           In the United States Court of Federal Claims
                                          No. 19-674
                                     Filed: April 1, 2020
                                   Reissued: April 21, 20201

                                              )
    HARMONIA HOLDINGS GROUP,                  )
    LLC,                                      )
                                              )
                    Plaintiff,                )
                                              )
         v.                                   )
                                              )
    THE UNITED STATES,                        )
                                              )
                   Defendant,                 )
                                              )
         and                                  )
                                              )
    DEV TECHNOLOGY GROUP, INC.,               )
                                              )
                   Defendant-Intervenor.      )
                                              )

Walter Brad English, Maynard, Cooper & Gale PC, Huntsville, AL, for plaintiff.

David M. Kerr, U.S. Department of Justice, Civil Division, Washington, DC, for defendant.

William A. Shook, Law Offices of William A. Shook, PLLC, Washington, DC, for
defendant-intervenor.

                  ORDER DENYING INJUNCTION PENDING APPEAL

SMITH, Senior Judge

        Before the Court is plaintiff’s Motion for Injunction Pending Appeal pursuant to Rule
62(d) of the Rules of the Court of Federal Claims (“RCFC”). Plaintiff, Harmonia Holdings
Group, LLC (“Harmonia”), requests that the Court enjoin performance of the contract awarded
by the United States Customs and Border Protection (“CBP” or “Agency”) to
defendant-intervenor, Dev Technology Group, Inc. (“Dev Tech”), pending the resolution of
plaintiff’s appeal of the Court’s January 17, 2020 Opinion and Order.2 See generally Plaintiff’s
1
       An unredacted version of this Order was issued under seal on April 1, 2020. The parties
were given an opportunity to propose redactions, but no such proposals were made.
2
       The Court unsealed and issued a public version of its January 17, 2020 Opinion and
Order on February 3, 2020.
Motion for Injunction Pending Appeal (hereinafter “Pl.’s Mot.”). Plaintiff focuses its request for
injunctive relief on the Court’s allegedly improper denial of plaintiff’s pre-award protest grounds
only. See generally id. In response, defendant and defendant-intervenor contend that the Court
should deny plaintiff’s Motion, as plaintiff fails to demonstrate a likelihood of success on the
merits or that the balance of hardships weigh in plaintiff’s favor. Defendant’s Opposition to
Motion for Injunction Pending Appeal (hereinafter “Def.’s Resp.”) at 2; Defendant-Intervenor
Dev Technology Group, Inc.’s Opposition to Plaintiff’s Motion for Injunction Pending Appeal
(hereinafter “Def.-Int.’s Resp.”) at 1. For the reasons set forth below, plaintiff’s Motion for
Injunction Pending Appeal is denied.

  I.       Background

        On July 12, 2018, CBP issued Solicitation No. HSBP1018CSPD, Request for Quote
1317188 (hereinafter “Solicitation” or “RFQ”), requesting quotes for development and
operations and maintenance support services for its Cargo Systems Program Directorate
(“CSPD”) to develop and support cargo systems applications. Opinion and Order at 2. The
CSPD “is responsible for managing the Automated Commercial Environment (ACE), which is a
commercial trade processing system” that “helps reduce the Nation’s vulnerability to changing
threats without diminishing economic security, by providing threat awareness, prevention, and
protection for the homeland.” Id. (quoting Administrative Record 2981). Prior to making an
award decision, but after receiving proposals, the Agency issued two additional amendments to
the Solicitation—Amendment 9, which the Agency issued on October 26, 2018, and Amendment
10, which the Agency issued on November 1, 2018. Id. at 4, 6. Due to the changes allegedly
caused by those Amendments, plaintiff filed a formal agency-level protest on November 12,
2018, arguing that offerors should be allowed to modify their proposals beyond the scope of
what the Agency permitted in response to Amendments 9 and 10. Id. at 8. The Agency timely
denied plaintiff’s protest on December 6, 2018 and issued its award decision on April 23, 2019.
Id. at 8–9.

