Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:08-cv-00261-LAS

Document 19

Filed 04/17/2008

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST WATTS-HEALY TIBBITS A JV, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 08-261C (Senior Judge Smith)

MOTION FOR LEAVE TO FILE THE DECLARATION OF HERBERT SHINSATO Defendant, the United States, respectfully requests that the Court grant us leave to file the attached declaration of Herbert Shinsato in response to plaintiff's characterization of certain Department of Defense guidelines. At the hearing held April 15, 2008, and over our objection, plaintiff provided to the Court for the first time certain Unified Facilities Guide Specifications ("Guide Specs."). At the hearing, plaintiff erroneously characterized the Guide Specs. as mandatory. However, the attached declaration demonstrates that the Guide Specs. are merely advisory and are used only in assisting the drafters of solicitations. Indeed, the guideline in question applies only to military construction contracts obligating appropriation funds from 1987. As binding precedent makes abundantly clear, such "guidelines" do not rise to the level of mandatory requirements. Carolina Tobacco Co. v. United States, 402 F.3d 1345, 1349 (Fed. Cir. 2005) (Customs and Border Protection regulation providing "guidelines" imposes no mandatory duty); AT&T v. United States, 307 F.3d 1374, 1379-80 (Fed. Cir. 2002) (holding that FAR guidelines concerning the selection of contract type are merely advisory and do not create a cause of action if violated).

Case 1:08-cv-00261-LAS

Document 19

Filed 04/17/2008

Page 2 of 3

Given that plaintiff elected to provide the Court with the Guide Specs. after completion of briefing upon its motion for preliminary relief, depriving us of the opportunity to respond in writing as envisioned by the Court's Rules, we respectfully request that the Court accept the attached declaration of Herbert Shinsato for filing. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director /s/ Todd M. Hughes TODD M. HUGHES Deputy Director OF COUNSEL: ROBERT E. LITTLE Department of the Navy Washington, D.C. /s/ Stephen C. Tosini STEPHEN C. TOSINI Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20005 Tel. (202) 616-5196 Fax. (202) 514-7969 Attorneys for Defendant

April 17, 2008

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Case 1:08-cv-00261-LAS

Document 19

Filed 04/17/2008

Page 3 of 3

CERTIFICATE OF FILING I hereby certify that on this 17 day of April 2008, a copy of the foregoing "MOTION FOR LEAVE TO FILE THE DECLARATION OF HERBERT SHINSATO" was filed electronically. I understand that notice of this filing will be sent to all parties by electronic mail and operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

/s/ Stephen C. Tosini