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Law360 (November 24, 2020, 10:31 PM EST) -- A U.S. Court of Federal Claims judge refused Tuesday to stop the Federal Emergency Management Agency from proceeding with a $48 million contract for COVID-19 testing that's under protest, saying the benefits of the deal outweighed the potential reasons for an injunction.
Comprehensive Health Services LLC failed to show it was likely to succeed on the merits to its challenge to FEMA's overriding a stay imposed on the testing deal, and other factors like the risks to FEMA's workforce from stopping testing also count against an injunction, Judge David A. Tapp ruled.
"The court finds that CHS cannot meet its burden of showing that the extraordinary and drastic remedy — issuance of a temporary restraining order or a preliminary injunction — is necessary," Judge Tapp said.
For example, regarding Comprehensive's chances of winning on the merits of its case, FEMA has adequately explained the potential consequences of failing to move forward with the disputed sole-source deal awarded to Wellness Coaches USA LLC, which covers rapid antigen coronavirus tests at FEMA facilities and disaster sites, the judge said.
Those include hindering its ability to help mitigate the spread of COVID-19 and jeopardizing its workers' ability to operate in safe working conditions, and Comprehensive's argument that the "urgent circumstances" underlying the deal were a result of FEMA's own actions wasn't backed up by any precedent that would invalidate FEMA's decision to move forward with testing, Judge Tapp said.
Comprehensive also couldn't show it would be irreparably harmed, as it will still be able to get similar work in the future, and FEMA also comes out ahead in the "balance of hardships," according to the judge.
FEMA would inevitably have to forgo testing services for a time if it has to transition to another contractor, which would also impose costs on the agency, and in that testing gap "its responders, employees, and those they encounter are the ones truly at risk," Judge Tapp said.
The risks of the pandemic to public health also mean that the public interest leans toward FEMA, despite the usual heavy weight given to open and fair competition in public procurement, he said.
"While case law on this factor is heavily tethered to an even and fair procurement process, in uncertain times of a global pandemic, the purpose of the contract cannot be considered separately," he said.
A representative for Caliburn International LLC, Comprehensive's parent company, did not immediately respond to a request for comment late on Tuesday. A representative for FEMA was not immediately available for comment; the agency does not typically comment on pending litigation.
Comprehensive had protested the underlying contract to the U.S. Government Accountability Office on Nov. 3, which would normally trigger an automatic stay on the deal until the protest is resolved.
FEMA had justified its sole-source award by saying it needed to address an "unusual and compelling urgency" stemming from the pandemic, and similarly argued that urgent and compelling circumstances justified overriding the stay — specifically, preventing the spread of the coronavirus during the colder months of the year.
Comprehensive told the claims court that the urgency of the contract either didn't exist or stemmed from FEMA's failure to act earlier. It pointed out that the national emergency leading to the need for the contract had been declared in March and said that FEMA's justification documentation for overriding the stay showed that the agency knew well ahead of time that it would want on-site testing in place by fall.
Comprehensive is represented by Elizabeth N. Jochum, Todd M. Garland and Jessica L. Nejberger of Smith Pachter McWhorter PLC.
FEMA is represented by John M. McAdams of the U.S. Department of Justice's Civil Division and in-house by Rafael Lara, Matthew Lane and Bruce James.
The case is Comprehensive Health Services LLC v. U.S., case number 1:20-cv-01585, in the U.S. Court of Federal Claims.
--Editing by Brian Baresch.
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