FMS INVESTMENT CORP. v. USA

Filing 160

REPORTED ORDER regarding 149 Defendant's Notice and Plaintiffs' Motions to Supplement the Administrative Record, and granting 110 Motion to Disqualify Counsel. Defendant's Notice regarding document production due by 3/28/2018. Defendant's Notice regarding Department of Education timeline due by 4/11/2018. Signed by Judge Thomas C. Wheeler. (mg) Service on parties made.

In the United States Court of Federal Claims
Nos. 18-204C, 18-206C, 18-207C, 18-208C, 18-211C, 18-214C, 18-216C, 18-220C,
18-229C, 18-238C, 18-239C, 18-245C, 18-246C, 18-248C, 18-251C, 18-252C, 18-261C,
18-275C, 18-328C
(consolidated)
(Filed: March 23, 2018)
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FMS INVESTMENT CORP., et al.,
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Plaintiffs,
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v.
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THE UNITED STATES,
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Defendant,
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and
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PERFORMANT RECOVERY, INC., et al.,
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Defendant-Intervenors. *
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Post-Award
Bid
Protest;
Department of Education Loan
Collections; Motion to Supplement
the Administrative Record; Motion
to Disqualify Counsel.

David R. Johnson, with whom was Tyler E. Robinson, Vinson & Elkins LLP, Washington,
D.C., for Plaintiff FMS Investment Corp.
Jonathan S. Aronie, with whom was Townsend L. Bourne, Sheppard Mullin Richter &
Hampton LLP, Washington, D.C., for Plaintiff Account Control Technology, Inc.
Paul A. Debolt, with whom were Chelsea B. Knudson, Michael T. Francel, and James Y.
Boland, Venable LLP, Washington, D.C. and Tysons Corner, Virginia, for Plaintiff
Transworld Systems, Inc.

