Protester’s motion for relief from judgment based on newly discovered evidence is denied where the evidence was neither new nor recently discovered. The protester argued that as a result of reading the court’s public opinion denying its protest, it had learned new information about the awardee’s subcontractor that created an organizational conflict of interest. But the court found that this information was known by the protester’s counsel during litigation, so it was not new. Moreover, the attorneys’ knowledge of this information could be imputed to the protester itself, so it was not recently discovered. The court also found that even if the evidence was new, it did not support the finding of a conflict of interest.
The Army awarded a contract to DigiFlight Inc. to monitor and coordinate foreign military sales between the U.S. government and its foreign allies. A disappointed bidder, Sigmatech Inc., filed a protest with GAO challenging the award to DigiFlight. GAO denied the protest. Sigmatech then filed a protest with the Court of Federal Claims, arguing, among other claims, that DigiFlight had an organizational conflict of interest. The COFC denied the protest, finding, in part, that Sigmatech had failed to present hard facts to support the alleged organizational conflict of interest.
Shortly after the COFC denied the protest, Sigmatech moved for relief from judgment under COFC Rule 60, claiming that newly discovered evidence showed a serious and undisclosed conflict of interest with one of DigiFlight’s subcontractor’s, KBRWyle. Sigmatech claimed that one of its employees had divined this new evidence from the court’s public opinion denying the protest.
In short, Sigmatech argued that its employee had surmised that KBRWyle was the prime contractor on another DoD contract under which it had developed a financial analysis software called the FAST program. As a subcontractor on the DigiFlight contract, KBRWyle would be in position to recommend changes to the FAST program, which would end up driving new work to KBRWyle under its separate development contract. In other words, KBRWyle could use its work under one contract to generate work under another.
The court, however, determined that KBRWyle’s performance under the FAST contract was not new evidence. The court noted that in its protest complaint, Sigmatech had alleged the FAST program was a proprietary tool owned by KBRWyle, and that KBRWyle had another contract in which it was performing work that could overlap with the DigiFlight contract.
Additionally, the appendices to Sigmatech’s complaint contained the performance work statement for KBRWyle’s development contract. This PWS, which was the basis Sigmatech’s request for relief from judgment, had been in the possession of the company’s attorneys—likely as a result of the prior GAO protest—before the COFC protest was filed.
What’s more, DigiFlight’s proposal, which had been included as part of the administrative record, stated that the company was going to use the FAST program. It further stated that one of its team members—i.e., KBRWyle—had developed the program and was in a position to make recommendations to the government on use of the program.
Thus, while Sigmatech did not specifically assert in its complaint that KBRWyle was providing the FAST program under a separate contract, this fact did not constitute “newly discovered evidence.” Sigmatech’s counsel knew prior to judgment that DigiFlight was using the FAST program, and that its subcontractor, KBRWyle, was still maintaining the FAST program under a separate government contract.
Sigmatech argued, however, that while its counsel was aware of these facts about KBRWyle and the FAST program, this information had not been disclosed to the company itself because of a protective order issued by the court for the protest. Essentially, Sigmatech argued that information its attorneys learned during the litigation should not be imputed to the company.
The court rejected this argument, reasoning that if Sigmatech were correct, then any losing protest argument would be subject to a motion for relief from judgment pending a client’s review of the public decision. Moreover, the court found that the protective order did not make it impossible for Sigmatech to learn about KBRWyle’s work on the other contract. Sigmatech’s counsel could have discussed the FAST program and KBRWyle with the company in a manner that did not violate the protective order.
Moreover, the court noted, even if this information about KBRWyle developing the FAST program under another contract was new evidence, it did not clearly constitute a conflict. Assuming that KBRWyle was in position to recommend work under the DigiFlight contract that increased its work under the development contract, the supposed financial benefit to KBRWyle was speculative. Such an arrangement could not affect the fixed-fee portion of KBRWyle’s development contract, and the parties had not addressed in any detail how it could impact the cost reimbursement portion of the contract.
The court further declined to speculate on how much work would be generated for KBRWyle under the development contract if the government accepted FAST program recommendations from the company under DigiFlight’s contract. The KBRWyle employees working on the two contracts would be performing different tasks in different locations and would have very little interaction with each other. Additionally, even if KBRWyle made a recommendation, the Army would make the ultimate decision on whether to accept the recommendation, which mitigated any potential conflict.
Sigmatech is represented by W. Brad English, J. Andrew Watson, J. Dale Gipson, Michael W. Rich, and Katherine E. McGuire of Maynard, Cooper & Gale. The government is represented by Joseph E. Ashman, Patricia M. McCarthy, Robert E. Kirschman, Jr., and Joseph H. Hunt of the U.S. Department of Justice as well as Lt. Col. Robert B. Nelson of the U.S. Army Legal Services. The intervenor, DigiFlight, is represented by Christopher L. Lockwood, Jerome S. Gabig, and Richard J.R. Raleigh, Jr. of Wilmer & Lee, P.A.