ACROW CORPORATION OF AMERICA v. USA

Filing 50

PUBLISHED OPINION AND ORDER - Vacating the Orders entered on Nov. 5 and 12, 2010, and granting plaintiff's motion to alter/amend to the extent indicated in this Order. Granting in part and denying in part plaintiff's 45 Motion to Supplement the Administrative Record. Signed by Judge Christine O.C. Miller. (smg)

ACROW CORPORATION OF AMERICA v. USA

Doc. 50

In the United States Court of Federal Claims
N o . 10-682C (F ile d December 17, 2010) *************************** * A C R O W CORPORATION OF AMERICA, * * Plaintiff, * * v. * * THE UNITED STATES, * * D e f e n d a n t, * * and * * M A B E Y BRIDGE & SHORE, INC., * * D e f e n d a n t-In te rv e n o r. * * ***************************

P o st-a w a rd bid protest, 28 U.S.C. § 1491(b)(1) (2006); supplementa tio n of administrative record w ith documents that protester c o n te n d s contracting officer s h o u ld have considered in m a k in g responsibility determinatio n ; inclusion of Government A c c o u n ta b ility Office decision a n d record before the GAO in th e administrative record, 31 U .S .C . § 3556 (2006); RCFC A p p . C ¶¶ VII. 22(u), 23.

T h o m a s A. Coulter, Richmond, VA, for plaintiff. Nicole Hardin Brakstad, LeClair R ya n , P.C., of counsel. L a rte a s e M. Tiffith, Washington, DC, with whom was Assistant Attorney General T o n y West, for defendant. Debra J. Talley, Associate Command Counsel, Army Materiel C o m m a n d , Redstone Arsenal, AL, of counsel. E liz a b e th W. Newsom, Washington, DC, for defendant-intervenor. B o d e n h e im e r and Puja Satiani, Crowell & Moring, LLP, of counsel. David Z.

F I N A L ORDER AND MEMORANDUM OPINION ON SUPPLEMENTATION OF THE ADMINISTRATIVE RECORD 1/

1 / The court previously entered speaking orders under seal on November 5, 2010, and N o v e m b e r 12, 2010, addressing the same subject matter and affording the parties an o p p o rtu n ity to submit proposed redactions. Because none were requested, this order is issued w ith o u t restriction as it does not address any new subject matter not identified in the prior o rd e rs.

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MILLER, Judge. T h e parties to a post-award bid protest filed under 28 U.S.C. § 1491(b)(1) (2006), h a v e disputed the contents of the administrative record that properly is before the court. Their disputes concern documents, including affidavits and declarations, not the fruits of d e p o s itio n s or testimony taken in aid of a bid protest. Similar issues have spawned many o p in io n s by the United States Court of Federal Claims. The rules of engagement should be s im p le , but they are not for two reasons. First, 31 U.S.C. § 3556 (2006), requires that on a b id protest to the Court of Federal Claims a decision of the Office of Government A c c o u n ta b ility (the "GAO") "shall be considered to be part of the agency record subject to re v ie w ." Id. Second, the Rules of the United States Court of Federal Claims contemplate th a t "the record" before the GAO is filed as a "core document[]" relevant to a protest. See R C F C , App. C, ¶¶ 22(u), 23. 2/ None of these three provisions expands or restricts the type o f documents that a protestor, awardee or putative awardee, or the Government can bring b e f o re the court: 1) documents that the contracting officer considered in reaching his d e c is io n ; 2) documents existing at the time of the decision that the contracting officer, given th e matters that he addressed, should have considered in reaching his decision; and 3) d o c u m e n ts referring to facts existing at the time of the contracting officer's decision that s h o w that the contracting officer's decision was biased, tainted, or affected by a conflict of in te re s t. The documents that properly supplement the administrative record are those that fall in to categories 1 and 2.

2 / RCFC App. C, ¶ 22 reads: E a rly production of relevant core documents may expedite final re s o lu tio n of the case. The core documents relevant to a protest case may in c lu d e , as appropriate, .... (u ) the record of any previous administrative or judicial p ro c e e d in g s relating to the procurement, including the record of a n y other protest of the procurement. RCFC App. C, ¶ 22(u). RCFC App. C, ¶ 23 states, in pertinent part: "[T]he court expects th e United States to produce the core documents and the remainder of the administrative re c o rd as promptly as circumstances will permit." 2

Some documents properly "supplement" the administrative record where necessary to ensure meaningful judicial review because they were before the contracting officer, but h e failed to consider them, or because documents that the contracting officer did consider w e re not included in the agency record due to error or oversight. Other documents that p ro p e rly "supplement" the administrative record are considered during the protest as d o c u m e n ts that supply important information that, typically, fills gaps in the record and is re q u ire d for meaningful judicial review. Some documents may not qualify as s u p p le m e n ta tio n in that they "do not clarify any matter that was or was not considered at the a g e n c y level, as they do not represent information that should have been considered, was c o n s id e re d , was insufficiently considered, or was considered incorrectly." Blue & Gold F le e t, LP v. United States, 70 Fed. Cl. 487, 494 & n.9 (2006), aff'd, 492 F.3d 1308 (Fed. Cir. 2 0 0 7 ). T h e peripheral motions practice concerning supplementation, with its attendant b u rd e n s , costs, and delays (and demonstrable likelihood that rulings issue on documents that s h o u ld not be considered and will not be considered), could be curtailed if the decisional law u n if o rm ly recognized 1) that a party to a bid protest in the Court of Federal Claims properly m a y rely on documents that satisfy any one or more of the three criteria listed above; and 2) th e arguments concerning what documents properly may be considered in connection with t h e bid protest are reserved for resolution with the merits of the motion for preliminary in ju n c tio n or motion for judgment on the administrative record (ruling on the complaint for p e rm a n e n t injunction). The court then would be in a more informed position to understand e x a c tly what role the documents should have played in the challenged procurement decision. Such is the case in the instant matter--as more documents trickled into the court record, the c o u rt was better able to understand what documents actually were in the administrative re c o rd before the contracting officer at the time of her decision. On December 3, 2010, plaintiff filed Plaintiff's Second Motion To Supplement the A d m in is tra tiv e Record and Motion To Clarify or Alter/Amend the Court's Order on S u p p le m e n ta tio n and Memorandum in Support. On December 9, 2010, the court entered an o rd e r that it would rule on the motion without further briefing on the parties' cross-motions f o r judgment on the administrative record. The court's previous speaking orders, entered on N o v e m b e r 5 and 12, 2010, insofar as they address the same subject matter 3/ have been

