BRIGHTON CROMWELL, LLC v. USA

Filing 29

REPORTED MEMORANDUM OPINION AND ORDER (reissuance of 27 memorandum opinion and order for publication) denying 9 Plaintiff's Motion For A Preliminary Injunction And For A Temporary Restraining Order. Signed by Judge Lydia Kay Griggsby. (jw) Service on parties made. Modified on 1/7/2021 to remove language directing the entry of judgment. (dls).

In the United States Court of Federal Claims
BID PROTEST
No. 20-1565C
Filed Under Seal: December 21, 2020
Reissued: January 7, 2021*

BRIGHTON CROMWELL, LLC,
Plaintiff,
v.
THE UNITED STATES,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Post-Award Bid Protest; Preliminary
Injunction; Temporary Restraining Order;
RCFC 65.

Julie M. Nichols, Counsel of Record, James S. Phillips, Roeder, Cochran, Phillips, PLLC,
McLean, VA, for plaintiff.
Sarah E. Kramer, Trial Attorney, Douglas K. Mickle, Assistant Director, Robert E.
Kirschman, Jr., Director, Jeffrey Bossert Clark, Acting Assistant Attorney General, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, DC; Allison
Eck, Senior Counsel, DLA Troop Support, for defendant.
MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge
I.

INTRODUCTION
Plaintiff, Brighton Cromwell, LLC (“Brighton Cromwell”), brings this post-award bid

protest matter challenging the Defense Logistic Agency’s (“DLA”) evaluation process and award
decisions in connection with the award of several indefinite-delivery, indefinite quantity
(“IDIQ”) contracts for Level 2 Disposable Isolation Gowns. Brighton Cromwell has moved for a
preliminary injunction and for a temporary restraining order seeking to, among other things,

*

This Memorandum Opinion and Order was originally filed under seal on December 21, 2020. ECF No.
27. The parties were given an opportunity to advise the Court of their views with respect to what
information, if any, should be redacted from the Memorandum Opinion and Order. On December 31,
2020, plaintiff filed a notice on behalf of the parties stating that no redactions are necessary. ECF No. 28.
And so, the Court is reissuing its Memorandum Opinion and Order, dated December 21, 2020.

enjoin the DLA from continuing with the performance of the IDIQ contracts, pursuant to Rule 65
of the Rules of the United States Court of Federal Claims (“RCFC”). See generally Pl. Mot.; Pl.
Mem. For the reasons discussed below, the Court DENIES Brighton Cromwell’s motion for a
preliminary injunction and for a temporary restraining order.
II.

FACTUAL AND PROCEDURAL BACKGROUND1
A.

Factual Background

This bid protest dispute involves a challenge to the DLA’s evaluation process and award
decisions in connection with the award of ten IDIQ contracts for Level 2 Disposable Isolation
Gowns. The contracts at issue were awarded pursuant to the DLA’s Solicitation No. SPE1C120-R-0138 (the “Solicitation”). Compl. at ¶ 15; Pl. Ex. A. Brighton Cromwell is an
unsuccessful offeror in connection with that procurement. Compl. at ¶ 4
Specifically, Brighton Cromwell raises three objections to the DLA’s evaluation process
and award decisions, namely that: (1) the DLA improperly utilized unstated evaluation criteria
to evaluate Brighton Cromwell’s proposal, in violation of FAR § 15.305; (2) the DLA failed to
seek clarification from Brighton Cromwell regarding its proposal, in violation of FAR § 15.306;
and (3) the DLA subjected Brighton Cromwell to partial and disparate treatment, in violation of
FAR § 1.102-2. Pl. Mem. at 7-10. And so, Brighton Cromwell requests, among other things,
that the Court enjoin the DLA from continuing with the performance of these contracts. Id. at
13.
1.

