In the United States Court of Federal Claims

No. 14-1225C 

(Re-Issued with Keywords: April 17, 2015)1

)

PROGRESSIVE INDUSTRIES, INC., )

) Responsive Pleading Requirements

 Plaintiff, ) for Intervenor in Bid Protest 

) Context; Timeliness and Sufficiency

 v. ) of Intervenor Pleading; Notice and

) Pleading Requirements for Motion

THE UNITED STATES, ) to Intervene under RCFC 24(c);

) Entitlement to Intervention as of

 Defendant, ) Right under RCFC 24(a).

)

 v. )

)

IRISH OXYGEN CO., )

)

 Defendant-Intervenor. )

)

ORDER GRANTING MOTION TO INTERVENE 

On February 20, 2015, Irish Oxygen Company (Irish Oxygen) filed a Notice of 

Motion and Motion to Intervene (motion, motion to intervene, or Mot. to Intervene), ECF 

No. 26, Memorandum of Law in Support (Mem.), ECF No. 26-1, and Affidavit in 

Support, ECF No. 26-2, seeking intervention as of right under Rule 24(a)(2) of the Rules 

of the Court of Federal Claims (RCFC), or alternatively, a permissive intervention under 

RCFC 24(b)(1)(B). 

Finding Irish Oxygen to be entitled to intervene as a matter of right, the court 

granted its motion on February 27, 2015. ECF No. 30. Shortly thereafter, on March 2, 

2015, plaintiff filed an Opposition to Irish Oxygen’s Motion to Intervene and Motion for 

Reconsideration of This Court’s Order Granting Intervention and Access to an 

Unredacted Administrative Record (plaintiff’s response or Pl.’s Resp.), ECF No. 33. 

 

1 This order was originally filed on April 13, 2015. ECF No. 45. It is now re-issued 

to include keywords for administrative purposes only. 
2

In order to consider the arguments raised by plaintiff in its opposition, the court 

struck, by order dated March 3, 2015, its earlier order granting intervention to Irish 

Oxygen, and took Irish Oxygen’s motion and plaintiff’s response thereto under 

advisement for a ruling.2

 ECF No. 34. 

Further to the court’s March 3, 2015 order, the court has considered the arguments 

raised by plaintiff in its opposition to Irish Oxygen’s motion. For the reasons discussed 

more fully below, the court finds that Irish Oxygen is entitled to intervention as a matter 

of right and GRANTS the motion. 

I. Background 

 Plaintiff filed a post-award bid protest in this court on December 22, 2014. See 

Compl., Dec. 22, 2014, ECF No. 1. An initial telephonic status conference was 

conducted on December 23, 2014, pursuant to which the parties’ proposed briefing

schedule was adopted, including a tentative date and time for oral argument. See Order, 

Dec. 23, 2014, ECF No. 8. Defendant was directed to file, on or before January 9, 2015, 

both the administrative record and a status report “to apprise the court of any updates 

regarding: (1) defendant intervenors, if any; and (2) the agency’s treatment of certain, 

lapsed contracts pending resolution of this case.” Id. at 2 (footnote omitted). 

On January 9, 2015, defendant timely filed the status report. See Def.’s Status 

Report, ECF No. 10. In its report, defendant’s counsel stated that she had contacted both 

awardees with respect to their intentions to intervene in this matter, to which both 

awardees responded that they were “uncertain.” Id. at 1. Defendant’s counsel also did 

the following: (1) conveyed that the agency would “pursue sole-source procurements to 

the incumbent distributors of medical gases during the pendency of this bid protest;” (2) 

identified the Veterans Integrated Service Networks (VISNs) that had not yet transitioned 

to the awardees; and (3) indicated the number of contracts for which plaintiff was the 

incumbent contractor within those VISNs. Id. at 1–2. 

On that same day, defendant timely filed the administrative record, ECF No. 12, 

for which plaintiff filed its first motion to supplement on January 21, 2015, ECF No. 16. 

