Orion Government Services, LLC. v. United States

In the United States Court of Federal Claims No. 25-71 Filed: February 4, 2025 Reissued: February 13, 2025 †

ORION GOVERNMENT SERVICES, LLC, Plaintiff, v. THE UNITED STATES, Defendant, and MCCARTHY BUILDING COMPANIES, INC., Intervenor-Defendant.

ORDER TAPP, Judge.

This bid protest considers whether the United States Army Corps of Engineers (“USACE”) erred when it awarded McCarthy Building Companies, Inc. (“McCarthy”) a firm- fixed-price contract for construction services in the Port of Houston. (Compl. at 1, ECF No. 1).

Along with its Complaint, Orion Government Services, LLC (“Orion”) moved for a preliminary injunction. (Pl.’s Mot., ECF No. 5). The Court determines that Orion has not demonstrated a likelihood of success on the merits or irreparable harm, thus, the Motion is DENIED.

I. Background This Solicitation concerns construction services at the Port of Houston. (See Compl. at 1; Def.’s Resp. at 1, ECF No. 23). The services sought included: dredging a navigation channel,

† This Order was originally issued under seal on February 4, 2025, (ECF No. 26). The Court provided parties the opportunity to review this Order for any proprietary, confidential, or other protected information and submit proposed redactions. The proposed redactions were filed on February 12, 2025, (ECF No. 31), and are accepted by the Court. The sealed and public versions of this Order differ only to the extent of those redactions, the publication date, and this footnote. government.” (Id. at 24–25). Ultimately, Orion argues that it was prejudiced by USACE’s failure to evaluate proposals for unbalanced pricing and asserts that had it done so, USACE “would have determined the proposed prices [of all other offerors] to be unbalanced.” (Id.).

Orion has not presented evidence supporting its argument or showing that USACE failed to evaluate proposals for unbalanced pricing. In fact, the United States cites evidence from the record that would suggest the opposite. The United States points out that the Source Selection Evaluation Board (“SSEB”) stated that the “cost/price team also evaluated for the appearance of unbalanced pricing in accordance with FAR 15.404-1(g)” and also affirmed that “[p]rices were reviewed for variation from the IGE, errors, and/or omissions.” (Def.’s Resp. App. at 49). While the SSEB’s report may not detail USACE’s analysis, the evidence demonstrates that an evaluation of unbalanced pricing was conducted on some level acceptable by the USACE.

Therefore, it is reasonable to determine that USACE conducted an evaluation for unbalanced pricing in McCarthy’s favor. The likelihood of Orion’s success on this element of their claim is not discernible.

Finally, Orion argues that “[USACE] ignored known information about McCarthy’s dredging subcontractor having scheduling issues and the subcontractor’s approach to addressing those scheduling issues.” (Pl.’s Mot. at 18–19). Orion bases these arguments on several allegations, including that McCarthy did not address risk associated with its subcontractor’s past performance and USACE ignored contradictory information regarding which dredge McCarthy’s subcontractor would utilize. (Id. at 25–27). As with its earlier assertions, Orion fails to supply the Court with sufficient evidence regarding any of these claims or identify any Solicitation requirement mandating USACE to consider, in depth, every possible risk posed by an offeror’s proposal. See Info. Tech. &Apps. Corp. v. United States, 51 Fed. Cl. 340, 346 (2001), aff’d, 316 F.3d 1312 (Fed. Cir. 2003) (“[t]he protestor must show, by a preponderance of the evidence, that the agency's actions were either without a reasonable basis or in violation of applicable procurement law”). Therefore, this claim also fails.

B. Irreparable Harm As to irreparable harm, Orion argues that it “has been deprived of a fair opportunity to compete by virtue of the USACE’s unlawful contract award.” (Pl.’s Mot. at 28). Orion alleges that if McCarthy is permitted to begin performance, the Agency will “commit[] significant contract funds to McCarthy [making] it even more difficult . . . for this [C]ourt to fashion a meaningful remedy.” (Id.). Orion also asserts that “there is no meaningful way to measure the value of the competitive and business interest that will be lost” absent an injunction. (Id.). Orion also fails to adequately support this claim.

