Department of Education Requests Clarification on Court’s Permanent Injunction

On Friday afternoon, the Department of Education (ED) filed a motion in the Court of Federal Claims. The motion was a request for clarification – or reconsideration – of the scope of the Court’s Order from two Fridays ago, which granted the plaintiff’s motion to permanently enjoin ED from cancelling its solicitation for unrestricted debt collection services.

The motion notes that the Court’s September 14, 2018 Opinion said:

[T]he “[administrative record] before the court is not enough to show that [the Department of Education’s] decision to cancel the solicitation was rational.” Based on that holding, the Court “set aside [the Department of Education’s] May 3, 2018 cancellation decision and return[ed] the procurement to its posture as of May 2, 2018.” The Court “does not suggest what further action the Department of Education may take. Rather, the Court holds only that the administrative record before it does not support the agency’s May 3, 2018 decision to cancel the solicitation.” The Court then issued the following injunction: “[T]he United States of America, the United States Department of Education, and their officers, agents, servants, employees, and representatives are permanently ENJOINED, pursuant to RCFC 65(d), from cancelling Solicitation No. ED-FSA-16-R-0009.”

ED wants to know whether the Court really meant that it could never cancel this Solicitation, or whether ED is at liberty to fix the identified weaknesses in the administrative record on which it relied to reach its cancellation decision. And if the Court really DID mean to enjoin ED from ever cancelling the Solicitation, ED is requesting that the Court reconsider. ED says,

The position that ED occupied immediately prior to cancellation afforded ED the option to exercise its discretion and take any appropriate action necessary to manage the procurement in accordance with its needs, including, litigating the then pending protests, taking corrective action, or cancellation. For this reason, the Government interprets the Court’s full opinion as directing a return to that pre-cancellation state of affairs, and not as a permanent bar preventing the agency from exercising its right to undertake whatever action it deems necessary and rationally supported, including a potential future cancellation.

insideARM Perspective

Everyone has been waiting to see what ED would do in response to the September 14 permanent injunction. Sources told insideARM last week that a status update has been scheduled in the Court of Federal Claims for October 20, 2018. I believe this update was scheduled prior to the submission of ED’s Motion for Clarification or Reconsideration. It would be unlike Judge Wheeler to take almost three weeks to respond to a motion, so I suspect we will hear something soon on this current request.

UPDATED 12:33 PM On October 1, 2018: As I suspected, Judge Wheeler has responded to ED's Motion. Here's what he said,

The Court clarifies that it intended only to enjoin the Department of Education from cancelling the solicitation based on the administrative record that it submitted in this proceeding.... The Department of Education “retains the power to proceed with the award process or to terminate the award process” for any legal, sufficiently supported reason.... Accordingly, the Government’s motion for clarification is GRANTED. The Court’s September 14, 2018 Order is amended as follows:

It is ORDERED that the United States of America, the United States Department of Education, and their officers, agents, servants, employees, and representatives are permanently ENJOINED, pursuant to RCFC 65(d), from cancelling Solicitation No. ED-FSA-16-R-0009 on the basis of the administrative record that the Department of Education relied on to justify its May 3, 2018 cancellation decision. (citations omitted)