                In the United States Court of Federal Claims
                                         BID PROTEST
                                         No. 18-1474C
                                    (Filed: October 2, 2018)


                                                )    Keywords: Temporary Restraining Order;
 TIMBERLINE HELICOPTERS, INC.,                  )    Preliminary Injunction; Bid Protest; Rex
                                                )    Service Corp.; Prospective Bidder
                       Plaintiff,               )
                                                )
           v.                                   )
                                                )
 THE UNITED STATES OF AMERICA,                  )
                                                )
                       Defendant.               )
                                                )


Theodore P. Watson and Wojciech Z. Kornacki, Watson & Associates, LLC, Aurora, CO, for
Plaintiff.

John S. Groat, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department
of Justice, Washington, DC, with whom were Joseph H. Hunt, Assistant Attorney General,
Robert E. Kirschman, Jr., Director, and Steven J. Gillingham, Assistant Director, for Defendant.
William B. Blake, U.S. Department of the Interior, Of Counsel.


                                       OPINION AND ORDER

        Currently before the Court in this post-award bid protest is the motion of Plaintiff
Timberline Helicopters, Inc. (“Timberline”) for a temporary restraining order and preliminary
injunction. Timberline requests that the Court issue an order halting the performance of a
contract between PJ Helicopters and the Department of Interior’s Bureau of Land Management
(“BLM”) during the pendency of this litigation. Under the contract, which was awarded over a
year ago on June 29, 2017, PJ Helicopters supplies BLM with aerial transportation of personnel
in connection with BLM’s firefighting and fire suppression missions.

        The Court held a telephonic hearing on the motion on Friday, September 28, 2018. For
the reasons set forth below, Timberline’s motion is DENIED.1



       1
       The Court advised the parties of its intent to deny the motion after it heard argument on
September 28.
                                            BACKGROUND

        In February 2017, BLM issued Solicitation number D17PS00157 (“Solicitation”) seeking
offers to supply contractor-operated and -maintained “Exclusive Use Helicopter flight services
for 120 calendar days” (May 15 through September 11). Post-Award Procurement Protest
Compl. (“Compl.”) ¶ 7, ECF No. 1. These services would be used to transport personnel in
connection with the Department’s firefighting and fire suppression missions. Id. ¶¶ 1–8. See also
Solicitation No. D17PS00157 Ex. A, at 6, ECF No. 1-1. The IDIQ contract had a base period
from May 1, 2017 through April 30, 2018, with four one-year option periods. Mot. for Temp.
Restraining Order & Prelim. Injunction (“TRO Mot.”) at 1, ECF No. 4.

        Timberline considered submitting an offer in response to the Solicitation, but it ultimately
did not do so. It contends that it did not submit an offer because a “restricted category civil
aircraft” could not lawfully provide the requested services under Federal Aviation
Administration (“FAA”) regulations, and because BLM was unwilling to issue a public aircraft
operation (“PAO”) declaration to the awardee of the contract. According to Timberline, the PAO
would have enabled it to provide the services consistent with FAA regulations. TRO Mot. at 2.
See also Compl. ¶ 97; Storro Aff. Ex. J ¶ 51, ECF No. 1-4.

        Before the Solicitation closed, Timberline lodged a bid protest with the Government
Accountability Office (“GAO”). Storro Aff. Ex. J ¶ 32, ECF No. 1-4. It argued that the
Solicitation was defective “because no helicopter can meet the solicitation requirements and
comply with applicable [FAA] regulations regarding the transport of qualified non-
crewmembers.” Timberline Helicopters, Inc., B-414507, 2017 WL 2839592 (Comp. Gen. June
27, 2017), Ex. K, at 1, ECF No. 1-4.

        GAO denied Timberline’s protest on June 27, 2017. See id. GAO reasoned that “[w]here
a protester alleges that performance is impossible, we will not substitute our judgment for that of
the agency or sustain the protest in the absence of clear and convincing evidence that the
specifications are in fact impossible to meet or unduly restrict competition.” Id. at 3–4. It
concluded that Timberline had failed to make this showing, relying upon an FAA opinion letter
that BLM had secured in August of 2016. Id. at 3–4. That letter opined that in some
circumstances firefighters could be transported on “restricted category” aircraft so long as the
aircraft’s certification contained the special purpose of forest and wildlife conservation. Id.

         Soon thereafter, on June 29, 2017, BLM awarded the contract to PJ Helicopters. See
Storro Ex. J ¶¶ 36–38, ECF No. 1-4. Thereafter, the FAA (apparently at the request of
Timberline) initiated a review of the use of restricted category aircraft under the BLM contract.
See FAA Memorandum May 24, 2018, Ex. H, at 1, ECF No. 1-3. In a Memorandum dated May
24, 2018, the agency opined that under 14 C.F.R. § 91.313(d)(3) and (4) the special purpose
forest and wildlife conservation certification only authorized the carriage of persons who were
“actually participating in the special purpose operation, which is the aerial dispensing of liquid
for firefighting” or those who were “essential to that aerial dispensing of liquid.” Id. at 2.
“Transportation of firefighters for ground firefighting from one location to another,” the FAA
observed, “is not related to the special purpose for which the aircraft is certificated.” Id.




                                                 2
        Apparently in light of this opinion, on August 1, 2018, BLM provided PJ Helicopters
with a PAO, which authorized it to continue transporting firefighters in its aircraft, as required by
the contract. Compl. ¶ 60. Timberline filed the present bid protest about seven weeks later, on
September 26, 2018. In its complaint, Timberline contends that BLM’s refusal to assure offerors
on the solicitation that it would issue a blanket PAO and its subsequent decision to issue a PAO
to PJ Helicopters (rather than reopening competition for the contract) violated the Competition in
Contracting Act of 1984 (“CICA”), 31 U.S.C. §§ 3551–3556. See id. ¶ 1. Timberline requests
that this Court order BLM to resolicit offers for the contract and award it attorneys’ fees and
costs. Id. ¶ 2.