3 / The November 5, 2010 order ruled on Defendant's Motion To Strike Complaint E x h ib it Nos. 8, 9, 10, 11, 14, 21 and 22 filed on October 23, 2010, and Plaintiff's Response to Government's Motion To Strike Complaint Exhibit Nos. 8, 9, 10, 11, 14, 21, and 22/ Motion To Supplement the Administrative Record and Memorandum in Support filed on O c to b e r 27, 2010. The November 12, 2010 order ruled on Defendant's Motion for Leave 3

incorporated in this order, and the court vacates the former orders and enters this order in c o rp o ra tin g and clarifying them, nunc pro tunc, in order to advance the interests of c o h e re n t jurisprudence. This order enters on the same date as the court's opinion on the c ro s s -m o tio n s , which is based on the record developed by the parties' briefs on the merits. That opinion more particularly discusses the materiality of the disputed documents. FACTS T h e following facts represent that state of the record as of November 12, 2010, the d a te on which briefing was completed on the parties' respective motions regarding s u p p le m e n ta tio n of the administrative record and on which the court entered its second order o n supplementation. The facts relating to plaintiff's December 3, 2010 pending motion to s u p p le m e n t are not restricted to that time frame. The findings herein do not represent f in d in g s of fact on the merits of plaintiff's protest. Plaintiff protests the award of Solicitation No. W56HZV-09-R-0480 (the " S o lic ita tio n " ) to defendant-intervenor Mabey Bridge & Shore, Inc. ("MBSI"), on the ground th a t the United States Army TACOM Life Cycle Management Command ("TACOM") im p ro p e rly determined that MBSI was a responsible offeror. The Solicitation included a f irm , fixed-price five-year requirements contract, with two one-year options, to build a Line o f Communication Bridge ("LOCB") system that transports ground forces in the U.S. Army a c ro s s dry and wet "gaps." Admin. Rec. ("AR") filed Oct. 19, 2010, at 49. LOCB systems " e n s u re support forces are able to move freely and without delay throughout a given theater o f operation." Compl. filed Oct. 8, 2010, ¶ 14. The Solicitation articulated the method of determining which proposal provided the " b e s t value," stating, in relevant part: [ T ]h e Government will evaluate the following factors: Experience, Price, T e c h n ic a l and Small Business Participation. Experience is equal in importance to Price. Price is more important than Technical. Technical is more important th a n Small Business Participation. The non-price factors when combined are m o re important than Price. ....

3/ (Cont'd from page 3.) T o File Missing Portions of Administrative Record filed on November 3, 2010. 4

(a)

[ T h e Government will] award a contract to the offeror that:

(1 ) . . . provides the best value to the Government if factors in a d d itio n to price are identified elsewhere in this solicitation, and .... (3) meets all the responsibility criteria at FAR 9.104. A R at 161-62. The responsibility determination mandated: "Per FAR 9.103, contracts will b e placed only with the Contractors that the Contracting Officer determines to be responsible. Prospective Offerors . . . must be able to demonstrate that they meet standards of re s p o n s ib ility set forth in FAR 9.104." AR at 161. 48 C.F.R. (FAR) § 9.104-1 (2010), lists s e v e n aspects of "responsibility" that a contracting officer should consider in coming to a re s p o n s ib ility determination, among which is the requirement that "a prospective contractor m u s t . . . (d) [h]ave a satisfactory record of integrity and business ethics (for example, see S u b p a rt 42.15)." Id. T A C O M notified plaintiff of the Solicitation on December 2, 2009, and plaintiff s u b m itte d its proposal on January 18, 2010. MBSI, plaintiff's competitor in the bridge s u p p ly industry, was the only other offeror to submit a proposal. MBSI is related to a nowd e f u n c t company, Mabey & Johnson Ltd. ("M&J") in that MBSI and M&J are divisions of M a b e y Holdings Ltd., and are part of the Mabey Group of companies based in the United K in g d o m . In 2009 MBSI's subcontractor, Mabey Bridge Ltd. ("MBL") purchased M&J's a s s e ts and contracts. MBL is not only an affiliate, but is also MBSI's prospective m a n u f a c tu re r and subcontractor under MBSI's proposal. M & J had been the source of recent international controversy. The contracting o f f ic e r's letter to MBSI dated March 17, 2010, explained that during her evaluation of the p ro p o s a ls she became aware that M&J had pleaded guilty in the United Kingdom in 2009 to c o rru p tio n offenses and was sentenced on September 25, 2009, for "corrupt practices in o v e rs e a s contracts between 1993 and 2001 and also for breaching a United Nations embargo o n trade with Iraq during 2001-2002." AR at 575. The contracting officer informed MBSI th a t she would be making a responsibility determination with regard to both MBSI and MBL a n d sought an explanation from MBSI as to how the charges against M&J would impact her re s p o n s ib ility determination. AR at 576. M B S I's response dated March 26, 2010, addressed these concerns, stating, "MBSI has a 21 [sic] year history in the USA of integrity and highest standards of business ethics 5

