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

Case 1:08-cv-00062-MCW

Document 15

Filed 03/03/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST RKR JOINT VENTURE, LLC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 08-62C (Judge Williams)

DEFENDANT'S MOTION FOR LEAVE TO FILE SUR-REPLY TO PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO SUPPLEMENT THE ADMINISTRATIVE RECORD Defendant, the United States, respectfully requests leave to file a sur-reply to plaintiff's reply to defendant's opposition to plaintiff's motion for leave to supplement the administrative record. On February 26, 2008, plaintiff, RKR Joint Venture, LLC ("RKR"), filed a reply brief in support of its motion for leave to supplement the administrative record. This reply brief was not contemplated by the Court's February 6, 2008 scheduling order. However, rather than move to strike plaintiff's unauthorized brief, the Government would prefer to respond in order to clarify the confusion plaintiff has attempted to create in this case by arguing that supplementation is necessary because of alleged "ambiguities." E.g., Pl. Rep. 1-2.1 The fact is that there is no "ambiguity" in the solicitation. As explained more fully in the attached sur-reply, the Government and RKR essentially agree about what the solicitation means. The primary issue in this case is not what the solicitation means, but whether the Government had a rational basis for cancelling the solicitation due to a change in the requirements upon which the offerors were instructed to bid. The Government requests leave to file this sur-reply

"Pl. Rep. __" refers to plaintiff's reply to defendant's opposition to plaintiff's motion for leave to supplement the administrative record, filed on February 26, 2008.

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Case 1:08-cv-00062-MCW

Document 15

Filed 03/03/2008

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for the limited purpose of further rebutting plaintiff's argument that it is entitled to supplementation based upon an ambiguity, as well as rebutting plaintiff's mischaracterization of our argument regarding whether the cancellation moots allegations of any previous errors by the Government in conducting this procurement. For the foregoing reasons, the Government requests that the Court grant this motion and deem the attached brief filed. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director /s/ Donald E. Kinner DONALD E. KINNER Assistant Director

OF COUNSEL: Gary R. Allen Air Force Legal Operations Agency, Commercial Litigation Division 1501 Wilson Blvd., Suite 600 Rosslyn, VA 22209

/s/ William P. Rayel WILLIAM P. RAYEL 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) 616-0302 Fax. (202) 307-0972 Attorneys for Defendant

March 3, 2008

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