Free Response - District Court of Federal Claims - federal

Case 1:07-cv-00280-LJB

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UNITED STATES COURT OF FEDERAL CLAIMS Bid Protest _________________________________ IRONCLAD/EEI, A Joint Venture, Plaintiff, v. UNITED STATES, Defendant, and CAMPBELL ROOFING & CONSTRUCTION, INC., MGC/CAMPBELL ROOFING & CONSTRUCTION, INC., Intervenor-Defendants. _________________________________ Case No: 07-280C (Judge Bush)

INTERVENORS' OPPOSITION TO PLAINTIFF'S SECOND MOTION FOR LEAVE TO SUPPLEMENT THE ADMINISTRATIVE RECORD AND MOTION TO STRIKE PLAINTIFF'S RESPONSE TO MOTIONS TO DISMISS Dated: August 6, 2007
/s/ Herman C. Hoffmann, Jr. Herman C. Hoffman, Jr. Simon, Peragine, Smith & Redfearn, L.L.P. Attorneys for Plaintiff 1100 Poydras Street, 30th Floor New Orleans, Louisiana 70163-3000 Tel: (504) 569-2030 Fax: (504) 252-3508

Case 1:07-cv-00280-LJB

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UNITED STATES COURT OF FEDERAL CLAIMS Bid Protest _________________________________ IRONCLAD/EEI, A Joint Venture, Plaintiff, v. UNITED STATES, Defendant, and CAMPBELL ROOFING & CONSTRUCTION, INC., MGC/CAMPBELL ROOFING & CONSTRUCTION, INC., Intervenor-Defendants. _________________________________ Case No: 07-280C (Judge Bush)

INTERVENORS' OPPOSITION TO PLAINTIFF'S SECOND MOTION FOR LEAVE TO SUPPLEMENT THE ADMINISTRATIVE RECORD AND MOTION TO STRIKE PLAINTIFF'S RESPONSE TO MOTIONS TO DISMISS

NOW INTO COURT, through undersigned counsel, come Intervenors, Crown Roofing Services, Inc. ("Crown") and R. L. Campbell Roofing Company, Inc. ("Campbell") who, for reasons more fully set forth herein, respectfully suggest that Plaintiff's second Motion for Leave to

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Case 1:07-cv-00280-LJB

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Supplement the Administrative Record should be denied and that Plaintiff's Response to Defendant's and Intervenors' Motions to Dismiss and Motions for Judgment on the Administrative Record should be stricken from the record in its entirety. Statement of the Case On May 21, 2007, this Court issued an Amended Scheduling Order, ordering that the Administrative Record ("the Record") be filed by May 22, 2007. The Record was timely filed, and the parties, thereafter, proceeded to prepare and file Motions for Judgment on the Record with Plaintiff's Motion being due on June 21, 2007 and Defendant's and Intervenors' motions due on or before July 23, 2007. With the filing of its motion, Plaintiff requested leave of court to supplement the Record, which request was granted on June 25, 2007. As argued herein, (I) newly proffered documents are irrelevant and also otherwise inadmissible, and (II) in any event, Plaintiff's Response Memorandum, wherein it seeks to further supplement the record does not conform to the rules of this court and should, therefore, be stricken in its entirety.

Argument I. Newly Proffered Documents Are Irrelevant and Also Otherwise Inadmissible. In the case of Pacific Shores Subdivision, California Water Dist. v. U.S. Army Corps of Engineers,448 F.Supp.2d 1, 4-5 (D.D.C.,2006), the Court succinctly explained as follows. Section 706 of the Administrative Procedure Act ("APA") directs a court reviewing an agency decision to "review the whole record or those parts of it cited by a party1."
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5 U.S.C. § 706; Ctr. for Auto Safety v. Fed. Highway Admin., 956 F.2d 309, 314 (D.C.Cir.1992); Fund for Animals v. Williams, 391 F.Supp.2d 191, 196 (D.D.C.2005).

