Free Memorandum - District Court of Federal Claims - federal

Case 1:07-cv-00714-GWM

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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 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 Plaintiffs Record in this matter. Motion to Supplement the

By its Motion Plaintiff requests the Court to permit MTC to supplement that are necessary for the Court to have a complete

the record with certain documents

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 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") W81XWH-06-T-02857 Sustainment Support Program Request for Quotations No.

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

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statutes and regulations in the evaluation of MTCs proposal submitted in response to the RFQ. 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 CompQSoil, 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. MTC seeks to add certain documents which were referenced in MTC's Comments

submitted to the Government Accountability Office ("GAO") in the prior protest of this matter, Masai Technologies Corp., B-298880.3 et al. Additionally, MTC seeks to include a new

affidavit addressing several aspects of the GAO's decision. 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 there was no OCl inherent in the

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award to Denysys, the Government's

record fails to include several items required by the Court's

rules. 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'scorrespondence 2006; to MTC, dated September 17,

3) Declaration of Masai Troutman, dated October 19,2007. Copies of these documents are attached as exhibits hereto. declaration these documents Except for Mr. Troutman's or

were all pmi of the "record of any previous administrative

judicial proceedings relating to the procurement, including the record of any other protest of the procurement." _Se_e CFC, App. C, ~ 22(u). AU of these documents relate to this procurement R

and the contracting officer's actions concerning the procurement.

II. AnnJlment 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) 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 miiculated in _E_sc_h, Court has stated this where the parties will file or have filed cross motions for judgment on the record under CFCR

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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 56.1(a); ~ee _alsQABF Freight System, Inc. v. R

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 Diy___fSe_r_v_s._I_~o_r o the Blind v. United States, 53 Fed. CL 147, 158 (2002) afJ'd, 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. Cl.

2004); see also Blue & Gold Fleet L.P. v. United States, --- Fed.Cl. ---, 2006 WI, 979277 (Fed.Cl. 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.I,. 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.Cl. 759, S 765 (2001); Mike Hooks, Inc. v. United States, 39 Fed.Cl. 147,157-158 (1997).

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Document Nos. 1-2 were referenced the GAO as a part of Axiom's Comments before that agency. Document No.3 protests. addresses the several issues raised in the GAO's decision on MTC's

All of these documents are examples of either the contracting officer's failure to existing record before the court or demonstrate that the

adequately explain its actions in

agency failed to consider factors which are relevant to the contracting officer's award decision. These documents fall within Categories 1--4 of E_s_c_h they were part of the "record of any and previous administrative or judicial proceedings relating to the procurement, including the record of any other protest of the procurement," appropriately before the Court here. WHEREFORE Plaintiff respectfully requests that the Court issue an order _se_e RCFC, App. C, ~ 22(u); therefore, they are

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

Respectfully

Date:

By:

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Jam.· lBoiO:o,Esq. ~us Legal, LLC 255 Center St. Suite 307 Manassas, VA 20110 (703) 368-8770 fax (703) 368-8772 Janine Benton, of Counsel Benton & Potter 150 S. Washington St Suite 202 Falls Church, VA 22046 Counsel for Plaintiff MAS Al Technologies Corp.

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