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

Case 1:08-cv-00062-MCW

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ATTACHMENT 1

Case 1:08-cv-00062-MCW

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1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS

RKR JOINT VENTURE, Plaintiff, v. UNITED STATES, Defendant.

) ) ) ) ) Docket ) ) ) )

No. 08-62C

Tuesday, May 13, 2008 Live Tape (The following transcript was transcribed from a digital recording provided by the United States Court of Federal Claims to Heritage Reporting Corporation on June 23, 2008.) APPEARANCES: (Via Telephone)

For the Plaintiff: DAVID F. BARTON, Esquire For the Defendant: WILLIAM P. RAYEL, Esquire U.S. Department of Justice 1100 L Street, N.W., Room 12100 Washington, D.C. 20005 (202) 616-0302 For the Agency: GARY ALLEN, Esquire

Heritage Reporting Corporation (202) 628-4888

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9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 certainly be argued out in the briefing if it goes forward. THE COURT: Now did the CO from both of your

perspectives articulate the rationale for the decision to cancel? MR. RAYEL: Your Honor, we believe the

rationale was articulated in his determination and findings of January 7 I believe it was, so we weren't looking for anything further. THE COURT: MR. BARTON: Mr. Barton? Really no comment. Every

question that went to that Mr. Mortag couldn't remember. Clauses in the solicitation that would have

any impact, he essentially just didn't remember anything about all of that except for the fact that he did discuss a cancellation and that he really liked General Lord's letter, and that was about it. THE COURT: All right. But from your

perspective, we have an adequate record on which to go forward with the litigation? MR. BARTON: MR. RAYEL: THE COURT: Yes, ma'am. Yes, Your Honor. Both of you. And did the

government do any discovery? MR. RAYEL:

I know I authorized it.

I think we had about five or six

Heritage Reporting Corporation (202) 628-4888

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26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: All right. And were there any

other documents that were produced in this discovery that need to be added to the record? MR. BARTON: The ones that will be appended I think there were

to the depositions themselves.

either seven or eight in the Mortag one and just two, three or four in the Maluda. Oh, plus, there are a

couple of documents that we've discussed with Mr. Rayel that at least one of them was an attachment to another document that didn't make it in there, the Administrative Appeal Authority's decision. was the other one? Did you recall? A newspaper article. The what? Oh, a newspaper And what

MALE VOICE: MR. BARTON:

article espousing the background and experience of General Maluda from Keesler Air Force Base, and it was also an attachment previously also that did not get included in the administrative record as an attachment to another document. MR. RAYEL: Your Honor, I'll clarify that.

Apparently Mr. Barton said that I guess there were attachments to one of the GAO filings, and we inadvertently did not include the attachments when we filed the record. to this filing. There were nine attachments I think He said seven are already in the

Heritage Reporting Corporation (202) 628-4888

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27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 record elsewhere, but the two that he just mentioned were not, so since we attempted to file the entire GAO record, we don't object. Even though we don't deem the documents relevant, we don't object to them being added to the record since we had intended to file the entire GAO record. Apparently it was an oversight that those

attachments did not get filed. THE COURT: All right. Well, the Court is

ordering both of you to file anything you want to supplement the administrative record completely by June 13, 2008. MR. RAYEL: THE COURT: MR. RAYEL: Thank you, Judge. All right. Anything further?

Just one question I guess.

There were documents attached to the, I believe it was Mortag. I forget what exactly was attached to I don't recall problems with it

Maluda's deposition.

though, but the ones that were attached to Mr. Mortag's deposition were not a part of the administrative record, and the government objected at the deposition to those being included in the administrative record and to questioning based upon those documents. I didn't know how you wanted to handle that. Heritage Reporting Corporation (202) 628-4888

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28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Do you just want those filed with the deposition and you can make the determination of whether they should be properly considered? THE COURT: MR. RAYEL: THE COURT: Yes. Okay. The government needs to -- are

the objections fleshed out sufficiently in the transcript? The grounds used to -Our objection was that they were

MR. RAYEL:

not a part of the administrative record and thus not a proper basis of questioning at the deposition. THE COURT: Right. And the whole idea was

to supplement the administrative record along the lines the Court authorized, and the real issue then is whether or not those documents fit within the Court's authorization to supplement with the testimony. I'll see them. So

I'll take it under advisement, but if

you feel as though your grounds for your objection were adequately articulated on the record, fine. If

on the other hand you feel like you need to elaborate why they shouldn't be part of the record, you may. MR. RAYEL: THE COURT: then as well of June. that. Heritage Reporting Corporation (202) 628-4888 Okay. And you must do that by the 13th The Court will rule promptly on