VANGUARD RECOVERY ASSISTANCE, JOINT VENTURE et al
Filing
89
PUBLISHED OPINION AND ORDER reflecting redactions to the opinion and order issued under seal on May 20, 2011. Signed by Judge Charles F. Lettow. (cm)
In the United States Court of Federal Claims
No. 11-39C
(Filed Under Seal: May 20, 2011)
(Reissued: May 27, 2011)
)
VANGUARD RECOVERY ASSISTANCE, )
)
JOINT VENTURE,
)
)
Plaintiff,
)
)
v.
)
)
UNITED STATES,
)
)
Defendant,
)
)
and
)
)
AECOM SERVICES INC., FLUOR
)
ENTERPRISES, INC., NATIONWIDE
)
INFRASTRUCTURE SUPPORT
)
TECHNICAL ASSISTANCE
)
CONSULTANTS, LLC, and CH2M
)
HILL-CDM PA TAC RECOVERY
)
SERVICES,
)
)
Defendant-Intervenors.
)
Protest of procurement actions taken by
Federal Emergency Management Agency;
standing; timeliness of suit; amendment
and supplementation of the administrative
record; agency’s failure to provide for
performance-evaluation reports regarding
predecessor contracts, as required by FAR
§§ 36.604, 42.1502(f); “too close at hand
to ignore” doctrine
Michael A. Gordon, Michael A. Gordon PLLC, Washington, D.C., for plaintiff. With
him on the briefs was Fran Baskin, Michael A. Gordon PLLC, Washington, D.C.
Jeffrey A. Regner, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With him on the briefs were
Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White,
Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department
of Justice, Washington, D.C.
Lee P. Curtis, Allen Cannon III, W. Hartman Young, Emily C.C. Paulin, and Maggie
L.C. Greenlee, Perkins Coie LLP, Washington, D.C., for defendant-intervenor Fluor Enterprises,
Inc.
William A. Roberts, III, Wiley Rein LLP, Washington, D.C., for defendant-intervenor
AECOM Services, Inc. With him on the briefs were Daniel P. Graham, Brian Walsh, and Julie
A. Dunne, Wiley Rein LLP, Washington, D.C.
Samuel B. Knowles, DLA Piper LLP, Washington, D.C., for defendant-intervenor CH2M
Hill-CDM PA TAC Recovery Services.
Joseph J. Petrillo, Petrillo & Powell PLLC, Washington, D.C., for defendant-intervenor
Nationwide Infrastructure Support Technical Assistance Consultants, LLC. With him on the
briefs were Karen D. Powell and Sophia Z. Watson, Petrillo & Powell PLLC, Washington, D.C.
OPINION AND ORDER 1
LETTOW, Judge.
In this post-award bid protest, plaintiff Vanguard Recovery Assistance (“Vanguard”)
alleges that the Federal Emergency Management Agency (“FEMA”) improperly evaluated
proposals in a multi-award procurement of architect-engineering services to support public
assistance in responding to natural disasters. Compl. ¶ 1. Specifically, Vanguard alleges that in
awarding contracts for such services FEMA did not consider negative past performance
information on incumbent contractors which was “too close at hand” to ignore, failed to follow
its own selection guidelines, and did not adequately document the reasoning for its selections, in
contravention of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. Compl. ¶¶ 2(a),
(d)(v), (e). Each of the four recipients of the procurement contracts, Fluor Enterprises (“Fluor”);
Architecture, Engineering, Consulting, Operations and Management (“AECOM”); Nationwide
Infrastructure Support Technical Assistance Consultants (“NISTAC”); and CH2M Hill – CDM
PA-TAC Recovery Services (“CCPRS”) has intervened in the protest. Pending before the court
are the defendant’s and defendant-intervenors’ motions to dismiss and the plaintiff’s motion to
supplement the administrative record. Disposition of the motions turns in substantial part on,
and is complicated by, the circumstance that three prior protests of the procurement were filed
sequentially with the Government Accountability Office (“GAO”) before the case was filed in
this court.
