Free Motion for Judgment on the Administrative Record - 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. ______________________________________ (Judge Bush)

PLAINTIFF'S MOTION FOR JUDGMENT UPON ADMINISTRATIVE RECORD

Dated: June 21, 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...........................................................................................ii Statement of Case.................... .........................................................................1 Statement of Facts..............................................................................................2 Statement of Issues.................... .......................................................................11 Argument.......................................................................................................11 . 1. Legal Standard for Motions for Judgment Upon the Administrative Record ........................................................11 Defendant Improperly Amended the RFP to Permit Multiple Awards to Only Certain Offerors:....................................13 Defendant Treated Plaintiff Unequally and Unfairly in Applying NAICS Size Standard .......................................................17 Defendant Improperly Terminated Plaintiff's Contract...............................23

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TABLE OF AUTHORITIES Federal Cases Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir. 1999) Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) Banknote Corp. of America, 365 F.3d at 1351, aff'g, 56 Fed.Cl. 377, 380 (2003) Bannum, Inc. v. United States, 404 F.3d 1346, 1355 (Fed.Cir.2005) Bean Dredging Corp. v. United States, 22 Cl.Ct. 519, 522 (1991) Candle Corp. v. United States, 40 Fed.Cl. 658 (1998) Data General Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996) Honeywell, Inc. v. United States, 870 F.2d 644, 647-48 (Fed.Cir.1989) Howell Constr., Inc. v. United States, 12 Cl.Ct. 450, 452 (1987) Hunt Building Co., Ltd. v. U.S., 61 Fed.Cl. 243, 274 (2004) International Outsourcing Services, L.L.C. v. U.S., 69 Fed.Cl. 40, 45 (2005) Isometrics, Inc. v. U.S., 5 Cl.Ct. 420, 425 (1984) LaBarge Prod., Inc. v. West, 46 F.3d 1547, 1555 (Fed.Cir.1995) Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed.Cir.1996)
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Tidewater Homes Realty, Inc., 1996 WL 738431 TLT Constr. Corp. v. United States, 50 Fed.Cl. 212, 216 (2001) Federal Statutes 28 U.S.C. § 1491(b)(4) (2000) 5 U.S.C. § 706(2)(A) (2000) 41 U.S.C. § 253(a)(1)(A) Federal Regulations 13 C.F.R. 121.1009(g)(2) 13 CFR § 121.103(g) 48 C.F.R. 15.206(c) FAR 15.506 FAR 49.101(b) FAR 49.603-6 Other Authorities Bishop Contractors, Inc., B-246526 (December 17, 1991), 91-2 CPD ¶ 555, 1991 WL 280099 Canberra Industr., Inc., B-271016 (June 5, 1996), 96-1 CPD ¶ 269, 1996 WL 302696 Custom Environmental Service, Inc., B-2429000, 91-1 CPD ¶ 578 Cylink Corp., B-242304 (April 18, 1991), 91-1 CPD ¶ 384, 1991 WL 86975 Ensign-Bickford Company, B-275,243, 97-1 CPD ¶ 93
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O.J. Best Services, Inc., B-276954, 97-1 CPD ¶ 231 Republic Floors, Inc., B-242962, 91-1 CPD ¶ 579 Sarasota Measurements & Controls, Inc., B-252406; B-252406.2, June 25, 1993, 93-1 CPD 494 Secure Servs. Technology, Inc., B-238059, Apr. 25, 1990, 90-1 CPD ¶ 421 Shemya Constructors, B-232928, 89-1 CPD ¶ 108 Topley Realty Co., Inc., 65 Comp. Gen. 510 (1986)

