Free Memorandum - District Court of Federal Claims - federal

Case 1:08-cv-00487-SGB

Document 20

Filed 07/11/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
---------------------------

AXIOM RESOURCE MANAGEMENT, Plaintiff, v. THE UNITED STATES Defendant.

INC.

CoFC No. 08-487C BID PROTEST (JUDGE BRADEN)

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION TO SUPPLEMENT THE RECORD COMES NOW the Plaintiff Axiom Resource Management, through undersigned counsel, and hereby files the Record Memorandum this matter. Inc. ("Axiom"), by and

in SUPpOli of Plaintiff's

Second Motion to Supplement supplement record with

By its Motion Axiom seeks to TRICARE Evaluation,

enclosed Notice of Award under

Analysis, and Management Support Program ("TEAMS"), called the TPOD/OGC procurement, to Lockheed Martin ("LM") of the work currently being performed by LM which was the subject of prior litigation before the Court. Axiom Resource Management, Inc. v. United States, 80 Fed. Cl. 530 (2008). necessary for the and it is a relevant Axiom requests to of relief because Plaintiff believes that this document is dispute in this matter

a complete understanding of the issues record here.

I. Factual. Background
On June 18, 2008, TPOD/OGC procurement, Government announced its intention to seek proposals, the

under TEAMS for work cUJ~rexIUy being performed by Lockheed

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Martin ("LM") under Request for Quotations No. 154160 (under Contract No. GS-IOF-0065N) (the "Solicitation" or the "RFQ"). litigation before 530 (2008). on June 18, 2008, the Army's Signore, informed Axiom that fact that one Barbara Kinosky, had identified contracting officer for TEAMS, Dan The Army's award under the RFQ was the subject of prior

Court. _Se_e Axiom Resource Management, Inc. v. United States, 80 Fed. Cl.

as having an alleged OCI relating to the

principals of Axiom (a Category 2 contractor), Kevin Riley, is married to one of the principals of Consulting ("Centre") who Signore

inaccurately claims is performing

Category 1 work as a subcontractor

to a company called

Intellidyne under an indefinite delivery/indefinite Agency Report ("AR"), Tab 9. At a status conference

quantity ("ID/IQ") vehicle called TAARMS.

this matter on July 8, 2008, the Government informed the Court the TPOD/OGC procurement on July 14, 2008. According the record here, the Army actually

that it intended to make an award to the Notice of Award

Axiom proffers for inclusion

made this award on July 11,2008.

II. Argumen~ This Court record" evidence: (1) when agency action is not adequately explained in the record before the court; (2) the agency failed to consider factors which are relevant to its final decision; (3) when an agency considered evidence which it failed to include record; (4) when a case is so complex that a court needs more evidence to enable it to understand issues clearly; (5) in cases where evidence arising after the agency action shows whether the decision was correct or not; (6) in cases where agencies are sued for a failure to take action; (7) cases arising under the National identified the following analysis it will use in considering "extra-

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Environmental Policy Act; (8) cases where relief is at Issue, especially at the preliminary injunction stage. _Se_e Vantage Associates, Inc. v. U.S., 59 Fed. Cl. 1 at 13 (2003) citing Esch v. Yeutter, 876 F.2d 976,991 (D.C.Cir 1989). In where the parties will 56.1 information stipulation or by or standard first articulated E_s_c_h, Court has stated this

cross motions for judgment on the record under CFCR administrative record may be considered by the Court by

outside of

of the Court. _Se_e CFC 56.1(a); ~ee _als_o BF Freight System, Inc. v. R A 395 (2003); Rust Constructors, Inc. v. United States, 49 FecL CI. parties may supplement administrative record in certain

United States, 55 Fed. Cl. 490, 493 (2001).

limited situations to "preserve a meaningful judicial review." North Carolina Div of Servs. For the Blind v. United States, 53 Fed. CL 147, 158 (2002) afJ'd, 60 Fed. Appx. 826 (Fed. Cir. 2003); _se_e Aero Corp., S.A. v. United States, 38 Fed. Cl. 408, 411 _als_o The Court when to do so also stated that it will 997).

the administrative record to be supplemented

"help explain an agency's decision and thereby facilitate meaningful judicial

review of the agency decision, particularly when a subjective value judgment has been made but not explained." Orion Intern. Technologies v. United States, 60 Fed.Cl. 338, 343 (Fed. Cl.

2004); see also Blue & Gold Fleet L.P. v. United States, --- Fed.CL ---, 2006 WI, 979277 (Fed.Cl. 2006) citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed.Cir. 2001)(Administrative record may be supplemented where "required for

meaningful judicial review"); Al Ghanim Combined Group Co., Gen. Trad. & Cont. W.L.L. v, United States, 56 Fed.CL 502, 508 (Fed. Cl. 2003) (Allowing supplementation without which the court cannot of "evidence

understand the issues"). Finally, this document clearly falls

within the ambit of Esch factor 8 given the current status of this litigation and the Government's representations to the Court.

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WHEREFORE supplementing

Plaintiff

respectfully

requests

the

Court

Issue

an

order

reclord with

referenced Notice of Award.

Respectfully submitted,

Date:

By: elSordo, Esq. egal, LLC Center S1., Suite 307 Manassas, VA 20110 (703) 368-8770 (703) 368-8772 Counsel for Plaintiff Axiom Resource Management, Inc.

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