1
Because this opinion and order might have contained confidential or proprietary
information within the meaning of Rule 26(c)(1)(G) of the Rules of the Court of Federal Claims
(“RCFC”) and the protective order entered in this case, it was initially filed under seal. The
parties were requested to review this decision and to provide proposed redactions of any
confidential or proprietary information on or before May 26, 2011. A hearing on proposed
redactions was held on May 27, 2011. The resulting redactions are shown by asterisks enclosed
within brackets, i.e., “[***].”
2
BACKGROUND 2
A. FEMA’S Initial Procurement Actions
On February 19, 2009, FEMA issued a Source Selection Notice, No. HSFEHQ-09-R0411: PA TAC III, stating its intent to award up to four contracts to firms “to provide architectengineer, consultant, and other professional services in support of the Public Assistance (PA)
Program under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C.
[§§] 5121-5206.” AR 2-2 (Source Selection Notice). 3 The notice explained that selected firms
must be ready to “support FEMA PA operations” and “augment FEMA’s capacity to respond to
natural catastrophes, [including] riverine and coastal flooding, tornadoes, hurricanes, typhoons,
earthquakes, and tsunamis, or regardless of cause, any fire, flood, or explosion.” Id.
The Source Selection Notice specified that bidders would be evaluated in two phases.
First, bidders had to submit a standard form (“SF”) 330. AR 2-3. Those “shortlisted” following
evaluation of written materials would then be invited to make oral presentations after which the
shortlisted firms would be re-evaluated. Id.
Five factors were considered in the selection of firms: (1) specialized experience and
technical competence, (2) capacity to accomplish work within required time, (3) professional
qualifications, (4) past performance, and (5) location in the general geographical area of FEMA’s
projects and knowledge of the locality of the projects. AR 2-3 to 5. Factor 1 was divided into
three sub-parts: (a) experience developing reliable cost estimates for a variety of major multimillion dollar construction projects and/or repair of damaged infrastructure systems,
(b) experience in evaluating projects for compliance with environmental regulations and
preparing environmental documents, and related activities, and (c) experience in staffing at the
“levels in Evaluation Factor 2.” AR 2-3 to 4. Bidders were told that “Criteria 1 through 3 are
equally important and are more important than Criteria 4 and 5. Criterion 4 is less important
than Criteria 5. These five criteria will be used to evaluate firms’ SF 330s. An unacceptable
rating in any factor for Criteria 1 through 3 will result in an unacceptable rating overall.” AR 23. Additionally, subfactor 1(a) was considered “significantly more important” than subfactor
1(b). Id.
2
For the purposes of resolving these motions, the court presumes that allegations in
Vanguard’s complaint are true. The factual recitations provide a basis for analysis of the pending
motions and do not at this preliminary stage of the case constitute full-fledged findings by the
court. However, many of the recitations are drawn from the administrative record of the
procurement, and that record provides factual grounds for resolving the parties’ jurisdictional
contentions.
3
“AR __” refers to the administrative record filed with this court in accord with RCFC
52.1(a). The administrative record has been subdivided into tabs. The first number in a citation
to the administrative record refers to a particular tab, and the number after the hyphen refers to
the particular page number of the administrative record, e.g., “AR 5-26.” The pages of the
administrative record are paginated sequentially without regard to the tabs.
3
Despite the differing hierarchy of importance, some of the factors appeared to overlap.
The most important element, subfactor 1(a), addressed technical expertise in “developing reliable
cost estimates” for reconstruction and repair work and thus combined an assessment of
experience with past results:
Experience developing reliable cost estimates for a variety
of major multi-million dollar construction projects and/or
repair of damaged infrastructure systems (e.g., buildings,
roads, schools, hospitals, and power and water systems,
etc.). Cost estimates should reflect the total budget
necessary for the project. Give a detailed explanation of
the reasons for any variances that exceed plus or minus 10
percent between estimated and actual costs.
