Joint Status Report and Motion for a Scheduling Order — AirBoss Defense Group, LLC v. United States (Dkt. 34)

Summary

This Joint Status Report and Motion for a Scheduling Order was filed in the bid protest AirBoss Defense Group, LLC v. The United States, No. 24-365 (Judge Lettow), in the United States Court of Federal Claims. String King Lacrosse LLC is plaintiff-intervenor and New York Embroidery Studio, Inc. is defendant-intervenor. It reports that the Department of Health and Human Services (HHS) revised its intended corrective action and will no longer cancel the solicitation. The Government believes this corrective action moots the protest and proposes a schedule starting with a motion to dismiss on April 26, 2024. Plaintiff ADG proposes a different schedule, and New York Embroidery Studio states that it has no opposition to either proposed schedule.

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      Case 1:24-cv-00365-PSH           Document 34        Filed 04/17/24      Page 1 of 5




                IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                                 BID PROTEST

AIRBOSS DEFENSE GROUP, LLC,                       )
                                                  )
                     Plaintiff,                   )
                                                  )
       and                                        )
                                                  )
STRING KING LACROSSE LLC,                         )
                                                  )
                     Plaintiff-Intervenor         )
                                                  )
                                                  )     No. 24-365
         v.                                       )     (Judge Lettow)
                                                  )
THE UNITED STATES,                                )
                                                  )
                      Defendant,                  )
                                                  )
         and                                      )
                                                  )
NEW YORK EMBROIDERY STUDIO, INC.,                 )
                                                  )
                      Defendant-Intervenor.       )


         JOINT STATUS REPORT AND MOTION FOR A SCHEDULING ORDER

      Pursuant to the Court’s April 17, 2024 order (ECF No. 33), plaintiff, AirBoss Defense

Group, LLC (ADG), plaintiff-intervenor, String King Lacrosse LLC (StringKing), defendant, the

United States, and defendant-intervenor, New York Embroidery Studio, Inc. (NYES),

respectfully submit this status report and motion for a scheduling order.

       As the Government reported in its April 15, 2024 status report (ECF No. 31), the

Department of Health and Human Services (HHS) has revised its intended corrective action and

will no longer cancel Request for Proposals No. 75A50322R00008. 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
       Case 1:24-cv-00365-PSH            Document 34         Filed 04/17/24       Page 2 of 5




 revised final proposals. Thereafter, HHS will make a new award decision.

        The Government believes that this corrective action moots this protest.             See, e.g.,

 Chapman Law Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934, 939 (Fed. Cir. 2007), and

 respectfully submits that these judicial proceedings should proceed in accordance with the

 following proposed schedule:

  April 26, 2024                                      Government files motion to dismiss

  May 10, 2024                                        Plaintiff and Plaintiff-Intervenor file response

  May 17, 2024                                        Government and Defendant-Intervenor files
                                                      reply

       Along with its motion to dismiss, the Government intends to attach a declaration from the

contracting officer for the solicitation at issue. The Government believes that these filings (along

with its reply) will provide an adequate rationale for the agency’s decision to take corrective action

and demonstrate that this Court should dismiss the matter for lack of subject-matter jurisdiction

due to mootness.

       Plaintiff ADG 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, including

whether HHS decides to include ADG in the competitive range and provide ADG with a

meaningful opportunity to revise its proposal 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. Plaintiff ADG

respectfully submits that these judicial proceedings should proceed in accordance with the

following proposed schedule:




                                                  2
       Case 1:24-cv-00365-PSH           Document 34        Filed 04/17/24      Page 3 of 5




  April 23, 2024     Plaintiff-Intervenor StringKing files complaint.



  May 3, 2024        Government files the Administrative Record Responding to ADG’s Protest
                     and Providing the Details of the Agency’s Corrective Action, including any
                     new competitive range determination, solicitation amendment, and
                     discussion letters
  May 24, 2024       Plaintiff and Plaintiff-Intervenor file Motions for Judgment on the
                     Administrative Record (“MJAR”)

  June 14, 2024      Government and Defendant-Intervenor file Oppositions to Plaintiff and
                     Plaintiff-Intervenor’s MJARs and file Cross-MJARs



  June 28, 2024      Plaintiff and Plaintiff-Intervenor file Replies in Support of their MJARs and
                     file Oppositions to the Government and Defendant-Intervenor’s MJARs



  July 8, 2024       Government and Defendant-Intervenor file Replies in Support of their
                     MJARs


       Plaintiff ADG submits that the schedule above potentially avoids any further briefing at

all, as ADG will have the opportunity to voluntarily dismiss its Amended Complaint if ADG

determines, based on the corrective action actually taken by HHS, that its protest is moot. Plaintiff

ADG further submits that the schedule above also allows for comprehensive briefing of all issues

in the protest, if the Court concludes that HHS’s corrective action does not moot the claims in

ADG’s Amended Complaint.

       Plaintiff-Intervenor StringKing represents that it endorses the schedule proposed by ADG

and would file its briefs on the dates proposed for ADG to file its briefs. Should the Court adopt

ADG’s briefing schedule, StringKing will file its complaint (as a Plaintiff-Intervenor) on or before

April 23, 2024 if the Court is agreeable.



                                                 3
       Case 1:24-cv-00365-PSH         Document 34       Filed 04/17/24    Page 4 of 5




       Defendant-Intervenor NYES represents that it has no opposition to either proposed

schedule and defers to the Court’s judgment on efficiency and convenience to the Court. If the

Court adopts the government schedule, Defendant-Intervenor requests permission to file a reply

as an Intervenor-Defendant by May 17, 2024. If the Court adopts Plaintiff’s proposed schedule,

NYES requests permission to file as an Intervenor-Defendant by June 14, 2024 and July 8.




                                              4
      Case 1:24-cv-00365-PSH      Document 34     Filed 04/17/24       Page 5 of 5




Respectfully submitted,                      Respectfully submitted,

/s/ Daniel P. Graham                         BRIAN M. BOYNTON
Daniel P. Graham                             Principal Deputy Assistant Attorney
Llewelyn M. Engel                            General
MCDERMOTT WILL & EMERY LLP
500 North Capitol Street, N.W.               PATRICIA M. McCARTHY
Washington, DC 20001                         Director
202-756-8890
                                             s/ Franklin E. White, Jr.
Counsel for AirBoss Defense Group, LLC       FRANKLIN E. WHITE, JR.
                                             Assistant Director

April 17, 2024                               s/ Jana Moses
                                             JANA MOSES
                                             Trial Attorney
                                             Commercial Litigation Branch
                                             Civil Division
                                             U.S. Department of Justice
                                             P.O. Box 480
                                             Ben Franklin Station
                                             Washington, DC 20044
                                             Tel: (202) 616-2279
                                             Fax: (202) 307-0972
                                             Jana.Moses@usdoj.gov

                                             Attorneys for Defendant

                                             OF COUNSEL:

                                             Megan R. Nathan
                                             Anthony E. Marrone
                                             Attorneys
                                             U.S. Department of Health and Human
                                             Services
                                             Office of the General Counsel,
                                             General Law Division
                                             Washington, D.C. 20201

                                             April 17, 2024




                                         5


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