unblemished by any suggestion of impropriety." AR at 582. MBSI did disclose that the c h a irm a n of MBSI from 1989 to 2008, Charles Forsyth, was the managing director of M&J a n d "was involved in the wrongdoing [with] M&J." AR at 583. MBSI asserted, however, th a t, "Mr. Forsyth was not involved in the day-to-day running of MBSI, and no allegations h a v e been made which would suggest that any of Mr. Forsyth's activities at M&J affected M B S I. Neither MBSI nor any of its current officers and directors has ever been charged with a n y illegal activity." Id. The letter did not mention that a draft counterclaim circulated in re la te d civil litigation in the United Kingdom, which led to the Serious Fraud Office's (the " S F O " ) formal charges against M&J, named MBSI and its recent president and director, G e o f f re y W. Booth, as potentially involved in bribery schemes. See Compl. Ex. 10, at 20. M B L responded in a separate letter dated March 26, 2010, in which MBL "[wrote] to provide evidence to support a conclusion that [MBL] meets the General Standard outlined in FAR 9.104-1(d)." AR at 584. The letter outlined that, "[i]n early 2008 in the course of H ig h Court proceedings in the UK by [M&J] against an ex-employee, the ex-employee made a lle g a tio n s that corrupt payments had been made by [M&J]." AR at 585. TACOM notified plaintiff via e-mail on June 8, 2010, that the award would go to M B S I. At the June 16, 2010 oral debriefing requested by plaintiff, TACOM reported: "As p a rt of the responsibility determination process, particular attention was placed on the in te g rity and business ethics portion of the standards," especially with regard to the M&J f ra u d litigation. AR at 3349. However, plaintiff and MBSI were rated equivalently in each o f the subject areas evaluated under the Solicitation except in price--plaintiff had submitted a proposal to complete the project for $134 million and MBSI's bid was for $109 million. AR at 3324. MBSI ultimately received the award because "[b]oth offerors are essentially e q u a l in Experience, Technical, and Small Business Participation, but the MBSI proposal is s ig n if ic a n tly lower in Total Evaluated Price than that of Acrow. . . . The MBSI proposal is re a s o n a b le , realistic and affordable; and MBSI has been determined to be a responsible c o n tra c to r." AR at 3365 (Memorandum of Source Selection Decision, dated June 8, 2010). In her Memorandum for Record (the contracting officer's responsibility d e te rm in a tio n ) dated June 8, 2010, the date of the award, the contracting officer discussed h e r reasons for determining that MBSI and MBL had "satisfactory records of integrity and b u s in e s s ethics." AR at 545. The contracting officer noted that M&J undertook a "detailed in v e s tig a tio n upon an allegation made by an ex-employee that the company had made corrupt p a ym e n ts ." AR at 546. After disclosing the matter to the SFO, M&J had pleaded guilty to c h a rg e s of corrupt practices that led to contracts valued at $100 million between 1993 and 2 0 0 1 and for violating a United Nations 2001-2002 embargo on trade with Iraq; the c o m p a n y was ordered to pay $10 million in fines. AR at 545-46. The contracting officer's re s p o n s ib ility determination stated that her "extensive internet research did not identify any 6

incidents, other than the two previously mentioned, that [she] needed to consider." AR at 5 4 5 . She noted that "MBSI was never a party to and has never been alleged to be a party to th e events that led to the prosecution of M&J" and that "MBSI has a 21 [sic] year u n b le m is h e d record in the USA of integrity and high ethical standards." AR at 546. The c o n tra c tin g officer's Memorandum for Record did not mention allegations implicating MBSI o r MBSI's Mr. Booth. P la in tif f protested the award before the GAO, but ultimately was unsuccessful. The G A O determined that "[t]he record . . . shows . . . that the contracting officer was aware of, a n d considered, available information concerning M&J's 2009 conviction for corrupt p ra c tic e s and MBSI's and MBL's relationship to M&J." Compl. Ex. 23, at 5. On October 8 , 2010, plaintiff filed the pending protest before the United States Court of Federal Claims. DISCUSSION 1 . Plaintiff's challenge to the award P la in tif f protests the award on the ground that the contracting officer did not consider a ll relevant facts in making her determination that MBSI and MBL were responsible c o n tra c to rs within the meaning of FAR 9.104-1. Specifically, plaintiff asserts that the c o n tra c tin g officer failed to appreciate fully the scope of M&J and its affiliates' corruption, a n d charges MBSI directly with that corruption. The SFO's investigation focused on bribery a lle g a tio n s in Jamaica and Ghana, but M&J's corruption expanded to many countries, in c lu d in g the Phillippines; Papau, New Guinea; Costa Rica; Panama; and the Dominican R e p u b lic . Further, plaintiff asserts that MBSI was involved directly in bribery activities, as r e c o u n t e d in a proposed counterclaim that was forwarded to counsel for M&J in related litig a tio n in the United Kingdom by former employee Jonathan Danos and in direct c o n tra d ic tio n to statements made by MBSI. P la in tif f maintains that the contracting officer did not consider or appreciate fully that " M B S I was engaged in a series of corporate espionage efforts to try to obtain information f ro m plaintiff for use in the procurement at issue," by covertly dispatching an employee to p la in tif f 's warehouse and by chartering a plane to fly over plaintiff's facility where plaintiff c o n d u c te d field tests. According to plaintiff, the contracting officer's search failed to bring to light relevant information regarding these incidents and charges her with a duty to query h e r colleagues of their knowledge and opinions before making her decision.

7

2. Standard for supplementation of the administrative record T h e Court of Federal Claims has long held that, "[b]ecause a court reviews an agency d e c i s io n under the `arbitrary and capricious' standard set forth in 5 U.S.C. § 706(2)(A), ju d ic ia l review of agency actions generally is limited to the administrative record." Lion R a is in s , Inc. v. United States, 51 Fed. Cl. 238, 244 (2001); see also Camp v. Pitts, 411 U.S. 1 3 8 , 142 (1973) ("[T]he focal point for judicial review should be the administrative record a lre a d y in existence, not some new record made initially in the reviewing court."). 5 U.S.C. § 706(2)(A)(2006), provides that: "The reviewing court shall . . . hold unlawful and set aside a g e n c y action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of d i s c r e ti o n , or otherwise not in accordance with law . . . .". The United States Court of A p p e a ls for the Federal Circuit reaffirmed this rule in its most recent decision on the issue o f supplementing the agency record, Axiom Resource Management, Inc. v. United States, 5 6 4 F.3d 1374, 1379 (Fed. Cir. 2009) ("`The task of the reviewing court is to apply the a p p ro p ria te APA standard of review, 5 U.S.C. § 706, to the agency decision based on the re c o rd the agency presents to the reviewing court.'" (emphasis omitted) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985))). The Federal Circuit emphasized in A x io m that the "focus of judicial review of agency action remains the administrative record, w h ic h should be supplemented only if the existing record is insufficient to permit meaningful re v ie w consistent with the APA." Id. at 1381. In Axiom the Federal Circuit reversed a judgment enjoining the Government from e x e rc isin g its option to renew a contract and held that the trial court had abused its discretion b y failing to determine that supplementation was necessary before allowing the protestor to s u p p le m e n t the record. Id. On appeal defendant contended that the trial court erred by allo w in g the protestor to supplement the record with extra-record documents (legal pleadings b e f o re the GAO and declarations by Axiom employees and consultants) and then by e x te n s iv e ly relying on those documents to support its decision. Id. at 1379. As discussed by th is court in Totolo/King v. United States, 87 Fed. Cl. 680, 692-93 (2009), appeal docketed, N o . 2010-5037 (Fed. Cir. Jan. 7, 2010), the Federal Circuit decoupled this "meaningful re v ie w " standard, Axiom, 564 F.3d at 1381, from the eight exceptions to the rule restricting re v ie w to the record submitted by the agency that are set forth in Esch v. Yeutter, 876 F.2d 9 7 6 , 991 (D.C. Cir. 1989): "[I]nsofar as Esch [sic] departs from fundamental principles of a d m in is tra t i v e law as articulated by the Supreme Court in Pitts [sic] and Florida Power & L ig h t, it is not the law of this circuit." Axiom, 564 F.3d at 1381. A s certain of the Esch exceptions have guided the conduct of bid protests in the Court o f Federal Claims since the passage of the Administrative Dispute Resolution Act of 1996, P u b . L. No. 104-320, §12, 110 Stat. 3870, 3875 (codified as amended at 28 U.S.C. § 1491) (c a llin g for the courts to review bid protest actions under section 706 of Title 5 of the 8

