A. Plaintiffs Seek Completion, Rather Than Supplementation, of the Administrative
Record

In Axiom Resource Management, Inc., the Federal Circuit rejected the broad approach to supplementation of the record utilized by the trial court, which permitted the parties to incorporate into the record numerous documents, including post-procurement declarations from the protester’s employees. See Axiom Res. Mgmt., Inc. v. United States, 78 Fed. Cl. 576, 586 n.10 (2007). The trial court then relied upon those post-procurement declarations to enjoin performance of the task order at issue. 80 Fed. Cl. at 539. The Federal Circuit reversed, explaining that the trial court abused its discretion by failing to examine the agency-filed record in order to make a threshold determination of whether effective judicial review was possible without resort to additional, extra-record evidence. 564 F.3d at 1380.

To the extent that defendant and defendant-intervenors rely upon Axiom Resource Management, Inc. to oppose plaintiffs’ motions, such reliance is misplaced. But see Vanguard Recovery Assistance, Joint Venture, 2011 WL 2120796, at *10 (stating that motions to “amend or supplement” the record are governed by Axiom Resource Management, Inc.). The court must always exercise restraint when considering whether an administrative record requires supplementation. See Office Depot, Inc. v. United States, 94 Fed. Cl. 294, 296 (2010). Yet, the Federal Circuit’s primary concern in Axiom Resource Management, Inc. was preventing courts from admitting new evidence into the record and relying upon that evidence to engage in a denovo review of agency action. Admission of new evidence into an agency-assembled record is a separate and distinct issue from completing the record through incorporation of materials generated or considered by the agency itself during the procurement process. See, e.g., NEQ, LLC v. United States, 86 Fed. Cl. 592, 593 (2009) (explaining that the addition of two electronicmail messages that were before the agency when it rendered its award decision was not “supplementing the administrative record . . . but merely . . . ensuring the completeness of the record” (emphasis added)). Indeed,

there is a distinction to be made between materials proffered to “supplement” or to “complete” the administrative record. A procuring agency’s initial submission to the court may omit information that is properly part of the administrative record because it served as a basis for the agency’s award decision. In such instances, subsequent admission of the omitted information is appropriate not to supplement the record, but to complete it.

Linc Gov’t Servs., LLC v. United States, 95 Fed. Cl. 155, 158 (2010) (citations omitted).

Incorporating materials into the administrative record that were previously omitted is not novel. See, e.g., Ceres Gulf, Inc. v. United States, 94 Fed. Cl. 303, 307 (2010) (noting, in passing, that the government submitted a certified copy of the administrative record and subsequently added omitted materials); PlanetSpace Inc., 90 Fed. Cl. at 4 (“Certain documents are necessarily part of the administrative record, notwithstanding their omission from an agency’s submission.”). Plaintiffs, by seeking to incorporate into the record materials that were generated by the WHS during the procurement process or considered by it as part of its overall decisionmaking, do not seek to admit “new” or “extra-record” evidence. For example, plaintiffs do not seek to depose WHS personnel, admit post-procurement declarations from their personnel, or incorporate any post-procurement documentation into the record designed to explain agency action. Consequently, the guidance from the Federal Circuit in Axiom Resource Management, Inc., as it relates to extra-record supplementation, is not implicated at this stage in the proceedings.

B. Completion of the Administrative Record Is Necessary for Effective Judicial Review

Following Axiom Resource Management, Inc., the essential question that courts must ask is whether omission of extra-record evidence would “frustrate effective judicial review.” 564 F.3d at 1381 (quoting Pitts, 411 U.S. at 142). What constitutes “effective judicial review” or “meaningful review” varies depending upon the circumstances of each case: “It is this court’s responsibility to decide cases for the right reasons and to ensure that the position of both parties is fully understood in order not to ‘frustrate effective judicial review.’” Acad. Facilities Mgmt. v. United States, 87 Fed. Cl. 441, 455 (2009). When a court determines whether extra-record evidence is necessary to effectuate meaningful review, it does so after examining the complete agency record. See Volpe, 401 U.S. at 420 (stating that judicial review is “based on the full administrative record” that was before the agency at the time it made its decision (emphasis added)). Accordingly, motions to supplement the record are generally entertained only after the agency has produced what it certifies represents a complete record of the acquisition.

If a court cannot engage in effective judicial review in certain cases without resorting to the admission of extra-record evidence to supplement a complete agency record, then it almost certainly cannot engage in effective judicial review in the absence of a complete agency record. A complete administrative record is the predicate to meaningful and effective judicial review of agency action, and it is that complete record that is subject to supplementation, if necessary, based upon the unique circumstances and issues presented by a particular protest. Here, it appears that the record, as it is currently constituted, is incomplete and requires the inclusion of additional documents and materials.

