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Hurry Up and Wait: TROs and Other Emergent Relief

By Aaron P. Silberman

It’s a Friday afternoon. You’ve put out all the fires. Everything is under control. Your mind is already on the weekend, with your body soon to follow, when the phone rings. You answer.


The caller says, “This is Jane Doe at ABC Construction.” (You worked with Jane and her company in defending against a subcontract mechanics lien foreclosure a few years ago.) Jane skips the pleasantries: “We bid on the city’s big new civic center project last month and received notice a few days ago that the city intends to award the contract to our competitor, XYZ. We haven’t seen XYZ’s bid, but we can’t believe they could beat our price unless their bid didn’t comply with the city’s requirements.”


“When does the notice say the city will award to XYZ?” you ask, trying to sound calm.
“Monday,” Jane responds. “And we know from our discussions with the city that the notice to proceed will be issued immediately upon award.” Goodbye, weekend. Hello, emergent relief.


Logistical and Strategic Issues
One of the first questions a lawyer faces when confronted with a client issue that may require emergent relief is what kind of relief may be available. This may depend on the type of issue facing the client, the relevant contracts provisions, and applicable law.


For example, in public construction contracting, federal and most state and local agencies have administrative bid protest procedures that disappointed bidders must follow before they may seek court relief. Bid protests are often akin to emergent relief, with extremely short filing deadlines, summary proceedings, and quick resolutions. Once a bid protest is decided, the losing side may then seek emergent relief in court.


Other types of issues may arise after a construction contract is already in place and may be governed by the contract’s dispute procedures and other provisions. For example, the owner may face irreparable harm where a contractor threatens to abandon the job. Whether the owner in that circumstance could seek emergent relief, like a temporary restraining order (TRO), in court may depend on (a) whether its construction contract requires submission of such disputes to alternative dispute resolution (ADR), and (b) the law in the applicable jurisdiction about courts’ ability to issue emergent relief notwithstanding mandatory ADR contract clauses. If the contract or applicable law allows a court action, other contract provisions may dictate venue and choice of law.


Finally, if a party can go to court for emergent relief, the relief available may vary depending on which court (or other tribunal) has jurisdiction. Procedures vary between federal and state courts. On federal projects, disputes brought against the United States under the Federal Contract Disputes Act must be brought in either the Armed Services or Civilian Boards of Contract Appeals (CBCA) or the Court of Federal Claims (COFC). Unlike federal district courts and state courts, those tribunals have no authority to issue injunctive relief, including TROs. However, disputes between or among prime contractors, subcontractors, and suppliers on federal projects are generally governed by state law and not subject to CBCA or COFC jurisdiction.


Gathering Information
Perhaps the greatest challenge in obtaining emergent relief, especially in factually complex matters (as construction disputes usually are), is obtaining sufficient information to prove that your client meets the legal requirements for emergent relief. Typically, this will require showing both some degree of likelihood that your client will succeed in its claims at trial and that it will likely suffer irreparable harm if the requested relief is denied.


Your first source of information is your client. In a procurement dispute, your client usually can provide the solicitation, prebid submission communications (such as bidder questions, agency clarifications, and bidders’ meeting agenda and minutes), and the notice of award. Your client will less likely have other key documents, such as the proposed awardee’s bid and the agency’s scoring documentation. In a contract dispute, your client will be able to provide you the contract itself and perhaps relevant correspondence and other documentation. Your client will also be able to get you in touch with key employee witnesses.


Where a public entity is involved, whether as the owner, administrative decision maker (e.g., the entity that makes contract awards or decides protests), or regulator (e.g., licensing boards, environmental agencies, permit issuers), documents may be available through public records laws. Federal agencies are subject to the Freedom of Information Act, and every state has its own similar law. Although these laws generally will not require the public agency to make the requested documents available in such a short timeframe, you may be able to negotiate expedited disclosure where the request is narrow and specific. In some circumstances, the public agency may be willing to produce documents without a formal public records law request.


Other relevant information may be publicly available without any need for a public records law request. Relevant licenses and permits may be available at a public agency office or online. Many other types of information are available online (though some only for a fee), such as standard commercial specifications and public entities’ solicitation documents, standard terms and conditions, and specifications.


One last potential avenue for obtaining critical information is discovery. This will not be a viable option where the emergent relief is needed in a matter of days. Nor is discovery available in administrative proceedings, like bid protests. To obtain expedited discovery in court actions, a party typically will have to file a complaint and apply for a court order allowing early discovery. Such a request should be supported by detailed affidavits and should be limited to only the most critical information and the least intrusive means of obtaining it.


Preparing Your Client’s Application
Regardless of the context and applicable law, the burden on a party seeking emergent relief is high. The challenge is exacerbated because the facts are often complex, time is always short, and the judge’s attention is even shorter. To meet this challenge, there are some rules you should live by:


  • Keep it simple. If at all possible, avoid complicated fact statements or legal arguments, even if they are relevant or right. Most judges have difficulty grasping construction issues in cases in which they have limited time to understand them. On a TRO application, the judge is not going to have the time or inclination to become an expert on the factual or legal issues you raise.
  • Always be mindful of the applicable standard of review and elements of proof. Many court decisions on applications for emergent relief begin and end with the standard of review. Are you challenging an administrative decision that is due some deference? If so, you must be candid about that and adequately address it. As for the elements of proof, applicants often spend too much effort showing likelihood of success and too little showing irreparable harm.
  • Rely heavily on affidavits. Don’t argue the key points—prove them.
  • Guide the court to the important documents and the key parts of those documents. The documents will often be complicated, especially for a judge with no background in the dispute (or construction in general). Make it easy for the judge by describing in your briefs what parts of the documentary evidence the judge really needs to look at and why.
  • Do everything you can to provide notice to all concerned parties. Provide a detailed affidavit showing the notice you gave and, to the extent that you were unable to do so, the unsuccessful efforts you made.

