UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CIVIL DIVISION INTERNATIONAL RELIEF AND DEVELOPMENT, INC., INTERNATIONAL RELIEF AND DEVELOPMENT US, INC., INTERNATIONAL RELIEF AND DEVELOPMENT HOLDINGS, INC., IRD SOLUTIONS, LLC, INTERNATIONAL RELIEF AND DEVELOPMENT GLOBAL INSTITUTE, and INTERNATIONAL RELIEF AND DEVELOPMENT GLOBAL SOLUTIONS, vs. Plaintiffs, UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT, ALFONZO E. LENHARDT, in his official capacity as Acting Administrator of the United States Agency for International Development, AMAN S. DJAHANBANI, in his official capacity as the Suspension and Debarment Official, Director, Office of Acquisition and Assistance, of the United States Agency for International Development and THE UNITED STATES OF AMERICA, Defendants. Case No. PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION AND REQUEST FOR EXPEDITED HEARING Plaintiff, International Relief and Development, Inc. and its affiliated entities ( IRD 1 files this Motion seeking a preliminary injunction to enjoin the enforcement and implementation 1 IRD consists of International Relief and Development, Inc., International Relief and Development US, Inc., International Relief and Development Holdings, Inc., IRD Solutions, LLC, and the International Relief and Development Global Solutions and International Relief and Development Global Institute, each of which has been indefinitely suspended from USAID contracting.
of a wrongful and illegal suspension notice issued by the Defendants on January 26, 2015 and continued in place by the Defendants on April 13, 2015 (collectively Suspension Decisions. The Suspension Decisions disqualify IRD from eligibility for the award of Federal Government contracts, grants and assistance agreements valued at hundreds of millions of dollars. The Suspension Decisions were arbitrary, capricious and an abuse of agency power and violated the Administrative Procedure Act, 5 U.S.C. 706et. seq. and applicable government regulations as is set forth in more detail in Plaintiffs Memorandum of Points and Authorities. It is critical that the Suspension Decisions be enjoined now to prevent, among other harm, IRD from being excluded from the entire FY 2016 government contracting cycle for which critical decisions about new awards are being made by the Defendants and other Federal Government agencies right now. Therefore, Plaintiffs request expedited consideration of the Motion and an expedited hearing pursuant to LCvR 65.1(d and Plaintiffs set forth the following facts in support of the request. 2 IRD is a non-profit, non-governmental organization that specializes in providing aid and relief programs in the most challenging and evolving international environments such as in Afghanistan, Syria and the Ukraine and IRD derives approximately 80% of its overall revenue from contracts, grants and assistance agreements funded by Defendant USAID and other Federal Government agencies. 3 The Suspension Notice had the immediate impact on January 26, 2015 to disqualify IRD from the award of new contracts, grants and assistance agreements with all Federal Government agencies, including Defendant USAID, and it has had other serious and lasting, debilitating effects on IRD s business. These debilitating effects include that the 2 See Declaration of Roger Ervin, attached as Exhibit 8 to the Memorandum of Points and Authorities in Support of Plaintiff s Motion for Preliminary Injunction ( Ervin Declaration. 3 Ervin Dec. 3, 4 and 56. 2
Defendant USAID has, in addition to disqualifying IRD from receiving new awards, facilitated the transfer of existing IRD business to IRD competitors instead of IRD retaining that business. IRD has also lost key employees, had its banking relationship terminated, and had its relationships with non-federal Government aid partners and donors impaired by the stigma of being suspended by the Federal Government. 4 IRD has spent in excess of $5 million of its own unrestricted funds seeking to challenge the Suspension Decisions, including by hiring third-party experts to evaluate the internal financial controls that the Defendants assert are inadequate, hiring third-party monitors to oversee IRD implementation of enhanced controls and best practices, and conducting a comprehensive financial review of IRD s past billing to Defendant USAID in response to the Suspension Decisions. 5 However, IRD remains suspended despite extensive and exhaustive efforts to overturn the suspension including through meetings, negotiations and the continued submission of relevant financial information as recently as last week. The impact of the Suspension Decisions is now in its most critical stage, making expedited consideration of this Motion necessary. Defendant USAID and other Federal Government agencies are currently in the bid review process for the fiscal year 2016 contract cycle and awards are being made by Defendant USAID and other Federal Government agencies between April August 15, 2015 for that contracting cycle. 6 IRD has already lost business opportunities for new grant and aid assistance awards by USAID and other Federal Government agencies and has been notified by those agencies in the past three weeks that it was not selected 4 Ervin Dec. 51-55, 57-58. 5 Ervin Dec. 61. 6 Ervin Dec. 64. 3
because of the suspension. 7 If the Suspension Decisions remain in effect, IRD will continue to be excluded from the award of contracts, grants and assistance agreements of at least $200 million on a daily basis because IRD is ineligible for the awards, in addition to IRD s loss of extensions on its existing aid agreements with Defendant USAID. This exclusion would very likely put IRD out of business. 8 The IRD suspension was imposed in response to political pressure on the Defendants for their failed oversight of humanitarian relief programs, was imposed in violation of procedural protections in place to protect contractors from suspension unless it is based on a careful consideration of all relevant evidence, and because the Defendants completely failed to establish, as is required by law, that there was an urgent need to suspend IRD in January 2015 and to continue that suspension in place in April 2015 to protect against imminent risk to the Federal Government. IRD has a substantial likelihood of success on the merits of its claims that the Suspension Decisions violate the APA and applicable regulations and IRD clearly has suffered and will continue to suffer substantial and debilitating, irreparable harm. The balance of the harm clearly favors granting the requested relief because the only claimed harm by the Defendants is hypothetical since they have not established any urgent risk to the United States. Finally, the public interest clearly favors issuance of the injunction. For the reasons set forth in the attached Memorandum of Points and Authorities, the Declarations of Roger Ervin and Olga Wall, and the supporting materials, IRD respectfully requests that the Court expeditiously consider the Motion, schedule a hearing and enter the 7 Ervin Dec. 65-66. 8 Ervin Dec. 51-52, 67. 4
Proposed Order enjoining Defendant USAID and all Federal Government agencies from enforcing, implementing and making any contracting or grant decisions in reliance upon the IRD Suspension and granting IRD the other requested relief. Dated: June 9, 2015 Respectfully submitted, Paul R. Monsees /s/ Paul R. Monsees DC Bar No. 367138 pmonsees@foley.com David T. Ralston, Jr. DC Bar No. 386874 dralston@foley.com Zachary L. Coffelt, DC Bar No. 1022918 zcoffelt@foley.com (Pro Hac Vice pending Foley & Lardner LLP Washington Harbour 3000 K Street, N.W. Suite 600 Washington, D.C. 20007-5109 202.672.5300 202.672.5399 Lisa M. Noller IL Bar No. 6229957 lnoller@foley.com Foley & Lardner LLP 321 N. Clark Street Suite 2800 Chicago, Illinois 60654 312.832.4500 312.832.4700 (Pro Hac Vice motion pending Attorneys for Plaintiffs 5
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