Continental Service Group, Inc. v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CONTINENTAL SERVICE GROUP, INC.,
Plaintiff-Appellee
PIONEER CREDIT RECOVERY, INC.,
Plaintiff-Appellant
COLLECTION TECHNOLOGY, INC.,
Intervenor-Plaintiff
PROGRESSIVE FINANCIAL SERVICES,INC.,
Intervenor-Plaintiff-Appellee
ALLTRAN EDUCATION, INC.,
Intervenor-Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellant
CBE GROUP, INC., PREMIERE CREDIT OF
NORTH AMERICA, LLC, GC SERVICES LIMITED
PARTNERSHIP, FMS INVESTMENT CORP.,
VALUE RECOVERY HOLDINGS, LLC, WINDHAM
PROFESSIONALS, INC., AUTOMATED
COLLECTION SERVICES, INC.,
Intervenor-Defendants
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - -

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 2
ACCOUNT CONTROL TECHNOLOGY, INC.,
Plaintiff
v.
UNITED STATES,
Defendant-Appellant
PREMIERE CREDIT OF NORTH AMERICA, LLC,
GC SERVICES LIMITED PARTNERSHIP, FMS
INVESTMENT CORP., VALUE RECOVERY
HOLDINGS, LLC, CBE GROUP, INC., AUTOMATED
COLLECTION SERVICES, INC., WINDHAM
PROFESSIONALS, INC., TEXAS GUARANTEED
STUDENT LOAN CORP.,
Intervenor-Defendants
ALLTRAN EDUCATION, INC.,
Intervenor-Defendant-Appellant
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
ALLTRAN EDUCATION, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellant
PREMIERE CREDIT OF NORTH AMERICA, LLC,
GC SERVICES LIMITED PARTNERSHIP, FMS
INVESTMENT CORP., CBE GROUP, INC., VALUE
RECOVERY HOLDINGS, LLC, WINDHAM
PROFESSIONALS, INC.,
Intervenor-Defendants
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 3
- - - - - - - - - - - - - - - - -
PROGRESSIVE FINANCIAL SERVICES, INC.,
Plaintiff-Appellee
PERFORMANT RECOVERY, INC., COLLECTION
TECHNOLOGY, INC., VAN RU CREDIT
CORPORATION, ALLIED INTERSTATE LLC,
Intervenor-Plaintiffs
v.
UNITED STATES,
Defendant-Appellant
PREMIERE CREDIT OF NORTH AMERICA, LLC,
GC SERVICES LIMITED PARTNERSHIP,
Intervenor-Defendants
ALLTRAN EDUCATION, INC.,
Intervenor-Defendant-Appellant
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
COLLECTION TECHNOLOGY, INC.,
Plaintiff
PROGRESSIVE FINANCIAL SERVICES, INC.,
Intervenor-Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
CBE GROUP, INC., PREMIERE CREDIT OF
NORTH AMERICA, LLC,
Intervenor-Defendants

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 4
ALLTRAN EDUCATION, INC.,
Intervenor-Defendant-Appellant
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
VAN RU CREDIT CORPORATION,
Plaintiff
PROGRESSIVE FINANCIAL SERVICES, INC.,
Intervenor-Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
PREMIERE CREDIT OF NORTH AMERICA, LLC,
Intervenor-Defendant
ALLTRAN EDUCATION, INC.,
Intervenor-Defendant-Appellant
______________________
2017-2155, 2017-2156, 2017-2157, 2017-2158, 2017-2159,
2017-2160, 2017-2210, 2017-2212, 2017-2214, 2017-2215,
2017-2216, 2017-2221, 2017-2342
______________________
Appeals from the United States Court of Federal
Claims in Nos. 1:17-cv-00449-SGB, 1:17-cv-00493-SGB,
1:17-cv-00499-SGB, 1:17-cv-00517-SGB, 1:17-cv-00558-
SGB, 1:17-cv-00578-SGB, 1:17-cv-00633-SGB, Chief
Judge Susan G. Braden.
______________________
Decided: January 12, 2018
______________________