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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 FOR JUDGMENT UPON ADMINISTRATIVE RECORD Plaintiff, Ironclad-EEI ("plaintiff"), pursuant to Rule 52.1 of the Rules of the Court of Federal Claims, respectfully moves for judgment upon the Administrative Record and states as follows: Statement of Case As argued herein, plaintiff has been prejudiced by the Government's handling of the subject procurement. First, the Government prejudiced plaintiff by its failure to amend the RFP as it relates to plaintiff to allow for multiple awards, while at the same time amending the RFP as it related to other offerors to permit multiple awards. But for the Government's unequal treatment, plaintiff would have submitted a lower-priced offer and had at least a substantial chance of receiving at least 1
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one of the "Unrestricted" awards. Second, defendant failed to apply the NAICS code size standard equally and evenly to all offerors. More specifically, defendant canceled an award to plaintiff for exceeding the SDVOB size requirement, while at the same time awarding contracts to several other offerors who also exceeded the 8(a) and HubZone size requirements. Plaintiff has been prejudiced by defendant's doublestandard since, but for the unequal treatment, it would have received at least one SDVOB contract. Finally, in addition to the termination of plaintiff's contract being wrongful for the reasons stated above, it was also procedurally defective. As argued herein, defendant's termination was improper because: contrary to the position taken by defendant, the SBA was not required to sign off on the contract; the contracting officer failed to issue a notice of termination; and defendant abused its discretion in using an OHA decision after award to serve as the basis for a termination. Based on the foregoing, asks the Court to set aside the awards made by defendant pursuant to the subject RFP, and to re-issue the RFP and administer the same in accordance with its terms and the law. Statement of Facts 1 Pursuant to Rule 52.1 of the Rules of the Court of Federal Claims, plaintiff files its Statement of Facts in support of its Motion for Judgment Upon the Administrative Record and states as follows: 1. 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
Plaintiff cites to the Administrative Record whenever possible. However, many of the documents supporting the facts stated herein were not provided by defendant as part of the Administrative Record. Furthermore, plaintiff could not cite
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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) 2 2. 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 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) 3. 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) 4. 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) 5. 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)
to defendant's Answer for support since defendant has not filed an Answer in this case.

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6.

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. 7. 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) 8. The following contracts were awarded pursuant to the subject Solicitation: 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 AR 1569 AR 1564 AR 1568 AR 1718 AR 1545 AR 1545 AR 1547 AR 1716 AR 1715 AR 1543

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-D2

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 Unrestricted Construction, Inc. Campbell Roofing & Unrestricted Construction, Inc. MGC/Campbell 8(a) ­ GA

"AR _____" refers to a page in the Administrative Record.,

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0044 W91278-06-D0051 5/24/06

Roofing & Construction, Inc. Ceres Environmental Unrestricted Services, Inc.

AR 1717

9.

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. 10. 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) 11. 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. 12. 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. 13. 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) 14. 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

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was not eligible for these awards, as evidenced by the following: 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 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-Thomco-Campbell 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; 6
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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 Crown­Campbell­ Thomco­Campbell Joint Venture, GCC Enterprises and Thomco Enterprises. 15. 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 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. 16. 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 CrownCampbell-Thomco-Campbell Joint Venture, Thomco Enterprises, GCC Thomco, LLC, GCC 7
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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. 17. On May 30, 2006, Plaintiff sent a letter to the Government notifying them 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-04-D-0038, dated 9/16/04). In 2005, R.L. Campbell as awarded a 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 8
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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. 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 selfcertification 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 forwarded this protest to the SBA for consideration. 18. 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. This relates to the fact that all these offerors submitted their proposals in the same sort of binding. 19. 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. 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 9
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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. 20. On May 4, 2006, the Government issued Solicitation Amendment 0012, which

modified 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) 21. Prior to the issuance of Solicitation Amendment 0012, the Government had awarded

two contracts to Crown Roofing Service. (AR 1568, 1569) 22. After the issuance of Solicitation Amendment 0012, the Government awarded a

second contract to S&M Associates (AR 1547) 23. There is no evidence in the Administrative Record that Plaintiff was ever issued a

copy of Solicitation Amendment 0012. 24. The Administrative Record only contains evidence that Solicitation Amendment 0012

was issued Ceres Environmental (AR 441) and Carothers Construction (AR 1312) Statement of Issues

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1.