       On the same day it filed its complaint, Timberline filed the present motion for a
temporary restraining order and preliminary injunction. In its motion, Timberline requests that
the Court issue an order “requiring the BLM to stop contract performance under the Solicitation
because it violated CICA, and to allow Timberline to submit its proposal for the remainder of the
contract.” See TRO Mot. at 8.


                                       DISCUSSION

        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 persuasion.”
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citing 11A C. Wright, A. Miller, & M. Kane,
Federal Practice and Procedure § 2948, 129–30 (2d ed.1995)). To warrant temporary or
preliminary relief, the moving party must demonstrate that: (1) it is likely to succeed on the
merits; (2) it will be irreparably harmed without interim injunctive relief; (3) the balance of
hardships tips in its favor; and (4) the public interest favors the grant of injunctive relief. 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)). See also Erico Int’l Corp. v. Vutec Corp., 516 F.3d
1350, 1353–54 (Fed. Cir. 2008) (discussing injunctive relief in a patent context); FMC Corp. v.
United States, 3 F.3d 424, 427 (Fed. Cir. 1993). In this case, the Court concludes that the
balance of equities tips against an award of temporary or preliminary relief.

        First, Timberline has failed to meet its burden of establishing that it has a substantial
likelihood of success on the merits if for no other reason than that it is unclear that it has standing
to pursue them. In order to establish standing to sue in a bid protest, a plaintiff must show that it
is an “interested party” within the meaning of 28 U.S.C. § 1491(a), i.e., that it is an “actual or
prospective bidder[] or offeror[] whose direct economic interest would be affected by the award
of the contract or by failure to award the contract.” Rex Serv. Corp. v. United States, 448 F.3d
1305, 1307 (Fed. Cir. 2006). See also CGI Federal Inc. v. United States, 779 F.3d 1346, 1348
(Fed. Cir. 2015).

        “[T]he opportunity to qualify either as an actual or a prospective bidder ends when the
proposal period ends.” Rex Serv., 448 F.3d at 1307 (quoting MCI Telecomms. Corp. v. United
States, 878 F.2d 362 (Fed. Cir. 1989)). In this case, Timberline did not submit an offer and,
therefore, was not an actual offeror. The real issue is whether it can still be considered a
“prospective offeror” because it filed a GAO protest before the proposal period ended. Under



                                                  3
some circumstances a party can retain its prospective-offeror status even after the proposal
period ends, if it timely files an unsuccessful agency or GAO protest. In CGI, for example, the
Court of Appeals found that a plaintiff retained its prospective-offeror status before the court
where it “promptly initiated and diligently pressed its protest in the GAO forum” and then, when
unsuccessful, “immediately [i.e., within days] filed for relief in court.” In this case, Timberline
waited some fifteen months after the GAO denied its protest before filing this lawsuit. That
lengthy delay gives the Court pause as to whether Timberline has shown sufficient diligence to
preserve its prospective-offeror status under the reasoning of CGI. Cf. Palantir Techs., Inc. v.
United States, 128 Fed. Cl. 21 (2016) (holding that plaintiff had standing as a prospective offeror
notwithstanding delay of forty-three days between denial of GAO protest and lawsuit).

        In any case, Timberline’s request for temporary or preliminary relief suffers from other
defects. For one thing, “[i]t has often been observed that the purpose of the preliminary
injunction is the preservation of the status quo and that an injunction may not issue if it would
disturb the status quo.” See Cont’l Serv. Grp. v. United States, 722 F. App’x 986, 994 (Fed. Cir.
2018), citing 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
2948 (3d ed. 1998). Here, Timberline is not asking the Court to preserve the status quo.
Timberline is asking the Court to stop PJ Helicopters’ performance on a contract that it was
awarded over a year ago and on which it has since been providing services to BLM.

        Nor has Timberline established that it will suffer irreparable harm while this protest is
pending that could be avoided if the Court were to issue the temporary or preliminary relief
Timberline requests. According to Timberline, if the Court were to halt performance on the
existing contract, BLM would be required to employ the transportation services provided under
“other call-when-needed contracts.” TRO Mot. at 6. So far as the Court can tell, Timberline is
not the party to any such contracts. Thus, issuing the preliminary relief Timberline requests
would not avoid the loss of profits that Timberline identifies as the irreparable harm that it will
suffer while its protest is pending. In addition, preliminary relief is not needed to protect
Timberline’s opportunity to fairly compete, as it contends, because there is no procurement
pending from which Timberline will be precluded from competing absent temporary or
preliminary relief.

        Finally, granting Timberline’s request would inflict harm on the government and on the
public interest by disrupting the orderly performance of firefighting and fire suppression services
essential to the protection of property and the public safety. Particularly in light of Timberline’s
failure at this juncture to establish a likelihood of success on the merits or irreparable harm, and
the Court’s adoption of an expedited schedule for briefing dispositive motions, these
governmental and public interests take precedence.




                                                 4
                                       CONCLUSION

       On the basis of the foregoing, Plaintiff’s Motion for Temporary Restraining Order and
Preliminary Injunction is DENIED.

       IT IS SO ORDERED.


                                                   s/ Elaine D. Kaplan
                                                   ELAINE D. KAPLAN
                                                   Judge




                                               5