The Solicitation

As background, on July 20, 2020, the DLA issued the Solicitation to supply the United
States Department of Health and Human Services (“HHS”) with necessary personal protective
equipment (“PPE”) to allow medical workers and frontline responders to combat the ongoing

1

The facts recited in this Memorandum Opinion and Order are taken from Brighton Cromwell’s
complaint (“Compl.”) and the exhibits attached thereto (“Pl. Ex.”); Brighton Cromwell’s motion for a
preliminary injunction and for a temporary restraining order (“Pl. Mot.”) and the memoranda in support
thereof (“Pl. Mem.”); the government’s response and opposition to Brighton Cromwell’s motion for a
preliminary injunction and for a temporary restraining order (“Def. Resp.”); the government’s appendix
(“A___”); and Brighton Cromwell’s reply in support of its motion for a preliminary injunction and for a
temporary restraining order (“Pl. Reply”). Except where otherwise noted, the facts cited herein are
undisputed.

2

coronavirus pandemic. Compl. at ¶ 15; Def. Mot. at 4. The Solicitation provides that the
offerors who submit the lowest-priced technically acceptable proposals would be awarded
contracts to support the government’s cumulative estimated requirements of 190 million gowns.
Compl. at ¶¶ 20-21. Under the terms of the Solicitation, each offeror submitted preproduction
demonstration model (“PDM”) gowns that the DLA subjected to visual, dimensional and
manufacturing requirements, to ensure that the gowns would, among other things, “provide 360degree protection.” Id. at ¶ 21; Pl. Ex. A at 14.
The Solicitation also requires that PDM gowns “shall be free from defects.” Pl. Ex. A at
15. The Solicitation contains a detailed list of “end item visual defects,” which includes: (1)
“[a]ny component part misplaced or required operation omitted, not as specified, distorted, full,
tight or twisted;” (2) “[a]ny component part twisted, distorted, pleated, misshaped, tight or full;”
(3) “[f]ullness creating unwanted permanent, fold, pleat, crease, in fabric or garment;” and (4)
“missing or detached closure ties or other fasteners.” Id. at 15-16.
Brighton Cromwell submitted four timely proposals in response to the Solicitation.
Compl. at ¶ 28; Def. Mot. at 7; Tr. at 9:13-9:14. On August 27, 2020, the DLA notified Brighton
Cromwell that its proposals were “ineligible to receive award,” because Brighton Cromwell did
not provide tape closures with its PDM gowns, as required by the Solicitation. Compl. at ¶ 38;
Pl. Ex. D. On August 28, 2020, Brighton Cromwell filed a formal debriefing request and
Brighton Cromwell was reinstated into the competition. Compl. at ¶¶ 39, 40; Pl. Ex. F.
During subsequent negotiations with the DLA, the DLA informed Brighton Cromwell
that its PDM gowns were “insufficient.” A12. The DLA requested that Brighton Cromwell
provide step-by-step directions for closing its gowns and explain how these directions would be
communicated to the customer. Id.
Thereafter, Brighton Cromwell provided the DLA with step-by-step directions for closing
its PDM gowns, using both excess fabric and the tape closure method, as well as instructions
explaining how the customer would close the gowns. Id.; see also Pl. Ex. E at 5-8.
On September 2, 2020, the DLA’s contracting officer notified Brighton Crowell that it
was eliminated from the competition, because its PDM gowns had “excess fabric” and did not
come with tape closures, in violation of the technical requirements of the Solicitation. Id. at ¶
42; Pl. Ex. H at 1.
3

2.

The Contract Awards And Agency-Level Protest

After the DLA awarded several contracts to other offerors, Brighton Cromwell submitted
a formal agency-level protest of the agency’s award decisions to the DLA’s contracting officer
on September 14, 2020. Compl. at ¶ 47; Pl. Exs. B, C. After the DLA denied this protest,
Brighton Cromwell filed this bid protest action on November 10, 2020. See generally Compl.
B.

