HEART 6 RANCH, LLC v. ZINKE, 1:17-cv-02711

Background

In 2013 NPS solicited competitive bids for oversnow vehicle (OSV) contracts at Yellowstone; Heart 6 Ranch (Plaintiff) bid on south-entrance contracts but received none.
DTRS Jackson Hole (Four Seasons) was awarded a south-entrance contract allocating two daily transportation events; Four Seasons cancelled that contract in Oct. 2014.
NPS left those two transportation events unused for two seasons, then in Oct. 2016 reallocated them experimentally via a lottery to existing concessioners (one to a south-entrance contract, one to a west-entrance contract) and required specific shuttle uses (e.g., to Old Faithful).
Plaintiff sued under the Administrative Procedure Act (APA) on Dec. 20, 2017 and moved for a temporary restraining order (TRO) seeking, among other relief, that NPS be ordered to award Plaintiff the replaced contract or to conduct a proper selection process permitting Plaintiff to compete.
Defendants argued no new contract was awarded and the reallocations were permissible contract amendments or adjustments under NPS regulations and the Centennial Act; Plaintiff argued the reallocations were a material change requiring a new public solicitation.
The Court denied the TRO, finding Plaintiff had not shown a likelihood of success on the merits or irreparable harm; balance of equities and public interest were neutral.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Availability of judicial review/standing	Plaintiff lost a procurement opportunity and thus has standing to challenge reallocations	Defendants said no final agency action and decisions were discretionary NPS matters	Court: Plaintiff has a substantial likelihood of standing and the allocation is reviewable for now
Whether reallocation required a new public solicitation	Reallocation of events (including new shuttle use and moving an event to West entrance) was a "material" change requiring public solicitation	Reallocation was a minor adjustment/amendment permitted by regulations and Centennial Act; no new contract was awarded	Court: At TRO stage, Plaintiff not likely to succeed on showing the change was material; record insufficient to show illegality
Appropriate remedy if reallocations were unlawful	Plaintiff sought immediate award of a replacement concession contract to Plaintiff or an order forcing a new selection process with Plaintiff allowed to compete	Defendants argued even if flawed, automatic award to Plaintiff is not warranted and other unsuccessful bidders exist; remedy complex	Court: Plaintiff failed to show entitlement to automatic award; remedy speculative and Plaintiff not shown likely to obtain contract
Irreparable harm supporting emergency relief	Loss of revenue and loss of incumbent/preferred-offeror status are irreparable	Economic loss is not irreparable absent special circumstances; harms speculative and remediable later	Court: Plaintiff did not show certain, great, or irreparable harm; delay in seeking relief undermined urgency

Key Cases Cited

Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) (preliminary injunction requires clear showing on four Winter factors)
Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (standards for preliminary injunction; likelihood of success and irreparable harm required)
Mazurek v. Armstrong, 520 U.S. 968 (1997) (preliminary injunction is extraordinary and drastic)
Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) (articulation of four-factor injunction test)
Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009) (sliding-scale approach to injunction factors and economic harm not usually irreparable)
Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905 (D.C. Cir. 2015) (standing threshold for preliminary injunction)
Nat’l Mall Tours of Washington, Inc. v. United States Dep’t of the Interior, 862 F.3d 35 (D.C. Cir. 2017) (bidder’s injury to fair procurement process is cognizable injury)
Ethyl Corp. v. Envtl. Prot. Agency, 541 F.2d 1 (D.C. Cir. 1976) (presumption of validity for agency action)