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 5
ROBERT J OSEPH SNECKENBERG, Crowell & Moring,
LLP, Washington, DC, argued for Alltran Education, Inc.
Also represented by D ANIEL RUBEN F ORMAN, J AMES G.
P EYSTER .
STEVEN MICHAEL MAGER, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for United States. Also
represented by CHAD A. READLER , ROBERT E. K IRSCHMAN,
J R., P ATRICIA M. MC CARTHY , L AUREN M OORE; SHERYL L.
F LOYD, Appellate Staff, Civil Division, United States
Department of Justice, Washington, DC.
J ONATHAN D AVID SHAFFER, Smith, Pachter, McWhort-
er, PLC, Vienna, VA, argued for Pioneer Credit Recovery,
Inc. Also represented by MARY P AT BUCKENMEYER .
T ODD J OHN CANNI, Pillsbury Winthrop Shaw Pittman
LLP, Los Angeles, CA, argued for Continental Service
Group, Inc. Also represented by J AMES MATTHEW CARTER,
RICHARD O LIVER , AARON RALPH ; MEGHAN D UNN D OHERTY ,
ALEXANDER BREWER G INSBERG, McLean, VA.
T HOMAS ANDREW C OULTER, LeClair Ryan, Richmond,
VA, argued for Progressive Financial Services, Inc.
N ANDAN M. J OSHI, Consumer Financial Protection
Bureau, Washington, DC, for amicus curiae Consumer
Financial Protection Bureau.
REBECCA ELIZABETH P EARSON, Venable LLP, Wash-
ington, DC, for amicus curiae F.H. Cann & Associates,
Inc. Also represented by MITCHELL Y. MIRVISS , Baltimore,
MD.
MEGAN CAREY C ONNOR, Piliero Mazza PLLC, Wash-
ington, DC, for amicus curiae Coast Professional, Inc.

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 6
Also represented by P AMELA J O MAZZA, J ULIA D IANE D I
VITO.
______________________
Before D YK, REYNA, and T ARANTO, Circuit Judges.
D YK, Circuit Judge.
Alltran Education Inc. (“Alltran”), Pioneer Credit Re-
covery, Inc. (“Pioneer”), and the United States appeal the
Court of Federal Claims’ May 31, 2017, preliminary
injunction order, which stemmed from bid protests of
student loan collection contracts awarded under Solicita-
tion No. ED-FSA-16-R-0009 (“the Solicitation”).1 Part 1 of
the order enjoins the Department of Education (”Educa-
tion”) from “authorizing the purported awardees to per-
form on the contract award under Solicitation No. ED-
FSA-16-R-0009.” Part 2 of those orders enjoins Education
from “transferring work to be performed under the con-
tract at issue in this case to other contracting vehicles to
circumvent or moot this bid protest.” We affirm as to Part
1 of the orders and reverse as to Part 2.
BACKGROUND
Since 1981, Education has contracted with private col-
lection agencies (“PCAs”) to collect and rehabilitate stu-
dent loans that have entered into default. These contracts
are of various types, including (1) small business set aside
1 Identical preliminary injunction orders were is-
sued in each of six cases before the Claims Court related
to the contracts awarded under the Solicitation. The
Claims Court consolidated these six cases on September
5. See Cont’l Serv. Grp., Inc. v. United States, No. 17-449
(Fed. Cl.), Dkt. 186 (“Cont. Serv. Grp. I”). For convenience,
we refer to those cases and preliminary injunctions in the
singular.