AR 2-3 to 4 (emphasis added). Contrastingly, respecting its evaluation of past performance
under factor 4, the least important factor, FEMA advised and instructed that the accuracy of past
cost estimates would also be assessed:
PAST PERFORMANCE. The agency will evaluate the
firm’s past performance on contracts of similar size, type,
and scope with Government agencies and private industry
in terms of project management, accuracy of costs
estimates, cost control, quality control, completion of
projects within budget, and compliance with performance
schedules. The firm must provide references for at least
five contracts within the past three (3) years with names,
affiliations, and telephone numbers, with a narrative
discussion. If the firm is a Joint Venture, contracts
performed by its individual members must be included. In
the case of a firm without a record of relevant past
performance or for whom information on past performance
is not available, the firm will not be evaluated favorably or
unfavorably on past performance.
The Government
reserves the right to use information outside of the
response in evaluating past performance, including agency
knowledge of the firm[’]s performance.
AR 2-4 to 5 (emphasis added).
FEMA received nine offers in response to the solicitation. Def.’s Mot. to Dismiss
(“Def.’s Mot.”) at 4. Seven bidders were selected for the shortlist and included in the final
rankings and ratings, namely, (1) Vanguard, defendant-intervenors (2) Fluor, (3) AECOM, (4)
NISTAC, and (5) CCPRS, plus (6) Shaw-Parsons Infrastructure Recovery Consultants (“ShawParsons” or “IRC”), and (7) PB Americas (“PB”). Id. Three of the bidders, Fluor, AECOM, and
NISTAC held incumbent contracts. Id.
4
FEMA rated and ranked the offerors under the five factors, using adjectival ratings for
each factor and subfactor: superior, acceptable, unacceptable, and also for past performance,
neutral. See, e.g., AR 40-4310 (Source Evaluation Notebook Addendum Attachment F:
Vanguard) (describing the adjectival ratings scale).
On June 15, 2009, FEMA announced its decision to award the four available contracts to
Fluor, AECOM, NISTAC, and Shaw-Parsons. In response to an unsuccessful bidder’s protest at
the agency level, FEMA issued an addendum to the sources-sought notification on August 13,
2009, identifying changes to evaluation factor 1 and allowing the shortlisted firms to submit
revised SF 330s. AR 6A-40.1 to 40.2 (Amended Source Selection Notice); see also AR 1055206 (Shaw-Parsons Infrastructure Recovery Consultants, LLC; Vanguard Recovery Assistance,
Joint Venture, B-401679.4-.7, 2010 CPD ¶ 77, 2010 WL 1180085, at *3-*4 (Comp. Gen. Mar.
10, 2010) (“GAO’s First Decision”)) (describing the agency level protests). The revised
subfactor 1(a) stated:
The firm is required to identify completed projects
from the past five (5) years that demonstrate its experience
developing reliable cost estimates for a variety of major
multi-million dollar construction projects and/or repair of
damaged infrastructure systems (e.g., buildings, roads,
schools, hospitals, and power and water systems, etc.).
In its project examples, the firm must demonstrate
its experience, methodology, and tools to estimate the total
cost of projects (e.g., labor, materials, and equipment), and
its use of forward pricing models for multi-year projects.
The firm must also demonstrate its experience in
developing and utilizing quality control measures to ensure
the accuracy of its cost estimates.
The firms are required to provide a detailed
explanation of the reasons for any variances on the
identified completed projects that exceed plus or minus 10
percent between the estimated costs in the proposed
solicitation and the actual costs of the completed project.
AR 6A-40.2 (emphasis added); see also AR 105-5206. The addendum additionally established
that subfactor 1(a) was “significantly more important” than subfactors 1(b) or 1(c) and that
subfactors 1(b) and 1(c) were of equal importance with respect to each other. AR 6A-40.2. The
Source Evaluation Board re-scored the bidders and, on October 6, 2009, selected Fluor,
AECOM, CCPRS, and NISTAC for the awards, in effect replacing Shaw-Parsons with CCPRS.
See AR 105-5207 to 5208.
