Free Order on Motion to Amend/Correct - District Court of Federal Claims - federal

Case 1:07-cv-00581-LJB

Document 22

Filed 09/21/2007

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In the United States Court of Federal Claims
No. 07-581C (September 21, 2007) * * * * * * * * * * * * * * * * AEOLUS SYSTEMS, LLC, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant, * * GLOBAL SOLUTIONS * NETWORK, INC., * * Intervenor-defendant. * * * * * * * * * * * * * * * ** * ORDER

There are pending cross-motions for judgment on the administrative record in this pre-award bid protest. On September 19, 2007, plaintiff filed a Motion for Leave to File an amended version of plaintiff's opening brief, filed on August 23, 2007, to comply with RCFC 5.2(a)(1)(A)-(B), which requires a table of contents and a table of authorities for such a brief, and to correct scrivener errors. Plaintiff's unopposed motion to amend its opening brief is granted. Additionally on September 19, 2007, plaintiff filed a Motion for Oral Argument which included both a request for telephonic oral argument and supporting reasons for plaintiff's request. The primary reason that plaintiff seeks oral argument is to rebut an argument made by defendant in its reply brief. In doing so, plaintiff cites four cases that it had not cited previously in either of its briefs on the pending dispositive motions. On September 20, 2007, defendant filed a Motion to Strike plaintiff's motion for oral argument, citing a number of reasons

Case 1:07-cv-00581-LJB

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Filed 09/21/2007

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militating against both oral argument and the consideration by the court of the caselaw submitted in what is, in defendant's view, an improperly filed sur-reply. The court agrees with defendant that plaintiff's request for oral argument is inappropriate, but for different reasons. Plaintiff has waited over a month to make this request in the final stages of a bid protest, where time was and is of the essence. Plaintiff filed this suit on March 30, 2007 in the United States District Court for the Middle District of Florida, an action subsequently transferred to this court for lack of jurisdiction in the District Court. The contract award at issue here occurred on December 22, 2006, and was cancelled on March 13, 2007. Thus, award of this contract has now been delayed nine months. Plaintiff filed its pre-award bid protest complaint in this court on August 14, 2007. The court held a telephonic status conference with counsel on that date, wherein the court set an expedited briefing schedule to resolve this bid protest on the merits. No request for oral argument was made during that scheduling conference. The expedited briefing schedule ordered plaintiff, defendant and intervenor-defendant to file opening briefs on cross-motions for judgment on the administrative record, and response/reply briefs. The court did not order sur-replies from any party. The schedule was necessarily accelerated to accommodate the parties' desire for a swift resolution of this matter. Briefs were filed on August 23, August 31, September 7, and September 14, 2007. The court committed to issuing an opinion before the end of September 2007. All briefing has been completed, and fewer than ten days remain before the court must issue an opinion deciding plaintiff's protest. Plaintiff's request for oral argument is untimely, and cannot be accommodated given the pressing matters that currently occupy the court. Additionally, the court acknowledges, as pointed out by defendant, that plaintiff's motion for oral argument could be considered to be a sur-reply. Defendant argues that fundamental fairness forbids the consideration of plaintiff's arguments and cited cases, and that plaintiff's motion for oral argument should be struck from the record. However, the court sees no harm in allowing plaintiff's motion for oral argument to remain on the docket. Insofar as this document could be read to contain a sur-reply, the legal arguments and cases cited therein will not substantively alter the analysis of the relevant legal issues before the court. No reply on the part of the government will be necessary.
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Case 1:07-cv-00581-LJB

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Filed 09/21/2007

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Accordingly, it is hereby ORDERED that: (1) Plaintiff's Motion for Leave to File Amended Motion for Judgment on the Administrative Record, filed September 19, 2007, is GRANTED; (2) Plaintiff's Amended Motion for Judgment on the Administrative Record, filed as an attachment to Plaintiff's Motion for Leave to File Amended Motion for Judgment, filed September 19, 2007, shall be considered filed by leave of the court as of September 19, 2007; (3) Plaintiff's Motion for Oral Argument, filed September 19, 2007 is DENIED for the above stated reasons; and (4) DENIED. Defendant's Motion to Strike, filed September 20, 2007, is

/s/Lynn J. Bush LYNN J. BUSH Judge

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