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In the United States Court of Federal Claims
No. 24-365
(Filed under seal: June 27, 2024)
(Reissued: July 15, 2024)
AIRBOSS DEFENSE GROUP, LLC,
Plaintiff,
and
STRING KING LACROSSE LLC,
Plaintiff-Intervenor,
v.
UNITED STATES,
Defendant,
and
NEW YORK EMBROIDERY
STUDIO, INC.
Defendant-Intervenor.
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Daniel P. Graham, McDermott Will & Emery LLP, Washington, D.C., for plaintiff
AirBoss Defense Group, LLC. With him on the briefs was Llewelyn M. Engel, McDermott Will
& Emery LLP, Washington, D.C.
Eric S. Crusius, Holland & Knight LLP, Tysons, VA, for plaintiff-intervenor String King
Lacrosse LLC. With him on the briefs were Amy L. Fuentes, Holland & Knight LLP, Tysons,
VA, and Richard Ariel, Holland & Knight LLP, Washington, D.C.
Jana Moses, Trial Attorney, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, D.C., for the United States. With her on the briefs were
Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, Patricia M.
McCarthy, Director, Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington, D.C. Of counsel were Megan
R. Nathan, and Anthony E. Marrone, Office of the General Counsel, General Law Division,
United States Department of Health and Human Services, Washington, D.C.
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Tara D. Hopkins, Haynes & Boone, LLP, Tysons Corner, VA, for New York Embroidery
Studio, Inc. With her on the briefs were Jonathan D. Shaffer, Haynes & Boone, LLP, Tysons
Corner, VA, and Scott E. Whitman, Haynes & Boone, LLP, Washington, D.C.
OPINION AND ORDER1
LETTOW, Senior Judge.
Plaintiff, AirBoss Defense Group, LLC (“AirBoss”), and plaintiff-intervenor, StringKing
Lacrosse LLC (“StringKing”) bring this bid protest against defendant, the United States of
America, acting by and through the U.S. Department of Health and Human Services,
Administration for Strategic Preparedness and Response (“the government” or “HHS” or “the
agency”), and defendant-intervenor, New York Embroidery Studio, Inc. (“NYES”). The bid
protest concerns a solicitation for personal protective equipment (“PPE”) in the form of Level 2
Isolation Gowns (the “solicitation” or “RFP”), which was initially issued on June 28, 2022. AR
266-67, 277, ECF No. 48.2
This protest is before the court on plaintiff-intervenor’s application for a temporary
restraining order and motion for a preliminary injunction. Pl.-Intervenor’s App. for a TRO and
Mot. for a Prelim. Inj. (“Pl.-Intervenor’s Mot.”), ECF No. 54; Pl.-Intervenor’s Mem. in Supp. of
Pl.-Intervenor’s Mot. (“Pl.-Intervenor’s Mem.”), ECF No. 54-1. Plaintiff-intervenor asks this
court to prohibit HHS from proceeding with the solicitation at issue until the court resolves this
bid protest on the merits.
FACTS3
AirBoss initiated this action on March 7, 2024, Compl., ECF No. 1, and filed its first
amended complaint on March 25, 2024, First Am. Compl., ECF No. 26. StringKing sought
intervention on April 12, 2024, which the court granted the same day. Order Granting Mot. to
Intervene, ECF No. 30. StringKing then filed its initial complaint on April 23, 2024. Pl.-
Intervenor’s Compl., ECF No. 37. In the interim, the court on April 29, 2024, granted a request
by the government to suspend future deadlines in this case—while HHS completed corrective
action at the agency-level—to avoid the possibility of premature adjudication by this court.
Order Suspending Future Deadlines, ECF No. 39. Thereafter, the court granted a joint motion
1 Because of the protective order entered in this case, this opinion was initially filed under
seal. The parties were requested to review the decision and provide proposed redactions of
confidential or proprietary information. Redactions are shown by asterisks enclosed by brackets,
e.g., “[***].”
2 Aside from page numbers 1045, 1046, 1048, 1049, and 1055 being inadvertently
duplicated, the administrative record is consecutively paginated and will be cited as “AR __.”
3 The following recitations constitute findings of fact by the court, based on the
administrative record of this procurement, filed pursuant to Rule 52.1(a) of the Rules of the
Court of Federal Claims (“RCFC”). See Bannum, Inc. v. United States, 404 F.3d 1346, 1357
(Fed. Cir. 2005).
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brought by plaintiffs to partially reinstate the deadlines in this case to allow for filing the
administrative record. Order of May 6, 2024, Granting Mot. to Amend Sched., ECF No. 42.
Thereafter, AirBoss filed its second amended complaint on June 11, Second Am. Compl., ECF
No. 51, and StringKing filed its first amended complaint on June 12. Pl.-Intervenor’s First Am.
Compl., ECF No. 52.
This protest concerns a solicitation initially issued on June 28, 2022, for “ANSI
[American National Standards Institute]/AAMI [Association for the Advancement of Medical
Instrumentation] Level 2 Disposable Isolation Gowns Manufactured in the U.S. or its Outlying
Areas.” AR 277. The solicitation’s stated purpose was to create a strategic national stockpile of
disposable medical isolation gowns, to “enable the United States to ensure sufficient domestic
availability of such items during national emergencies and/or pandemic events.” AR 277. To
this effect, the solicitation set out four factors—technical compliance, technical capability,
similar experience, and price evaluation. AR 313. The technical capability factor had eight
subfactors, one of which was shelf life. AR 313. Primarily at issue in this motion are the second
and fourth factors—technical capability and price, respectively—as well as the agency’s overall
source selection process.
