Home 
Legal Analysis Bid Protests Document battles in protests
Legal Analysis Bid Protests Document battles in protests
Document battles in protests
| Legal Analysis - Bid Protests |
RULE: The government and protesters have limited rights to add critical documents in protests. A subtle but significant battle is being waged vigorously in the pleadings of protesters and the government filed with the U.S. Court of Federal Claims (CFC). The fight focuses on what documents a judge can use to consider whether the agency’s award was proper.
Battles over documents are by no means new to any courtroom. In a typical courtroom, as long as the document is relevant to the case, the document generally comes into evidence. But the CFC is not a typical courtroom and a protest is not a typical civil case. The typical protest focuses on whether an agency made a good decision and the focus is only on the paperwork the agency used to make its decision. Congress did not want the CFC to retry the agency decisions and award contracts in the court room, so the court is simply to look at the documents the agency used to make its decision and determine whether that decision was arbitrary and capricious. The documentation the agency used is generally considered to be enough to let the judge make a good decision.But what happens if the agency documentation is silent on an issue that becomes critical? A contracting officer’s conclusion that a contractor is responsible is a good example. The contracting officer does not have to explain why a successful offeror was found to be responsible, so there’s no piece of paper to back up that conclusion. But consider what would happen if the protester proves to the judge that the winner had been previously engaged in government contract fraud and therefore should not have been found responsible. Since there is no agency paperwork dealing with the issue one way or another, how can a judge know whether the contracting officer knew about the fraud?Supplementing the administrative record is the answer to filling in the gaps in the agency’s paperwork. The administrative record that a judge reviews in a protest contains all the documents the agency used to make the decision. When additional documents are needed, a judge allows the parties to supplement the administrative record. For example, if there is serious doubt about the business integrity of the apparent winner, any judge would want to know whether the contracting officer knew about it before awarding the contract.The problem, though, is how much additional paperwork should judges allow, even if the documents would be considered relevant in any other federal courtroom? Congress told judges to limit their review of agency contract awards to the agency paperwork. But on rare occasions, judges allow the addition of important documents to the agency paperwork. Two recent decisions involving protests over “meaningful discussions” give good examples of when supplementing the administrative record is appropriate.Supplementing the administrative record proves evaluators’ intentAfter losing a Navy contract for base operating support at the Naval Academy, Academy Facilities Management filed a protest arguing, among other things, that the Navy did not carry out meaningful discussions. One example the protester gave of what it believed to be uneven discussions focused on the discussions the Navy had over the prices of both parties. When the Navy was discussing prices with the winner, the Navy used the terms “overstated” and “significantly overstated” when the winner’s prices were compared to the independent government estimate (IGE). But when the Navy was discussing the prices with the protester, the Navy referred to the prices simply as “overstated” and not “significantly overstated.” The protester believed that if it had been told that its prices were “significantly overstated” it would’ have made greater reductions in its prices and would have won the contract.In court, the government argued that the Navy had a good reason for using the phrase “significantly overstated” with the winner and not with the protester. The Navy’s evaluators were discussing unbalanced pricing. The FAR provision that deals with unbalanced pricing, FAR 15.404-1 uses the term “significantly overstated” in its discussion of unbalanced pricing. So, according to the government, the reason the phrase “significantly overstated” was used with the winner’s prices was to let the winner address the Navy’s concern of unbalanced pricing. The Navy evaluators, on the other hand, did not have unbalanced pricing concerns with the protester’s prices. So the only reason that “significantly overstated” was used by the Navy evaluators with the winner was only the winner’s prices had been evaluated as potentially being unbalanced.But how do you prove that? How do you prove that the evaluators were concerned about unbalanced pricing if there was nothing in the existing agency record showing it? One way is to supplement the administrative record by having the source selection authority for the procurement submit an affidavit to the court providing this additional information.The protester objected to the government’s attempt to supplement the record with this affidavit but did not succeed. A judge can supplement the administrative record if the additional material was needed because without it, there could be no effective judicial review of the decision. Here, the judge believed that “confirming the Navy’s intention with respect to the use of the phrase ‘significantly overstated’ was necessary to ensure meaningful and effective judicial review by the court. As the court summarized the issue: Was the Navy using the phrase for line items that exceeded the IGE by certain percentages, or was the Navy using the phrase as part of his concern for unbalanced pricing, an issue with the winner’s proposal but not with the plaintiff? The record without the affidavit does not explicitly reflect the answer to this question. Without the affidavit, the answer to the question would remain speculative.The court allowed the affidavit to be admitted evidence and supplemented the administrative record.Academy Facilities Management v. United States, U.S. Court of Federal Claims No. 09-302C, June 5, 2009. Available at http://www.uscfc.uscourts.gov/sites/default/files/HORN.ACADEMY061709.pdf.Supplementing the administrative record corrects a mistakeThe Corps of Engineers issued a solicitation for debris removal. Offerors were supposed to provide prices for items including a system for tracking debris removal. One of the unsuccessful offerors filed a protest arguing that the government had not conducted meaningful discussions over the price of that system. The ’protester argued that documents in the existing administrative record referred to a need for reopening discussions on those prices, which never occurred and which the protester thought would have helped his chances of winning the contract.The government asked the court to allow the administrative record to be supplemented with an affidavit of the contracting officer stating that there were clerical errors in the government’s evaluation materials which mistakenly referenced the need for reopening discussions because these discussions had in fact already occurred.The court allowed the record to be supplemented: “Standing uncorrected, the administrative record is erroneous and misleading. Allowing a protest to be decided upon an administrative record which does not reflect what actually transpired would perpetuate error and frustrate effective judicial review.” So the court allowed portions of a contracting officer’s affidavit on that issue.But the court refused to allow additional contracting officer statements to supplement the record. Another protester argument was that the government improperly allowed the winner to propose prices that had not been burdened with overhead and profit. The government asked the judge to allow the contracting officer to:[P]rovide his assessment of whether offerors could offer unburdened pricing. However, resolution of whether the solicitation prohibited the agency from accepting unburdened pricing does not require testimony from the contracting officer. This is a purely legal issue. [Because this is a] fixed-price procurement, the agency is not required to reject unburdened bids outright because the risk of lowball pricing is on the contractor. If a contractor elects to bed unburdened rates, that would not disqualify the proposal, it was simply set a ceiling of what the contractor could be paid under any resultant contract.Ashbritt, Inc. v. United States, U.S. Court of Federal Claims No. 08-473C, June 15, 2009. Available at http://www.uscfc.uscourts.gov/sites/default/files/WILLIAMS.ASHBRITT061509.pdf.
| < Prev | Next > |
|---|