Free Response to Cross Motion [Dispositive] - District Court of Federal Claims - federal

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

Dated: August 2, 2007

/s/ Kevin M. Cox Kevin M. Cox Camardo Law Firm, P.C. Attorneys for Plaintiff 127 Genesee Street Auburn, New York 13021 Tel: (315) 252-3846 Fax: (315) 252-3508

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TABLE OF CONTENTS Table of Authorities...........................................................................................iii Introduction...................................................................................................1 I. Plaintiff's Cross-Motion for Leave to Supplement the Administrative Record..........................................................................3 Plaintiff's Opposition to Defendant's and Intervenors' Motions to Dismiss...................................................................7 1. 2. Standard of Review on Motion to Dismiss...............................................7 Plaintiff is An "Interested Party" Regarding 8(a) and HUB-Zone Contracts............................................................8 Plaintiff is An "Interested Party" Regarding Unrestricted Contracts.......................................................11 Plaintiff Has Exhausted Administrative Remedies....................................12 Plaintiff's Protest Is Timely...............................................................12

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3.

4. 5. III.

Response to Defendant's and Intervenors' Motions for Judgment On the Administrative Record.........................................................13 A. B. Counter-Statement of Facts...............................................................13 Legal Argument............................................................................21 1. Plaintiff Was Prejudiced By Improper Issuance of Amendment 12.....................................................................21 Plaintiff Was Prejudiced By Defendant's Failure to Properly Apply NAICS Code..............................................................24 i. Plaintiff Has Standing to Protest All Contracts Awarded Under RFP........................................25 Plaintiff Has Moved to Supplement Record With Evidence Requested By Defendant/Intervenors Which Shows Unfair Application of NAICS Codes By Defendant........27 Defendant Improperly Relied Upon Self-Certifications............30

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3. 4.

Defendant Improperly Terminated Plaintiff's Contract.....................31 Plaintiff Is Entitled to Injunctive Relief.......................................32 i. Standard for Injunctive Relief..........................................33 a. b. c. d. Likelihood of Success On Merits.............................34 Irreparable Injury...............................................35 Balance of Harms...............................................36 Public Interest...................................................36

Conclusion....................................................................................................38

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TABLE OF AUTHORITIES Federal Cases ABF Freight Sys., Inc. v. United States, 55 Fed.Cl. 392 (2003) Al Ghanim Combined Group v. United States, 56 Fed.Cl. 502, 519-20 (2003) Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir.1999) American Fed'n of Gov't Employees, AFL-CIO v. United States (AFGE), 46 Fed.Cl. 586, 595 (2000) Asia Pac. Airlines v. U.S., 68 Fed.Cl. 8, 18 (2005) Bean Dredging Corp. v. United States, 22 Cl.Ct. 519, 522 (1991) Bennett v. Spear, 520 U.S. 154, 176, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) Blount, Inc. v. United States, 22 Cl.Ct. 221, 227 (1990) Boyle v. United States, 200 F.3d 1369, 1372 (Fed.Cir.2000) Candle Corporation v. United States, 40 Fed.Cl. 658 (1998) CCL, Inc. v. U.S., 39 Fed.Cl. 780 (1997) CHE Consulting, Inc. v. United States, 47 Fed.Cl. 331 (2000) Citizens to Preserve Overton Park. Inc. v. Volpe, 401 V.S. 402, 416, 91 S.Ct. 814,28 L.Ed.2d 136 (1971)

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Cubic Applications, Inc. v. U.S., 37 Fed.Cl. 345, 350 (1997) Data General Corp. v. Johnson, 78 F .3d 1556, 1562 (Fed.Cir.1996) Data Processing Serv. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) Ellsworth Assocs., Inc. v. United States, 45 Fed.Cl. 388, 398-99 (1999) FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.Cir.1993) Godwin v. United States, 338 F.3d 1374, 1377 (Fed.Cir.2003) Honeywell, Inc. v. United States, 870 F .2d 644, 647 (Fed.Cir.1989) Impresa Construzioni Geom. Domenico Garufi v. U.S., 238 F.3d 1324, 1338 (Fed.Cir. 2001) Interstate Rock Products, Inc. v. United States, 50 Fed.Cl. 349, 354 (2001) LABAT-Anderson, Inc. v. U.S., 65 Fed.Cl. 570, 581 (2005) Lujan v. National Wildlife Fed'n, 497 U.S. 871, 883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) Magellan Corp. v. United States, 27 Fed.Cl. 446, 447 (1993) Magnavox Elec. Sys. Co. v. United States, 26 Cl.Ct. 1373, 1379 (1992) Novosteel SA v. United States, Bethlehem Steel Corp., 284 F.3d 1261 (Fed.Cir.2002) Overstreet Elec. Co. v. United States, 47 Fed.Cl. 728, 744 (2000)
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Perez v. United States, 156 F.3d 1366, 1370 (Fed.Cir.1998) Portfolio Disposition Mgmt. Group, LLC v. United States, 64 Fed.Cl. 1, 12 (2005) Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) SAI Industries Corp. v. U.S., 60 Fed.Cl. 731, 747 (2004) Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) Seattle Sec. Servs. Inc. v. United States, 45 Fed.Cl. 560, 571 (2000) SMS Data Prods. Group, Inc. v. United States, 853 F.2d 1547, 1554 (Fed.Cir.1988) Taylor v. United States, 303 F.3d 1357, 1359 (Fed.Cir.2002) Textron, Inc. v. United States, 74 Fed.Cl. 277, 318 (2006) United Int'l Investigative Servs., Inc. v. United States, 41 Fed.Cl. 312, 323 (1998) Y.S.K. Const. Co., Inc. v. United States, 30 Fed.Cl. 449, 459 (1994) Federal Statutes 5 U.S.C. §§701-706 (1994) 5 U.S.C. §706(2)(A) (1994) 10 U.S.C. § 2304 (1994) 28 U.S.C. §1491 41 U.S.C. § 253
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Federal Regulations 13 CFR §121.103 13 CFR §121.405 13 CFR §121.1003 FAR §15.206 Other Authorities American Medical Depot, B-285060, 2002 CPD ¶ 7,200 Amperif Corporation, B-211992, 84-1 CPD ¶ 409 Jensco Marine, B-278929, 99-1 CPD ¶32 Information Ventures, Inc., B-232094, 88-2 CP ¶ 443 Size Appeal of Technical Support Services, SBA No. SIZ-4751 (2006) Size Appeal of Gallagher Transfer & Storage Co., Inc., SBA No. SIZ-4295 (1998) Size Appeal of Orirus, Inc., SBA No. SIZ-4546 (2006) 19, 27, 28, 29 6, 30 5, 12 22

