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

Case 1:08-cv-00133-MMS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST (Electronically Filed on March 6, 2008)

GLOBAL COMPUTER ENTERPRISES, INC., Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

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No. 08-133C (Judge Sweeney)

QSS GROUP'S MOTION TO INTERVENE Pursuant to Rule 7(b) of the Rules of the United States Court of Federal Claims ("RCFC"), QSS Group, Inc. ("QSS"), by its undersigned counsel, respectfully moves to intervene as a matter of right in the above-captioned matter. Intervention is proper in accordance with Rule 24(a) of the RCFC because QSS has timely applied for intervention, QSS is performing under the task order, the modification of which is in dispute here and, therefore, has an interest relating to the transaction that is the subject of this action, QSS's protection of its interest will be impaired or impeded without its participation, and QSS's interest will not be adequately represented by the existing parties. Alternatively, QSS should be permitted to intervene in accordance with RCFC 24(b) because QSS's defense and the main action have questions of law or fact in common. QSS's memorandum of points and authorities in support of this motion is attached.

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Respectfully submitted,

Dated: March 6, 2008

s/ J. Scott Hommer, III______ J. Scott Hommer, III VENABLE LLP 8010 Towers Crescent Drive, Suite 300 Vienna, Virginia 22182 Telephone No.: (703) 760-1658 Telecopier No.: (703) 821-8949 Protected Telecopier No.: (703) 760-1644 Counsel to QSS Group, Inc.

Of Counsel: William L. Walsh, Jr. Keir X. Bancroft Patrick R. Quigley Peter A. Riesen VENABLE LLP 8010 Towers Crescent Drive, Suite 300 Vienna, Virginia 22182 Telephone No.: (703) 760-1600 Telecopier No.: (703) 821-8949 Protected Telecopier No.: (703) 760-1644

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CERTIFICATE OF SERVICE Intervenor has filed this document electronically via the ECF electronic filing Website of the United States Court of Federal Claims and in accordance with the Rules of the Court of Federal Claims, Appendix E, Rule 12 have, therefore, served notice on counsel of record.

Dated: March 6, 2008

Respectfully submitted,

s/ J. Scott Hommer, III ___________________ J. Scott Hommer, III VENABLE LLP 8010 Towers Crescent Drive, Suite 300 Vienna, Virginia 22182 (703) 760-1658 (Telephone) (703) 821-8949 (Facsimile) (703) 760-1644 (Protected Facsimile) Attorney of Record

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST (Electronically Filed on March 6, 2008)

GLOBAL COMPUTER ENTERPRISES, INC., Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

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No. 08-133C (Judge Sweeney)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF QSS GROUP'S MOTION TO INTERVENE Pursuant to Rule 7(b) of the Rules of the United States Court of Federal Claims ("RCFC"), QSS Group, Inc. ("QSS"), by its undersigned counsel, respectfully submits this Memorandum of Points and Authorities in support of its Motion to Intervene. As set forth below, QSS is entitled to intervene as a matter of right in accordance with RCFC 24(a). Alternatively, QSS should be permitted to intervene in accordance with RCFC 24(b). STATEMENT OF FACTS On November 16, 2007, Global Computer Enterprises, Inc. ("GCE") filed the first of a series of protests at the United States Government Accountability Office ("GAO"), B-310823, challenging the modification of QSS's Systems Engineering and Technical Services ("SETS II") Coast Guard task order under QSS's multiple-award, indefinite-delivery/indefinite-quantity

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("ID/IQ") General Services Administration Information Technology Omnibus Procurement II ("ITOP II") contract. QSS has had an ITOP II contract since 1999. Under this ITOP II contract, QSS was awarded a SETS II task order by the Coast Guard in 2005. The Coast Guard executed certain modifications to the SETS II task order in September and December 2007, which have been the focus of this litigation. On December 5, 2007, GAO dismissed GCE's second supplemental protest (B310823.3), which alleged that the Coast Guard had improperly failed to stay contract performance, for falling outside GAO's protest jurisdiction because the stay of contract performance was a procedural matter that did not involve the validity of an award or selection determination. On January 31, 2008, GAO dismissed three additional GCE protests, which had alleged that modifications to the task order exceeded the scope of that task order, on the ground that a protest challenging the issuance of modifications to a task order under an ID/IQ contract as being beyond the scope of the task order shall be dismissed because the GAO lacks jurisdiction under the Federal Acquisition Streamlining Act to consider such an issue. GCE voluntarily withdrew its two remaining protests on February 4, 2008, over one month ago, the day that briefs were due to GAO on the issue of whether those last two protests were timely.

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ARGUMENT

A.

