Free Order on Motion for Permanent Injunction - District Court of Federal Claims - federal

Case 1:07-cv-00150-GWM

Document 62

Filed 01/14/2008

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United States Court of Federal Claims
HERITAGE OF AMERICA, LLC, Plaintiff, v. THE UNITED STATES, Defendant, and DYNAMIC SYSTEMS TECHNOLOGY, INC., and EVOLVER, INC., Defendants-Intervenors. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 07-150 C Filed January 14, 2008

ORDER Pending before the Court are defendant's "Motion for Modification of Injunction and for Expedited Consideration" (docket entry 59), filed January 10, 2008; "Defendant-Intervenor's Response to Defendant's Motion for Modification of Injunction and for Expedited Consideration" (docket entry 60), filed January 10, 2008; and "Defendant's Reply to Dynamic Systems Technologies, Inc.'s Response to Defendant's Motion for Modification of Injunction" (docket entry 61), filed January 11, 2008. Defendant requests modification of this Court's May 17, 2007 Order (docket entry 46), as modified by this Court's Order dated September 18, 2007 (docket entry 58). The May 17, 2007 Order required that defendant: not exercise its options to continue the [Army Continuing Education Services ("ACES") program] contracts of Evolver and Dynamic for the Northwest, Pacific, and Southwest regions beyond the end of their base years and . . . instead . . . proceed promptly to resolicit contracts for the provision of ACES support services in the Northwest, Pacific, and Southwest regions beginning after September 30, 2007 (i.e., after the end of the existing contracts' base years).

Case 1:07-cv-00150-GWM

Document 62

Filed 01/14/2008

Page 2 of 2

Heritage of America, LLC v. United States, 77 Fed. Cl. 66, 80 (2007). The September 18, 2007 Order modified the Court's May 17, 2007 Order to permit defendant to extend contract number W74V8H-06-D-0018 (with Evolver, Inc. for the Northwest and Pacific regions) and contract number W74V8H-06-D-0019 (with Dynamic Systems Technologies, Inc. for the Southwest region) (hereinafter "the subject contracts") to December 28, 2007, pursuant to the terms of those contracts and 48 C.F.R. § 52.217-8. All other provisions of the Court's injunction remained in full force and effect. Defendant now requests that the Court again modify its injunction, this time to enable defendant to exercise its options to extend the subject contracts for an additional 90 days, i.e., until March 30, 2008 pursuant to the terms of the subject contracts and 48 C.F.R. § 52.217-8. The reason for the request is that although defendant has complied with the Court's order to resolicit the contracts and, indeed, has made an award decision, a protest of the award decision has been filed with the Government Accountability Office, precluding the awardee from commencing performance and thereby causing an interruption in the ACES program. See 31 U.S.C. § 3553(c)(1). Defendant contends that without the further modification it now requests, the ACES program will suffer further interruption. Defendant-Intervenor Dynamic Systems Technology, Inc., (hereinafter "Dynamics") responded to the Government's motion by arguing that the Government has fully complied with the Court's September 17, 2007 Order and the relief sought, i.e., modification of that Order, is unnecessary. Dynamic does not contest the Government's contractual authority to extend the subject contracts in the present circumstances. The Government's reply memorandum states that it seeks the Order in question to ensure that the course of action it proposes to undertake is not in violation of the Court's Order. The Court held a telephonic hearing on the motion on January 11, 2008. Counsel for plaintiff and for Evolver advised the Court in advance of the hearing that their clients did not wish to participate. Having read and considered defendant's motion, Dynamics' response and defendant's reply, having heard the arguments of defendant and Dynamics, and having considered the balance of the equities and the public interest, the Court hereby ORDERS that defendant's motion is GRANTED. The Court's September 17, 2007 Order is hereby modified to the extent that defendant may exercise its options to extend the subject contracts to March 30, 2008, pursuant to the terms of the subject contracts and 48 C.F.R. § 52.217-8. All other provisions of the Court's injunction shall remain in full force and effect.

IT IS SO ORDERED.

s/ George W. Miller GEORGE W. MILLER Judge

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