In the United States Court of Federal Claims
                                     No. 20-469C

                           (Filed Under Seal: July 23, 2020)
                       (Reissued for Publication: July 31, 2020) 1

************************************ *
                                      *
GOLDSCHMITT AND ASSOCIATES,           *
LLC,                                  *
                 Plaintiff,           *            Motion for Judgment on the
                                      *            Administrative Record; MJAR; RCFC
 v.                                   *            52.1; Bid Protest; Post-Award Bid
                                      *            Protest; Arbitrary and Capricious
THE UNITED STATES,                    *            Review; Deference; Rational Basis;
                  Defendant,          *            Prejudice; Permanent Injunction.
                                      *
and                                   *
                                      *
WITS SOLUTIONS, INC.,                 *
                 Intervenor-Defendant *
                                      *
************************************ *
Aron C. Beezley, with whom were Patrick R. Quigley, Lisa A. Markman, and Sarah S.
Osborne, Bradley Arant Boult Cummings LLP, Washington, D.C., for Plaintiff
Goldschmitt and Associates, LLC.

Tanya B. Koenig, Trial Attorney, with whom were Douglas K. Mickle, Assistant Director,
Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, Joseph H. Hunt,
Assistant Attorney General, Department of Justice, Ada Mitrani, Trial Attorney, and
Brighton Springer, Trial Attorney, U.S. Department of Energy, Washington, D.C., for
Defendant.



1
  The Court issued this decision under seal on July 23, 2020, and invited the parties to
submit proposed redactions of any proprietary, confidential, or otherwise protected
information on or before July 30, 2020. On July 31, 2020, the parties filed a notice
indicating that they had no redactions. Dkt. 31. Accordingly, this unredacted version of
the opinion is released to the public in its entirety.
David R. Warner, with whom were Barbara S. Kinosky, Heather B. Mims, and Tyler J.
Freiberger, Centre Law & Consulting, LLC, Vienna, VA, for Intervenor-Defendant WITS
Solutions, Inc.

                                 OPINION AND ORDER

WHEELER, Judge.

       This is a post-award bid protest in which Plaintiff Goldschmitt and Associates, LLC
challenges the United States Department of Energy’s decision to award a contract for
Freedom of Information Act (“FOIA”) support services to Intervenor-Defendant WITS
Solutions, Inc. Goldschmitt claims that DOE’s decision to award the contract to WITS
was irrational, inadequately documented, and contrary to the terms of the solicitation and
the applicable law. Now before the Court are Goldschmitt’s and the Government’s cross-
motions for judgment on the administrative record (“MJARs”) and Goldschmitt’s motion
for a permanent injunction. For the reasons that are explained below, Goldschmitt’s
motions are DENIED and the Government’s motion is GRANTED.

                                           Background

   I.      The Solicitation

       On December 18, 2018, DOE issued a request for proposals “soliciting offers for
Freedom of Information Act (FOIA) support services.” Administrative Record (“AR”) 70.
Specifically, DOE hoped to find a contractor to assist it with processing FOIA requests and
administering FOIA programs.

contractor to assist it in responding to
FOIA requests because it gets “a high volume” of them and “cannot process the[m] . . .
without outside assistance.” AR 52.

       The solicitation required offerors to submit three-volume proposals. AR 101.
Volume I was to contain “Offeror and Other Documents,” Volume II was the technical
proposal, and Volume III was the price proposal.

that the
offeror’s technical proposals should contain information addressing four criteria: the
offeror’s (Criterion 1) technical approach, (2) staffing approach, (3) relevant corporate
experience, and (4) past performance. AR 102. The solicitation further explained that
DOE intended “to award a single contract to the . . . Offeror whose proposal is responsive
to the solicitation and determined to be the best value and most advantageous to the
Government.” AR 111. The technical evaluation criteria—the four criteria in Volume II
of the offerors’ proposals—were “significantly more important” than price to DOE’s
assessment of the proposals.

criteria themselves:


                                               2
              Criterion 1 – Technical Approach [was] more important that
              [sic] all other criteria individually.
              Criterion 2 – Staffing Approach [was] the second most
              important criteria.
              Criterion 3 – Relevant Corporate Experience [was] the third
              most important criteria.
              Criterion 4 – Past Performance [was] the fourth most important
              criteria.

