Case 1:12-cv JFM Document 12 Filed 06/11/12 Page 1 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS

Transcription

1 Case 1:12-cv JFM Document 12 Filed 06/11/12 Page 1 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE DAVIS GROUP, INC., Plaintiff, v. No C (Senior Judge Merow THE UNITED STATES, Defendant. DEFENDANT S OPPOSITION TO PLAINTIFF S REQUEST FOR PRELIMINARY INJUNCTIVE RELIEF Pursuant to the Court s May 22, 2011 Order, defendant, the United States, respectfully files this response in opposition to plaintiff, The Davis Group, Inc. s, amended motion for a preliminary injunction. BACKGROUND In July 2008, the United States Army Corps of Engineers (USACE awarded The Davis Group a fixed-price design-build contract for the construction of certain troop facilities at Hunter Army Airfield in Savannah, Georgia. Compl. 6. As issued, the contract was valued at approximately $7.5 million, and it required The Davis Group to complete the Hunter Airfield project by February 2, Id. The Davis Group failed to meet this deadline. Not until August 2010 was USACE able to declare construction substantially complete. Id. Based upon The Davis Group s inexcusable delay, USACE assessed and collected liquidated damages in an amount determined pursuant to the parties contract. Id. 6, 9. Moreover, in the course of denying a certified claim by The Davis Group, USACE s contracting officer rated the contractor s performance as unsatisfactory. Id. 9, 26. As required under the Federal Acquisition Regulations (FAR, USACE entered The Davis Group s unsatisfactory rating in the Government s electronic Past Performance Information Retrieval System (PPIRS. Id. 26; see

2 Case 1:12-cv JFM Document 12 Filed 06/11/12 Page 2 of 5 48 C.F.R (c. On May 2, 2012, The Davis Group filed the present action. In its complaint, The Davis Group contends: (1 its delayed performance resulted from USACE s design specifications and schematics, which allegedly were defective; (2 USACE s liquidated damages penalty should be remitted; and (3 the contracting officer s unsatisfactory performance rating is unlawful. Compl As a remedy, The Davis Group seeks a monetary judgment pursuant to the Contract Disputes Act, 41 U.S.C et seq. (CDA. Compl Although this is not a bid protest case, The Davis Group also seeks relief in the nature of a continuing injunction. Specifically, The Davis Group requests that this Court issue an order compelling USACE to withdraw its unsatisfactory rating from the mandatory FAR performance database, and to refrain from reporting this negative information until the Court has ruled on the merits of this CDA action. Compl. 3; P s A. Mot. for Prelim. Inj. 17. Given the contested allegations in the complaint, such a ruling may not issue for years. DISCUSSION The Court is without power to issue the requested injunction. Created by Congress as a forum where private parties could sue the Government for certain monetary claims otherwise barred by sovereign immunity, the Court of Federal Claims is an Article I court of limited jurisdiction. Kanemoto v. Reno, 41 F.3d 641, 644 (Fed. Cir The remedies available in the Court extend to those affording monetary relief in appropriate circumstances. Id. Except as narrowly and expressly provided by Congress, the Court has no general equitable power to issue injunctions. Id. at 645; Beck v. Sec y of The Dep t of Health and Human Servs., 924 F.2d 1029, 1036 (Fed. Cir. 1991; see also Bowen v. Massachusetts, 487 U.S. 879, 2737 (1988 ( The 2

3 Case 1:12-cv JFM Document 12 Filed 06/11/12 Page 3 of 5 Claims Court does not have the general equitable powers of a district court to grant prospective relief.. The Court s jurisdictional charter specifies only three instances in which it may entertain claims for nonmonetary relief, none of which apply in this case. See 28 U.S.C. 1491(a(2- (b(2; Annuity Transfers, Ltd. v. United States, 86 Fed. Cl. 173, (2009. With regard to the preliminary relief sought by The Davis Group, the Court may issue orders directing the correction of applicable records, but it may do so only as an incident of and collateral to an actual judgment. 28 U.S.C. 1491(a(2. Congress did not provide for the correction or withdrawal of Government contracting records through nonmonetary injunctive relief, as necessary to permit the Court to grant an equitable remedy here. See id.; Kanemoto, 41 F.3d at 644. Nor has Congress authorized this Court to compel Federal agencies to withdraw and/or prevent the reporting of contractor performance information on the PPIRS database, a procedure required by regulation. See 28 U.S.C. 1491(a(2-(b(2; 48 C.F.R (c; Compl. 26 (acknowledging USACE was required to report its evaluation under the FAR. Congress granted this Court express authorization to issue injunctions in only one type of action bid protests. See 28 U.S.C. 1491(a(2-(b(2. Because this is not a bid protest case, the Court is without jurisdiction to issue the requested injunction. See id.; Todd Constr., L.P. v. United States, 88 Fed. Cl. 235, 243 n.4 (2009 (recognizing that statute providing jurisdiction over bid protests expressly authorizes Court to issue injunctive relief unlike in CDA cases. Recognizing its jurisdictional limitations, this Court properly denies requests for injunctions in situations analogous to the one now before it. See Todd Constr., 88 Fed. Cl. at 243; see also Annuity Transfers, 86 Fed. Cl. at 174, (rejecting plaintiff s application for 3

4 Case 1:12-cv JFM Document 12 Filed 06/11/12 Page 4 of 5 order directing nonmonetary equitable relief; Jaynes v. United States, 75 Fed. Cl. 218, 222 (2007 (dismissing request for declaratory and injunctive relief requiring particular future compensation; McAfee v. United States, 46 Fed. Cl. 428, 434 (2000 ( This court, therefore, is without jurisdiction to entertain plaintiffs claims for specific performance and declaratory and injunctive relief. ; Marcinkowsky v. United States, 44 Fed. Cl. 610, 613 (1999 (recognizing that statute did not expressly provide for requested injunctive relief; Slovacek v. United States, 40 Fed. Cl. 828, 834 (1998 ( Plaintiffs have not, and cannot, identify any statutory provision that authorizes this court to... grant the requested injunctive relief.. Because the Court is without jurisdiction to issue a preliminary injunction compelling USACE to remove The Davis Group s past performance information from PPIRS, it has no choice but to deny the requested injunction. 1 Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General JEANNE E. DAVIDSON Director 1 The Davis Group proposes that simply filing a CDA action wipes the slate clean, somehow rendering a bad performance evaluation unsupported and capable of removal from PPIRS via an injunction. See P s A. Mot. for Prelim. Inj Were the Court to adopt this superficial reasoning, it would promote a rash of new suits by encouraging every Government contractor with an adverse performance review to seek an injunction in hopes of circumventing the PPIRS database. As the Federal Circuit has made clear, a plaintiff has the right to litigate the accuracy of a past performance evaluation as part of a substantive CDA case. Todd Constr., L.P. v. United States, 656 F.3d 1306, (Fed It does not, however, have the right to preliminary injunctive relief on that same evaluation. Todd Constr., 88 Fed. Cl. at

5 Case 1:12-cv JFM Document 12 Filed 06/11/12 Page 5 of 5 s/steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director s/scott Slater SCOTT SLATER Trial Attorney U.S. Department of Justice Civil Division Commercial Litigation Branch P.O. Box 480 Ben Franklin Station Washington, D.C Telephone: ( Facsimile: ( June 11, 2008 Attorneys for Defendant 5