Whether defendant violated the RFP and procurement laws and regulations by

failing to amend plaintiff's RFP in the same manner it did other awardees to allow for multiple contract awards? 2. Whether defendant violated the RFP and procurement laws and regulations by

unequally and unfairly applying the NAICS size standard contained in the RFP to plaintiff and other awardees? 3. Whether defendant's termination of plaintiff's Contract violated applicable laws

and regulations? 4. Whether plaintiff was prejudiced by defendant's violations of the subject RFP

and/or applicable laws and/or regulations? Argument 1. Legal Standard for Motions for Judgment Upon the Administrative Record: The Federal Circuit, in Bannum, Inc. v. United States, 404 F.3d 1346, 1355 (Fed.Cir.2005), recently held that courts must "distinguish ... [a] judgment on the administrative record from a summary judgment requiring the absence of a genuine issue of material fact." The Federal Circuit made clear in Bannum that "the existence of a fact question neither precludes the granting of a motion for judgment nor requires this Court to conduct a full blown evidentiary proceeding." International Outsourcing Services, L.L.C. v. U.S., 69 Fed.Cl. 40, 45 (2005). Rather, such fact questions must be resolved by reference to the administrative record, as properly supplemented "as if [this court] were conducting a trial on [that] record." Bannum, 404 F.3d at 1357. In a bid protest case, this Court will enjoin the government only where an agency's actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A) (2000); see also 28 U.S.C. § 1491(b)(4) (2000). This standard recognizes the possibility 11
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of a zone of acceptable results in a particular case and requires only that the final decision reached by an agency be the result of a process which "consider[s] the relevant factors" and is "within the bounds of reasoned decisionmaking." Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). It is the burden of the aggrieved bidder to demonstrate that the challenged agency decision is either irrational or involved a clear violation of applicable statutes and regulations. Banknote Corp. of America, 365 F.3d at 1351, aff'g, 56 Fed.Cl. 377, 380 (2003). An agency's failure to follow the terms of its own Solicitation and selection of an offeror based upon different requirements than those imposed upon the only other offeror are quintessential examples of conduct which lacks a rational basis. See, e.g., LaBarge Prod., Inc. v. West, 46 F.3d 1547, 1555 (Fed.Cir.1995). The agency's failure to follow its own selection process embodied in the Solicitation is also a prejudicial violation of a procurement procedure established for the benefit of offerors. Banknote, 365 F.3d at 1351. Further, "to prevail in a protest the protester must show not only a significant error in the procurement process, but also that the error prejudiced it." Data General Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996). To demonstrate prejudice, "the protestor must show `that there was a substantial chance it would have received the contract award but for that error.' " Alfa Laval Separation, 175 F.3d at 1367 (quoting Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed.Cir.1996)). 2. Defendant Improperly Amended the RFP to Permit Multiple Awards to Only Certain Offerors: In its Complaint, Plaintiff alleges that the Government improperly awarded more than one contract to two offerors (S&M Associates, Crown Roofing) in violation of Solicitation Section 12
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00110, ¶1.2 which provides that "[r]egardless of how many contracts are awarded, each Offeror will be eligible for award on only one contract..." The Administrative Record references the issuance of RFP Amendment 0012 dated May 4, 2006, which was issued more than three (3) months after the closing date for the receipt of the proposals. The pertinent part of Amendment 0012 eliminated the restriction that each Offeror could receive only one award. Plaintiff never received a copy of the Amendment 0012, (See "Exhibit 2" of Plaintiff's Motion to Supplement the Administrative Record, hereinafter referred to as "Curnutte Affidavit," at ¶6), and as evidenced by its Proposal which does not contain an acknowledgement of receipt of this Modification. Additionally, the Administrative Record contains no evidence that the Amendment was ever issued to plaintiff. Pursuant to 48 C.F.R. 15.206(c), "[a]mendments issued after the established time and date for receipt of proposals shall be issued to all offerors that have not been eliminated from the competition." The contracting agency has an affirmative duty to use reasonable methods to insure that all solicitation documents, including amendments, are sent to prospective contractors. O.J. Best Services, Inc., B-276954, 97-1 CPD ¶ 231.3 Similarly, a contractor is obligated "to avail themselves of reasonable opportunities to obtain solicitation documents." O.J. Best, supra., citing Shemya Constructors, B-232928, 89-1 CPD ¶ 108. In order to prove a violation of this section of the RFP, it must be shown that the Government made a deliberate attempt to exclude a firm from competing or that the Government failed to follow reasonable established procedures for distribution of amendments. Ensign-Bickford Company, B275,243, 97-1 CPD ¶ 93. Failure to follow a reasonable established procedure for dissemination
3