AR 111–12. Criteria 1–3 were to be evaluated “based on an adjectival rating of
Outstanding, Good, Adequate, Marginal, and Unacceptable.” AR 112. Criteria 4,
meanwhile, would be given a rating of “Favorable,” “Unfavorable,” or “Neutral.”

for reasonableness and completeness.

Goldschmitt challenges DOE’s evaluation of its and WITS’s
technical approach, relevant corporate experience, and past performance. Dkt. 24-1 at 13,
21, 26. Accordingly, further background on how DOE evaluated these three criteria will
prove helpful.

       With respect to Criterion 1, the technical approach, the solicitation explained that
offerors would be evaluated based on their demonstrated ability to perform the work
described in the solicitation’s Performance Work Statement (“PWS”). AR 112. The PWS
included three tasks: (1) FOIA program management support; (2) FOIA data collection and
decision analysis; and (3) FOIA strategic planning, performance management, and related
reporting. AR 131–34. The solicitation instructed offerors to use their proposals to
demonstrate their ability to perform the PWS tasks. AR 112. DOE said that it would
evaluate offerors “on the adequacy of staffing, timely scheduling, complete deliverables,
and cost control.”

assigned “significant strengths, strengths,
significant weaknesses, weaknesses, and deficiencies” based on the contents of their
proposals; these strengths and weaknesses would then be used to give each offeror a single
adjectival rating for this criterion.

corporate experience, evaluated the offeror’s and its
subcontractors’ relevant experience. AR 113. In both cases, the solicitation explained that
relevant experience was experience that was “similar in size, scope and complexity” to the
tasks described in the PWS.

size were defined as those with similar
“dollar value and contract duration.”

based on whether the type
of work performed in the previous contracts was similar to the work described in the PWS.

that the previous contracts posed similar “challenges and
risk” as the solicitation.

factors combined would lead to a single adjectival
rating for this criterion.



                                              3
        Finally, under Criterion 4, past performance, DOE evaluated offerors’ “performance
under existing and prior contracts that ha[d] been completed within the past three (3) years
for similar products or services.”

to provide three past
performance references that could speak to the offeror’s and any subcontractor’s
performance on contracts of similar size, scope, and complexity. AR 105. The solicitation
explained that DOE would review all reference information that it received and might
“solicit past performance information from any other available sources.” AR 113. This
information would be used to assign offerors a single adjectival rating for this criterion.

       Ultimately, the DOE ranked the top six of the fifteen proposals it received in
response to the solicitation; proposals were ranked “taking into account both price and non-
price factors.” AR 757; Dkt. 25 at 13–14. WITS had the top-ranked proposal and was
awarded the contract on January 31, 2020. AR 756–57, 760–61. Goldschmitt’s proposal
was ranked second. AR 760. In debriefing Goldschmitt, DOE used the following chart to
compare Goldschmitt’s and WITS’s technical and price ratings:

                                Goldschmitt                    WITS Solutions, Inc.
 Criterion 1                    Outstanding                    Outstanding
 Criterion 2                    Good                           Good
 Criterion 3                    Good                           Good
 Criterion 4                    Favorable                      Favorable
 Total Evaluated Price          $9,484,863.20                  $8,237,888.000

that Goldschmitt and WITS had similar proposals “in terms of
ratings for non-price factors,” so WITS got the contract because of the “significant savings”
of more than $1.2 million its proposal provided the Government. AR 760–61.

   II.    Procedural History

      Goldschmitt filed a bid protest at the Government Accountability Office on
February 10, 2020. AR 785. The GAO partially dismissed that protest on February 20,
2020 and denied the remainder of it on April 15, 2020. AR 889, 1047.

       Goldschmitt then filed its complaint in this Court on April 20, 2020. Dkt. 1. Shortly
afterwards, WITS intervened. See Dkt. 12. The Government filed the administrative
record on May 12, 2020. Dkt. 23. On May 26, 2020, Goldschmitt filed its motion for
judgment on the administrative record and motion for a permanent injunction. Dkt. 24.
The Government filed its cross-motion for judgment on the administrative record and
response to Goldschmitt’s motion on June 9, 2020. Dkt. 25. Goldschmitt filed its response
and reply on June 16, 2020. Dkt. 26. On June 23, 2020, the Government filed its reply.




