COFC Doubts Protesters Will Prevail on Challenge to PPE Solicitation, Denies Request for Preliminary Injunction

The protesters objected to a solicitation for personal protective equipment (PPE). They asked the court to enter a preliminary injunction to halt the procurement. The court denied the request, finding the protesters were unlikely to prevail on the merits. 

AirBoss Defense Group, LLC, and String King Lacrosse, LLC v. United States, COFC No. 24-365 

• Protest – The solicitation sought personal protective equipment. The original solicitation stated the government would evaluate the shelf-life of the equipment. But the agency amended the solicitation and removed the shelf-life criterion. Prospective bidders filed suit objecting to the removal of shelf-life. They argued that the elimination of shelf-life had rendered products with a longer shelf life uncompetitive. Moreover, they reasoned that the removal of the shelf-life criterion would turn what had been a best-value solicitation into a lowest-priced, technically acceptable shootout. 

• Request for Preliminary Injunction – The protesters asked the court to enter a preliminary injunction. They said the court should halt the procurement, so they did not have to bid on a defective solicitation. 

• Likelihood of Success – The court denied the request for an injunction. The court found the protesters were unlikely to prevail on the merits. An agency has discretion to amend a solicitation under its view of what is in the public interest. Here, the agency decided not to prioritize shelf-life, because age testing on the PPE was not available. 

• Irreparable Harm – The court also found the protesters would not be irreparably harmed by the continuation of the procurement. To be sure, the protesters thought they were bidding on a defective solicitation. But mere allegations of an unfair bidding process does not demonstrate an irreparable injury.

AirBoss is represented by Daniel P. Graham, Llewelyn M. Engel of McDermott Will & Emery, LLP. String King is represented by Eric S. Crusius and Richard Ariel of Holland & Knight LLP. The intervenor, New York Embroidery, is represented by Tara D. Hopkins, Jonathan D. Shaffer, and Scott E. Whitman of Haynes & Boone, LLP. The government is represented by Jana Moses, Brian M. Boynton, Patricia M. McCarthy, and Franklin E. White, Jr. of the Department of Justice and Megan R. Nathan and Anthony E. Marrone of the Department of Health and Human Services. 

--Case summary by Craig LaChance, Editor in Chief