Subsequent to the filing of the complaint, Fairplain filed
a motion for a preliminary injunction pursuant to Federal Rule
of Civil Procedure 65(a) to enjoin the GSA from issuing a
solicitation of offers for office space for the Benton Harbor
SSA office, awarding a lease for such office space, and
otherwise implementing the executive order pending final
disposition of this case. In support of its motion, Fairplain
contends that the defendants are violating applicable law
regarding fair competition and the legal requirements for the
procurement of federal office space. Fairplain also contends
that it will suffer irreparable harm if the GSA is permitted
to relocate the SSA office since such a relocation will
eliminate a significant source of business for Fairplain Plaza
merchants as well as a source of rental income for Fairplain.
Fairplain also contends that it has no adequate remedy at law
in that damages against the United States for injuries due to
illegalities in the procurement process are limited to bid
preparation costs and that such costs would not be available
to Fairplain since it has not been allowed to bid for the
office space. Fairplain further contends that it is likely to
succeed on the merits of the present case. Finally, Fairplain
contends that a preliminary injunction will not injure the
defendants or any other party. Rather, Fairplain maintains
that a preliminary injunction will protect the interests of
Fairplain and the public in maintaining the integrity of the
federal procurement process and avoiding higher costs for
federal office space.
The issuance of a preliminary injunction is the court's
exercise of an extremely far reaching power and should not be
granted except in a case which clearly warrants it. See Fox
Valley Harvestore, Inc. v. A.O. Smith Harvestore Products,
Inc., 545 F.2d 1096, 1097 (7th Cir. 1976). The criteria for a
preliminary injunction are well-established: (1) the plaintiff
has no adequate remedy at law and will be irreparably harmed if
the injunction does not issue; (2) the threatened injury to the
plaintiff outweighs the threatened harm the injunction may
inflict on the defendant; (3) the plaintiff has at least a
reasonable likelihood of success on the merits; and (4) the
granting of a preliminary injunction will not disserve the
public interest. Id. A preliminary injunction cannot be granted
unless the plaintiff carries its burden of persuasion as to all
of these elements. Id. "Irreparable harm" is harm that the
district court cannot remedy following a final determination of
the merits of the case. American Hospital Association v.
Harris, 625 F.2d 1328, 1331 (7th Cir. 1980); Fox Valley
Harvestore, Inc. v. A.O. Smith Harvestore Products, Inc.,
545 F.2d 1096, 1097 (7th Cir. 1976). Moreover, mere injuries,
however substantial, in terms of money, time, and energy
necessarily expended in the absence of a stay do not constitute
irreparable harm. American Hospital Association v. Harris,
625 F.2d 1328, 1331 (7th Cir. 1980). In addition, the "required
showing of probability of success on the merits varies with the
quality and quantum of harm that the moving party will suffer
from the denial of an injunction. Where it appears that a lack
of showing of irreparable harm exists . . . the party seeking a
preliminary injunction has a burden of convincing with a
reasonable certainty that it must succeed at the final
Applying this standard to the facts of the present case, the
court concludes that Fairplain has failed to carry its burden
of persuasion as to all of the elements necessary for a
preliminary injunction.*fn1 Fairplain has failed to establish
that it has no adequate remedy at law and will be irreparably
harmed if the injunction does not issue. If Fairplain prevails
on the merits of the present case, Fairplain should be able to
recover its costs incurred in the preparation of the bid
despite the fact that Fairplain was not permitted to submit
the bid to the GSA. See Morgan Business Associates, Inc. v.
United States, 619 F.2d 892, 895
n. 5 (Ct.Cl. 1980).*fn2 Recovery of these damages is
considered to be an adequate remedy at law where the court is
asked to enjoin the federal procurement process. See Cincinnati
Electronics Corp. v. Kleppe, 509 F.2d 1080, 1089 (6th Cir.
1975); M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1302 (D.C.
Cir. 1971). In addition, the threatened injury to Fairplain
does not necessarily outweigh the threatened harm which the
injunction may inflict upon the GSA since the federal
procurement process will be greatly disrupted if it is subject
to injunctive action by the courts. See id.; John W. Danforth
Co. v. Veterans Administration, 461 F. Supp. 1062, 1072
(W.D.N.Y. 1978); General Electric Co. v. Kreps, 456 F. Supp. 468,
474 (D.D.C. 1978). A court's reluctance to interfere with
the federal procurement process should be especially strong
where, as here, the GAO has made a determination upholding the
procurement process on its merits. M. Steinthal & Co. v.
Seamans, 455 F.2d 1289, 1305 (D.C. Cir. 1971). Moreover, a
preliminary injunction which would enjoin the federal
procurement process may disserve the public interest. See id.
at 1303; Health Care Service Corp. v. Califano, 466 F. Supp. 1190,
1194 (N.D.Ill.), aff'd, 601 F.2d 934 (7th Cir. 1979);
John W. Danforth Co. v. Veterans Administration, 461 F. Supp. 1062,
1072 (W.D.N.Y. 1978); Schiavone Construction Co. v.
Samowitz, 451 F. Supp. 29, 31 (S.D.N.Y.), aff'd, 578 F.2d 1370
(2d Cir. 1978) (unpublished opinion).*fn3 Finally, Fairplain
has not established that it has a reasonable likelihood of
success on the merits.*fn4 A court's review of a federal
procurement determination is limited. M. Steinthal & Co. v.
Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971); Health Care
Service Corp. v. Califano, 466 F. Supp. 1190, 1194 (N.D.Ill.),
aff'd, 601 F.2d 934 (7th Cir. 1979). A court should not
overturn a federal procurement determination unless the
aggrieved bidder demonstrates that there was no rational basis
for the decision. Id. See Airco, Inc. v. Energy Research &
Development Administration, 528 F.2d 1294, 1296 (7th Cir.
1975). Such a rational basis is demonstrated where "the
procurement procedure involved a clear and prejudicial
violation of applicable statutes or regulations." Kentron
Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973).
Thus, a plaintiff's burden of proof necessary to challenge
successfully a federal procurement award is quite heavy. Health
Care Service Corp. v. Califano, 466 F. Supp. 1190, 1194
(N.D.Ill.), aff'd, 601 F.2d 934 (7th Cir. 1979). In the present
case, the court concludes that, for the purpose of a
preliminary injunction, Fairplain has failed to show that it
will succeed on the merits of the case.
Accordingly, the motion for a preliminary injunction is
It is so ordered.