        In the United States Court of Federal Claims
                                      No. 14-378C
                                (Filed: January 30, 2015)

                                         )
AKIMA INTRA-DATA, LLC,                   )
                                         )
                   Plaintiff,            )
                                         )
v.                                       )      Bid Protest; RCFC 62(c); Denial of
                                         )      Motion for Injunction Pending Appeal
THE UNITED STATES,                       )
                                         )
                   Defendant,            )
                                         )
and                                      )
                                         )
SERVICESOURCE, INC.,                     )
                                         )
          Defendant-Intervenor.          )
                                         )

                                       ORDER

      Plaintiff Akima Intra-Data, LLC (“Akima”), seeks an injunction pending appeal to

stop the National Geospatial-Intelligence Agency (“NGA”) from allowing ServiceSource,

Inc. (“ServiceSource”) to assume full performance of Base Operations Support (“BOS”)

services at NGA’s Campus West (“NCW”) facilities through the AbilityOne program,

and to restrain the Committee for Purchase from People Who are Blind or Severely

Disabled (“Committee”) from allowing the Committee’s decision to add the NCW BOS
services to the procurement list to take effect.1 The plaintiff originally filed this action on

May 5, 2014 challenging the government’s decisions to (1) include the subject contract

on the list of services to be provided by the blind and severely disabled under the

AbilityOne program and (2) select ServiceSource, Inc. a nonprofit corporation that

employs the severely disabled, to perform the contract for BOS at the NGA’s campus.

Akima had been performing the subject services for NGA since 1999. Akima Intra-Data,

LLC v. United States, -- Fed. Cl. --, 2014 WL 7359026 at *3 (Fed. Cl. Dec. 23, 2014).

       The court entered judgment in favor of the government and denied Akima’s

motion for judgment upon the administrative record on December 23, 2014. In the

decision, the court rejected Akima’s arguments challenging the lawfulness and rational

basis for the actions of the Committee and NGA in this case. See Akima, 2014 WL

7359026 at *22. Thereafter, on January 7, 2015, NGA awarded the NCW BOS contract

to ServiceSource. The contract calls for a transition period with full performance to

commence on April 1, 2015. On January 13, 2015, Akima moved this court to stay its

judgment pending appeal. The government filed a response on January 21, 2015 and

Akima filed its reply on January 23, 2015. The court deems oral argument unnecessary

and for the reasons set forth below DENIES plaintiff’s motion.

       Pursuant to Rule 62(c) of the Rules of the United States Court of Federal Claims

(“RCFC”) the court has the authority to grant an injunction while an appeal of a final

judgment is pending. That rule provides: “While an appeal is pending from an

1
 The AbilityOne program and the role of the Committee are described in detail in the
court’s opinion and are not repeated here.


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interlocutory order or final judgment that grants, dissolves, or denies an injunction, the

court may suspend, modify, restore, or grant an injunction on terms for bond or other

terms that secure the opposing party’s rights.” RCFC 62(c). In this connection, because

an injunction “is ‘an extraordinary and drastic remedy,’” the movant carries the burden of

persuasion. OAO Corp. v. United States, 49 Fed. Cl. 478, 480 (2001) (quoting 11A C.

Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948 (1995)). In

deciding whether a party is entitled to such relief, the court considers the following

factors: (1) whether the movant has made a strong showing that it is likely to succeed on

the merits; (2) whether the movant will be irreparably injured absent an injunction; (3)

whether issuance of the injunction will substantially injure the other interested parties;

and (4) where the public interest lies. Standard Havens Prods., Inc. v. Gencor Indus.,

Inc., 897 F.2d 511, 512 (Fed. Cir. 1990) (citing Hilton v. Braunskill, 481 U.S. 770, 776

(1987); E.I. DuPont de Nemours & Co. v. Phillips Petroleum, 835 F.2d 277, 278 (Fed.

Cir. 1987)). Each factor is not necessarily entitled to equal weight. Id. (citing

Providence Journal Co. v. Federal Bureau of Investigation, 595 F.2d 889, 890 (1st Cir.

1979)). The court’s flexible consideration of the four factors may allow for an injunction

pending appeal when the movant “‘establishes that it has a strong likelihood of success

on appeal, or where, failing that, it can nonetheless demonstrate a substantial case on the

merits,’ provided the other factors militate in movant’s favor.” Id. at 513 (quoting Hilton,

481 U.S. at 778 (emphasis added)). Put another way, a plaintiff is entitled to an

injunction where it has a “substantial case on the merits” and where “the balance of

hardships tips decidedly toward plaintiff. Id. (citing Hamilton Watch Co. v. Benrus


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Watch Co., 206 F.2d 738, 740 (2d Cir. 1953); Charlie’s Girls, Inc. v. Revlon, Inc., 483

F.2d 953, 954 (2d Cir. 1973)) (emphasis added).