Plaintiff acknowledges that the Court of Federal Claims is not bound by the decisions of the Comptroller General/GAO, however, this Court has acknowledged that "the court may accord deference to them in recognition of the expertise and role of the General Accounting Office in the resolution of contested procurement decisions." Bean Dredging Corp. v. United States, 22 Cl.Ct. 519, 522 (1991) (citing Honeywell, Inc. v. United States, 870 F.2d 644, 647-48 (Fed.Cir.1989); Howell Constr., Inc. v. United States, 12 Cl.Ct. 450, 452 (1987)).

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constitutes a violation of the Federal Acquisition Regulations and the Competition in Contracting Act 41 U.S.C. § 253(a)(1)(A), which requires full and open competition through the use of competitive procedures in accordance with Federal Regulations. Custom Environmental Service, Inc., B-2429000, 91-1 CPD ¶ 578, Republic Floors, Inc., B-242962, 91-1 CPD ¶ 579. Plaintiff alleges that it availed itself of the only reasonable method of tracking and receiving Solicitation amendments by its registration in FedBizOpps. (see Curnutte Affidavit, ¶ 2) However, since FedBizOpps only provides notice of amendments issued prior to the established submittal date for proposals, plaintiff would be required to rely on the Government's procedure of notification for all amendments issued after proposal submission. The Government's failure to issue Amendment 0012 to plaintiff constituted a violation of 48 C.F.R. 15.206(c), given the aforementioned criteria and based upon the following: a. Based upon the information contained, and not contained, within the Administrative Record, Amendment 0012 was deliberately issued selectively only to certain firms for the purpose of allowing those firms the right to be awarded more than one contract in violation of the RFP; b. Amendment 0012 was issued more than three months after the closing date for receipt of proposals and failed to allow offerors to submit Best and Final Offers ("BAFO"), despite the fact that the Government knew prior to March, 2006 that it intended to award two contracts to Crown Roofing in violation of the original RFP restriction, c. Amendment 0012 was issued in bad faith for the purpose of providing after-the-fact justification of its previous award of two contracts to Crown Roofing Services, and to provide justification of its anticipated subsequent award of a second contract to S&M Associates. Based upon the foregoing, the Government's actions constitute a violation of the RFP and aforementioned laws and regulations. The Government purposely ignored its procedure for 14
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distribution and dissemination of procurement information, by its selective issuance of Amendment 0012 to only some of the offerors. In so doing, the Government deliberately excluded plaintiff from receiving more than one award, despite the fact that its proposal was for more than one category of award. As stated above, once it is established that a violation occurred, a protestor must show that it was prejudiced by the violation. Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir. 1999); Candle Corp. v. United States, 40 Fed.Cl. 658 (1998). Plaintiff was severely prejudiced by the Government's failure to properly issue a timely amendment and insure that it had received a copy. Amendment 0012 was a material amendment to the RFP, as it eliminated a contracting restriction that had a significant impact on pricing. If the Amendment had been properly issued prior to the submission date for proposals, plaintiff's price would have been significantly less 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. This decrease would be approximately 13.77% for installation of Government-furnished plastic, which would represent the significant majority of the work that would be performed, and approximately 6.88% lower for furnishing and installing structural panels, joists, and rafters. (Curnutte Affidavit ¶ 7) Plaintiff had submitted a proposal for both the SDVOB and Unrestricted procurements and was therefore an interested party to be considered for both awards. Solicitation Section 00120, ¶2.1.1, "Proposal Compliance Review" provides, in pertinent part, that "[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." Pursuant to the Abstract of Offerors for the "Unrestricted" Award, plaintiff's proposal was initially ranked number 8, which effectively 15