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UNITED STATES COURT OF FEDERAL CLAIMS _____________________________________ IRONCLAD-EEI, A Joint Venture, Plaintiff, v. Case No. 07-280C UNITED STATES, Defendant, and CAMPBELL ROOFING & CONSTRUCTION, INC., MGC/CAMPBELL ROOFING & CONSTRUCTION, INC., Intervenor-defendants. ______________________________________ 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 Plaintiff, Ironclad-EEI ("plaintiff"), pursuant to Rules 12(b)(1) and 52.1 of the Rules of the Court of Federal Claims, respectfully opposes defendant's and intervenors' motions to dismiss and motions for judgment on the administrative record, and cross-moves to supplement the administrative record, and states as follows: Introduction In its Complaint, and in previous correspondence to the SBA and Contracting Officer, plaintiff imparted compelling information regarding what it believed to be violations of the law regarding size standards by several firms on the subject procurement. As the Court is aware, the 1
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purpose of the Small Business Administration ("SBA") regulations regarding size standards is, among other things, to ensure that all companies are held to the same standards and carry out the intent of Congress. It is the SBA's obligation and responsibility to ensure that its regulations are followed. Likewise, it is defendant's obligation and responsibility to investigate all allegations that these regulations have been violated and to forward any such information to the SBA. In this case, plaintiff has supplied defendant with credible evidence of several violations which it believes pervade the entire procurement. Despite this fact, and despite their obligations under the law, neither the SBA nor the defendant agency have conducted an investigation into this matter. It is respectfully submitted that defendant's attempt to cover-up these failures by hiding behind procedure winning at all cost is improper, does not serve or promote justice, and encourages these types of violations in the future. In the end, this only serves to erode the public's confidence in Government. Defendant and Intervenors have moved to dismiss on various grounds, including standing. In response, plaintiff explains herein that it is an "interested party" in this procurement and, therefore, has standing to protest any award made pursuant to the subject RFP. Defendants and intervenors have also cross-moved for judgment on the administrative record on various grounds, many of which take advantage of the fact that defendant did not include all necessary information in the administrative record. As such, plaintiff cross-moves herein for leave to supplement the administrative record with documents which support plaintiff's claims that defendant unfairly and unequally enforced the size limitation contained in the RFP which prejudiced plaintiff. Plaintiff also seeks leave to supplement the record with letters from plaintiff to the Contracting Officer and SBA, which the Government possesses, which evidences that plaintiff exhausted its administrative remedies. Based on this information, as well as that which 2
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is already part of the administrative record, plaintiff opposes defendant's and intervenors' crossmotions for judgment on the administrative record. Finally, plaintiff also argues herein in favor of its motion for permanent injunction. Based on defendant's violation of the law and RFP, and the resulting prejudice, plaintiff is likely to succeed on the merits in this case. Plaintiff has suffered irreparable injury as a result of defendant's action as it has lost the opportunity to compete and be treated fairly. The balance of harms weighs in plaintiff's favor since, if awarded a contract under a reprocurement conducted in accordance with the law and RFP, plaintiff is prepared to step in and perform without delay. Despite merely speculating that a new solicitation would cause delay, no evidence has been presented by defendant or intervenors to support this claims. Finally, it is clearly in the public interest for the Court to grant plaintiff's motion which will ensure that the procurement process is conducted in accordance with the law. I. PLAINTIFF'S CROSS-MOTION FOR LEAVE TO SUPPLEMENT THE ADMINISTRATIVE RECORD: The Administrative Record in this case is incomplete in that it fails to provide the Court with all of the evidence required to decide this protest. As such, Plaintiff respectfully moves the Court for leave to supplement the administrative record to include the following: (1) publicly available documents supporting plaintiff's claim that defendant unfairly and unequally applied the law and RFP regarding size limitation to the detriment of plaintiff (AR 02077-02257; AR 02554-02630); (2); bid protest letters from plaintiff to the SBA and Contracting Officer regarding the subject procurement (AR 02258-02553); and (3) an affidavit of Dan Eastman of Ironclad/EEI (AR 02631-02632). These documents are attached hereto as "Exhibit 1" and incorporated herein by reference. As explained below, these documents will assist the Court as they show that the Government treated plaintiff unequally and unfairly in awarding contracts 3
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under the subject RFP. In its cross-motion for judgment upon the administrative record, defendant opposes plaintiff's argument that the Government awarded 8(a) contracts to companies that exceeded the NAICS size standard on the grounds that it "is unsupported by any fact in the administrative record." Defendant takes this position despite the fact that the information is provided as an exhibit to the Complaint, and despite the fact that the information was garnered from the Government's public websites, the administrative record is deficient to enable the Court to decide this issue. In light of defendant's objections, as well as similar ones raised by intervenors in their respective motions, plaintiff respectfully moves the Court for leave to supplement the administrative record with the following information which supports its contentions in this regard: Documents General Information Relating to Size Status of GCC Thomco, LLC General Information Relating to Size Status of Campbell/Thomco General Information Relating to Size Status of R.L. Campbell Management Services, Inc. General Information Relating to Size Status of MGC Roofing and Construction, Inc. General Information Relating to Size Status of MGC-Campbell Roofing & Construction A Joint Venture General Information Relating to Size Status of GCC Enterprises, Inc. General Information Relating to 4
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AR #

02077-02085

02086-02093

02094-02146

02147-02170

02171-02192

02193-02203

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Size Status of Campbell Roofing & Construction, Inc. Miscellaneous Contract Award Information Relating to Various Contractors General Information Relating to Size Status of Crown Roofing General Information Relating to Size Status of Crown-Campbell Joint Venture General Information Relating to Size Status of Crown-CampbellThomco-Campbell Joint Venture General Information Relating to Size Status of Thomco Enterprises, Inc.