When evaluating whether a protestor will suffer irreparable harm, the Court must determine “whether [the] plaintiff has an adequate remedy in the absence of an injunction.”

Hanford Tank Disposition Alliance, LLC v. United States, 173 Fed. Cl. 269, 340 (2024) (quoting Insight Sys. Corp. v. United States, 110 Fed. Cl. 564, 582 (2013). Additionally, the protestor must demonstrate a financial injury that is “both certain and great” and will have “an immediate and substantial impact.” ACI Techs., Inc. v. United States, 162 Fed. Cl. 39, 48 (2022) (citing Wis. Gas Co. v. Fed. Energy Reg. Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985) and Sys. Appl’n & Techs., Inc. v. United States, 691 F.3d 1374, 1385 (Fed. Cir. 2012)). The Court will “consider economic loss as evidence of irreparable harm if it ‘threatens the survival of a movant’s business’” but “the movant must provide facts or evidence to support its assertions of harm and cannot rely only ‘on attorney arguments to establish irreparable injury.’” Newimar, S.A. v. United States, 163 Fed. Cl. 240, 254 (2022) (internal citations omitted). Like many of its other arguments, Orion makes assertions without any supporting evidence. Orion’s broad statements do not provide the Court with a methodology to assess the financial harm Orion would endure in the absence of an injunction. The Court finds this problematic.

In contrast, the United States’ Response opposing the Motion for Injunctive Relief includes a declaration from USACE’s Chief of Project Management. (Def.’s Resp. Decl., ECF No. 23-2). This declaration emphasized several potential risks associated with granting this preliminary injunction. (See generally id.). The declaration states that pausing performance on this contract restricts vessel movement, delays the Port of Houston’s $650 million dollar investment to “expand and modernize the Barbours Cut terminal complex[,]” and “poses a significant safety concern to commercial vessel traffic.” (Id. at 3–4). Even further, the declaration asserts that pausing performance would require USACE to “procure a critical maintenance dredging requirement through a separate contract acquisition” and “increase the maintenance dredging costs from approximately $6.14 million, under the subject contract, to an estimated $15.58 million under the new procurement; or a $9.44 million impact to the Federal government.” (Id.). This evidence is compelling and weighs in favor of the United States.

Orion has failed to provide any meaningful evidence to support its contentions and thus, Orion has not met its burden of showing irreparable harm in the absence of injunctive relief.

Amazon.com, Inc. v. United States, 239 F.3d 1343, 1350 (2001) (finding that a plaintiff may not be granted preliminary relief “unless it establishes both of the first two factors . . . likelihood of success on the merits and irreparable harm.”); Altana Pharma AG, 566 F.3d at 1005 (“Although the factors are not applied mechanically, a movant must establish the existence of both of the first two factors to be entitled to a preliminary injunction.”).

III. Conclusion For the stated reason, the Court DENIES Plaintiff’s Motion for Preliminary Injunction, (ECF No. 5). The Court ORDERS the parties to meet and confer and file a Joint Status Report proposing redactions to this Order by February 19, 2025.

Additionally, during the Courts initial Scheduling Conference held on January 22, 2025, the Court ordered the parties to confer and propose a schedule in this proceeding. The parties were unable to reach an agreement. The Court hereby adopts the following briefing schedule for the parties’ cross-motions for judgment on the administrative record and oral argument, if necessary: Event Deadline Administrative Record filed in CM/ECF February 12, 2025 Plaintiff’s Motion for Judgment on the Administrative Record February 26, 2025 Defendant and Intervenor-Defendant’s Response Briefs/Cross-Motions March 12, 2025 Plaintiff’s Reply/Response Brief March 20, 2025 Defendant and Intervenor-Defendant’s Reply Briefs March 28, 2025 Oral argument, if any TBD

IT IS SO ORDERED.

s/ David A. Tapp DAVID A. TAPP, Judge