Procedural Background

Brighton Cromwell commenced this action on November 10, 2020. Id. On November
16, 2020, the Court issued a Protective Order in this matter. See generally Protective Order.
On November 13, 2020, Brighton Cromwell filed a motion for a preliminary injunction
and for a temporary restraining order and a memorandum in support thereof. See generally Pl.
Mot.; Pl. Mem. On November 20, 2020, the government filed a response and opposition to
Brighton Cromwell’s motion for a preliminary injunction and for a temporary restraining order.
See generally Def. Resp. On November 25, 2020, Brighton Cromwell filed a reply in support of
its motion for a preliminary injunction and for a temporary restraining order. See generally Pl.
Reply.
On December 8, 2020, the Court held oral arguments on Brighton Cromwell’s motion for
a preliminary injunction and for a temporary restraining order. See generally Tr. The Court
issued an oral opinion during the hearing denying Brighton Cromwell’s motion for a preliminary
injunction and for a temporary restraining order. Tr. at 36:25-45:7. The Court now issues this
written opinion consistent with its prior oral ruling in this matter.
III.

LEGAL STANDARDS
A.

Jurisdiction And Bid Protests

The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid
protests brought by “an interested party objecting to a solicitation by a Federal agency for bids or
proposals for a proposed contract or to a proposed award or the award of a 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). In bid protest cases, this Court reviews agency actions
under the Administrative Procedure Act’s (“APA”) “arbitrary and capricious” standard. See 28
U.S.C. § 1491(b)(4) (adopting the standard of review set forth in the Administrative Procedure
4

Act). And so, under the APA’s standard, an award may be set aside if, “(1) the procurement
official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation
of regulation or procedure.” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351
(Fed. Cir. 2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238
F.3d 1324, 1332 (Fed. Cir. 2001)).
The United States Court of Appeals for the Federal Circuit has recognized that:
When a challenge is brought on the first ground, the test is whether the
contracting agency provided a coherent and reasonable explanation of its
exercise of discretion, and the disappointed bidder bears a “heavy burden”
of showing that the award decision had no rational basis. When a challenge
is brought on the second ground, the disappointed bidder must show a clear
and prejudicial violation of applicable statutes or regulations.
Id. (citations omitted).
B.

Preliminary Injunctions And RCFC 65

The Tucker Act authorizes this Court to “award any relief that the court considers proper,
including . . . injunctive relief” in bid protest matters. 28 U.S.C. § 1491(b)(2); see RCFC 65.
But, “a preliminary injunction is an extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (emphasis omitted) (citation omitted); Intel Corp. v. ULSI
Sys. Tech., Inc., 995 F.2d 1566, 1568 (Fed. Cir. 1993) (The award of “a preliminary injunction is
a drastic and extraordinary remedy that is not to be routinely granted.”).
In deciding whether to grant emergency injunctive relief, the Federal Circuit has directed
that the Court consider: (1) whether the plaintiff is likely to succeed on the merits of the case;
(2) whether the plaintiff will suffer irreparable harm if the Court 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. PGBA, LLC v. United States,
389 F.3d 1219, 1228-29 (Fed. Cir. 2004); see also FMC Corp. v. United States, 3 F.3d 424, 427
(Fed. Cir. 1993); OAO Corp. v. United States, 49 Fed. Cl. 478, 480 (2001).
In addition, the Federal Circuit has held that “[n]o one factor, taken individually, is
necessarily dispositive. . . . [T]he weakness of the showing regarding one factor may be
overborne by the strength of the others.” FMC Corp., 3 F.3d at 427. Conversely, “the absence
5

of an adequate showing with regard to any one factor may be sufficient, given the weight or lack
of it assigned the other factors, to justify the denial” of a motion for a preliminary injunction. Id.
And so, the Federal Circuit has held that “a movant is not entitled to a preliminary injunction if
he fails to demonstrate a likelihood of success on the merits.” Nat’l Steel Car, Ltd. v. Canadian
Pac. Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir. 2004).
C.

