Impresa Construzioni Geom. Domenico Garufi v. United States

61 Fed. Cl. 175, 2004 U.S. Claims LEXIS 156, 2004 WL 1474565
CourtUnited States Court of Federal Claims
DecidedJune 30, 2004
DocketNos. 99-400 C, 01-708 C
StatusPublished
Cited by22 cases

This text of 61 Fed. Cl. 175 (Impresa Construzioni Geom. Domenico Garufi v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Impresa Construzioni Geom. Domenico Garufi v. United States, 61 Fed. Cl. 175, 2004 U.S. Claims LEXIS 156, 2004 WL 1474565 (uscfc 2004).

Opinion

OPINION AND ORDER

HEWITT, Judge.

Before the court are Plaintiffs Claim for Bid and Proposal Costs (PL’s B & P Claim) and the responsive briefing thereto1 and Plaintiffs Motion to File Out of Time to Strike and/or Supplement Plaintiffs Position with Respect to Unsupported, Incorrect and Scandalous Allegations in Defendant’s March 2[4], 2004 Brief (Pl.’s Mot. to Strike) and the responsive briefing thereto.2 The court addresses plaintiffs motion to strike before turning to plaintiffs claim for bid preparation and proposal costs.

1. Plaintiffs Motion to Strike

Plaintiff moves the court to strike the following statement from Defendant’s Supplemental Brief in Response to Plaintiff’s Revised Claim for Bid and Proposal Costs filed on March 24,2004:

On or about February 11, 2004, during the period whe[n] the parties were attempting to settle Garufi’s revised B & P cost claim, Italian [m]edia reported that seven persons — including Mr. Domenico Garufi, and Mr. Giuseppe Interdonato (one of Garufi’s bid estimators, see Pl.Ex. 9) — were arrested related to an investigation of Mafia involvement in the award of the contracts a[t] the Naval Air Station in Sigonella, Italy. Other than the fact of the arrests, defendant is unaware of the current status of the Italian legal proceedings involving Mr. Garufi.

Pl.’s Mot. to Strike at 1 (quoting Def.’s Supp. Resp. at 6-7). Noting that three weeks prior to the filing of defendant’s brief the Italian media reported that the foregoing charges were dismissed because of “ ‘unfounded proof,’” Pl.’s Mot. to Strike at 1-2, plaintiff urges the court to strike the paragraph “as scandalous, unsupported, undocumented, uncorroborated and unsubstantiated material,” id. at 2. Plaintiff asserts that defendant failed to reveal “what was publicly and readily available” in an attempt “to inflame [and] prejudice plaintiff’s case.” Id.

Defendant opposes plaintiff’s motion on the ground that it is untimely. Def.’s Opp. at 2. Defendant also opposes plaintiffs motion on the ground that it suggests improperly that [177]*177“defendant’s counsel knew more than what was stated in the Government’s brief.” Id. at 3.

Rule 12(f) of the United States Court of Federal Claims (RCFC) provides, in pertinent part:

Upon motion made by a party ... within 20 days after the service of the pleading upon the party or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

RCFC 12(f). Plaintiff does not dispute that its motion is untimely. See Pl.’s Mot. to Strike at 2 (stating that “[t]his [mjotion is made at this time because of the length of time it took to get [an] accurate translation of the newspaper article [to which defendant] referred”). Moreover, the court finds that the material which plaintiff moves to strike from defendant’s pleading has been explained fully in the parties’ briefing. Because the referenced material creates no prejudice or confusion in this matter and does not bear on the cost issue to be decided by the court, the court declines to exercise its discretion to strike the referenced material in this circumstance. Plaintiffs Motion to Strike is DENIED.

II. Plaintiffs Claim for Bid Preparation and Proposal Costs

The Tucker Act limits the monetary relief that this court may award in post-award bid protests to “bid preparation and proposal costs.” 28 U.S.C. § 1491(b)(2) (2000); see also Naplesyacht.com, Inc. v. United States, 60 Fed.Cl. 459, 478 (2004). The Federal Circuit observed in E.W. Bliss Co. v. United States:

Proposal preparation expenses are a cost of doing business that normally are “lost” when the effort to obtain the contract does not bear fruit. In an appropriate case, however, a losing competitor may recover the costs of preparing its unsuccessful proposal if it can establish that the Government’s consideration of the proposals submitted was arbitrary or capricious. The standards that permit a disappointed competitor to recover proposal preparation expenses are high and the burden of proof is heavy.

77 F.3d 445, 447 (Fed.Cir.1996) (quoting Lincoln Servs., Ltd. v. United States, 230 Ct.Cl. 416, 678 F.2d 157, 158 (1982)); see also Gentex Corp. v. United States, 58 Fed.Cl. 634, 656 (2003) (stating that “a losing competitor may recover the costs of preparing its unsuccessful proposal if it can establish that the Government’s consideration of the proposal submitted was arbitrary or capricious or in violation of applicable statute or regulation”).

By its decision dated May 3, 2002, this court awarded bid preparation and proposal expenses to plaintiff.3 Impresa Construzioni Geom. Domenico Garufi v. United States, 52 Fed.Cl. 421, 428 (2002) (Impresa III). After a failed attempt by the parties to reach a stipulation on an award of bid preparation and proposal costs, see Def.’s Supp. Resp. at 2, plaintiff filed briefing seeking $84,900 in bid preparation and proposal costs. Pl.’s B & P Claim at 4. Defendant initially challenged plaintiffs claim on the ground that the majority of the costs claimed “are represented by the unpaid 1999 invoices of proposed subcontractors that had prepared various proposal sections, relating to particular base services covered by the consolidated contract.” Def.’s B & P Resp. at 2. Defendant argued that under the doctrine articulated in Severin v. United States, 99 Ct.Cl. 435, 1943 WL 4198 (1943), plaintiff was precluded from recovering bid preparation and proposal costs that were incurred by plaintiffs subcontractors. Def.’s B & P Resp. at 4-8. Defendant further argued that plaintiff was unable to recover bid preparation and proposal costs for work allegedly performed by plaintiff itself because plaintiff had failed to provide adequate proof that the costs were incurred and allocable to the preparation of its bid proposal. Id. at 8-11. After a hear[178]*178ing on the parties’ arguments regarding plaintiffs claim for bid preparation and proposal costs, the court stated that it would disregard the proffered affidavit of Mr. Thomas P. Considine 4 and directed plaintiff, by Order dated September 26, 2003:

[To] file with the Clerk of the Court briefing together with any supporting documentary evidence indicating a legal obligation by plaintiff to pay its subcontractors in connection with the referenced matter whether or not bid proposal and preparation costs are recovered in this proceeding. Plaintiff shall also support the reasonableness of the claimed expenses, shall indicate how the dollar values were established (including any currency conversions), and shall indicate which contract line items are attributable to which subcontractors. Plaintiff shall also provide evidence to support the existence and reasonableness of any expenses, including time and disbursements, claimed to have been incurred by plaintiff itself.

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Bluebook (online)
61 Fed. Cl. 175, 2004 U.S. Claims LEXIS 156, 2004 WL 1474565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/impresa-construzioni-geom-domenico-garufi-v-united-states-uscfc-2004.