Free Order on Motion to Strike - District Court of Federal Claims - federal

Case 1:07-cv-00280-LJB

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In the United States Court of Federal Claims
No. 07-280 C (August 7, 2007) ********************* IRONCLAD/EEI, A Joint Venture, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant, * * CAMPBELL ROOFING & * CONSTRUCTION, INC., * * MGC/CAMPBELL ROOFING & * CONSTRUCTION, INC., * * CROWN ROOFING SERVICES, * INC., and * * R.L. CAMPBELL ROOFING * COMPANY, INC. * * Intervenor-defendants. * ********************* ORDER On August 2, 2007, plaintiff Ironclad/EEI, A Joint Venture (plaintiff, Ironclad) filed Plaintiff's Response to Defendant's and Intervenors' Motions to Dismiss and Motions for Judgment on the Administrative Record, and Plaintiff's Cross-Motion for Leave to Supplement the Administrative Record. This is the second motion to supplement the administrative record filed by Ironclad during the

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course of this bid protest.1 The request comes more than two months after the administrative record in this suit was filed by the government. In its motion, plaintiff asks the court to add more than 500 pages of new documents to the administrative record. According to Ironclad, these records are comprised of (1) publicly available documents supporting plaintiff's claim that defendant unfairly and unequally applied the law and RFP regarding size limitation to the detriment of plaintiff; (2) bid protest letters from plaintiff to the SBA and Contracting Officer regarding the subject procurement; and (3) an affidavit of Dan Eastman of Ironclad/EEI. Pl.'s Mot. at 3 (internal citations to attached exhibit omitted). Plaintiff argues that "these documents will assist the [c]ourt as they show that the Government treated plaintiff unequally and unfairly in awarding contracts under the subject RFP." Id. at 3-4. The United States (defendant, United States) and intervenor-defendants Crown Roofing Services, Inc. and R.L. Campbell Roofing Company, Inc. (intervenor-defendants) (collectively, defendants) filed oppositions to Ironclad's motion on August 6, 2007. See Defendant's Motion to Strike Portion of Plaintiff's Reply Brief Relating to Amending the Administrative Record; Intervenors' Opposition to Plaintiff's Second Motion for Leave to Supplement the Administrative Record and Motion to Strike Plaintiff's Response to Motions to Dismiss. Defendants contend that supplementation of the administrative record in this instance is inappropriate for a number of reasons. The United States argues first that plaintiff's request is untimely, given that each of the defendants has already filed a cross-motion for judgment on the existing administrative record. Def.'s Mot. at 2. In defendant's view, Ironclad's request is especially troubling because plaintiff has already had one opportunity to
/ Ironclad first moved to supplement the administrative record on June 21, 2007, almost one full month after the record was filed by the government. The court granted that request on June 25, 2007. 2
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add to the record on review. Id. Next, defendants contend that the records proffered by Ironclad should not be included in the record because they were not before the contracting officer at any time during the course of this procurement, nor were they considered by the agency in making the award decisions under review.2 See id. at 4. This contention is directed principally at Ironclad's request to add documents related to the size status of several contract awardees. As explained by intervenor-defendants, "these proposed materials were not considered by agency decision makers because they are altogether unrelated to the decision making process that was carried out prior to the proper award of the contracts in question. These materials are not a part of the Administrative Record in this matter, they shed no light on the decision-making process at issue, and they should not be considered by this court." Int.'s Opp. at 5 (internal quotations omitted). Finally, the United States points out that the majority of the documents proffered by Ironclad relate to the section 8(a) awards issued under the challenged procurement. Defendant insists that plaintiff is not an interested party with respect to the section 8(a) awards, and therefore, that documents related to those awards are irrelevant to its protest. It is well-settled that, when reviewing a motion for judgment on the administrative record filed under Rule 52.1 of the Rules of the United States Court of Federal Claims, the court typically focuses on "`the administrative record already in existence, not some new record made initially in the reviewing court.'" Advanced Sys. Dev. Corp. v. United States, 72 Fed. Cl. 25, 33 (2006) (quoting Comprehensive Health Serv., Inc. v. United States, 70 Fed. Cl. 700, 719 (2006)). However, it is critical to recognize that, in bid protest actions such as this one, " the `administrative record is a fiction.'" Al Ghanim Combined Group Co. Gen. Trad. & Cont. W.L.L. v. United States, 56 Fed. Cl. 502, 508 (2003) (quoting CCL Serv. Corp. v. United States, 48 Fed. Cl. 113, 118 (2000)). Indeed, the administrative record is not a documentary record maintained contemporaneously with the events or actions included in it. Rather, the administrative record is a