Pursuant to the court’s order dated January 23, 2015, ECF No. 17, defendant filed an 

expedited response to plaintiff’s motion on January 30, 2015, setting forth its objections 

 

2

In that same order, the court also directed the Clerk’s Office to: (1) lift the seal on 

plaintiff’s response brief, as it did not contain “competition-sensitive or otherwise 

protectable” information; (2) strike Irish Oxygen as defendant-intervenor from the case 

caption; (3) remove the access granted to counsel for Irish Oxygen; and (4) strike the 

Application for Access to Protected Material filed by counsel for Irish Oxygen on March 

3, 2015, ECF No. 32. Order, Mar. 3, 3015, ECF No. 34, at 1–2. 
3

to the deposition testimony and certain of the documents sought by plaintiff to be 

included in the administrative record, through supplementation, ECF No. 18. 

Concurrently, defendant produced documents which inadvertently had been omitted and 

sought to add them to the administrative record. See ECF Nos. 19–19-1; see also Order, 

Feb. 4, 2015, ECF No. 21 (granting defendant’s unopposed request to file the first 

amended administrative record). 

On February 4, 2015, the parties filed a joint status report, in which they reported 

that the briefing schedule adopted during the initial status conference would be impacted 

by plaintiff’s objections to, and defendant’s amendment of, the administrative record. 

See Joint Status Report, ECF No. 20. The parties agreed to enlarge the briefing schedule 

in order to provide plaintiff with additional time to review the amended administrative 

record and to evaluate whether it would press further to supplement the record with 

deposition testimony. See id. at ¶ 4–6. 

In response to the parties’ requests, the court stayed both the original briefing 

deadlines established for the parties’ cross-motions for judgment on the administrative 

record and the scheduled oral argument date, pending resolution of plaintiff’s various 

objections to the administrative record. See Order, Feb. 4, 2015, ECF No. 21, at 2. The 

court explained that the parties’ briefing schedule would be revisited after the court’s 

ruling on plaintiff’s motion to supplement the record. Id.

On February 17, 2015, plaintiff filed a motion to withdraw its request for 

deposition testimony, seeking instead to supplement the administrative record with “core 

documents” under paragraph 22 of Appendix C of the RCFC. ECF No. 23. Plaintiff’s 

objections to the administrative record, as detailed in its second motion to supplement, 

prompted extensive briefing by the parties, see ECF Nos. 27, 35, 39, as well as multiple 

orders by the court, see ECF Nos. 29, 37, 40, 43. 

By order dated April 8, 2015, the court resolved the parties’ disputes concerning 

completion of the administrative record. See ECF No. 43. Finding the administrative 

record to be complete, the court denied plaintiff’s request for “core documents.” See id.

at 10. The court also set forth a new briefing schedule for the parties’ cross-motions for 

judgment on the administrative record based on the timeframes proposed by the parties in 

their earlier-filed joint status report. See id. at 10–11. 

The court turns now to consider the pending motion for intervention.

II. Legal Standards

The “requirements for intervention are to be construed in favor of intervention.” 

CHE Consulting, Inc. v. United States, 71 Fed. Cl. 634, 635 (2006) (quoting Cherokee 

Nation of Okla. v. United States, 69 Fed. Cl. 148, 152 (2005)). 
4

These requirements are found in Rule 24 of the RCFC. Intervention may be 

allowed either: (1) as a matter of right under RCFC 24(a); or (2) permissively under 

RCFC 24(b). 

The requirements for an intervention of right are as follows: 

On timely motion, the court must permit anyone to intervene who . . . claims 

an interest relating to the property or transaction that is the subject of the 

action, and is so situated that disposing of the action may as a practical matter 

impair or impede the movant’s ability to protect its interest, unless existing 

parties adequately represent that interest. 

R. Ct. Fed. Cl. 24(a). 

The requirements for permissive intervention differ: 

On timely motion, the court may permit anyone to intervene who . . . has a 

claim or defense that shares with the main action a common question of law 

or fact. . . . In exercising its discretion, the court must consider whether the 

intervention will unduly delay or prejudice the adjudication of the original 

parties’ rights.

R. Ct. Fed. Cl. 24(b). 

Regardless of whether intervention is sought of right or permissively, the 

application to intervene must be “timely.” See Chippewa Cree Tribe of the Rocky Boy’s 

Reservation v. United States (Chippewa Cree), 85 Fed. Cl. 646, 658 (2009). “Timeliness 

must be considered in the context of the proceedings.” Northeast Military Sales, Inc. v. 

United States (Northeast Military Sales), 100 Fed. Cl. 100, 102 (2011). “Timeliness ‘is 

to be determined by the court in the exercise of its sound discretion’ and it is ‘to be 

determined from all the circumstances.” Id. at 101 (quoting NAACP v. New York, 413 

U.S. 345, 366 (1973)). 