                                             4
Dkt. 27. The cross-motions for judgment on the administrative record and Goldschmitt’s
motion for a permanent injunction are now fully briefed and ripe for decision. 2

                                          Analysis

    I.    Cross-Motions for Judgment on the Administrative Record

          A. Standard of Review

       The Tucker Act grants this Court subject-matter jurisdiction over bid protests. 28
U.S.C. § 1491(b)(1). In a bid protest, the Court reviews an agency’s decision pursuant to
the standards set out in the Administrative Procedure Act (“APA”). 28 U.S.C.
§ 1491(b)(4); 5 U.S.C. § 706. The APA provides that “a reviewing court shall set aside
the agency action if it is arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).

      An agency’s decision does not violate the APA if the agency “provided a coherent
and reasonable explanation of its exercise of discretion.” Impresa Construzioni Geom.
Domenico Garufi v. United States, 

, 1332–33 (Fed. Cir. 2001). Further, an
agency must articulate a “rational connection between the facts found and the choice
made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 

, 43 (1983) (citation omitted). The Court’s review is “highly deferential” to the
agency as long as the agency has rationally explained its award decision. Bannum, Inc. v.
United States, 

, 169–70 (2009).

        Even if the agency acted without a rational basis, the Court cannot grant relief unless
the agency’s action prejudiced the protestor. See

see also Data Gen. Corp. v.
Johnson, 

, 1562 (Fed. Cir. 1996). An erroneous agency action prejudices a
protestor if, but for the agency’s error, there was a “substantial chance” that the agency
would have awarded the contract to the protestor. Alfa Laval Separation, Inc. v. United
States, 

, 1367 (Fed. Cir. 1999) (internal citation omitted); see also 

.

          B. DOE Rationally Evaluated the Proposals

       In its motion for judgment on the administrative record, Goldschmitt argues that
DOE made three overarching errors in evaluating Goldschmitt’s and WITS’s proposals.
First, Goldschmitt claims that DOE irrationally evaluated Goldschmitt’s and WITS’s

2
  Although the Court explicitly included WITS in its order setting a briefing schedule in
this case, Dkt. 13 at 1, and although WITS filed applications for access to protected
material, e.g., Dkt. 20, WITS did not participate in the briefing or contribute at oral
argument.
                                              5
technical approaches. Next, Goldschmitt says that DOE irrationally and unequally
evaluated the portions of the proposals dealing with relevant corporate experience. Finally,
Goldschmitt argues that DOE’s evaluation of WITS’s past performance was irrational. The
Court is not persuaded by these arguments.


              1. Technical Approach

       Goldschmitt asserts that DOE irrationally deemed its and WITS’s technical
approaches “roughly equivalent in merit.” Dkt. 24-1 at 26. Both Goldschmitt and WITS
received a rating of “outstanding” for their technical approaches. AR 525–27, 633–34.
Goldschmitt’s rating was based on the agency’s determination that it had three “strengths”
and no “weaknesses”; WITS’s was based on its two “strengths” and no “weaknesses.” AR
526–27, 634. Goldschmitt argues that since it had three strengths to WITS’s two, DOE
was irrational in assigning them the same adjectival rating. Dkt. 24-1 at 29–30. Moreover,
Goldschmitt says it should have actually received four strengths, rather than three.

Finally, Goldschmitt claims that its proposal provided a greater benefit to DOE
than WITS’s proposal, and the two proposals should therefore not have received the same
adjectival rating.

None of these arguments is persuasive.

        Goldschmitt’s first objection is that it and WITS both received “outstanding” ratings
for their technical approaches, despite Goldschmitt having one more strength than WITS.
However, decisions about how to rate offerors’ technical approaches fall squarely within
an agency’s broad discretion. E.W. Bliss Co. v. United States, 

, 449 (Fed. Cir.
1996). Accordingly, this Court gives great deference to “evaluations of proposals for their
technical quality” by “an agency’s subject-matter experts.” RX Joint Venture, LLC v.
United States, 

, 213 (2019). The Court’s role is merely “to ensure that the
[agency] examined the relevant data and articulated a ‘rational connection between the
facts found and the choice made.’”

United States, 

, 441 (2001)). Here, offerors could receive “outstanding” ratings if their
“proposal demonstrate[d] a comprehensive understanding of the contract requirements and
a highly effective approach to perform the work that result[ed] in an extremely high
probability of successful contract performance with a likelihood that performance
expectations w[ould] be significantly exceeded.” AR 418. DOE determined that
Goldschmitt, with three strengths, and WITS, with two, both warranted this rating. AR
525–27, 633–34. Nothing in the AR indicates that this decision was irrational, so the Court
will defer to DOE’s assessment.

