Clarke Health Care Products, Inc. v. United States
20-413
| Fed. Cl. | Jul 27, 2021Background
- Clarke Health Care filed a bid protest challenging the VA’s corrective action after intervenors protested the Group 3 award at GAO.
- This court remanded in August 2020 because the administrative record did not explain the VA’s grounds for corrective action (Clarke Health Care Products, Inc. v. United States).
- On February 19, 2021 the VA notified the court it would rescind the cancellation and reinstate Clarke’s Group 3 award; parties stipulated dismissal and the court entered judgment on February 22, 2021.
- After judgment, intervenors filed GAO protests; on April 2, 2021 the VA issued a revised corrective-action plan proposing to cancel the reinstatement, cancel the solicitation, conduct new market research, and resolicit.
- Clarke moved under RCFC 60(b)(3) alleging the VA misrepresented its intent to reinstate the award; it also sought relief under RCFC 11 and later asserted RCFC 60(b)(6) in its reply.
- The court denied relief: Clarke did not present clear and convincing evidence of misrepresentation; the court declined to order RCFC 11 sanctions and refused to consider the 60(b)(6) argument raised for the first time in reply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RCFC 60(b)(3) relief is warranted for alleged misrepresentation in VA’s Feb. 19 notice | Clarke: VA misled the court by stating it would reinstate the award but later cancelled without changed record, so relief is warranted | VA: At the time it intended to reinstate; subsequent GAO protests and litigation risk led VA in good faith to change the corrective action | Denied — Clarke failed to show clear and convincing evidence of fraud, misrepresentation, or misconduct |
| Whether RCFC 11 sanctions / show-cause are appropriate against VA counsel | Clarke: VA counsel violated RCFC 11 by misrepresenting VA’s intent to the court | VA: No misrepresentation shown; actions were based on post-judgment developments and good-faith consideration | Denied — no evidence of an RCFC 11 violation |
| Whether relief under RCFC 60(b)(6) is available | Clarke: (raised in reply) equitable relief is warranted given VA’s change in position | VA: Not briefed; parties had no opportunity to respond | Not considered — argument forfeited by raising it first in reply |
Key Cases Cited
- Wagstaff v. United States, 118 Fed. Cl. 172 (2014) (RCFC 60(b)(3) requires clear and convincing evidence of fraud, misrepresentation, or misconduct and that it prevented a fair hearing)
- Madison Servs., Inc. v. United States, 94 Fed. Cl. 501 (2010) (discussing burden for proving misconduct under Rule 60(b)(3))
- Griffin v. United States, 96 Fed. Cl. 1 (2010) (same standard for showing prejudice from fraud or misconduct)
- United States v. Ford Motor Co., 463 F.3d 1267 (Fed. Cir. 2006) (arguments raised for the first time in a reply brief are not properly before the court)
- Clarke Health Care Products, Inc. v. United States, 149 Fed. Cl. 440 (2020) (prior remand for VA to articulate basis for corrective action)