The determination of whether a motion to intervene is timely is informed by the 

following three factors: (1) the length of time during which the applicants actually knew 

or reasonably should have known of their rights; (2) whether the prejudice to the rights of

existing parties by allowing intervention outweighs the prejudice to the applicants by 

denying intervention; and (3) the existence of unusual circumstances militating either for 

or against a determination that the application is timely. Id. (citing Chippewa Cree, 85 

Fed. Cl. at 658). 

 
5

III. Discussion

Irish Oxygen seeks intervention of right under RCFC 24(a)(2), or alternatively, a 

permissive intervention under RCFC 24(b)(1)(B). See Mot. to Intervene ¶¶ 1–7. Irish 

Oxygen asserts that “[a]s one of the successful bidders who stands to lose or be forced to 

rebid the contract if the [g]overnment’s decision is overturned, [it] has a direct and 

immediate interest in the outcome of this matter.” Mem. at 4. 

Plaintiff argues that Irish Oxygen’s motion to intervene should be denied because: 

(A) the motion is untimely pursuant to RCFC 24(a) and RCFC 24(b); (B) intervention 

would unduly delay this matter and prejudice plaintiff under RCFC 24(b); and (C) the 

motion fails to satisfy the notice and pleading requirements set forth in RCFC 24(c). 

Pl.’s Resp. 2. 

Apart from its contention that Irish Oxygen’s motion to intervene is untimely, 

plaintiff does not appear to dispute any of the other requirements governing intervention 

of right pursuant to RCFC 24(a), specifically that: (1) Irish Oxygen has an interest in the 

transaction at issue; (2) disposal of this action may impair or impede Irish Oxygen’s 

interests; and (3) defendant may not adequately represent Irish Oxygen’s interest. See 

Pl.’s Resp. 2; see also Mem. 4–5 (explaining how Irish Oxygen satisfies the prongs for 

intervention of right, including timeliness). Thus, the court turns now to consider the 

disputed issue of timeliness. 

A. Irish Oxygen’s Motion to Intervene is Timely

Based on consideration of the three “timeliness” factors, the court finds Irish 

Oxygen’s motion to intervene to be timely. 

1. Irish Oxygen “Knew or Reasonably Should Have Known” of the 

Challenged Procurement for Approximately Two Months before It 

Sought to Intervene

As to the first factor, the parties do not dispute, and the court agrees, that Irish 

Oxygen “knew or reasonably should have known” about this action for approximately 

two months before moving to intervene. See Mem. 4 (“This matter was just commenced 

on December 22, 2014, less than two months [before the filing of Irish Oxygen’s motion 

to intervene on February 20, 2015]”); see also Pl.’s Resp. 4 (“Irish Oxygen knew about 

this case for two months before it moved to intervene.”). But this factor alone is not

dispositive. 
6

2. Denial of the Sought Intervention Would Prejudice Irish Oxygen 

With respect to the second factor, plaintiff does not dispute that Irish Oxygen 

would be prejudiced if intervention is denied. Instead, the parties dispute whether, and 

the extent to which, plaintiff would suffer prejudice as a result of allowing Irish Oxygen 

to intervene at this juncture. 

Irish Oxygen contends that the prejudice resulting from a denial of intervention 

weighs in its favor, and asserts that “[g]iven the relatively early stage of this matter, the 

parties [would] not be prejudiced by Irish Oxygen’s intervention.” Mem. 4. 

Plaintiff, on the other hand, argues that allowing Irish Oxygen to intervene “would 

create additional delay that would be prejudicial” to it. Pl.’s Reply 4. Plaintiff indicates 

that further delay in the proceedings would occur because plaintiff would require time to 

redact confidential pricing information from the administrative record to accommodate 

the sought intervention. Id. at 4–5.

The court is not persuaded by plaintiff’s arguments about such prejudicial delay. 

 First, the Protective Order now in place renders any redaction by the parties during 

the course of the proceedings as unnecessary. See ECF No. 6-1. Recognizing that 

“certain information likely to be disclosed orally or in writing during the course of this 

litigation may be competition-sensitive or otherwise protectable,” the Protective Order 

mandates that “the parties shall comply with the terms and conditions of [the] Protective 

Order” to safeguard the confidentiality of any disclosed information. Id. at 1. As the 

opportunity for the parties to propose redactions is presented at the end of the 

proceedings, plaintiff need not do so at this stage. 