02204-02222

02223-02257

02554-02585

02586-02592

02593-02596

02597-02630

In their motions to dismiss or for judgment upon the administrative record, defendant and intervenors also argue that plaintiff failed to exhaust its administrative remedies regarding its size determination protests. As such, plaintiff also moves for leave to supplement the record with the following documents: Documents May 30, 2006 Letter to Contracting Officer Hickman Protesting Award to R.L. Campbell June 21, 2006 Protest by EEI to SBA Regarding Contracts Under Subject Solicitation AR #

02258-02259

02260-02553

These foregoing documents will assist the Court in deciding this issue. The May 30, 2006 letter from Ironclad/EEI to Contracting Officer Hickman protests the size determination of the SBA regarding R.L. Campbell and Crown Roofing. In accordance with 13 CFR §121.1003,

Ironclad/EEI asked the Contracting Officer to forward the protest to the SBA for consideration. As alleged herein, however, the Contracting Officer and/or SBA ignored the protest. The June 5
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21, 2006 letter is a protest filed by Ironclad/EEI directly with the SBA protesting, inter alia, awards made to various awardees under the subject RFP due to violations of the size requirement. Finally, plaintiff also seeks leave of Court to supplement the record to include an Affidavit of Dan Eastman of Ironclad/EEI (see Exhibit "1," AR 02631-02632). Mr. Eastman's affidavit goes to the issue of whether the committed violations of law and/or the RFP when it relied upon self-certifications regarding size from offerors when it possessed contradictory information. In their motion, defendant argues that the Contracting Officer was correct in relying upon self-certifications at face value "in the absence of a written protest by other offerors or other credible information that would cause the CO to question the concern's size." (Defendant's Motion for Judgment on Administrative Record, pg. 23, citing 13 CFR § 121.405(b), Jensco Marine, B-278929, 99-1 CPD ¶32) Mr. Eastman's Affidavit provides the Court with admissible evidence that the Contracting Officer knew of the Campbell's illegal affiliations which contradicted the self-certifications. This Court has held that "in most bid protests, the `administrative record' is something of a fiction, and certainly cannot be viewed as rigidly as if the agency had made an adjudicative decision on a formal record that is then certified for court review." Cubic Applications, Inc. v. U.S., 37 Fed.Cl. 345, 350 (1997). "This is true in the contract award context if for no other reason than that, due to the absence of a formal record, the agency has to exercise some judgment in furnishing the court with the relevant documents." Cubic Applications, Inc. v. U.S., 37 Fed.Cl. at 350. "In order to preserve a meaningful judicial review, the parties must be able to suggest the need for other evidence...aimed at determining, for example, whether other materials were considered, or whether the record provides an adequate explanation to the protester or the 6
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court as to the basis of the agency action." Id. As such, "discovery as well as the breadth of the court's review has to be tailored in each case." Id. "Supplementation of the administrative record is appropriate where the record is insufficient for the court to render a decision." Impresa Construzioni Geom. Domenico Garufi v. U.S., 238 F.3d 1324, 1338 (Fed.Cir. 2001) (supplementation of record appropriate where "required for meaningful judicial review"); Asia Pac. Airlines v. U.S., 68 Fed.Cl. 8, 18 (2005) (citing Impresa); Portfolio Disposition Mgmt. Group, LLC v. United States, 64 Fed.Cl. 1, 12 (2005) ("We may allow supplementation of the administrative record in limited circumstances where the record is insufficient for the [c]ourt to render a decision." ). The court will supplement the administrative record to fill gaps concerning the factors the contracting officer considered in reaching his decision. See Impresa, 238 F.3d at 1338-39 (ordering supplementation of administrative record with contracting officer's deposition testimony). The court will also

supplement the administrative record when the supplementary evidence presented is "evidence without which the court cannot fully understand the issues." Al Ghanim, 56 Fed.Cl. at 508. Plaintiff asks the Court to utilize this "flexible approach" in this instance. As stated above, all of the documents plaintiff seeks to add to the administrative record via this motion go to the heart of the violations alleged by plaintiff herein. Furthermore, defendant will not be prejudiced by the supplementation of the record with these documents since they are all public information and/or already within the possession of the Contracting Officer and/or SBA. II. PLAINTIFF'S OPPOSITION MOTIONS TO DISMISS: 1. TO DEFENDANT'S AND INTERVENORS'

Standard of Review on Motion to Dismiss:

In its motion to dismiss, defendant asks the Court to dismiss Counts one, four, five, and part of count two as it relates to 8(a) contracts, for lack of subject matter jurisdiction. The basis 7
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for defendant's (and intervenors') motion(s) in this regard is that plaintiff is allegedly not an "interested party" with respect to the 8(a), HUB-Zone or unrestricted contract, and therefore lacks standing to challenge this procurement as to those contracts. In response, as argued below, plaintiff is an interested party with respect to the 8(a) and HUB-Zone awards since it is an "interested party" in this procurement and, therefore, has standing to protest any award made pursuant to the subject RFP. In considering Defendant's and Intervenors' Motions to Dismiss, the Court must accept as true all of Plaintiff's well-pleaded facts alleged in the complaint and draw all reasonable inferences in the Plaintiff's favor. Godwin v. United States, 338 F.3d 1374, 1377 (Fed.Cir.2003); Boyle v. United States, 200 F.3d 1369, 1372 (Fed.Cir.2000); Perez v. United States, 156 F.3d 1366, 1370 (Fed.Cir.1998); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Plaintiffs bear the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Taylor v. United States, 303 F.3d 1357, 1359 (Fed.Cir.2002); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). 2. Plaintiff is An "Interested Party" Regarding 8(a) and HUB-Zone Contracts: As this Court has held, "...judicial review of procurement methods should not be thwarted through the wooden application of standing requirements." CCL, Inc. v. U.S., 39 Fed.Cl. 780 (1997) (emphasis added). As a threshold matter, a protester to an award of a contract must establish that it is an "interested party." 28 U.S.C. § 1491(b)(1). For plaintiff to establish that it is an "interested party," it must demonstrate that: (1) it suffered sufficient "injury-in-fact"; (2) that the injury is "fairly traceable" to the agency's decision and is "likely to be redressed by a favorable decision;" and (3) that the interests sought to be protected are "arguably within the zone of interests to be protected or regulated by the statute ... in question." 8
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American Fed'n of Gov't Employees, AFL-CIO v. United States (AFGE), 46 Fed.Cl. 586, 595 (2000), (quoting National Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479, 488, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998)). See also CHE Consulting, Inc. v. United States, 47 Fed.Cl. 331 (2000) (applying the APA standard to determine "interested party" status under 28 U.S.C. § 1491(b)). First, economic injury, such as the loss of future profits, constitutes an injury under the APA test. See CHE Consulting, Inc. v. U.S., 47 Fed.Cl. 331, 338 (2000); Data Processing Serv. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Plaintiff has alleged an injury in this protest in the form of lost contracts and, therefore, lost profits. Economic or financial injury has been deemed to be a sufficient injury for purposes of standing. See CHE Consulting, Inc. v. U.S., 47 Fed.Cl. 331, 338 (2000); Data Processing Serv. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). As a result of defendant's illegal actions, plaintiff lost its SDVOB contract and was removed from competition for the unrestricted awards. With respect to the 8(a) and HUBZone award, defendant and intervenors argue that plaintiff has not been prejudiced since it is not an 8(a) or HUBZone firm and, therefore, cannot be considered for these awards. However, the subject RFP anticipated the award of multiple types of contracts (8(a), HUBZone, SDVOB, Unrestricted). Plaintiff submitted a proposal

pursuant to the subject RFP and therefore, and was awarded the SDVOB contract. Defendant terminated plaintiff's contract because it exceeded the size requirement for the SDVOB award. However, at the same time, defendant awarded contracts to the firms discussed herein who also exceed the size requirements for their respective awards. Since all of these awards were made pursuant to the same RFP, defendant has an obligation to treat all offerors submitting proposals

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in response to that RFP fairly and equally.

