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

Case 1:08-cv-00133-MMS

Document 49

Filed 03/31/2008

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST GLOBAL COMPUTER ENTERPRISES, INC., Plaintiff, v. THE UNITED STATES, Defendant, and QSS GROUP, INC. Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 08-133C (Judge Sweeney)

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE A CORRECTED VERSION OF THE DECLARATION OF KIERAN C. MCHARGUE Defendant, the United States, respectfully requests that the Court deny plaintiff's motion for leave to file a corrected version of the declaration of Kieran C. McHargue. Plaintiff, Global Computer Enterprises, Inc. ("GCE"), seeks to add new evidence to the preliminary relief record, one business day before the Court is set to issue a decision regarding GCE's motion for preliminary relief. The Government understood that the evidentiary record was closed as of plaintiff's reply brief, filed on March 24, 2008. When the Government presented argument on March 26, 2008, we had not seen and were not aware of the corrected declaration. Because permitting GCE to supplement the preliminary relief record at this late time would prejudice the Government, the Court should reject the motion. The Government has had no opportunity to respond to the evidence plaintiff submitted Friday night. By submitting an additional declaration one business day before the Court is to make a determination regarding preliminary relief, GCE effectively seeks to deny the

Case 1:08-cv-00133-MMS

Document 49

Filed 03/31/2008

Page 2 of 2

Government any meaningful opportunity to rebut the proffered testimony.1 Although we recognize that GCE's leaving off the last page of the declaration was an error, correcting that error in the manner GCE requests would prejudice the Government. Therefore, we respectfully request that the Court deny GCE's motion. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director

/s/ Kenneth M. Dintzer KENNETH M. DINTZER Assistant Director

/s/ William P. Rayel Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 616-0302 Facsimile: (202) 307-0972 March 31, 2008 Attorneys for Defendant

If the Court determines that GCE succeeded upon the merits, the Government renews its request to respond with additional evidence and argument to GCE's declarations, including the missing page, before the Court decides whether to issue a permanent injunction. Under these circumstances, we would not object to correcting the McHargue declaration. 2

1