/ Defendant excepts one document, the May 30, 2006 letter found at pages 2258-2259 of Exhibit 1, from this assertion. The United States apparently concedes that this letter was, in fact, before the contracting officer in advance of the decision under review. See Def.'s Mot. at 4. Supplementation of the record with this letter is discussed infra. 3

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convenient vehicle for bringing the decision of an administrative body before a reviewing agency or a court. Id. (internal quotations omitted) (quoting Tech Systems, Inc. v. United States, 50 Fed. Cl. 216, 222 (2001)). "Accordingly, the Court of Federal Claims does not `apply an iron-clad rule automatically limiting its review to the administrative record.'" Id. (quoting GraphicData, LLC v. United States, 37 Fed. Cl. 771, 779 (1997)). Indeed, as evidenced by the court's ruling on Ironclad's first motion to supplement the administrative record, supplementation is permissible in the bid protest context under certain circumstances. Emerald Coast Finest Produce Co. v. United States, 76 Fed. Cl. 445, 448 (2007). Supplementation of the administrative record has been deemed appropriate where the record is insufficient for the court to render a decision. Id. (citing Impresa Construzioni Geom. Domenico Garufi v.United States, 238 F.3d 1324, 1338 (Fed. Cir. 2001) (in turn stating that supplementation is appropriate when it is "required for meaningful judicial review"); Portfolio Disposition Mgmt. Group, LLC v. United States, 64 Fed. Cl. 1, 12 (2005) (in turn stating that "[w]e may allow supplementation of the administrative record in limited circumstances where the record is insufficient for the [c]ourt to render a decision")). The court will allow supplementation, for example, when it serves to fill gaps concerning the factors the contracting officer considered in reaching his or her decision. See Impresa, 238 F.3d at 1338-39 (ordering supplementation of record with contracting officer's deposition testimony). Supplementation has also been permitted in cases in which the supplementary evidence presented is "evidence without which the court cannot fully understand the issues." Al Ghanim, 56 Fed. Cl. at 508; Emerald Coast, 76 Fed. Cl. at 448. In all cases, the question of whether to grant a particular motion to supplement the record is committed to the reasonable discretion of the trial court. See Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1358 (Fed. Cir. 2004). Here, in light of the above standards, the court must agree with defendants that the supplementation of the administrative record to the extent proposed by Ironclad is not appropriate. The first set of documents proffered by plaintiff focuses on the size and contract eligibility of other awardees under the subject procurement. Ironclad hopes to present these documents in an effort to demonstrate that several of the companies which were awarded small business setaside contracts did not qualify as small businesses under the terms of the relevant
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solicitation. Id. at 4. As defendants point out, however, there is no evidence that those documents were considered by the Army Corps of Engineers when it made the award decisions now under review. Indeed, while these documents may have been relevant to any determinations to be made by the Small Business Administration (SBA) with regard to individual awardees, they do not appear to be related to the agency's own contacts with those companies. This is particularly so in view of the fact that it is the exclusive province of the SBA, not the contracting agency, to render decisions on size status issues. Thus, the court agrees with defendants that the documents shed no light on the agency's decision-making process. See Impresa, 238 F.3d at 1338-39. The documents likewise do not serve to explain any complexities inherent in the procurement itself. Al Ghanim, 56 Fed. Cl. at 508. Further, and perhaps more importantly, while plaintiff asserts that this information was publicly available and thus easily accessible to the government during the course of the procurement, Ironclad has provided no support for its implicit assertion that the agency's procurement contracting officer viewed the documents or must be charged with knowledge of their contents. See Pl.'s Mot. at 7. Put simply, the purpose of this bid protest review is, at bottom, to determine whether the contracting officer's decisions were arbitrary and capricious, an abuse of discretion, or otherwise contrary to law. 5 U.S.C. § 706(2)(A) (2000). A review of documents extraneous to the contracting officer's decision-making process will do nothing to inform that review. For these reasons, the court declines to supplement the administrative record with documents related to the allegedly improper size status of other awardees. Plaintiff