If one or more offerors receives preferential

treatment, as was the case here, then the other offerors have standing to protest. Second, plaintiff's injury is "fairly traceable" to defendant's violations of the law and RFP alleged herein. More specifically, plaintiff has alleged herein that defendant has violated the law and RFP by improper issuance of Amendment 12, unfair and unequal application of NAICS code/size standards, and improper termination of its SDVOB contract. As a direct result of these violations, plaintiff lost is SDVOB contract while the firms challenged herein were awarded contracts and allowed to perform. Plaintiff is asking the Court to direct the

reprocurement of these contracts in accordance with the law and RFP. If this relief is permitted, plaintiff's injury will certainly be redressed as it will be allowed to compete fairly and openly with other eligible firms on a level playing field. As stated in the Affidavit of Matthew Curnutte, if plaintiff is permitted to compete for more than one award, its prices will necessarily be lower. A lower price, combined with exceptional ratings on the other relevant factors, will likely place plaintiff into the competitive range for the unrestricted awards. In order for plaintiff's interests to satisfy the third requirement of APA standing, plaintiff must "establish that the injury [it] complains of...falls within the `zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint." Lujan v. National Wildlife Fed'n, 497 U.S. 871, 883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); see also Bennett v. Spear, 520 U.S. 154, 176, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). An interest falls within the "zone of interest" when there is "an `unmistakable link' between a statute's purpose and the interests advanced by the plaintiff." American Fed'n of Gov't Employees v. Cohen, 171 F.3d at 460, 469 (7th Cir.1999). In this case, Ironclad/EEI alleges that promoting competition is certainly one of the interests within the zone of interests to be protected 10
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by Competition in Contracting Act ("CICA"). The language of CICA itself states that competitive procedures shall be used to obtain "full and open competition." 10 U.S.C. § 2304(a)(1)(A). CICA was "designed to increase the use of competition in government

contracting and to impose more stringent restrictions on the awarding of noncompetitive-sole source-contracts." H.R. Conf. Rep. No. 861, 98th Cong. 1421, reprinted in 1984 U.S.C.C.A.N. 1445, 2109; see also 10 U.S.C. § 2304 (1994); 41 U.S.C. § 253; SMS Data Prods. Group, Inc. v. United States, 853 F.2d 1547, 1554 (Fed.Cir.1988). Based on the above, it is clear that plaintiff is an "interested party" in this procurement and, therefore, has standing to protest. As such, defendant's and intervenors' motion to dismiss should be denied. 3. Plaintiff is An "Interested Party" Regarding Unrestricted Contracts: Defendant also argues that plaintiff is not an "interested party" for the unrestricted contracts since it was not among the lowest 5-7 offerors and, therefore, does not have standing to challenge the awards that were made. However, this argument ignores the Affidavit of Matthew Curnutte, wherein he states that if defendant had properly issued Amendment 12 to Ironclad/EEI as it did to other offerors, it would have had a substantial chance of being awarded an unrestricted contract (i.e. being among the lowest 5-7 offerors) considering the exemplary ratings it received for the SDVOB evaluation. A review of the administrative record evidences that plaintiff's ratings for the most important three factors were significantly higher than the three firms who were awarded the contracts. (AR 1549, 1552) Since plaintiff's proposed price would have been measurably lower if it had received Amendment 12 (see Curnutte Affidavit ¶7), there is a substantial chance it would have been included in the competitive range and awarded one of the unrestricted contracts. In other words, but for defendant's violation of the law and RFP, 11
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plaintiff had a substantial chance of receiving one of the unrestricted awards. As such, plaintiff has standing to protest the unrestricted awards herein. 4. Plaintiff Has Exhausted Administrative Remedies: In its motions to dismiss, intervenor Crown Roofing Services, Inc. ("Crown") and R.L. Campbell Roofing Company, Inc. ("Campbell") argues that plaintiff lacks standing to protest because it allegedly failed to exhaust its administrative remedies. To the contrary, plaintiff did, in fact, raise the issues protested herein with the Contracting Officer rand the Small Business Administration ("SBA"). More specifically, on May 30, 2006, plaintiff sent a letter to

Contracting Officer Hickman protesting the size determination of the SBA regarding Campbell and Crown. (see AR 02258-02259)1 In accordance with 13 CFR §121.1003, plaintiff asked the Contracting Officer to forward the protest to the SBA for consideration. However, the

Contracting Officer and/or SBA ignored the protest. Plaintiff also sent a letter dated June 21, 2006 to the SBA protesting, inter alia, awards made to various awardees (including Campbell and Crown) under the subject RFP due to violations of the size requirement. (AR 02260-02553) As such, intervenors' assertion that plaintiff failed to exhaust its administrative remedies regarding size determinations in completely without merit. 5. Plaintiff's Protest is Timely: Intervenors Campbell Roofing & Construction, Inc. ("Campbell Roofing") and MGC/Campbell Roofing & Construction, Inc. ("MGC/Campbell") argue in their motion to dismiss that plaintiff's protest is somehow untimely. However, intervenors' motion to dismiss is without merit and should be denied. In their motion, intervenors cite to this Court's decision in ABF Freight Sys., Inc. v. United States, 55 Fed.Cl. 392 (2003) as alleged support for its position.
As explained herein, plaintiff has cross-moved for leave of Court to further supplement the Administrative Record with this and other information discussed herein (AR 02077-02632).
1

