Virginia Lawyers Weekly VA Lawyers Weekly
Where petitioner submitted an unsuccessful offer to the Virginia Port Authority, or VPA, to demolish and remove three ship-to-shore cranes, the court denies petitioner’s action for a temporary injunction to prevent VPA from giving the job to another contractor while an appeal is pending.
Background and legal standards
The VPA rejected a contract offer from Empire Services to remove cranes from a shipping terminal. Empire has sought injunctive relief to prevent VPA from awarding the contract to McLean Contracting until after Empire’s pending appeal has been decided.
“In order for the Court to grant Empire its requested temporary injunction, Empire must establish, by a clear showing, that (1) it is likely to succeed on the merits of its underlying ‘First Amended Verified Complaint,’
“(2) it is likely to suffer irreparable harm in the absence of the requested temporary injunction,
“(3) the balance of equities tips in its favor, and
“(4) the requested injunction is in the public interest. ….
“Further, Empire must establish all four factors in order to be awarded preliminary relief.”
No success on merits
“Empire must clearly show that it is likely to succeed on the merits of its underlying complaint: that VPA’s issuance of the award to McLean was ‘unfair and uncompetitive and arbitrary/capricious’ and that VPA must award the Contract to Empire as the lowest bidder.
“The Court holds that, at this very early stage of the proceedings, Empire has not established that it is likely to succeed on the merits of its claims.
“At trial, Empire will have the heavy burden of proving that VPA’s contract award decision was arbitrary or capricious. A decision is ‘arbitrary and capricious when it is willful and unreasonable and taken without consideration or in disregard of facts or law or without determining principle, or when the deciding body departed from the appropriate standard in making its decision.’”
Contract award
“VPA provided substantial support for its contract award decision. VPA claims that its submitted evidence demonstrates that the contract award evaluation committee ‘made a reasoned and deliberative decision to award the contract to McLean over Empire.’ VPA’s submitted documents lay out in great detail how Empire’s and McLean’s offers were evaluated and scored.
“Although it is undisputed that Empire was the lowest bidder [by $700,000] and that Empire had a higher percentage of SWaM [Small, WomenOwned, and Minority-Owned Business] work than McLean in their respective offers – two of the factors identified in VPA’s request for proposals and considered by the evaluation committee – Empire provided very little to support its allegation that the contract award decision was arbitrary or capricious, especially in light of the evaluation materials provided by VPA.
“Rather, based on the limited evidence available at this early stage of the litigation, it appears to the Court that the evaluation committee indeed made a reasoned and deliberative decision.”
Irreparable harm
“Empire claims that it will be irreparably injured because ‘once McLean begins performance [on the Contract], there is no relief available to Empire,’ ostensibly based on the Manual’s pronouncement that pre-performance relief is limited to canceling the award and either rejecting or reevaluating offers.
“It does not appear that the Manual addresses post-performance relief for an aggrieved offeror, and it is not clear whether Empire could be bound to seek only relief as provided by the Manual – as the Manual dictates – under a situation in which VPA colluded with McLean to award McLean the Contract.
“Of note, a plaintiff who has been improperly deprived of the award of a services contract typically has reparable relief in the form of a damages claim.
“Under the circumstances, the Court finds that Empire has not established, by a clear showing, that it is likely to suffer irreparable harm in the absence of preliminary relief.”
Equities
“Between now and trial, Empire’s alleged harm without the preliminary relief is McLean being awarded the Contract and the concomitant harm to Empire, as discussed above.
“VPA, by contrast, argues that granting the temporary injunction – and thereby delaying award of the Contract to McLean – will result in the delay of and associated delay-related damages from ‘two much larger projects valued at several millions [sic] dollars,’ which VPA cannot start until the Contract work is complete.
“The Court finds that Empire has not established that the balance of equities tips in its favor. However, the Court notes that it does not appear that either party would suffer irreparable injury should its requested preliminary relief be denied.”
Public interest
“Empire claims that the requested temporary injunction is in the public interest because, without it, VPA – and the citizens of Virginia – will not realize the $700,000 in savings represented by award of the Contract to Empire.
“VPA, on the other hand, asserts that the delay in awarding the Contract to McLean if a temporary injunction is granted would result in additional substantial costs due to the delay of the follow-on contracts; the delay allegedly will directly impact the ability of the port to increase the number of jobs, business opportunities, and enhanced revenue that are contingent upon completion of the follow-on contracts.
“The Court finds that Empire has not established that the requested temporary injunction is in the public interest.”
Empire’s motion for an emergency preliminary injunction is denied.
Empire Services v. Virginia Port Authority, Case No. CL23-583, Feb. 17, 2023 (Order). City of Norfolk Circuit Court (Lannetti). VLW 023-8-013, 10 pp.
