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INTERNATIONAL TRADE OVERSEAS v. AGENCY FOR INTL. D

June 30, 1988

INTERNATIONAL TRADE OVERSEAS, INC., Plaintiff
v.
AGENCY FOR INTERNATIONAL DEVELOPMENT, Defendant


Thomas F. Hogan, United States District Judge.


The opinion of the court was delivered by: HOGAN

THOMAS F. HOGAN, UNITED STATES DISTRICT JUDGE

 Presently before the Court are the parties' cross-motions for summary judgment. In consideration of the motions, the oppositions thereto, and the entire record of the case, and for the following reasons, the Court shall grant defendant's motion for summary judgment, thereby denying plaintiff's motion, and dismiss this case.

 DISCUSSION

 Plaintiff filed this case on November 17, 1987 pursuant to the Freedom of Information Act ("FOIA"). 5 U.S.C. § 552. Plaintiff requested documents from the Agency for International Development ("AID") in connection with a government contract. Specifically, plaintiff seeks the following:

 
1) The Abstract of Offers received under Solicitation No. 86-007 and prepared pursuant to FAR 14.403, including the Contracting Officer's certification of accuracy;
 
2) Copies of the bids submitted by Aqua Systems, Greenline Forwarding, La Barge, Stover Mechanical, USX, Construction Products International, and Interpipe, Inc.;
 
3) Copies of all intra-agency correspondence relating to the post-award claim of International Trade Overseas, Inc., for reformation;
 
4) Copies of memoranda, notes or correspondence relating to the matter of bid responsiveness or completeness for award purposes under IFB Quito 86-007; and
 
5) Copies of documents relating to and supporting the administrative decision to cancel IFB QUITO 86-007.

 Defendant's Cross-Motion for Summary Judgment ("Defendant's Cross-Motion"), Exh. A (Letter from plaintiff's counsel to Agency for International Development making original FOIA request).

 With respect to request number 2, despite an extensive search, the agency did not find any responsive documents. Declaration of Jerome Patterson paras. 4-6. The agency determined that copies of the bids submitted might be in Quito, Equador, the place where the contract was administered. Id. P 4. Despite a five hour search of its files, the Quito office reported it could not find the documents in either its office or the Lima, Peru office, site of the agency former regional contract office. Id.; Defendant's Cross-Motion, Exhs. E, F. Moreover, the agency's Office of Procurement, Latin America and Caribbean Overseas Division, in Washington, D.C. reported that it could not locate responsive documents. Declaration of Jerome Patterson para. 4; Defendant's Cross-Motion, Exh. H. Finally, AID'S Attorney-Advisor with the Litigation and Enforcement Unit, Office of the General Counsel, failed to locate any responsive documents. Declaration of Jerome Patterson para. 5.

 AID discovered 51 pages of documents responsive to requests 1, 3-5. Prior to releasing some of those documents, AID invoked Executive Order 12,600 and offered certain business submitters the opportunity to object to the release of any specified portions of the information which might be released. Declaration of Jerome Patterson para. 6; Defendant's Cross-Motion, Exh. I. Because no objections were received, defendant informed plaintiff on February 17, 1988, that the agency was releasing 22 pages in full. Declaration of Jerome Patterson para. 7; Defendant's Cross-Motion, Exh. J.

 The agency, however, withheld 29 pages of handwritten attorney notes pursuant to the attorney work-product privilege as set forth in FOIA Exemption 5, 5 U.S.C. § 552(b)(5). Declaration of Jerome Patterson para. 7; Defendant's Cross-Motion, Exh. J. The notes were prepared by an AID attorney between November, 1986, and February, 1987, in connection with the agency's defense of a contract price adjustment and/or reformation claim brought by plaintiff. Declaration of Jerome Patterson para. 8. ...


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