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However, the Court in ABF Freight Sys., Inc. addressed the timeliness of a post award protest alleging defects in the solicitation, rather a protest like the instant one which challenges the evaluation of proposals and awarding of various contracts. Notably, Judge Hewitt even states in her decision that "[t]he statute granting this court's jurisdiction to entertain bid protests does not address the time within which a bid protest must be filed. ABF Freight Sys., Inc. v. United States, 55 Fed.Cl. at 399. Judge Hewitt then goes on to discuss the GAO timeliness rule as it applies to protests challenging defects in the solicitation, and ultimately held that the protest was untimely as it related to defects in the solicitation and was filed four days after awards were made. Notwithstanding this fact, the Court went on to consider the merits of the protest anyway. Since the instant case deals with a post-award protest regarding evaluation of proposals and various contract awards, the GAO timeliness rule is not applicable. As such, intervenors' motion to dismiss in this regard should be denied. III. RESPONSE TO DEFENDANT'S AND INTERVENORS' MOTIONS FOR JUDGMENT ON THE ADMINISTRATIVE RECORD: Counter-Statement of Facts: On November 30, 2005, RFP Solicitation W91278-06-R-0007 ("RFP" or "Solicitation") was issued by U.S. Army Engineer District, Mobile Contracting Division ("Government" or "Defendant") requesting quotes for IDIQ Contracts for Contingency Contract Initiative ("CCI") Temporary Roof Repairs in Supporting of USACE/FEMA Disaster Response in Maryland ("MD"), Virginia ("VA"), North Carolina ("NC"), South Carolina ("SC"), Georgia ("GA"), Florida ("FL"), Alabama ("AL"), Mississippi ("MS"), Louisiana ("LA"), and Texas ("TX"). ("Solicitation"). (AR 154) The Solicitation, as amended, anticipated award of multiple IDIQ contracts, as follows: three unrestricted awards; one HUB Zone award; one Service-Disabled Veteran-Owned Small 13
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Business ("SDVOB") award; and twenty 8(a) awards (two per state for ten states in the covered region). (AR 145) The maximum dollar amounts for each contract was: (a) not-to-exceed $100,000,000.00 for all contracts other than the 8(a) contracts; and (b) not-to-exceed $25,000,000.00 for 8(a) contracts. (AR 145) The procurement was assigned a NAICS Code of 238160 ­ "Roofing Contractors," which had a small business size standard of $12,000,000 average annual receipts. (AR 25) Solicitation Section 00120, ¶2.1.1, "Proposal Compliance Review" (as amended) stated, in pertinent part, as follows: .... [f]rom those offers that passed the Proposal Compliance Review, the Source Selection Authority may limit the numbers of offerors to be passed on to the Source Selection Board to the lowest priced Offerors (usually, the lowest 5-7) under the socioeconomic categories described. (AR 200) Section 00110, ¶1.2 of the Solicitation states in pertinent part that "[r]egardless of how many contracts are awarded, each Offeror will be eligible for award on only one contract..." (AR 190) In 2005, prior to submitting its proposal on the subject solicitation, EEI contacted the SBA asking how the NAICS code standard would be applied to a joint venture that it intended on forming with Ironclad. The SBA advised EEI that Ironclad was a SDVOB and since it would own 51% of the Joint Venture, and since the Joint Venture had no previous contracts, it would be in compliance with the NAICS Code requirements. Based upon the representations made by the SBA, on or about February 2, 2006, Ironclad-EEI submitted a proposal in response to the subject Solicitation requesting consideration for the SDVOB and unrestricted awards. (AR 659) 14
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The following contracts were awarded pursuant to the subject Solicitation: CONTRACT NO. W91278-06-D0027 W91278-06-D0031 W91278-06-D0033 W91278-06-D0028 W91278-06-D0036 W91278-06-D0046 W91278-06-D0045 W91278-06-D0047 W91278-06-D0049 W91278-06-D0048 W91278-06-D0044 W91278-06-D0051 DATE AWARDEE CONTRACT LOCATION IN TYPE ADMINISTRATIVE RECORD 8(a) ­ MS AR 1566 8(a) ­ TX 8(a) ­ AL 8(a) ­ LA SDVOB 8(a) ­ FL 8(a) ­ FL HubZone Unrestricted Unrestricted 8(a) ­ GA AR 1569 AR 1564 AR 1568 AR 1718 AR 1545 AR 1545 AR 1547 AR 1716 AR 1715 AR 1543

3/17/06 3/20/06 3/24/06 3/22/06 4/7/06 5/19/06 5/19/06 5/19/06 5/19/06 5/23/06 5/24/06

S&M Associates, Inc. Crown Roofing Service, Inc. Carter's Contracting Services, Inc. Crown Roofing Services, Inc. Ironclad/EEI ­ Joint Venture R.L. Campbell Roofing Co., Inc. Pete & Ron's Tree Service, Inc. S&M Associates, Inc. Carothers Construction, Inc. Campbell Roofing & Construction, Inc. MGC/Campbell Roofing & Construction, Inc. Ceres Environmental Services, Inc.

5/24/06

Unrestricted

AR 1717

On April 13, 2006, ESA South, an unsuccessful offeror for the SDVOB contract, which had been eliminated from the competitive range, filed a size protest with the Contracting Officer a regarding Ironclad-EEI alleging that while Ironclad met the size standard, EEI exceeded the size standard for the stated NAICS code. (AR 1792) Plaintiff was not notified of the protest until May 1, 2006. On May 17, 2006, the SBA issued Size Determination No. 3-2006-58, wherein it concluded that plaintiff was not a small business. (AR 1787) 15
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On May 25, 2006, as a result of being eliminated from the competitive range, plaintiff requested a Post-Award Debriefing regarding its proposal for the "Unrestricted" category of the procurement pursuant to FAR 15.506. The Government failed to conduct the requested debriefing and, instead, on May 30, 2006, notified plaintiff that it was eliminated from the competitive range for the Unrestricted portion of the procurement because it was not among the lowest 5-7 offerors. On June 8, 2006, the Government issued Modification P00001 to plaintiff's contract, the purpose of which was to modify the contract to reflect a no-cost settlement agreement because the SBA declined to enter into a SDVOB award to Ironclad/EEI. The termination was issued pursuant to FARs 49.101(b) and 46.603-6. (AR 1776) Crown Roofing Services ("Crown") was awarded two 8(a) set-aside contracts under the subject Solicitation. (AR 1568, 1569) However, Government records clearly indicate that Crown was not eligible for these awards, as evidenced by the following (AR 02554-02596): a. Crown had been awarded or has performed on Government contracts in the amount of $14,317,577.00 over the past three years. b. Crown's CCR listing delineates its business as being located in Louisiana and Texas, the two states where it was awarded the 8(a) contracts. On the SBA 8(a) Sources website, Crown lists a Fort Walton Beach, Florida address and telephone number; c. The Fort Walton Beach address and telephone number is also the same address and number for Crown-Campbell Joint Venture, which was formed in 2005, and which shows an average gross revenue of $20,000,000 for the first fiscal year of its existence. The point of contact for the Joint Venture is Ray Palmer, who is also the President of Crown. The SBA profile indicates that this joint venture employs an average of only three employees. d. Campbell Roofing & Construction Co. is a party to 16