Offerors first submitted their proposals under the solicitation in November of 2022, and
on September 25, 2023, HHS awarded a single contract to defendant-intervenor, NYES. AR
1344-47. In the following days, AirBoss, StringKing, and others received Unsuccessful Offeror
Notices indicating their proposals had not been selected. AR 1380-1415. The following month,
starting on October 2, 2022, six contractors, including AirBoss and StringKing, brought protests
at the Government Accountability Office (“GAO”) challenging HHS’s award. See AR 1438-39,
1457, 1499. As a result of these protests, HHS issued a stop work order to NYES on October 5,
2023. AR 1437.
On October 27, 2023, HHS issued a Notice of Corrective Action and Request for
Dismissal, which determined that HHS would, among other things, reconsider its technical
evaluation of proposals and render a new source selection decision. AR 1628-29. On November
3, 2023, the GAO dismissed AirBoss’s and StringKing’s protests as academic. See, e.g., AR
1636-37, 1646-47. On January 3, 2024, HHS finalized its competitive range determination, and
on February 16, 2024, it issued Amendment 0008. See Def.’s Suppl. Resp. Ex. B, at 3, ECF No.
63-1; AR 1916-22. Amendment 0008, among other things, states that “[t]here is no evaluation
factor providing a preference for longer or shorter shelf-life gowns.” AR 1920.
Following another GAO protest, HHS issued a new Notice of Corrective Action and
Request for Dismissal of StringKing’s protest on March 26, 2024, which indicated the agency
would, among other things, terminate the contract award to NYES, cancel the solicitation in its
entirety, and reconsider its requirements. AR 2253. On April 9, 2024, after the GAO dismissed
StringKing’s protest, AR 2011-13, HHS issued a Revised Notice of Corrective Action and
Request for Dismissal of StringKing’s protest, in which the agency indicated that instead of
canceling the solicitation it would now be reviewing and reconsidering its requirements under
the solicitation, reconsidering its competitive range decisions, issuing an amendment “revising
the current shelf-life requirements, engaging in discussions as needed and soliciting complete
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revised final proposal revisions,” and making a new award decision. Pl.-Intervenor’s First Am.
Compl. Ex. E, ECF No. 52-5.
Throughout this procurement, amendments to the solicitation have altered the role shelf
life would play in the government’s decision. The original solicitation stated, with respect to the
technical capability factor, that “[t]he [g]overnment’s overall best value determination will
consider the cost of the product as it relates to the shelf-life at the time of delivery and the best
value determination will also consider the time, effort, and cost to sustain product with lesser
shelf-life.” AR 163. On October 31, 2022, the agency issued Amendment 0005. AR 269-318.
The corresponding portion of Amendment 0005 removes this language from Factor 2, subfactor
6, shelf life, and moves it to Factor 4: price. AR 316-317. As a result, Factor 4, price, contains
the language that formerly appeared in the shelf-life subfactor, and the revised shelf life
subfactor indicates that “[o]fferors’ proposals will be evaluated to determine whether the product
meets the shelf life requirements of this solicitation,” and that “[a]t the time of delivery, product
shall have no more than 20% of total shelf-life expended.” AR 316. Additionally, the agency
issued Amendment 0008 on February 16, 2024, which removed from Factor 4 (price) the shelf-
life language quoted above. AR 1917.
At issue in the currently pending motion are Amendment 0009, which was issued on May
31, 2024, Pl.’s Second Am. Compl., Ex. 1 (“Amend. 0009”), ECF No. 51-1, and Amendment
0011, which was issued on June 14, 2024. Pl.’s Resp. Ex. 1 (“Amend. 0011”), ECF No. 57-1.4
Among other things, Amendment 0009 purportedly reinstates shelf-life considerations that had
been removed into the solicitation’s requirements. Amend. 0009 at 2, 16, 44, 46, and 53.
Specifically, Amendment 0009 establishes a three-year shelf life. Amend. 0009 at 16, 44, 46.
Amendment 0009 required offerors within the competitive range to submit new proposals by
June 17, 2024. Amend. 0009 at 2.
Amendment 0009 and Amendment 0011 contain changes to a few main aspects of the
solicitation. First, while the solicitation previously stated its purpose that “the Government is
attempting to increase the availability of domestically produced compliant PPE. This will enable
the United States to ensure sufficient domestic availability of such items during national
emergencies and/or pandemic events,” the amended solicitation does not contain this language.
Compare AR 277, with Amend. 0009 at 10, and Amend. 0011 at 6. Amendment 0009 does,
however, state that stockpiled assets “are designed to supplement state and local medical supplies
and equipment during public health emergencies.” Amend. 0009 at 10. And Amendment 0011
clarifies “the purpose of the solicitation [is] . . . to procure domestically manufactured [gowns]
used in healthcare settings to protect healthcare workers during public health emergencies,” and
that “the timing of these [emergencies] cannot be predicted.” Amend. 0011 at 3-4. Second,
while Factor 2 (technical capability), subfactor 6 (shelf life) of the solicitation previously stated
that “[o]fferors’ proposals will be evaluated to determine whether the product meets the shelf life
requirements of this solicitation,” the amended solicitation does not contain this language and
4 Amendment 0009 and Amendment 0011 are consecutively paginated, and are exhibited
by more than one party, to more than one of the briefings at issue before the court. As such, for
the sake of clarity, the court sites to these amendments by name rather than by exhibit letter or
number.
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instead states that “[a] shelf life longer than 3 years will not be evaluated higher or considered to
be an additional strength,” and that “[o]fferor’s proposals will be evaluated based on providing
[a] signed certified manufacturer statement.” Compare AR 316, with Amend. 0009 at 53, and
Amend. 0011 at 6. Additionally, the amended solicitation requires that “at the time of delivery
to the [stockpile], isolation gowns shall have no more than 3 months expended since the date of
manufacture, as listed on the gown packaging labels.” Amend. 0009 at 16; see also Amend.