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(FN5 omitted) Review of the "whole record" under section 706 "is to be based on the full administrative record that was before the [agency decisionmakers] at the time [they] made [their] decision2." This Court has interpreted the "whole record" to include "all documents and materials that the agency `directly or indirectly considered' .... [and nothing] more nor less3." In other words, the administrative record "should not include materials that were not considered by agency decisionmakers4." Limiting review of the administrative record to only what the agency decisionmakers directly or indirectly considered is important. A broad application of the phrase "before the agency" would undermine the value of judicial review: [I]nterpreting the word `before' so broadly as to encompass any potentially relevant document existing within the agency or in the hands of a third party would render judicial review meaningless5. Thus, to ensure fair review of an agency decision, a reviewing court should have before it neither more nor less information than did the agency when it made its decision6. ... Were courts cavalierly to supplement the record, they would be tempted to second-guess agency decisions in the belief that they were better informed than the administrators empowered by Congress and appointed by the President7. Therefore, absent clear evidence to the contrary, an agency is entitled to a strong presumption

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Am. Bioscience, Inc. v. Thompson, 243 F.3d 579, 582 (D.C.Cir.2001). Maritel, Inc. v. Collins, 422 F.Supp.2d 188, 196 (D.D.C.2006) (quoting Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir.1993)); Fund for Animals, 391 F.Supp.2d at 197; Amfac Resorts, LLC v. Dep't of Interior, 143 F.Supp.2d 7, 12 (D.D.C.2001) Novartis Pharms. Corp. v. Shalala, No. 99-323, 2000 U.S. Dist. LEXIS 6152, at *1, *11-12 (D.D.C. Apr. 28, 2000) (citing Ammex, Inc. v. United States, 62 F.Supp.2d 1148, 1156 (C.I.T.1999) ("relevant materials that were neither directly nor indirectly considered by agency decisionmakers should not be included")).
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Fund for Animals v. Williams, 245 F.Supp.2d 49, 57 n. 7 (D.D.C.2003).

Fund for Animals, 391 F.Supp.2d at 196 (quoting IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C.Cir.1997)); accord Overton Park, 401 U.S. at 420, 91 S.Ct. 814. San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1325-26 (D.C.Cir.1984), decision aff'd on reh'g en banc, 789 F.2d 26 (D.C.Cir.1986).
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of regularity, that it properly designated the administrative record8. Once an agency presents a certified copy of the complete administrative record to the court, the court presumes that the record is properly designated9. Common sense dictates that the agency determines what constitutes the "whole" administrative record because "[i]t is the agency that did the `considering,' and that therefore is in a position to indicate initially which of the materials were `before' it-namely, were `directly or indirectly considered10.' " In the matter at hand, Plaintiff Ironclad-EEI seeks to "supplement" the Record with: A. Volumes of information apparently printed from the internet in October of 2006 which information, (i) was obviously not `directly or indirectly considered' by the agency, (ii) has no bearing on the SBA status of intervenors at the time of the self certification at issue, and (iii) is generally inadmissible in evidence and insufficient to prove the matter asserted11. See, for example, Plaintiff's Proposed Record ("PPR") 02077-02103, 02107-02111, 02113-02182, 02191-02216, 02219-02222, 02233-02255, 02554-02568, 02586-02609 and 02616-02630; Unauthenticated Information related to awards of various contract amounts to various contractors which, in reality, are only sufficient to show (assuming validity, which we do not) the maximum potential award under IDIQ contracts. These documents are either clearly marked as IDIQ or, in many cases, the contract amounts are marked as NTE which means "Not to Exceed." These documents are wholly insufficient to prove plaintiffs contentions as to Intervenors' SBA status. See, for example, (PPR) 02104-02106, 22112, 02269-02368, 02373-02471, 02475-02486, 02569-02585, and 02610-02614; Various other unidentified and unauthenticated information. See, for example, (PPR) 02217, 02223-02232, 02256-02257, 02371 and 02615; and

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C.

See Maritel Inc., 422 F.Supp.2d at 197; see also Bar MK Ranches, 994 F.2d at 740 (stating that an administrative record is entitled to the same presumption of regularity as other administrative procedures).
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See Ammex, Inc., 62 F.Supp.2d at 1156. Fund for Animals, 245 F.Supp.2d at 57.

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For example, Plaintiff attempts to determine Intervenors' size by adding up various maximum potential values of IDIQ contracts which, as any contractor knows, generally bears little relation to the final actual value. These internet printouts are (1) inadmissible hearsay, (2) irrelevant with respect to the administrative record and (3) incapable of providing information tending to show what Intervenors' size was at the relevant time. In short, they can serve no purpose.