B. First GAO Protests
Upon learning the results of the revised selection decisions, Shaw-Parsons and Vanguard
filed protests with GAO in December 2009. See AR 54-4601 (Shaw-Parson’s First GAO Protest
(Dec. 4, 2009)); AR 55-4623 (Vanguard’s First GAO Protest (Dec. 7, 2009)). Vanguard’s
5
protest alleged that FEMA’s “decision not to select Vanguard . . . was erroneous and in violation
of law because FEMA failed to consider negative cost estimating accuracy experience and other
experience and past performance information regarding the incumbent PATACs [Public
Assistance Technical Assistance Contractors] under the Specialized Experience and Technical
Competence and Past Performance factors that w[ere] ‘too close at hand to ignore.’” AR 554623.
GAO rejected Vanguard’s arguments in a final decision rendered on March 10, 2010.
With respect to Vanguard’s challenge to FEMA’s ratings under subfactor 1(a), GAO ruled that
Vanguard’s protest was “misguided because it confuses the concepts of experience and past
performance.” AR 105-5216 (GAO’s First Decision). GAO explained that “an agency’s
evaluation under an experience factor is distinct from its evaluation of an offeror’s past
performance,” commenting that experience “focuses on the degree to which an offeror has
actually performed similar work,” whereas past performance “focuses on the quality of the
work.” Id. GAO also dismissed Vanguard’s challenge to FEMA’s ratings under factor 4, but, in
doing so, it nonetheless noted that “FEMA [had] failed to incorporate any mechanism for
measuring performance under [the PA TAC II] contracts, and . . . past performance information
was not collected.” AR 105-5218 (internal citation omitted). Although it described FEMA’s
“lack of oversight” as “troubling,” GAO concluded that it could not “attribute knowledge to the
agency evaluation team that it did not possess.” AR 105-5218.
Concurrently, GAO sustained part of Shaw-Parson’s challenge, agreeing that “FEMA’s
past performance evaluation was fundamentally flawed because it failed to consider the PPQs
[past performance questionnaires] it [had] received regarding Shaw-Parsons’ performance, as
well as those of the other firms, and instead relied solely upon information contained in the
firms’ SF 330 submissions.” AR 105-5209. While FEMA did not need to consider all past
performance references, “PPQs in an agency’s possession” constituted “past performance
information too close at hand to ignore.” AR 105-5210 (citing Intercontinental Constr.
Contracting Inc.-Costs, B-400729.3, 2009 CPD ¶ 44, 2009 WL 540162, at *2 (Comp. Gen. Mar.
4, 2009)). GAO recommended that FEMA reevaluate the shortlisted firms, giving consideration
to the PPQs it had received regarding past performance of the firms. AR 105-5218. FEMA
conducted the recommended reevaluation, and the firms’ rankings remained unaltered. Def.Intervenors’ Mot. to Dismiss (“Def-Intervenors’ Mot.”) at 9.
C. Second GAO Protest
Following FEMA’s reevaluation in response to the first GAO protest, Vanguard
requested and received a debriefing from FEMA, learning how the agency had implemented
GAO’s decision. See AR 110-5278 to 5283 (Vanguard Pre-Award Debriefing Summary (May
28, 2010)). Vanguard then filed its second protest before GAO, challenging FEMA’s new
assessment of Vanguard’s proposal. Vanguard contended that “[t]he re-evaluation of
Vanguard’s Past Performance as ‘Acceptable’ is unreasonable based on FEMA’s own
conclusions. Had Vanguard received a Past Performance rating of Superior, it would have a
substantial chance for one of the awards.” AR 112-5290 (Vanguard’s Second GAO Protest
(June 2, 2010)). This time, GAO sustained Vanguard’s protest, concluding that FEMA had
“effectively penalized Vanguard for having submitted references for additional, less relevant
6
contracts and used what was an arbitrary score for the purpose of its evaluation.” AR 134-5667
(Shaw-Parsons Infrastructure Recovery Consultants; Vanguard Recovery Assistance, Joint
Venture, B-401679.8-.10, 2010 CPD ¶ 211, 2010 WL 3677164, at *8 (Comp. Gen. Sept. 8, 2010)
(“GAO’s Second Decision”)). GAO recommended that the agency reevaluate Vanguard’s past
performance information and make a new source selection determination. AR 134-5674. FEMA
took the corrective action recommended by the GAO.