A party seeking emergent relief should also be prepared to address whether the court should require a bond as a condition for granting the relief. You should research applicable to law to determine the likelihood the court will order a bond. Does the applicable statute make a bond mandatory or discretionary? While most jurisdictions require a bond for preliminary injunctions, they usually do not require them for TROs (due to their short duration). You should determine the likely amount of a bond, if required, which will typically be tied to the damages other parties would likely suffer if the TRO were granted in error. You should have your client contact its surety and be prepared to get a bond immediately after the TRO hearing, in the event the court requires it.


Construction Contexts
Emergent relief is sought, and sometimes obtained, in a wide variety of construction contexts. For example, TROs are often sought to challenge initial public approvals of construction projects based on alleged violations of permitting, zoning, and similar legal requirements. [1]


TROs to stop construction based on environmental challenges are also very common. Construction and post-construction building use may affect air and water quality, animal and plant habitats (including those of endangered species), and wetlands, and may involve handling and disposal of hazardous wastes. [2] Similar concerns may arise concerning construction affecting historic-preservation or Native American sites.


Community and neighborhood concerns, such as increases or disruptions in traffic, noise, and blight, also often motivate TROs to block construction [3]


In public construction, disappointed bidders, taxpayers, and public interest groups often seek TROs to prevent contract awards made in alleged violation of competitive bidding laws [4] Such litigation frequently follows unsuccessful administrative challenges like bid protests. It also may follow after a public owner directs that a contractor perform out-of-scope work that would constitute a cardinal change, or terminates a contractor and attempts to engage a replacement contractor without putting that work out for competitive bidding.


TROs are also sought for consumer protection to prevent ongoing or repeated fraud, unlicensed contracting, and unfair competition. [5]


Though less common, in extreme circumstances project participants may obtain TROs to enjoin other participants from conduct likely to cause irreparable harm. Examples might include projects in which two parties disagree over precautions necessary to ensure the safety of workers during construction or of building occupants after work is completed. And, although a TRO will usually be denied to prevent a party from abandoning its work or to require its return to the site—due to the difficulty of proving irreparable harm—a party may be able to obtain such a TRO in extraordinary circumstances. [6] One example could be an instance in which a subcontractor is threatening to remove key materials or equipment from the site.


The above examples are far from exhaustive. Emergent relief has been sought in countless other contexts involving construction, such as TROs to halt or prevent alleged infringement of intellectual property rights in project designs; violations of labor laws or union agreements; wrongful revocations of licenses, prequalifications, or building permits; spoliation of evidence; and misuse of or absconding with funds.


Conclusion
Things can happen very quickly on construction projects. From the time the first approval is sought to the demolition of the work at the end of its useful life, emergencies may arise. When they do, you may get that call (not always late on a Friday afternoon, though it may seem that way), and, when you do, you will need to be ready to act fast.


Aaron P. Silberman is with Rogers Joseph O’Donnell in San Francisco, California.

 

End Notes


  1. See, e.g., Sarah Rohrs, Benica Council OKs First Street Development, Vallejo Times Herald, Sept. 20, 2007, available at http://solanosgotit.blogspot.com/2007/09/benica-council-oks-first-street.html; Kristin Bender, UC-Berkeley Wants to Settle Suite Lawsuit Plan, East Bay Daily News, Aug. 24, 2007, available at http://www.ebdailynews.com/article/2007-8-24-eb-uc-suit.
  2. See, e.g., Ted Robbins, Judge Halts Construction of Border Fence, NPR News, Oct. 11, 2007, available at http://www.npr.org/templates/story/story.php?storyId=15198528; Bill Lambrecht, A Hidden Cost of Ethanol, STL Today, June 16, 2007, available at http://www.stltoday.com/stltoday/news/special/srlinks.nsf/story/8A2C4A80CAF752B1862572F40079EB28?OpenDocument.
  3. See, e.g., Matthew Lysiak, Vito’s V-Z Suit Driven from Court, Brooklyn Paper, Nov. 8, 2007, available at http://lysiak.blogspot.com/2007/11/vitos-v-z-suit-driven-from-court.html; http://www.nytimes.com/2007/07/07/nyregion/07postal.html?_r=1&oref=login.
  4. See, e.g., Tim Yovich, Company Files Suit Against Lordstown Over Contract, The Vindicator, Oct. 10, 2007, available at http://www4.vindy.com/content/local_regional/296091840222684.php; Jim Foti, Judge Rejects Effort to Stop I-35W Bridge Work, Star Tribune, available at http://www.startribune.com/local/11594391.html.
  5. See, e.g., Steve Vockrodt, Dunn, West Edge Developers Take Issue to Arbitrator, Kansas City Business Journal, Aug. 17, 2007, available at http://kansascity.bizjournals.com/kansascity/stories/2007/08/20/story5.html?jst=s_cn_hl.
  6. Id. at 948; see also United States v. Ickes, 393 F.3d 50, 506–08 (4th Cir. 2005) (Holding that warrantless search of the defendant’s laptop and computer disks in a van at the U.S.-Canadian border was permissible under the border search doctrine and rejecting the defendant’s argument based on the First Amendment that a higher level of suspicion is needed for searches of “expressive material”).

 

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