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

Case 1:06-cv-00425-NBF

Document 48

Filed 08/14/2006

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS INTERSPIRO, INC., and SCOTT TECHNOLOGIES, INC., d/b/a SCOTT HEALTH & SAFETY, Plaintiffs, v. THE UNITED STATES, Defendant, and MINE SAFETY APPLIANCES CO., Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No.06-425C (Judge Firestone)

DEFENDANT'S MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD Defendant, the United States, respectfully requests the Court to grant leave to supplement the administrative record with the declaration by Laurie Beebe that was attached to defendant's cross-motion for summary judgment. Ms. Beebe was the lead engineer with respect to this procurement, and she had direct and substantial involvement in the evaluation of the offerors' proposals. This declaration provides information concerning actions that the Air Force took, or did not take, in performing the field evaluation of the offerors' existing commercial Self Contained Breathing Apparatus ("SCBA") units, and information about one of the national standards that applies to such equipment. Ms. Beebe's declaration is offered to rebut assertions made by plaintiffs, Interpiro, Inc. ("Interspiro") and Scott Technologies, Inc. ("Scott"), in their motions for judgment upon the administrative records. Plaintiffs' assertions are not supported by the

Case 1:06-cv-00425-NBF

Document 48

Filed 08/14/2006

Page 2 of 3

record, however, they are not directly refuted either. This declaration serves to expressly rebut those unsupported assertions. This Court has indicated that it may consider "extra-record" evidence: (1) when agency action is not adequately explained in the record before the Court; (2) when the agency failed to consider factors which are relevant to its final decision; (3) when an agency considered evidence that it failed to include in the record; (4) when a case is so complex that a court needs more evidence to enable it to understand the issues clearly; (5) in cases where evidence arising after the agency action shows whether the decision was correct; (6) in cases where agencies are sued for a failure to take action; (7) in cases arising under the National Environmental Policy Act; and (8) in cases where relief is at issue, especially at the preliminary injunction stage. Cubic Applications, Inc. v. United States, 37 Fed. Cl. 339, 342 (1997) (quoting Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989)). In this case, the declaration by Ms. Beebe addresses actions taken, or not taken, by the Air Force that are challenged by Interpiro, Inc. ("Interspiro") and Scott Technologies, Inc. ("Scott"). Accordingly, this declaration presents evidence that is not adequately explained in the record before the Court and which addresses claims that the Air Force failed to take necessary action. For the foregoing reasons, we respectfully request that the Court grant leave to supplement the administrative record. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN 2

Case 1:06-cv-00425-NBF

Document 48

Filed 08/14/2006

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Director s/ Brian M. Simkin BRIAN M. SIMKIN Assistant Director s/ Doris S. Finnerman DORIS S. FINNERMAN Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 307-0300 Fax: (202) 305-7643 Attorneys for Defendant August 14, 2006

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