Sigmatech, Inc. v. United States ( 2016 )

In the United States Court of Federal Claims
No. 16-174
Filed: April 19, 2016
*************************************
SIGMATECH, INC., *
* Administrative Record;
* Bid Protest;
Plaintiff, * Rule 37(b)(2)(C) (Sanctions For
* Not Obeying A Discovery
* Order).
v. *
*
THE UNITED STATES, *
*
Defendant. *
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MEMORANDUM OPINION AND ORDER
On April 7, 2016, the Government filed a Notice Of Filing Corrected Administrative
Record. ECF No. 32. On April 8, 2016, the Government filed a Motion Seeking Leave To Correct
The Administrative Record. ECF No. 33. On April 8, 2016, Plaintiff filed a Response In
Opposition, arguing that “Sigmatech was denied the opportunity . . . to have and consider these
documents . . . . Sigmatech has completed its briefing.” ECF No. 34, at 4–5. On April 12, 2016,
a telephone status conference was held, wherein the court granted the Government’s April 8, 2016
Motion. The court also determined that the Government’s actions, i.e., filing a corrected
Administrative Record more than 55 days after it was due and after Plaintiff completed briefing,
warranted granting Plaintiff’s request to conduct the deposition of the Contracting Officer
concerning the compilation of the Administrative Record and potential inconsistencies in the
documents produced. In addition, the court has determined that the United States Army should be
charged with the sanction of paying for Plaintiff’s attorneys’ fees and costs to prepare briefs that
were based on an incomplete Administrative Record.1 See Rule 37(b)(2)(C) of the Rules of the
United States Court of Federal Claims (“RCFC”) (“[T]he court must order the disobedient party,
the attorney advising that party, or both to pay the reasonable expenses, including attorney’s
fees[.]”); see also M.A. Mortenson Co. v. United States, 996 F.2d 1177, 1180 (Fed. Cir. 1993)
(“[28 U.S.C. § 2412(b)] essentially strips the government of its cloak of immunity with respect to
costs and fees and requires it to litigate under the same professional standards applicable to a
private litigant.”).
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The court will determine that amount of reasonable attorney fees and costs at a later date,
but notes that the April 18, 2016 Summary of Account submitted by Plaintiff’s counsel is
insufficient, as it fails to include a retainer letter and identify the name of the billing lawyers listed
and rates that should comport with prevailing local rates.
On April 14, 2016, the Government filed a second Motion To Correct The Administrative
Record And Motion To Withdraw Portions Of The Defendant’s Reply Brief, because
Government’s counsel recently was advised that Tabs 57 and 58 “contained additional information
the [C]ontracting [O]fficer added after the filing of this bid protest matter.” ECF No. 36, at 2.
Therein, the Government requested that the court reconsider the granting of the Government’s
April 8, 2016 Motion and instead grant the Government’s April 14, 2016 Motion. In addition, the
Government also requested that the court strike the portions of the Government’s April 11, 2016
Reply referencing Tabs 57 and 58. And, the Government asked that Plaintiff’s deposition of the
Contracting Officer “be limited to examination regarding the offending material included in [Tabs
57 and 58][.]” ECF No. 36, at 3. On April 15, 2016, Plaintiff filed a Response, not objecting to
the Government’s request to correct the Administrative Record and to strike portions of the
Government’s April 11, 2016 Reply, but reserving the right to strike any other documents
improperly included in the Administrative Record and opposing any limitation to the deposition
of the Contracting Officer. ECF No. 37, at 2. On April 18, 2016, the Government filed a Reply.
ECF No. 40.
The Government’s April 14, 2016 Motion To Correct The Administrative Record And
Motion To Withdraw Portions Of The Defendant’s Reply Brief is granted-in-part and denied-
in-part. The Government’s Motion To Reconsider therein is denied. The Government may
correct the Administrative Record by deleting Tabs 57 and 58 and replacing them with the publicly
available documents in existence before the bid protest was filed, adding a missing attachment to
Amendment 1 of the Solicitation, and deleting the portions of the Government’s April 11, 2016
Reply that references Tabs 57 and 58. Plaintiff’s deposition of the Contracting Officer may include
examination about the compilation of the Corrected Administrative Record, including Tabs 57 and
58, and any inconsistencies within the Administrative Record as now corrected.
In addition, the new briefing schedule is as follows:
May 11, 2016 Plaintiff will file a Motion For Judgment On The Corrected
Administrative Record.
May 25, 2016 The Government will file a Cross-Motion For Judgment On The
Corrected Administrative Record and Opposition To Plaintiff’s
Motion For Judgment On The Corrected Administrative Record.
June 1, 2016 Plaintiff will file any Response and Reply.
June 8, 2016 The Government will file any Reply.
IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Judge
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