String King Lacrosse Llc’S, Unopposed Motion To Intervene
- Date
- 2022-06-28
Summary
String King Lacrosse LLC's unopposed motion to intervene as a plaintiff-intervenor in AirBoss Defense Group, LLC v. The United States, Case No. 1:24-cv-00365, a bid protest in the United States Court of Federal Claims, filed April 12, 2024 as Document 29. The motion states StringKing was an offeror under HHS Request for Proposal No. 75A50322R00008, which the agency issued on June 28, 2022, and recounts its GAO and agency-level protests, including its challenge to the removal of shelf-life from the best value determination by Amendment 0008. It argues StringKing may intervene as of right under RCFC 24(a)(2), citing its economic interest as a competitor and its interest in protecting proprietary proposal information, and alternatively seeks permissive intervention under RCFC 24(b). It is signed by Eric S. Crusius of Holland & Knight LLP.
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Case 1:24-cv-00365-PSH Document 29 Filed 04/12/24 Page 1 of 7
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
(BID PROTEST)
)
AIRBOSS DEFENSE GROUP, LLC, )
)
Plaintiff, )
)
v. ) Case No. 1:24-cv-00365-CFL
) Judge Charles F. Lettow
THE UNITED STATES, )
)
Defendant, )
)
and )
)
NEW YORK EMBROIDERY )
STUDIO, INC., )
)
Defendant-Intervenor. )
STRING KING LACROSSE LLC’S, UNOPPOSED MOTION TO INTERVENE
Pursuant to Rule 24 of the Rules of the United States Court of Federal Claims (“RCFC”),
String King Lacrosse LLC (“StringKing”), respectfully files this Motion to Intervene as a Plaintiff-
Intervenor in the above-captioned bid protest. StringKing submitted a timely offer pursuant to the
Department of Health and Human Services, Administration for Strategic Preparedness and
Response’s (“HHS,” “Agency,” or the “Government”) Request for Proposal No.
75A50322R00008 (the “RFP” or the “Solicitation”). Counsel for StringKing has conferred with
counsel for Plaintiff, AirBoss Defense Group, LLC (“AirBoss”); Defendant, the United States; and
Defendant-Intervenor, New York Embroidery Studio, Inc. (“NYES”), and all parties stated that
they do not object to StringKing intervening in these proceedings.
I. FACTUAL BACKGROUND
On June 28, 2022, the Agency issued the Solicitation, and on November 22, 2022,
StringKing timely filed its initial proposal. Then, on September 27, 2023, the Agency issued a
Case 1:24-cv-00365-PSH Document 29 Filed 04/12/24 Page 2 of 7
notice of unsuccessful offer to StringKing and informed StringKing that the Contract had been
awarded to NYES. After requesting and receiving a debriefing from the Agency, StringKing filed
a protest at the Government Accountability Office (“GAO”) challenging the Agency’s award to
NYES on multiple bases on October 4, 2023.
On October 27, 2023, the Agency filed a Notice of Corrective Action and sought to dismiss
StringKing’s protest as academic. StringKing objected to the Agency’s corrective action on
October 31, 2023, arguing that it did not remedy StringKing’s protest, but GAO dismissed
StringKing’s protest on November 3, 2023. Following that dismissal, on November 13, 2023,
StringKing filed an agency-level protest against the Agency’s corrective action but never received
a decision on the merits.
On February 16, 2024, the Agency issued Amendment 0008 to offerors in the competitive
range. Amendment 0008 set February 28, 2024, as the due date for revised proposals. Further,
and critically, Amendment 0008 also removed shelf-life as a consideration from the Agency’s best
value determination. StringKing then filed a protest with GAO challenging Amendment 0008 on
February 26, 2024, protesting, among other things, the Agency’s removal of shelf life as a factor
in the Solicitation.
