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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
BID PROTEST
AIRBOSS DEFENSE GROUP, LLC,
Plaintiff,
and
STRING KING LACROSSE LLC,
Plaintiff-Intervenor
v.
THE UNITED STATES,
Defendant,
and
NEW YORK EMBROIDERY STUDIO, INC.,
Defendant-Intervenor.
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No. 24-365
(Judge Lettow)
PLAINTIFF AND PLAINTIFF- INTERVENOR’S JOINT MOTION TO REINSTATE
THE REQUIREMENT TO FILE THE ADMINISTRATIVE RECORD
Plaintiff, AirBoss Defense Group, LLC (“ADG”), and Plaintiff-Intervenor, String King
Lacrosse LLC (“StringKing”) (collectively the “Plaintiffs”), respectfully requests that the Court
reinstate in part the Court’s April 22, 2024 Scheduling Order (ECF No. 36) and direct the
Government to file the administrative record on or before May 10, 2024.
On April 29, 2024, the Court issued an Order suspending all proceedings (ECF No. 36).
Although the Court’s April 29 Order states that the Court “considered both proposals as to how
this case should proceed” (i.e., the Government’s proposal and the Government’s recitation of
Plaintiffs’ proposal), ADG and StringKing were not afforded a meaningful opportunity to present
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their position to the Court. For the foregoing reasons, Plaintiffs respectfully request that the Court
reconsider its April 29 Order and partially reinstate the Court’s April 22 Scheduling Order with
respect to the requirement to file the administrative record. Doing so places no burden on the
Government or the Court and will instead facilitate the orderly resolution of this matter.
Plaintiffs file this motion based on three concerns. First, as the Court recognized in its
April 29 Order, Defendant’s April 26, 2024 Status Report was, in fact, a motion. Defendant
notified the parties of its intent to file the Status Report at 2:36 PM on April 26, stating that the
Status Report would be filed by 5:00 PM. Exhibit A. Defendant’s email provided a single sentence
explaining Defendant’s position regarding suspension. ADG and StringKing accordingly
provided Defendant with a single sentence each explaining their position that suspension is
inappropriate. Undersigned Counsel did not expect that Defendant would file several pages of
legal argument in support of its proposed suspension, let alone that the parties would not receive a
similar opportunity to explain their positions. Additionally, because the parties were not able to
agree on a redacted copy of Defendant’s email, undersigned Counsel were not able to discuss
Defendant’s email with their clients prior to responding.
Second, nothing changed in the four days between the Court’s April 22, 2024 Scheduling
Order (ECF No. 36), which directed the Government to file the administrative record on May 3,
and Defendant’s April 26 Status Report. The Court’s April 22 Order recites that “HHS now
intends to reconsider its competitive range determination within the next thirty days, issue an
amendment to the solicitation revising the current requirements, engage in discussions as needed,
and solicit revised final proposals.” April 22 Order at 1. Defendant’s April 26 Status Report
simply adds dates to the Government’s plans and identifies two additional aspects of the
solicitation that the Government intends to “clarify.” Defendant’s April 26 Status Report does not
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state which offerors will be included in the competitive range, nor does it state how the solicitation
will be revised or clarified, all of which are issues that go to the heart of ADG and StringKing’s
protests.
Nothing in the Government’s April 26 Status Report makes ADG’s protest or StringKing’s
protest any less of a live controversy than four days earlier on April 22. The Government did not
take—and still has not taken—any action that moots the protests, and the additional detail provided
regarding the Government’s planned actions does not make it any more likely that the protests will
become moot. The Government has simply called a “mulligan,” but has not actually taken a second
swing.
As other Judges on this Court have ruled, “the government lacks carte blanche to end cases
unilaterally — whether via a voluntary remand or dismissal for mootness — simply by calling a
mulligan in a case challenging a government procurement decision pursuant to 28 U.S.C. §
1491(b).” AccelGov, LLC v. United States, 166 Fed. Cl. 606, 609-12 (2023) (citing cases). In
AccelGov, as here, the Government sought to avoid responding to the merits of a protest by
announcing that it would amend the solicitation, reevaluate proposals, and make a new award
decision. There, as here, the Government offered no explanation why it was taking these steps,
but simply claimed that the decision to take them rendered that case moot. The Court in AccelGov
rejected the Government’s attempt to “jump[] from the blurred silhouette of a proposed corrective
action to a focused conclusion that [plaintiffs] have obtained all of the relief they sought.” Id. at
611 (alterations added; internal quotation marks omitted). It has been nearly two months since
ADG filed its Complaint in this Court, and, according to the Government, it may be another three
months before the Government will inform the Court of what corrective action it has actually
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taken. The silhouette of the Government’s proposed corrective action in this case is even more
blurred than it was in AccelGov.
