Free Memorandum - District Court of Federal Claims - federal

Case 1:08-cv-00487-SGB

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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 JU:CORD COMES NOW the Axiom Resource Management, hereby matter. this Memorandum Inc. ("Axiom"), by and thJOugh

undersigned counsel, Supplement the Record

Support of Plaintiff s Motion to

By its Motion Plaintiff Axiom seeks to supplement the

record with the deposition of

contracting officer because of the clear gaps in the record as Government's actions here.

filed and the record's failure to completely explain the bases for

I. Factual Back2r
under the TRICARE

Evaluation,

Support Program ("TEAMS") for work currently being performed by Lockheed Martin ("LM") under Request for Quotations No. 154160 (under Contract No. GS-IOF-0065N) (the

"Solicitation" or the "RFQ"). litigation before 530 (2008).

The Army's

award under the RFQ was the subject of prior

Court. S_e_e xiom Resource Management, Inc. v. United States, 80 Fed. Cl. A

Case 1:08-cv-00487-SGB

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Additionally,

on June 18, 2008, the Army's

contracting

officer for TEAMS, Dan

Signore, informed Axiom that he had identified Axiom as having an alleged OCI relating to the fact that one Barbara the principals of Axiom (a Category 2 contractor), Kevin Riley, is married to one of the principals of Centre Consulting ("Centre") who Signore

Kinosky,

inaccurately claims is performing Intellidyne under an Agency Report ("AR"), Tab 9. According to

Category 1 work as a subcontractor

to a company called

delivery/indefinite

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

record submitted by

Government

this proceeding:

All requirements under TEAMS IDIQ contract are Category 2: Program Management Support-Services which assist TMA planning and managing its activities and programs .... All requirements under TAARMS IDIQ contracts are Category 1: TMA Internal Support-Services, by their very nature give the Contractor access to extensive data about contracts of_aUother TMA contractors. Contractor participation more than one of these categories may give rise to an unfair competitive resulting from access to advance acquisition planning, source selection sensitive or proprietary information. Approved prime and subcontractors one category cannot be an approved source prime or subcontractor at the same time another category. Furthermore, Category 1 involvement is mutually exclusive from work in either of the other two categories, as work in Category I provide sensitive business information about the contractors working in Categories 2 and 3. By its very nature, it is impossible to approve a mitigation plan for a contractor working in Category I, requesting to perform work in Category 2 or 3. ld. (emphasis in original). determine there are The record is silent on any investigation that Mr. Signore did to Category I contractors or subcontractors who are also approved

contractors or subcontractors under Category 2. Similarly, the record is silent as to the affect of Lockheed Martin appearing as an approved subcontractor under a Category 3 prime contractor as well as performing Category 2 work for TMA. Exhibit I, Declaration of Kevin Riley ("Riley Dee") at ~

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Apparently, Mr. Signore allegedly first learned of

relationship between Ms. Kinosky source. AR,

and Mr. Riley on June 12, 2008 based on input from an unnamed non-government Tab 16. The record is silent as to the investigation,

any, that Mr. Signore did into the

allegation or why addressed under the
o

relationship between Ms. Kinosky and Mr. Riley would be required to be OCI certification for TEAMS which states:

Does Offeror or any intended subcontractors, teaming partners, proposed employees, or affiliates have Unequal Access to Information? Would award to Offeror result in the Offeror having the opportunity to access nonpublJic information that may give the Offeror a competitive advantage a later competition for a government contract? Specifically, the Offeror/Contractor have access to the following information: ~ Budget(s), or Budget Information? " Acquisition Sensitive Information related to the procurement process to include, but not limited to Acquisition Plans, Requirements, Statements of Work, or Evaluation Criteria? o Does the Offeror or any intended subcontractors, teaming partners, proposed employees, or affiliates have "impaired objectivity" because the Offeror's ability to render impartial judgments may be compromised because of its conflicting role(s) on this effort and other government contracts?
o

o

Do "biased ground include a situation where written specifications or could skew competition Is Offeror aware proposed contract/order, creating an OCI?

rules" exist? Most commonly, this would the Offeror has, as a government contractor, a statement of work for this effort, which of itself? of any other information relating to this which could reasonably be construed as

AR, Tab 13. Additionally,

record is silent as to what other relationships would trigger the

OCI since there is no allegation that either Centre or Axiom are working in both categories I and 2; rather, the allegation appears that the two companies are some how affiliated or that Ms. Kinosky and Riley will share about their work. Additionally, the record is sillent

as to whether Ms. Kinosky and Mr. Riley have any information about TMA' s work that they could share across company boundaries. This is especially true given the fact that Axiom's

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Case 1:08-cv-00487-SGB
employees working on Category 2

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are required to and have executed the enclosed non-

disclosure agreement which prevents them from disclosing proprietary information to anyone not "directly concerned disclosure agreement performance of this delivery order." _Se_e xhibit 2, Axiom nonE

Mr. Signore has apparently given no thought as to how this language

affects the alleged OCI since Mr. Riley is not involved in Axiom's performance of its specific contracts. _Se_e Riley Dec. at ~ 5. Finally, the record is unclear as to Mr. Signore thought it was appropriate to bar

Axiom from not only being considered for award of any TEAMS contract until the alleged GCI is resolved, but also being barred from even receiving notice that such procurements even exist. AR, Tab 8. Based on Mr. Signore's actions Axiom now has lost millions of dollars in potential awards at risk, which will severely cripple Axiom's ability to continue to conduct business. Riley Dec. at ~ 3.

