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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST WEEKS MARINE, INC. Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 07-700C (Judge Wheeler)

DEFENDANT'S SUBMISSION AS ORDERED AT THE NOVEMBER 15, 2007 HEARING AND OPPOSITION TO PLAINTIFF'S REQUEST FOR AN ORDER TO SHOW CAUSE AS TO WHY THE DEFENDANT SHOULD NOT BE FOUND TO BE IN CONTEMPT At the hearing on November 15, 2007, the Court ordered defendant to submit the name of the individual at the United States Army Corps of Engineers who reached the decision to issue the Presolicitation Notices for Solicitations numbered W912EP-08-R-0004, W912EP-08-R0005, W912EP-08-R-0006, and W912EP-08-R-0007. The decision to issue these notices was made by Ms. Cynthia S. Tolle, the Contracting Division Chief for the Jacksonville District, U.S. Army Corps of Engineers. An affidavit from Ms. Tolle explaining her decision to issue the Presolicitation Notices is attached hereto as Exhibit 1.1

As undersigned counsel stated at the November 15, 2007 hearing, counsel received the Court's order of November 13, 2007 by e-mail. That e-mail stated that the Court had set a hearing for November 15, 2007. However, counsel did not realize that a written order was linked to the e-mail and, therefore, did not realize that the Court had set a deadline of November 14, 2007 for the Government to respond in writing to plaintiff's motion. Accordingly, defendant is including with this submission a brief response to that part of the motion concerning the request that the United States be held in contempt.

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As stated at the November 15, 2007 hearing, the four solicitations at issue here are not in violation of the Court's November 1, 2007 order. In that order, the Court ordered that the United States is enjoined "from using Solicitation No. W912EP-07-R-0007 to receive proposals or to award negotiated IDIQ contracts or task orders for maintenance dredging or shore protection services." The Army Corps of Engineers ("Corps") has not proceeded with that solicitation. Rather, the Corps has taken four of the contracts included in the solicitation and indicated its intent to issue those contracts as stand-alone solicitations. These solicitations are significantly different from the solicitation that was the subject of the Court's November 1, 2007 order. Namely, unlike that solicitation, these are not indefinite delivery/indefinite quantity contracts. There are no task orders involved in any of these solicitations. Thus, the Corps has not issued "negotiated IDIQ contracts or task orders" in violation of the Court's order.2 Indeed, one of the primary concerns raised by the Court in the November 1, 2007 decision was that the original solicitation would render a significant number of dredging contracts immune from protest actions by contractors. That concern is alleviated by the four solicitations at issue here because none of these solicitations involves the issuance of task orders. As a result, it cannot be said that the Corps has violated the Court's order. Rather, through these four solicitations, the Corps has addressed what the Court indicated was a significant concern with the initial solicitation.

Defendant recognizes that the Court has already permanently enjoined three of the solicitations from proceeding. Nonetheless, defendant reiterates its position that these solicitations are properly addressed in separate protest actions since, as set forth herein, they do not fall within the ambit of the Court's November 1, 2007 order. Moreover, the Corps has not violated any statute or regulation in these solicitations, and Weeks cannot demonstrate any prejudice as a result of the solicitations. 2

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In addition, as noted at the November 15, 2007 hearing, defendant does not believe that Weeks will suffer any prejudice from these four solicitations, even under the standard adopted by the Court in the November 1, 2007 decision. In that decision, the Court held that the prejudice to Weeks from the initial solicitation was the fact that Weeks could not protest the various task orders. Here, as stated above, that prejudice is not present. Given this fact, it cannot be said that the four solicitations are unlawful. See, e.g., Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed. Cir. 2001) (When a protestor asserts a violation of a regulation or procedure, it must show that the violation is "clear and prejudicial.").3 Finally, as indicated in the attached affidavit, the contracting officer who issued the presolicitation notices did not believe that she was violating the Court's order. She consulted extensively with her supervisors at the Corps and with counsel at the Corps. Her decision cannot be said to have been made in bad faith. Indeed, Weeks has not, and cannot, cite any evidence to the contrary. See Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1239-40 (Fed. Cir. 2002) ("The presumption that government officials act in good faith is nothing new to our jurisprudence."). Given the foregoing, defendant has not violated this Court's order. The Court should therefore deny plaintiff's motion to hold defendant in contempt.

As demonstrated by the Determinations and Findings attached to Ms. Tolle's affidavit, the Corps also had a rational basis for proceeding with the four solicitations. 3

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director /s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director /s/ L. Misha Preheim L. MISHA PREHEIM Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L St., NW Washington, D.C. 20530 Tele: (202) 305-3087 Fax: (202) 305-1571 November 16, 2007 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on the 16th day of November, 2007, a copy of the foregoing "DEFENDANT'S SUBMISSION AS ORDERED AT THE NOVEMBER 15, 2007 HEARING AND OPPOSITION TO PLAINTIFF'S REQUEST FOR AN ORDER TO SHOW CAUSE AS TO WHY THE DEFENDANT SHOULD NOT BE FOUND TO BE IN CONTEMPT" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/L. Misha Preheim

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