REMOTE DIAGNOSTIC TECHNOLOGIES LLC v. USA

Filing 38

UNREPORTED ORDER. Public Order (redacted) denying 31 Motion to Dismiss. Signed by Senior Judge Loren A. Smith. (mr) Copy to parties.

United States Court of Federal Claims
No. 17-333 C
(Filed: May 15, 2017)
Reissued: May 22, 20171

REMOTE DIAGNOSTIC
TECHNOLOGIES LLC,
Plaintiff,
v.
THE UNITED STATES,
Defendant
and
ZOLL MEDICAL CORPORATION,
Defendant-Intervenor.

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Robert J. Symon, Bradley Arant Boult Cummings LLP, Washington, DC, counsel for plaintiff.
Adam Eric Lyons, U.S. Department of Justice, Civil Division, Washington, DC, counsel for
defendant.
Thomas Leo McGovern, III, Hogan Lovells US LLP, Washington, DC, counsel for defendantintervenor.
ORDER
SMITH, Senior Judge
On April 21, 2017, plaintiff, Remote Diagnostic Technologies LCC (“RDT”), filed a
Motion for limited discovery, seeking information regarding the United States Defense Logistics
Agency Troop Support’s (“Agency”) basis for its corrective action and the scope of that
corrective action. Plaintiff posits that the requested discovery is necessary to fill gaps in the
An unredacted version of this opinion was issued under seal on May 15, 2017. The parties
proposed redactions, and those redactions are reflected herein.
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Administrative Record, and that it is warranted in light of plaintiff’s position that the Agency’s
corrective action is unexplainable absent a showing of bad faith or bias towards Zoll Medical
Corporation (“defendant-intervenor” or “Zoll”). For the following reasons, plaintiff’s Motion for
limited discovery is denied.
Plaintiff initially argues that discovery is warranted because the administrative record is
incomplete. As a threshold matter, it is important to note that this Court’s review is limited to
findings of fact based on the record before it. See Bannum, Inc. v. United States, 404 F.3d 1346,
1356 (Fed. Cir. 2005); see also Stanton v. United States, 111 Fed. Cl. 263, 266 (2013) (noting
that the parties’ ability to supplement the AR is “limited”). “‘[T]he focal point for judicial
review should be the administrative record already in existence, not some new record made
initially in the reviewing court.’” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379
(Fed. Cir. 2009) (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)); see also Miller v. United
States, 119 Fed. Cl. 717, 726 (2015); Stanton, 111 Fed. Cl. at 266; Sieben v. United States, 108
Fed. Cl. 1, 6 (2012). Evidence not included in the administrative record before this Court should
only be examined if the failure to do so would preclude “effective judicial review.” Axiom, 564
F.3d at 1380 (internal citation and quotation marks omitted).
Plaintiff argues that the instant case falls into that very gap, and that deficiencies in the
administrative record preclude effective judicial review because “[t]he contemporaneous record
regarding the Agency’s decision to take corrective action is void of any substantive reasons for
the corrective action.” Memorandum in Support of Plaintiff’s Motion for Limited Discovery
(hereinafter “P’s Mem.”) at 3. In support of this assertion, plaintiff repeatedly points to a
number of amendments imposed through the corrective action, arguing that the rational for those
changes is deficient. This Court does not agree.
This Court is persuaded by the government’s explanation that “the fundamental reason
for taking corrective action was ‘to include a requirement for a printer to be provided with each
vital sign monitor, which had been omitted from the original requirement’ and to revise ‘other
minimum requirements to eliminate any potential ambiguity or misunderstanding.’”
Administrative Record at 8586 (hereinafter “AR __”). The government’s explanation is specific
to each amendment, but it is also overarching, encapsulating the entirety of the corrective action.
The plaintiff’s objections are targeted at specific word choice, rather than looking to the
corrective action as a whole. In short, the plaintiff fails to see the forest through the trees.
Furthermore, this Court agrees with the government’s position that the plaintiff neglected
to consider a barrage of other evidence in support of the corrective action in arguing that the
rationale behind the Agency’s corrective action was deficient. See Defendant’s Response in
Opposition to Plaintiff’s Motion for Limited Discovery (hereinafter “D’s Resp.”) at 8. Plaintiff
claims that discovery is necessary because, based on the documents currently in the
administrative record, the corrective action appears to have been effectuated without a rational
basis for the changes made. In order to prevail upon a claim that corrective action was made
without basis, plaintiff must show why “supplementation might be necessary to help explain the