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 7
contracts, (2) unrestricted contracts awardable to large
businesses, and (3) award-term extension task orders
(“ATEs”) awarded to PCAs demonstrating excellent or
better quality performance under existing contracts after
the base period and options have been exercised. This
case involves bid protests challenging seven large busi-
ness contracts awarded in December 2016 under the
Solicitation (“the 2016 awards”).
After Education made the 2016 awards, 22 disap-
pointed offerors—including appellants Alltran and Pio-
neer, and appellees Continental Service Group, Inc.
(“Continental”) and Progressive Financial Services, Inc.
(“Progressive”)—filed bid protests with the United States
Government Accountability Office (“GAO”). Pursuant to
the Competition in Contracting Act (“CICA”), the GAO
protests triggered an automatic stay of performance of the
awarded contracts. See 31 U.S.C. § 3553(d).
On March 27, 2017, GAO issued a decision sustaining
thirteen of the protests, including Progressive’s, and
denying four others, including Alltran’s. In its decision,
GAO recommended that Education take corrective action
to remedy errors in the bid evaluations. But GAO deci-
sions are not binding, and Education retained the “re-
sponsibility to fully and independently evaluate all
recommendations given by the GAO.” IMS Servs., Inc. v.
United States, 33 Fed. Cl. 167, 184 (1995).
The next day, March 28, Continental withdrew its
protest at GAO and filed a new protest at the Claims
Court. Continental's complaint alleged that Education’s
consideration of Continental’s proposal—and its ultimate
determination that Continental was non-responsible and
ineligible for award—violated the Solicitation and the
Federal Acquisition Regulation. Additionally, Count VII
of Continental’s complaint, which sought injunctive relief,
alleged that Education was “diluting” the work that would

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 8
ultimately be performed under the 2016 large business
contract awards by continuing to assign accounts to the
small business contractors during the pendency of the
CICA stay. Continental also filed a motion requesting
that the Claims Court issue a temporary restraining order
(“TRO”) and preliminary injunction to limit Education’s
authority to assign accounts during the pendency of the
bid protest.
The other private parties to this appeal also filed
complaints in the Claims Court. These parties had some-
what divergent interests. First, several unsuccessful
offerors whose protests had been denied or dismissed by
GAO (including appellants Pioneer and Alltran) filed
complaints challenging various aspects of the 2016 pro-
curement. Unlike Continental, they did not allege that
Education was “diluting” the 2016 awards. Additionally,
appellee Progressive, having filed a successful GAO
protest, sought to restrain Education from recalling
accounts that it had received under its earlier (2009)
contract, that had expired on April 21. Progressive argued
that any recall of accounts from the expired 2009 contract
during the corrective action would be improper because,
had it received a new contract while its 2009 contract was
still active, accounts from its old contract would have been
retained as part of its new contract. Recalling the ac-
counts before completion of corrective action would,
Progressive alleged, preclude that retention.
On March 29, 2017, the day after Continental filed its
complaint, the Claims Court issued a two-part temporary
restraining order (“TRO”) enjoining Education from:
(1) authorizing the purported awardees to per-
form on the contract award under Solicitation
No. ED-FSA-16-R-0009 . . . ; and
(2) transferring work to be performed under the
contract at issue in this case to other contract-

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 9
ing vehicles to circumvent or moot this bid pro-
test . . . .
J.A. 100142. Part 2 of the order went beyond the TRO
requested by Continental and effectively barred Educa-
tion from making account placements under any of its
active collection contracts, including contracts issued in
2014 under a small business set aside (“small business
contracts”) and award-term extension task orders issued
in 2015 to the top-performing PCAs with 2009 contracts
(“2015 ATEs”), including Continental.2 Later versions of
the order had the effect of barring account placements
under additional ATEs (“2017 ATEs”) awarded to Pioneer
and Alltran on April 28 and May 1, 2017, respectively,
which followed from an opinion of this court holding that
the Claims Court had erred in dismissing protests related
to the failure to award ATEs. Coast Prof'l, Inc. v. United
States, Fin. Mgmt. Sys., Inc., 828 F.3d 1349, 1357 (Fed.
Cir. 2016). Part 2 also barred Education from recalling
accounts assigned to the 2009 contracts after those con-
tracts expired on April 21.
In its March 29 TRO, the Claims Court provided a
brief analysis of the four preliminary injunction factors,
stating:
Regarding the first factor, the court has deter-
mined that Continental Services would be imme-
diately and irreparably injured, if [Education]
moved forward with performance on the contract
at issue in this case, or otherwise transferred
work to another contracting vehicle to circumvent
or moot this bid protest.
2 While the order only barred transferring work “to
circumvent or moot the bid protest,” all parties appear to
agree that the order effectively barred all transfers.