         On May 7, 2019, five months after the Agency denied its protest, Harmonia filed a pre-
and post-award bid protest with this Court, renewing the arguments raised in its agency-level
protest and challenging the Agency’s award to defendant-intervenor. Id. at 1–2, 9, 13–14. On
January 17, 2020, the Court issued its Opinion and Order denying plaintiff’s Motion for
Judgment on the Administrative Record, including plaintiff’s request for permanent injunctive
relief. See generally Opinion and Order; see also Plaintiff’s Harmonia Holding Group, LLC’s
Motion for Judgment on the Administrative Record and Brief in Support Thereof at 24–27
(requesting that the Court “[p]ermanently enjoin[] the Agency from proceeding with
performance under [the] awarded contract”). On February 24, 2020, plaintiff separately filed its
Notice of Appeal and its Motion for Injunction Pending Appeal. See generally Notice of Appeal;
Pl.’s Mot. On March 6, 2020, defendant filed its Response to plaintiff’s Motion. See generally
Def.’s Resp. Defendant-intervenor filed its Response on March 9, 2020. See generally
Def.-Int.’s Resp. Pursuant to the Court’s March 12, 2020 Order, on March 16, 2020, plaintiff
filed its consolidated Reply to defendant and defendant-intervenor’s respective Responses. See
generally Plaintiff’s Reply in Support of Motion for Injunction Pending Appeal (hereinafter
“Pl.’s Reply”). Plaintiff’s Motion is fully briefed and ripe for review.



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    II.    Discussion

        Prior to this Court’s amendment to RCFC 62 on July 1, 2019, RCFC 62(c) governed
injunctions pending appeal. 3 As a result of that amendment, RCFC 62(d) now governs
injunctions pending appeal and states that, “[w]hile an appeal is pending from an interlocutory
order or final judgment that grants, continues, modifies, refuses, dissolves, or refuses to dissolve
or modify 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.” Such an injunction is, however,
“‘an extraordinary and drastic remedy,’ which accordingly ‘will not be lightly granted.’” Telos
Corp. v. United States, 129 Fed. Cl. 573, 575 (2016) (citations omitted) (quoting Akima
Intra-Data, LLC v. United States, 120 Fed. Cl. 25, 27 (2015); and then quoting RLB Contracting,
Inc. v. United States, 120 Fed. Cl. 681, 682 (2015)) (“[T]he Court is not aware of a single
instance in which an RCFC 62(c) injunction has been issued.”).

         As an injunction pending an appeal is an extraordinary and drastic remedy, the burden of
persuasion rests with the moving party. See Akima, 120 Fed. Cl. at 27 (quoting OAO Corp. v.
United States, 49 Fed. Cl. 478, 480 (2001)). To determine whether that burden has been met, the
Court considers the following four 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.” Id. at 27–28 (citing Standard Havens
Prods., Inc. v. Gencor Indus., Inc., 897 F.2d 511, 512 (Fed. Cir. 1990)). This Court has
previously recognized “a flexible application of these factors” and held that no single factor is
determinative. Telos, 129 Fed. Cl. at 575; RLB Contracting, Inc. v. United States, 120 Fed. Cl.
681, 682 (2015). If the movant fails to show a likelihood of success on appeal, however, the
remaining factors “must tilt ‘decidedly toward [the movant]’” for the movant to prevail. RLB
Contracting, 120 Fed. Cl. at 682 (quoting Standard Havens, 897 F.2d at 513).

        In both its Motion and Reply, plaintiff’s request for injunctive relief focuses almost
entirely on its contention that it “has a strong likelihood of success on the merits” given the
Court’s alleged misapplication of the law when denying plaintiff’s pre-award protest. See
generally Pl.’s Mot.; Pl.’s Reply. In its Motion, plaintiff alleges that it has a “strong likelihood
of success on the merits” because “the Court improperly grafted a ‘diligent pursuit’ requirement
onto Blue & Gold’s waiver rule.” Pl.’s Mot. at 4 (citing Blue & Gold Fleet L.P. v. United States,
492 F.3d 1308, 1313 (Fed. Cir. 2007)). Specifically, plaintiff contends that the Court
“misapplied the Federal Circuit’s precedent related to Tucker Act standing as a prospective
offeror to an actual offeror.” Id.