      Goldschmitt next argues that it should have received four strengths, rather than
three. Specifically, Goldschmitt says that its first strength, its understanding and
knowledge of FOIA procedures and its ability to help reduce agency backlog, should be
considered two strengths: a strength for “understanding and knowledge of FOIA
procedures” and a separate strength for “ability to help reduce agency backlog.” AR 526–
                                             6
27; see Dkt. 24-1 at 30. As the Government correctly observes in its MJAR, this kind of
agency decision is the type of “minutiae” this Court does not “second guess.” E.W. Bliss

. DOE’s judgment was that an understanding and knowledge of FOIA
procedures and an ability to help reduce FOIA backlog were part and parcel of the same
strength. This was a reasonable determination that the Court will not second guess. 3

       Lastly, Goldschmitt argues that DOE ascribed numerous benefits to its technical
approach, and only one to WITS’s approach. This contention flies in the face of the AR.
In discussing Goldschmitt’s technical approach, the agency discussed numerous benefits
that Goldschmitt could supply, such as enhancing FOIA processing and reducing
processing time and backlog. AR 527. DOE also ascribed numerous benefits to WITS’s
approach, such as knowledge of FOIA processing and ability to reduce processing time
and backlog. AR 633–34. Given the extensive overlap between the specific benefits DOE
ascribed to Goldschmitt’s and WITS’s proposals, its determination that they both merited
an “outstanding” rating for technical approach was eminently reasonable.

      DOE rationally evaluated Goldschmitt’s and WITS’s technical approaches.
Goldschmitt’s protest cannot be sustained on this basis.

             2. Relevant Corporate Experience

       In its MJAR and at oral argument, Goldschmitt repeatedly claimed that “[t]he errors
in the Agency’s evaluation” of the offerors’ relevant corporate experience “result[ed]
largely from its mechanical approach to the evaluation.” Dkt. 24-1 at 13. In support of its
assertion that a “mechanical” application of the solicitation criteria is a bad thing,
Goldschmitt cites Olympic Building Services, Inc., a GAO case. B-285351, 2000 CPD ¶
178, at *4, *6 (Comp. Gen. Aug. 17, 2000). It is true that in that case, the GAO criticized
the agency for, among other things, its “mechanical formula for scoring the experience
factor” outlined in the solicitation.

However, a broader reading of the GAO’s
opinion makes clear that it was not concerned with the agency’s wooden evaluation per se,
but rather with “the arbitrary and inflexible approach reflected by [its] mechanical
evaluation.”

The problem was not that the agency strictly followed the terms of
the solicitation, but that the terms themselves were arbitrary, and the agency strictly
followed them anyway. See

  Goldschmitt argues that these should be two strengths in part because the agency
separated them with the word “also.” Dkt. 24-1 at 30. But if the Court were persuaded by
this logic, then Goldschmitt’s first strength should actually have been three strengths,
because DOE noted that Goldschmitt “also clearly mapped out an approach that could
reasonably result in successful contract performance.” AR 527 (emphasis added).
Goldschmitt does not argue for this additional strength in its MJAR, which suggests that it
merely disagrees with DOE’s assessment, and does not actually believe that “also” signifies
an additional strength.
                                            7
        An agency can hardly be criticized for hewing closely to non-arbitrary solicitation
criteria. Indeed, it is desirable for agencies to do so. What Goldschmitt disparagingly
refers to as “mechanical” review helps ensure that contracts are not awarded for illicit
reasons and facilitates administrative and judicial review of the bid process. See Criterion
Sys., Inc. v. United States, 

, 415 (2019) (“[A]n agency’s strict adherence
to a deadline places all bidders on an equal footing and avoids the sorts of issues [plaintiff]
is seeking to raise here.”).

       In this case, neither the terms of the solicitation nor DOE’s evaluation of the
offerors’ proposals was arbitrary or capricious. In its MJAR, Goldschmitt identifies
“numerous errors” which it says “led to the irrational result of Goldschmitt and WITS each
receiving the same overall [corporate experience] rating.” Dkt. 24-1 at 13. These errors
were DOE’s alleged failure to rationally evaluate the offerors’ experience with contracts
of a similar size, DOE assigning Goldschmitt only a “strength” and not a “significant
strength” for a contract that was much larger than the one contemplated in the solicitation,
and DOE’s decision to assign two weaknesses to Goldschmitt for two corporate experience
references that the agency determined to be irrelevant.