Administrative Procedure Act), this court understands that the following exceptions are still v ia b le and that the administrative record may be supplemented: (1 ) when the agency action is not adequately explained in the record before the c o u rt; (2 ) when the agency failed to consider factors which are relevant to its final d e c is io n ; (3 ) when an agency considered evidence which it failed to include in the re c o rd ; .... (8 ) in cases where relief is at issue, especially at the preliminary injunction s ta g e . E sc h , 876 F.2d at 991. Thus, a bid protest brought in the Court of Federal Claims contemplates that the re c o rd before the court may include a limited category of post-final-agency-action s u b m iss io n s . This court therefore does not interpret the guidelines in Axiom to change the tria l court's practice, other than to emphasize restraint and adherence to precedent. See T o to lo /K in g , 87 Fed. Cl. at 692-93; see also L-3 Commc'ns Eotech, Inc. v. United States, 87 F e d . Cl. 656, 671 (2009) ("The thrust of the Axiom decision . . . is that this court must e x e rc ise restraint when considering whether or not to supplement the administrative record in a bid protest."). 3 . Meaningful review of basis for contracting officer's responsibility determination 1 ) All documents other than the GAO decision R e so lu tio n of the motions concerning supplementation of the administrative record turns on whether the court is capable of providing meaningful judicial review of the award o n the administrative record as it was constituted when the contracting officer rendered her d e c i s io n , given plaintiff's allegations that the contracting officer failed to consider all re le v a n t information in arriving at her responsibility determination. Specifically, defendant m o v e d to exclude plaintiff's Exhibits 8-11 submitted with its October 8, 2010 complaint f r o m the record on the ground that these documents are cumulative of the information 9

regarding the M&J fraud prosecution that is included in the administrative record. Def.'s Br. f ile d Oct. 29, 2010, at 9-12. Defendant articulated the Axiom standard as precluding the c o u rt from allowing supplementation of the record because none of the exhibits bridges a " g a p in the record" of unconsidered facts. See Def.'s Br. filed Oct. 23, 2010, at 5-8. Moreover, according to defendant, because the contracting officer was not even required to e x a m in e issues relating to charges of fraud concerning both MBSI and MBL, plaintiff cannot f a u lt the expansive review that she undertook. See Def.'s Br. filed Oct. 29, 2010, at 13 (" `[ T ]h e contracting officer is the arbiter of what, and how much, information he needs.'" (q u o tin g John C. Grimberg Co. v. United States, 185 F.3d 1297, 1303 (Fed. Cir. 1999))). Plaintiff's Exhibit 10--a draft counterclaim forwarded to M&J counsel on behalf of f o rm e r Mabey manager Jonathan Danos--is the linchpin of plaintiff's contention that the re c o rd is incapable of providing meaningful judicial review. Plaintiff alleges that the c o u n te rc la im contains "information showing a broader corruption scheme than described by M B S I and MBL in their letters . . ." Pl.'s Br. filed Oct. 27, 2010, at 8; see also Compl. Ex 1 0 , at 19-23. The counterclaim recounts draft agreements exchanged between MBSI and D o m in ic a n Republic officials, involving Mr. Forsyth, the chairman of MBSI's Board until 2 0 0 8 , that separated a $10 million commission to be paid from $7 million "payable against in v o ic e s to be rendered purportedly under the other MBSI Draft Agreements," Compl. Ex 1 0 , at 22-23, to avoid the appearance that the compensation had been "bribery or in d u c e m e n ts in connection with the contract," id. at 19 (internal quotation marks omitted). Additionally, the counterclaim suggests that MBSI's president and/or director Mr. Booth, w a s involved in or aware of bribery activities. See Compl. Ex. 15-18 (designating Mr. Booth a s MBSI's "President" and representative in correspondence with plaintiff's President W illia m T. Killeen); Compl. Ex. 12 (suggesting Mr. Booth is a director of MBSI in a Mabey G ro u p organizational chart dated March 2, 2010); Compl. Ex. 10, at 20 (alleging Mr. Booth, " a director of MBSI", to be part of negotiations to structure a commission agreement with D o m in ic a n Republic officials so as to avoid suspicion of bribery). The Danos counterclaim calls into question MBSI's statement in response to the c o n tra c tin g officer's inquiry regarding responsibility that "MBSI was never a party to, and h a s never been alleged to have been a party to, the practices for which M&J has been p ro s e c u te d " and that "no allegations have been made which would suggest that any of Mr. F o rs yth 's activities at M&J affected MBSI," AR at 582-83, as well as the contracting o f f ic e r's determination reflecting those statements in her Memorandum for Record, see AR a t 546 ("MBSI was never a party to and has never been alleged to be a party to the events that le d to the prosecution of M&J."). Given that these statements are facially contradictory-- if "practices" is given a broad meaning--and that the contracting officer claimed to have u n d e rta k e n "an extensive internet search" concerning this type of incident, AR at 545, the re c o rd does display a lacuna on the subject of the contracting officer's consideration of 10

