              In the United States Court of Federal Claims
                                             No. 19-1610C

                                      (E-Filed: May 14, 2020)1

                                                     )
    BHB LTD. PARTNERSHIP                             )
                                                     )
    &                                                )
                                                     )
    INDIANA ASSOCIATES LTD.                          )
    PARTNERSHIP OF WASHINGTON,                       )
    D.C.,                                            )
                                                     )
                  Plaintiffs,                        )
                                                     )
             v.                                      )
                                                     )
    THE UNITED STATES,                               )
                                                     )
                  Defendant,                         )
                                                     )
    and                                              )
                                                     )
    RPT 1425 NEW YORK AVENUE, LLC                    )
                                                     )
                  Intervenor-defendant.              )
                                                     )

                                             ORDER

       On April 29, 2020, plaintiffs filed a renewed application for temporary restraining
order and preliminary injunction. See ECF No. 87. Therein, plaintiffs request that the
court issue a temporary restraining order (TRO) and a preliminary injunction (PI) barring
defendant from “making an award decision at any time prior to a final judgment on the



1
       This order was issued under seal on April 29, 2020. The parties were invited to identify
source selection, proprietary or confidential material subject to deletion on the basis that the
material was protected/privileged. No redactions were proposed by the parties. Thus, the sealed
and public versions of this opinion are identical, except for the publication date and this footnote.
merits” of this case. Id. at 3. For the following reasons, plaintiffs’ motion for a
temporary restraining order and preliminary injunction is DENIED.
        Plaintiffs filed this bid protest case in October 2019 to challenge defendant’s
solicitation requesting lease proposals for a building to house three government tenants.
See ECF No. 1. The government agreed at the outset to voluntarily stay the award of the
contract, and ultimately extended the stay until May 1, 2020.2 See ECF No. 8
(scheduling order); ECF No. 65 (joint status report). The parties began briefing their
cross motions for judgment on the administrative record in accordance with the initial
scheduling order, but briefing was interrupted when plaintiff filed a series of motions
related to the administrative record. Plaintiffs first filed a motion to supplement the
administrative record (AR), and the court stayed briefing on the merits to finalize the AR.
See ECF No. 27 (motion); ECF No. 29 (order). The court denied plaintiffs’ motion to
supplement the AR, ECF No. 38, and plaintiffs filed a second motion to supplement, ECF
No. 40. The court denied the second motion, ECF No. 49, and briefing eventually
resumed on the merits of the case. See ECF No. 69 (order). Plaintiffs, however, filed
multiple motions for reconsideration of the court’s decision. See ECF No. 57; ECF No.
61; ECF No. 77. The court denied two of plaintiffs’ motions and the third is currently
being briefed, once again delaying the adjudication of the merits of this matter. See ECF
No. 59 (denying ECF No. 57); ECF No. 66 (denying ECF No. 61). The content of the
AR, therefore, remains at issue in this matter, and the briefing on the merits is once again
stayed. See ECF No. 79.
       On April 28, 2020, plaintiffs filed a motion to amend, or in the alternative, to
supplement their complaint. See ECF No. 82. Therein, plaintiffs point to new factual
developments as the basis for their desire to amend. See id. at 1-3. Defendant’s response
is due on May 12, 2020, and plaintiffs have not requested expedited briefing on their
motion to amend. See id. The content of plaintiffs’ claims, therefore, is now at issue,
and not scheduled to be resolved prior to the expiration of the voluntary stay in this
matter.
        With the content of their claims, and, secondarily, the content of the AR, at issue,
plaintiffs have now filed a motion for TRO and PI to address the expiration of the
voluntary stay. Plaintiffs “are concerned that [the General Services Administration] GSA
may seek to make an award as soon as May 2, 2020” and, therefore, seek to bar GSA
from making an award prior to the conclusion of this case. ECF No. 87 at 3. In support
of their request, plaintiffs rely on their proposed amended complaint and the new factual
developments it lays out. See id. Specifically, plaintiffs rely on the new developments to
argue that they are likely to succeed on the merits. See id. at 4-5.
      A temporary restraining order is an “‘extraordinary and drastic remedy, one that
should not be granted unless the movant, by a clear showing, carries the burden of