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eliminated it from consideration based upon the above stated criteria. (See "Exhibit 1" to Plaintiff's Motion to Supplement the Administrative Record, Bates No. 2000). Considering the significantly lower price that plaintiff would have proposed if there had been the potential of being awarded more than one contract, plaintiff clearly would have been included in the proposals submitted to the Source Selection Board for evaluation. Once plaintiff's proposal was accepted for review by the Source Selection Board by virtue of its lower price, it would have had a substantial chance of receiving an "Unrestricted" award. A comparison of evaluation ranking for the three contractors who received the "Unrestricted" awards (Campbell Roofing, Carothers and Ceres) (AR 1549), with the evaluation rankings assessed plaintiff (AR 1552), clearly evidences that plaintiff's proposal would have ranked significantly higher than the awardees. Given that the Government failed to issue RFP Amendment 0012 in a timely manner when it knew it would be awarding multiple contracts to at least one offeror, and that the Government issued Amendment 0012 without allowing offerors to submit a revised BAFO (despite the fact that the lifting of the contracting restriction was material), and that the Government failed to issue a copy of Amendment 0012 to plaintiff, Amendment 0012 was improperly issued and disseminated. This resulted in plaintiff being precluded from proper considered for an "Unrestricted" award in violation of the Competition in Contracting Act. 3. Defendant Treated Plaintiff Unequally and Unfairly in Applying NAICS Size Standard: As stated above, the RFP anticipated award of multiple IDIQ contracts, as follows: three unrestricted awards; one HUB Zone award; one Service-Disabled Veteran-Owned Small Business ("SDVOB") award; and twenty 8(a) awards. 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. Since these multiple awards were made pursuant to the same RFP, and were all part 16
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of the same procurement, defendant had an obligation to treat all offerors fairly and equally. Despite this fact, defendant employed a "double-standard" when it came to applying the small business size standard to the various awardees. Specifically, defendant disqualified plaintiff and terminated its award due to it exceeding the size standard, while at the same time awarding contracts to various other contractors who also exceeded the size standard set forth in the RFP. As such, defendant violated the very clear terms of the RFP and prejudiced plaintiff by terminating its contract. This Court has held that waiving a requirement for one offeror while not another violates the "fundamental principle of government procurement ... that [contracting officers] treat all offerors equally and consistently apply the evaluation factors listed in the Solicitation." Hunt Building Co., Ltd. v. U.S., 61 Fed.Cl. 243, 274 (2004); TLT Constr. Corp. v. United States, 50 Fed.Cl. 212, 216 (2001). Further, as the Comptroller General has recognized, it is a fundamental rule of competitive procurement that all offerors compete on an equal basis by proposing to the same terms, conditions and specifications. Canberra Industr., Inc., B-271016 (June 5, 1996), 96-1 CPD ¶ 269, 1996 WL 302696 (all offerors must be provided a common basis for submission of proposals); Bishop Contractors, Inc., B-246526 (December 17, 1991), 91-2 CPD ¶ 555, 1991 WL 280099 (bidders have a right to assume that the essential requirements of a solicitation are the same for all competitors); Cylink Corp., B-242304 (April 18, 1991), 91-1 CPD ¶ 384, 1991 WL 86975. This Court has also granted injunctive relief in a bid protest action where plaintiff showed "[t]here is sufficient evidence, to persuade the court...that there was disparate or unequal treatment of similarly situated offerors..." Isometrics, Inc. v. U.S., 5 Cl.Ct. 420, 425 (1984). In addition, the GAO has also held that "...it is fundamental that the contracting agency must treat all offerors equally; it must even-handedly evaluate offers against common requirements and evaluation criteria." Tidewater Homes Realty, Inc., 1996 WL 738431, *3 (Comp.Gen.); Sarasota Measurements 17
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& Controls, Inc., B-252406; B-252406.2, June 25, 1993, 93-1 CPD 494; Secure Servs. Technology, Inc., B-238059, Apr. 25, 1990, 90-1 CPD ¶ 421. "Where an agency waives...a requirement, it is required to amend the RFP; an agency's failure to amend represents unequal treatment of the offerors." Tidewater Homes Realty, Inc., 1996 WL 738431, *4, citing Topley Realty Co., Inc., 65 Comp. Gen. 510 (1986), 86-1 CPD ¶ 398. Attached as "Exhibit 1" to plaintiff's Complaint is a detailed chart which contains information regarding affiliations of the awardees of contracts under the subject RFP. The chart was formulated primarily using public information contained on Government websites (CCR and SBA websites). Therefore, defendant had at least constructive knowledge of the information contained in the chart, and either knew or should have known about the information in the chart. As the chart explains, various awardees under the subject RFP clearly exceed the size standard contained therein. For example, Crown Roofing Services was awarded two 8(a) set-aside contracts under the subject RFP. However, Government records clearly indicate that Crown was not eligible for these awards for the following reasons: · Crown had been awarded or has performed on Government contracts in the amount of $14,317,577.00 over the past three years. (See Complaint, Exhibit 1) · Crown shares a Fort Walton Beach, Florida address with 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. (See Complaint, Exhibit 1) · Campbell Roofing & Construction Co., is a party to the Crown-Campbell Joint Venture, and who has been awarded one of the unrestricted awards under the subject Solicitation, has been awarded over $33.4 million in contracts through the Mobile District over the past three 18
