Motion for a temporary restraining order blocking performance of a contract for firefighting and fire suppression services is denied, where the court could not conclude with certainty that the protester had adequately preserved its status as a prospective offeror for the procurement, because it did not file its case with the court until more than 15 months after GAO denied its pre-award protest. The court also found that the protester would not suffer irreparable harm due to a lost opportunity to compete for the services, as it was not a party to any contracts under which the agency could obtain these services, if the contract at issue was temporarily suspended.
Timberline Helicopters Inc. filed a motion for a temporary restraining order and preliminary injunction halting the performance of a contract between the Bureau of Land Management and PJ Helicopters for aerial transportation of personnel in connection with BLM’s firefighting and fire suppression missions.
Timberline did not submit an offer in response to the solicitation because no helicopter could meet the solicitation requirements and comply with applicable FAA regulations regarding the transport of qualified non-crewmembers, and because BLM was unwilling to issue a public aircraft operation declaration to the awardee of the contract. According to Timberline, the PAO would have enabled it to provide the services consistent with FAA regulations.
Timberline filed a pre-award protest with GAO making the same arguments, which was denied. GAO declined to substitute its judgment for the agency’s. GAO noted the agency obtained an FAA opinion letter stating 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.
Thereafter, the FAA (apparently at the request of Timberline) initiated a review of the use of restricted category aircraft under the BLM contract. In a May 2018 memorandum, FAA offered its opinion that 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.” According to the opinion, the transportation of firefighters for ground firefighting from one location to another is not related to the special purpose for which the aircraft is certified.
Apparently in light of this opinion, BLM provided PJ Helicopters with a PAO, which authorized it to continue transporting firefighters in its aircraft, as required by the contract. Timberline protested, arguing that BLM’s failure 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. Timberline asked the court to direct BLM to resolicit offers and award it attorneys’ fees and costs. Timberline also filed this motion for a TRO and preliminary injunction.
However, the court denied the motion, first finding that Timberline had not shown a substantial chance of success on the merits of its case, generally because the court could not conclude it has standing to pursue it. Because Timberline did not submit an offer for the original contract, the court found it was not an actual offeror. While Timberline’s GAO pre-award protest could establish that it was a prospective offeror, the court noted the protester did not file its current case until 15 months after its GAO protest was denied. The lengthy delay caused the court to question whether Timberline had diligently preserved its prospective offeror status.
Further, the request was not intended to disturb, not preserve, the status quo, as the protester sought to enjoin performance of a contract awarded more than a year prior, during which time the awardee had been providing services to the agency. The court also found that Timberline had not established that it would suffer irreparable harm while the protest is pending, absent the relief it sought. While Timberline argued that a TRO would require BLM required to employ the transportation services provided under “other call-when-needed contracts,” the court found no evidence Timberline was party to any such contracts. Thus, the court found that issuing the preliminary relief Timberline requested would not avoid the loss of profits that Timberline identified as the irreparable harm that it will suffer while its protest is pending. Further, the court noted that there is no procurement pending from which Timberline will be precluded from competing absent temporary or preliminary relief.
Finally, the court found the request would inflict harm on the government and the public interest if performance of firefighting and fire suppression services were interrupted. Accordingly, the court denied the motion for relief.
Timberline Helicopters is represented by Theodore P. Watson and Wojciech Z. Kornacki of Watson & Associates, LLC. The government is represented by John S. Groat, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Steven J. Gillingham, Assistant Director, and William B. Blake, Department of the Interior, Of Counsel.