2
       Plaintiffs filed a motion for TRO with their complaint, which was denied as moot when
the voluntary stay was agreed to. See ECF No. 8.
persuasion.’” Jones Automation, Inc. v. United States, 92 Fed. Cl. 368, 370 (2010)
(quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). In evaluating whether a
temporary restraining order or a preliminary injunction are appropriate, the court
considers whether the moving party has demonstrated that: (1) it is likely to succeed on
the merits; (2) it will be irreparably harmed without injunctive relief; (3) the balance of
hardships tips in its favor; and (4) the public interest favors the grant of injunctive relief.
See Am. Signature, Inc. v. United States, 598 F.3d 816, 823 (Fed. Cir. 2010) (citing
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 19, (2008)). “[T]he absence of an
adequate showing with regard to any one factor may be sufficient, given the weight or
lack of it assigned the other factors, to justify . . . denial” of a preliminary injunction or
temporary restraining order. Chrysler Motors Corp. v. Auto Body Panels of Ohio, Inc.,
908 F.2d 951, 953 (Fed. Cir. 1990).
        Because plaintiffs’ motion to amend the pleadings has not been decided and the
content of plaintiffs’ claims remains uncertain, the court cannot make a determination on
the likelihood of plaintiffs’ success on the merits. Without a clear understanding of
exactly what is contained in plaintiffs’ claims, the court simply cannot determine whether
plaintiff is likely to succeed on the merits of those claims. The inability to evaluate this
important factor makes it impossible for the court to evaluate whether a TRO or PI is
appropriate. See Chrysler Motors Corp., 908 F.2d at 953. Further, plaintiffs rely on the
facts in their proposed amended complaint to support their argument for their success on
the merits; therefore, a determination that a TRO and PI are warranted would effectively
require a ruling on plaintiffs’ motion to amend. Proceeding to an immediate decision on
plaintiffs’ motion to amend, before the parties have fully briefed the same, would be
inappropriate. Plaintiffs’ motion for a TRO and PI is, therefore, premature and must be
denied.
        While the court understands plaintiffs’ concern regarding the expiration of the
voluntary stay, the parties have been well aware of that date, and the court has reminded
the parties on multiple occasions that secondary disputes would compromise the court’s
ability to render a timely decision on the merits. See ECF No. 8 at 3; ECF No. 24 at 2; ECF
No. 29. Plaintiffs have proceeded with their prosecution of this case in the manner of
their choosing despite the court’s reminders. There are currently three non-dispositive
motions pending before the court in addition to plaintiffs’ motion for a TRO and PI. See
ECF No. 77; ECF No. 82; ECF No. 85. Until the content of plaintiffs’ claims is finalized,
the court cannot make a determination on any of them.
       Accordingly, plaintiffs’ motion for temporary restraining order, ECF No. 87, is
DENIED. On or before May 14, 2020, the parties are directed to CONFER and FILE a
notice of filing attaching a proposed redacted version of this opinion, with any
competition-sensitive or otherwise protectable information blacked out. All pending
motions in this case are hereby STAYED with the exception of plaintiffs’ motion to
amend the pleadings, ECF No. 82, until further order of the court. The clerk’s office is
directed to TERMINATE the deadlines for plaintiffs’ motion for reconsideration, ECF
No. 77, and defendant’s motion for relief from stay on briefing, ECF No. 85.
        In addition, for purposes of maintaining an accurate docket, the clerk’s office is
directed to STRIKE plaintiffs’ redacted corrected motion for judgment on the
administrative record, ECF No. 75. In accordance with the protective order entered in
this case, plaintiff is directed to FILE the parties’ agreed-upon redacted version of its
corrected motion for judgment on the AR, ECF No. 70, using the redacted filing event in
the court’s case management/electronic case filing (CM/ECF) system.

       IT IS SO ORDERED.

                                              s/Patricia E. Campbell-Smith
                                              PATRICIA E. CAMPBELL-SMITH
                                              Judge