The final rankings adopted by the Source Selection Authority showed that the shortlisted
firms were in close contention (“S” indicates a superior rating and “A” indicates an acceptable
rating):
Amended Consensus Scores
Factors
1
FIRM
(by rank)
Fluor
1(a)
1(b)
1(c)
1
2
3
4
5
S
S
A
S
S
S
A
S
2
AECOM
A
S
S
A
S
S
S
S
3
CCPRS
S
S
A
S
S
A
S
S
4
NISTAC
S
A
A
S
S
A
A
S
5
IRC
S
A
A
S
A
S
A
S
6
Vanguard
S
A
A
S
S
A
A
S
7
PB
A
S
A
A
A
A
A
S
AR 136-5716 (Source Selection Board Official Consensus Final Report (Oct. 25, 2010)); see
also Def.’s Mot. at 5. The Source Selection Authority also ranked the offerors by factors to
distinguish between proposals receiving similar rankings:
7
Final Rankings
Factors
Rank
1
2
44
3
55
1
[***]
[***]
[***]
[***]
[***]
2
[***]
[***]
[***]
[***]
[***]
3
[***]
[***]
[***]
[***]
[***]
4
[***]
[***]
[***]
[***]
[***]
5
[***]
[***]
6
[***]
[***]
7
[***]
[***]
AR 135-5678 to 5688 (Source Selection Decision (Oct. 25, 2010)); see also Def.’s Mot. at 5.
Notably, despite having received a superior rating under factors 1 and 2, Vanguard was not
included in the rankings for those factors. All other offerors with superior ratings for a given
factor were listed in the rankings.
D. Third GAO Protest
On November 10, 2010, FEMA informed Vanguard that it again had not been awarded a
contract. Twelve days later, Vanguard filed its third GAO protest, arguing that FEMA’s
“evaluation panel and/or its advisors have lost objectivity and have taken improper actions to
retain the PA TAC II incumbents and CCPRS in conducting the re-evaluation,” and citing
examples of how Vanguard allegedly was assessed improperly. See Pl.’s Mot. to Supplement the
Administrative Record (“Pl.’s Mot. to Supplement”) Ex. 11 at 1 (Vanguard’s Third GAO
Protest); see also id. at 2-14 (describing how Vanguard was evaluated and comparing those
4
Elizabeth Zimmerman wrote in her Source Selection Authority Decision that she [***]
under factor four. AR 135-5687. The SEB rated AECOM and CCPRS as “superior” and the
other shortlisted firms as “acceptable.” Id. Ms. Zimmerman noted that CCPRS and Vanguard’s
ratings were “on the borderline of Acceptable/Superior.” AR 135-5686.
5
The rankings for factor five appear to be entirely based on [***]. NISTAC and AECOM
[***]. AR 135-5687 to 5688. Fluor and CCPRS [***]. Id. IRC and PB [***], and Vanguard
[***]. Id.
8
evaluations with the evaluations accorded other bidders by FEMA). Vanguard asked GAO to
recommend that FEMA replace its evaluation team, reevaluate Vanguard’s past performance,
and reevaluate several of the other offerors’ proposals. Id. at 16. Vanguard supplemented its
protest on November 29, 2010, providing more examples of what it described as “disparate
treatment” in the evaluation of Vanguard as compared with other firms. See Pl.’s Mot. to
Supplement Ex. 12 at 1 (Vanguard’s Third GAO Protest Supplement). Vanguard partially relied
upon the declaration of a former FEMA employee, Marvin Altman, who described the existence
of documents which would support Vanguard’s position but which had not been presented to
GAO. See Pl.’s Mot. to Supplement Ex. 13 at 2 (Vanguard’s Request for Additional
Documents). On January 3, 2011, Vanguard requested that GAO order FEMA to produce
documents relating to its and other offerors’ oral presentations, plus documents relating to PA
TAC I past performance evaluations, which Mr. Altman’s declaration suggested existed. See id.
Ex. 13 at 1-3.
