lengthy delays occasioned by SBA's multiple requests for further information. That this has already occurred with two previous requirements (offered by HCFA and DOL) supports plaintiffs' concern.
Finally, defendants note, correctly, that monetary loss can only constitute the irreparable harm necessary for injunctive relief when the loss "threatens the very existence of the movant's business. Wisconsin Gas Co. v. FERC, 244 U.S. App. D.C. 349, 758 F.2d 669, 674 (D.C. Cir. 1985). Plaintiffs do not claim that HCR's very existence will be threatened if their motion is denied. Rather, they claim, persuasively, irreparable injury because the government is immune from damage suits (apart from bid preparation costs) and because HCR is due to graduate from the (a) program on October 12, 1990 that SBA's conduct will make more difficult HCR's transition out of the program. While this showing alone would be insufficient to justify preliminary injunctive relief, when coupled with plaintiffs' strong showing of likelihood of success on the merits and the other factors discussed immediately below, such relief is clearly appropriate.
For these reasons, plaintiffs have satisfied the second prong required for the issuance of a preliminary injunction -- they will suffer irreparable injury if SBA is not required to accept the NASA requirement into the (a) program.
C. Harm to Third Parties and the Public Interest
The public interest is served by requiring an agency to follow its regulations. All procuring agencies as well as other participating (a) firms benefit when SBA is required to conduct its business in a fair and unbiased manner in accordance with its regulations. Furthermore, no third parties would be injured by directing SBA to accept the NASA requirement into the (a) program. Defendants have not demonstrated that SBA will be harmed nor have they claimed that another (a) firm is capable of, willing to, or interested in performing the services requested by NASA.
For the reasons stated above, it is hereby
ORDERED that plaintiffs' motion for a preliminary injunction is denied in part and granted in part. It is
FURTHER ORDERED that because defendants United States Small Business Administration, Susan Engeleiter, Erline Patrick, Charles Freeman, Aubrey Rogers, Laurence Gaunt, and Joseph Anderson have failed to comply with 13 C.F.R. § 124.308(d) with respect to the requirement offered by NASA to SBA on March 9, 1990 for support of NASA's Occupational Health Office, they have waived their right to reject the requirement and are therefore preliminarily enjoined, for a period of thirty days, from rejecting the requirement offered by NASA on March 9, 1990 for support of NASA's Occupational Health Office. Pursuant to Fed. R. Civ. P. 65(c), plaintiffs shall post in the Clerk's Office a $ 1,000 cash or surety bond no later than June 19, 1990 at 3:00 p.m. failing which this injunction shall immediately stand dissolved. In the event of an appeal there shall be no stay of this order for the reasons recited in this memorandum opinion. It is
FURTHER ORDERED that defendants shall show cause, in writing, on or before June 22, 1990, why this Court should not issue an order directing SBA to immediately accept into the (a) program the requirement offered by NASA on March 9, 1990 for support of NASA's Occupational Health Office. Plaintiffs shall file their response to defendants' submission on or before June 27, 1990. There shall be no oral argument on these submissions.
This Order has been telephonically communicated to the parties this date.
IT IS SO ORDERED.