In a bid protest, the record of the actions that the contracting agency took during the procurement is of paramount importance. Regardless of whether a protester files its challenge with the Government Accountability Office (GAO) or the Court of Federal Claims (COFC), the reviewing tribunal must base its decision on the record. Many potential protesters do not realize, however, that the contents of the record can vary (often dramatically) based on the forum in which the protester chooses to file. This post explores differences between the contents of the record in bid protests before GAO and COFC, highlighting a recent COFC decision where the more comprehensive record made all the difference.
Bid protests are functions of a complex web of statutes, regulations, rules, and case law, which prescribe, in part, exactly which documents the government must submit as part of the record. Depending on where a protester files, the record may include different documents.
At GAO, the record is referred to the documents produced as part of the Agency Report, which, by regulation, must include:
the contracting officer’s statement of the relevant facts (including a best estimate of the contract value), a memorandum of law, and a list and a copy of all relevant documents, or portions of documents, not previously produced, including, as appropriate: the bid or proposal submitted by the protester; the bid or proposal of the firm which is being considered for award, or whose bid or proposal is being protested; all evaluation documents; the solicitation, including the specifications; the abstract of bids or offers; and any other relevant documents.[1]
The underlined text above is significant because the government decides, at least in the first instance, which documents, or portions thereof, are relevant to the protest grounds. Protesters before GAO also may request that the government produce “specific” documents, and the regulations require the agency to, “at a minimum, identify whether the requested documents exist, which of the requested documents or portions thereof the agency intends to produce, which of the requested documents or portions thereof the agency intends to withhold, and the basis for not producing any of the requested documents or portions thereof.”[2]
Put differently, in protests filed with GAO, the government gets to curate the documents that are to be included in the Agency Report based on what documents it believes to be “relevant” to the protest grounds. Protesters may file an “objection to the scope of the [government’s] proposed disclosure or nondisclosure of documents.”[3] Protesters, however, don’t know what they don’t know regarding which documents might exist and what lies behind certain redactions. Further, GAO decisions regarding the scope of the record on review, i.e., the documents the government considers relevant to the protest grounds, generally are protected, leaving protesters with little to analogize to or distinguish from when engaging in a document request battle with the government.
At COFC, the record and the battle over it (or lack thereof) is quite different. In particular, COFC is required to base its review on “‘the full administrative record that was before the [government decision maker] at the time he made his decision.’”[4] COFC’s case law is quite clear: the government “does not possess the discretion” to curate the record based on what documents it believes to be relevant to the protest grounds.[5] Accordingly, in a bid protest before COFC, the rules require—and, thus, the government typically files—a complete and unredacted copy of each document that was part of the procurement. Consequently, the parties typically do not get into disputes over the contents of the record.
A recent case out of COFC,[6] highlights the differences between the records in the two different bid protest tribunals and demonstrates that a more fulsome record may be dispositive in certain cases.
Oak Grove Technologies, LLC (OGT) submitted an offer to provide training services to the United States Special Operations Command. The government, however, awarded the contract to a different firm, F3EA, Inc. (F3EA). OGT subsequently filed a bid protest with GAO, “raising numerous challenges to the Agency’s evaluation of OGT’s capability and past performance volumes and to the Agency’s decision to award a contract to F3EA.”[7] Additionally, OGT alleged that F3EA “improperly benefited from unequal access to information and biased ground rules, thus resulting in a prohibited organizational conflict of interest” (OCI).[8] In response to the initial protest, the government took corrective action; however, following a reevaluation, it again awarded the contract to F3EA. Again, OGT protested at GAO, but GAO denied the second protest.
OGT then filed a protest with COFC. COFC identified several documents that were missing from the record “because the initial administrative record referenced but did not include them.”[9] “[F]ollowing oral argument,” COFC “ordered the government to complete the administrative record with specified documents and to provide an explanation for why those documents were not included in the Agency’s initial administrative record filing.”[10] The government then filed the documents, explaining that it originally had omitted the documents because they were “not considered especially relevant or necessary to the instant protest.”[11] Subsequently, “OGT’s counsel noted that other important administrative record documents . . . inexplicably appeared to be missing from the administrative record,” and COFC “directed the government, yet again, to ensure that the filed administrative record was complete.”[12] Still later, the government “produced yet additional administrative record documents that were missing.”[13] Finally, approximately one month later, COFC “discovered that a certain source selection document that the government purported to have filed was still not in the corrected administrative record” and ordered the government to file the document promptly.[14]
In its decision sustaining the protest in part based on the documents that COFC ordered the government to file to complete the record, COFC chastised the “government’s conduct regarding the administrative record [as] simply unacceptable.”[15] Significantly, COFC held that “the government does not possess a unilateral veto over administrative record documents based on a self-serving conclusion that they are not relevant to the procurement decision under review.”[16] Speaking directly to the distinction between bid protest filed with GAO and those filed with COFC, COFC noted: “While there is a distinction between the GAO’s record production requirements and [COFC]’s Rules governing the filing of the administrative record, [COFC] is concerned that the Agency, having failed to disclose relevant facts and documents during the GAO protest, attempted to protect itself by continuing its obfuscation during this case.”[17] As a result, COFC ordered the government “to show cause why [it] should not be sanctioned for wasting [COFC]’s (and Plaintiff’s) time and resources” based on “its piecemeal and improper handling of the administrative record in this matter.”[18]
COFC’s decision in OGT is important for at least two reasons. First, the decision is a clear warning to the government that it cannot keep potentially damaging portions of the record “shrouded in secrecy” in a bid protest before COFC.[19] The rules require the government to file the full administrative record, and an attentive Judge or opposing counsel may discover attempts to conceal portions of the record. If one discovers such conduct, COFC made clear that it may impose harsh penalties. Second, the decision is a reminder to contractors that, at least for certain bid protest issues, COFC should not be a second choice. Legal battles over the contents of the record are the exception at COFC; those battles occur frequently at GAO, and frequently contractors lose those battles. Having access to the full administrative record can sometimes make all the difference and, in those cases, COFC should be the forum of choice.
For more information on bid protests before GAO and COFC, please contact Katherine Burrows and Eric Valle, the authors of this blog or a or a member of PilieroMazza’s Bid Protests Team and Government Contracts Group.
[1] 4 C.F.R. § 21.3(d) (emphasis added).
[2] Id. § 21.3(c).
[3] Id. A protester also may also file a supplemental request for relevant documents if it raises a supplemental protest ground during the litigation.
[4] East West, Inc. v. United States, 100 Fed. Cl. 53, 56 (2011) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971)) (emphasis added).
[5] Id.
[6] Oak Grove Techs., LLC v. United States, No. 21-775C, 2021 WL 3627111 (Fed. Cl. Aug. 2, 2021).
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id. (emphasis in original).
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
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