William M. Jack, with whom were William C. MacLeod, David E. Frulla, and Amba M.
Datta, Kelley Drye & Warren LLP, Washington, D.C., for Plaintiff GC Services Limited
Partnership.
Thomas P. McLish, with whom was Scott M. Heimberg, Akin Gump Strauss Hauer & Feld
LLP, Washington, D.C., for Plaintiff Texas Guaranteed Student Loan Corp.
Jeffery M. Chiow, with whom were Neil H. O’Donnell, Lucas T. Hanback, and Stephen L.
Bacon, Rogers Joseph O’Donnell, Washington, D.C., for Plaintiff The CBE Group, Inc.
Jonathan D. Shaffer, with whom were Mary Pat Buckenmeyer and Sean K. Griffin, Smith
Pachter McWhorter LLC, Tysons Corner, Virginia, for Plaintiff Pioneer Credit Recovery,
Inc.
Thomas A. Coulter, O’Hagan Meyer PLLC, Richmond, Virginia, for Plaintiff Progressive
Financial Services, Inc.
Megan C. Connor, with whom were Julia Di Vito, Matthew E. Feinberg, and Kathryn M.
Kelley, PilieroMazza PLLC, Washington, D.C., for Plaintiff Coast Professional, Inc.
Lawrence S. Sher, with whom were Lawrence P. Block and Elizabeth Leavy, Reed Smith
LLP, Washington, D.C., for Plaintiff Central Credit Services, LLC.
John R. Tolle, Baker, Cronogue, Tolle, & Werfel, LLP, McLean, Virginia, for Plaintiff
Delta Management Associates, Inc.
Michael A. Richard, with whom were Michael H. Payne and Jacqueline J. Ryan, Cohen,
Seglias, Pallas, Greenhall & Furman, P.C., Philadelphia, Pennsylvania, for Plaintiff
Gatestone & Co. International, Inc.
Todd J. Canni, with whom were Richard B. Oliver, J. Matthew Carter, Aaron S. Ralph,
Alexander B. Ginsberg, and Meghan D. Doherty, Pillsbury Winthrop Shaw Pittman LLP,
Los Angeles, California, for Plaintiff Continental Service Group, Inc.
Robert K. Tompkins, with whom were Mary Beth Bosco, Rodney M. Perry, Lelia GeorgeWheeler, and Gordon N. Griffin, Holland & Knight LLP, Washington, D.C., for Plaintiff
Immediate Credit Recovery, Inc.
Stuart B. Nibley, with whom were Amy M. Conant, Erica L. Bakies, and Jenna M. Lorence,
K&L Gates LLP, Washington, D.C., for Plaintiff Allied Interstate LLC.
John R. Prairie, with whom were Brian G. Walsh and Cara L. Lasley, Wiley Rein LLP,
Washington, D.C., for Plaintiff Automated Collection Services, Inc.
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Joseph J. Petrillo, with whom was Karen D. Powell, Petrillo & Powell, PLLC,
Washington, D.C., for Plaintiff Collecto, Inc. d/b/a EOS CCA.
Holly A. Roth, with whom was Thomas Folk, Reed Smith LLP, McLean, Virginia, for
Plaintiff Williams & Fudge, Inc.
James C. Fontana, with whom were Jeffry R. Cook and James C. D’Agostino, Dempsey
Fontana, PLLC, Tysons Corner, Virginia, for Plaintiff Value Recovery Holdings, LLC.
David R. Pehlke, with whom were Chad A. Readler, Acting Assistant Attorney General,
Robert E. Kirschman, Jr., Director, Patricia M. McCarthy, Assistant Director, Civil
Division, U.S. Department of Justice, Washington, D.C., as well as Jose Otero and Sarah
Falk, General Attorneys, Office of the General Counsel, U.S. Department of Education,
for Defendant.
Michael McGill, with whom were Thomas L. McGovern III, Christine Reynolds, and
Thomas A. Pettit, Hogan Lovells US LLP, Washington, D.C., for Defendant-Intervenor
Performant Recovery, Inc.
David T. Ralston, Jr., with whom were Frank S. Murray, Micah T. Zomer, and Krista
Nunez, Foley & Lardner LLP, Washington, D.C., for Defendant-Intervenor Windham
Professionals, Inc.
ORDER
WHEELER, Judge.
On March 23, 2018, the Court held a status conference in the above-captioned
consolidated bid protest to discuss (1) the Government’s notice that the Department of
Education (“ED”) is unlikely to proceed with continued litigation in this matter, Dkt. No.
149; (2) Plaintiffs’ motions to supplement the administrative record (“AR”); and (3)
Defendant-Intervenor Performant Recovery, Inc.’s (“Performant”) motion to disqualify
Pillsbury Winthrop Shaw Pittman LLP (“Pillsbury”) as counsel for Plaintiff Continental
Service Group, Inc. (“ConServe”), Dkt. No. 110. As discussed during the status
conference, the Government shall produce the following sets of documents to Plaintiffs:
1. Full evaluation records underlying the December 2016 award decision for
all current protestors and awardees, including but not limited to complete
2016 evaluations, full 2016 proposals, the Memorandum of Law submitted
to GAO, and the Contracting Officer’s statement of facts submitted to
GAO;

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2. All documents related to the 2015 Focused Review of all current
protestors and the two awardees;
3. All documents related to monthly call monitoring reviews for all ATE
contractors since 2015;
4. All documents (including non-privileged agency communications) related
to the appearance of a conflict of interest between Secretary of Education
Betsy Devos and Performant;
5. All documents (including non-privileged agency communications) related
to ED officials attempting to influence the award decision; and
6. All documentation of communications between ED evaluators, “points of
contact,” and “clients” identified in the past performance evaluation
documents.
The Court notes that these documents need not be filed with the Court and will not
be supplemented to the AR. Plaintiffs are free to utilize and attach any relevant documents
from this production to any future briefs filed in this matter. All other requests in Plaintiffs’
motions (Dkt. Nos. 133, 135, 136, 137, 138, 141, 142, 145, 148, and 150) are DENIED.
The Government shall file a notice with the Court indicating when it is able to produce the
above documents to Plaintiffs on or before Wednesday, March 28, 2018. Further, the
Government is ordered to file a notice with the Court informing the parties of ED’s timeline
for announcing its final decision on how it plans to proceed in this litigation on or before
Wednesday, April 11, 2018. The MJAR briefing schedule for all parties in this matter shall
remain suspended.
Lastly, Performant’s motion to disqualify (Dkt. No. 110) is GRANTED. Pillsbury
is disqualified as counsel for ConServe in this matter effective immediately. The Court
will issue a more substantive opinion on this issue in the coming days.
IT IS SO ORDERED.
s/ Thomas C. Wheeler
THOMAS C. WHEELER
Judge

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