     In the United States Court of Federal Claims
                                 No. 19-388C
                           (Filed: March 29, 2019)
                          NOT FOR PUBLICATION

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ACTIONET, INC.,

             Plaintiff,
                                                  Post-award bid protest;
v.
                                                  Preliminary injunction;
                                                  Temporary restraining
THE UNITED STATES,
                                                  order; Irreparable harm.
             Defendant,

and

ACCENTURE FEDERAL SERVICES LLC,

             Intervenor.

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                                  ORDER

        Plaintiff in this post-award bid protest filed its complaint on March
13, 2019, along with a motion for a temporary restraining order (“TRO”)
and a preliminary injunction. Accenture Federal Services, the awardee,
intervened the next day, and a status conference with all three parties was
held on March 14, 2019, during which was discussed the need for
preliminary injunctive relief. Two initial task orders had been issued to
Accenture, but defendant represented during the status conference that, as
of that date, the agency had no imminent plans to award further task orders
prior to April 12, 2019, which was the date on which plaintiff’s incumbent
contract was to expire. Based on those facts, plaintiff concluded that it




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would continue to seek a preliminary injunction. 1

       A schedule was entered for briefing on the request for a preliminary
injunction, which was to conclude with argument on that motion set for
April 11, 2019. On March 19, 2019, the government filed a notice of the
agency’s intent to issue six additional task orders under the protested
contract on March 21, 2019, along with a declaration from the Chief
Information Office of the Department of Energy as to the necessity of the
to-be-ordered services.

       On March 22, 2019, plaintiff filed the subject motion, requesting that
the court issue a TRO to preserve the status quo until the preliminary
injunction hearing on April 11, 2019.2 We then directed defendant to file
a combined response to plaintiff’s two motions on or before March 28,
2019. Intervenor filed its response to the preliminary injunction as
previously scheduled on March 27.

       The court must consider four factors when entertaining a request for
temporary injunctive relief: (1) plaintiff’s likelihood of success on the
merits; (2) whether plaintiff will suffer irreparable harm without the relief
sought; (3) the balance of the harms between the parties; and (4) the
public’s interest in an injunction (or not). Bona Fide Conglomerate, Inc. v.
United States, 96 Fed. Cl. 233, 239 (2010). No single factor is dispositive,
FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993), but this court
is generally reticent to enjoin agency procurement action, even briefly,
without a showing that the protestor is likely to succeed on the underlying
merits of its protest, e.g., Intelligent Waves, LLC v. United States, 135 Fed.
Cl. 299, 314 (2017). We need not reach the merits issue on this motion,
however, because we are satisfied that the balance of the three other factors
does not support the issuance of a temporary injunction pending oral

1
  The court also stated during the status conference that it was unlikely to
grant a request for interim relief prior to the preliminary injunction due to a
lack of harm but cautioned that new task orders could change that analysis.

2
  We note that this court’s rules make clear that a TRO is issued only when
there is not time to notice and hear from the opposing party. Here, since
defendant has responded to the motion, it is properly considered a
preliminary injunction, but we use the TRO nomenclature as that is how
plaintiff delineated its motion and to distinguish between the two motions.

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argument on the preliminary injunction motion.

       Plaintiff submitted the declaration of its Executive Vice President
and Chief Operating Officer, Michael Genebach, in support of its motion
for a TRO. He alleges the following harms to be suffered by ActioNet
before April 11: 1) monetary loss of the value of whatever work is
performed under the new contract prior to the preliminary injunction
hearing; 2) potential further loss of employees who are being recruited by
Accenture and its partners for the new work; 3) additional performance by
Accenture will make it harder for DOE to unwind or transition to a new
awardee should the court sustain the ultimate merits of the protest, meaning
that plaintiff’s argument for a permanent injunction under the balance of
harms factor will be weakened without an injunction now.

        Defendant submitted two declarations of Max Everett, the Chief
Information Officer for the Department of Energy (“DOE”). The first,
attached to the government’s notice of pending task order awards to
Accenture, declares that DOE’s current IT systems are near or at
“end-of-life status” and that the work under the new contract is necessary to
move to new systems and to enhance the agency’s cyber-security. To that
end, the six anticipated task orders are necessary, according to Mr. Everett,
to begin any work under the new contract, including the two orders already
placed and anticipated by the solicitation. Without them, “[n]o new
modernization projects will be able to move forward.” Decl. of Max
Everett ¶ 11 (Mar. 19, 2019) (ECF No. 23-1). The declaration further
represents that additional unnecessary costs supporting legacy systems will
be incurred should work not commence on the new contract. Mr. Everett
also declares that plaintiff was given the opportunity to submit a proposal
for this work when the funds became available in 2018 but was unable to
respond timely or appropriately to that request. Thus the work was put off
until the new contract could be solicited and awarded; the implication being
that this work has been delayed too long already. Lastly, the declaration
states that cybersecurity for DOE writ large will be impacted by any
inability to onboard the new cybersecurity contractors under the new
contract.