Unstated Evaluation Criteria And Disparate Treatment

FAR § 15.305(a) provides that “[a]n agency shall evaluate competitive proposals and
then assess their relative qualities solely on the factors and subfactors specified in the
[S]olicitation.” FAR § 15.305(a). The Federal Circuit has held that, to succeed upon an unstated
evaluation criteria claim, a protestor must show that: (1) the agency used a significantly different
basis in evaluating its proposals than was disclosed and (2) that the protestor has been prejudiced
as a result. Banknote Corp. of Am. v. United States, 56 Fed. Cl. 377, 387 (2003), aff’d, 365 F.3d
1345 (Fed. Cir. 2004).
FAR § 1.102-2(c)(3) also provides that “[a]ll contractors and prospective contractors
shall be treated fairly and impartially but need not be treated the same.” FAR § 1.102-2(c)(3).
And so, the Federal Circuit has held that, to succeed upon a disparate treatment claim, a protestor
must show that the agency “downgraded its proposal for deficiencies that were ‘substantively
indistinguishable’ or nearly identical from those contained in other proposals.” Office Design
Grp. v. United States, 951 F.3d 1366, 1372 (Fed. Cir. 2020).
IV.

LEGAL ANALYSIS
In this post-award bid protest dispute, Brighton Cromwell seeks to enjoin the

performance of the contracts at issue upon the grounds that the DLA improperly utilized an
unstated evaluation criteria, failed to seek clarification and subjected Brighton Cromwell to
disparate treatment during the competition for these contracts. Pl. Mot. at 2; Pl. Mem. at 711. In support of its request for emergency injunctive relief, Brighton Cromwell argues that: (1)
there is a substantial likelihood that it will succeed upon the merits of its bid protest claims; (2) it
will suffer immediate irreparable harm absent injunctive relief, due to the loss of revenue; (3) the
balance of the hardships weigh in favor of granting injunctive relief in this case; and (4)
awarding such relief would serve the public interest, by preserving the integrity of the
competitive procurement process. Pl. Mem. at 7-13.
6

In its response and opposition to Brighton Cromwell’s motion, the DLA counters that the
DLA’s evaluation process and award decisions were reasonable and consistent with the terms of
the Solicitation and applicable law. Def. Resp. at 2. The government also argues that Brighton
Cromwell has not shown irreparable harm and that the balance of the hardships and public
interest in this case weigh heavily against an injunction, because an injunction would seriously
impede the government’s ability to procure PPE during the ongoing coronavirus pandemic. Id.
at 23-27. And so, the government requests that the Court deny Brighten Cromwell’s motion for
a preliminary injunction and for a temporary restraining order. Id. at 27.
For the reasons set forth below, a careful review of the complaint and the record evidence
currently before the Court shows that Brighton Cromwell has not demonstrated a substantial
likelihood of success upon the merits of any of its bid protest claims. And so, the Court
DENIES Brighton Cromwell’s motion for emergency injunctive relief.
A.

Brighton Cromwell Has Not Shown A Substantial
Likelihood Of Success On Its Unstated Evaluation Criteria Claim

As an initial matter, Brighton Cromwell has not demonstrated a substantial likelihood of
success upon the merits of its claim that the DLA violated FAR § 15.305 by improperly utilizing
an unstated evaluation criteria, because the record evidence currently before the Court shows that
the DLA rejected Brighton Cromwell’s PDM gowns based upon the Solicitation’s requirements
regarding gown fullness. Pl. Ex. H; Pl. Ex. A at 15.
FAR § 15.305(a) requires that “[a]n agency shall evaluate competitive proposals and then
assess their relative qualities solely on the factors and subfactors specified in the [S]olicitation.”
FAR § 15.305(a). And so, to succeed upon its unstated evaluation criteria claim here, Brighton
Cromwell must show that the DLA used a significantly different basis in evaluating its proposals
than was disclosed in the Solicitation and that it has been prejudiced as a result. Banknote Corp.
of Am. v. United States, 56 Fed. Cl. 377, 387 (2003), aff’d, 365 F.3d 1345 (Fed. Cir. 2004).
Brighton Cromwell has not made such a showing here. Brighton Cromwell argues that
the DLA improperly employed an unstated evaluation criteria when the agency rejected its PDM
gowns due to “excess fabric,” because “[t]he Solicitation does not contain a technical evaluation
requirement or factor that calls for elimination [of a PDM gown based upon] ‘excess fabric.’”
Pl. Mem. at 8; see also Pl. Ex. H. While Brighton Cromwell correctly observes that the
7