        Defendant argues that plaintiff has failed to demonstrate a likelihood of success on the
merits, and that, in its Motion, “Harmonia makes the same argument that this Court considered
and rejected.” Def.’s Resp. at 3. Moreover, defendant claims that Harmonia “does not directly
contest the Court’s logic—that allowing Harmonia to make such a delayed filing would


3
        As the most analogous provision to Rule 62(d) of the Rules of the Court of Federal
Claims (“RCFC”) is RCFC 62(c), the Court bases much of its analysis on earlier decisions that
interpret RCFC 62(c).
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contradict the policy considerations underlying the Blue & Gold waiver [rule].” Id. at 3–4 (citing
Opinion and Order at 13–15). Defendant-intervenor additionally contends that plaintiff’s
argument essentially asks the Court to interpret Blue & Gold and its progeny to mean that once a
contractor files an agency-level protest, that protestor retains the right to re-raise its pre-award
protest grounds with this Court “no matter how many months or even years pass without any
further action by the would-be contractor following the denial.” Def.-Int.’s Resp. at 3–4.
Defendant further posits that plaintiff’s arguments fail to contemplate that “the considerations
underlying Blue & Gold are the same as those underlying the ‘diligent pursuit’ standing
requirement and [that] they apply with equal force to bid protest actions brought by prospective
bidders and actual offerors.” Def.’s Resp. at 4.

         Plaintiff appears to have fundamentally misunderstood the Court’s Opinion and Order as
well as the clear policy considerations surrounding the implementation of the waiver rule as set
forth by the Federal Circuit in Blue & Gold. Plaintiff’s arguments are predicated on its belief
that, because there exists a “diligent pursuit” requirement for standing purposes, such a
requirement may only apply within the context of standing. In reality, there are dozens of laws
with overlapping requirements. For example, to establish a claim under both takings and
nuisance law, the plaintiff must prove that the defendant somehow interfered with the plaintiff’s
use and enjoyment of his land. Compare United States v. Causby¸ 328 U.S. 256, 266 (1946)
(finding a taking where overhead flights “are so low and so frequent as to be a direct and
immediate interference with the enjoyment and use of the land”), with Restatement (Second) of
Torts § 822 (Am. Law. Inst. 1975) (“An invasion of a person’s interest in the private use and
enjoyment of land by any type of liability-forming conduct is private nuisance.”). The simple
fact that such a requirement exists in the context of a takings claim does not forbid its inclusion
in the context of a nuisance claim. Here, the Court does not deny that a “diligent pursuit”
requirement exists within the context of standing. However, none of the cases to which plaintiff
cites stand for the proposition that a “‘diligent pursuit’ of a claim” cannot exist within the context
of waiver under Blue & Gold. By failing to timely or diligently pursue its pre-award grounds
after receiving an adverse agency-level decision, plaintiff knowingly abandoned its pre-award
protest grounds by failing to re-raise those grounds before the U.S. Government Accountability
Office (“GAO”) or this Court.

         In its Opinion and Order, the Court looked to the Federal Circuit’s decision in Blue &
Gold and its progeny to analyze plaintiff’s pre-award protest. See generally Opinion and Order.
In dismissing plaintiff’s pre-award protest as untimely, the Court addressed the bases of its
decision, which focused on the key policy considerations underlying Blue & Gold, in addition to
decisions by this Court that dismissed protestors’ pre-award protests pursuant to the waiver rule
for failure to “timely and diligently pursue” those protest grounds. See id. at 13–15; see also,
e.g., Advanced Am. Constr., Inc. v. United States, 111 Fed. Cl. 205 (2013) (granting defendant’s
RCFC 12(b)(6) Motion to Dismiss pursuant to Blue & Gold’s waiver rule based on plaintiff’s
failure to timely and diligently pursue its pre-award protest grounds). The Court in DGR
Associates v. United States held that, when analyzing whether a plaintiff has waived its pre-
award protest grounds, “the proper inquiry is to assess whether a party has timely pursued an
alleged defect in a solicitation as allowed by law, and whether the party has diligently pressed its
position without waiver at each step of the way.” 94 Fed. Cl. 189, 204 (2010). While plaintiff
is correct that its case and DGR present different fact patterns, the plaintiff in DGR clearly did

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significantly more to diligently pursue—or “diligently press its position”—at every step of the
way before filing its protest at this Court. See generally id. Conversely, Harmonia knowingly
abandoned its pre-award protest grounds until it received an adverse award decision, instead
adopting the “wait and see” position that Blue & Gold expressly warned against. As a case need
not present identical fact patterns to be persuasive on the holding in a later case, the Court
interprets DGR to set forth a requirement that a plaintiff must diligently pursue—or “diligently
press”—its position at every stage of the process in order to preserve the pre-award grounds it
later brings at this Court.