II. A!J.~ument This Court record" evidence: (1) when agency action is not adequately eXplained the record before the court; (2) the agency failed to consider factors which are relevant to its final decision; (3) an agency considered evidence which it failed to include the record; (4) when a case is so complex that a court needs more evidence to enable it to understand the issues clearly; (5) cases where evidence arising after the agency action shows whether the decision was correct or not; (6) cases where agencies are sued for a failure to action; (7) cases arising under the National Environmental Policy Act; and (8) in cases where relief is at issue, especially at 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 applying the standard first articulated in E_"s_c_h, Court has stated this identified the following analysis which it will use in considering "extra-

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where the parties will

or have

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

56.1 information outside of the administrative stipulation or by order of

Court. _Se_e CFC 56.1(a); _se_eals_o BF Freight System, ][nc. v. R _ A

United States, 55 Fed. CL 392, 395 (2003); Rust Constructors, Inc. v. United States, 49 Fed. CI. 490, 493 (2001). Additionally, parties may supplement the administrative record in certain

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) ajfd, 60 Fed. Appx. 826 (Fed. Cir. 2003); _se_e Aero Corp., S.A. v. United States, 38 Fed. _als_o The Court has also stated when to do so it 408,411 997).

allow the administrative record to be supplemented

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 WL 979277 (Fed.CL 2006) citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238F.3d 1324, 1333 (Fed.Cir. 200 l)(Administrative record may be supplemented where "required fDr

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 fully understand the issues"). The deposition of Mr. Signore is necessary to complete the record because of certain gaps in the administrative record as it currently exists and the dear bias on Mr. Signore's part in his dealings with Axiom. Where it is dear as it is here Ms. Signore's decision to identify an of "evidence

OCI in the case of Axiom, but not Inte Hidyne, and bar Axiom from even receiving notice of future procurements, or even receiving modifications to procurements which Axiom had

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received prior to Mr. Signore's June 18, 2008 had won or lost procurements that is totally based on a desire to be

or even receiving notification that Axiom

been evaluated prior to Mr. Signore's June 18, 2008 letter, of Axiom at any cost and or punish Axiom for filing the Impresa

prior bid protest, the deposition of Mr. Signore is necessary to complete the record. ~ee

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1338-39 (Fed.Cir. 2001), remanded to 52 Fed.Cl. 1 (Fed.Cl. 2002) (Court ordered supplementation of administrative

record with contracting officer's deposition testimony contracting officer's responsibility previously stated determination

order to determine the basis for the This Court has

that was under review).

an explanation of a contracting officer's decision is required for

meaningful judicial review, a reviewing court has the power, and sometimes the obligation, to require such an explanation." Asia Pacific Airlines v. United States, 68 Fed.CL 8, 18 (Fed. Cl.

2005) (Court granted leave to plaintiffs to depose contracting officials and supplement record with their testimony where the contracting officials' rationale for terminating offeror's

participating in the solicitation was not apparent from the administrative record). Furthermore, Court often considers supplemental record evidence
111

protests

involving allegations of bias or bad

like there are here. International Resource Recovery,

Inc. v. United States, 61 Fed.Cl. 38,42 (Fed. Cl. 2004) C'[a]llegations of bias, prejudice and bad faith ... which depend upon a Government official's past conduct toward a bidder necessarily cannot be subsumed within the record of a challenged award decision. "); _O_ri_o_n_In_tern.

Technologies v. United States, 60 Fed.Cl. 338, 343-344 (Fed. Cl. 2004) ("the record may be supplemented (and through discovery a party may seek) relevant information that by its

very nature would not be found in an agency record-such as evidence of bad faith"); .Galen_M_e_d. Associates., Inv. v. United States, 56 Fed.Cl. 1 109 (Fed. Cl. 2003) (Allowing depositions

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where record was insufficient

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regard to allegation of "a long pattern of questionable activity fact the allegations are strikingly similar to a actions which are in effect a de facto

[that] might be relevant to prove agency bias"). prior case where contracting officer has

debarment of the protester.

_Se_e.C.N. Constr. Co. v. United States, 60 Fed.CL 400, 405" fn. 8 J Given

(Fed. Cl. 2004) (Ordering depositions regarding asserted bias and de facto debarment). the current state of record and gaps

rationale for Mr. Signore's actions, the taking

of his testimony under oath is necessary to resolve the issues raised in the Complaint. WHEREFORE Plaintiff respectfully requests the Court issue an order permitting

Axiom to take the deposition described herein.

Respectfully

Date: ~_'

,_

By: . DelSordo, Esq. gus Legal, LLC 9255 Center St., Suite 307 Manassas, VA 20110 (703) 368-8770 fax (703) 368-8772 Counsel for Plaintiff Axiom Resource Management, Inc. Ja

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