Solicitation does not contain the words “excess fabric,” the record evidence before the Court
shows that the Solicitation does require that PDM gowns “shall be free from defects,” including
any component part that is “full,” or has “fullness creating unwanted permanent, fold, pleat,
crease, in fabric or garment.” Pl. Ex. A at 15-16. Given this, the record evidence currently
before the Court indicates that the DLA’s decision to reject Brighton Cromwell’s PDM gowns
due to “excess fabric” was based upon the Solicitation’s stated requirement that these gowns
“shall be free from [the] defects” listed in the Solicitation, including the defect of gown fullness.
Id. at 15. And so, Brighton Cromwell has not shown that there is a substantial likelihood that it
will succeed upon the merits of its unstated evaluation criteria claim.
B.

Brighton Cromwell Has Not Shown A Substantial Likelihood Of
Success On Its Claim That The DLA Failed To Seek Clarification

Brighton Cromwell also has not demonstrated a substantial likelihood of success upon the
merits of its claim that the DLA violated FAR § 15.306 by failing to seek clarification about its
proposed gown design. FAR § 15.306(a)(2) provides that “[i]f award will be made without
conducting discussions, offerors may be given the opportunity to clarify certain aspects of
proposals . . . or to resolve minor or clerical errors.” FAR § 15.306(a)(2) (emphasis added).
In its motion for emergency injunctive relief, Brighton Cromwell argues that the DLA’s
contracting officer abused her discretion during the evaluation process by failing to hold
discussions with Brighton Cromwell about the lack of tape closures on its PDM gowns and about
the “excess fabric” in these gowns. Pl. Mem. at 10; Tr. at 18:8-18:15. Brighton Cromwell’s
argument lacks persuasion for two reasons.
First, Brighton Cromwell has not shown that the clarification requirement in FAR §
15.306(a)(2) is applicable to this case. The record evidence currently before the Court shows
that Brighton Cromwell’s proposals were deemed to be technically unacceptable by the DLA due
to “excess fabric” and the lack of tape closures on the PDM gowns. Pl. Ex. C. And so, the
DLA’s concerns about Brighton Cromwell’s proposals do not appear to be related to “minor or
clerical errors” that could be clarified pursuant to FAR § 15-306. Id.; FAR § 15.306(a)(2).
Second, and more importantly, the record evidence currently before the Court shows that
the DLA engaged in discussions with Brighton Cromwell regarding the lack of tape closures and
“excess fabric” in its PDM gown design. Pl. Ex. C. Specifically, the source selection decision
8

for the DLA’s award decisions states that the DLA informed Brighton Cromwell of the fact that
its PDM gowns were “insufficient” during the evaluation process. A12. The DLA’s source
selection decision also shows that the DLA afforded Brighton Cromwell the opportunity to
remedy this concern, by allowing Brighton Cromwell to provide additional documentation to
show, among other things, how its gowns are to be tied. Id. In fact, it is undisputed that
Brighton Cromwell provided the DLA with step-by-step directions for closing its gowns, as well
as with instructions to explain how the customer would secure the gowns. Def. Resp. at 8
(quoting A12); Compl. at ¶ 39 (citing Pl. Ex. E).
Given this, the current record evidence before the Court makes clear that the DLA
engaged in meaningful discussions with Brighton Cromwell during the procurement process.
And so, Brighton Cromwell has not shown that there is a substantial likelihood that it will
succeed upon the merits of this claim.
C.