0011 at 8 (containing relevantly similar language). Finally, with respect to Factor 4 (price),
while the solicitation previously stated that “[t]he [g]overnment’s overall best value
determination will consider the cost of the product as it relates to the shelf-life at time of delivery
and the best value determination will also consider the time, effort, and cost to sustain product
with lesser shelf-life,” the amended solicitation does not contain this language. Compare AR
317, with AR 1917, Amend. 0009 at 54, and Amend. 0011.
Since the issuance of Amendment 0009, StringKing and AirBoss have sought to extend
the due date for proposals. See Pl.-Intervenor’s Mem. Ex. F, ECF No. 54-7. When StringKing
filed the currently pending motion on June 13, 2024, there was no clear indication that HHS
would be extending the proposal deadline. See id. at 1. The following day, the government filed
its response to plaintiff-intervenor’s application for a temporary restraining order and motion for
a preliminary injunction and indicated that HHS had issued Amendment 0011 that same day.
Def.’s Resp. to Pl.-Intervenor’s Mot. (“Def.’s Resp.”) at 1, ECF No. 56. That same day, AirBoss
filed its response in support of plaintiff-intervenor’s application for a temporary restraining order
and motion for a preliminary injunction. Pl.’s Resp., ECF No. 57. Among other things,
Amendment 0011 extends the proposal deadline until June 28, 2024. Amend. 0011 at 2.
On June 14, 2024, this court held a motion hearing on plaintiff-intervenor’s motion for
preliminary injunctive relief. Hr’g Tr., ECF No. 65. During that hearing, the parties agreed to a
supplemental briefing schedule with respect to plaintiff-intervenor’s initial motion. See
Scheduling Order of June 14, 2024, ECF No. 58. The parties completed briefing in accordance
with that schedule. Pl.’s Suppl. Resp. in Supp. of Pl.-Intervenor’s Mot. (“Pl.’s Suppl. Resp.”),
ECF No. 60; Pl.-Intervenor’s Suppl. Pleading in Supp. of its Mot. (“Pl.-Intervenor’s Suppl.
Mot.”), ECF No. 61; Def.’s Suppl. Resp. to Pl.-Intervenor’s Mot. (“Def.’s Suppl. Resp.”), ECF
No. 63; Def.-Intervenor’s Suppl. Resp. to Pl.-Intervenor’s Mot. (“Def.-Intervenor’s Suppl.
Resp.”), ECF No. 62. On June 25, plaintiff and plaintiff-intervenor sought leave to file replies in
support of plaintiff-intervenor’s motion, and the court granted such leave the following day. See
Order of June 26, 2024, ECF No. 69; Pl.-Intervenor’s Reply in Supp. of Pl.-Intervenor’s Mot.
(“Pl.-Intervenor’s Reply”), ECF No. 70; Pl.’s Reply in Supp. of Pl.-Intervenor’s Mot. (“Pl.’s
Reply”), ECF No. 71. Accordingly, the motion is fully briefed and ready for disposition.
STANDARDS FOR DECISION
The Tucker Act provides this court subject matter jurisdiction over cases involving “an
interested party objecting to a solicitation by a Federal agency for bids or proposals for a
proposed contract . . . or any alleged violation of statute or regulation in connection with a
procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). The party bringing the bid
protest “bears the burden of establishing standing.” CliniComp Int’l, Inc. v. United States, 904
F.3d 1353, 1358 (Fed. Cir. 2018). Under 28 U.S.C. § 1491(b), a party has standing to bring a bid
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protest if it is an “interested party” who was prejudiced by a “significant error in the procurement
process,” meaning that “‘but for the error, [the interested party] would have had a substantial
chance of securing the contract.’” Id. (quoting Labatt Food Serv., Inc. v. United States, 577 F.3d
1375, 1378 (Fed. Cir. 2009)).
The Tucker Act empowers this court in a bid protest matter to award “any relief that it
considers proper, including injunctive relief.” Veterans Contracting Grp., Inc. v. United States,
133 Fed. Cl. 613, 621 (2017) (citing 28 U.S.C. § 1491(b)(2)). Rule 65 of the Rules of the Court
of Federal Claims (“RCFC”) guides this court in fashioning preliminary injunctions and
temporary restraining orders. “[T]he factors considered in ruling on a temporary restraining
order mirror those on motions for a preliminary injunction.” Acetris Health, LLC v. United
States, 137 Fed. Cl. 148, 152 (2018) (quoting 11A Charles A. Wright et al., Federal Practice and
Procedure § 2951 (3d ed. 2013)).
In assessing whether emergency injunctive relief is appropriate, the court weighs four
factors: “(1) whether plaintiff is likely to succeed on the merits of the case; (2) whether plaintiff
will suffer irreparable harm if the [c]ourt withholds injunctive relief; (3) whether the balance of
hardships to the respective parties favors the grant of injunctive relief; and (4) whether it is in the
public interest to grant injunctive relief.” Loch Harbour Grp., Inc. v. United States, 128 Fed. Cl.
294, 300 (2016). “Although the factors are not applied mechanically, a movant must establish
the existence of both of the first two factors to be entitled to” emergency injunctive relief.
Altana Pharma AG v. Teva Pharm. USA, Inc., 566 F.3d 999, 1005 (Fed. Cir. 2009) (citing
Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001)).
ANALYSIS
StringKing seeks an emergency injunction prohibiting HHS from moving forward with
the solicitation at issue until this court adjudicates this bid protest on the merits. Pl.-Intervenor’s
Mot. at 1. StringKing avers that preliminary injunctive relief is appropriate because it will likely
succeed on the merits of its claims, it will suffer immediate, irreparable harm absent such relief,
the balance of hardships leans in its favor, and such relief lies in the public interest. See
Pl.-Intervenor’s Mem. at 15-21; Pl.-Intervenor’s Suppl. Mot. at 10-19. AirBoss concurs that
StringKing satisfies all four elements favoring preliminary injunctive relief, including in light of
Amendment 0011 and its extension of the proposal deadline. See generally Pl.’s Resp.; Pl.’s
Suppl. Resp.