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D.

The inadmissible affidavit of Daniel Eastman of Ironclad-EEI which improperly relates hearsay information "upon information and belief" in violation of RCFC Rule 56(e) which requires that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.12" (PPR) 02631-02632.

Of course, these proposed materials were not "considered by agency decision makers" because they are altogether unrelated to the decision making process that was carried out prior to the proper award of the contracts in question. These materials are not a part of the Administrative Record in this matter, they shed no light on the decision-making process at issue, and they should not be considered by this court. The Pacific Shores court also noted that the administrative record in that matter consisted of 1593 pages, and that the "sheer volume and complexity of this administrative record suggests that it is complete13." Likewise, the more voluminous record in this matter, as already supplemented by Plaintiff, is equally suggestive of completeness. The Pacific Shores court further explained: [u]nder Fund for Animals, 245 F.Supp.2d at 57, the [agency] is not obligated to include every potentially relevant document existing within its agency. Only those documents that were directly or indirectly considered by the [agency's] decisionmaker(s) should be included in the administrative record. See Maritel Inc., 422 F.Supp.2d at 196. It is the [Agency] that did the "considering," not [the Plaintiff]. Because [the Plaintiff] is unable to show by clear evidence that the [Agencies] certified record is incomplete and that the fourteen documents were ever before the permit decisionmaker(s), the [Agency] is entitled to the presumption that

W hile Rule 56(e) technically relates to Motions for Summary Judgment, Plaintiff seeks to have the court give identical weight and effect to this affidavit, and the document should, therefore, be held to the same evidentiary standards.
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Pacific Shores Subdivision, California Water Dist.,448 F.Supp.2d at 6.

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it properly designated the record14. Likewise, because It is the agency that did the "considering," not Ironclad-EEI, and because IroncladEEI is unable to show by clear evidence that the agency's certified record is incomplete and that the more than five hundred additional documents were ever before the decisionmaker(s), the agency is entitled to the presumption that it properly designated the record. The record should not be further supplemented and should certainly not be burdened with these unhelpful documents.

II.

Plaintiff's Response Memorandum does not conform to the rules of this Court and should be stricken. According to RCFC Rule 5.2 "briefs or memoranda must be compact, concise, logically

arranged, and free from burdensome, irrelevant, immaterial, and scandalous matter. Briefs or memoranda not complying with this rule may be disregarded by the court." According to RCFC Rule 5.2 (b)(2), "[e]xcept by leave of the court on motion, reply briefs or memoranda shall not exceed 20 pages by any process of duplication or copying or 30 pages where a response to a motion is included." Ironclad-EEI has, without leave of court, filed a thirty eight (38) page brief entitled "Plaintiff's Response to Defendant's and Intervenors' Motions to Dismiss and Motions for Judgment on the Administrative Record, and Plaintiff's Cross-motion for Leave to Supplement the Administrative Record." Because Plaintiff's brief exceeds the allowable page limitation, Intervenors respectfully urges the Court to disregard Plaintiff's brief and strike it from the record.

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Id.

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Case 1:07-cv-00280-LJB

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Conclusion Based on the foregoing and based on the arguments made by the Defendant Government in its motion to strike, Intervenors, Crown Roofing Services, Inc. and R. L. Campbell Roofing Company, Inc. Respectfully urge that Plaintiff's second Motion to Supplement the Administrative Record be denied, and that Plaintiff's Response to Defendant's and Intervenors' Motions to Dismiss and Motions for Judgment on the Administrative Record, and Plaintiff's Cross-motion for Leave to Supplement the Administrative Record be stricken from the record.

/s/ Herman C. Hoffmann, Jr. Herman C. Hoffman, Jr. Simon, Peragine, Smith & Redfearn, L.L.P. Attorneys for Plaintiff 1100 Poydras Street, 30th Floor New Orleans, Louisiana 70163-3000 Tel: (504) 569-2030 Fax: (504) 252-3508

Certificate of Service I hereby certify that on this ___ day of August, 2007, a copy of the foregoing was filed electronically. I understand that notice of this filing will be sent to all parties by operstion of the Court's electronic filing system. Parties may access this filing through the Court's system.

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N :\D ATA \L\10882017\Pleadings\Intervenor's O pp. to Plaintiff's 2nd M otion.w pd

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