Pyramid Real Estate Services, LLC v. United States

95 Fed. Cl. 613, 2010 U.S. Claims LEXIS 916, 2010 WL 4983595
United States Court of Federal Claims·Decided December 9, 2010·No. No. 10-599 C·Published·Cited by 11 cases

Opinion

OPINION AND ORDER

HEWITT, Chief Judge.

Before the court are Defendant’s Motion for Leave to File Status Report, Docket Number (Dkt. No.) 48, filed on October 7, 2010; Defendant’s Status Report, Dkt. No. 48-1, filed on October 7, 2010; Matt Martin Real Estate Management LLC’s Response to Defendant’s Motion for Leave to File Status Report and Defendant’s Status Report (Matt Martin Status Report), Dkt. No. 49, filed on October 8, 2010; Matt Martin Real Estate Management LLC’s Supplemental Response to Defendant’s Motion for Leave to File Status Report and Defendant’s Status Report, Dkt. No. 54, filed on October 15, 2010; Defendant’s Motion to Enforce the Protective Order (Defendant’s Motion or Def.’s Mot.)', Dkt. No. 59, filed on October 29, 2010; Matt Martin Real Estate Management LLC’s Response to Defendant’s Motion to Enforce the Protective Order (Matt Martin Resp.), Dkt. No. 64, filed on November 12, 2010; Defendant’s Reply to Matt Martin’s Response to Motion to Enforce the Protective Order (Def.’s Reply), Dkt. No. 65, filed on November 16, 2010; Intervenor HomeTelos’s Reply in Support of the United States’[ ] Motion to Enforce the Protective Order ’ (HomeTelos Reply), Dkt. No. 66, filed on November 16, 2010; and Matt Martin Real Estate Management LLC’s Surreply to Defendant’s and HomeTelos LP’s Replies in Support of Defendant’s Motion to Enforce the Protective Order (Matt Martin Sur-Reply), Dkt. No. 68, filed on November 18, 2010.

I. Background

Defendant’s Motion alleges that information covered by a protective order in this bid protest was used — in violation of the protective order — to file a separate bid protest. Def.’s Mot. 4. On September 9, 2010 Pyramid Real Estate Services, LLC (Pyramid), an unsuccessful offeror in Solicitation R-OPC-23441 (Solicitation) issued by the United States government acting through the United States Department of Housing and Urban Development (HUD, the government or defendant), filed this post-award bid protest action in the United States Court of Federal Claims (Court of Federal Claims). See Complaint for Injunctive and Declaratory Relief, Dkt. No. 1. Matt Martin Real Estate Management LLC (Matt Martin), a successful bidder in the Solicitation, filed a motion to intervene, Matt Martin Real Estate Management LLC’s Consent Motion to Intervene (Matt Martin Motion to Intervene), Dkt. No. 13, at 1, which the court granted, Order of September 13, 2010, Dkt. No. 14.

On September 13, 2010 the court issued a protective order (Protective Order), Dkt. No. 16, finding “that certain information likely to be disclosed orally or in writing during the course of this litigation may be competition-sensitive or otherwise protectable and that entry of a Protective Order is necessary to safeguard the confidentiality of that information.” Protective Order 1. The Protective Order granted counsel for parties access to the information. Id. at 2. The attorney of record for Matt Martin is Laurence Schor (Counsel for Matt Martin, Counsel, or Matt Martin’s Counsel), a partner of Asmar, Schor & McKenna, PLLC. See Matt Martin Motion to Intervene 1.

The Protective Order directed that “[pjro-tected information may be used solely for the purposes of this litigation and may not be given, shown, made available, discussed, or otherwise conveyed in any form except as provided herein.” Protective Order 2. The Protective Order further provided that “[njothing contained in this order shall preclude a party from seeking relief from this Protective Order through the filing of an appropriate motion with the court setting forth the basis for the relief sought.” Id. at 5.

After the Protective Order was issued, defendant filed the administrative record (AR), which contained sensitive procurement information that is not publicly available, including proposals submitted by various bidders in response to the Solicitation, e.g., AR Tab 40, and evaluations of proposals by HUD personnel involved with the procurement, e.g., AR Tab 37. Pyramid filed for judgment on the administrative record under Rule 52.1 of the [616]*616Rules of the United States Court of Federal Claims (RCFC), and defendant and defendant-intervenors1 filed cross-motions for judgment on the administrative record. In the final round of briefing on the motions for judgment on the administrative record, Matt Martin stated that it had decided, based on protected information, to file its own protest for several Homeownership Control Areas (Areas) in which it was an unsuccessful bidder: 2

In reviewing the Source Selection Recommendation to draft this response to Hom-eTelos’s Motion, it appeal’s that for some areas, HUD rated offerors primarily based on price which runs counter to the terms of the Solicitation. This failure to properly weigh the award criteria prejudiced [Matt Martin] in four Areas and [Matt Martin] will be filing a protest on these grounds immediately.

Matt Martin Real Estate Management LLC’s Reply to Plaintiffs Consolidated Reply and Response, and Response to HomeTe-los, LP’s Cross-Motion for Judgment on the Administrative Record (Matt Martin Brief), Dkt. No. 45, at 10 n. 7. The day after filing this brief, October 6, 2010, Matt Martin filed a new bid protest, which was assigned to the same judge and docketed as Matt Martin Real Estate Mgmt. LLC v. United States (Matt Martin), No. 10-675 (Fed. Cl.). Although Counsel for Matt Martin relied on the protected information to determine that filing a separate protest would be appropriate, he states that “[w]hen conveying [his] conclusion that grounds for protest existed, Counsel exercised extreme care not to disclose any protected information or make any statements from which [Matt Martin’s] representatives would be able to deduce protected information.” Matt Martin Status Report 3.

In its Complaint (Complaint or Compl.), Matt Martin Dkt. No. 20, which was filed under seal,3 Matt Martin disclosed information covered by the Protective Order in this case. The Solicitation, which is publicly available, stated that proposals would be evaluated based on four technical factors and price, price being the least important. AR Tab 13, at 516. In its Complaint, Matt Martin revealed the rating its proposal had received for each of the technical factors. Compl. ¶ 8. Matt Martin also included a table that “detail[ed] the Technical Factor ratings, Overall Ratings, and Prices of the awardees and [Matt Martin] for the Protested Areas.” Compl. ¶ 11; Compl. Exhibit A (Table of Ratings and Prices). Counsel for Matt Martin did not seek relief from the Protective Order before filing Matt Martin’s Complaint or advising his client to pursue its own bid protest.

Three successful offerors who had not bid on Area 2D and were not admitted to the Protective Order intervened in Matt Martin’s bid protest and were admitted to that protective order, giving their counsel access to Matt Martin’s unredacted Complaint. See Order I of October 12, 2010, Matt Martin Dkt. No. 14 (granting BLB Resources Inc.’s motion to intervene); Order II of October 12, 2010, Matt Martin Dkt. No. 15 (granting Ofori & Associates, P.C.’s motion to intervene); Order of Oct. 18, 2010, Matt Martin Dkt. No. 19 (granting Pemco Ltd.’s motion to intervene).

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Pyramid Real Estate Services, LLC v. United States, 95 Fed. Cl. 613, 2010 U.S. Claims LEXIS 916, 2010 WL 4983595 (uscfc 2010).

95 Fed. Cl. 613 (Pyramid Real Estate Services, LLC v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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