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

Case 1:07-cv-00280-LJB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST IRONCLAD/EEI, A JOINT VENTURE Plaintiff, v. THE UNITED STATES, Defendant, CAMPBELL ROOFING & CONSTRUCTION, INC., MGC/CAMPBELL ROOFING & CONSTRUCTION, INC. CROWN ROOFING SERVICES, INC., and R.L. CAMPBELL ROOFING COMPANY, INC., Intervenor-Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 07-280C (Judge Bush)

DEFENDANT'S MOTION TO STRIKE PORTION OF PLAINTIFF'S REPLY BRIEF RELATING TO AMENDING THE ADMINISTRATIVE RECORD

On August 2, 2007, plaintiff Ironclad-EEI, a Joint Venture ("Ironclad-EEI") filed its Response to Defendant's and Intervenors' Motions to Dismiss and Motion for Judgment on the Administrative Record, and Plaintiff's Cross-Motion for Leave to Supplement the Administrative Record ("Reply"). Defendant, the United States, respectfully requests that this Court strike Plaintiff's Cross-Motion for Leave to Supplement the Administrative Record ("Plaintiff's Motion"). Plaintiff's Motion is both untimely and inappropriate, and should not be considered in this case.

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On May 4, 2007, Ironclad-EEI filed its bid protest complaint in the abovecaptioned matter. On May 22, 2007, the Government filed the administrative record, pursuant to this Court's scheduling order. On June 21, 2007, plaintiff filed its Motion for Judgment on the Administrative Record, and filed a Motion to Supplement the Administrative Record to include certain documents. This Court granted that motion on June 25, 2007. On August 2, 2007, after defendant had filed its Motion to Dismiss, or, in the Alternative for Judgment on the Administrative Record ("Defendant's Motion"), which argued, in part, that plaintiff could not prevail on claims based on putative facts not in the administrative record, plaintiff moved to amend the administrative record to include 556 pages documents to support certain claims in its complaint. Plaintiff's request is untimely, and as such, is highly prejudicial to defendant and intervenors. Since the filing of its complaint, plaintiff consistently has made broad allusions to the supposed facts allegedly contained in the documents it now attempts to include in the administrative record. As we argued in our opening brief in this case, see Defendant's Motion at 21, Ironclad-EEI had an opportunity to move to amend the administrative record as early as May 22, 2007, and, in fact, did move to amend the administrative record on June 25, 2007. If plaintiff believed that these documents should have been part of the administrative record, the time to move to include them was when it filed its first motion to amend the record, not after defendant's and intervenors' motions were due and filed. 1 Plaintiff's assertions notwithstanding, the documents it now seeks to add to the administrative record were not in defendant's possession when it prepared its motion for Even if plaintiff had included these documents in its original motion to amend the administrative record, defendant would have opposed the amendment at that time for the reasons discussed below.
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judgment on the administrative record and were not relied upon in writing its brief. It would be unjust and prejudicial to amend the administrative record at the eleventh hour to include plaintiff's new documents. Furthermore, even if plaintiff's new motion to add documents to the administrative record had been timely filed, its documents should not be included in the administrative record. These documents were not before the agency and were not considered in this procurement. This Court's review of bid protests is limited to the administrative record already in existence, "`not some new record made initially by the reviewing court.'" Pikes Peak Family Hous., LLC v. United States, 40 Fed. Cl. 673, 676 (1998) (quoting Cubic Application, Inc., v. United States, 37 Fed. Cl. 339, 342 (1997)). Accordingly, this Court confines its review to the administrative record, i.e., the record that was before the decision maker at the time of review. Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057 (Fed. Cir. 2000) (citations omitted). This Court has allowed supplementation of the administrative record only "in limited circumstances where the record is insufficient for the [c]ourt to render a decision." Portfolio Disposition Mgmt. Group, LLC v. United States, 64 Fed. Cl. 1, 12 (2005). However, no such supplementation is appropriate in this case and these documents should not be included in the administrative record. Plaintiff attempts to supplement the administrative record with 556 pages of documents, claiming that the documents "go to the heart" of its allegations in this bid protest. This argument is unavailing. The Court does not require these documents in order to make its decision, or to understand the issues more clearly, nor did the agency fail to consider factors relevant to its final decision.

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First and foremost, with the exception of one letter, see Exhibit 1 to the Reply at 2258-2259, plaintiff offers no evidence that these documents were before the Contracting Officer, or that they were considered when the contract was issued, and thus, they should not be part of the administrative record. Moreover, these documents all relate to plaintiff's argument that the NAICS codes were unfairly applied to certain contractors who were awarded 8(a) contracts. The documents are not necessary to this bid protest because, as argued in Defendant's Motion at 7-9 and 20, plaintiff is not an interested party to the 8(a) contracts, and, as argued in Defendant's Motion at 21-24, even if plaintiff's allegations about the size of the companies that were awarded the 8(a) contracts were true, the Contracting Officer properly relied on the self-certifications of size provided by the companies in awarding the 8(a) contracts. In sum, the documents will do nothing to clarify the issues before the court such that the Court should supplement the administrative record to include them. Based on the foregoing, defendant respectfully requests the Court strike those portions of plaintiff's reply relating to its Motion to Amend the Administrative Record. Specifically, defendant requests that the Court strike pages 3-7, 27-30 and Exhibit 1 of its Reply.

Respectfully submitted,

PETER D. KEISLER Assistant Attorney General

JEANNE E. DAVIDSON Director

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/s/ Bryant G. Snee BRYANT G. SNEE Deputy Director

Of Counsel Donna Ward Black Assistant District Counsel United States Army Corps of Engineers Mobile District P.O. Box 2288 Mobile, AL 36628

August 6, 2007

/s/ Carrie A. Dunsmore CARRIE A. DUNSMORE Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor Department of Justice 1100 L Street, N.W. Washington, D.C. 20005 Tel. (202) 305-7576 Fax. (202) 514-8624-0972 Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 6th day of August, 2007, a copy of "DEFENDANT'S MOTION TO STRIKE PORTION OF PLAINTIFF'S REPLY BRIEF RELATING TO AMENDING THE ADMINISTRATIVE RECORD" 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/Carrie A. Dunsmore Carrie A. Dunsmore