Brighton Cromwell Has Not Shown A Substantial
Likelihood Of Success On Its Disparate Treatment Claim

Lastly, Brighton Cromwell has similarly failed to demonstrate a substantial likelihood of
success upon the merits of its disparate treatment claim. Brighton Cromwell argues that the
DLA treated it disparately by allowing other offerors that have been awarded contracts by the
DLA to modify those contracts post-award. Pl. Mem. at 10-11. FAR § 1.102-2(c)(3) requires
that “[a]ll contractors and prospective contractors shall be treated fairly and impartially but need
not be treated the same.” FAR § 1.102-2(c)(3). And so, to succeed upon the merits of its
disparate treatment claim, Brighton Cromwell must show that the DLA “downgraded its
proposal for deficiencies that were ‘substantively indistinguishable’ or nearly identical from
those contained in other proposals.” Office Design Grp. v. United States, 951 F.3d 1366, 1372
(Fed. Cir. 2020). Again, Brighton Cromwell has not made such a showing.
Brighton Cromwell points to no evidence to show that the deficiencies identified in its
own PDM gowns—excess fabric and missing tape closures—are “substantially
indistinguishable” from any deficiencies identified in the proposals submitted by the contract
awardees. See Pl. Mem. at 10-11. In fact, Brighton Cromwell does not even allege that the
contract awardees proposed a gown design that contained excess fabric or missing tape closures.
Tr. at 16:12-16:13; see also Pl. Exs. O and P.
9

It is also undisputed that, unlike the contract awardees, the DLA found Brighton
Cromwell’s PDM gowns to be technically unacceptable. Pl. Mem. at 5; Def. Resp. at 8, 22; see
also Pl. Ex. D. Given this, Brighton Cromwell simply has not shown that the DLA treated it
disparately or unfairly during the evaluation process. And so, Brighton Cromwell has not shown
that there is a substantial likelihood that it will succeed upon the merits of its disparate treatment
claim.
D.

Brighton Cromwell Is Not Entitled To Injunctive Relief

Because Brighton Cromwell has not shown that there is a substantial likelihood that it
will succeed upon the merits of any of its bid protest claims, it also has not shown an entitlement
to the emergency injunctive relief that it seeks in this case. Nat’l Steel Car, Ltd. v. Canadian
Pacific Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir. 2004) (“[A] movant is not entitled to a
preliminary injunction if he fails to demonstrate a likelihood of success on the merits.”). The
Court is also mindful of the public interest in ensuring that the government is able to promptly
secure isolation gowns during the ongoing coronavirus pandemic. See Tr. at 25:17-26:10. And
so, the Court DENIES Brighton Cromwell’s motion for emergency injunctive relief.
V.

CONCLUSION
In sum, Brighton Cromwell has not shown a substantial likelihood of success upon the

merits of its claims that the DLA employed an unstated evaluation criteria, failed to seek
clarification and treated Brighton Cromwell disparately during the competition for the contracts
at issue in this bid protest dispute. And so, for the foregoing reasons, the Court DENIES
Brighton Cromwell’s motion for a preliminary injunction and for a temporary restraining order.
Some of the information contained in this Memorandum Opinion and Order may be
considered protected information subject to the Protective Order entered in this matter on
November 16, 2020. This Memorandum Opinion and Order shall be filed under seal. The
parties shall review the Memorandum Opinion and Order to determine whether, in their view,
any information should be redacted in accordance with the terms of the Protective Order prior to
publication.
After doing so, the parties shall FILE a joint status report on or before January 8, 2021:

10

1. Advising the Court of their respective views on how this matter should proceed,
including, if appropriate, a proposed schedule for the briefing of cross-motions for
judgment upon the administrative record; and
2. Identifying the information, if any, that they contend should be redacted for the
Court’s opinion, together with an explanation of the basis for each proposed
redaction.
IT IS SO ORDERED.

s/ Lydia Kay Griggsby
LYDIA KAY GRIGGSBY
Judge

11