available information. See AR at 546 (citing the lack of allegations lodged against MBSI as a "key point[] from the response that [she] received [from MBSI]"). 4/ The court departs most sharply from defendant's analysis in its understanding of the im p a c t of the tension between the Danos counterclaim and MBSI's statement that MBSI was n e v e r alleged to be a party to M&J's corrupt activities. Defendant, interestingly, offers no e x p la n a tio n as to why these statements appear to conflict and does not point to any document i n the administrative record suggesting that the contracting officer knew that the Danos c o u n t e r c la im implicated MBSI and Mr. Booth in bribery activities. Defendant cites the F e d e ra l Circuit's seminal opinion in Grimberg for the proposition that courts afford a c o n t r a c t i n g officer broad discretion in determining the scope of the information that she re v ie w s . See Def.'s Br. filed Oct. 29, 2010, at 4 (quoting Grimberg, 185 F.3d at 1303, as s ta tin g , "[A]lthough the contracting officer is given the discretion to seek additional or c la rif yin g responsibility information . . . he is not obligated to do so."). Grimberg, however, d o e s not stand for the proposition that a contracting officer can limit the ambit of her review to documents that contain potentially material misstatements when accurate, or clarifying, in f o rm a tio n is available contemporaneously and from readily available sources. The United States Department of Agriculture (the "USDA") determined in Grimberg th a t the plaintiff failed to demonstrate that it met the "`size and complexity' and the `project m a n a g e m e n t experience' special standards" based on a comparison chart developed by the U S D A . Grimberg, 185 F.3d at 1300. The plaintiff alleged the USDA acted illegally in not s e e k in g additional information from the plaintiff and offering the plaintiff an opportunity to c u re a defective schedule before reaching a determination that it was not responsible. Id. The court held that, "[a]lthough FAR 9.105-1(a) does require the contracting officer to have, o r to obtain, enough information to make a responsibility determination, the contracting o f f ic e r is the arbiter of what, and how much, information he needs." Id. at 1303. Grimberg is distinguishable from and undermines defendant's motion to strike on two grounds. First, G rim b e rg must be read in its procedural context: a decision on the merits that discusses a c o n tra c tin g officer's purview in making a responsibility determination and that articulates th e discretion afforded to the contracting officer in resolving the issue of whether an agency o f the United States acted unreasonably. Id. ("Of course, courts may review such decisions

4 / The court further notes that "[i]t is well-established that a contracting officer s h o u ld consider disqualifying a proposed contractor if a material misrepresentation is made." Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1339 (Fed. C ir. 2001). While the court is not reaching a decision on that issue, to the extent the Danos c o u n te rc la im calls into question representations made to TACOM by MBSI and considered b y the contracting officer, the information is necessary for effective judicial review. 11

by the contracting officer for an abuse of discretion; to the extent that Grimberg makes such a n argument, however, we reject it for the reasons already articulated."). Without e n c ro a c h in g on the broad discretion afforded a contracting officer's responsibility d e te rm in a tio n , the court may supplement the record where necessary to review the contention th a t the contracting officer did not pursue impeaching material bearing on issues that she d e e m e d important, provided that it was at the time as readily available as the material that s h e considered. The substantive issue of whether the contracting officer acted arbitrarily and c a p ric io u s ly in making her determination is the subject of the parties' cross-motions on the a d m in is tra tiv e record and is not resolved at this juncture. Furthermore, Grimberg teaches that the court should look to the contracting officer's a c tio n s to determine "what, and how much, information he needs." Id. In the instant case, th e contracting officer exercised her discretion under FAR 9.105-1(a) to "seek additional or c la rif yin g responsibility information from [MBSI]" when she requested MBSI and MBL to s u b m it information regarding the M&J fraud litigation and its impact on her responsibility d e te rm in a tio n in this case. See id. The contracting officer indicated that a "key point[] from th e response that [she] received [from MBSI]" was that "MBSI was never a party to and has n e v e r been alleged to be a party to the events that led to the prosecution of M&J." AR at 5 4 6 . The contracting officer, therefore, not the court, has determined that allegations against M B S I were important to her analysis, and, while the administrative record contains the c o n tra c tin g officer's statement that she was aware of the prosecution that resulted from the a lle g a tio n s in the Danos counterclaim, the "gap in the record" concerns whether, having re lie d on MBSI's representations, she could, or should, have consulted the Danos c o u n te rc la im itself. Cf. Bender Shipbuilding & Repair Co. v. United States, 297 F.3d 1358, 1 3 6 2 (Fed. Cir. 2002) (upholding contracting officer's decision where "the record indicates th a t he at least considered [all the relevant data] in his decision-making process"). While the court must not "substitute its judgment" in favor of de novo review, a re v ie w in g court is charged with ensuring that the contracting officer made a decision g r o u n d e d in a "rational basis" and without "violat[ing] . . . [the] regulation[s] and p ro c e d u re [ s ]" articulated in the FAR so as to render the decision arbitrary and capricious. Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282, 1285-86 (Fed. Cir. 2010) (c ita tio n s omitted). "[W]ithout an examination of the evidence supporting [the protestor's] p o s itio n [i.e., the Danos counterclaim], this Court cannot properly assess `whether the c o n tra c tin g agency provided a coherent and reasonable explanation of its exercise of d is c re tio n .'" Bannum, Inc. v. United States, 89 Fed. Cl. 184, 188 (2009) (quoting Impresa C o n s tru z io n i Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed. Cir. 2 0 0 1 )). The court allows Exhibit 10 to supplement the administrative record.

