Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:07-cv-00714-GWM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

AXIOM RESOURCE MANAGEMENT, Plaintiff,
v.

INC.

THE UNITED STATES Defendant.

CoFC No. 07-532C BID PROTEST (JUDGE BRADEN)

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION TO SUPPLEMENT THE RECORD !J.-_ND REOUEST FOR EXPRESS CONSIDERATION COMES NOW the Axiom Resource Management, Inc. ("Axiom"), by and through Motion to

undersigned counsel, and hereby files this Memorandum Supplement the Record in this matter.

in Support of Plaintiff's

By its Motion Plaintiff requests the Court to permit

Axiom to supplement the record with certain documents that are necessary for the Court to have a complete understanding of the issues in dispute in this matter as well as the procurement from which this protest arises additionally, the Court's rules state that these documents should be included in the record here.

I. Factual Background Axiom filed this protest asking the Court to enjoin the Department of the Army (the "Army") from commencing or continuing performance of any contract awarded to Lockheed

Martin Federal Healthcare ("LMFH") under Request for Quotations No. 154160 (the "RFQ") under the GSA Mission Oriented Business Improvement Services ("MOBIS") Federal Supply

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Schedule to provide program management

support serVIces to the TRICARE

Acquisitions

Directorate ("TAD") of the TRICARE medical care system. Axiom contends that the Army has failed to comply with the terms and requirements 48 CFR Part 9.5 and the RFQ in the award of the contract under the RFQ to LMFH a company which has an unmitigated organizational conflict of interest and cannot be permitted to perform the services required under the RFQ. The Army's decision in this regard was arbitrary and

capricious in that it was a violation of 48 CFR § 9.504(e). Axiom seeks to add certain documents which were submitted to the Government

Accountability Office ("GAO") in the prior protest of this matter, Axiom Resource Management. I_n_c., B-298870.3 et al., and were addressed in the GAO's decision in that protest. Additionally, Axiom seeks to include its Supplemental Protest and its Comments therein which was filed with the GAO in the prior proceeding. Finally, Axiom seeks to include a new affidavit addressing the

Court's questions raised in the initial conference call in this matter. While the Government's record as filed is a compilation of the record of this procurement up to the point of the contracting officer's determination that LMFH had mitigated the OCI inherent in the award of the TRICARE Contract, the Government's several items required by the Court's rules. By this motion Axiom seeks to add the following documents to the record before the Court: 1) Axiom's Supplemental Protest, Axiom Resource Management, _In_c., B-298870.4 2) Axiom's Comments _In_c., B-298870.4; filed in Axiom Resource Management, record fails to include

3) Declaration of MG Nancy Adams (ret.), dated May 17,2007;

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4) Declaration of Ron Richards, dated May 17,2007; 5) Declaration of Guy Strawder, dated May 16,2007; 6) Declaration of Bruce Harma, dated May 17, 2007; and 7) Declaration of Guy Strawder, dated July 25,2007. Copies of these documents are attached as exhibits hereto. part of the "record of any previous administrative or judicial These documents were all proceedings relating to the

procurement, including the record of any other protest of the procurement."

_Se_e CFC, App. C, R

~ 22(u). All of these documents relate to this procurement and the contracting officer's actions concerning the procurement.

II. Ar1.rument 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) in 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. Yeutter, 876 F.2d 976,991 (D.C.Cir 1989). In applying the standard first articulated in E_s_c_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. _Se_e CFC 56.l(a); _se_e al_s_o R _ ABF Freight System, Inc. v.

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United States, 55 Fed. Cl. 392, 395 (2003); Rust Constructors, Inc. v. United States, 49 Fed. Cl. 490, 493 (2001). Additionally, parties may supplement the administrative record in certain

limited situations to "preserve a meaningful judicial review."

North Carolina Div of Servs. For

the Blind v. United States, 53 Fed. CL 147, 158 (2002) ajfd, 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.CI. 338, 343 (Fed. Cl.

2004); see also Blue & Gold Fleet L.P. v. United States, --- Fed.Cl. ---, 2006 WI. 979277 (Fed.CI. 2006) citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238 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. & Cont. W.L.L. v. United States, 56 Fed.Cl. 502, 508 (Fed. Cl. 2003) (Allowing supplementation without which the court cannot fully understand the issues"). of "evidence

Finally, the Court has previously

stated that these documents forming the record at a prior GAO proceeding should be included in the record of a protest because they were before the Comptroller General when the GAO

rendered its decision and these documents inform the GAO decision, are referenced therein, and are in the nature of argument before the Court. _Se_e DS Intern. v. United States, 48 Fed.CI. 759, S 765 (2001); Mike Hooks, Inc. v. United States, 39 Fed.CI. 147, 157-158 (1997). Document Nos. 3-6 were submitted to the GAO as a part of Axiom's Comments on the Agency Report in Axiom Resource Management, Inc., B-298870.3. Document Nos. 1-2 relate to

Axiom's Supplemental Protest which was also addressed in the GAO's decision, dated July 12,

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2007. The Record submitted by the Government already includes Axiom's initial Protest to the GAO, it only makes sense that the Supplemental Protest be included here as well. Document No.7 Finally,

addresses the Court's concerns raised in the initial conference in this matter

relating to the nature of Axiom and expounding on the impact of LMFH' s OCI on perception at industry forums and the general public. These documents fall within Categories 1-4 of_E_sc_h and they were part of the "record of any previous administrative or judicial proceedings relating to the procurement, including the record of any other protest of the procurement," _se_e RCFC, App. C, 11 22(u); therefore, they are appropriately before the Court here. WHEREFORE Plaintiff respectfully requests that the Court issue an order

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

Respectfully submitted,

Date:

By: James elSoroo, Esq. ~ Argus Legal, LLC 9255 Center St. Suite 307 Manassas, VA 20110 (703) 368-8770 fax (703) 368-8772 Counsel for Plaintiff Axiom Resource Management, Inc.

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