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the Crown-Campbell Joint Venture, and who has been awarded one of the unrestricted awards under the subject Solicitation, and has been awarded over $33.4 million in contracts through the Mobile District over the past three years; e. The same Fort Walton Beach address and number is also used as the location of the Crown-Campbell-ThomcoCampbell Joint Venture formed in 2005. Ray Palmer is again listed as a principal to the Joint Venture, along with Eric Campbell of Campbell Roofing, Fred Thomas of Thomco Enterprises, and Roy Campbell of R.L. Campbell Roofing. The SBA profile indicates that this joint venture employs an average of only three (3) employees; f. The same Fort Walton Beach address is the address listed for the CCR Point of Contact for GCC Enterprises, Inc., which was formed in 2002 and which lists Eric Campbell of Campbell Roofing, Roy L. Campbell of R.L. Campbell, and Fred Thomas of Thomco Enterprises, as past performance references. The SBA profile indicates that this company employs an average of only five (5) employees; g. The same Fort Walton Beach address is also the alleged physical location of Thomco Enterprises Inc., which lists Fred Thomas as President; h. The same Fort Walton Beach address is also the alleged physical location of GCC Thomco LLC; i. The same Fort Walton Beach address and number is also the alleged location of the Points of Contact for Campbell/Thomco Joint Venture formed in 2004, and which has indicated average annual gross revenue of $11.666 million. The managing partners of this Joint Venture are listed as Roy Campbell of R.L. Campbell Roofing and Fred Thomas of Thomco Enterprises, who are all or some of the same parties listed for Crown­Campbell­Thomco­Campbell Joint Venture, GCC Enterprises and Thomco Enterprises. MGC-Campbell Roofing & Construction, A Joint Venture, was awarded an 8(a) contract for the State of Georgia, under the subject Solicitation. (AR 1543) MGC is owned by Marvin Campbell, the brother of Eric Campbell, President of Campbell Roofing & Construction, both of whom are listed as Points of Contact for the Joint Venture. The business start date is listed as 17
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August 15, 2005. On August 2, 2005 the same two companies filed a Certificate of Organization in the State of Georgia under the name of Campbell/MGC Roofing & Construction, LLC, a Georgia Limited Liability Company. Said company filed a Certificate of Termination on

November 2, 2005. Campbell Roofing had been awarded or has performed on Government contracts in the amount of $87,323,671.06 over the past three years. (AR 02171-02192) R. L. Campbell Management Services, Inc. (formerly "R.L. Campbell Roofing") was awarded an 8(a) contract for the state of Florida under the subject Solicitation. (AR 1545) R.L. Campbell's President is Roy L. Campbell, the brother of Eric Campbell of Campbell Roofing & Construction and Marvin Campbell of MGC. R.L. Campbell is also affiliated with the

Campbell/Thomco Joint Venture and Crown-Campbell-Thomco-Campbell Joint Venture. Campbell (R.L. Campbell)/Thomco Joint Venture mailing address and/or phone number is the same as Crown-Campbell-Thomco-Campbell Joint Venture, Thomco Enterprises, GCC Thomco, LLC, GCC Enterprises, Crown Roofing, and Crown-Campbell Joint Venture. R.L. Campbell is listed as a principal of the Crown-Campbell-Thomco-Campbell Joint Venture and as a Past Performance Reference for GCC Enterprises. (AR 02094-02146) On May 30, 2006, Plaintiff sent a protest to the Contracting Officer notifying it of its belief that R.L. Campbell, an awardee under the Solicitation (Contract W91278-06-D-0046 ­ 8(a) - Florida), was not a small business, as evidenced by the following: a. In 2004-2005, R.L. Campbell was awarded contracts by the Corps, which clearly established that it could no longer qualify as a small business in accordance with the established NAICS Code standard. In 2004, Thomco/R.L. Campbell, J.V. was awarded a contract by the Corps for temporary roof repair in response to Hurricane Frances in the amount of $22,000,000 (Contract No.W91278-04-D-0062, dated 1/28/04). Also in 2004, R.L. Campbell was awarded an additional contract by the Corps for temporary roof repair (Contract No. W912EP-04D-0038, dated 9/16/04). In 2005, R.L. Campbell as awarded a 18
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contract by the Corps for temporary roof repair in the amount of $3,000,000 (Contract No.W91278-05-D-0027, dated 7/5/05)). The letter further stated that it is clearly evident that R.L. Campbell's three-year average of its gross receipts based on these contracts alone was significantly more than the $12,000,000.00 NAICS limit. Additionally, these contracts did not represent R.L. Campbell's only contracts during this time period; b. The SBA's CCR profile shows that R.L. Campbell has an average gross revenue of $15,365,000.00, which is also in excess of the $12,000,000.00 size standard. Therefore, R.L. Campbell could not have properly certified itself as a small business under the Solicitation. c. Pursuant to 13 CFR § 121.103(g), it is believed that R.L. Campbell is affiliated with Crown Roofing, another 8(a) awardee because both concerns share the same office and use the same contract negotiator. Therefore, their gross receipts, when combined, also exceed the size standard, and therefore, Crown should also be disqualified; d. Also, by reason of identity of interest under 13 CFR § 121.103(g) it is believed that R.L. Campbell is affiliated with family members' businesses in the same line of work, specifically: (1) MGC Roofing and Construction, with average annual gross receipts of $6,300,000.00; (2) Thomco Enterprises, Inc., with average annual gross receipts of $6,700,000.00; (3) Campbell/Thomco Joint Venture, with average annual gross receipts of $11,666,666.00; and (4) Campbell Roofing & Construction, Inc. an admitted large business owned by the brother (Eric Campbell) of R.L. Campbell and the awardee of a unrestricted contract under the solicitation. (AR 02258-02259; AR 02086-02146; AR 02171-02192; AR 02204-02222; AR 02223-02257; AR 02586-02596) The letter further stated that when credible evidence exists that an apparent awardee has submitted an inaccurate certification of its size, the procuring agency can no longer accept the firm's self-certification and that the procuring agency would file a protest with the SBA. Plaintiff concluded by requesting that the Government file the appropriate size

