering the limited duration of the injunction and the fact that, for the reasons outlined above, the injunction should cause no delay in the performance of the contract. Again, it is noted that the defendant originally contemplated awarding the contract on or about May 1, 1990. Under the circumstances, a bond in the amount of $ 100,000 appears reasonable.
It is hereby
ORDERED that plaintiff's motion for a preliminary injunction is granted, and it is further
ORDERED that the defendant, acting through the Director of the Defense Mapping Agency, shall direct EPE Technologies, Inc. to forthwith, and until a decision is made by the General Accounting Office with respect to plaintiff's protest dated April 13, 1990, suspend all contract performance resulting from Request for Proposals DMA600-90-R0032 and the contemporaneous subcontract, the latter only if it is the subject of the above protest, and it is further
ORDERED that the injunction is entered subject to the plaintiff posting bond in the amount of $ 100,000.00.