QSS IS ENTITLED TO INTERVENE AS A MATTER OF RIGHT.
QSS is entitled to intervene in this action as a matter of right under RCFC 24(a), which

provides that: Upon timely application anyone shall be permitted to intervene in an action: . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest unless the applicant's interest is adequately represented by existing parties. RCFC 24(a). In accordance with this rule, intervention is proper because QSS has timely applied for intervention, QSS has been performing under the ITOP II contract for more than eight years and under the SETS II task order for more than two years and, therefore, has an interest in the transaction that is the subject of this action, QSS's protection of its interest will be impaired or impeded without its participation, and because QSS's interest will not be adequately represented by the existing parties. QSS is performing under the task order the modifications of which GCE now challenges. QSS, therefore, has a direct and substantial economic interest in the allegations raised by GCE because the disposition of GCE's allegations could impact QSS's contract and GCE's request for remedies is directed at trying to hinder QSS's performance of the contract. See Karuk Tribe v. United States, 28 Fed. Cl. 694, 696 (1993) (stating that "to intervene as a matter of right, an applicant-intervenor must demonstrate a direct, immediate, legally protectable interest in the proceedings, such that the intervenor would `either gain or lose by the direct legal operation and

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effect of the judgment'"). Thus, the disposition of this action might, as a practical matter, impair or impede QSS's property interest in the awarded contract. Intervention also is proper because QSS's interests are not adequately protected by the United States. The United States' interests, which may be driven by specific political and/or policy agendas, are potentially divergent from QSS's more narrowly focused interest in protecting the fruits of its substantial investment in the performance under the task order under the ITOP II contract. It is important to note that courts require only a "minimal" burden to show that intervention is necessary on the ground that representation by existing parties may be inadequate. Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972). When the party that is expected to represent the intervenor's interests is a government body or officer, there is no presumption that such representation would be adequate, unless that body or officer is charged by law to represent the interests of the absentee. Natural Resources Defense Council v. EPA, 99 F.R.D. 607, 610 n.5 (D.D.C. 1983); Diamond v. District of Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986) (insurance companies permitted to intervene in support of insurance statute that the government was already defending); see also Karuk Tribe, 28 Fed. Cl. at 697-98 (concluding that the United States, as a trustee, "must represent the interests of all Indians" but even then "[t]o the extent that the interest of the Tribe and those of the plaintiffs conflict, the United States' ability to represent all Indians is compromised"). In this case, the United States is not (nor does it claim to be) an adequate representative of QSS's interests in this litigation. As a consequence, QSS must look to the protection of its own interests.

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B.

QSS SHOULD BE PERMITTED TO INTERVENE.
Alternatively, QSS should be permitted to intervene in accordance with RCFC 24(b)

because QSS's claims and defenses and the main action have questions of law or fact in common. Accordingly, QSS properly should be granted permissive intervention in the event that the court deems that RCFC 24(a) does not entitle QSS to intervention as a matter of right. CONCLUSION For the foregoing reasons, QSS is entitled to intervene (1) as a matter of right or (2) by permissive intervention. Accordingly, QSS's Motion to Intervene should be granted. Respectfully submitted,

Dated: March 6, 2008

s/ J. Scott Hommer, III______ J. Scott Hommer, III VENABLE LLP 8010 Towers Crescent Drive, Suite 300 Vienna, Virginia 22182 Telephone No.: (703) 760-1658 Telecopier No.: (703) 821-8949 Protected Telecopier No.: (703) 760-1644 Counsel to QSS Group, Inc.

Of Counsel: William L. Walsh, Jr. Keir X. Bancroft Patrick R. Quigley Peter A. Riesen VENABLE LLP 8010 Towers Crescent Drive, Suite 300 Vienna, Virginia 22182 Telephone No.: (703) 760-1600 Telecopier No.: (703) 821-8949 Protected Telecopier No.: (703) 760-1644

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CERTIFICATE OF SERVICE Intervenor has filed this document electronically via the ECF electronic filing Website of the United States Court of Federal Claims and in accordance with the Rules of the Court of Federal Claims, Appendix E, Rule 12 have, therefore, served notice on counsel of record.

Dated: March 6, 2008

Respectfully submitted,

s/ J. Scott Hommer, III ________________ J. Scott Hommer, III VENABLE LLP 8010 Towers Crescent Drive, Suite 300 Vienna, Virginia 22182 (703) 760-1658 (Telephone) (703) 821-8949 (Facsimile) (703) 760-1644 (Protected Facsimile) Attorney of Record

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST

GLOBAL COMPUTER ENTERPRISES, INC., Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant, and QSS GROUP, INC., Intervenor.

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No. 08-133C (Judge Sweeney)

ORDER HAVING READ AND CONSIDERED the Motion to Intervene and supporting Memorandum of Points and Authorities filed by QSS Group, Inc. ("QSS"), along with any response thereto by the Plaintiff, the Court has determined that QSS's Motion to Intervene as of Right should be, and hereby is, GRANTED. IT IS SO ORDERED.

March ___, 2008 MARGARET M. SWEENEY Judge