In reality, DOE
“provided a coherent and reasonable explanation” for each of these decisions. 

.

        Goldschmitt first complains that DOE did not rationally evaluate the size of WITS’s
corporate experience references. The AR, however, does not bear out this contention. In
evaluating an offeror’s corporate experience references, DOE considered whether the
reference showed experience with contracts of a similar size, scope, and complexity as the
solicitation. AR 113. If a reference demonstrated all three of these factors, it was assigned
a “significant strength.” AR 529. If it demonstrated two out of the three factors, it received
a “strength” and if it demonstrated none of them, it was given a “weakness.” AR 528–29.
At the end of this analysis, Goldschmitt was assigned “1 Significant Strength, 3 Strengths,
[and] 2 Weaknesses.” AR 528. WITS received “no Significant Strengths, 5 Strengths,
[and] 1 Weakness.” AR 635. Both companies received a “good” adjectival rating for their
corporate experience based on these ratings. AR 528, 635, 760. Goldschmitt claims that
this was irrational, because DOE’s system for assigning strengths and weaknesses
“cover[ed] up” the fact that WITS had no experience with contracts of a similar size. Dkt.
24-1 at 16. But as the Government correctly notes, “WITS did not receive any significant
strengths precisely because the agency acknowledged that WITS’s past corporate
experience did not demonstrate contracts of a similar size.” Dkt. 25 at 24.

        The solicitation required that offerors demonstrate corporate experience that was
“similar in size, scope and complexity” to the tasks described in the PWS. AR 113. DOE
considered past experience references that did not demonstrate all three of these factors as
less relevant and rated them accordingly. See, e.g., AR 637–43. This was a reasonable
decision, and DOE extensively documented the manner in which it determined relevancy

                                              8
and assigned strengths and weaknesses. E.g.

that two
companies, one with one significant strength, three strengths, and two weaknesses, and the
other with five strengths and one weakness, both deserved a “good” adjectival rating was
reasonable and extensively documented. AR 528–35, 635–45. DOE’s evaluation of the
size of the offerors’ relevant corporate experience was rational.

        Goldschmitt next objects to DOE assigning it a “strength” and not a “significant
strength” for an experience reference for a contract nearly three times the size of the one
contemplated in the solicitation. The reference at issue was a five-year, $25 million
contract to assist the Department of the Interior in processing FOIA appeals. AR 533–34.
DOE determined that this reference was similar in scope and complexity to the
requirements of the PWS, “but not to size as neither the dollar value nor the duration were
similar.” AR 534. Goldschmitt claims this was irrational because of “the obvious fact”
that if it “could perform a larger and longer project, it could also perform the shorter and
smaller project.” Dkt. 24-1 at 17. As the Government correctly asserts in its MJAR,
though, an agency’s determination of what past experience qualifies as relevant past
experience is owed deference because it is a decision that falls squarely within the agency’s
considered discretion. See Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 

, 911 (Fed. Cir. 2013); PlanetSpace, Inc. v. United States, 

, 539 (2010).
DOE’s assessment that the Department of the Interior contract was for a longer time period
and much larger dollar amount is undisputed, and it was within its discretion to decide that
these differences made the contract less relevant as a reference.

       Finally, Goldschmitt argues that DOE irrationally assigned it two weaknesses for
corporate experience references that it deemed irrelevant. Since these references were
irrelevant, Goldschmitt says, they cannot be weaknesses, because they do not increase the
chances that Goldschmitt would be unable to perform the contract. Dkt. 24-1 at 17–18.
Goldschmitt is correct that DOE defined a weakness as “A flaw in the proposal that
increases the risk of unsuccessful contract performance.” AR 416. But DOE’s
determination that submitting irrelevant references was a weakness was reasonable. An
offeror that submitted irrelevant corporate experience references could be seen as having
misinterpreted the size, scope, or complexity of the solicitation, which surely increases the
chances that it would be unable to perform the contract. See AR 534–35.

        Moreover, even if Goldschmitt could show that DOE was irrational in assigning it
weaknesses for irrelevant references, it cannot show that it was prejudiced by DOE’s
decision. This is because WITS also received a weakness for an irrelevant reference. AR
645. If Goldschmitt’s irrelevant references were not weaknesses, then neither was WITS’s.
In that case, Goldschmitt would have had one significant strength and three strengths, and
WITS would have had five strengths. DOE could reasonably have given both companies
the same adjectival rating, leaving Goldschmitt no better off despite the removal of the two
weaknesses.