determination and affiliation protest, or cancel the procurement and reissue the solicitation under a higher dollar size standard. Based upon best information and belief, the Government never 19
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forwarded this protest to the SBA for consideration. Contracting Specialist Mary Ann Sawyer stated to EEI that she jokingly told Erica Campbell that at least she could have at least submitted the proposals for Campbell, Crown and Thomco in different colored binders. (AR 02631-02632) This relates to the fact that all these offerors submitted their proposals in the same sort of binding. On June 21, 2006, Plaintiff submitted another Size Determination protest to the SBA regarding a number of contracts awarded under the subject solicitation, which evidenced a number of critical errors to justify the cancellation of the awarded contracts and the re-bid of the solicitation in all categories. (AR 02260-02553) Specifically plaintiff alleged that: (1) serious size standard issues exist for Crown Roofing Service, R.L. Campbell Roofing Co., and MGC/Campbell Roofing & Construction all of whom received 8(a) contracts; (2) serious affiliation issues among the same above-referenced companies; (3) serious performance problems on previous contracts awarded to Crown and Campbell Roofing; and (4) serious problems existed regarding past contract awards under different solicitations for the same temporary roofing service. No response from the SBA has ever been issued in response to this protest. Plaintiff further alleged in its protest to the SBA that Mr. Hickman and Mr. Slana of the Army Corps of Engineers, Jacksonville District acknowledged that Thomco/R.L. Campbell, JV was paid $22,000,000.00 in Hurricane Frances contracts. Furthermore, when the Corps was notified of that the CCR registry for R.L. Campbell indicated a size in excess of the NAICS code standard, the Corps stated that it had received an acceptance letter from the SBA, so it was no longer its problem. The SBA has denied that such a letter exists and that the issuance of such a letter is not a typical action that is taken for this type of procurement procedure. On May 4, 2006, the Government issued Solicitation Amendment 0012, which modified 20
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the language in Section 00110, ¶1.2 of the Solicitation by eliminating the restriction that only one contract could be awarded to each offeror. (AR 444) Prior to the issuance of Solicitation Amendment 0012, the Government had awarded two contracts to Crown Roofing Service. (AR 1568, 1569) After the issuance of Solicitation Amendment 0012, the Government awarded a second contract to S&M Associates (AR 1547) There is no evidence in the Administrative Record that Plaintiff was ever issued a copy of Solicitation Amendment 0012. The Administrative Record only contains evidence that Solicitation Amendment 0012 was issued Ceres Environmental (AR 441) and Carothers Construction (AR 1312) B. Legal Argument: 1. Plaintiff Was Prejudiced By Improper Issuance of Amendment 12:

Defendant argues that Amendment 12 was properly issued because it was the intent of the Government to issue the RFP without the "one contract per contractor" limitation, and that the inclusion of this limitation was an oversight that was corrected by the issuance of Amendment 12. Defendant further asserts that its failure to properly issue Amendment 12 to plaintiff was proper since it had already been eliminated from the competitive range for the unrestricted award. Finally, according to defendant, Amendment 12 was not a "change" to the RFP, but was merely a "clarification" of the Government's existing understanding. First, defendant admits that it failed to include the proper language in the RFP regarding the number of contracts an offeror could be awarded. Specifically, in her Affidavit, Contract Specialist Mary Sawyer states that "the Mobile District discovered" on or about May 3. 2006 that the limitation of one contract per offeror had not been deleted from the RFP. (Sawyer Affidavit ¶ 21
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12) Ms. Sawyer further admits that Amendment 12 was subsequently issued on May 4, 2006 in order to "correct a clerical error in the issuance of Amendment 1." (Sawyer Affidavit ¶12) Despite Ms. Sawyer's attempts to classify Amendment 12 as merely a "clarification," it was clearly a material change to the terms of the RFP. In fact, Amendment 12 contains language completely opposite to that which was contained in the RFP, changing the terms of the RFP to permit offerors to submit a proposal for more than one award. Defendant argues that even if Amendment 12 is an admission of an error, plaintiff was not prejudiced by it. Plaintiff agrees that FAR §15.206 provides, inter alia, that amendments issued after the closing date of receipt of proposals must be issued to all offerors that had not been eliminated from the competitive range, and that plaintiff had already been eliminated from the competitive range at the time Amendment 12 was issued. However, there are limitations to FAR §15.206. Specifically, if the subject of an amendment is directly related to the reasons that an offeror has been eliminated from the competitive range, as is the case here, or that the amendment materially changed the initial solicitation provisions, as it does here, then the amendment must be issued to that offeror. See Candle Corporation v. United States, 40 Fed.Cl. 658 (1998); see also, Amperif Corporation, B-211992, 84-1 CPD ¶ 409; Information Ventures, Inc., B-232094, 88-2 CP ¶ 443; American Medical Depot, B-285060, 2002 CPD ¶ 7,200. Next, defendant argues that there is a "presumption of regularity" regarding the Government's actions, and that allegations of bad faith must be supported by "almost irrefragable" proof. According to defendant, since there is allegedly no evidence of bad faith in this case, Amendment 12 was properly issued. However, as explained above, the issue in this case is not "bad faith" as defendant alleges. As the Candle Corporation and related cases cited above make clear, the amendment must be issued to all offerors regardless of the intent of the 22
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Government.

As such, there is no presumption of regularity regarding the issuance of

Amendment 12, nor is plaintiff required to provide "almost irrefragable" proof. Amendment 12 was a material change to the terms of the RFP, and related specifically to the reason plaintiff was eliminated from the competitive range. According to the defendant, the reason plaintiff was eliminated from the competitive range was that it was not one of lowest 5-7 offerors for the "unrestricted" award. However, it must be noted that Ironclad-EEI was ranked eighth in price, only one spot below the seven-proposal cut-off. Furthermore, Amendment 12 goes directly to the reason it was eliminated. As stated in the Affidavit of Matthew Curnutte, plaintiff's prices would have been measurably lower if it had were allowed to be considered for multiple awards. There is more than a substantial chance that this reduction in price would have placed plaintiff within the 5-7 lowest priced offerors. This would have, in turn, resulted in plaintiff's proposal being evaluated by the Source Selection Board, and the probable award of additional contracts. According to defendant, Matthew Curnutte's affidavit is speculative and should not be considered. However, defendant fails to articulate to the Court what evidence of prejudice would not be considered speculative. Mr. Curnutte, having personal knowledge, advises the Court of the reduction in price that would have occurred in an affidavit under the penalty of perjury. This is the only possible way plaintiff could show prejudice in this case. Plaintiff would argue that defendant's claim that had Amendment 12 been properly issued, then all offerors for the unrestricted award would have also lowered their prices, is speculative since it is not based upon personal knowledge and/or sworn affidavits. In any event, assuming defendant were correct, then this only supports plaintiff's argument that the entire RFP should be reissued and all proposals reevaluated. 23
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Furthermore, had plaintiff's proposal been properly reviewed by the Source Selection Board, it would have had at least substantial chance of being awarded an unrestricted contract given the exemplary ratings it had received for the SDVOB evaluation. The following is a comparison of the ratings of proposals evaluated for the unrestricted award with plaintiff's ratings (see AR 1549-1552): Factor/ Subfactor Audell/ Witt Very Good Campbell* Very Good OFFEROR Carothers* Very Good Ceres* Exceptional EEI/ Ironclad Exceptional