At issue are four changes present in Amendment 0009, as extended by Amendment 0011,
related to shelf-life. First, the solicitation’s purpose is to secure “disposable medical Isolation
Gowns used in healthcare settings,” instead of the more specific purpose of resupplying the
Strategic National Stockpile in preparation for national emergencies. Compare AR 277, with
Amend. 0009 at 10. Second, the solicitation no longer assigns strengths to products with a
longer shelf life. Compare AR 163, with Amend. 9 at 53, 54. Third, the solicitation removes the
consideration of shelf life from the agency’s price evaluation. Compare AR 317, with Amend.
0009 at 54. Fourth, as a result, the solicitation no longer requires HHS to consider shelf life in
making its best value determination. Compare AR 317-18, with Amend. 0009 at 54.
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A. Likelihood of success on the merits
To qualify for emergency injunctive relief, StringKing must first establish that it is “more
likely than not” to prevail on the merits of its claim. See Revision Mil., Inc. v. Balboa Mfg. Co.,
700 F.3d 524, 525-26 (Fed. Cir. 2012). To prevail on the merits in a bid protest, a plaintiff must
show, pursuant to the standard set forth in the Administrative Procedure Act, that the agency has
acted in a manner that was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); 28 U.S.C. § 1491(b)(4). In this context, agency
action is arbitrary and capricious if the agency has “entirely failed to consider an important
aspect of the problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or [the decision] was so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” BINL, Inc. v. United States, 106 Fed. Cl.
26, 36 (2012) (quoting Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372,
1375 (Fed. Cir. 2009)). An agency’s procurement decisions are entitled to a “presumption of
regularity.” See Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971),
abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). Accordingly, the
court’s review of agency action in this context is “highly deferential.” Advanced Data Concepts,
Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000).
Here, StringKing claims that HHS acted arbitrarily and capriciously “by eliminating shelf
life from the evaluation criteria for Factor[] 2 (Technical Capability), Factor 4 (Price), and the
overall best value determination.” Pl.-Intervenor’s Suppl. Mot. at 9-11; see also Pl.-Intervenor’s
Mem. at 16-18; Pl.-Intervenor’s Reply at 6-7. It avers that, by eliminating shelf life as a
substantive evaluation criterion, HHS has rendered products with a longer shelf life, which are
more expensive to manufacture, uncompetitive. Pl.-Intervenor’s Suppl. Mot. at 17. According
to StringKing, the amended solicitation effectively “[c]onvert[s] the procurement into a lowest
price technically acceptable [(‘LPTA’)] procurement rather than a best value procurement.” Id.
at 11. It contends that this is a material change because shelf life was originally “the only true
differentiator.” Pl-Intervenor’s Mem. at 17-18. Moreover, the solicitation as amended runs
counter to the agency’s purpose of the solicitation: to replenish the national stockpile for a
potentially forthcoming national emergency. Pl.-Intervenor’s Suppl. Mot. at 17-18. As a result
of these changes, the government appears to seeking off-the-shelf gowns rather than gowns that
are specially designed to meet the solicitation’s purpose. Id. at 14-16.5 To the extent the
government’s procurement needs and purpose have changed, such changes are material “and the
5 This argument relies on Section 2.101 of the Federal Acquisition Regulations (“FAR”),
which defines items that are commercially available-off-the-shelf (“COTS”) as “any item of
supply (including construction material) that is—(i) A commercial product . . . (ii) Sold in
substantial quantities in the commercial marketplace; and (iii) Offered to the [g]overnment,
under a contract or subcontract at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and (2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.” FAR § 2.101. The
government’s apparent desire to procure a COTS item, StringKing asserts, runs contrary to the
solicitation’s terms, which call for a “commercial product, not a COTS item.” Pl.-Intervenor’s
Suppl. Mot. at 15-16, 16 n.8.
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[a]gency should have cancelled this procurement pursuant to the FAR.” Id. at 18; see also FAR
§ 15.206(e); Pl.-Intervenor’s Reply at 4-6; Pl.’s Reply at 8-9.
StringKing also contends that the current submission deadline reflected in Amendment
0011 is arbitrary and capricious because proposals must be substantially revised to reflect the
changes made in the amended solicitation. Pl.-Intervenor’s Suppl. Mot. at 11, 11 n.6, 13-16;
Pl.-Intervenor’s Mem. at 18-19.
AirBoss concurs with StringKing’s assertion that it is likely to succeed on the merits of
its claims. See Pl.’s Resp. at 3-5; Pl.’s Suppl. Resp. at 2-19. Regarding shelf life, AirBoss
agrees that “Amendment 0009 effectively removes shelf-life as a consideration in this
procurement” and, in doing so, runs counter to the procurement’s purpose. Pl.’s Suppl. Resp. at
2-4. AirBoss also agrees that Amendment 0009 has effectively transformed the procurement into
an LPTA procurement. Pl.’s Suppl. Resp. at 17-19. AirBoss adds that the amended solicitation
improperly imposes a requirement that gowns be submitted within three months of being
manufactured, id. at 1, 13-17, and unreasonably “relieves offerors from providing any support or
validation of their shelf-life claims beyond the offeror’s certification of shelf-life.” Id. at 3.
