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) |