          One of the key policy considerations the Court considered in determining that plaintiff
failed to diligently pursue its pre-award claims was the Federal Circuit’s interpretation of the
statutory mandate of 28 U.S.C. § 1491(b)(3) (2018), which directs courts to “‘give due regard to
. . . the need for expeditious resolution of the action’ and the rationale underlying the patent
ambiguity doctrine [that] favor recognition of a waiver rule.” Blue & Gold, 492 F.3d at 1315
(quoting 28 U.S.C. § 1491(b)(3)). That the Court relied upon this principle—among others—is
evident in the Court’s holding that

       [n]othing in the record or in plaintiff’s briefing meaningfully explains the
       five-month delay in Harmonia filing its pre-award protest with this Court. The
       Court believes that allowing Harmonia to re-raise its pre-award claims months after
       the Agency’s adverse protest decision and subsequent award decision would
       frustrate the holding in Blue & Gold and functionally give Harmonia a second bite
       at the apple. As such, the Court cannot conclude that Harmonia diligently or timely
       pursued its position, particularly if the protested terms impacted Harmonia’s
       proposal as severely as Harmonia claims.

Opinion and Order at 15. Thus, the Court remains unpersuaded by plaintiff’s arguments that, at
their core, seek to undermine the legal and policy considerations of Blue & Gold and its progeny.

         Moreover, plaintiff posits in a footnote in its Motion that, while Blue & Gold is often
termed the “waiver rule,” it would be more appropriately classified as a forfeiture rule because,
while waiver “refers to the knowing abandonment or relinquishment of a right,” forfeiture is the
failure to assert a right in a timely manner.” Pl.’s Mot. at 4–5 n.2. To the extent that a difference
exists, plaintiff seemingly has both waived and forfeited its right to pursue its pre-award
protest. As the Court previously held, plaintiff not only failed to assert its pre-award arguments
in a timely manner, but it also knowingly abandoned those arguments by failing to pursue a
pre-award protest at the GAO or at this Court after its agency-level protest was
denied. Applying plaintiff’s logic, were the Court to conclude that plaintiff did not waive its
right to bring its pre-award protest grounds, it would also have to conclude that plaintiff was
unaware that bringing such a pre-award protest was an option.

       Finally, the Court notes that, even had the Court not found plaintiff’s pre-award protest
untimely, plaintiff is nevertheless unlikely to succeed on the merits given the great degree of
deference accorded to agencies in determining the scope of proposal revisions that offerors are
permitted to make in response to an amendment to a solicitation. See Mantech Telcoms. & Info.
Sys. Corp. v. United States, 49 Fed. Cl. 57, 73 (2001) (“Even were section 15.206(d) of the FAR

                                                 5
inapplicable, the government would still be authorized to amend the Solicitation based upon an
exercise of its discretion. Thus, as a general rule, in a negotiated procurement, the contracting
agency has broad discretion to amend the solicitation when it determines that such action is
necessary to ensure fair and impartial competition and to permit the government to obtain its
minimum requirements at the most favorable price.”). As such, and based on the foregoing, the
“likelihood of success on the merits” injunctive relief factor weighs heavily against the plaintiff.

         With respect to the second injunctive relief factor, plaintiff argues that it will be
irreparably injured if the Court does not grant an injunction, as “Harmonia had a substantial
chance of award had the Agency allowed it to revise its proposal.” Pl.’s Mot. at 11. As such,
plaintiff’s claim of irreparable harm is based on the denial of “the potential profits and work
embodied in the Award.” Id. In response, defendant argues that plaintiff failed to demonstrate
irreparable harm and highlights the lack of urgency with which plaintiff brought its appeal.
Def.’s Resp. at 10. In the context of a RCFC 62(d) Motion, this Court has previously held that
“loss of a contract is not enough without more to show irreparable harm or warrant a stay
pending appeal.” Algese 2 s.c.a.r.l. v. United States, 128 Fed. Cl. 7, 12 (2016); see also
Emergency Planning Mgmt. v. United States, 146 Fed. Cl. 487, 490 (2020) (citing Akima, 120
Fed. Cl. at 28). Accordingly, where, as here, the movant inextricably links the bases upon which
it will suffer irreparable harm with its arguments for success on the merits, the plaintiff will need
to show more than a loss of “potential profits and work embodied in the Award” to prevail.
Compare, e.g., Algese 2, 128 Fed. Cl. 7, with Pl.’s Mot. at 11; see also Cleveland Assets, LLC v.
United States, 133 Fed. Cl. 108, 112 (2017) (finding the plaintiff failed to demonstrate
irreparable harm where the movant’s arguments were “bound up in its chance of success on the
merits,” which was “not substantial,” and where its loss of potential work argument was entirely
speculative). As such, the Court finds this factor weighs against the plaintiff.