C. The WHS Must Provide a Complete Record of the NIEITS Procurement

Defendant concedes that the agency-assembled record is not a complete record of the NIEITS procurement, stating that the record instead is comprised only of documents upon which the WHS purportedly relied when it made its procurement decision. Yet, an agency may not exclude information merely on the grounds that it did not rely upon the excluded information when reaching a final decision when there was evidence that the information was, in fact, reviewed. See Ad Hoc Metals Coal. v. Whitman, 227 F. Supp. 2d 134, 139 (D.D.C. 2002). Plaintiffs allege numerous violations of statutes and regulations, and misconduct on the part of the WHS throughout the procurement process, including, among other things, failure to provide excluded offerors an opportunity to file a preaward protest. See NetServices’s Am. Compl. ¶¶ 76-80; Comint’s First Am. Compl. ¶¶ 79-82. They also raise issues related to why proposals that the WHS deemed eligible for award during one stage of the procurement were later deemed ineligible during later stages of the procurement. See NetServices’s Am. Compl. ¶ 77; Comint’s First Am. Compl. ¶¶ 24, 26, 54-63. These issues concern the WHS’s procurement procedures and decision-making process, but the current record is incomplete because it is silent with respect to these and other elements of the NIEITS procurement. Indeed, the current agency-assembled record contains no certification by the WHS that the documents contained therein comprise the complete record of administrative actions performed during the NIEITS procurement. The purpose of bid protests is to “protect the integrity of the procurement process and to safeguard protester rights,” Jonathan R. Cantor, Bid Protests and Procurement Reform: The Case for Leaving Well Enough Alone, 27 Pub. Cont. L.J. 155, 155 (1997), by providing a mechanism for review of agency action. The court’s review function is undermined when an agency assembles a record that consists solely of materials that insulate portions of its decision from scrutiny or that it deems relevant to specific allegations raised by a protester. See Exxon Corp. v. Dep’t of Energy, 91 F.R.D. 26, 33 (N.D. Tex. 1981) (stating that the “‘whole’ administrative record . . . consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency’s position” (emphasis added) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88 (1951)).

The court rejects the position taken by defendant and defendant-intervenors that plaintiffs should not be permitted access to agency materials related to Amendment 5 because their protests are untimely. Timeliness of plaintiffs’ protests is an entirely separate and distinct matter that bears no relation to the requirement that the WHS produce a complete agency record of the NIEITS procurement. It is the role of the court, not that of the WHS, to determine whether plaintiffs’ protests are untimely. In the meantime, plaintiffs are entitled to review the complete record and develop further the grounds for their protests. If defendant and defendant-intervenors seek to challenge portions of plaintiffs’ amended complaints on timeliness grounds, then they should do so at the appropriate time, which is not until after the WHS has produced a complete record of the NIEITS procurement.  Accordingly, the motions to dismiss portions of the original complaints filed by defendant and DMI are denied as moot.

Nevertheless, certain materials within subcategories 4 and 5 of NetServices’s motion may be inappropriate for inclusion into the administrative record at this time because they are internal deliberative materials, which are generally excluded from the record. See Tafas v. Dudas, 530 F. Supp. 2d 786, 800 (E.D. Va. 2008); cf. FTC v. Warner Commc’ns, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984) (“Purely factual material that does not reflect deliberative processes is not protected.” (citing EPA v. Mink, 410 U.S. 73, 87-89, 93 (1973)). As the D.C. Circuit has stated, “[a]gency deliberations not part of the record are deemed immaterial. That is because the actual subjective motivation of agency decisionmakers is immaterial as a matter of law–unless there is a showing of bad faith or improper behavior.” In re Subpoena Duces Tecum, 156 F.3d 1279-80 (D.C. Cir. 1998) (citation omitted); see also Tummino v. C. Von Eschenbach, 427 F. Supp. 2d 212, 234 (E.D.N.Y. 2006) (noting that a deliberative process privilege does not apply where a showing of bad faith has been made (citing Volpe, 401 U.S. at 420)).

Although NetServices contends that its amended complaint “cites evidence suggesting bad faith,” NetServices’s Reply 15, it has not specifically alleged bad faith or improper behavior on the part of the WHS during the NIEITS procurement “because it does not possess sufficient evidence to meet the high evidentiary burden of proof,” id. at 14-15. Absent pled allegations and a “reasonable factual predicate” therefor, L-3 Commc’ns Integrated Sys., L.P. v. United States, 91 Fed. Cl. 347, 355 (2010), the court cannot conclude at this time that internal deliberative materials that fall within subcategories 4 and 5 are relevant to complete the agency record.

