Preliminary Injunctions: New Analysis for Irreparable Harm in Government Contract Protest Cases

A contract proposal for a government contract might be rejected as unacceptable. When that occurs, a protest can be filed by the rejected contractor. If the government proceeds with a portion of the contract award, the contractor might need to file an action for a preliminary injunction to prevent the award until its protest can be decided. The traditional four-factor test is applied by the U.S. Court of Federal Claims, considering the protester’s: likelihood of success on the merits, irreparable harm absent an injunction, whether the harm caused by issuing the injunction is outbalanced by the harm of not issuing it, and the public interest. The first two factors must be shown.  In A. T. Kearney Pub. Sector & Defense Servs., LLC v. United States, No. 21-2121, 2021 WL 5984424 (Fed. Cl. Dec 9, 2021), the court denied a preliminary injunction to stop the award of part of the government contract because irreparable harm was lacking. The part of the contract at issue was less than ten percent of the entire contract’s value.  Losing a small fraction of the overall award was not irreparable harm. Given this holding, future contract protesters will have to consider new evidence of irreparable harm.

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