Motion To Intervene
Summary
Plaintiff AirBoss Defense Group, LLC's opposition to New York Embroidery Studio, Inc.'s motion to intervene in AirBoss Defense Group, LLC v. United States, Case No. 24-cv-00365, a bid protest in the United States Court of Federal Claims before Judge Charles F. Lettow, dated March 12, 2024. The plaintiff argues that the movant lacks a legally protectable interest under RCFC 24(a)(2), because the protest challenges the plaintiff's exclusion from the competitive range set by HHS, not the movant's inclusion in it. It contends that the Government can adequately represent any interest the movant has and that the standard protective order protects its proprietary data. The opposition also asks the Court to deny permissive intervention under RCFC 24(b)(1)(B) and leave to appear as amicus curiae. It is signed by counsel at McDermott Will & Emery LLP.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
BID PROTEST
AirBoss Defense Group, LLC,
Plaintiff, Case No. 24-cv-00365
Judge Charles F. Lettow
v.
United States,
Defendant.
OPPOSITION TO NEW YORK EMBROIDERY STUDIO, INC.’S
MOTION TO INTERVENE
Plaintiff, AirBoss Defense Group, LLC (“ADG”), respectfully requests that the Court deny
New York Embroidery Studio, Inc.’s (“NYES”) motion to intervene in the above-captioned bid
protest matter. Pursuant to Rule 24 of the Rules of the U.S. Court of Federal Claims (“RCFC”),
NYES does not satisfy the necessary criteria to intervene as a matter of right and does not meet
the standard for permissive intervention.
A. NYES Has No Interest in the Subject of the Bid Protest
Under RCFC 24, a party may intervene as a matter of right only if it “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.” RCFC 24(a)(2). The rule
creates four requirements that a party must satisfy to be granted intervention as a matter of right.
First, the motion must be timely. Second, the movant must demonstrate that it has an “interest” in
the subject of the protest and the interest at issue must be more than an “economic interest,” it must
be a “legally protectable” one. Wolfsen Land & Cattle Co. v. Pac. Coast Fed’n of Fishermen’s
Ass’ns, 695 F.3d 1310, 1315 (Fed. Cir. 2012). Third, the claimed interest must be “of such a direct
1
and immediate character that the intervenor will either gain or lose by the direct legal operation
and effect of the judgment.” Id. (quoting Am. Mar. Transp., Inc. v. United States, 870 F.2d 1559,
1561 (Fed. Cir. 1989)). Finally, the prospective intervenor must demonstrate that its claimed
interest will not be “adequately addressed by the government’s participation.” Id.
ADG agrees that NYES’s motion is timely but submits that NYES cannot meet any of the
other requirements of RCFC 24. Although the Court construes a motion to intervene in favor of
the intervenor, because NYES has not met the requirements of RCFC 24, the Court should deny
the motion.
Contrary to NYES’s assertion in its motion, ADG’s protest does not “seek[] to displace
NYES as the awardee and deprive NYES of its interests in the Contract.” NYES Mot. at 3. NYES
is not “the awardee,” and is instead only one of several offerors in the competitive range for an
award. 1 The Department of Health and Human Services, Administration for Strategic
Preparedness and Response (“HHS”) will conduct discussions with the offerors in the competitive
range, and any awards will be based on the revisions that the offerors in the competitive range
make to their proposals in the course of discussions. ADG’s protest does not challenge the
inclusion of NYES within HHS’s competitive range. Rather, ADG challenges HHS’s evaluation
of ADG’s proposal and HHS’s decision to exclude ADG from the competitive range. Neither the
Solicitation nor procurement law limits the number of offerors in the competitive range;
accordingly, inclusion of ADG’s proposal in the competitive range will not “impair or impede”
NYES’s ability to protect its interest as an offeror in the competitive range. RCFC 24(a)(2). NYES
1
NYES was awarded a contract under the Solicitation in September 2023. Complaint at ⁋ 27.
Following bid protests at the Government Accountability Office by ADG and other offerors, the
Government elected to take corrective action, reevaluate proposals, and make a new award
decision. Id. at ⁋⁋ 30-35.
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therefore does not stand to “gain or lose by the direct legal operation and effect of the judgment.”
Wolfsen, 695 F.3d at 1315; see Nev. Site Sci. Support & Techs. Corp. v. United States, 128 Fed.
Cl. 337, 339 (2016) (“The potential intervenors would certainly have an interest in getting a
contract of which they are legally qualified, and, if the plaintiff loses the protest, one of the
potential intervenors may receive the subsequent award. However, the simple fact that a party
might benefit from another's legal misfortune does not lead to an understanding that said party
should have a role in occurrence of that legal misfortune. If a singer suffers a voice injury and is,
as result, fired from her job, it is hardly conceivable to believe that a Court would allow a rival
singer to intervene in that case on the side of the employer simply because he might subsequently
get the newly vacant job!”).
