ACCOUNT CONTROL TECHNOLOGY, INC. v. USA

Filing 60

UNREPORTED ORDER. Signed by Chief Judge Susan G. Braden. (pt) Copy to parties.

In the United States Court of Federal Claims
No. 17-493
Filed: May 22, 2017
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ACCOUNT CONTROL
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TECHNOLOGY, INC.,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant,
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and
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PREMIERE CREDIT OF NORTH
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AMERICA, LLC, GC SERVICES
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LIMITED PARTNERSHIP,
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FINANCIAL MANAGEMENT
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SYSTEMS, INC., VALUE RECOVERY
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HOLDINGS LLC, CBE GROUP, INC.,
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AUTOMATED COLLECTION
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SERVICES, INC., WINDHAM
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PROFESSIONALS, INC., and TEXAS
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GURANTEED STUDENT LOAN CORP., *
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Intervenor-Defendants.
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Preliminary Injunction, Rule of the United
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States Court of Federal Claims 65(d).

CONTINUATION OF PRELIMINARY INJUNCTION
On May 2, 2017, the court issued a Preliminary Injunction, enjoining the United States
Department of Education (“ED”) from:
(1)
(2)

authorizing the purported awardees to perform on the contract awards under
Solicitation No. ED-FSA-16-R-0009; and
transferring work to be performed under the contract at issue in this case to other
contracting vehicles to circumvent or moot this bid protest.

ECF No. 53.

The purpose of the May 2, 2017 Preliminary Injunction was to protect the interests of all
parties and afford the Government an opportunity to reach a global solution to the related bid
protests challenging Solicitation No. ED-FSA-16-R-0009.1 For this reason, the court stated that
the Preliminary Injunction would remain in place until “COB May 22, 2017, the first business day
after the Department of Justice represented that the ED [would] file a notice announcing corrective
action, in response to the [Government Accountability Office’s (“GAO”) March 27, 2017 Decision
in Gen. Revenue Corp., B-414220.2, Mar. 27, 2017, 2017 WL 1316186.]” ECF No. 53.
On May 19, 2017, the Government filed a Notice Of Corrective Action, advising the court
that the ED intended to take corrective action consistent with the GAO’s March 27, 2017 Decision.
ECF No. 59. The ED expects to complete this corrective action on, or before, August 25, 2017.
ECF No. 59.
On May 22, 2017, the court convened a status conference to determine whether to extend
the May 2, 2017 Preliminary Injunction. During the May 22, 2017 Status Conference, Continental
Services, Inc., Account Control Technology, Inc., Progressive Financial Services, Inc., Collection
Technology, Inc., Performant Recovery, Inc. and Van Ru Credit Corporation requested that the
Preliminary Injunction remain in place while the ED takes corrective action.
The Government, CBE Group, Inc., Premiere Credit of North America, LLC, GC Services
Limited Partnership, Financial Management Systems, Inc., Value Recovery Holdings, LLC,
Windham Professionals, Inc. and Alltran Education, Inc. requested that the court allow the May 2,
2017 Preliminary Injunction to expire. Pioneer Credit Recovery, Inc. informed the court that it
did not oppose lifting the Preliminary Injunction, so long as the ED continued to abide by its April
3, 2017 declaration (Continental Services, No. 17-449, ECF No. 23) that the December 9, 2016
Contracts, awarded under Solicitation No. ED-FSA-16-R-0009, would remain stayed until the
resolution of this bid protest.
After hearing the parties’ positions, the court indicated that it was inclined to lift the May
2, 2017 Preliminary Injunction, but it was concerned that the ED would transfer accounts that had
been serviced by Progressive Financial, Inc., Collection Technology, Inc., Performant Recovery,
Inc. and Van Ru Credit Corporation under United States General Services Administration (“GSA”)
Schedule Nos. GS-23F-0239K, GS-23F-0227N, GS–23F–0286K, GS-23F-0204K (collectively
the “prior accounts”), because those contracts expired on April 21, 2017. This would appear
unfair, because the GAO sustained challenges to Solicitation No. ED-FSA-16-R-009 brought by
those contractors. In other words, the GAO determined that but-for the ED’s alleged errors during
the procurement process, Progressive Financial, Inc., Collection Technology, Inc., Performant
Recovery, Inc. and Van Ru Credit Corporation might have received contracts on December 9,
2016, under which they could continue to service their prior accounts.

Plaintiffs filed challenges to Solicitation No. ED-FSA-16-R-0009 in the following seven
cases: (1) Continental Services Group, Inc. v. United States, No. 17-449; (2) Pioneer Credit
Recovery, Inc. v. United States, No. 17-499; (3) Account Control Technology, Inc. v. United States,
No. 17-493; (4) Alltran Education, Inc. v. United States, No. 17-517; (5) Progressive Financial
Services, Inc. v. United States, No. 17-558; (6) Collection Technology, Inc. v. United States, No.
17-578; and (7) Van Ru Credit Corporation v. United States, No. 17-633.
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Therefore, the court asked the Government whether it could allow Progressive Financial,
Inc., Collection Technology, Inc., Performant Recovery, Inc. and Van Ru Credit Corporation to
continue servicing prior accounts until the ED completes the proposed corrective action. The
Government informed the court that it could not make that representation, without conferring with
Dr. Patrick Bradfield, Head of Contracting at Federal Student Aid. Dr. Bradfield responded, by
telephone from his home, that Progressive Financial, Inc., Collection Technology, Inc., Performant
Recovery, Inc. and Van Ru Credit Corporation could not continue servicing their prior accounts,
because they did not have existing contracts with the ED, but he did not know if there was a legal
means for the ED to enter into a temporary contractual relationship with those parties and would
have to consult with the ED’s attorneys before making that determination. Dr. Bradfield informed
the court that he would not be able to consult with counsel until, at least, May 23, 2017.
For these reasons, the court has determined to continue the May 2, 2017 Preliminary
Injunction until June 1, 2017, to afford Dr. Bradfield an opportunity to determine whether the ED
can enter into a temporary contractual relationship with Progressive Financial, Inc., Collection
Technology, Inc., Performant Recovery, Inc. and Van Ru Credit Corporation that will allow those
companies to continue to service their prior accounts until the ED completes the proposed
corrective action.
IT IS SO ORDERED.
s/Susan G. Braden
SUSAN G. BRADEN
Chief Judge

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