Orion International Technologies v. United States

60 Fed. Cl. 338, 2004 U.S. Claims LEXIS 93, 2004 WL 874806
United States Court of Federal Claims·Decided April 7, 2004·No. No. 04-250C·Published·Cited by 70 cases

Opinion

OPINION AND ORDER

WOLSKI, Judge.

Plaintiff, Orion International Technologies (“Orion”) protests the award of a contract to the Intervenor, Fiore Industries, Inc. (“Fiore”), under Solicitation No. DABK3003-R-0013 (“the Solicitation”). The Solicitation was issued by the Army Contracting Agency of the United States Department of the Army (“the Army”), seeking an independent contractor to manage and provide staff to support the Center for Countermeasures (“the Center”). See Solicitation §§ C.1.1, G.1.2, Administrative Record (“Admin.R.”) at 196. The Center, located at the White Sands Missile Range in New Mexico, has the mission to assist the Office of the Secretary of Defense and the intelligence community “through analysis, testing and technical consulting regarding countermeasure and counter countermeasure technology.” Solicitation § C.1.2, Admin. R. at 196. Orion was the incumbent contractor at the Center and an unsuccessful bidder under the Solicitation. On March 5, 2004, Orion’s counsel submitted to this Court a Motion for Discovery. In [340] response, defendant United States (“the Government”) submitted an Opposition to Plaintiffs Motion to Take Discovery, and Fiore submitted an Intervenor’s Opposition to Plaintiffs Motion for Discovery.

Concerned that Orion might have been confused regarding the need to submit a memorandum of law in support of its Motion for Discovery, the Court issued an order on March 15, 2004, requesting that Orion address the legal arguments made by the Government and Fiore against Orion’s motion. In response, Orion submitted Plaintiffs Reply to Defendant and Intervenor’s Opposition to Plaintiffs Motion to Take Discovery.

Relating to the present motion, Orion alleges that Fiore impermissibly identified Mr. Harold H. Zucconi as its choice for Project Manager and Chief Engineer in its written bid submission to the Army, and in its oral presentation. Orion further alleges that the Army’s final decisionmaker was aware that Mr. Zucconi would not be employed by Fiore under the contract, but disregarded this information while selecting a contractor. Orion further alleges that as a result of Fiore’s representation that Mr. Zucconi was its future employee, Fiore was selected by the Army to receive the contract.

The discovery requested by Orion is as follows: depositions of Fiore’s President, of Mr. Zucconi, and of the person proposed by Fiore as Mr. Zucconi’s alternate, concerning employment commitments between Fiore and the proposed personnel; the deposition of the Army’s Source Selection Authority (“SSA”) for the Solicitation, concerning knowledge of Fiore’s employment commitments with its proposed personnel, knowledge of Mr. Zueconi’s availability to perform the role designated by Fiore, and the SSA’s rationale for determining that Fiore’s proposal was responsive to the Solicitation; and document production concerning the Army’s hiring of Mr. Zucconi.

As the Court informed the parties in an on-the-record status conference held by telephone on March 25, 2004, and as more fully explained below, this motion is GRANTED-IN-PART and DENIED-IN-PART.

BACKGROUND

Mr. Zucconi had been an employee of Orion since 1994, and Orion’s Chief Engineer under its previous contract with the Center. Admin. R. at 986. In its Qualification Package responding to the Solicitation, Orion submitted Mr. Zuceoni’s résumé, and presented Mr. Zucconi as its Principal Engineer. Admin. R. at 982. In its oral presentation, Orion presented Mr. Zucconi as its Deputy Program Manager. Admin. R. at 283.

Mr. Felix Sanchez, President of Fiore, stated in a declaration that he received Mr. Zucconi’s résumé in response to a blind advertisement.2 Admin. R. at 637. Mr. Sanchez further stated that he contacted Mr. Zucconi in July, 2003, to see if he would work for Fiore if it were selected to perform the contract. Id. According to Mr. Sanchez, Mr. Zucconi stated that he would work for Fiore. Id. On August 27, 2003, Fiore submitted its Qualification Package stressing that “Mr. Zucconi has committed exclusively to the Fiore Team, beyond his current obligation to his current employer.” Admin. R. at 752. In addition, Fiore’s Qualification Package included Mr. Zucconi’s résumé, presenting Mr. Zucconi as its “Project Manager/Chief Engineer (Fiore Contingent Hire).” Admin. R. at 783.

It is unclear from the documents presented by the parties if Mr. Zucconi gave Fiore any authorization to use his résumé in its Qualification Package, or whether Mr. Zucconi was aware that Fiore had used his résumé. According to Mr. Zucconi, however, he called Mr. Sanchez on September 3, 2004, and “requested that he not be included in his company’s bid for the Center For Countermeasures Analysis contract” because he had signed an exclusive agreement with Orion. Admin. R. at 731. Mr. Sanchez states in his declaration that during this conversation, Mr. Zucconi said that he would work for Fiore in the event that Fiore won the contract, notwith[341] standing the exclusive agreement with Orion.3 Admin. R. at 637.

Possibly in response to Mr. Sanchez’s September 3, 2004 conversation with Mr. Zucconi, Mr. Sanchez presented Mr. Robert Rossow as “Assistant Project Manager, Warfighter Analyst (Alternate Project Manager)” at Fiore’s oral presentation on October 21, 2003, even though Mr. Rossow’s résumé was not listed in Fiore’s Qualification Package, and even though no one was listed in Fiore’s Qualification Package as “Assistant Project Manager.” Admin. R. at 261. Fiore’s presentation included a slide indicating that Mr. Rossow would be the “On-Site Project Manager Designated PM until Mr. Zucconi assumes PM position after transition.” Id. At the oral presentation, Mr. Sanchez called Mr. Zucconi the “one ideal candidate” for the Project Manager position, and stated that Mr. Zucconi had verbally agreed to accept the position if offered.4

On October 28, 2003, after the oral presentations, Mr. Michael Schuck, the Director of the Center and Source Selection Authority for the Solicitation, signed the Source Selection Authority Decision determining that Fiore represented the best value to the Army. Admin. R. at 3. Three months later, on January 26, 2004, Mr. Schuck allegedly announced that the Army had hired Mr. Zucconi to be the Technical Director for the Center. Compl. UK 31-32; Mem. Supp. Pl.’s Mot. Prelim. Inj. & T.R.O., Ex. 12.

Orion’s Allegations

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Orion International Technologies v. United States, 60 Fed. Cl. 338, 2004 U.S. Claims LEXIS 93, 2004 WL 874806 (uscfc 2004).

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