         Under the third injunctive relief factor, plaintiff argues that neither defendant nor
defendant-intervenor would be substantially harmed by an injunction considering that the
Agency has a bridge contract with defendant-intervenor that provides the Agency with the
“continuity of services it desires.” Pl.’s Reply at 16; see also Pl.’s Mot. at 11. In its Response,
defendant explains that, although the Agency extended its bridge contract until May 2020, the
status of its contracted support is nevertheless “uncertain as a result of the short-term bridge
contract.” Def.’s Resp. at 12. Additionally, defendant claims that by having to use a bridge
contract, the Agency has not been able to begin work on its long-term development projects. See
id. Defendant-intervenor further argues that its bridge contract “is only a stop-gap matter that
allows the most essential work to be performed,” and that the “full contract” has additional
requirements that will “greatly enhance the security and improvement” of the CSPD program.
Def.-Int.’s Resp. at 7. While the Court appreciates the Agency’s need to begin work on its
long-term CSPD development projects, the Court nevertheless concludes that this injunctive
relief factor tilts slightly in favor of the plaintiff given the Agency’s current bridge contract that
provides the critical support services necessary to operate the CSPD program. Cf. Algese 2, 128
Fed. Cl. at 12–13 (finding the government would be significantly harmed by an injunction
pending appeal where the agency no longer having “a currently enforceable bridge contract
significantly increase[d] the harm the Government would suffer both in the potential disruption
of [services] and the cost of procuring a new bridge contract.”).



                                                  6
        Finally, plaintiff argues that it is in the public interest to grant an injunction, as “[t]he
‘public has a strong interest in insuring that public officials treat contractors fairly and generally
obey procurement laws and regulations,’” and because the Agency continues to receive the
necessary services through its bridge contract with defendant-intervenor. Pl.’s Mot. at 11
(quoting Rotech Healthcare Inc. v. United States, 71 Fed. Cl. 393, 431 (2006)); Pl.’s Reply at 16.
Additionally, plaintiff claims that an injunction would “preserv[e] the integrity of the
procurement process” should the Court “eventually determine[] that Harmonia should have been
allowed to amend its proposal. Pl.’s Mot. at 11. In response, defendant and
defendant-intervenor contend it is in the public’s interest to commence performance “as soon as
possible,” as these contracted services are “indispensable to the continued function of the ACE”
and are critical to the Nation’s security. See Def.’s Resp. at 12; see also Def.-Int.’s Resp. at 7.
In support of this assertion, defendant-intervenor points to case law and the Tucker Act, which
directs this Court to “‘give due regard to the interests of national defense and national security’
when deciding bid protests cases.” Def.-Int.’s Resp. at 8 (citing, e.g., Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 23–24 (2008); then citing, e.g., Gentex Corp. v. United States, 58 Fed.
Cl. 634, 656 (2003); and then quoting 28 U.S.C. § 1491(b)(3)).

        This Court has held that “the public has an interest in honest, open, and fair competition
in the procurement process.” Cincom Sys. v. United States, 37 Fed. Cl. 266, 269 (1997). In
cases involving a national security interest, however, the public interest in a transparent
procurement system must be balanced with the statutory requirement that the Court “give due
regard to the interest of national defense and national security.” 28 U.S.C. § 1491(b)(3); see
Gentex, 58 Fed. Cl. at 655; see also Algese 2, 128 Fed. Cl. at 13 (“When national security is at
issue, the interest of maintaining a competitive procurement process is outweighed.”). Here, the
Agency has demonstrated a strong and substantiated national security interest to support denying
injunctive relief. This is particularly true in light of the current health crisis surrounding
COVID-19 that the Country is facing. Therefore, this injunctive relief factor weighs strongly in
favor of defendant and defendant-intervenor.

III.       Conclusion

       Based on the foregoing analysis, plaintiff has failed to demonstrate that an injunction
pending appeal is warranted or appropriate. Accordingly, plaintiff’s MOTION for Injunction
Pending Appeal is hereby DENIED.

       IT IS SO ORDERED.
                                                      s/   Loren A. Smith
                                                      Loren A. Smith
                                                      Senior Judge




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