Defendant’S Status Report
- Date
- 2024-05-10
Summary
A redacted status report filed April 29, 2024 by the United States as Document 40 in AirBoss Defense Group, LLC and String King Lacrosse, LLC v. The United States and New York Embroidery Studio, Inc., No. 24-365, a bid protest in the United States Court of Federal Claims before Judge Lettow. It sets out HHS's intended corrective action schedule: a new competitive range determination by May 10, 2024, a solicitation amendment by the end of May 2024 and a new award decision by the end of July 2024. The government proposes suspending all deadlines, including the administrative record due May 3, 2024, and filing a status report in 90 days, arguing that the corrective action moots the protest. It reports that String King and AirBoss ask that the approved briefing schedule continue.
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Case 1:24-cv-00365-PSH Document 40 Filed 04/29/24 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
BID PROTEST
AIRBOSS DEFENSE GROUP, LLC, )
)
Plaintiff, )
)
and )
)
STRING KING LACROSSE, LLC, ) No. 24-365
) (Judge Lettow)
Plaintiff-Intervenor, )
)
)
v. ) REDACTED VERSION
)
THE UNITED STATES, )
)
Defendant, )
)
and )
)
NEW YORK EMBROIDERY STUDIO, INC., )
)
Defendant-Intervenor. )
DEFENDANT’S STATUS REPORT
Defendant, the United States, respectfully submits this status report to advise the Court
of the timeline for the corrective action that the Department of Health and Human Services
(HHS) intends to take and to respectfully propose that the Court suspend all future deadlines.
HHS’s intended corrective action schedule includes the following:
1. By May 10, 2024, HHS will make a new competitive range determination and
notify offerors who are in the competitive range.
2. By the end of May 2024, HHS will issue an amendment to the solicitation to
offerors in the competitive range. As part of the amendment, HHS intends to
Case 1:24-cv-00365-PSH Document 40 Filed 04/29/24 Page 2 of 5
.
3. By the end of July 2024, HHS will evaluate revised proposals and make a new
award decision.
The administrative record is currently due May 3, 2024, followed by motions for
judgment on the administrative record, with the last brief due July 8, 2024. However, the
Government respectfully proposes that the Court suspend the current schedule until HHS
finalizes its corrective action. The corrective action will result in an amended solicitation, new
evaluations, and a new source selection decision. As previously noted, see Joint Status Report,
April 17, 2024, ECF No. 34, it is our position that HHS’s corrective action moots the current
protest because HHS has decided to reconsider its requirements, reopen competition, and
consider the contract award anew. Cf. Nat’l Air Cargo Grp., Inc. v. United States, 127 Fed. Cl.
707, 717 (2016) (“In cases where the agency has taken corrective action that resulted in a new
evaluation and source selection decision, the court must review the agency’s new decision. . . .
The initial agency decision typically will not present a live controversy after corrective action,
making moot those errors alleged in an initial decision.”) (citing Tenica & Assocs., LLC v.
United States, 123 Fed. Cl. 166, 171 (2015)).
Aside from the Government’s position on mootness, ADG has stated it “believes that
resolution of the Government’s motion to dismiss depends entirely on the results of the actions
that the Government has stated HHS will take,
2
Case 1:24-cv-00365-PSH Document 40 Filed 04/29/24 Page 3 of 5
and be considered for award, and whether HHS amends the solicitation in a manner that
clarifies the provisions of the solicitation that ADG has alleged HHS has misinterpreted or, in
the alternative, are latently ambiguous.” Joint Status Report, ECF No. 34 (emphasis added);
Scheduling Order, April 22, 2024, ECF No. 36. But the administrative record will not contain
documents reflecting those decisions if it is filed before HHS amends the solicitation.
Moreover, to the extent ADG believes that this case is not ready for judicial resolution until the
“results” of the corrective action are known, any briefing at this time would be premature
because the agency’s corrective action has only just begun. See, e.g., Health Republic Ins. Co.
v. United States, 129 Fed. Cl. 757, 772 (2017) (“To be ripe, a claim must not be contingent
upon future events that may or may not occur.” (citing Thomas v. Union Carbide Agric. Prods.
Co., 473 U.S. 568, 580-81 (1985)).
Additionally, around the time that the parties finalize briefing in accordance with the
current schedule and prepare for oral argument, HHS’s new award decision will have overtaken
prior agency actions. As well, HHS’s corrective action might create grounds for a new protest.
The Government believes that it would be inefficient at this time to have the parties
unnecessarily review the current administrative record—which supports an agency decision
that HHS intends to replace with a new decision—and to prepare motions for judgment on the
administrative record.
To avoid “premature adjudication” and the potential “entangl[ement] in abstract
disagreements over administrative policies,” Abbott Labs v. Gardner, 387 U.S. 136, 149
(1967), the Government respectfully proposes that the Court suspend all upcoming deadlines,
including the Government’s obligation to file the administrative record by May 3, 2024. The
3
Case 1:24-cv-00365-PSH Document 40 Filed 04/29/24 Page 4 of 5
Government further respectfully proposes that the Government files a status report in 90 days
from the Court’s order to apprise the Court of whether HHS has completed its corrective
action. Once corrective action is complete, the parties will be able to assess whether further
judicial proceedings are necessary. If corrective action does not resolve this case to plaintiff’s
satisfaction, the parties will discuss next steps and propose a litigation schedule to the Court, if
needed.
Counsel for String King has represented that String King has no issue with the schedule
proposed by the Government with respect to the corrective action, but requests the briefing
schedule already approved by the Court continue as scheduled simultaneously including the
production of an administrative record. Counsel for AirBoss has represented that AirBoss joins
String King’s request that the briefing schedule already approved by the Court continue as
scheduled. Counsel for defendant-intervenor, New York Embroidery Studio, Inc. (NYES), did
not respond by the time of this filing to indicate NYES’s position.
4
Case 1:24-cv-00365-PSH Document 40 Filed 04/29/24 Page 5 of 5
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney
General
PATRICIA M. McCARTHY
Director
s/ Franklin E. White, Jr.
FRANKLIN E. WHITE, JR.
Assistant Director
s/ Jana Moses
OF COUNSEL: JANA MOSES
Trial Attorney
Megan R. Nathan Commercial Litigation Branch
Anthony E. Marrone Civil Division
Attorneys U.S. Department of Justice
U.S. Department of Health and Human Services P.O. Box 480
Office of the General Counsel, Ben Franklin Station
General Law Division Washington, DC 20044
Washington, D.C. 20201 Tel: (202) 616-2279
Fax: (202) 307-0972
Jana.Moses@usdoj.gov
Attorneys for Defendant
April 26, 2024
5
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