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 10
Regarding the second factor, since the Govern-
ment has not yet produced the Administrative
Record and the parties have not had an oppor-
tunity to brief the merits of this bid protest, the
court is not in a position to decide Continental
Services’ likelihood of success.
Regarding the third factor, the public interest is
served by open and fair competition in public pro-
curement and preserving the integrity of the com-
petitive process.
Regarding the fourth factor, the balance of hard-
ships weighs in favor of Continental Services.
Courts have generally recognized that any harm
to the Government caused by delay in perfor-
mance is generally less significant than the harm
caused to the bid protestor.
J.A. 100141–142 (internal citations omitted). The Claims
Court ultimately extended the TRO twice. J.A. 100659,
101026.
On April 3, the United States notified the Claims
Court that Education had voluntarily stayed performance
of the 2016 awards and would continue do so pending the
court’s resolution of the bid protest litigation.
On May 2, the court issued a preliminary injunction
to last until May 22 with the same scope as the initial
TRO. The court’s primary motivation appeared to be that
assigning accounts under the earlier contracts would
harm protestors by “diluting” the number of accounts
available to be assigned pursuant to any corrective action.
The court also suggested that a broad preliminary injunc-
tion would pressure Education to negotiate a resolution of
the bid protests. The order’s discussion of the four prelim-
inary injunction factors largely mirrored the analysis in
the initial TRO. Additionally, the court granted the gov-

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 11
ernment’s motion to dismiss Count VII of Continental’s
complaint—which challenged Education’s continued
assignment of accounts under small business contracts
during the pendency of the GAO protest—as a contract
administration claim subject to the Contract Disputes Act
(“CDA”) over which the Claims Court had no bid protest
jurisdiction. See 41 U.S.C. § 7103. The Claims Court’s
dismissal of Count VII is not challenged on appeal.
On May 19, the government filed a Notice of Correc-
tive Action. In that notice, Education committed to
amending the solicitation, inviting revised offers, and
reevaluating all of the proposals. The government stated
that it would terminate the 2016 awards for convenience,
if necessary, as part of the corrective action.
At the May 22 hearing, the court indicated that the
dilution argument might not support the preliminary
injunction. J.A. 101875 (“[E]very month there are new
accounts that come up because people are in default. So
there’s new work that will be coming down the road. And
I think that kind of . . . offsets the concern about the
dilution business. . . . So I won’t . . . keep the injunction
for that purpose.”) The court expressed concern, however,
that it would be unfair to recall accounts from the protes-
tors whose 2009 contracts had expired in late April.
Ultimately, the Claims Court continued the preliminary
injunction until June 1, and on May 31, the Claims Court
issued an order continuing the preliminary injunction
“until the viability of the debt collection contracts at issue
is resolved.” J.A. 000002. In so doing, the court relied on
various extra-record materials that suggested to the court
a lack of harm to “student debtors and the public fisc.” Id.
It appears that the court was again motivated by the idea
of “dilution.” See Cont’l Serv. Grp. I, 2017 WL 4926842, at
*11.

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 12
On June 14, 2017, the Claims Court denied the gov-
ernment’s motions to dismiss the Continental and Pioneer
complaints as moot in light of Education’s decision to take
corrective action.
In June, Alltran and the United States sought a stay
of the preliminary injunction pending appeal. The Claims
Court did not rule on those motions. Alltran and the
United States then moved for a stay in this court. On July
18, we determined to “hold the motions to stay in abey-
ance pending the Court of Federal Claims’ decision” on its
own motions for stay pending appeal. Cont’l Serv. Grp.,
Inc. v. United States, No. 2017-2155 (Fed. Cir.), Dkt. 122
(“Cont’l Serv. Grp. II”). Following our July 18 order,
however, the Claims Court took no action on the pending
stay motions. On October 27, we directed the parties to
“inquire of the Court of Federal Claims when a ruling on
the stay motions can be expected and [to] file a status
report with this court promptly thereafter setting forth
that information.” Cont’l Serv. Grp. II, Dkt. 258. The
Claims Court then denied the stay motions on October 31.
Cont’l Serv. Grp. I, 2017 WL 4926842, at *11.
On December 8, we heard oral argument in this case.
Later that day, we issued an order granting appellants’
request for a stay pending appeal as to Part 2 of the
preliminary injunction and denying the request as to Part
1. On December 12, the Claims Court ordered Education
to complete the corrective action by January 11, 2018.
Cont’l Serv. Grp. I, Dkt. 215. We have jurisdiction over
this appeal pursuant to 28 U.S.C. § 1292(c)(1).
D ISCUSSION
“A preliminary injunction is an extraordinary remedy
never awarded as of right.” Winter v. Nat. Res. Def. Coun-
cil, Inc., 555 U.S. 7, 24 (2008). The party seeking a prelim-
inary injunction must establish that “[1] he is likely to
succeed on the merits, [2] that he is likely to suffer irrepa-

