Pre and Post Award Bid Protest

When is it Okay to Supplement the Agency Record on a Bid Protest?

Comments: 0

The U.S. Court of Federal Claims (COFC) recently found that while not favored, supplementation of the administrative record is allowed. The Air Force awarded the contract in question to SPG, which at the time of the award lacked the necessary facility clearance. After learning that SPG lacked the necessary facility clearance, the Air Force canceled its award to SPG and awarded it to Sonoran. SPG initially filed a Government Accountability Office (GAO) bid protest, requesting that the company be referred to the SBA for a responsibility determination, but GAO dismissed the protest.

Claim Filed With COFC Dismissed

SPG then filed a protest with the COFC, which prompted the contracting officer to issue a corrective action and referred SPG to the SBA.  The contracting officer did not explain its reasoning for the corrective action.  However, the COFC dismissed SPG’s protest as a result of the corrective action.

New Claim Filed with COFC

The SBA ultimately decided that it could not make a responsibility determination for SPG because the contract had already been awarded to Sonoran. SPG then filed a new protest with the COFC, protesting the SBA’s refusal to issue a responsibility determination. While that protest was pending, SPG secured its required facility clearance and the SBA determined that it was responsible for the purpose of the awarded contract. The SBA did not provide an explanation for its responsibility determination. The contracting officer then canceled the Air Force’s award to Sonoran and awarded to SPG. Sonoran subsequently filed a protest with the C0FC.

Contracting Officer Deposed

After receiving the agency record, Sonoran listed a host of purported deficiencies in the agency record and petitioned the court to allow it to depose the contracting officer and the area director for the SBA. The court granted Sonoran’s motion to depose the contracting officer, limiting the deposition to four hours, but denied its motion to depose the SBA officer. This is because, as the court reasoned, Sonoran failed to challenge the SBA’s responsibility determination in its complaint.

Supplementing the Administrative Record

However, the court stated, as it related to deposing the contracting officer, that while supplementation of the Administrative Record should rarely occur, it is not prohibited. Axiom Res. Mgmt., 564 F.3d at 1380. “In general, the Court will supplement the Administrative Record when it is necessary for a full and complete understanding of the issues.” Am. Ordnance LLC v. United States, 82 Fed. Cl. 199, 200 (2008). “Thus, supplementation of the record is appropriate where the omission of extra-record evidence precludes effective judicial review.” AshBritt, 87 Fed. Cl. at 366. Further, “[a] court may order depositions to supplement the administrative record when ‘the record was inadequate to explain a contracting officer’s procurement decision” when serious challenges to the rationality of the procurement decision have been raised. Office Depot v. United States, 94 Fed. Cl. 294, 296 (2010) (citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1337 (Fed. Cir. 2001)).

The court granted Sonoran’s motion to depose the contracting officer, because his “explanatory omissions hinder the Court’s ability to review the Air Force’s decision to take corrective action, both in SPG’s first and second protest before this Court.” Consistent with prior rulings, the court made it clear that when the Administrative Record is meaningfully lacking, the court will grant limited supplementation of the record. The other lesson learned from this decision is the importance of including all of your potential claims for relief in the complaint before the court. Sonoran’s failure to do this resulted in its inability to drill deeper into why the SBA ultimately issued its responsibility determination on SPG.

If you are a government contractor and believe you have a potential claim for the award of a contract, the experienced attorneys at the offices of Whitcomb, Selinsky Law PC are waiting to help you.  Please call (303) 534-1958 or complete an online form.

About the AuthorJoe Whitcomb

Joe Whitcomb is the founder and president of Whitcomb, Selinsky, PC (WSM). In addition, he manages the firm and heads up the Government Procurement and International Business Transactions Law sections. As a result of his military service as a U.S. Army Ranger and as a non-commissioned officer in the Air Force, he learned mission accomplishment. While serving in the Air Force, he earned his Bachelor’s in Social Sciences and a Master’s in International Relations. His Master’s emphasis was on National Security and International Political Economics. After his military career, Joe attended law school at the University of Denver Sturm College of Law.


    leave a reply