E. Proceedings in This Court
Shortly thereafter, on January 12, 2011, Vanguard shifted forums and filed a bid protest
in this court. 6 Vanguard’s complaint reiterated the theme of Vanguard’s three protests before
GAO, claiming that FEMA’s evaluation of the offerors’ reliable cost estimating and past
performance was unreasonable, that the final rankings of bidders improperly departed from the
requirements of the source selection notice, and that FEMA failed to objectively evaluate
Vanguard’s proposal. See Compl. at 19, 20, 24, 28.
After the government filed the administrative record with the court, Vanguard moved to
supplement the record with certain documents which had been before GAO but had not been
included in the record, as well as evidence of poor past performance by incumbent contractors.
Pl.’s Mot. to Supplement at 1. The materials Vanguard seeks to be added include (1) two GAO
reports rendered in 2008 on FEMA’s Public Assistance program, (2) a number of declarations
attesting to the existence of documents showing poor past performance of incumbent contractors,
and (3) a Department of Homeland Security Inspector General’s report relating to PA TAC II
incumbent performance. Pl.’s Mot. to Supplement 2-3. Vanguard also requests, pursuant to its
theory that certain past performance information was too close at hand to ignore, that FEMA
produce an extensive set of documents, including (1) “‘TAC Evaluation Worksheet’ forms from
all FEMA Regions, and/or any similar PA TAC contractor evaluation and rating documents,
including emails,” (2) “FEMA Project Worksheets . . . or summaries of revisions to include cost
estimating spreadsheets indicating an increase from initial cost estimates exceeding [ten
percent],” (3) “comments, inquiries, questions and/or complaints relating to inaccurate cost
estimates and other performance issues involving work by the incumbent contractors” received
from various government entities, (4) “final and draft responses to [various government entities]
relating to inaccurate cost estimates and other performance issues involving work by the
incumbent contractor[s],” (5) “quarterly performance evaluations of PA TAC I and II incumbent
contractors relating to . . . poor performance issues,” (6) “[c]omments, questions and/or
complaints relating to . . . performance issues involving technical specialists,” (7) “notices of
6
As a result of this filing, GAO dismissed Vanguard’s third GAO protest. See Vanguard
Recovery Assistance-JV, B-401679.11-.12 (Jan. 14, 2011).
9
dismissal of incumbent contractor employees or subcontractors deployed by incumbent
contractors and explanations,” (8) “reports relating to visits to/by FEMA Regional offices and
field offices,” (9) “all e-mails and other communications between [Source Selection Notification
writer] Lorine Boardwine and PA TAC task monitors relating to the performance of incumbent
contractors,” 7 (10) “all documents relating to Quality Assurance Surveillance Plans (‘QASP’) for
each PA TAC contractor team and ‘performance measurement’ documents,” (11) “all monthly
status reports and/or Task Order Activity Reports prepared by the incumbents,” (12) “all
quarterly Partnering Meetings with PA TAC contractors,” (13) “[a]ll documents relating to PA
appeals, and arbitration submittals, involving applicant claims of improper cost eligibility
determinations, inaccurate quantity estimates, improper unit costs, or lump sum items,” (14) “all
customer satisfaction surveys relating to the PA program . . . and . . . any FEMA response,” (15)
copies of the PA TAC I and II contracts, (16) “documents relating to the determination not to
include a performance measurement tool in[] the 2006 PA TAC II awards,” (17) “documents
relating to the evaluation of incumbent performance on the PA TAC II contracts or other presolicitation analyses,” (18) “documents relating to the evaluation of incumbent performance for
the PPQs,” (19) “all other documents relating to the performance of the incumbent PA TACs
between 2004-[20]09 relating to cost estimating reliability and variance information and the
assignment of unqualified, untrained, and/or incompetent PA TAC personnel,” and (20)
documents from defendant-intervenors “relating to their performance of the PA TAC contracts
that were sent to FEMA.” Id. at 22-27. Vanguard additionally asks to depose Lorine Boardwine
and the Source Selection Authority, Elizabeth Zimmerman. Id. at 27-28.