Additionally, by effectively eliminating shelf life as an evaluation criterion, AirBoss
claims the government has failed to properly “include cost or price to the [f]ederal [g]overnment
as an evaluation factor” under 41 U.S.C. § 3306(c)(1)(B) and has failed to “[d]iscuss how life-
cycle cost will be considered” or, “[i]f it is not used, explain why” as required by 7.105 of the
FAR. See Pl.’s Resp. at 4-5; Pl.’s Suppl. Resp. at 4-7. Under the amended solicitation, “the
[g]overnment considers a gown with three years of shelf-life to have no [lesser] value than a
gown with six or nine years of shelf-life, despite the obvious increased cost to the [g]overnment
of having to replenish” the expired gowns. Pl.’s Resp. at 4-5; Pl.’s Suppl. Resp. at 4-7. Put
differently, instead of properly evaluating cost to the federal government, the amended
solicitation will “produce[] a misleading result,” by “ignoring altogether the higher costs
associated with gowns with a shorter shelf-life, relying instead on the misleading, and illusory
unit price of lower-quality gowns.” Pl.’s Suppl. Resp. at 7. According to AirBoss, HHS has
erroneously ignored “the cost of replacing gowns that are disposed of because they have
expired” in the consideration of life-cycle costs. Id. at 6-7; see also Pl.’s Reply at 4-5.
Beyond this, AirBoss asserts that the agency’s effective elimination of the shelf-life
requirement from this procurement is “simply arbitrary,” as it results from a series of
contradictory and unexplained decisions. Pl.’s Suppl. Resp. at 7-10; see also Pl.’s Reply at 2-3
(“the [g]overnment does indeed have to provide a ‘more detailed’ explanation for its complete
reversal of policy”).6 And AirBoss argues that the explanations HHS does provide are
nonsensical. Pl.’s Suppl. Resp. at 8-10; Pl.’s Resp. at 4. Specifically, in defending its three-year
shelf-life requirement, HHS stated that “[i]t is unknown if isolation gowns with any varying
6 AirBoss also argues HHS arbitrarily backtracked on its prior assessment of the industry
standard shelf life, changing its articulation of this norm from five years to up to ten. Pl.’s Suppl.
Resp. at 9-10. Subsequently, the agency, without explanation, removed shelf life from the
agency’s determination altogether, via Amendment 0008. Id. at 9. And now, although HHS
apparently reinstated the shelf-life requirement, the agency effectively ignores it. Id.
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designated shelf life will expire prior to the next public health emergency since the timing of
these cannot be predicted.” Amend. 0011 at 3-4. But, “[i]t is precisely because the timing of the
next public health emergency cannot be predicted that shelf-life is an important consideration.”
Pl.’s Suppl. Resp. at 9-10; Pl.’s Resp. at 4.
Regarding the new proposal deadline, AirBoss avers that “offerors that previously
proposed products with a longer shelf-life need time to explore alternative solutions that can
compete with cheaper, shorter shelf-life gowns,” and the new deadline allows insufficient time to
do so. Pl.’s Resp. at 5-6; Pl.’s Suppl. Resp. at 10-13.
Moreover, AirBoss asserts that the current proposal timeline runs counter to the
legislative basis for this procurement. Pl.’s Suppl. Resp. at 11-13. Specifically, “HHS’s
Acquisition Plan for this procurement explains that the RFP implements the Infrastructure
Investment and Jobs Act (the ‘IIJA’).” Id. at 11; Pub. L. 117-58, 135 Stat. 429 (Nov. 15, 2021);
see also AR 29, 93, 108, 1836. Relevant here, the IIJA articulates that “United States industry
needs a strong and consistent demand signal from the [f]ederal [g]overnment” to “foster a
domestic PPE supply chain.” 135 Stat. at 1313, § 70952(4). But, AirBoss argues HHS is
sending an inconsistent demand signal by implementing a shelf-life requirement that led AirBoss
and StringKing to “invest[] in expanding their domestic supply chains and manufacturing
capabilities,” only to effectively remove the shelf-life requirement later. See Pl.’s Suppl. Resp.
at 11-12. Offerors cannot “identify cheaper alternatives” or “build a supply chain and
manufacturing capability that would produce those cheaper alternatives at the scale required by
the RFP” within the current proposal timeline. Id. at 12.
Next, AirBoss argues that the amended solicitation’s three-month date-of-manufacture
requirement contravenes the Federal Acquisition Streamlining Act of 1994 (“FASA”), 41 U.S.C.
§ 3307(e)(2)(B), as implemented by part 12 of the FAR. Pl.’s Suppl. Resp. at 13-17. FASA
establishes a preference for contract terms that are consistent with standard commercial practice.
41 U.S.C. § 3307(e)(2)(B); FAR § 12.101 to 12.603. Preliminary market research helps
determine “whether a solicitation’s terms are consistent with customary commercial practice.”
See CW Gov’t Travel, Inc. v. United States, 99 Fed. Cl. 666, 676 (2011); see also Palantir USG,
Inc. v. United States, 904 F.3d 980, 984 (Fed. Cir. 2018); FAR §12.101(a).
Market research was performed for this solicitation and, according to Airboss, “[n]othing
in the Market Research Report indicates that commercial customers do not purchase gowns
manufactured more than three months ago, regardless of how much shelf-life the gowns retain,”
nor does it indicate “that commercial purchases of isolation gowns impose date-of-
manufacturing requirements that are not dependent on a gown’s shelf-life.” Pl.’s Suppl. Resp. at
15-16; see also AR 11-18. As such, AirBoss asserts that the three-month date-of-manufacture
requirement is arbitrary and capricious insofar as it is not a customary commercial practice
pursuant to FASA. Pl.’s Suppl. Resp. at 17.7
7 AirBoss also asserts there is no indication the government sought or obtained a waiver
with respect to the customary commercial practice requirement, pursuant to Section 12.302(c) of
the FAR. Pl.’s Suppl. Resp. at 17; FAR § 12.302(c).
10
Moreover, to the extent the government relies on the assertion that real-time testing data
to substantiate a longer shelf life was unavailable, Def.’s Suppl. Resp. at 14-15, AirBoss objects
that this is unsupported by the record. Pl.’s Reply at 5-8. Specifically, AirBoss points to a
Competitive Range Memorandum cited by the government which indicates that [***].” Id. at 5-
6. And indeed, AirBoss and StringKing both identify that the government has previously “issued
solicitations to stockpile [PPE] that require offerors to make a claim as to the shelf-life of the
PPE and to provide supporting data to substantiate the shelf-life claim.” Id. at 6-7; see also Pl.-
Intervenor’s Suppl. Mot. at 2. As such, the assertion that it was impossible to test a shorter shelf
life of three years is unsupported by the record. Pl.’s Reply at 6-8.
