Following their victory in a prior COFC decision that found Project Labor Agreement (PLA) requirements arbitrary and capricious, the plaintiffs moved for permanent injunctive relief to “avoid a never-ending loop of solicitations containing illegal PLA requirements.” The Court ruled it lacked the jurisdiction to enjoin the executive order that created PLA requirements. The Court compared itself to a home plate umpire who calls balls and strikes in a predefined strike zone rather than a commissioner who determines the size of the strike zone.
MVL USA, Inc., et al., v. United States, COFC Nos. 24-1057, 24-1077, 24-1144, 24-1219, 24-1398, 24-1433, 24-1461
- Background
- Executive Order: In 2022, President Biden issued an executive order mandating agencies to include PLAs with “one or more appropriate labor organizations” in ” government construction projects exceeding $35M.
- Protests: The consolidated plaintiffs protested the PLA requirement as arbitrary and capricious and violating federal procurement statutes. On January 19, 2025, the Court granted the plaintiffs’ motions for judgment and ordered the parties to file a joint status report (JSR) detailing the agencies’ proposed timeframe required to properly address each contract. The plaintiffs “won on the merits.”
- Corrective Actions: After the decision, the agencies took corrective action regarding the PLA requirement, resulting in 4 cancelled solicitations, 3 amended solicitations, and 5 voluntarily dismissed protests.
- Permanent Injunctive Relief – In the instant decision, the consolidated plaintiffs sought permanent injunctive relief to “avoid a never-ending loop of solicitations containing illegal PLA requirements and a bid protest game of Whack-a-mole to stop the continued illegal solicitation requirements.” They argued the Tucker Act authorized the Court to award any relief for alleged violations of law in connection with federal procurements, including injunctive relief. The government moved to dismiss the case as moot since all the solicitations at issue were already either cancelled or amended to remove the PLA requirement.
- Mootness – The Court addressed each of the plaintiffs’ original requested relief in their respective complaints. This included relief such as a temporary restraining order to stay the procurement process, a declaratory judgment that the PLA requirements were arbitrary and capricious, and a permanent injunction to remove and void PLA requirements from each solicitation. The Court found all were moot due to the agencies’ corrective actions.
- Conclusion – With all the requests for relief found moot, the Court ruled that the plaintiffs could not could not “chin the statutory bar by relying only on future harm in future protests.” Protesters must tether their requested relief to interested parties and specific procurements. The Court ruled that it lacked the jurisdiction to vacate or universally enjoin the executive order and related FAR regulations beyond these specific procurements. Thus, it denied the plaintiffs’ motion for a permanent injunction.
The plaintiffs were represented by Dirk D. Haire, Joseph L. Cohen, Payum Sean Milani-nia, David Timm, Jane Jung Hyoun Han, and Michael J. Brewer of Fox Rothschild, LLP; and Jacob W. Scott, Allison G. Geewax, and Mark S. Abrajano of Smith Currie Oles LLP. The government was represented by William P. Rayel, Natalee A. Allenbaugh, Yaakov M. Roth, Patricia M. McCarthy, and Douglas K. Mickle of DOJ; and Tarrah M. Beavin, J. Alexandra Fitzmaurice, and Angelina Calloway of the Army.
— Case summary by Joshua Lim, Assistant Editor.
