Free Memorandum - District Court of Federal Claims - federal

Case 1:07-cv-00714-GWM

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Filed 10/29/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

MASAI TECHNOLOGIES Plaintif, v. THE UNITED STATES Defendant.

CORP.

CoFC No. 07-714 BID PROTEST (Judge George Miller)

MEMORANDUM IN SUPPORT OF PLAINTIFF'S SECOND MOTION TO SUPPLEMENT THE RECORD AND REQUEST FOR EXPRESS CONSIDERATION COMES NOW the Masai Technologies Corp. ("Axiom"), by and through undersigned counsel, and hereby files this Memorandum in Support of Plaintiff's Second Motion to

Supplement the Record in this matter. By its Motion Plaintiff requests the Court to permit MTC to supplement the record with a document that is necessary for the Court to have a complete understanding of the issues in dispute this matter as well as the procurement from which this

protest arises additionally, the document is presented to rebut, in part, the information presented in the Declaration of David Ray and the arguments presented in the Government's matter. Brief in this

I. _Factual Back~rouJl)J! By this action MTC protests the failure of the United States Department of Army (the "Army"), through its Contracting Officer, David Denton, U.S. Army Medical Research

Acquisition Activity, Fort Detrick, Maryland to comply with the terms of the Theater Enterprise Wide Logistics System ("TEWLS") Sustainment Support Program Request for Quotations No.
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W81XWH-06-T-02857

(the "Solicitation" or the "RFQ") and the requirements of the applicable

statutes and regulations in the evaluation of MTCs proposal submitted in response to theRFQ. The Army's technical evaluation is defective in that it failed to properly score MTC's technical proposal, and failed to properly evaluate MTC's past performance. Additionally, the Army has failed to identify, mitigate, neutralize, or avoid the serious impermissible Organizational Conflicts of Interest ("OCI") created by the Award to Denysys

Corporation ("Denysys") and its two subcontractors BearingPoint, Inc. ("BPI") and CompQSoft, Inc. (collectively the "Subcontractors"). At the time of proposal submission and award, both

subcontractors were performing engineering and technical direction for the Army significantly working on previous & current TEWLS contracts for at least the past two (2) years in the roles of implementer and program management support. In these roles the Subcontractors had unfettered access to TEWLS requirements documentation, implementation documents, design

documentation, as well as TEWLS proprietary problem reports, Knowledge Transfer strategies, meeting discussions, and direction of system enhancements related to TEWLS present and future requirements that were not available to other offerors. This unfettered access to TEWLS

proprietary information and Army influence aided Denysys in their response and in prejudicing the Army's actions in Denysys's favor. Furthermore, Denysys's access to this information

provides it with an unfair competitive advantage in future procurements concerning TEWLS. By its motion MTC asks the Court to consider in its deliberations correspondence from the Department of the Interior, dated April 23, 2007, which describes the TEWLS procurement and the nature of the work performed by the awardee's subcontractors concerning TEWLS. This document relates to this procurement procurement. and the contracting officer's actions concerning the

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II. Argument This Court has identified the following analysis which it will use in considering "extrarecord" evidence: (1) when agency action is not adequately explained in the record before the court; (2) when the agency failed to consider factors which are relevant to its final decision; (3) when an agency considered evidence which it failed to include in the record; (4) when a case is so complex that a court needs more evidence to enable it to understand the issues clearly; (5) in cases where evidence arising after the agency action shows whether the decision was correct or not; (6) cases where agencies are sued for a failure to take action; (7) in cases arising under the National Environmental Policy Act; and (8) in cases' where relief is at issue, especially at the preliminary injunction stage. _Se_e Vantage Associates, Inc. v. U.S., 59 Fed. CL 1 at 13 (2003) citing Esch v. -Y,e_'u_tter, F.2d 876 976,991 (D.C.Cir 1989). In applying the standard first articulated in _K_sc_h, Court has stated this where the parties will file or have filed cross motions for judgment on the record under CFCR 56.1 information outside of the administrative record may be considered by the Court by

stipulation or by order of the Court. United States, 55 Fed. 490, 493 (2001).

_Se_e CFC 56.1(a); _se_eal_s_o R _ ABF Freight System, Inc,_."'.:

392, 395 (2003); Rust Constructors, Inc. v. United States, 49 Fed. C1. parties may supplement the administrative record in certain

Additionally,

limited situations to "preserve a meaningful judicial review." North Carolina Qiv of SGLy§.,_I_"o_r the Blind v. United States, 53 Fed. CL 147, 158 (2002)

aIrd,

60 Fed. Appx. 826 (Fed. Cir. 2003);

_se_e Aero Corp., S.A. v. United States, 38 Fed. Cl. 408,411 (1997). _als_o The Court has also stated that it will allow the administrative record to be supplemented when to do so will "help explain an agency's decision and thereby facilitate meaningful judicial review of the agency decision, particularly when a subjective value judgment has been made but not explained." Orion Intern. Technologies v. United States, 60 Fed.Cl. 338, 343 (Fed. C1.

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2004); see also Blue & Gold Fleet L.P. v. United States, --- Fed.Cl. ---, 2006 WL 979277 (Fed.Cl. 2006) citing Impresa Construzioni Geom. Domenico Garufi v. UnitesL,:'S_'t_at238 F.3d ~, 1324, 1333 (Fed.Cir. 2001)(Administrative record may be supplemented where "required for

meaningful judicial review"); Al Ghanim Combined Group Co. Gen. Trad. & ~'_,o_n_t. ~I__ y, W_.I ,_. United States, 56 Fed.Cl. 502, 508 (Fed. Cl. 2003) (Allowing supplementation without which the court cannot fully understand the issues"). The correspondence presented here directly contradicts the testimony of Mr. Ray and the Government's arguments concerning the nature of the work performed by Bearing Point. of "evidence

Contrary to the Government's

assertion that the subcontractor had previously only performed

"maintenance" work on TEWLS, the Department of the Interior makes it clear that Bearing Point was involved in the development of TEWLS and was much more integrated in the program than has been admitted by the Army and that the subcontractor's give it an unfair advantage in this procurement. 4 of_E_sc_h, should be before the Court. and WHEREFORE Plaintiff respectfully requests that the Court issue an order work is exactly the type that would

Clearly, this document falls within Categories 1-

supplementing the record with the documents described herein and accompanying this filing.

Respectfully

Date:

By:

~---

-erdo, Esq. Ar egal, LLC 5 Center St. Suite 307 Manassas, VA 20110 (703) 368-8770 Counsel for Plaintiff MASAI Technologies Corp.
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