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Plaintiff's Exhibits 8, 9, and 11 discuss the Danos counterclaim and attest to the a v a ila b ility of information accessible to the contracting officer at the time that she was re v ie w in g the issue, an element in plaintiff's challenge that the contracting officer acted a rb itra rily and capriciously. Exhibit 8 is the transcript of M&J's September 25, 2009 s e n te n c in g hearing, in which M&J's attorney explains that, "the case came about, and indeed th e company's own internal investigation began, as a result of a legal action brought by the c o m p a n y itself against one of its ex-employees. The pleadings submitted by the ex-employee a lle g e d a wide spread [sic] practice of corruption on the part of the company in securing its c o n tra c ts abroad." See Compl. Ex. 8, at 29. The referent of "pleadings submitted by the exe m p lo ye e " is the Danos counterclaim. While defendant chides plaintiff for imposing a re q u ire m e n t that the contracting officer "search foreign civil court filings for potentially re le v a n t documents," Def.'s Br. filed Oct. 29, 2010, at 1, the contracting officer stated that s h e conducted an "extensive internet search" that provided information for her responsibility d e te rm in a tio n , AR at 545. The court allows Exhibit 8 to supplement the administrative re c o rd. Exhibits 9 and 11 consist of newspaper articles, each attesting to the Danos c o u n te rc la im as part of the M&J litigation. See Compl. Ex. 9 (David Leigh & Rob Evans, C o u rt battle over secret export commissions claims, The Guardian, Jan. 2, 2008 ("While D a n o s is making accusations against the company, he himself is being sued by the firm for a lle g e d ly pocketing hundreds of thousands of pounds himself in corrupt kickbacks on the d e a ls ." )); see id. Ex. 11 (consisting of various news articles). These exhibits bear on the is su e of whether the contracting officer, in her "extensive internet research," AR at 545, c o u ld have accessed and reviewed the Danos counterclaim. The court therefore will allow E x h ib its 9 and 11 to supplement the record, only insofar as these documents are relevant to w h e th e r the Danos counterclaim was readily accessible, because in this way, the documents d o substantiate a "gap in the record." See Pl.'s Br. filed Oct. 8, 2010, at 17 ("A diligent in q u iry of the activities of MBSI would have revealed its direct involvement in the illegal a c tiv itie s of M&J as recently as 2004, as set forth in detail in the filing that led directly to the p ro s e c u tio n of M&J--a filing which is available through a simple internet search."). With re g a rd to Exhibit 11, the article reprinted on pages 5-15 from The Statesman on September 2 8 , 2009, is proper supplementation. Other articles included in Exhibit 11 that do not discuss th e allegations raised by Mr. Danos are not proper supplementation. In seeking to supplement the administrative record with Exhibit 14, Declaration of E d w a r d Oakley (undated); Exhibit 21, Declaration of William T. Killeen (undated); and E x h ib it 22, Declaration of Eugene Sobecki (undated), plaintiff attempted to bolster its theory th a t MBSI acted in such an anti-competitive way as to prohibit a finding that it is a re s p o n s ib le contractor. See Compl. Ex. 14. Here, plaintiff faces a more daunting task, as t h e s e affidavits were "created specifically in regards to [plaintiff's] protest before the 13

[GAO]," Def.'s Br. filed Oct. 23, 2010, at 8, and would not have been available for the c o n tra c tin g officer to consider in arriving at her responsibility determination. Defendant p o in ts to the contracting officer's post-award Statement of Facts submitted in the GAO p ro c e e d in g that "[plaintiff] incorrectly assert[ed] the Contracting Officer did not review any o th e r documents of MBSI's recent corporate espionage." Def.'s Br. filed Oct. 29, 2010, at 8 (quoting AR at 6). The contracting officer assessed letters "dated 30 April, 8 May, 13 May, a n d 15 June" and "concluded that there was no compromise of competition and that no f u r t h e r action was warranted . . . since this appeared to be a private issue between two c o m p a n ie s ." AR at 6. These letters are included in plaintiff's Exhibits 15, 16, 17, and 18, w h ic h , defendant agrees, should be added to the administrative record as "a correction of the a d m in is tra tiv e record, not a supplementation." Def.'s Br. filed Oct. 29, 2010, at 1 (emphasis o m itte d ); see Compl. Exs. 15-18. Defendant also does not dispute the admission of Exhibit 1 3 to the complaint, a letter from plaintiff to TACOM dated August 17, 2009, as well as two e x h ib its to plaintiff's brief filed on October 27, 2010: Exhibit 2, the SFO prosecution o p e n in g note in the M&J litigation regarding corrupt payments (this statement specifically m e n tio n s the Danos counterclaim), and Exhibit 3, the SFO prosecution opening note in M&J litig a tio n regarding the Iraq Oil for Food Programme. Id. Accordingly, based on the parties' a g re e m e n t, these exhibits, Exhibits 13, 15-18 to the complaint and Exhibits 2-3 to plaintiff's b rie f filed on October 27, 2010, are added to the administrative record. 5/ When the court first considered plaintiff's motion to admit the two SFO opening s t a t e m e n ts, Plaintiff's Exhibits 2 and 3, plaintiff touted them as documents that the c o n tra c tin g officer reviewed in connection with her post-award Statement of Facts to the G A O . See Pl.'s Br. filed Oct. 27, 2010, at 13 ("[A]lthough the [contracting officer]'s S ta te m e n t of Fact[s] references the SFO's `Opening Statement," (AR 5) there are actually tw o opening statements . . . . The administrative record is not clear as to whether the [ c o n tra c tin g officer] reviewed only one or both of the SFO's Opening Statements . . . ."). On th is ground, plaintiff requested that the record be supplemented as to these documents and d e f e n d a n t agreed. Def.'s Br, filed Oct. 29, 2010, at 1. Apparently, the contracting officer considered the SFO opening statements in c o n n e c tio n with drafting her Statement of Facts to the GAO. Although defendant asserts that th e contracting officer is required "by law" to submit a Statement of Facts to the GAO as

5 / Plaintiff has since confirmed its position that the contracting officer did not review th e letters (Exhibits 15, 16, 17, and 18). However, as of its October 27, 2010 brief, plaintiff re q u e s te d that it be permitted to supplement the record with Exhibits 13, 15, 16, 17, and 18 b e c a u s e "the agency considered [this] evidence [and] failed to include [it] in the record." Pl.'s Br. filed Oct. 27, 2010, at 12. 14