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 13
rable harm in the absence of preliminary relief, [3] that
the balance of equities tips in his favor, and [4] that an
injunction is in the public interest.” Id. at 20.
The grant or denial of a preliminary injunction is
within the sound discretion of the trial court. Mylan
Institutional LLC v. Aurobindo Pharma Ltd., 857 F.3d
858, 865 (Fed. Cir. 2017). This court will only reverse a
decision granting a preliminary injunction where the
lower court “made a clear error of judgment in weighing
relevant factors or exercised its discretion based upon an
error of law or clearly erroneous factual findings.” Novo
Nordisk of N. Am., Inc. v. Genentech, Inc., 77 F.3d 1364,
1367 (Fed. Cir. 1996).
Part 1 of the Preliminary Injunction
We first consider Part 1 of the injunction, which en-
joins Education from “authorizing the purported awardees
to perform on the contract award under Solicitation No.
ED-FSA-16-R-0009.” The government argues that the
Claims Court had no jurisdiction to grant injunctive relief
because Education’s May 19 decision to take corrective
action rendered the protestors’ original challenges to the
2016 awards moot. But the mere decision to take correc-
tive action does not necessarily moot a bid protest.
The Supreme Court has recognized that a controversy
does not become moot after the defendant voluntarily
ceases the challenged practice unless “interim relief or
events have completely and irrevocably eradicated the
effects of the alleged violation.” Chapman Law Firm Co.
v. Greenleaf Const. Co., 490 F.3d 934, 939 (Fed. Cir. 2007)
(citing County of L.A. v. Davis, 440 U.S. 625, 631 (1979)).
This is not such a case.
This case is unlike Chapman Law Firm, on which the
government relies. There, “the Court of Federal Claims
had already determined that the revised corrective action

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 14
was reasonable” and that there was “no reasonable expec-
tation that the action would recur.” Id. at 940. Additional-
ly, the Claims Court’s sole reason for not dismissing the
case as moot had been to preserve a claim for attorney’s
fees—a rationale we found insufficient under Supreme
Court precedent, id. at 939. Here, we have no sufficient
basis to conclude what was undisputed in Chapman: that
“there clearly is no reasonable expectation that the al-
leged violation will recur” and that “interim relief or
events have completely and irrevocably eradicated the
effects of the alleged violation.” Id. at 940 (internal quota-
tion marks omitted).
The United States and Alltran also argue that the
Claims Court did not make sufficient findings to support
Part 1. We do not think that the abbreviated nature of the
findings justifies setting aside the preliminary injunction
in the circumstances of this case—particularly given that
GAO identified problems with the procurement that
resulted in the 2016 awards, the government conceded the
need to take corrective action, and the government itself
suspended implementation of the 2016 awards but did not
terminate them. We affirm Part 1 of the preliminary
injunction.
Part 2 of the Preliminary Injunction
Part 2 of the preliminary injunction bars Education
from “transferring work to be performed under the con-
tract at issue in this case to other contracting vehicles to
circumvent or moot this bid protest.” This prevented
Education from assigning new accounts under any of its
valid contracts—including the small business contracts,
the 2015 ATEs, and the 2017 ATEs.3 It also barred Edu-
3 On May 22, 2017, Continental filed a second com-
plaint at the Court of Federal Claims protesting the
award of 2017 ATEs to Alltran and Pioneer. On December

