Last week, the Court of Federal Claims issued a decision highlighting – and further widening – the gap between the limited agency record typically available to protesters at the Government Accountability Office (“GAO”) and the much more fulsome record available at the Court. In Trace Systems Inc. v. U.S., the Court signaled its increasing willingness to scrutinize the adequacy of the record produced, rather than simply accept Government representations of completeness.
Trace Systems considered a challenge to the cancellation of a competitive procurement in favor of a sole-source award by the Defense Information Systems Agency (“DISA”). After the Government filed an administrative record containing nearly 23,000 pages of documents purportedly detailing the cancellation decision, the protester objected and sought the production of additional documents, claiming only six of the originally produced documents were relevant. The Court ordered DISA to complete the record, and the Government produced additional documents. DISA explained, however, that it was withholding other records that were “internal, predecisional, and deliberative agency documents.” The protester again objected and asked the Court to compel the Government to file all relevant documents. In response, the Government represented that, beyond the pre-decisional documents it had withheld, the record was now complete.
The Court questioned that representation after reviewing the small number of relevant documents produced. The Court noted various references in DISA’s four-page cancellation memorandum to underlying materials not included in the record, such as recommendations by other agency branches and market research. The Court also noted that the sole-source Justification and Authorization (“J&A”) was unsigned, depriving the Court of the ability to determine whether DISA’s cancellation decision was properly authorized.
Rejecting the Government’s assertion that it was permitted to withhold certain documents because they were either “pre-decisional or deliberative documents,” the Court explained that the proper course would have been to assert a privilege over those materials and submit a privilege log to potentially allow the Court to assess the propriety of the asserted privilege. The Court also emphasized that agencies may not “skew the record” in their favor by excluding relevant documents; rather, the record should include “all documents and materials directly or indirectly considered by agency decision-makers, including evidence contrary to the agency’s position.” Accordingly, the Court instructed the Government to reexamine any available materials and confirm whether the record was complete. Without prejudging the issue or deciding definitively that there were missing documents, the Court further noted that a lack of additional documentation might call into question the sufficiency of the justification for DISA’s cancellation decision.
Taken together with the Court’s recent decision in Oak Grove Technologies, Inc. v. U.S., 156 Fed. Cl. 594 (2021), appeal filed (Mar. 22, 2022), in which the Court sanctioned the Government for “its piecemeal and improper handling of the administrative record,” it is clear that the Court will take an active role when necessary to ensure protesters receive a complete administrative record in bid protest proceedings.
For further information, please contact:
Anuj Vohra, Partner, Crowell & Moring
avohra@crowell.com