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agency’s decision and thereby facilitate meaningful judicial review of the agency decision,
particularly when a subjective value judgement has been made but not explained.” Beta
Analytics Int’l, Inc. v. United States, 61 Fed. Cl. 223, 225 (2004) (quoting Orion Int’l Tech. v.
United States, 60 Fed. Cl. 338, 343 (2004)). The Agency provided a basis for its corrective
action—to “‘eliminate[] possible ambiguities’ and ‘revalidate[] each minimum requirement to
ensure its essential[ity], and to confirm that no other requirement, like the printer, had been
omitted.’” D’s Resp. at 13; AR 8586. As the court finds that explanation sufficient, discovery
would be unnecessary and would only serve to impede the quick administration of justice.
In addition to its allegation that the administrative record is incomplete, the plaintiff
argues that discovery is warranted because it has made a threshold showing of conduct that is
hard to explain absent bad faith or bias. In order to make a threshold showing of bias, a plaintiff
must provide “sufficient well-grounded allegations of bias to support an inquiry and
supplementation.” Pitney Bowes Gov’t Sols., Inc. v. United States, 93 Fed. Cl. 327, 332 (2010)
(citing L-3 Commc’ns Integrated Sys., L.P. v. United States, 91 Fed. Cl. 347, 355 (2010)).
Plaintiff proffers the following three instances from the chronology of this case to support its
allegation that bias existed, and, as a result, that discovery is warranted: (1) a meeting request
from Zoll, submitted on September 9, 2016 to the Contracting Officer handling the corrective
action; (2) a meeting on September 22, 2016, at which Zoll requested that three changes be made
to the Solicitation through corrective action; and (3) a phone call on October 11, 2016 between
Zoll’s Senior Director of Military Sales and a member of the Agency’s team reviewing the
Solicitation’s requirements. P’s Mem. at 16.
While these three events may, on the surface, seem to indicate bias may have existed, a
deeper look into these occurrences actually suggests the opposite. First, while Zoll did request a
meeting on September 9, 2016, the Agency responded by agreeing to meet “as a matter of
courtesy,” but that the Agency “would be very limited in terms of what [it] could actually
discuss.” AR 8583. Furthermore, the Contracting Officer stated that “[v]endor meetings are a
routine part of contracting” and that “a similar request from RDT would have also been accepted,
if requested.” Id.
Second, it is true that the requested meeting did, in fact, occur on September 22, 2016,
and Zoll did request that specific modifications be included in the corrective action. However,
what RDT failed to point out is the fact that none of the three requested modifications were
included in any amendment to the Solicitation. For example, Zoll requested that the Agency
amend the Solicitation such that the award would be made as a best value procurement rather
than a lowest-price technically acceptable procurement. Had the Agency amended the
Solicitation in such a way, it would most certainly raise suspicions of bias. However, the
Agency refused to make such a change, and this procurement continues to be made on a lowestprice technically acceptable basis.
Finally, the plaintiff points to the call between Zoll and *** on October 11, 2017, as an
indication that bias occurred. During that call, Zoll indicated to Mr. *** that “it might opt not to

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respond if there were significant modifications to the Solicitation.” AR 8584. Plaintiff attempts
to paint this call as “Zoll threatening the Agency to withdraw if the revisions were not as it
requested,” but this Court does not agree with that interpretation of the encounter. Mr. ***
forwarded the message on to the Contracting Officer, but no subsequent discussion occurred
between Zoll and Mr. *** or Zoll and the government as a result of this message. Upon a more
in-depth review of the circumstances surrounding the corrective action, this Court does not find
that a threshold showing of bias has been made such that discovery is warranted.
For the reasons set forth above, plaintiff’s MOTION for Limited Discovery is DENIED.
IT IS SO ORDERED.
s/

Loren A. Smith

Loren A. Smith,
Senior Judge

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