In short, the court grants plaintiffs’ motions save for inclusion into the record of internal deliberative materials concerning a need or justification for Amendment 5. The WHS shall provide a complete record of the NIEITS acquisition that includes the materials requested by plaintiffs and any other materials absent from the current record that relate to its decision-making process. Furthermore, the court grants in part plaintiffs’ joint supplemental motion with respect to (1) NetCentrics’s potential organizational conflicts of interest and the WHS’s efforts to evaluate any mitigation plans, and (2) any omitted portions of NetCentrics’s oral proposal presentation, and denies in part as moot that portion of the joint supplemental motion addressing pricing worksheets that are already in the record.  (Joint Venture of Comint Systems Corporation & EyeIT.com, Inc. v. U. S. and NetCentrics Corporation, Digital Management, Inc., and Powertek corporation, No. 11-400C, 11-416C, July 22, 2011)  (pdf)

BAI apparently requests discovery to give Ms. Gartrell a second opportunity to explain her decision. Any further explanation by Ms. Gartrell, however, is likely to be discounted by this Court as a post hoc rationalization. Orion, 60 Fed. Cl. at 343. In any event, if BAI believes that Ms. Gartrell’s articulated reasons demonstrate arbitrariness, this is a ground for its motion for judgment, and does not demonstrate that discovery is necessary to explain the agency’s decision. BAI attempts to use the Gartrell scoring as the springboard for discovery into the thinking of all five members of the source selection panel--the three evaluators, the chairman and co-chairman--as well as that of the contracting officer. But the selection panel’s decision is explained in the record, Admin. R. at 989-1005; the subjective value judgments of each of the evaluators are presented in the record, broken down by category and sub-category, see Admin. R. at 1012-1210; and judicial review does not require, nor normally will permit, any further inquiry into the mental processes of the decisionmakers, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1339 (Fed. Cir. 2001); Aero Corp. v. United States, 38 Fed. Cl. 408, 412-14 (1997).

Given the presumption of regularity and good faith, to put facts relating to bad faith in play a plaintiff must first make a threshold showing of either a motivation for the Government employee in question to have acted in bad faith or conduct that is hard to explain absent bad faith. See Impresa Construzioni, 238 F.3d at 1338. Second, the plaintiff must persuade the Court that discovery could lead to evidence which would provide the level of proof required to overcome the presumption of regularity and good faith. See Orion, 60 Fed. Cl. at 343 n.11, 344. Here, BAI has not made the threshold showing concerning Ms. Gartell--it merely observed that her scoring of its proposal differs from that of her counterparts. See Info. Tech., 316 F.3d at 1324 n.2. Innuendo or suspicion is not enough to demonstrate bad faith and thus justify discovery. Orion, 60 Fed. Cl. at 344; see also CACI, Inc.-Fed., 719 F.2d at 1582. (Beta Analytics International, Inc. v. U. S. and Maden Tech Consulting, Inc., No. 04-556C, Filed June 30, 2004 under seal, Reissued July 9, 2004) (pdf)

This is one of those circumstances in which a brief deposition of the CO is necessary to explain the CO’s decision to reject Plaintiff’s offer. In particular, the gravamen of Plaintiff’s bid protest is that the CO arbitrarily and capriciously eliminated IRRI from the competition on the sole ground that it failed to submit a mobilization plan in its proposal, when Plaintiff as the incumbent would not require mobilization, making such a mobilization plan unnecessary. Further, Plaintiff claimed that the same CO as a matter of past practice did not require mobilization plans from incumbents under substantially similar solicitations. Finally, Plaintiff represented that it would continue performing as it had in past years, retaining the same employees and equipment, and that the agency knew the information which would have been contained in such a plan. Plaintiff seeks to depose the CO on the limited topic of her deviation from her past practice of not requiring a mobilization plan from an incumbent. If Plaintiff could demonstrate that the agency has traditionally deemed mobilization plans for incumbents unnecessary and has permitted incumbent contractors to represent that they would continue performance using the employees and vehicles they were presently using without a formal mobilization plan, the agency’s past practice would be relevant in determining whether the CO acted in an arbitrary or capricious manner in rejecting Plaintiff’s proposal for failure to submit a plan. Because the agency’s past practice in evaluating mobilization plans is not addressed in the Administrative Record, this Court grants Plaintiff’s motion, and allows a two-hour deposition of the Contracting Officer. The Court further grants the Government’s alternative request to depose IRRI’s principal concerning his reliance on the agency’s past practice and his representations at GAO regarding IRRI’s submission of a mobilization plan. The Court denies the Government’s request for limitations on Ms. Koike’s deposition.  (International Resource Recovery, Inc. v. U. S., No. 04-154C, February 24, 2004)  (pdf)

The court must "give due regard to the interests of national defense and national security" when considering bid protests. 28 U.S.C. § 1491 (b)(3). There is no specific irreparable injury to SDS, and any harm to SDS is outweighed by the harm that will be suffered by the United States.  (SDS International, Inc., v. U. S. and CDB Training, Inc., No. 03-214C, February 6, 2003)