Free Motion to Supplement the Administrative Record - District Court of Federal Claims - federal

Case 1:07-cv-00280-LJB

Document 29

Filed 06/21/2007

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UNITED STATES COURT OF FEDERAL CLAIMS _____________________________________ IRONCLAD-EEI, A Joint Venture, Plaintiff, v. UNITED STATES, Defendant, and CAMPBELL ROOFING & CONSTRUCTION, INC., MGC/CAMPBELL ROOFING & CONSTRUCTION, INC., Intervenor-defendants. ______________________________________ PLAINTIFF'S MOTION TO SUPPLEMENT ADMINISTRATIVE RECORD Plaintiff, Ironclad-EEI, respectfully moves to supplement the administrative record and states as follows: Introduction Plaintiff moves the Court for leave to supplement the administrative record to include the following: (1) additional documents produced by defendant on June 18, 2007 (Bates stamp 2000 through 2050) (attached hereto as Exhibit 1); and (2) Affidavit of Matthew Curnutte dated June 20, 2007 (attached hereto as Exhibit 2). As argued herein, 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. The attached documents will assist the Court in this regard as they show that the Government treated plaintiff unequally and unfairly in awarding contracts under the subject 1
PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH U.S. COURT OF FEDERAL CLAIMS PROTECTIVE ORDER

Case No. 07-280C (Judge Bush)

Case 1:07-cv-00280-LJB

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Filed 06/21/2007

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solicitation. Argument 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, and possibly limited discovery, aimed at determining, for example, whether other materials were considered, or whether the record provides an adequate explanation to the protester or the 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. "Whether testimony is needed to frame the issues is likewise dependent on the particular circumstances." Id. "Consequently, this court has adopted a flexible approach both in putting together the evidence that will be considered and in discovery, balancing the limited nature of the court's review with the competing need to recognize potential exceptions to treating the agency's submission as the four corners of the inquiry." (emphasis added) Id. Plaintiff asks the Court to utilize this "flexible approach" in this instance. Defendant has advised that it does not oppose plaintiff's motion to supplement the administrative record with the additional documents provided on June 18, 2007 (Bates 2000-2050) (see "Exhibit 1"). These documents include pre-award documents for Carothers Construction, Inc., and Ceres Environmental Services, Inc., Solicitation Amendment 0010, Solicitation Amendment 0012, and 2
PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH U.S. COURT OF FEDERAL CLAIMS PROTECTIVE ORDER

Case 1:07-cv-00280-LJB

Document 29

Filed 06/21/2007

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pre-award abstracts relating to the SDVOB and unrestricted contracts. Since the Government does not oppose supplementation of the administrative record with these documents, and since they will assist the Court in deciding this protest, plaintiff respectfully asks the Court for leave to include them as part of the record in this case. Plaintiff also seeks leave of Court to supplement the record with the Affidavit of Matthew Curnutte, partner of the joint venture of Ironclad-EEI, in order to show prejudice to plaintiff (see "Exhibit 2"). "[A]n attempt to show prejudice is also an appropriate basis for supplementing the record." Hunt Building Co., Ltd. v. U.S., 61 Fed.Cl. 243, 272 (2004), citing Strategic Analysis, Inc. v. United States Department of the Navy, 939 F.Supp. 18, 23 n. 7 (D.D.C., 1996) (acknowledging that, while normally judicial review of a bid protest is limited to the administrative record, the submission of an affidavit of a company executive is a proper way to demonstrate prejudice), citing Data General Corp. v. Johnson, 78 F.3d 1556, 1563 (Fed.Cir.1996)). The subject Solicitation provides, inter alia, that "[r]egardless of how many contracts are awarded, each Offeror will be eligible for award on only one contract..." As stated in the Affidavit of Matthew Curnutte, plaintiff's proposal was based upon this restriction. ("Exhibit 2," ¶4) The last Amendment received by plaintiff was Amendment 10 dated January 31, 2006. ("Exhibit 2," ¶5) Plaintiff never received a copy of Amendment 0012 from the Government, which eliminated the original Solicitation restriction that only one contract award could be awarded to each offeror. ("Exhibit 2," ¶6) If Amendment 0012 had been issued in a timely manner before the closing date for receipt of proposals, plaintiff's price proposal would have been lower due to the decrease in cost as a result of the potential for a significantly higher volume of work that would be ordered under multiple awards. ("Exhibit 2," ¶7) This would have 3
PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH U.S. COURT OF FEDERAL CLAIMS PROTECTIVE ORDER

Case 1:07-cv-00280-LJB

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Filed 06/21/2007

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put plaintiff in contention for the "Unrestricted" awards since it was rated first in the SDVOB category. ("Exhibit 2," ¶7) As such, the Affidavit of Matthew Curnutte shows that plaintiff had a substantial chance of receiving additional awards but for defendant's unequal treatment of plaintiff. For this reason, plaintiff respectfully asks the Court to supplement the record to include the Curnutte Affidavit. WHEREFORE, based on the foregoing, plaintiff respectfully moves the Court for leave to supplement the administrative record to include the documents produced by the Government on June 18, 2007 ("Exhibit 1"), and the Affidavit of Matthew Curnutte dated June 20, 2007 ("Exhibit 2"). Dated: June 21, 2007 Respectfully submitted,

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

CERTIFICATE OF SERVICE I hereby certify that on this 21st day of June, 2007, a copy of Plaintiff's Motion to Supplement 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/ Kevin M. Cox Kevin M. Cox

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PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH U.S. COURT OF FEDERAL CLAIMS PROTECTIVE ORDER