Free Motion to Intervene - District Court of Federal Claims - federal

Case 1:08-cv-00238-TCW

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ELECTRONICALLY FILED ON May 5, 2008 IN THE UNITED STATES COURT OF FEDERAL CLAIMS

) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant, ) ) and ) ) BAE SYSTEMS ORDNANCE SYSTEMS INC. ) ) Interested Party. ) __________________________________________)

AMERICAN ORDNANCE LLC

1:08-cv-00238-TCW (Judge Wheeler)

MOTION TO INTERVENE BAE Systems Ordnance Systems Inc. ("BAE Systems OSI"), by undersigned counsel, hereby moves the Court to intervene in the above-captioned proceeding as an Intervenor of Right pursuant to RCFC 24(a)(2). Counsel for BAE Systems OSI has contacted counsel for the Government and counsel for American Ordnance LLC ("AO"). Counsel for the Government did not oppose the relief sought in this motion. Counsel for AO declined to state a position on the matter. On April 4, 2008, Plaintiff filed a Complaint for injunctive and declaratory relief ("the Complaint"), seeking to prevent the Department of the Army from awarding a contract for operation of two Government-owned ammunition plants, for which AO is the incumbent contractor. AO filed the Complaint after withdrawing GAO Protest B-310930 et al., which related to the same procurement and stated similar allegations to those contained in the

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Complaint. BAE Systems OSI intervened in B-310930 et al., and was admitted to the protective order in that case. Under the RFP in this matter, proposals were due on April 30, 2008, and BAE timely submitted a proposal on or before that date. As an actual offeror with a substantial chance of award if the procurement proceeds uninterrupted, BAE Systems OSI has a special interest relating to the contract which is the subject of this action and is so situated that disposition of this action under any of the proposed forms of relief requested by AO may, as a practical matter, impair or impede that interest. BAE Systems OSI has a further interest in this matter, in that the Complaint relates in part to BAE specifically, and certain actions by BAE are described and are relevant to certain of Plaintiff's allegations against the Government. For all of these reasons, BAE Systems OSI was admitted as an intervenor to the predecessor GAO protest case. Plaintiff's interests are at odds with BAE Systems OSI's interests and the Department of Justice is not tasked with representing BAE Systems OSI's interests in this matter, either in a general sense, or in connection with the specific discussion of BAE Systems OSI in the Complaint. Therefore, BAE Systems OSI cannot be assured that its interests will be represented adequately by the existing parties. WHEREFORE, BAE Systems OSI respectfully requests that this Court grant BAE Systems OSI leave to intervene in this matter. BAE Systems OSI's counsel have reviewed the protective order in this matter and will provide by electronic mail completed applications for access under the protective order to counsel for the other parties.

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Dated: May 5, 2008

Respectfully submitted, s/ Drew A. Harker Drew A. Harker ARNOLD & PORTER LLP 555 Twelfth Street, N.W. Washington, D.C. 20004 (202) 942-5022 (202) 942-5999 [email protected] Attorney of Record for BAE Systems Ordnance Systems Inc.

Of Counsel: Stuart W. Turner ARNOLD & PORTER LLP 555 Twelfth Street, N.W. Washington, D.C. 20004 (202) 942-5759 (202) 942-5999 [email protected]

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant, ) ) and ) ) BAE SYSTEMS ORDNANCE SYSTEMS INC. ) ) Interested Party. ) __________________________________________)

AMERICAN ORDNANCE LLC

1:08-cv-00238-TCW (Judge Wheeler)

PROPOSED ORDER Upon consideration of the Motion to Intervene filed by BAE Systems Ordnance Systems Inc. it is this _____ day of May 2008 by the United States Court of Federal Claims: ORDERED that the Motion to Intervene is GRANTED.

____________________________ Judge Thomas C. Wheeler Copies to: Stuart B. Nibley Dickstein Shapiro, LLP 1825 Eye Street, NW Washington, DC 20006 Joan Margaret Stentiford U.S. Department of Justice 1100 L Street, NW 8th Floor Washington, DC 20530

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Drew A. Harker ARNOLD & PORTER LLP 555 Twelfth Street, N.W. Washington, D.C. 20004

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CERTIFICATE OF SERVICE I hereby certify that I caused a copy of the foregoing Motion to Intervene to be served by electronic mail this 5th day of May, 2008, upon: Stuart B. Nibley Dickstein Shapiro, LLP 1825 Eye Street, NW Washington, DC 20006 (202) 420-3701 [email protected] Attorney for Plaintiff Joan Margaret Stentiford U.S. Department of Justice 1100 L Street, NW 8th Floor Washington, DC 20530 (202) 616-0341 [email protected] Attorney for Defendant

s/ Drew A. Harker Drew A. Harker