       Mr. Everett’s second declaration was submitted by the government
in support of its response to plaintiff’s two motions. This declaration
quantifies the harm to the agency should any preliminary injunctive relief be
ordered by the court. Mr. Everett clarifies that one of the six anticipated

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task orders was issued on March 22, 2019, and the that other five “are in the
final stage of preparation and award.” Second Decl. of Max Everett ¶ 4
(Mar. 28, 2019) (ECF No. 39-1). The fifth paragraph quantifies the
agency’s expenditure per month on the first three task orders awarded:
$822,524, $292,745, and $819,613 respectively. Thus, Mr. Everett
concludes that a bond of $1,934,882 would be necessary to compensate the
government for the loss of the value of this work should performance be
enjoined temporarily or preliminarily.      In addition, $15,271,096 in
additional bond funds is sought for the risk of losing funding from the
Technology Modernization Fund, although that loss is not assured.

       The competing declarations and briefing also present a dispute as to
whether plaintiff or the agency has prevented ActioNet from backfilling
positions as it loses employees in anticipation of the expiration of its
incumbent contract. Mr. Everett states in his first declaration that this lack
of backfill endangers ActioNet’s ability to perform the work that the agency
needs, especially as it concerns DOE’s cybersecurity needs.                Mr.
Genebach, in his declaration, represents that ActioNet has never refused to
backfill any position, has sought to fill any openings, but that DOE has
asked plaintiff not to backfill certain positions, and that, during the protest
at the Government Accountability Office, asked that plaintiff not fill open
positions. It is thus, in plaintiff’s view, that any danger the agency sees in
this regard is of its own making. We are unable to resolve this dispute in
the context of the present motion, but ultimately it does not matter to our
conclusion.

       We are thus left with competing declarations of harm. In resolving
this conflict, we are mindful of the procedural context in which the court
finds itself. We cannot ignore the fact that a hearing on a preliminary
injunction will be heard in less than two weeks. Any harm is therefore, of
necessity, limited to a very brief window of time.

       Plaintiff presents a monetary harm of the loss of work to be
performed in the interim by Accenture and the potential loss of its personnel
who move to Accenture to perform that work. DOE has, in fact, quantified
the value of what it believes is likely to be performed in the interim, one
month of work under three task orders valued at a combined amount of $1.9
million. The three task orders valued are the initial two orders contemplated



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in the solicitation and the task order awarded on March 22. 3 We note that
this amount accounts for the value to the agency that might be lost as a
result of a TRO and a preliminary injunction. We can thus assume that the
value is less for the TRO alone, which is all we consider here.

        We find that the monetary loss to Accenture is insufficient to support
a temporary injunction. It is some subset of $1.9 million, and a further
subset of that would represent profit to plaintiff. Although the loss of a
contract’s total value is often found to be sufficient harm to support a
permanent injunction in this court, at the preliminary or temporary
injunction stage, the calculus is different. In the context of the ultimate
merits of a protest, what is at risk is the whole value of the contract. Not so
at this stage. Even assuming $1.9 million as a true potential loss to
plaintiff, and assuming that it could not recoup any of those funds were the
award to Accenture ultimately reversed, that figure is a small fraction of the
total anticipated $2 billion value of this new contract. 4 We thus find the
danger to plaintiff of this loss not to be irreparable.

       We similarly do not find the potential for further employee attrition
to be irreparable at this stage. Although we take at face value the
representation that intervenor is soliciting plaintiff’s employees to join its
new contract team, noticeably absent is an allegation that this state is
irreversible. Presumably they could be hired back. Without such, we find
this to be insufficient to support an injunction because the harm is not
irreparable.

      Lastly, the further entrenchment of Accenture’s personnel into
DOE’s information technology workforce and daily operations is, as
defendant argues, insufficient to show irreparable harm. That allegation is

3
  It is unclear from defendant’s papers why the other anticipated task orders
are not valued or included in the bond ask, but we presume that the agency
would have asked for a higher bond amount if it thought it likely for
additional amounts to be expended during the pendency of this protest.
4
  Further, plaintiff’s existing contract’s period of performance runs through
April 12, 2019, which further ameliorates any loss potentially suffered prior
to that date. The parties’ dispute regarding funding/reimbursement for the
two-month extension of plaintiff’s incumbent contract beyond April 12 is
immaterial.

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purely speculative and anticipates defendant’s arguments at the permanent
injunction stage. We are neither as clairvoyant nor as concerned by that
possibility. Defendant bears the risk that it will make transition to a
different awardee more painful due to the award of new task orders under a
protested contract should the underlying award ultimately be enjoined.

       In sum, plaintiff has not shown irreparable harm if the court does not
enter a temporary injunction pending the preliminary injunction hearing on
April 11, 2019. The balance of harms does not weigh in plaintiff’s favor,
and the public’s interest is not yet implicated. Plaintiff’s motion for entry
of a temporary restraining order is denied.


                                                s/Eric G. Bruggink
                                                Eric G. Bruggink
                                                Senior Judge




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