Department of Education RFP Wars – Episode 26

Last Thursday the United States Department of Education (ED) filed its latest status report in the United States Court of Claims. This report was promised in a filing ED made with the court on August 24^th. insideARM wrote about that development on August 29, 2017: 

“Finally, the language in the report is interesting. ED does not say that selections will be made on September 14, 2017. ED wrote: “Defendant respectfully requests that it be allowed to file a status report on September 14, 2017 informing the Court of the status of the corrective action.” It may be that September 14^th will only bring another status report requesting yet additional time to complete the evaluations. “ 

insideARM guessed correctly in that August 29, 2017 article. ED did not announce RFP selections on Thursday. Instead ED provided the following: 

Status of Corrective Action 

In a notice filed on August 24, 2017, we informed the Court that ED’s evaluation teams have completed their review of all proposals, and that evaluation reports were being prepared and should be finalized within the next few weeks. ECF No. 184 (Defendant’s Notice of the Status of Corrective Action dated August 24, 2017). Evaluation reports are now being finalized, with an expected completion date of September 18, 2017. Once the reports are finalized, ED’s Source Selection Authority will perform an integrated assessment to identify the proposal(s) deemed to be most advantageous to the Government, followed by a responsibility determination of each apparently successful offeror. Once a new source selection determination has been made, ED will announce any new award or awards, and/or the termination of previously-awarded contracts, as appropriate. 

As stated in our August 4, 2017 and August 24, 2017 status reports, this corrective action is a top priority of Federal Student Aid, and ED is working diligently to complete the corrective action. Defendant respectfully requests that it be allowed to file a status report on October 5, 2017, informing the Court of the status of the corrective action. (Emphasis added by insideARM) 

The above two paragraphs should have been the end of ED’s status report. But ED also needed to respond to what can only be described as a “bizarre” August 29, 2017 Order from Chief Judge Susan G. Braden.  

In that Order, Judge Braden granted ED’s request to file another status report on September 14^th and directed ED “to file their September 14th status report in their appeal of Braden’s May 31, 2017 preliminary injunction, currently pending in the United States Court of Appeals for the Federal Circuit, No. 17-2155, together with: (1) corrections regarding the transcript of a hearing convened by the court on May 2, 2017; and (2) an e-mail sent by the court’s law clerk on April 21, 2017, that was attached to the August 29, 2017 Order.”

The August 29^th order continued with two additional paragraphs that were almost nonsensical. But, apparently Judge Braden wanted to make certain the record was complete for the Court of Appeals. Judge Braden wrote: 

“The Government should supplement their Appendix by filing all pages of the transcript of the afternoon hearing on May 2, 2017 to provide complete context. These pages are required to correct the narrative on pages 20–21 of the Government’s August 15, 2017 brief on appeal, wherein the counsel for the Department of Justice contends that the court excluded Plaintiffs and Plaintiff-Intervenors from participating in a conference convened by the court in its chambers. As the transcript demonstrates, on pages 30–31, it was the court’s perception that all parties that wished to participate in the conference attended. In addition, the court ordered counsel for the small business-intervenors removed by a Court Security Officer (“CSO”), because she shouted at the court and interrupted the proceedings. 

With respect to the e-mail, at page 15 of the Government’s August 15, 2017 brief on appeal, counsel for the Department of Justice stated “the trial court acknowledged having contacted the Secretary of Education’s office via e-mail to attempt to force the United States into mediation.” But, as the April 21, 2017 e-mail from the court’s law clerk evidences, the court had no direct communication with the Secretary of Education nor did the court “attempt to force the United States into mediation.” Court Ex. A. Instead, the court explained that it issued an Order on April 19, 2017, so that the parties could negotiate a global solution. In addition, counsel for all parties were copied on the e-mail.” 

As a result of the August 29^th order, ED needed to provide a further response in the September 14^th status report. Per that status report ED states: 

“As explained below, we will comply with the Court’s order by seeking leave to file this status report and other materials described in the August 29 Order with the Federal Circuit.” 

ED then tells Judge Braden:

“As an initial matter, no appendix has yet been filed in Continental Service Group, Inc. et al. v. United States et al., Nos. 2017-2155, -2156, -2157, -2158, -2159, -2160, -2210, -2212, -2214, -2215, -2216, -2221, and -2342 (Fed. Cir.). A joint appendix will be filed after the completion of the briefing by all parties. 

Further, because the Government specifically cited the pages in the transcript (pages 30-31, designated as Appx101481-101482) to which the Court refers in its August 29, 2017 Order, pursuant to Federal Circuit Rules, these pages will be included in the joint appendix.

In addition to these materials that are sure to be included in the joint appendix to be filed with the Federal Circuit, in accordance with the Court’s order, we are seeking leave from the Federal Circuit to file the afternoon session of the May 2 hearing transcript in its entirety as an attachment to the Government’s status report. Even if the Federal Circuit denies our motion for leave, the specific transcript pages cited in the Court’s order will be part of the joint appendix when it is filed under normal operation of the Federal Circuit’s rules.

In addition, defendant will also seek leave from the Federal Circuit to file the redacted and highlighted version of the Court’s email dated April 21, 2017 to James Manning, Office of the Secretary of Education, and the law firm of John Ashcroft, expressing the Court’s view of the need for a skilled mediator in this case. This e-mail was not previously designated for inclusion in the joint appendix because it was not filed in Court, but we will include this document in our motion for leave to file this status report with the Federal Circuit. 

insideARM Perspective 

insideARM would love to tell its readers the meanings of Judge Braden’s August 29^th order and ED’s September 14^th response to that order. Unfortunately, this writer is simply not smart enough to decipher the two items. 

It appears Judge Braden is concerned that the Court of Appeals for the Federal Circuit be given all of the background documents and all transcripts of hearings held in the Court of Federal Claims. It appears that ED has the same concern. Yet, both seem compelled to point it out. 

The case has had so many plots and sub-plots that it is hard to predict where it will go next. For example, insideARM did not previously write about one of those sub-plots. Over the past 10 days, ED and Progressive Financial Services, Inc. (Progressive) had a dispute over ED initiating “a limited recall of student loan accounts to provide immediate relief to student borrowers affected by the devastation of Hurricane Harvey.” 

On September 7, 2017 ED provided notice of a program to recall accounts that met that criteria. On September 8th Progressive filed a motion with the court for emergency relief to stop the recall. On that same day, ED filed a response to that motion. On September 12^th Judge Braden issued an order denying the request for emergency relief. 

All we can do is continue to monitor the litigation and report when and where appropriate.

Editor’s Note: See here for a link to an insideARM page that provides a history of our ED-related articles. The page is automatically updated as new stories are written.