Summary
The Eleventh Circuit affirmed the denial of a preliminary injunction sought by Associated Builders and Contractors and its Florida First Coast Chapter against a federal procurement mandate requiring project labor agreements for certain large-scale construction projects. The court held that the associations were unlikely to succeed on their facial challenges under the Competition in Contracting Act, the Federal Property and Administrative Services Act, the First Amendment, and other statutes. Although the district court applied the wrong standard in evaluating irreparable harm, the appellate court affirmed on the alternative ground that the merits showing was insufficient.
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Practice areas
Questions Presented
- Whether the district court improperly evaluated irreparable harm by considering only the associations' Competition in Contracting Act claim and by treating potential bid protests in the Court of Federal Claims as an adequate alternative remedy.
- Whether the associations were likely to succeed on their facial challenge under the Competition in Contracting Act.
- Whether Executive Order 14,063 was likely beyond the President's authority under the Federal Property and Administrative Services Act.
- Whether the procurement mandate was likely to violate the First Amendment freedom of association.
- Whether the implementing regulations and guidance were likely unlawful under the Administrative Procedure Act, the Office of Federal Procurement Policy Act, or the National Labor Relations Act.
Holdings
- When a movant seeks a preliminary injunction based on multiple claims, the court must consider irreparable harm with respect to each claim rather than denying relief based solely on the absence of harm from one claim.
- The availability of bid protests in the Court of Federal Claims does not, by itself, foreclose a finding of irreparable harm where the available monetary relief is limited and equitable relief in another court is not the type of legal corrective relief that defeats irreparable harm.
- The associations were unlikely to succeed on their facial Competition in Contracting Act challenge because the executive order, regulations, and guidance include exceptions that permit the government to avoid project labor agreements when necessary to preserve full and open competition, promote economy and efficiency, or comply with statutes and regulations.
- The associations were unlikely to succeed in establishing that Executive Order 14,063 exceeded the President's authority under 40 U.S.C. § 121(a). The order carried out and was consistent with the Federal Property and Administrative Services Act because it directed agencies concerning restrictive conditions in solicitations to promote economy and efficiency in federal procurement and included exceptions for statutory and competitive concerns.
- The associations were unlikely to succeed on their facial First Amendment challenge because they did not identify applications of the procurement mandate that unconstitutionally burden expressive association, and contractual interaction with unions does not itself constitute protected expressive association.
- The associations were unlikely to succeed on their Administrative Procedure Act challenge. The President is not an agency subject to the APA, and the implementing regulations were not shown to be arbitrary, capricious, or contrary to law.
- The associations were unlikely to succeed on their National Labor Relations Act claim because the government was specifying terms for its own contracts as a proprietor, not compelling parties to agree during collective bargaining as a neutral labor arbiter.
Key quotations
“Because the associations are not likely to succeed on the merits of their claims, we affirm.” (at 2)
“When a movant seeks a preliminary injunction based on multiple claims, a court should not deny the motion without finding that “each claim” fails to satisfy the requirements for injunctive relief.” (at 10)
“Our test for injunctive relief asks “whether the plaintiffs [are] likely to suffer irreparable injury absent an injunction,” not whether an injunction could be obtained elsewhere.” (at 12)
“Whether and to what extent the government applies the exceptions in practice does not tell us whether the procurement mandate is defective on its face.” (at 15)
“Absent a “significant” impediment to “some form of expression,” we cannot conclude that the mandate to enter into project labor agreements violates the freedom of association.” (at 23)
Factual background
Executive Order 14,063 presumptively required contractors and subcontractors working on federal construction projects valued at $35 million or more to negotiate or become parties to project labor agreements with labor organizations, subject to specified exceptions. The Federal Acquisition Regulatory Council issued implementing regulations, and the Office of Management and Budget issued guidance concerning the exceptions. Two builders' associations, whose members generally preferred not to affiliate with unions, alleged that the mandate deprived their members of federal contracting opportunities and sought preliminary injunctive relief.
Procedural history
The associations sued federal procurement officials, challenging Executive Order 14,063, implementing Federal Acquisition Regulation provisions, and Office of Management and Budget guidance under federal procurement statutes, the First Amendment, the Administrative Procedure Act, and the National Labor Relations Act. The district court denied a preliminary injunction, finding no irreparable harm because members could pursue bid protests in the Court of Federal Claims, although it found likely success on one Competition in Contracting Act theory. The Eleventh Circuit held that the district court applied the irreparable-harm analysis incorrectly but affirmed on the alternative ground that the associations were unlikely to succeed on the merits.