Army can replace base’s food delivery contractor

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Where the court enjoined the U.S. Army in January 2019 from cancelling a contract for food delivery services at Fort Benning because it appeared that the procurement process might have been in violation of federal law, that injunction was modified to allow solicitation of a new contract because of changing food service needs at Fort Benning, the increased federal contractor minimum wage and the need for contract re-categorization.

Background

The Randolph-Sheppard Act, or RSA, provides blind individuals licensed by state agencies with increased employment opportunities and self-support through the operation of vending facilities on federal property. On Nov. 26, 2018, plaintiffs alleged in their complaint that in 2018 the government violated the RSA during the procurement process when soliciting proposals for a food service contract at Fort Benning, Georgia by excluding plaintiffs from the contractual competitive range.

On Jan. 22, 2019, the court issued a preliminary injunction that enjoined the government “from proceeding with the procurement of and specifically from making any award of the subject Fort Benning Food Service Contract until a decision in arbitration under the Randolph-Sheppard Act has been rendered or upon further order of this Court.” To date, an arbitration panel has not been convened and a hearing has not been scheduled before an arbitration panel.

The government did not award a contract in the 2018 solicitation on account of the current litigation and pending arbitration. As a result, since the issuance of the preliminary injunction, plaintiffs have continued to service Fort Benning through six-month bridge contracts tied to the initial contract awarded to plaintiffs in 2016.

Now before the court is the government’s motion to modify the injunction. The government argues that since the issuance of the preliminary injunction, there have been “significant, unforeseen” circumstances that justify modifying the preliminary injunction, namely, changing food service needs at Fort Benning, the increased federal contractor minimum wage and the need for contract re-categorization.

Further, the government argues that cancelling the 2018 solicitation now would serve the public interest because the government anticipates issuing a new solicitation regardless of the outcome of the arbitration. The government argues that plaintiffs could freely compete for a future solicitation.

Analysis

Courts in this district have applied a non-exhaustive list of factors in considering whether to modify or dissolve a preliminary injunction: “(1) the circumstances leading to entry of the injunction and the nature of the conduct sought to be prevented; (2) the length of time since entry of the injunction; (3) whether the party subject to its terms has complied or attempted to comply in good faith with the injunction; (4) the likelihood that the conduct or conditions sought to be prevented will recur absent the injunction; (5) whether the moving party can demonstrate a significant, unforeseen change in the facts or law and whether such changed circumstances have made compliance substantially more onerous or have made the decree unworkable; and (6) whether the objective of the decree has been achieved and whether continued enforcement would be detrimental to the public interest.”

Here, the court finds that the fact that the preliminary injunction has substantially run the length of the possible contact, the demonstrated changed circumstances and the benefits to the public interest render the continued enforcement of the original injunction inequitable. As such, the Army may cancel the solicitation that was the subject of the preliminary injunction and the Army is authorized to issue a new solicitation for proposals to provide food services at Fort Benning to account for its current needs, provided that any such solicitation and any new award would be subject to the RSA.

Further, the Army shall continue to procure food services for Fort Benning from plaintiff under the same terms provided in the 2016 contract until a new Fort Benning contract is solicited and awarded. Finally, upon awarding a new contract, the Army promptly shall notify this court and the court will issue an order dismissing this matter.

Defendant’s motion to modify the preliminary injunction granted.

Georgia Vocational Rehabilitation Agency v. United States of America, Case No. 4:18-cv-148, Jan. 30, 2023. EDVA at Newport News (Jackson). VLW 023-3-040. 11 pp.