In the alternative, Vanguard has asked the court to remand the case to FEMA and to
require FEMA to evaluate the performance of the incumbent contractors on their PA TAC
contracts. Pl.’s Mot. to Supplement at 29-30. It notes that GAO “recognized that FEMA had
violated federal regulations in failing [to] collect formal or evaluate past performance
information for the PA TAC II contract.” Id. at 29 (citing AR 105-5218 n.20 (GAO’s First
Decision) (noting that although performance evaluations were required under 48 C.F.R. (“FAR”)
§ 36.604, they had not been created)). 8
I. JURISDICTION (STANDING)
The government raises a jurisdictional objection at the outset, arguing that Vanguard does
not have standing to bring its claims. To establish standing in a bid protest action in this court,
the protestor must be an “interested party.” 28 U.S.C. § 1491(b)(1). Interested parties are
7
Ms. Boardwine was the PA TAC Contracting Officer’s Technical Representative, as
well as the Source Evaluation Board Advisor and a member of the agency evaluation team in the
procurement. Compl. ¶ 59.
8
FAR § 36.604 is part of FAR Subpart 36.6 which pertains to “Architect-Engineer
Services.” Section 36.604 simply provides a cross-reference to another FAR provision: “See
42.1502(f) for the requirements for preparing past performance evaluations for architect-engineer
contracts.” In turn, FAR § 42.1502(f) is part of FAR Subpart 42.15, “Contractor Performance
Information.” In pertinent part, Section 42.1502(f) specifies that “[p]ast performance evaluations
shall be prepared for each architect-engineer service contract of $30,000 or more.”
10
“actual or prospective bidder[s] or offeror[s] whose direct economic interest would be affected
by the award of the contract or by failure to award the contract.” American Fed’n of Gov’t
Emps. v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001) (quoting 31 U.S.C. § 3551(2)); see
also Distributed Solutions Inc. v. United States, 539 F.3d 1340, 1344 (Fed. Cir. 2008); Rex Serv.
Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). To establish a direct economic
interest, the protestor must show that it had a “substantial chance” of being awarded a contract.
Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1378 (Fed. Cir. 2009); Weeks Marine,
Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009); Rex Serv. Corp., 448 F.3d at 1308.
A showing of prejudice also is a necessary element for standing. Information Tech. &
Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003); see also Bannum, Inc.
v. United States, 404 F.3d 1346 (Fed. Cir. 2005); Myers Investigative & Sec. Servs. v. United
States, 275 F.3d 1366, 1369-70 (Fed. Cir. 2002) ([S]tanding is a threshold jurisdictional issue.
. . . [P]rejudice (or injury) is a necessary element of standing.”). Non-prejudicial errors in the
procurement process do not invalidate a procurement. See Labatt Food Serv., 577 F.3d at 1380.
In short, both economic interest and prejudicial injury are standing requirements of a bid protest.
Id. 9
The government claims that Vanguard lacks standing because “re-evaluati[ng] sub-factor
1(a) and factor 4, as urged in [Vanguard’s] complaint, [would] not improve Vanguard’s ranking
above number six. . . . [E]ven if correct, Vanguard would not have a substantial chance of
securing a contract.” Def.’s Mot. at 8. According to the government, if Vanguard prevailed on
its claims, its ranking under factor 1 could [***], and its ranking under factor 4 would rise to
first. Id. at 10. The government argues, “Under the[se] hypothetical rankings, [***]. Id.
The SSN specified the relative importance of each of the five factors with respect to one
another, but did not dictate the Source Evaluation Board’s (“SEB’s”) use of firms’ rankings
across the five factors to derive a final ranked list of offerors. See AR 2-3. The government
would employ a relatively mechanical ranking process to fill that gap. That mechanistic
approach is particularly suspect because the Source Evaluation Board omitted to rank Vanguard
for factors 1 and 2, even though it received superior ratings for those important factors. See
9
This threshold inquiry into prejudice as a key element of standing begins with an
assessment of the sufficiency of the allegations in Vanguard’s complaint. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992); id. at 560-61 (Standing requires demonstration
of (1) an “injury in fact” that bears (2) a “casual connection” to the conduct complained of, and
which is (3) likely to be “redressed by a favorable decision.”). The first two elements provide
the focus for prejudice in support of standing in bid protest cases. See Information Tech. &
Applications, 316 F.3d at 1319; see also Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl.
672, 694-96 (2010).