On March 26, 2024, HHS informed GAO that it intended to take corrective action. HHS
stated that it would cancel the Solicitation; terminate NYES’s contract; “[r]eview and reconsider
the Agency’s requirement for isolation gowns, to include shelf-life considerations, which may
include additional or updated market research and a new or revised acquisition plan for a new
solicitation”; and would “[t]ake other actions, as deemed necessary and appropriate by the
Agency.” (ECF Docket No. 27-1.) GAO gave StringKing an opportunity respond to HHS’s
Notice of Corrective Action, which StringKing did, objecting again to the Agency’s proposed
2
Case 1:24-cv-00365-PSH Document 29 Filed 04/12/24 Page 3 of 7
corrective action on March 28, 2024. Finally, on April 9, 2024, GAO dismissed StringKing’s
protest, finding that the Agency’s proposed corrective action rendered StringKing’s protest
academic.
II. THE COURT SHOULD GRANT CFI’S INTERVENTION AS A MATTER OF
RIGHT.
Under RCFC 24(a)(2), “the court must permit anyone to intervene who . . . claims an
interest relating to the property or transaction that is the subject of the action, and is so situated
that disposing of the action may as a practical matter impair or impede the movant’s ability to
protect its interest, unless existing parties adequately represent that interest.” The “requirements
for intervention are to be construed in favor of intervention.” Cherokee Nation of Okla. v. United
States, 69 Fed. Cl. 148, 152 (2005) (citing Am. Mar. Transp., Inc. v. United States, 870 F.2d 1559,
1561 (Fed. Cir. 1989)).
StringKing has a direct economic interest in the outcome of this action. First, as an actual
offeror in the competitive range of this procurement, StringKing has a direct and cognizable
interest in this litigation. See, e.g., Quantico Tactical Inc. v. United States, 149 Fed. Cl. 395 (2020)
(noting that an offeror in the competitive range of a procurement was permitted to intervene in a
pre-award protest). Additionally, StringKing has an interest in protecting the confidential and
proprietary information contained in its proposal, which will likely be produced in the
Government’s Administrative Record.1 See Northrop Grumman Information Tech., Inc. v. United
States, 74 Fed. Cl. 407 414-15 (2006) (finding that “trade secrets and proprietary information are
the very type of interest the protection of which justifies intervention under Rule 24(a)”).
1
In fact, StringKing understands that its unredacted GAO protest has already been produced in
this protest. (See ECF Docket No. 23.)
3
Case 1:24-cv-00365-PSH Document 29 Filed 04/12/24 Page 4 of 7
The Court’s disposition of AirBoss’s protest, no matter the outcome, would affect
StringKing’s rights as a competitor. First, the Court’s resolution of AirBoss’s challenges to the
Agency’s consideration of shelf-life will affect StringKing’s economic interest in this action.2 As
an offeror in the competitive range of the procurement, and an offeror that placed a key emphasis
on its shelf-life in its proposal, how the Court evaluates AirBoss’s shelf-life challenges will affect
StringKing’s interest as a competitor, as a determination that the Agency can reasonably not
consider shelf-life affects StringKing’s proposal and procurement strategy. Further, given the
Government’s newly-proposed corrective action, whether the Court even permits the protest to
move forward or allows the Agency to undertake its proposed corrective action would clearly
affect StringKing, as not dismissing the protest would raise the shelf-life concerns noted above,
while dismissing the protest means StringKing must compete again for the procurement. Finally,
the Court’s disposition of the protest may, as a practical matter, impede StringKing’s ability to
protect its proprietary information. While protected information is subject to the Court’s
Protective Order, information can be released from under the Protective Order through the
redaction process. (ECF Docket No. 15 at ¶ 12.) StringKing’s proprietary information may be
2
StringKing acknowledges that, under RCFC 24(c), a motion to intervene must be “accompanied
by a pleading that sets out the claim or defense for which intervention is sought.” However, due
to the nature and timing of the Agency’s proposed corrective action, StringKing requests that it be
permitted to file a pleading, to the extent the Court deems a pleading is required, following its
intervention if the Court does not dismiss the protest or, alternatively, state its claims in a Motion
for Judgment on the Administrative Record. StringKing’s main concern in this procurement, as
stated in this Motion and as it would present in a required pleading, is the Agency’s removal of
shelf-life as a consideration in its evaluation. Lastly, while a pleading may be required, the Court
has permitted intervention by intervenor-plaintiffs without any pleading and allowed the intervenor
to file a pleading at a later date. See M.E.S., Inc. v. United States, 104 Fed. Cl. 620 (2012) (granting
motion to intervene, finding that intervenor’s “failure to attach a ‘ “pleading that sets out the claim
or defense for which intervention is sought,” ‘ as required by RCFC 24 (c), was a harmless
procedural defect,” and instructing intervenor to file a complaint-in-intervention by a later date).