In opposition, the government asserts that StringKing is unlikely to succeed on the merits
of its claims. Def.’s Resp. at 3-4; Def.’s Suppl. Resp. at 13-19. In doing so, the government
defends HHS’s decision to require a three-year shelf life for gowns. Specifically, the
government explains that HHS began requiring the “stockpiling disposable Level 2 isolation
gowns . . . during the COVID-19 pandemic,” at the same time that the IIJA “required domestic
production of PPE.” Def.’s Suppl. Resp. at 14-15. Given this limited timeframe, HHS
reasonably decided “[***]. Id. at 15. Moreover, the new shelf-life requirement beneficially
promotes competition because it is minimally restrictive considering HHS’s needs, in accordance
with the Competition in Contracting Act. Id. at 16 (citing 41 U.S.C. §§ 3301(a)(1),
3306(a)(2)(B)).
Moreover, the government disagrees that the deadline to submit revised proposals is too
short. Id. at 17. Indeed, the government contends plaintiffs have been on notice of HHS’s
changes regarding shelf life since the issuance of Amendment 0008 on February 16, 2024. Id.
Additionally, the government asserts the amended solicitation is not as demanding as plaintiffs
claim, and that plaintiffs “are the only offerors [***] complaining about the changes to shelf-life
requirements and the proposal due date.” Id.
Finally, the government asserts that Amendment 0009 does not change the procurement
into an LPTA procurement. Def.’s Suppl. Resp. at 17-19. Rather, the government maintains that
this is a best value procurement, as evidenced by the plain language of the procurement itself,
and further supported by the presumption that government officials act in good faith in
discharging their duties, absent evidence indicating otherwise. Id.
NYES agrees that plaintiffs are unlikely to succeed on the merits of their claims because
plaintiffs’ arguments mischaracterize the status of the procurement and improperly seek to
substitute their own judgment for that of the agency. Def.-Intervenor’s Suppl. Resp. at 3-8.
First, NYES asserts that plaintiffs mischaracterize the history of this solicitation. Id. at 4-5.
Specifically, it contends that plaintiffs fail to address that Amendment 0005 also imposed “a
drastic change to the shelf-life requirements.” Id. at 4. Namely, following concerns raised
during the initial protest of this solicitation, Amendment 0005 removed shelf-life language from
the section detailing the best value determination, “and instead only included a reference to
shelf-life in best value determination in relation to Factor 4, Price.” Id. For this reason, NYES
also asserts that plaintiffs’ arguments surrounding the changes to shelf-life requirements with
regard to the agency’s best value assessment and the possible restriction in competition are
11
untimely, because plaintiffs were on notice of these changes after Amendment 0005 and should
have either protested them or raised them in a Q&A at that time. Id. at 4 n.1, 5 n.3.8
Second, NYES avers plaintiffs improperly seek to substitute their own judgment
regarding the solicitation’s purpose, shelf-life considerations, and policy for that of the agency.
Def.-Intervenor’s Suppl. Resp. at 3-8. The administration directed HHS to “focus on quick
production of PPE.” Id. at 5-6. In following this policy, the agency rationally concluded “the
shelf-life testing is not scientifically sound, and the industry standards do not support such
weight on the shelf-life factors.” Id. Because a contracting officer may amend the solicitation
based on changes to the government’s requirements “either before or after receipt of proposals,”
the solicitation was properly amended pursuant to the government’s assessment of its own needs.
Id. at 6-7 (quoting and adding emphasis to FAR § 15.206(a)). Plaintiffs “cannot substitute the
[a]gency’s judgment with their own best value opinion.” Id. at 7.
Here, the court concludes that plaintiffs have not established that they are likely to
succeed on the merits of their claim, because they have not demonstrated that the agency’s
decisions with respect to the shelf-life consideration, or the proposal deadline, are arbitrary,
capricious, or an abuse of discretion. Indeed, an agency is entitled to alter its course and change
its decisions in accordance with its “view of what is in the public interest.” Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 57 (1983) (quoting Greater Bos. Television
Corp. v. Fed. Commc’n Comm., 444 F.2d 841, 852 (D.C. Cir. 1970)). And when an agency
makes such a change, it need not establish that its reasons “are better than the reasons for the
old” decision, but rather simply “that there are good reasons for it, and that the agency believes it
to be better.” Fed. Commc’n Comm. v. Fox Television Stations, 556 U.S. 502, 514-15 (2009).
The agency’s decision to alter the shelf-life requirement falls within its broad discretion
to set and implement national public health policy. Specifically, the agency reasonably decided
not to prioritize longer shelf-life gowns because “lengthy real-time aging testing is not available”
given that these types of products “have been produced for a relatively short period of time.”
Def.’s Suppl. Resp. Ex. B, at 57. The agency also considered and ultimately limited its reliance
on accelerated aging tests because “there is no clear guidance or standards regarding shelf-life
claims for . . . non-surgical isolation gowns.” Id. That said, the FDA set clearance requirements
for surgical gowns and masks, “which can have a material similar” to domestic isolation gowns.
Id. Based on this similarity, HHS aligned its practice with the “accelerated and real-time test
8 Related to StringKing’s portrayal of the history of this procurement, NYES laments that
StringKing “spends considerable time attempting to paint a torrid history of this procurement
through its bullet point timeline, including alleged communications with NYES and the
[a]gency.” Def.-Intervenor’s Suppl. Resp. at 6. Based on this, NYES asserts that the
administrative record in this case should be amended to include all communications between
StringKing and the [a]gency.” Id. at 6 n.4. The court agrees with NYES, however, that “no part
of these communications is relevant to the [m]otion” currently before the court. Id. at 6. Indeed,
the court does not consider StringKing’s detailing of these communications, nor NYES’s
opposition thereof, to be pertinent to its present decision, and thus the issue of supplementing the
administrative record is not necessary to resolve at this time.