implicit justification for its inclusion in the administrative record, see Def.'s Br. filed Oct. 2 9 , 2010, at 11, this court is of the view generally that, "[i]t would be strange if the Court of F e d e ra l Claims would allow supplementation with the type of informal post-hoc statements th a t the GAO allows. Materials generated in an administrative protest can always be cited in a judicial proceeding as admissions or inconsistent positions, but they do not `supplement' th e administrative record." Rhinocorps Ltd. Co. v. United States, 87 Fed. Cl. 261, 276 n.18 (2 0 0 9 ); see Crassociates, Inc. v. United States, No. 10-339C, 2010 WL 4162118, at *14 (Fed. C l. Oct. 20, 2010) ("[T]his court would be loath to afford [the contracting officer's posta w a rd statements] any weight in determining whether the agency complied with the FAR."). The court does not consider the contracting officer's Statement of Facts to be part of the a d m in is tra tiv e record and considers that its pertinence is to gauge the significance of certain in c o n s is te n c ie s . E.g., compare AR at 4 (Statement of Facts, "MBSI itself was never charged a s being party to the events that led to the prosecution of M&J." (emphasis added)), with AR a t 546 (Memorandum for Record, "MBSI was never a party to and has never been alleged to be a party to the events that led to the prosecution of M&J." (emphasis added)). The court d o e s not consider the Statement of Facts, nor does the Statement of Facts' discussion of d o c u m e n t s that the contracting officer reviewed previously render the Statement of Facts n e c e s s a ry to explain any lack of clarity or "gap" in her decision. The court's determination on plaintiff's Exhibits 14, 21, and 22 is made easier by the in c lu sio n of Exhibits 13, 15, 16, 17, and 18. For example, Exhibit 14, the Oakley D e c la ra tio n , details the alleged visit an employee of MBSI made to one of plaintiff's w a re h o u se s . Compl. Ex. 14. However, this information also is contained in the letters that d e f e n d a n t has agreed to add to the record. Compare id., with Compl. Ex. 18 (detailing p la in tif f 's position with regard to a visit made by an MBSI employee). See Def.'s Br. filed O c t. 29, 2010, at 1. Exhibit 14 is not required to provide effective judicial review. E x h ib it 21, the first Killeen Declaration (Mr. Killeen is the President of plaintiff), lik e w ise does not add to the meaningful judicial review. The crux of this exhibit appears to b e the contention that Mr. Killeen had conversations with the TACOM official to whom the c o n tra c tin g officer reported concerning correspondence relating to the "MSBI espionage e f f o rts " and news articles and documents discussing the M&J "corruption scheme" and p ro v id e d him with those documents. Compl. E. 21, ¶¶ 3-5. By Exhibit 22, the Sobecki D e c la ra tio n (Mr. Sobecki is plaintiff's National Sales Manager), plaintiff seeks to introduce evidence of conversations between Mr. Sobecki and TACOM managers on plaintiff's current c o n tra c t in which the latter expressed concern over the alleged corporate espionage activities o f MBSI. See Compl. Ex. 22, ¶ 3. As previously explained by this court, "[a] discrete d if f e re n c e exists between adding evidence to the record to aid in the reexamination of the c o n tra c tin g officer's decision and submitting an evidentiary filing that points out to the court w h e th e r the contracting officer did or did not do something." Totolo/King, 87 Fed. Cl. at 693 15

n.7. In Totolo/King the court was faced with the latter situation and admitted one affidavit th a t "suppl[ied] the required factual predicate for a finding that the contracting officer acted a rb itra rily or capriciously." Id. The instant case illustrates the former scenario: plaintiff s e e k s to supplement the record for the purposes of introducing extra-record facts that re p re se n t additional support for its allegations that information that should have been d e liv e re d to and considered by the contracting officer. The court is mindful that the "purpose of limiting review to the record actually before th e agency is to guard against courts using new evidence to `convert the `arbitrary and c a p ric io u s ' standard into effectively de novo review.'" Axiom, 564 F.3d at 1380 (quoting M u ra k a m i v. United States, 46 Fed. Cl. 731, 735 (2000), aff'd, 398 F.3d 1342 (Fed. Cir. 2 0 0 5 )). Plaintiff would have the court require the contracting officer to have discussed s u b je c ts allegedly relevant to her responsibility determination with specific individuals with w h o m plaintiff had communicated and to include these discussions as part of her c o n s id e ra tio n . That is not the law or the purpose of this type of review. Defendant is correct th a t Grimberg reserves to the contracting officer the decision of how much information she n e e d s . See Grimberg, 185 F.3d at 1303 (stating that contracting officer is "not obligated" to seek additional or clarifying responsibility information from contractor). Plaintiff has not ju s tif ie d the addition of the three declarations as necessary to a meaningful review of the re s p o n s ib ility determination in light of plaintiff's allegations. 2 ) The GAO decision B y statute, "any decision or recommendation of the Comptroller General . . . with re s p e c t to . . . procurement[s] and proposed procurement[s] shall be considered to be part of th e agency record subject to review." 31 U.S.C. § 3556. Appendix C of the RCFC (" A p p e n d ix C") VII ¶ 22(u) prescribes that "the record of any previous administrative or ju d ic ia l proceedings relating to the procurement, including the record of any other protest of th e procurement" is a "core document[] relevant to a protest." The GAO decision therefore m u s t be added to the administrative record. Paragraphs 22(u) and 23 of Appendix C, h o w e v e r, supply a misleading description of what a court should consider in its review and ra ise more questions than they answer by equating "core documents" to "the remainder of th e administrative record." The record under review is the record presented by the agency d e c is io n m a k e r. It is not the record developed before the GAO. Judicial review is limited to th e record actually before the agency. See Rhinocorps, 87 Fed. Cl. at 276 n.18 (citations o m itte d ). The statute cannot be interpreted as opening a back door for considering post hoc ra tio n a le s proffered to substantiate the particular decisions and actions of the contracting o f f ic e r on review. The court's rules cannot be applied to engraft onto the contracting o f f ic e r's decision all the documents that were before the GAO.

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This position is consistent with Axiom that the record review is "limit[ed] . . . to the re c o rd actually before the agency." 564 F.3d at 1380 (emphasis added). Although Axiom d e a lt with the issue of record supplementation, as opposed to a question of what documents c a n be called "core documents" and whether core "documents" are part of the administrative re c o rd , the principle of limiting review to the documents and facts before the agency at the tim e the decision was rendered is consistent with the basic tenet long ago articulated by the U n ite d States Supreme Court that "post hoc rationalizations offered by the agency should be a f f o rd e d limited importance in the court's analysis." Al Ghanim Combined Grp. Co. Gen. T ra d . & Cont. W.L.L. v. United States, 56 Fed. Cl. 502, 508 (2003) (citing Citizens to P re s e rv e Overton Park, Inc. v. Volpe, 401 U.S. 402, 419 (1971), overruled on other grounds b y Califano v. Sanders, 430 U.S. 99, 105 (1977)). Indeed, "[o]ther courts conducting [ A d m in istra tiv e Procedure Act] reviews have limited their consideration of an agency's d e c is io n to the analysis and rationale appearing in the administrative record as of the time of th e decision, holding that `[a]ny post hoc rationales an agency provides for its decision are n o t to be considered.'" Crassociates, 2010 WL 4162118, at *14 (emphasis added) (quoting G e n . Elec. Co. v. Dep't of Air Force, 648 F. Supp. 2d 95, 100 (D.D.C. 2009)). One explanation for the statutory requirement that the GAO decision be included as p a rt of the agency action subject to review is that Congress was prescient that a GAO d e c is io n might shed light on what documents or other written information should have been c o n s id e re d by the contracting officer. However, insofar as the GAO proceedings consider p o s t-d e c is io n (unsworn) statements by the contracting officer, they do not expand judicial re v ie w to the record before the GAO, nor do they transform the GAO's decision into the a g e n c y decision that the court is reviewing for reasonableness. R e a d in g Appendix C in light of the decisional law substantiates that paragraphs 22(u) a n d 23 are procedural rules, not ones that necessarily bear on the substance of the issues or w e ig h t afforded to the opinions articulated in the GAO decision. The court, however, is c a p a b le of taking judicial notice of the GAO decision without straying from Axiom's b o u n d a rie s . See Ala. Aircraft Indus., Inc.-Birmingham v. United States, 82 Fed. Cl. 757, 765 (2 0 0 8 ) (taking judicial notice of GAO's decision). The pertinence of any explanation a d o p te d in the GAO decision will depend on whether the explanation was given to provide a rationale for a gap or inconsistency in the responsibility determination, or whether the c o n tra c tin g officer later considered other information or alternative reasons to reinforce and ju s tif y her responsibility determination before the GAO. Insofar as the later is the case, the c o n tra c tin g officer's Statement of Facts will not be considered by this court.