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 15
cation from recalling accounts from the 2009 contracts
after those contracts expired on April 21, 2017.
“The function of preliminary injunctive relief is to
preserve the status quo pending a determination of the
action on the merits.” Litton Sys., Inc. v. Sundstrand
Corp., 750 F.2d 952, 961 (Fed. Cir. 1984); see also 11A
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 2948 (3d ed. 1998) (“It often has been
observed that the purpose of the preliminary injunction is
the preservation of the status quo and that an injunction
may not issue if it would disturb the status quo.”). The
Claims Court, citing Litton, characterizes Part 2 of the
injunction as doing just that: “preserv[ing] the status quo
until the viability of the debt collection contracts at issue
is resolved.” J.A. 000002. As we explained in Litton,
however, the "status quo to be preserved is that state of
affairs existing immediately before the filing of the litiga-
tion, the last uncontested status which preceded the
pending controversy." 750 F.2d at 961. When this litiga-
tion began, Education was free to assign accounts to any
of its valid contracts and to recall accounts from contrac-
tors with expired contracts. Part 2 appears to alter, not
preserve, this pre-litigation status quo. Part 2 mandated a
complete cessation of account assignment and recall. In so
doing, it impeded Education’s ability to fulfill its statutory
obligations to collect on student loans and to assist bor-
rowers in repaying and rehabilitating loans.
Continental nonetheless argues that Part 2 of the in-
junction actually maintains the status quo by preventing
Education from assigning accounts to other valid con-
4, 2017, the Claims Court entered a judgment dismissing
Continental’s suit for lack of standing. Cont’l Serv. Grp. V.
United States, No. 27-664, 2017 WL 5988050, at *10 (Fed.
Cl. Dec. 4, 2017), appeal docketed, No. 18-1287 (Fed. Cir.).

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 16
tracts and thereby “diluting” the value of the protested
awards. This appears to be a different justification for a
preliminary injunction based not on preservation of the
status quo, but rather on preservation of the Claims
Court’s ability to afford meaningful relief—itself a possi-
ble justification for a preliminary injunction. See 11A
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 2948 (3d ed. 1998) (“There are cases in
which it is necessary to require defendant to disturb the
status quo by undoing acts completed before the injunc-
tion issues, or by acting affirmatively, in order to preserve
the power of the court to render a meaningful decision.”).
To be sure, “dilution” may be a valid concern in some
contexts. If a government agency awarded a contract to
build a particular building and then disappointed offerors
protested that award, agency action authorizing construc-
tion of the building under a different contract might in
some circumstances be interpreted as an attempt to
“dilute” the value of the protested award and might
support a preliminary injunction halting further perfor-
mance of that work to preserve the court’s ability to afford
meaningful relief. But “dilution” is not a legitimate con-
cern where, as here, the protested contracts do not entitle
awardees to perform the work in question—at least in the
absence of a showing that the government is acting in bad
faith (e.g. assigning accounts for the purpose of evading
the effects of corrective action).
Education’s contracting environment involves multi-
ple sets of indefinite delivery, indefinite quantity (“IDIQ”)
contracts all servicing the same large and continually
expanding pool of defaulted accounts. These IDIQ con-
tracts, including the protested 2016 awards, simply
entitle a PCA to receive accounts for a certain period of
time. During that time period each contractor is guaran-
teed a minimum volume of work—$1,000 worth under the
protested awards—but Education is otherwise entitled to

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 17
assign work (or not) as it wishes. The record is clear that
Education does not “reserve pools of accounts for a partic-
ular contractor or set of contracts” and that “there is no
work ‘designated’ for any of the multiple [IDIQ] contracts
performing student loan account collection work.” J.A.
100170-100171 (Queen-Harper Decl., ¶¶ 9, 11.). Moreover,
student loan borrowers continue to default at alarming
rates (over 100,000 defaults each month according to
Education estimates and historical data), so the pool of
collections work is continuously expanding.
In this context, the government’s decision to take cor-
rective action cannot in and of itself justify Part 2 of the
injunction: the period of time that the future awardees
will have to receive accounts is not diminished by allow-
ing other contractors to receive accounts while this pro-
test is pending, and no one suggests that, absent an
injunction, Education could not meet its obligation to
provide $1,000 of work to the eventual awardees. Put
differently, a preliminary injunction does not maintain
the status quo or affect the court’s ability to afford mean-
ingful relief by stockpiling work that movants had no
right to perform in the first place. See Atlas Powder Co. v.
Ireco Chems., 773 F.2d 1230, 1232 (Fed. Cir. 1985).
Significantly also, there is no evidence that Education
has done anything in bad faith with the purpose of “dilut-
ing” the protested awards. Continental’s dilution theory
turns on the idea that Education impermissibly “siphoned
off” work that would have gone to the 2016 awardees by
continuing to assign accounts to small business contracts
during the pendency of the GAO bid protest but before the
Claims Court’s TRO issued. Continental argues that
doing so “diluted” the 2016 awards and “undermined” the
CICA stay—and that “[Education’s] history of ignoring
the CICA stay evidenced a need for the [Claims Court] to
enjoin [Education] from further siphoning the accounts
that were destined for the protested contracts.” Continen-

