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

Case 1:07-cv-00744-SGB

Document 58

Filed 01/22/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) INFORMATION SCIENCES CORP., ) ) Plaintiff, ) v. ) ) THE UNITED STATES, ) ) Defendant, ) No. 07-744C ) (Judge Braden) and ) ) DEVELOMPENT INFOSTRUCTURE, INC., ) BID PROTEST ) Intervenor, ) ) and ) ) SYMPLICITY CORP., ) ) Intervenor. ) __________________________________________)

DEFENDANT'S MOTION FOR LEAVE TO FILE SUR-REPLY Defendant, the United States, respectfully requests leave to file the attached sur-reply to the protestors' motion to again amend the complaint in this protest. A sur-reply is necessary to respond to several arguments raised for the first time in the protestors' reply memorandum. First, the protestors now claim that the RFP barred the awardee Symplicity from billing the Government monthly for work under the contract. As explained in our sur-reply, this is not a reasonable reading of the solicitation. Second, the protestors have made new arguments and cited new cases with respect to this Court's jurisdiction to hear a combined bid protest and CICA suit. In our sur-reply we respond to these arguments to support our contention that a CICA suit,

Case 1:07-cv-00744-SGB

Document 58

Filed 01/22/2008

Page 2 of 2

because it challenges a matter of contract administration, is distinct from and inconsistent with a bid protest challenging the underlying award. The protestors' arguments were not clearly raised in their motion to amend the complaint, and deserve a response given the importance of the issues to the ongoing protest. A request to file a sur-reply is normally granted "when a party is `unable to contest matters presented to the court for the first time' in the last scheduled pleading." Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003) (quoting Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 61 (D.D.C. 2001); accord United States v. Diabetes Treatment Centers of America, Inc., 238 F. Supp. 2d 270, 27677 (D.D.C. 2002). In the interest of justice, we respectfully request that the attached sur-reply be filed to permit us to address new issues raised by the protestors. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Mark A. Melnick MARK A. MELNICK Assistant Director s/ Gregg M. Schwind GREGG M. SCHWIND AMANDA L. TANTUM Trial Attorneys Commercial Litigation Branch Civil Division U.S. Department of Justice 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 353-2345 Fax: (202) 514-8624 January 22, 2008 Attorneys for Defendant

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