       1.     Likelihood of Success on the Merits

       Akima argues that this court should grant an injunction based on the grounds that

the issues on appeal present “fair ground for litigation.” Pl.’s Reply at 3. Specifically,

Akima argues that whether the court properly interpreted the 75% requirement in 41

U.S.C. § 8501(6) and correctly evaluated the interplay between the Alaska Native Claims

Settlement Act and the Javits-Wagner-O’Day Act are questions of first impression that

weigh strongly in favor of granting an injunction. Akima also challenges the court’s

conclusion that severely handicapped individuals are able to take on the tasks identified

in the contract. The court recognizes that the legal issues presented are issues of first

impression. Thus, while the court rejected plaintiff’s arguments, it is not possible to

determine the likelihood of success on appeal. An issue of first impression weighs in

favor of finding a “substantial case on the merits,” though not decisively. See, e.g.,

Jacobson v. Lee, 1 F.3d 1251 (Fed. Cir. 1993) (“These are important questions, some of

first impression, that deserve careful consideration by this court.”). Therefore, the court

must find that the remaining factors of the analysis weigh sufficiently in favor of Akima

to merit an injunction pending appeal.

       2.     Irreparable Harm

       Akima argues that, if the court does not grant the stay, it will lose the NCW BOS

contract and the associated contract revenue, causing irreparable harm. The government

responds that this harm is no different from the harm every incumbent faces when it


                                              4
competes for a contract and thus the loss of a contract cannot serve as the basis for

finding irreparable harm. Akima responds by arguing that, in this case, the administrative

record confirms that Akima will lose significant revenue once the NGA contract ends and

that this is a threat to the company’s existence. The government does not dispute the

Committee’s findings regarding the financial impact on Akima but counters that the

administrative record also confirms that Akima is the wholly-owned subsidiary of a

corporation worth over $1.8 billion and that these resources are more than enough to

mitigate the financial impact that the loss of the NGA contract will have on Akima.

       The court agrees with the government. “No federal contractor has a right to

maintain its incumbency in perpetuity,” and “the potential loss of the benefits of

incumbency does not give [a bid protest] plaintiff some sort of automatic right to a stay

pending appeal.” CRAssociates, Inc. v. United States, 103 Fed. Cl. 23, 26 (2012).

Indeed, all “sorts of things that any incumbent would experience upon the loss of a

successor contract” are not sufficient to demonstrate irreparable harm. Id. (citing PGBA,

LLC v. United States, 60 Fed. Cl. 196, 221 (2004)). Because Akima is wholly-owned by

a corporation with reported revenues of $1.8 billion in Fiscal Year 2012, Akima, 2014

WL 7359026 at *20, Akima cannot demonstrate that it will suffer irreparable harm if it

does not continue to perform the NGA contract. Indeed, plaintiff has never argued in this

case that it will be put out of business if it loses the contract at issue, but rather that a

trend of such procurements could threaten its existence. Accordingly, plaintiff has not

shown a unique or irreparable harm warranting an injunction.

        3.     The Balance of Harms


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       In contrast to the harms alleged by Akima, the court finds that an injunction

pending appeal would create significant harm to the government and ServiceSource. To

begin, an injunction pending appeal could require NGA to conduct another procurement

and incur unwarranted costs. This new procurement would also create the possible risk

of interrupted service if Akima or ServiceSource were not selected.

       ServiceSource has also demonstrated in its papers that it will suffer harm if Akima

is granted an injunction pending the outcome of the appeal process. According to

ServiceSource, it has already begun hiring key personnel and incurred recruiting,

compensation, training, and travel costs. This includes engaging the referral network to

identify the persons with severe disabilities that ServiceSource serves and seeks to

employ. It presented evidence that a delay would prevent it from obtaining revenue that

it uses for programs such as “development and training for persons with severe

disabilities, employment solutions for individuals with autism-spectrum disorders,

counseling, information and referral services, rehabilitation services, youth transition

services, housing and veteran services.” Def.-Intervenor’s Resp., Ex. A at 9.

Accordingly, the court finds that the harm to ServiceSource and the harm to the

government outweigh the harm to Akima.

       4.     Harm to the Public Interest

       Finally, there is no question that the public interest weighs against a stay pending

appeal. The AbilityOne program was created by Congress to fulfill the public purpose of

“increas[ing] employment and training opportunities for persons who are blind or have

other severe disabilities through the purchase of commodities and services from qualified


                                             6
nonprofit agencies employing persons who are blind or have other severe disabilities.”

41 U.S.C. § 51-1.1. Here, the court found that the record supports the Committee’s

finding that the subject procurement has the potential to increase employment

opportunities for severely disabled persons. Akima, 2014 WL 7359026 at *16. As

discussed in the opinion, the Committee found that ServiceSource has committed to

employ approximately 34 people with severe disabilities in full-time positions by the end

of the 18-month phase-in period. Similarly, ServiceSource’s subcontractor, CW

Resources, committed to employ approximately 17 people with severe disabilities in full-

time positions by the end of the 18-month phase-in period. The requested injunction

pending appeal could therefore prevent over 50 severely disabled individuals from

obtaining employment. The court finds that this would significantly harm the public

interest.

       For all of these reasons, the court DENIES Akima’s motion for an injunction

pending appeal.

       IT IS SO ORDERED.



                                                        s/Nancy B. Firestone
                                                        NANCY B. FIRESTONE
                                                        Judge




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