Third, ADG and StringKing were forced to file the instant protests because HHS failed to
take the corrective action that it told the Government Accountability Office (“GAO”) it would take
on October 23, 2023. See ADG Compl. ¶¶ 33-35, 84-87 (ECF No. 1); StringKing Compl. ¶¶ 93-
98 (ECF No. 37). Indeed, the Government has repeatedly made broad statements about decisions
that it plans to make in the future on the eve of deadlines to document its actual decision-making.
The Government notified GAO of its 2023 corrective action one week before it was due to file an
administrative record in ADG’s GAO protest, and the Government’s March 26, 2024 Notice of
Corrective Action was filed the day before the Government was due to file the administrative
record in StringKing’s GAO protest. StringKing Compl. ¶¶ 57-58. The Government similarly
filed its April 26 request for a suspension of all proceedings one week before the May 3 deadline
the Court set for the filing of the administrative record.
Plaintiffs respectfully request that the Court reinstate the requirement for the Government
to file the administrative record and direct that the record be filed on or before May 10, 2024 (one
week later than previously ordered). ADG and StringKing appreciate the Court’s desire to avoid
needless litigation, and does not oppose a temporary suspension of further litigation, including
briefing on cross-motions for judgment on the administrative record. Proceeding with the filing
of the administrative record, however, imposes no burden whatsoever on the Government or the
Court. ADG filed its Complaint two months ago, and the administrative record was due on May
3, so the record presumably has been assembled and all that is left is the ministerial task of filing
it with the Court.
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Plaintiffs further submit that reinstating the requirement to file the administrative record
will facilitate the orderly resolution of these protests. The administrative record will allow
Plaintiffs to communicate to the Government with much greater detail and precision the errors that
need to be rectified in corrective action. Just as Plaintiffs require an administrative record to
demonstrate to this Court why the Government’s actions were “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), Plaintiffs require an
administrative record to demonstrate to the Government why they will prevail on the merits if
specific corrective actions are not taken. This, in turn, will help ensure that when the Government
reports to the Court what corrective action it has actually taken, Plaintiffs will be able to tell the
Court exactly which aspects of this case are moot and which aspects of this case are not. And, if
further briefing is necessary at that point, the record will have been produced and Plaintiffs will be
prepared to move forward expeditiously with their motions for judgment on the administrative
record.
Plaintiffs notified Defendant and Defendant-Intervenor, New York Embroidery Studio Inc.
(“NYES”), of their intent to file this Motion. Defendant indicated that it does not consent to
Plaintiffs’ Motion. NYES indicated that it had no position on the issue and defers to the Court’s
preference.
***
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Dated: May 3, 2024
Respectfully submitted,
/s/ Daniel P. Graham
Daniel P. Graham
Llewelyn M. Engel
MCDERMOTT WILL & EMERY LLP
500 North Capitol Street, N.W.
Washington, DC 20001
202-756-8890
Counsel for AirBoss Defense Group, LLC
s/ Eric S. Crusius____________________
Eric S. Crusius, Esq.
Amy L. Fuentes, Esq.
Richard Ariel, Esq.
1650 Tysons Boulevard, Suite 1700
Tysons, Virginia 22102
Phone: (703) 720-8042
Counsel for StringKing Lacrosse LLC
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CERTIFICATE OF SERVICE
I hereby certify that on May 3, 2024, I caused a copy of the foregoing document to be
electronically filed with the clerk using the Court’s CM/ECF system. I further certify that I have
served the foregoing document via Electronic Mail on the following:
United States Department of Justice
Commercial Litigation Branch
Civil Division, 8th Floor
1100 L Street NW
Washington, DC 20530
E-mail: nationalcourts.bidprotest@usdoj.gov
s/ Daniel P. Graham
Daniel P. Graham
MCDERMOTT WILL & EMERY LLP
500 North Capitol Street, N.W.
Washington, DC 20001
202-756-8890
Counsel for AirBoss Defense Group, LLC
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