has also moved to supplement the record with documents which purport to show that Ironclad exhausted its administrative remedies regarding its challenge to several awardees' size status. Pl.'s Mot. at 5. In particular, Ironclad proffers a letter written by Daniel Eastman, an Ironclad partner, on May 30, 2006. That letter memorializes Mr. Eastman's request that the Army Corps of Engineers forward to the SBA a size challenge regarding the status of two contract awardees. In the court's view, this document may in fact be probative on the issue of whether Ironclad complied with relevant administrative procedures in pursuing its claims. Further, defendant concedes that the letter was in the possession of the agency during the course of the procurement. See Def.'s Mot. at 4. The motion to supplement the administrative record with the May 30, 2006 letter is therefore granted.
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Also in this category, plaintiff presents a letter and attached documents which memorialize an SBA appeal filed by Ironclad regarding its own size status. Each of these items of evidence relate to plaintiff's contract eligibility, an issue which is not directly relevant to the current dispute. Moreover, these documents basically purport to present information for use by the SBA rather than the agency, and as such, are similar to the records rejected in an earlier section of this Order. These additional documents will not, therefore, be added to the record. Last, plaintiff hopes to supplement the record with an affidavit from Mr. Eastman. That affidavit, which is based on Mr. Eastman's "information and belief," recounts a conversation between Mr. Eastman and the chairperson of the agency's Source Selection Evaluation Board. Ironclad contends that the affidavit supports its claim that the agency "committed violations of law and/or the RFP when it relied upon self-certifications regarding size from offerors when it possessed contradictory information." Pl.'s Mot. at 6. According to Ironclad, "Mr. Eastman's Affidavit provides the [c]ourt with admissible evidence that the Contracting Officer knew of [one awardee's] illegal affiliations which contradicted the self-certifications," and thus rendered it a large business which was not eligible for a set-aside award. Id. In the court's view, Mr. Eastman's affidavit, and Ironclad's argument based upon it, are presented to support plaintiff's allegation that it was prejudiced by the agency's actions. It is clear that the court may permit supplementation of the record, in its reasoned discretion, in cases in which prejudice is at issue. See Hunt Building Co. v. United States, 61 Fed. Cl. 243, 272 (2004). Because the affidavit may be probative on the issue of prejudice, the court finds that supplementation of the record with the affidavit is appropriate, in order to afford plaintiff every opportunity to present its case. Finally, intervenor-defendants have filed a motion to strike Ironclad's response to the cross-motions for judgment on the administrative record. This request is based on the fact that plaintiff's response brief does not comply with the page number limitations included in this court's rules. The court finds that, in this instance, the remedy proposed by intervenor-defendants would be unduly harsh. The motion to strike plaintiff's response brief is therefore denied. Despite the lateness of plaintiff's supplementation, which has sorely tested the court's patience, none of the filing deadlines established by the scheduling
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order in effect in this case shall be extended as a result of this Order since defendants have adequate time to respond. Defendant and intervenor-defendants shall file replies on or before August 13, 2007. Accordingly, it is hereby ORDERED that (1) Plaintiff's Cross-Motion for Leave to Supplement the Administrative Record, filed August 2, 2007, is GRANTED in part and DENIED in part. The motion is granted insofar as it relates to the May 30, 2007 letter written by Mr. Dan Eastman to the contracting officer, found at pages 2258-2259 of Exhibit 1 to plaintiff's motion and the affidavit of Mr. Dan Eastman, found at pages 2631-2632 of Exhibit 1 to plaintiff's motion. The motion is denied as it related to all other documents included in Exhibit 1 to plaintiff's motion; Defendant's Motion to Strike Portion of Plaintiff's Reply Brief Relating to Amending the Administrative Record, filed, August 6, 2007, is GRANTED in part and DENIED in part, in accordance with the terms of this Order; Intervenors' Motion to Strike Plaintiff's Response to Motions to Dismiss, filed August 6, 2007, is DENIED; and Defendant and intervenor-defendants shall FILE Replies on or before August 13, 2007.

(2)

(3)

(4)

s/ Lynn J. Bush LYNN J. BUSH Judge

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