Decision released: Court of Federal Claims Protest of USAF IT Services requirement

File No. 24-1009

Background

On January 2, 2024, the General Services Administration (“GSA”) awarded a contract under Request for Quote No. 47QFLA23Q0116 (the “Solicitation”) to CSI for the provision of information technology services to the United States Air Force.

On July 1, 2024, CSI filed the instant bid protest challenging certain decisions of GSA in relation to the procurement.  See generally id.  CSI alleged that: (1) GSA’s decision to take corrective action in response to a post-award bid protest filed by the incumbent at the Government Accountability Office (“GAO”) and subsequent decision to cancel the award to CSI and issue a revised solicitation was arbitrary and capricious, and (2) GSA’s extension of the incumbent contract on a sole-source basis was improper and unlawful.  See id. ¶¶ 1–15.  At the initial status conference held on July 9, 2024, the parties discussed the potential exchange of relevant procurement documents prior to the Government filing the Administrative Record.  In a July 16, 2024, Joint Status Report, the Government explained that it would include in the Administrative Record a June 25, 2024, memorandum entitled “Determination & Findings Termination for Convenience and Re-Solicitation” (“D&F Memo”) providing GSA’s explanation for canceling the original solicitation and award to CSI.  Joint Status Report at 1, ECF No. 17.  The Government indicated it would not produce certain other documents related to the contract termination or re-solicitation because GSA is still finalizing a new solicitation and because such pre-decisional documents were developed during the deliberative process and are thus privileged …

Discussion

In a bid protest action, the Court “review[s] the agency’s decision pursuant to the standards set forth in section 706” of the Administrative Procedure Act (“APA”).  28 U.S.C. § 1491(b)(4); see Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004).  Under such standard, the Court’s task is “to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents” to the Court.  Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379–80 (Fed. Cir. 2009) (emphasis in original) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743–44 (1985)).  As the United States Court of Appeals for the Federal Circuit has explained, “[t]he purpose of limiting review to the record actually before the agency is to guard against courts using new evidence to ‘convert the “arbitrary and capricious” standard into effectively de novo review.’”  Id. at 1380 (quoting Murakami v. United States, 46 Fed. Cl. 731, 735 (2000), aff’d, 398 F.3d 1342 (Fed. Cir. 2005)).

In certain instances, a plaintiff may allege that the record filed by the Government is incomplete or that the Court should supplement the record with extra-record evidence.  Different standards govern motions to complete and to supplement the administrative record.  See ELB Servs., LLC v. United States, 172 Fed. Cl. 233, 241 (2024).  Because the Government’s “designation of an administrative record is entitled to a presumption of completeness,” plaintiffs must provide “clear evidence” that the record lacks information “that was generated …

Decision

Plaintiff CAN Softtech, Inc. (“CSI”) seeks an order requiring the Government to complete the Administrative Record with additional evidence CSI believes the Government improperly withheld.  CSI also seeks to compel public disclosure of a key document included in the sealed Administrative Record.  For the reasons that follow, the Court GRANTS IN PART, DEFERS IN PART, and DENIES IN PART CSI’s Motion to Complete and/or Supplement the Administrative Record and Motion to Compel Redacted Document (ECF No. 18).

Read the decision here.

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