Free Order on Motion to Supplement the Administrative Record - 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 (June 25, 2007) ********************* IRONCLAD/EEI, A Joint Venture, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant, * * CAMPBELL ROOFING & * CONSTRUCTION, INC., * * MGC/CAMPBELL ROOFING & * CONSTRUCTION, INC., * * Intervenor-defendants. * ********************* ORDER On June 21, 2007, plaintiff Ironclad/EEI, A Joint Venture (Ironclad) filed Plaintiff's Motion to Supplement Administrative Record. Ironclad hopes to supplement the administrative record with documents produced by the United States on June 18, 2007. These include pre-award documents for Carothers Construction, Inc. and Ceres Environmental Services, Inc.; Solicitation Amendments 0010 and 0012; and pre-award abstracts related to SDVOB and unrestricted contracts at issue in this case. Defendant has stated that it has no objection to this request. Plaintiff also hopes to supplement the record with a June 20, 2007 affidavit from Matthew Curnutte, a partner in the Ironclad/EEI joint venture. Ironclad hopes to add all of these additional items to the record to "show

Case 1:07-cv-00280-LJB

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that the Government treated plaintiff unequally and unfairly in awarding contracts under the subject solicitation." Mot. at 1-2. It is well-settled that, when conducting a review under Rule 52.1, "this [c]ourt typically focuses on the record developed through agency proceedings, not a new record generated before the reviewing court." Metz v. United States, 61 Fed. Cl. 154, 165 (2004) (citing Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam)). 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 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)). Supplementation is considered to be appropriate (1) when agency action is not adequately explained in the record before the court; (2) when the agency failed to consider factors which are relevant to its final decision; (3) when an agency considered evidence which it failed to include in the record; (4) when a case is so complex that a court needs more evidence to enable it to understand the issues clearly; (5) in cases where evidence arising after the agency action shows whether the decision was correct or not; . . . and (8) in cases where relief is at issue, especially at the preliminary injunction stage. Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989) (stating some of the reasons why a court may permit the supplementation of an administrative record) (citations
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omitted); see Myers Investigative and Sec. Servs., Inc. v. United States, 47 Fed. Cl. 288, 294 (2000) (listing bid protest cases in which the record was supplemented according to the principles announced in Esch). Put another way, the court "may allow supplementation of the administrative record in limited circumstances where the record is insufficient for the Court to render a decision." Portfolio Disposition Mgmt. Group LLC v. United States, 64 Fed. Cl. 1, 12 (2005) (citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1338-39 (Fed. Cir. 2001)). In Al Ghanim, this court aptly explained the process of determining whether supplementation should be allowed: Because the flexibility of the court's scope of review does not give the parties carte blanche to supplement the record, "the judge should determine whether the agency action before the court is susceptible to a record review. If the answer is yes, the judge must limit review to the record." If the answer is no, a party may supplement the administrative record when necessary to prove that evidence not in the record is evidence without which the court cannot fully understand the issues. Supplementation is appropriate when the record "still has lacunae that should be filled based on the protestor's challenges." 56 Fed. Cl. at 508 (internal citations and quotations omitted) (quoting GraphicData LLC v. United States, 37 Fed. Cl. 771, 780 (1997); CCL Serv. Corp. v. United States, 48 Fed. Cl. 113, 119 (2000)). Here, Ironclad asserts that the Solicitation at issue advised offerors that "[r]egardless of how many contracts are awarded, each Offeror will be eligible for award on only one contract," and that Ironclad crafted its proposal based on that restriction. Mot. at 3. Plaintiff alleges further that this restriction was eliminated by Amendment 0012, but that Ironclad did not receive a copy of the amendment before it submitted its offer. Ironclad states that, had it received Amendment 0012, "plaintiff's price proposal would have been lower due to the decrease in cost as a result of the potential for a significantly higher volume of work that would be ordered under multiple awards." Id. Ironclad states that addition of the new documents to the record on review will aid it in proving that allegation.
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The court agrees with plaintiff that supplementation of the record with these documents is appropriate. Ironclad is correct in asserting that "[t]he Court has recognized [a] need for supplementation in cases where prejudice is at issue." Hunt Building Co. v. United States, 61 Fed. Cl. 243, 272 (2004). Each of the new documents addressed in plaintiff's motion is critical to plaintiff's attempt to show that it was prejudiced by the government's actions. Because these documents will allow the court to more fully understand the issues presented in Ironclad' protest, they should be included in the record under review. See Al Ghanim, 56 Fed. Cl. at 508. For all of the foregoing reasons, it is hereby ORDERED that Plaintiff's Motion to Supplement Administrative Record is GRANTED.

s/ Lynn J. Bush LYNN J. BUSH Judge

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