Xpo Logistics Worldwide Government Services, LLC v. United States
17-1080
| Fed. Cl. | Dec 8, 2017Background
- USTRANSCOM issued a solicitation (DFTS) to replace the incumbent DTCI contract held by XPO for transportation coordination services across CONUS, Alaska, and Canada.
- After initial award to Crowley, GAO sustained Crowley’s protest, agency reopened competition, then awarded the contract to Crowley; XPO and Crowley pursued subsequent GAO challenges and agency corrective action focused on past performance reevaluation.
- USTRANSCOM reevaluated past performance without requesting proposal revisions or holding discussions and again awarded the contract to Crowley in July 2017.
- XPO filed a bid protest in the Court of Federal Claims alleging misleading/unequal discussions, arbitrary past-performance downgrades, and improper reliance on Crowley’s corporate experience; the court denied XPO’s complaint on November 2, 2017.
- XPO appealed and moved for a limited stay pending appeal, seeking to prevent the actual transition of traffic from XPO to Crowley while allowing Crowley to prepare; the court denied the stay on November 2017.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a stay pending appeal should issue under RCFC 62(c) | XPO argued substantial issues on appeal and that transition would cause irreparable economic and personnel losses | Government and Crowley argued XPO lacks substantial likelihood of success and harms are ordinary consequences of losing incumbency; public and private interests favor allowing award to proceed | Denied; XPO failed to show likelihood of success and irreparable harm; equities and public interest weigh against a stay |
| Whether loss of incumbency constitutes irreparable harm warranting injunction | XPO claimed loss of carrier capacity, experienced personnel, and profits will irreparably harm competitiveness | Defendants contended these are typical, compensable economic harms of contract loss and not irreparable absent showing of business-ending harm | Denied; court held ordinary economic losses from losing a contract are not irreparable for stay purposes |
| Whether claimed errors in earlier related protest support stay here | XPO relied in part on alleged errors in earlier protest to show substantial issues on appeal | Court noted XPO already litigated and lost many of those issues and did not show likelihood of reversal | Denied; court found no substantial case on the merits based on earlier protest errors |
| Whether public interest and third-party injury favor a stay | XPO implied public interest in careful procurement review | Government and Crowley emphasized harm to Crowley, disruption to government operations, lost savings from best-value award, and potential redundant costs if transition is interrupted | Denied; public interest and other parties’ equities favor allowing performance and transition to proceed |
Key Cases Cited
- Blue & Gold Fleet v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (waiver rule for failure to raise procurement defects before award)
- Telos Corp. v. United States, 129 Fed. Cl. 573 (Fed. Cl. 2016) (injunction pending appeal is extraordinary; irreparable-harm discussion)
- Standard Havens Prods., Inc. v. Gencor Indus., Inc., 897 F.2d 511 (Fed. Cir. 1990) (four-factor stay/injunction framework)
- E.I. DuPont de Nemours & Co. v. Phillips Petroleum Co., 835 F.2d 277 (Fed. Cir. 1987) (stay/injunction standards)
- Nken v. Holder, 556 U.S. 418 (U.S. 2009) (standards for staying removal orders; injunctions are extraordinary)
- Hilton v. Braunskill, 481 U.S. 770 (U.S. 1987) (flexible equitable balancing for stays)
- Cleveland Assets, LLC v. United States, 133 Fed. Cl. 108 (Fed. Cl. 2017) (likelihood-of-success requirement when stay sought after losing on merits)
- CRAssociates, Inc. v. United States, 103 Fed. Cl. 23 (Fed. Cl. 2012) (incumbent’s ordinary economic losses do not constitute irreparable harm)
- Akima Intra-Data, LLC v. United States, 120 Fed. Cl. 25 (Fed. Cl. 2015) (discussing irreparable harm and stay standards in bid protests)
- JWK Int’l Corp. v. United States, 49 Fed. Cl. 364 (Fed. Cl. 2001) (public interest in allowing government to proceed with lawful best-value contracts)
- Munilla Constr. Mgmt., LLC v. United States, 130 Fed. Cl. 131 (Fed. Cl. 2016) (disruption and redundant costs weigh against injunction)