12
practice” that the FDA used for surgical gowns and masks and required offerors to “certify a
shelf-life of 3 years” rather than “provide aging test reports and supportive documentation.” Id.
Moreover, the agency reasonably concluded that gowns with longer shelf lives were not
required to fulfill the agency’s minimum needs for this procurement. Instead, the procurement
seeks to rapidly increase the inventory of isolation gowns in the Strategic National Stockpile.
See Def.’s Suppl. Resp. Ex. A ¶ 4 (Decl. of Annette Wright). This specialized determination “is
not for [the] court to second guess” at this time. Savantage Fin. Servs., Inc. v. United States, 595
F.3d 1282, 1286 (Fed. Cir. 2010) (quoting Wit Assocs., Inc. v. United States, 62 Fed. Cl. 657,
662 (2004)). In this case, the agency has represented that it is still conducting a best value
acquisition, and the plaintiffs’ arguments that the procurement is effectively an LPTA
procurement do not overcome the presumption that agency officials are acting in good faith in
discharging their duties according to their representations. Ultimately, that StringKing and
AirBoss would have prioritized considerations such as shelf life more highly than the agency
does in its amended solicitation does not render the agency’s decision arbitrary or capricious.
Nor does the court find that plaintiffs have established that they are likely to succeed on
the merits of their claim that the agency’s proposal deadline is too short for offerors to prepare
and submit new, competitive proposals. As defendants have identified, offerors should have
been aware of the changing role that shelf life could play in this solicitation as early as the
issuance of Amendment 0008 in February of 2024, or even Amendment 0005 in October of
2022. The ability to adapt to the changing circumstances of a solicitation is a quality a
competitive offeror should possess, and here the agency’s needs have not changed so
substantially as to render it unreasonable that offerors could adapt accordingly. Indeed, the
government represents that StringKing and AirBoss are the only offerors in the competitive
range who have raised such concerns regarding shelf life or the corresponding proposal deadline,
which suggests this is not a sufficient cause for concern in this context. See Def.’s Suppl. Resp.
Ex. A ¶ 6 (“only two offerors—[StringKing] and AirBoss . . . —requested significantly extended
proposal due dates”) (Decl. of Annette Wright). Ultimately, plaintiffs have not sufficiently
carried their burden of establishing that the agency’s decisions with respect to shelf life, or the
corresponding proposal deadline, were arbitrary and capricious at this stage.
B. Irreparable harm
A party seeking preliminary injunctive relief must show it will suffer irreparable harm
absent such relief. Here, StringKing avers it will be irreparably harmed absent preliminary
injunctive relief from this court. Pl.-Intervenor’s Mem. at 19-20; Pl.-Intervenor’s Suppl. Mot. at
11-12. Absent a preliminary injunction, “proposals will be due based on a flawed [s]olicitation,”
“StringKing would be forced to expend critical time and resources to prepare a fruitless proposal
due to the [s]olicitation’s defects,” and “StringKing would be putting itself at a severe
competitive disadvantage by submitting a proposal.” Pl.-Intervenor’s Mem. at 19-20;
Pl.-Intervenor’s Suppl. Mot. at 11-12. As such, StringKing asserts that the Solicitation as
amended denies it the opportunity to “fairly compete in [the] procurement,” thus losing the
contract and any potential profits therefrom. Pl.-Intervenor’s Mem. at 20.
13
Like StringKing, AirBoss asserts that it will suffer irreparable harm in the absence of
preliminary injunctive relief, as it “will have no remedy if it is required to invest substantial time
and effort in developing a response to the current solicitation over the next two weeks, and if this
[c]ourt subsequently determines that the current solicitation is unlawful—particularly with
respect to shelf life, the three-month date-of-manufacture requirement, and the RFP’s incorrect
statement that HHS will perform a best value tradeoff when it intends to award to the
lowest-price, technically acceptable offeror.” Pl.’s Suppl. Resp. at 19.
The government responds that StringKing has failed to show that it will suffer irreparable
harm absent preliminary injunctive relief. Def.’s Resp. at 4-5; Def.’s Suppl. Resp. at 19-20.
Specifically, the government contends that StringKing’s “[m]ere allegations of an unfair
competitive bidding process are not sufficient to demonstrate an irreparable injury,” because “if
they were, any bid protest would involve an irreparable injury.” Def.’s Resp. at 5 (quoting OAO
Corp. v. United States, 49 Fed. Cl. 478, 480 (2001)). Moreover, the government rejects
StringKing’s claim that it must create a new supply chain and product to meet the solicitation
because the solicitation does, and always has, seek a commercial gown that is “in production or
otherwise readily available.” Def.’s Suppl. Resp. at 20.
NYES agrees that neither plaintiff can demonstrate immediate irreparable harm.
Def.-Intervenor’s Suppl. Resp. at 8-9. StringKing alleges only the risk of unfair competition,
which is insufficient for preliminary injunctive relief. Id. at 8. And, AirBoss cannot cite as
irreparable harm the need to secure an alternate means of responding to the procurement because
that need exists regardless of whether the court enters an injunction: AirBoss’s original sub-
contractors have ceased operation or decommissioned their machinery, and AirBoss does not
have an active Food and Drug Administration establishment registration for the 2024 year. Id.
at 9.