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4. Amendment of rulings B y Plaintiff's Second Motion To Supplement the Administrative Record and Motion T o Clarify or Alter/Amend the Court's Order on Supplementation and Memorandum in S u p p o rt filed on December 3, 2010, plaintiff sought to revisit the court's orders entered on N o v e m b e r 5 and 12, 2010. Previously, plaintiff attempted to clarify its position with regard to the letters exchanged between plaintiff and MBSI (Exhibits 15, 16, 17 and 18 to the c o m p la in t) in its brief filed on November 5, 2010, that "because the [Procurement C o n tra c tin g Officer (the "PCO")] asserted that she reviewed those letters, they should be m a d e a part of the administrative record, but that [plaintiff] reserved the right to argue w h e th e r she did, in fact, review those letters. [Plaintiff] clearly does not agree that the PCO re v ie w e d those letters . . . ." Pl.'s Br. filed Nov. 5, 2010, at 2-3. Plaintiff attached to this b rie f an e-mail exchanged between plaintiff's counsel and defense counsel as evidence of p la in tif f 's litigation position. See id. Pl.'s Br. filed Nov. 5, Ex. A. In contrast to plaintiff's previously articulated position, see Pl.'s Br. filed Oct. 27, 2 0 1 0 , at 12 ("[W]ith regard to Exhibits 13, 15, 16, 17, and 18 . . . [plaintiff] must be p e rm itte d to supplement the record based on the following . . . exception[]: (3) the agency c o n s id e re d evidence it failed to include in the record" (emphasis added)), plaintiff's position is that the contracting officer did not consider these letters. Plaintiff's December 3, 2010 m o tio n to clarify reinforces that plaintiff is arguing that the contracting officer could have c o n s id e re d these letters, but did not do so. In its December 3, 2010 motion to supplement, plaintiff seeks to add two declarations o f Mr. Killeen submitted as exhibits to plaintiff's briefs on the merits (these were filed s u b s e q u e n t to the complaint and in addition to Mr. Killeen's first declaration, Exhibit 21 to th e complaint). Pl.'s Br. filed Dec. 3, 2010, at 2. The two documents are the Declaration of W illia m T. Killeen (undated), filed as Exhibit A to plaintiff's brief filed October 29, 2010 (th e "Second Killeen Declaration"), and the Declaration of William T. Killeen, dated N o v e m b e r 29, 2010, filed as Exhibit B to plaintiff's November 29, 2010 brief (the " N o v e m b e r 29 Killeen Declaration"). Both declarations are considered as part of the court re c o rd with regard to plaintiff's showing in court for injunctive relief. Insofar as the Second K ille e n Declaration declares that he performed simple web searches in early 2008 to retrieve th e Danos counterclaim and that he handed to a senior official referred to in the first Killeen D e c la ra tio n a copy of the Danos counterclaim in late April 2009, Second Killeen Decl. ¶ 6, th e court does not consider that defining scope of an internet search to be germane, nor does re c e ip t of a copy of the Danos counterclaim by the official whom Mr. Killeen believes to be th e contracting officer's superior bear on whether the contracting officer should be charged w ith reviewing it.

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CONCLUSION T h e court has evaluated the record on the basis of what the contracting officer at the tim e of her responsibility determination considered and had available for her consideration. Regarding allegations of corruption concerning MBSI, the contracting officer considered s o m e materials, but may have failed to consider putatively impeaching material readily a v a ila b le and accessible at the time. W ith regard to plaintiff's allegations of corporate espionage, defendant relies on the c o n tra c tin g officer's post-award Statement of Facts submitted to the GAO to show that she c o n s id e re d an exchange of correspondence between the parties. Plaintiff wants to add more s p e c if ic information to the letters that the contracting officer referenced in her Statement of F a c ts and argues that she did not consider the letters or that information. Plaintiff has not m a d e a showing to justify the First Killeen Declaration and the Oakley and Sobecki d e c la ra tio n s . To the extent that the Second Killeen Declaration and the November 29 Killeen D e c la ra tio n speak to plaintiff's showings for injunctive relief, they are considered part of the c o u rt record. Accordingly, I T IS ORDERED, as follows: 1 . The orders entered on November 5 and 12, 2010, are vacated, and the court grants p la in tif f 's December 3, 2010 motion to clarify to the extent indicated in the body of this o rd e r. 2 . Defendant's motion to strike is denied, and plaintiff's motion to supplement is g ra n te d , with respect to Exhibits 8, 9, and 10 to the complaint. 3. Defendant's motion to strike is granted with respect to Exhibit 11, excepting the a rtic le reprinted on pages 5-15 from The Statesman, as to which it is denied. Defendant's m o tio n to strike is denied as to Exhibits 14, 21, and 22. These three exhibits do not qualify a s supplemental and are stricken from the administrative record, although they are part of the c o u rt record. 4. The parties agree that the administrative record should be supplemented with E x h ib its 13, 15, 16, 17, and 18 to plaintiff's complaint and Exhibits 2 and 3 to plaintiff's b rie f filed October 27, 2010. Plaintiff's motion regarding these documents is granted. 5 . Defendant's motion is granted insofar as the GAO decision is added to the a d m in is tra tiv e record, and the court takes judicial notice of it.

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6. Plaintiff's motion filed on December 3, 2010, to supplement with respect to the S e c o n d Killeen Declaration and the November 29 Killeen Declaration is granted insofar as th e s e documents discuss the three additional factors relating to injunctive relief, and are part o f the court record. The motion otherwise is denied.

/s/ Christine O.C. Miller ______________________________ C h r is tin e Odell Cook Miller Judge

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