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years. (See Complaint, Exhibit 1) · The same Fort Walton Beach address and number is also used as the location of the CrownCampbell-Thomco-Campbell Joint Venture formed in 2005. (See Complaint, Exhibit 1) 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. (See Complaint, Exhibit 1) · 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. (See Complaint, Exhibit 1) · The same Fort Walton Beach address is also the alleged physical location of Thomco Enterprises Inc., which lists Fred Thomas as President. The same Fort Walton Beach address is also the alleged physical location of GCC Thomco LLC. (See Complaint, Exhibit 1) · 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 Crown­Campbell­Thomco­ Campbell Joint Venture, GCC Enterprises and Thomco Enterprises. (See Complaint, Exhibit 19
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1) As clearly evidenced by the foregoing, Crown is affiliated with Crown-Campbell Joint Venture, Campbell Roofing & Construction, R.L. Campbell Management Services, Inc. (formerly "R.L. Campbell Roofing"), Campbell/Thomco Joint Venture, Thomco Enterprises, Inc., ,GCC Thomco. LLC, GCC Enterprises Inc., and Crown-Campbell-Thomco-Campbell Joint Venture, either through identity of physical location and/or common principals. Plaintiff has alleged herein that these companies were formed for the sole purpose of circumventing the size standard requirements and obtain set-aside contracts. This allegation is further supported by the fact that a number of these affiliated companies report to have only a token number of employees, who would be incapable of performing any contract work. Given Crown's affiliation with these companies, its gross annual receipts over the relevant past three years far exceeds the stated NAICS limits. As such, Crown was not entitled to be awarded the 8(a) contracts under the subject RFP. MGC-Campbell was also awarded an 8(a) contract for the State of Georgia under the subject RFP. Upon information and belief, MGC is owned by Marvin Campbell, the brother of Eric Campbell, who is President of Campbell Roofing & Construction, both of whom are listed as Points of Contact for the Joint Venture. (See Complaint, Exhibit 1) The business start date is listed as August 15, 2005. (See Complaint, Exhibit 1) 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. (See Complaint, Exhibit 1) Said company then filed a Certificate of Termination on November 2, 2005. (See Complaint, Exhibit 1) Plaintiff alleges upon information and belief that this entity was dissolved because the replacement Joint Venture entity could be used to receive set-aside contracts, while a LLC could not. Campbell Roofing had been awarded or has performed on Government contracts in the 20
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amount of $87,323,671.06 over the past three years. (See Complaint, Exhibit 1) A review of the contracts previously awarded to the Joint Venture and its component companies MGC Roofing and Campbell Roofing reveals that the Joint Venture and/or its component companies exceed the NAICS size standard established for the subject RFP, making it ineligible for award of any contract thereunder. 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. R.L. Campbell's President is Roy L. Campbell, the brother of Eric Campbell of Campbell Roofing & Construction and Marvin Campbell of MGC. (See Complaint, Exhibit 1) In addition to the family affiliations with Campbell Roofing & Construction and MGC, R.L. Campbell is also affiliated with the Campbell/Thomco Joint Venture and Crown-Campbell-Thomco-Campbell Joint Venture. (See Complaint, Exhibit 1) The gross revenues of these Joint Ventures and affiliations must also be added to R.L. Campbell's revenues, which clearly places them in excess of the required NAICS Code standard. As such, R.L. Campbell should also have been ineligible for award of the 8(a) contract it received under the subject RFP. Plaintiff sent a letter dated May 30, 2006 to the Government advising of its belief that R.L. Campbell is not a small business in light of its various affiliations (see Statement of Fact #17). Plaintiff also stated in the letter 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. Plaintiff requested 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. Upon information and belief, defendant never sent the protest to the SBA for