 Second, as plaintiff points out, the matter of “[t]imeliness must be considered in 

the context of the proceedings.” Id. at 4 (citing Northeast Military Sales, 100 Fed. Cl. at 

102). In this case, briefing on the parties’ cross-motions for judgment on the 

administrative record has not yet begun, and no date for oral argument has been set. At 

the parties’ request, see Joint Status Report, Feb. 4, 2015, at ¶ 4, the original briefing 

deadlines were stayed pending resolution of the parties’ disputes with respect to the 

administrative record, see Order, Feb. 4, 2015, ECF No. 21, at 2. To date, the efforts of 

the parties have been dedicated primarily to addressing plaintiff’s objections to the 

administrative record. Plaintiff’s concerns about prejudicial delay in reaching the merits 

of the protest are unfounded. 

Moreover, because Irish Oxygen was awarded “a significant portion of the sealed 

bid contract at issue” in the challenged procurement, Mot. to Intervene ¶ 2, the court finds 

that the rights of Irish Oxygen would be prejudiced if intervention is not allowed. The 

court further finds that any prejudice to plaintiff, by allowing intervention, is far 
7

outweighed by the prejudice to Irish Oxygen if intervention is denied. See Northeast 

Military Sales, 100 Fed. Cl. at 102 (citing Chippewa Cree, 85 Fed. Cl. at 658). 

3. Unusual Circumstances Militate in Favor of Finding Irish Oxygen’s 

Motion as Timely

As to the third factor regarding “timeliness,” the court is not persuaded by the 

arguments set forth by plaintiff in its opposition, which are supported only by plaintiff’s 

misplaced reliance on Northeast Military Sales, Inc. v. United States (Northeast Military 

Sales), 100 Fed. Cl. 100, 102 (2011). The facts and procedural posture of that case are 

entirely distinguishable from this case. 

In Northeast Military Sales, the proposed intervenor admitted its delay in seeking 

intervention because the grounds for protest were initially redacted. See 100 Fed. Cl. at 

102. The proposed intervenor moved to supplement the record less than forty-eight hours 

before oral argument “for the limited purpose” of challenging “inaccurate and misleading 

allegations of inflated savings made by protester in connection with [plaintiff’s] internal 

Core Items Price Survey forms.” Id. 

Unlike the proposed intervenor in that case, Irish Oxygen is not seeking to 

intervene on the eve of oral argument for the limited purpose of seeking to amend the 

administrative record. Nor would allowing Irish Oxygen to intervene—at this stage of 

the proceedings—require a rescheduling of the parties’ cross-motions for judgment on 

the administrative record, as intervention in Northeast Military Sales would have 

necessitated. See id. Briefing has not yet begun. Nor is there a date for oral argument. 

The special circumstances that militated against intervention in that case are not present 

here. 

 Rather, the court finds that the circumstances in this case weigh in favor of 

intervention. In the case at bar, it is plaintiff’s requests to supplement, and defendant’s 

inadvertent omissions from, the administrative record that have prompted delays in the 

parties’ briefing for judgment on the record. 

 Of note, the extent to which Irish Oxygen’s interests would be affected by this 

proceeding did not become clear until defendant clarified, in its filed status report, how 

many contracts would remain with the incumbent contractor, plaintiff in this case, rather 

than transition to any awardee—to include Irish Oxygen—until the resolution of the bid 

protest. See Def.’s Status Report 1–2. To this end and contrary to plaintiff’s assertions, 

Irish Oxygen is substantially prejudiced by the protracted nature of this litigation, and it 

is plaintiff that benefits. 

Based on the foregoing, the court finds that the circumstances in this case counsel 

in favor of allowing Irish Oxygen to intervene as a matter of right. 
8

B. Permissive Intervention Under RCFC 24(b) 

Because the court has determined that Irish Oxygen is entitled to intervene as a 

matter of right pursuant to RCFC 24(a), the court need not address plaintiff’s arguments 

against permissive intervention. See Pl.’s Resp. 2. 

