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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
____________________________________ | MASAI TECHNOLOGIES CORP. | | Plaintif, | | v. | | THE UNITED STATES | | Defendant. | ____________________________________|

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

PLAINTIFF'S REPY IN SUPPORT OF ITS MOTION TO SUPPLEMENT THE RECORD COMES NOW the Masai Technologies Corp. ("Axiom"), by and through undersigned counsel, and hereby files this Reply in Support of Plaintiff's Motion to Supplement the Record in this matter. By its Motion Plaintiff requested the Court to permit MTC 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. The Documents Submitted to the Court By this motion MTC seeks to add the following documents to the record before the Court: (1) Mr. Denton's TEWLS Exclusion Report, dated November 22, 2005; (2) Mr. Denton's correspondence to MTC, dated September 17, 2006; and (3) Declaration of Masai Troutman, dated October 19, 2007. Except for Mr. Troutman's declaration these documents were all part of the "record of any previous administrative or judicial proceedings relating to the procurement, including the

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record of any other protest of the procurement." See RCFC, App. C, ¶ 22(u). Specifically, these documents were referenced and discussed in the pleadings in the protest concerning this procurement at the Government Accountability Office. Additionally, these documents were in the contracting officer's possession at the time that he made his determination(s) at issue in this matter. While he may not have considered Document Nos.1 and 2, the fact that he ignored the documents is relevant and must be considered by the Court in its determination. See Axiom Resource Management, Inc. v. United States, ___ Fed.Cl. ___, 2007 WL 2840414 (Sept. 28, 2007); Greenleaf Const. Co. Inc., B- 293105.18 et al., Jan. 17, 2006, 2006 CPD ¶ 19 (protest sustained where contracting officer failed to consider information relevant to analysis of potential organizational conflict of interest ["OCI"]). All of these documents relate to this procurement and the contracting officer's actions concerning the procurement.

II. The Government's Opposition The Government opposes the Court's consideration of Document Nos. 1 and 3 on the basis that these documents were not part of the record considered by the contracting officer in making his decision(s) at issue here. The Government's Opposition appears to indicate that it has no opposition to the submission of Document No. 2, Mr. Denton's correspondence to MTC, dated September 17, 2006; however, this makes no sense since there is no inherent difference between this document and Document No. 1, Mr. Denton's TEWLS Exclusion Report, dated November 22, 2005, since both documents provide insight into Mr. Denton's analysis of OCI issues surrounding the TEWLS program. As to the Declaration of Mr. Troutman, it is ironic that the Government objects to its inclusion since the Government itself has proffered to the Court a declaration by a Government employee that was created after Mr. Denton's at issue here. Furthermore, declarations like Mr. 2

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Troutman's have recently been submitted to this Court and considered in its decisions. See Attachments 1 and 2 which are the relevant filing submitting post-decision declarations and the Court's Order permitting the submissions in another matter.

III. Argument While it is true that as the Court noted in Emerald Coast Finest Produce, Inc. v. United States, 76 Fed. Cl. 445 (2007) that "[A]s a general rule, when considering motions for judgment on the administrative record within the context of a bid protest proceeding, the Court focuses its review on `the administrative record already in existence,' see Emerald Coast, 76 Fed. Cl. at 448 citing Al Ghanim Combined Group Co. Gen. Trad. & Cont. W.L.L. v. United States, 56 Fed. Cl. 502, 508 (2003), the Court also noted that because "the administrative record is not a documentary record maintained contemporaneously with the events or actions included in it, [internal citations omitted] [it] is therefore, [a]s a practical matter, ... something of a fiction." Emerald Coast, 76 Fed. Cl. at 448. Furthermore, the Court will allow supplementation of the record when the supplementary evidence presented is "evidence without which the court cannot fully understand the issues" or the supplementation is appropriate to aid the Court in understanding "the highly technical nature of the issues. See Al Ghanim, 56 Fed. Cl. at 508; see also Mike Hooks, Inc. v. United States, 39 Fed. Cl. 147, 158 (1997). This is certainly consistent with the leading case on this point. Esch v. Yeutter, 876 F.2d 976, 991 (D.C.Cir 1989)

(supplementation of the record is appropriate when a case is so complex that a court needs more evidence to enable it to understand the issues clearly and in cases where evidence arising after the agency action shows whether the decision was correct or not). Finally, the Government's attack on the value Mr. Troutman's testimony is not well taken. Contrary to the Government's assertions his testimony addresses the specifics of the record and provides insights as to the 3

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nature of the work to be performed by the awardee and the context in which those services are provided. See Troutman Dec. at ¶¶ 11-12. Because the contracting officer's conflict of interest analysis addresses these points and the contracting officer's decision may be overturned if it is unreasonable, the testimony of Mr. Troutman is relevant. Additionally, these declarations clearly fall within Categories 4 and 5 of Esch. All of the documents presented by MTC are examples of either the contracting officer's failure to adequately explain its actions in the existing record before the court or demonstrate that the agency failed to consider factors which are relevant to the contracting officer's award decision. These documents fall within Categories 1-4 of Esch 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," see RCFC, App. C, ¶ 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.

Respectfully submitted,

Date: _________________

By:

James S. DelSordo

____________________________ James S. DelSordo, Esq. Argus Legal, LLC 9255 Center St. Suite 307 Manassas, VA 20110 (703) 368-8770 fax (703) 368-8772

Digitally signed by James S. DelSordo DN: cn=James S. DelSordo, o=Argus Legal, LLC, ou, [email protected], c=US Date: 2007.10.24 07:44:42 -04'00'

Counsel for Plaintiff MASAI Technologies Corp.

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CERTIFICATE OF SERVICE I hereby certify that on this 24th day of October 2007, a copy of the foregoing Reply in Support of Plaintiff's Motion to Supplement the Record and Request for Express Consideration was served by electronic mail on Counsel for the United States Courtney Sheehan, Esq., United States Department of Justice, Commercial Litigation Branch, 1100 L Street, N.W., Washington, DC 20530. Digitally signed by James S. DelSordo __________________________________ James S. DelSordo

James S. DelSordo

DN: cn=James S. DelSordo, o=Argus Legal, LLC, ou, [email protected], c=US Date: 2007.10.24 07:45:06 -04'00'

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