The protester lost a COFC protest and appealed to the Federal Circuit. Several months after filing the appeal, the protester moved for a stay pending appeal. The court denied the motion, finding it was an attempt to recover from gamesmanship gone awry. If the protester had really wanted to a stay, it would have promptly moved for one when it filed the appeal. Instead, the court reasoned, the protester, who was the incumbent, had waited several months to see if the agency would award the protester another bridge contract. The court was not going to save the protester from the consequences of its own strategic decisions.
Newimar, S.A v. United States, COFC No. 21-cv-1897
Background
The Navy awarded a contract for base operations support to J&J Maintenance, Inc. The incumbent contractor, Newimar, S.A, filed a protest with the Court of Federal Claims, challenging the award. The court denied the protest in May 2022. A month later, Newimar appealed to the Federal Circuit. Several months later, Newimar filed a motion with the COFC asking for a stay pending appeal and an injunction prohibiting J&J from beginning performance.
Analysis
Timing of Motion
The court found that the motion requesting a stay was “a last-minute effort . . . to recover from gamesmanship gone awry.” Newimar had waited five months before moving a stay. It appeared to the court that Newimar had delayed in filing the motion because it believed the Navy would award a bridge contract that would keep Newimar performing. Now that the agency had decided not to award a bridge contract, Newimar complained that it would be harmed by allowing J&J to perform the contract. This type of harm was foreseeable. If Newimar really thought that losing the contract would cause irreparable harm, it should have filed a prompt motion for a stay. The court was not going to reward Newimar’s gamesmanship.
Success on the Merits
To obtain a stay pending appeal, the movant must establish that it is likely to succeed on the merits of its appeal, or that the appeal presents a substantial case of first impression. The court found that Newimar had not made this showing. Newimar hadn't articulated which arguments represented an issue of first impression. Indeed, the court found that Newimar’s motion merely reiterated the arguments—unstated criteria, unbalanced pricing— it had raised in the underlying protest. The court didn’t find them any more compelling the second time around.
Irreparable Harm/Balance of Hardships
A party seeking a stay pending appeal must also prove that absent a stay they will suffer irreparable ham, and that the harm they will suffer is greater than the harm the stay would cause the other party. The court found that Newimar had not provided any meaningful evidence to demonstrate that it would be harmed without a stay. Newimar had simply offered little but conclusory statements and bald assertions from counsel without explanation as to how those harms would be immediate or certain. The government, on the other hand, had persuasively shown that a stay would result in delay and additional costs.
--Case summary by Craig LaChance, Senior Editor