C. Irish Oxygen’s Pleading Is Sufficient

Plaintiff asserts that “it is proper for this [c]ourt to deny Irish Oxygen’s [m]otion 

to [i]ntervene on the basis that Irish Oxygen failed to attach the pleading required by 

RCFC 24(c).” Pl.’s Resp. 7. Plaintiff points to the notice and pleading requirements for 

a motion to intervene under RCFC 24(c)—in particular, that “[t]he motion [to intervene] 

must state the grounds for the intervention and be accompanied by a pleading that sets 

out the claim or defense for which intervention is sought.”3 Id. at 6 (citing RCFC 24(c)) 

(emphasis in original). Plaintiff also cites to Aeroplate Corp. v. United States (Aeroplate 

Corp.), 111 Fed. Cl. 298 (2013), as an example of a case in which the Court of Federal 

Claims “den[ied] the motion to intervene and not[ed] that the failure to submit the 

pleading mandated by RCFC 24(c) does not meet the requirements for intervention.” Id. 

The requirements governing the time for presenting defenses and objections 

contained in responsive pleadings are set forth in RCFC 12(a)(1). That rule provides, 

inter alia, that: “The United States must file an answer to a complaint within 60 days 

after being served with the complaint.” R. Ct. Fed. Cl. 12(a)(1)(A).

But the notice and pleading requirements under RCFC 24(c) to which plaintiff 

adverts here must be viewed in concert with the requirements for responsive pleadings 

that are imposed on defendant in the bid protest context. The rules governing “Motions 

for Judgment on the Administrative Record” are set forth in RCFC 52.1(c). Subpart 3 of 

that provision, which addresses the “Effect of a Motion [for Judgment on the 

Administrative Record,” states that “[u]nless otherwise provided by order of the court, a 

motion under this rule for judgment on the administrative record obviates the 

requirements for the filing of an answer under RCFC 12(a)(1).” R. Ct. Fed. Cl. 

52.1(c)(3) (emphasis added). 

Thus, while RCFC 24(c) requires “a pleading that sets out the claim or defense for 

which intervention is sought,” the requirements are modified when the parties are 

proceeding on a motion for judgment on the administrative record. Specifically, RCFC 

 

3

 RCFC 24(c) sets forth the notice and pleading requirements for a motion to 

intervene: “A motion to intervene must be served on the parties as provided in RCFC 5. 

The motion must state the grounds for the intervention and be accompanied by a pleading 

that sets out the claim or defense for which intervention is sought.” R. Ct. Fed. Cl. 24(c).
9

52.1(c)(3) eliminates the need to file an answer under RCFC 12(a)(1). Thus, defendant in 

this case has not filed an answer to plaintiff’s complaint, and the court declines to impose 

a greater responsive pleading requirement on Irish Oxygen, the defendant-intervenor, 

than the rules have imposed on defendant itself.4

IV. Conclusion 

The court finds that Irish Oxygen is entitled to intervene as a matter of right and 

accordingly GRANTS its motion to intervene. Further to the foregoing: 

(1) The case caption shall be modified, as shown above, to recognize the 

participation of Irish Oxygen in the case; 

(2) Defendant-intervenor’s counsel shall be deemed admitted to, and bound by 

the terms of, the Protective Order filed on December 23, 2014, see ECF No. 

6–1; and 

(3) Defendant-intervenor shall be subject to the same briefing deadlines as 

defendant for the parties’ cross-motions for judgment on the administrative 

record as set forth in the court’s order dated April 8, 2015. See ECF No. 

43. Also, Irish Oxygen may participate in the filing of a joint status 

report, due on or before 5:00 p.m. EST on Wednesday, April 15, 2015,

to indicate an agreed-upon date and time for the scheduling of oral 

argument in this matter. See id. at 11. 

 IT IS SO ORDERED. 

 s/ Patricia E. Campbell-Smith 

 PATRICIA E. CAMPBELL-SMITH 

 Chief Judge 

 

 

4 As with plaintiff’s earlier reliance on Northeast Military Sales, Inc. v. United 

States, 100 Fed. Cl. 100 (2011), plaintiff’s reliance on Aeroplate Corp. v. United States, 

111 Fed. Cl. 298 (2013) is also misplaced. In Aeroplate Corp., the court denied a motion 

to intervene filed by a judgment creditor against a construction company in two breachof-contract suits for reasons that do not apply in this case. Notably, the court in 

Aeroplate Corp. found that neither the criteria for an intervention of right under RCFC 

24(a), nor for a permissive intervention under RCFC 24(b), were pertinent. See 111 Fed. 

Cl. at 299.