For the same reason, NYES has no basis to allege that, if “Airboss prevails in this protest,
NYES will suffer a nontrivial competitive injury because it may be precluded from, and deprived
of, the opportunity to fulfill, and receive revenue from, the Contract.” NYES Mot. at 4. Again,
ADG’s protest does not challenge NYES’s inclusion in the competitive range. ADG’s protest
challenges ADG’s exclusion from the competitive range. NYES has no “legally protectable”
interest in avoiding competition with ADG in this procurement.
It is conceivable that ADG may identify errors in HHS’s evaluation of the proposals that,
if corrected, could result in a new competitive range determination that might not include NYES.
This Court, however, will not set a new competitive range in deciding this protest. As a result,
NYES’s interest in preserving its position in the competitive range is not “of such a direct and
immediate character that [NYES] will either gain or lose by the direct legal operation and effect
of the judgment.” Wolfsen Land & Cattle, 695 F.3d at 1315.
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Further, there is no reason why the Government cannot adequately represent any interest
NYES may have in defending HHS’s inclusion of NYES in the competitive range (which ADG
does not challenge). NYES’s conclusory statement that “NYES’s interests are similar but not
identical to the Agency’s interests,” is devoid of any facts or evidence that would provide a basis
for this Court to find that the Government cannot adequately defend its competitive range
determination. NYES Mot. at 4.
Finally, NYES argues it is entitled to intervene in order to protect its own proprietary data
and that its interest in protecting its data does not overlap with the Government. Although this
Court has allowed intervention for the purpose of protecting proprietary or confidential
information, those circumstances are generally limited to situations where the prospective
intervenor’s information would not be sufficiently protected by the other parties. See e.g. Northrop
Grumman Info. Tech., Inc. v. United States, 74 Fed. Cl. 407, 414 (2006) (allowing limited
intervention to protect trade secrets). ADG has requested that the Court issue its standard
protective order, which limits the disclosure of confidential and proprietary information. NYES
cannot demonstrate that the Court’s protective order is inadequate to protect NYES’s interests.2
B. The Court Should Deny NYES’s Request for Permissive Intervention
Alternatively, NYES requests that the Court exercise its discretion to permit NYES to
permissively intervene. 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.”
2
In the event the Court permits NYES to intervene to protect its own proprietary or confidential
data, ADG requests that the Court limit intervention to this purpose. Armour of Am. v. United
States, 70 Fed. Cl. 240, 245 (2006) (allowing intervention for the sole purpose of requesting
modification of protective order). NYES should not be permitted to file a motion for judgment on
the administrative record, which would needlessly expand the number of briefs that must be filed
in this protest.
4
RCFC 24(b)(1)(B). NYES asserts that it will argue that the Solicitation requires no further
amendment. But whatever argument NYES plans to make, it is not a “claim or defense”—NYES
has been included in the competitive range, and any amendment to the Solicitation will not exclude
NYES from the competitive range. Regardless, NYES has no idea what amendment to the
Solicitation may be required because NYES has not seen ADG’s Complaint. NYES therefore has
no basis to suggest that it has arguments regarding the proper interpretation of the Solicitation that
will be any different from the arguments that the Government will make. NYES’s position that
the Solicitation needs no further amendment therefore does not provide a basis for permissive
intervention.
C. The Court Should Deny NYES ’s Request to Appear as an Amicus Curiae
Finally, NYES requests that the Court “grant NYES leave to appear as amicus curiae for
the limited purpose of NYES outside counsel obtaining access to the protective order to protect
NYES proprietary data.” NYES Mot. at 6. NYES identifies no authority for appearing as
amicus curiae for such a purpose. There is no right to file an amicus brief in the Court of Federal
Claims; the decision whether to allow participation by amici curiae is left entirely to the
discretion of the Court. Fluor Corp. v. United States, 35 Fed. Cl. 284, 285 (1996). When making
such a decision, the Judges of this Court have considered factors such as opposition of the
parties, interest of the movants, partisanship, adequacy of representation, and timeliness. Id.
Although NYES’s request may be timely, each of the other factors weighs against NYES
appearing as amicus curiae:
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• Opposition of the Parties: ADG opposes NYES’s participation as amicus curiae because
that participation will serve no useful purpose in the resolution of this litigation.
• Interest of Movants: “When a court's decision would directly affect a person or entity's
rights or would set a controlling precedent regarding a claim of that person or entity,
leave to file an amicus curiae brief may be allowed.” Id. As discussed above, ADG’s
protest will not directly affect NYES’s interests and NYES has identified no “claim” it
has on which this Court will set a controlling precedent.
• Partisanship: Although amicus curiae briefs before appellate courts usually support one
side or the other, trial courts “have frowned on participation which simply allows the
amicus to litigate its own views” or present “its version of the facts.” Id. NYES’s Motion
makes clear that this is all NYES wants to do.
• Adequacy of Representation: Trial courts have allowed amicus filings when the court was
“concerned that one of the parties is not interested in or capable of fully presenting one
side of the argument.” Id. As discussed above, NYES has identified no argument that it
plans to make that the Government cannot adequately present.
For each of the foregoing reasons, the Court should deny NYES’s motion.
Dated: March 12, 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
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CERTIFICATE OF SERVICE
I hereby certify that on March 12, 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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