                                             9
       At base, Goldschmitt simply disagrees with DOE’s decisions about its and WITS’s
relevant corporate experience. However, those decisions were reasonable, and cannot
serve as a basis for sustaining Goldschmitt’s protest.

              3. Past Performance

        Finally, Goldschmitt argues that DOE unreasonably rated WITS’s past performance
as “favorable” given that WITS had not performed contracts of a similar size within the
last three years. Dkt. 24-1 at 22–23. The solicitation said that past performance would be
evaluated based on the offerors’ “performance under existing and prior contracts that ha[d]
been completed within the past three (3) years for similar products or services.” AR 113.
In the solicitation’s instructions, DOE explained that in evaluating this criterion, it would
“focus on information that demonstrates both quality and success of performance relative
to the scope, size, complexity and duration to the work described in the PWS.” AR 105.
Goldschmitt claims that “[t]aken together,” these two sections of the solicitation “clearly
stated” that DOE considered size to be a crucial element of past performance. Dkt. 24-1 at
22. Because WITS did not have experience with contracts the same size as the solicitation,
Goldschmitt says, it has no past performance experience.

solicitation made clear that in evaluating past performance, the DOE
was not looking for a one-to-one fit between an offeror’s prior contracts and the
solicitation. All that was required was “similar” experience. AR 113. The instructions
section of the solicitation merely advised offerors that factors such as size, scope, and
complexity would be important to the DOE’s analysis of whether their past performance
was similar to the requirements of the solicitation. See AR 105. The instructions, however,
do not create an additional, hardline requirement that does not appear in the “Basis for
Award” section of the solicitation.

       DOE was well aware that WITS had not performed contracts of a similar size in the
past three years. AR 645–54. Nonetheless, it found that WITS was entitled to a
“favorable” past performance rating because it had performed contracts of similar scope
and complexity. See AR 645–47. In DOE’s view, this was enough to demonstrate that
WITS had past experiences similar to the requirements of the solicitation. See

described above in the Relevant Corporate Experience section, it was reasonable
for DOE to determine that past performance of contracts of similar scope and complexity,
but not size, was enough to satisfy the requirement that an offeror have experiences similar
to the requirements of the solicitation. Therefore, the Court will defer to the agency’s
judgment.

                                            ***

     DOE’s evaluation of each of the technical factors was reasonable and well-
documented. The agency ended up with proposals from Goldschmitt and WITS that it
                                             10
reasonably determined to be technically equivalent. Based on this determination, it
awarded the contract to WITS, because WITS’s proposal cost the taxpayer $1.2 million
less than Goldschmitt’s did. This decision was neither arbitrary nor capricious. For these
reasons, Goldschmitt’s MJAR is DENIED and the Government’s MJAR is GRANTED.

   II.      Goldschmitt’s Motion for a Permanent Injunction

         A. Standard of Review

        Under its bid protest jurisdiction, the Court has the power to issue an injunction
pursuant to 28 U.S.C. § 1491(b). See PGBA, LLC v. United States, 

, 1223
(Fed. Cir. 2004) (“We give deference to the Court of Federal Claims’ decision to grant or
deny injunctive relief, only disturbing the court’s decision if it abused its discretion.”). In
deciding whether to grant a permanent injunction, a court considers (1) whether the
plaintiff has succeeded on the merits; (2) whether the plaintiff will suffer irreparable harm
without an injunction; (3) whether the balance of the hardships favors an injunction; and
(4) whether an injunction is in the public interest.

(citation omitted).

         B. Goldschmitt Is Not Entitled to a Permanent Injunction

       Because Goldschmitt has not succeeded on the merits of its complaint, the Court
finds no legally compelling reason to issue an injunction. Goldschmitt’s motion for a
permanent injunction is DENIED.

                                         Conclusion

       For these reasons, Goldschmitt’s MJAR and motion for a permanent injunction are
DENIED, and the Government’s MJAR is GRANTED. The Clerk of the Court is directed
to enter judgment in favor of the Government and WITS. No costs.

         IT IS SO ORDERED.

                                                          s/ Thomas C. Wheeler
                                                          THOMAS C. WHEELER
                                                          Judge




                                              11