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 18
tal Br. 13. But, as discussed, the protested contracts did
not entitle the eventual awardees to any additional ac-
counts. Moreover, Education’s behavior in no way under-
mined CICA, which prohibits putative awardees from
receiving work under protested awards but does not
require agencies to stay performance of other, lawful
contracts. See 31 U.S.C. § 3553(d). And, as the govern-
ment had an interest in continuing to service defaulted
accounts, the mere fact that Education continued to
assign accounts to small businesses during the GAO
protest is not evidence of bad faith.
Finally, in terms of the balance of hardships, we find
that the preliminary injunction interferes with Educa-
tion’s interest (indeed, its statutory obligation) to collect
on defaulted student loans and to assist delinquent bor-
rowers in repaying and rehabilitating their loans. See 20
U.S.C. § 1078-6(a); 31 U.S.C. § 3711(a)(1); 31 C.F.R. §
901.1. It inflicts injury on PCAs with existing contracts
and borrowers in default as well. Declarations before the
Claims Court made clear that, by the end of June, the
United States would lose over $2.4 million in collections,
and over a quarter million borrowers in default would be
denied PCA services. United States Br. 56. The scale of
that loss has only multiplied in the months since, as
borrowers continue to default on their loans, and Educa-
tion remains unable to assign new collections work.
Setting aside the dilution theory, Progressive argues
that Part 2 is still valid insofar as it prevents Education
from recalling accounts from Progressive’s expired 2009
contract. This account recall, the court explained in its
May 22 order, would “appear unfair” because “but-for
[Education’s] alleged errors during the procurement
process, Progressive . . . might have received contracts on
December 9, 2016, under which they could continue to
service their prior accounts.” J.A. 000108. This entire
theory of harm is speculative, as it is far from clear that

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 19
Progressive would have received an award in December
absent errors; that Progressive would eventually receive
an award as part of the corrective action; or that, if Pro-
gressive did receive an award, it could retain its accounts.
Any claimed unfairness relies on the notion that, had
Progressive received a new contract while the old one was
still active, it would have been entitled to retain its old
accounts. That is not the case. The disputed 2016 con-
tracts, like the 2009 contracts before them, use permissive
language that allows Education to transfer accounts to a
new contract, but does not entitle PCAs to retain accounts
when their old contracts expire. And, again, there is no
evidence that the government acted in bad faith.
The only other rationale for Part 2—one repeatedly
expressed by the Claims Court—is that a broad injunction
would force Education to negotiate or spur the agency to
quickly complete corrective action. See J.A. 101416 (“The
Court: [A]ll I can do in this bid protest is . . . enjoin things
to try to get enough people in pain to get a resolution.”).
But a preliminary injunction may not be used to disad-
vantage the government’s legitimate use of other con-
tracts in order to encourage prompt corrective action.
Rather, the appropriate mechanism to deal with Educa-
tion’s apparent lack of urgency would be to order the
agency to complete corrective action by a date certain. We
note that the Claims Court’s December 12 order directs
Education to complete the corrective action by January
11, 2018, but have no occasion to determine the propriety
of that order. Cont’l Serv. Grp. I, Dkt. 215.
CONCLUSION
For the foregoing reasons, we affirm Part 1 of the pre-
liminary injunction but reverse Part 2.
AFFIRMED-IN-PART, REVERSED-IN-PART, AND
REMANDED.

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CONTINENTAL SERVICE GROUP INC. v. UNITED STATES 20
COSTS
Each party shall bear its own costs.

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