4
Case 1:24-cv-00365-PSH Document 29 Filed 04/12/24 Page 5 of 7
released through the redaction process, which would clearly impede its ability to protect such
information should it not be permitted to intervene.
Additionally, neither of the current parties can adequately represent StringKing’s interests.
The Government does not adequately represent StringKing’s interests as a competitor because the
Government’s interest is in preserving its discretion and achieving the larger goals of HHS. See,
e.g., Coastal Int’l Sec., Inc. v. United States, 93 Fed. Cl. 502, 526 (2010) (government could not
adequately represent defendant-intervenor’s interests where “it has the responsibility to represent
only [the agency’s] interests.”). In fact, the Government and StringKing are opposed in this action,
given StringKing’s opposition to the Government’s proposed corrective action and opposition to
Amendment 0008 of the Solicitation. Nor can AirBoss or NYES, as fellow competitors in the
instant procurement, adequately represent StringKing’s interests. Because StringKing’s interest in
the procurement will be affected by the outcome of this bid protest, and because no other party
would adequately represent StringKing’s interests, StringKing should be permitted to intervene in
this protest as a matter of right.
Accordingly, intervention is appropriate, as StringKing meets the requirements of RCFC
24(a)(2).
III. ALTERNATIVELY, THE COURT SHOULD GRANT PERMISSIVE
INTERVENTION.
Alternatively, pursuant to RCFC 24(b), the Court may “permit anyone to intervene who . .
. has a claim or defense that shares with the main action a common question of law or fact.” In
exercising its discretion to grant permissive intervention, the Court “must consider whether the
intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” RCFC
24(b)(3).
5
Case 1:24-cv-00365-PSH Document 29 Filed 04/12/24 Page 6 of 7
Since StringKing has an economic interest as an actual offeror in the competitive range
that opposes the Government’s proposed corrective action, its protest will share common questions
of law and fact with AirBoss’s protest against the Government’s corrective action. Additionally,
StringKing’s challenge of the Government’s consideration of shelf-life in the Solicitation also
shares common question of law and fact with AirBoss’s complaint.
Further, StringKing’s intervention will not delay or prejudice adjudication of the existing
parties’ rights. StringKing agrees to comply with any Scheduling Order entered by the Court
regarding any forthcoming motion to dismiss from the Government along with any subsequent
deadlines set by the Court for briefing on the merits of the protest. (See ECF Docket No. 28.)
Therefore, in the alternative to intervention as a matter of right, StringKing should be granted
permissive intervention.
IV. CONCLUSION
For the foregoing reasons, StringKing respectfully requests that the Court grant its timely
motion to intervene.
Dated: April 12, 2024 Respectfully submitted,
HOLLAND & KNIGHT LLP
/s/Eric S. Crusius
Eric S. Crusius, Esq. (Counsel of Record)
1650 Tysons Boulevard, Suite 1700
Tysons, VA 22102
Phone: (703) 720-8042
Fax: (703) 720-8610
E-mail: Eric.Crusius@hklaw.com
Counsel for String King Lacrosse, LLC
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Case 1:24-cv-00365-PSH Document 29 Filed 04/12/24 Page 7 of 7
Of Counsel:
Amy L. Fuentes, Esq.
Holland & Knight LLP
1650 Tysons Boulevard, Suite 1700
Tysons, VA 22102
E-mail: Amy.Fuentes@hklaw.com
Richard J. Ariel, Esq.
Holland & Knight LLP
800 17th Street N.W., Suite 1100
Washington, D.C. 20006
E-mail: Richard.Ariel@hklaw.com
7
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