Here, the court concludes that plaintiffs have not established that they will suffer
immediate and irreparable harm in the absence of preliminary injunctive relief. As this court has
previously concluded, “[m]ere allegations of an unfair competitive bidding process are not
sufficient to demonstrate an irreparable injury.” OAO Corp., 49 Fed. Cl. at 480. In this case,
plaintiffs allege that they will be irreparably harmed by the agency’s decision to amend the
solicitation with respect to shelf life, and by the corresponding proposal timeline, but such
allegations are insufficient to establish an irreparable injury at this juncture. Indeed, plaintiffs’
belief that the agency ought to conduct this procurement in a different manner, or according to a
different timeline, is not sufficient to demonstrate that plaintiffs will suffer an immediate,
irreparable harm, in the absence of emergency injunctive relief from the court at this stage. As
such, plaintiffs have not demonstrated they would be irreparably harmed absent a preliminary
injunction.
C. Balance of hardships
In determining whether to grant a preliminary injunction, the court also considers
whether the balance of hardships weighs in favor of such relief, in light of the possible harm to
the government and defendant-intervenor. NetStar-1 Gov’t Consulting, Inc. v. United States, 101
Fed. Cl. 511, 530 (2011).
14
Here, StringKing avers the balance of hardships supports an injunction. Pl.-Intervenor’s
Mem. at 20; see also Pl.-Intervenor’s Suppl. Mot. at 12. Specifically, the amended solicitation
prohibits StringKing from fairly competing in this procurement process because the new
solicitation erases any advantages associated with the longer shelf life of StringKing’s gowns.
Pl.-Intervenor’s Mem. at 19-20; Pl.-Intervenor’s Suppl. Mot. at 12. In contrast, the only possible
harm HHS may suffer from a preliminary injunction is a delay to the procurement process, which
is generally not considered a harm. Pl.-Intervenor’s Mem. at 20; Pl.-Intervenor’s Suppl. Mot. at
12. Even if such delay were considered a harm, the delay would be “minimal” in the context of
this particular solicitation, which is meant “to stockpile goods for the future,” not on an
immediate basis. Pl.-Intervenor’s Mem. at 20; Pl.-Intervenor’s Suppl. Mot. at 12.
AirBoss concurs and asserts that the government “will not be harmed by a delay,
particularly given that the [g]overnment has already delayed this procurement for over a year
based on errors that the [g]overnment voluntarily took corrective action to try to remedy.” Pl.’s
Resp. at 6; Pl.’s Suppl. Resp. at 19-20. Because “the Government—not StringKing or
[AirBoss]—is solely responsible for the delays to this procurement to date,” its claim that further
delay would be prejudicial is unpersuasive. Pl.’s Suppl. Resp. at 20.
The government responds that the balance of hardships cuts against plaintiffs, because
the government would suffer “[s]ubstantial harm” if the court enjoined agency action and
“interfere[d] with the [g]overnment’s need to procure isolation gowns.” Def.’s Resp. at 5.
Moreover, delays to this procurement “could potentially compromise the readiness of healthcare
workers during future public health events,” and the funding for this procurement will expire at
the end of September. Def.’s Suppl. Resp. at 21. Similarly, NYES concurs that the agency
would suffer substantial harm in the face of a preliminary injunction given that this would
“interfere with the [g]overnment’s need to procure isolation gowns—a critical HHS need.” Def.-
Intervenor’s Suppl. Resp. at 9-10.
Here, plaintiffs have not demonstrated that the balance of hardships weighs in favor of
preliminary injunctive relief. Indeed, a preliminary injunction would impose further delays to a
solicitation that aims to meet pressing national public health needs. And delaying this
procurement risks weakening the nation’s ability to respond to an imminent public health
emergency. Even if plaintiffs were to suffer a competitive disadvantage in this procurement, this
risk does not outweigh the government’s obligation to ensure the nation’s public health. As
such, the balance of hardships cuts against preliminary injunctive relief.
D. Public interest
Finally, the court considers whether granting preliminary injunctive relief serves the
public interest. One such public interest is “preserving the integrity of the procurement process
by requiring the government to follow its procurement regulations.” Amazon Web Servs. v.
United States, 147 Fed. Cl. 146, 158 (2020) (quoting Turner Constr. Co. v. United States, 94
Fed. Cl. 561, 586 (2010) aff’d 645 F.3d 1377 (Fed. Cir. 2011)).
15
Here, StringKing asserts that a preliminary injunction would maintain the integrity of the
procurement process and ensure this procurement fulfills the government’s stated needs. Pl.-
Intervenor’s Mem. at 21; Pl.-Intervenor’s Suppl. Mot. at 13. Preliminary injunctive relief would
also preserve competition within the procurement process. Pl.-Intervenor’s Mot. at 21.
The government responds that preserving integrity in the procurement process is an
important but not dispositive factor in the public interest analysis. Def.’s Resp. at 5; Def.’s
Suppl. Resp. at 21-22. By contrast, the government emphasizes the public interest in allowing
agencies “to conduct procurements without excessive judicial infringement upon the agency’s
discretion.” Def.’s Resp. at 5 (quoting GEO Grp., Inc. v. United States, 100 Fed. Cl. 223, 230
(2011)). NYES agrees that preliminary injunctive relief does not serve the public interest, as “it
is critical for an agency such as HHS to be able to set its own policy objectives without undue
intervention from judicial or other bodies,” especially in the “nuanced and specialized” realm of
public health. Def.-Intervenor’s Suppl. Resp. at 10.
The court concludes that a preliminary injunction does not serve the public interest. At
this juncture, plaintiffs have not demonstrated that the agency’s actions compromise the integrity
of the procurement process. The public interest is served by affording an agency the discretion
to conduct procurements in accordance with its needs within a specialized and evolving
landscape such as national public health. Plaintiffs have not demonstrated that the public interest
favors preliminary injunctive relief.
CONCLUSION
StringKing and AirBoss have not met their burden to establish entitlement to preliminary
injunctive relief. For the foregoing reasons, the court DENIES plaintiff-intervenor’s application
for a temporary restraining order and motion for a preliminary injunction.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Senior Judge