consideration. 21
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The actions of defendant on the subject RFP clearly indicate that the NAICS code size standards are being ignored and circumvented to plaintiff's detriment. Plaintiff's Contract was terminated for failure to meet the required size standard, yet the other aforementioned firms, particularly those owned by the Campbell family members, are being allowed to keep their contracts. The Government's actions in awarding these contracts to contractors who did not comply with the required size standard constitutes an institutional waiver of the size requirements contained in the RFP. Despite the institutional waiver, plaintiff's contract was terminated for failing to meet the same size standards that other contractors were knowingly allowed to violate. Plaintiff should have been entitled to the same waiver of the size requirements afforded other contractors. As stated above, where an agency waives requirement, it is required to amend the RFP. An agency's failure to amend represents unequal treatment of the offerors. In light of defendant's unequal and unfair treatment of plaintiff as described above, the contracts awarded pursuant to the subject RFP should be cancelled, and a new RFP should be issued applying the proper NAICS size standard equally and evenly to all offerors. 4. Defendant Improperly Terminated Plaintiff's Contract: As a result of the size determination decision by the SBA, the Government issued Modification P00001 on dated June 8, 2006, which purported to terminate plaintiff's Contract No. W91278-06-D-0036 ("Contract") at no cost pursuant to FARs 49.101(b) and 49.603-6. Modification P00001 stated the Contract was being terminated because the SBA had declined the offer to enter into a SDVOB contract with plaintiff due to the fact that it was no longer a qualified SDVOB for the NAICS code assigned to the subject RFP. As argued below, defendant's basis for its termination of plaintiff's Contract was improper and in violation of procurement regulations. Once a firm has been accepted into the small business program, the SBA is no longer a party 22
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to the subsequently-awarded contract. Therefore, the SBA does not enter into the eventual contract between the Government and the contractor. Therefore, the SBA's alleged refusal to enter into a contract with plaintiff was an improper basis for defendant's termination of the Contract. Also, pursuant to both FAR 49.101(b) and FAR 49.603-6 (cited by the Government as authority for the issuance of the termination), the Contracting Officer is required to issue a notice of termination. In this case, the Contracting Officer never issued a notice of termination prior to the issuance of the termination modification. Finally, pursuant to 13 C.F.R. 121.1009(g)(2), "...OHA decisions received after contract award will not apply to that procurement or sale, but will have future effect, unless the contracting officer agrees to apply the OHA decision to the procurement or sale." Given the fact that the Government awarded a number of restricted contracts to firms that did not meet the size standard contained in the RFP, as plaintiff was required to do, and given the fact that the Contracting Officer was not required to apply the OHA decision to plaintiff's already existing contract, the termination of the Plaintiff's contract was improper and inequitable. As a result of defendant's violations of these regulations when issuing the termination modification, plaintiff asserts that the Modification is a nullity and the contract remains in place. Additionally, the termination was an abuse of discretion and constituted unequal and discriminatory treatment. Conclusion Based on the foregoing, plaintiff respectfully requests the Court grant plaintiff's motion for judgment upon administrative record, rescind all awards made by defendant, and remand the procurement back to the agency for re-issuance of the RFP. Dated: June 21, 2007 23
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Respectfully submitted,

/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

CERTIFICATE OF SERVICE I hereby certify that on this 21st day of June, 2007, a copy of Plaintiff's Motion for Judgment Upon 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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