Specialized Experience in Disaster Response Past Very Good Performance Firms' Very Good Capacity Past Safety Exceptional Performance Compliance Acceptable with Stafford Act * Actual Awardees

Satisfactory Very Good Very Good Acceptable

Satisfactory Satisfactory Exceptional Acceptable

Very Good Very Good Marginal Acceptable

Exceptional Very Good Very Good Acceptable

Pursuant to Section 00120, Para 3.0 of the Solicitation ("Evaluation Factors"), "Specialized Experience" is the most important evaluation factor, followed by "Past Performance" and "Firm Capacity." A review of the foregoing ratings clearly evidences that the plaintiff's ratings for the most important three factors were significantly higher than the three firms who were awarded the unrestricted contracts. As such, the evidence in this case supports plaintiff's argument that the Government's failure to issue Amendment 12 in a proper manner was a violation of the law/RFP that prejudiced plaintiff. 2. Plaintiff Was Prejudiced By Defendant's Failure to Properly Apply NAICS Code: 24
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With respect to Court One of the Complaint, defendant argues that: (1) plaintiff lacks standing to object since it did not bid on 8(a) awards; (2) the administrative record does not contain evidence to support plaintiff's position that defendant unfairly and unevenly applied the NAICS Code; and (3) the Contracting Officer had a right to rely on the self-certification provided by offerors regarding size. As explained above, and as reiterated below, even though it is not an 8(a) firm, plaintiff has standing as an "interested party" to protest any awards made under the subject RFP. Second, as explained above, plaintiff has cross-moved herein for leave of Court to further supplement the administrative record with the evidence requested by defendant and intervenors. The documents at "Exhibit 1" attached hereto, provide support for the

allegations made by plaintiff in its complaint, and in its motion for judgment on the administrative record, that defendant has unfairly and unevenly applied the NAICS Code in this procurement. Finally, contrary to defendant's position, the Contracting Officer improperly relied upon self-certifications regarding size from offerors when defendant, upon information and belief, possessed information which contradicted the same. i. Plaintiff Has Standing to Protest All Contracts Awarded Under RFP:

Plaintiff incorporates by reference its discussion regarding standing from its opposition to defendant's and intervenors' motions to dismiss herein. That said, plaintiff reiterates that it does, in fact, have standing to protest the 8(a) awards by virtue of its submission of a proposal under the subject RFP. For plaintiff to establish that it is an "interested party," it must demonstrate that: (1) it suffered sufficient "injury-in-fact"; (2) that the injury is "fairly traceable" to the agency's decision and is "likely to be redressed by a favorable decision;" and (3) that the interests sought to be protected are "arguably within the zone of interests to be protected or regulated by the 25
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statute ... in question." American Fed'n of Gov't Employees, AFL-CIO v. United States ( AFGE ), 46 Fed.Cl. 586, 595 (2000), (quoting National Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479, 488, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998)). See also CHE Consulting, Inc. v. United States, 47 Fed.Cl. 331 (2000) (applying the APA standard to determine "interested party" status under 28 U.S.C. § 1491(b)). Plaintiff has alleged an injury in this protest in the form of lost contracts and, therefore, lost profits. Economic or financial injury has been deemed to be a sufficient injury for purposes of standing. See CHE Consulting, Inc. v. U.S., 47 Fed.Cl. 331, 338 (2000); Data Processing Serv. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Plaintiff's injury is "fairly traceable" to defendant's violations of the law and RFP alleged herein (i.e. improper issuance of Amendment 12, unfair and unequal application of NAICS code/size standards, improper termination of SDVOB contract). Finally, the interests of plaintiff sought to be

protected herein are "arguably within the zone of interests to be protected or regulated by the statute." Promoting competition is certainly one of the interests within the zone of interests to be protected by CICA. 10 U.S.C. § 2304(a)(1)(A). Defendant and intervenors argue that even if defendant has committed a violation, that plaintiff has not been prejudiced since it is not an 8(a) firm and, therefore, cannot be considered for 8(a) awards. However, the subject RFP anticipated the award of multiple contracts (8(a), HUBZone, SDVOB, Unrestricted). Plaintiff submitted a proposal pursuant to the subject RFP and therefore, and was awarded the SDVOB contract. Defendant terminated plaintiff's contract because it exceeded the size requirement for the SDVOB award. However, at the same time, defendant awarded contracts to the firms discussed herein who also exceed the size requirements for their respective awards. Since all of these awards were made pursuant to the same RFP, 26
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defendant has an obligation to treat all offerors submitting proposals in response to that RFP fairly and equally. If one or more offerors receives preferential treatment, as was the case here, then the other offerors have standing to protest. ii. Plaintiff Has Moved to Supplement Record With Evidence Requested By Defendant/Intervenors Which Shows Unfair Application of NAICS Codes by Defendant:

In response to defendant's and intervenors' complaints regarding the administrative record, plaintiff has moved the Court herein for leave to supplement the record with evidence supporting its claims. As stated above, the bulk of the information attached at "Exhibit 1" are documents which support plaintiff's allegations regarding defendant's unfair and uneven application of the NAICS codes. All of this information is public information from public sources (i.e. Government web sites), which shows affiliations and connections between the various entities discussed in the Complaint. It is plaintiff's position that all of this information should have already been included by defendant as part of the administrative record. 13 C.F.R. § 121.103(f) provides, in pertinent part, as follows: Affiliation based on identity of interest. Affiliation may arise among two or more persons with an identity of interest. Individuals or firms that have identical or substantially identical business or economic interests (such as family members, individuals or firms with common investments, or firms that are economically dependent through contractual or other relationships) may be treated as one party with such interests aggregated.... (emphasis added) The SBA has established a long-standing precedent that 13 C.F.R. §

121.103(f) creates a rebuttable presumption that family members have identical interests and must be treated as one person, unless the family members are estranged or are not involved with each other's businesses, showing a "clear line of fracture." See, for e.g., Size Appeal of Technical Support Services, SBA No. SIZ-4751 (2006); Size Appeal of Gallagher Transfer & 27
PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH U.S. COURT OF FEDERAL CLAIMS PROTECTIVE ORDER

Case 1:07-cv-00280-LJB

Document 42

Filed 08/02/2007

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Storage Co., Inc., SBA No. SIZ-4295 (1998); Size Appeal of Orirus, Inc., SBA No. SIZ-4546 (2006). A challenged firm may demonstrate a "clear line of fracture" by proving that no business relationship exists or that there is no involvement with each other's businesses. Some of the factors examined in determining the identity of interest are: the nature of the family relationship; the type of business in which each family member is engaged; the physical location of the b