Standing is a jurisdictional pleading requirement, but it is not a purely pleading exercise.
As with all jurisdictional facts, those relating to standing can be challenged, as they are here. At
that point, the protestor is put to its proofs, and in this setting the protestor must show by a
preponderance of the evidence that its allegations can be sustained. As the Supreme Court
observed in Lujan, each of the three standing elements “are not mere pleading requirements but
rather an indispensible part of the plaintiff’s case. Each element must be supported in the same
way as any other matter on which the plaintiff bears the burden of proof.” 504 U.S. at 561.
11
supra, at 8. Vanguard also has mounted challenges to more than simply the SEB’s analyses of
subfactor 1(a) and factor 4. See, e.g., Compl. ¶¶ 2(d)(v), 76-78 (alleging use of “improper” and
“unstated” criteria for evaluating firms); id. ¶ 80 (challenging CCPRS’ ranking); id. ¶ 84
(challenging IRC’s ranking). As a result, the government’s argument that Vanguard would not
have a substantial chance of receiving a contract even if it prevailed on its challenges is
unconvincing. Vanguard was one of the seven offerors “shortlisted” by FEMA for detailed
evaluation. Given the close ranking of the offerors, even “the slightest shifting of a single
adjectival rating could have significant impact not only on the ranking of a given protester, but
also on who they might be compared with in a tradeoff analysis.” Serco Inc. v. United States, 81
Fed. Cl. 463, 501 (2008). 10 Notably, in considering each of Vanguard’s protests, GAO plainly
believed that Vanguard had standing to challenge the award. See generally AR 105-5201 to
5220 (GAO’s First Decision); AR 134-5657 to 5677 (GAO’s Second Decision); Vanguard
Recovery Assistance-JV, B-401679 .11-.12 (Jan. 14, 2011).
Were Vanguard to prevail on its claims, it would have a “substantial chance” of being
awarded a PA TAC III contract, and it thus has a “direct economic interest” in the contract’s
award. Vanguard also has made a sufficient threshold showing of prejudicial injury to establish
that aspect of standing. Accordingly, Vanguard has standing to challenge the procurement.
II. TIMELINESS (WAIVER)
The defendant-intervenors maintain that Vanguard’s bid protest is untimely under an
extended application of the timeliness and waiver rule of Blue & Gold Fleet L.P. v. United
States, 492 F.3d 1308 (Fed. Cir. 2007), and thus that this protest ought to be dismissed. See
Def.-Intervenors’ Mot. at 15. In Blue & Gold Fleet, the Federal Circuit held that “a party who
has the opportunity to object to the terms of a government solicitation containing a patent error
and fails to do so prior to the close of the bidding process waives its ability to raise the same
objection subsequently in a bid protest action in the Court of Federal Claims.” 492 F.3d at 1313.
In short, a bidder may not stay silent about a flaw in a solicitation in the hopes either of winning
a contract or, alternatively, protesting the content of the solicitation request in the event it fails to
receive an award. Defendant-intervenors “freely acknowledge [they] are asking this [c]ourt for
an extension of the [w]a[iv]er [r]ule that was announced in Blue and Gold Fleet.” Hr’g Tr. 56:14 (Mar. 21, 2011). The extension defendant-intervenors seek is not supported by the government
— for very good reasons.
Unlike the plaintiff in Blue & Gold Fleet, Vanguard does not object to the terms of
FEMA’s solicitation, but rather to how FEMA evaluated the proposals. Vanguard did not hide
its grounds for protest; to the contrary, it placed them before GAO in a timely manner, albeit
unsuccessfully in the end, after two recommended reconsiderations and reevaluations. The
10
“In a multiple-award contract, prejudice analysis must take into account the impact of
the error on all the awards, including whether the correction of an error ‘might not only improve
the protester’s evaluation, but diminish that of a current awardee, or even eliminate that awardee
from further consideration altogether.’” Afghan Am. Army Servs. Corp. v. United States, 90 Fed.
Cl. 341, 366 (2009) (analyzing prejudice as a factor in deciding whether to grant injunctive
relief) (citing Serco, 81 Fed. Cl. at 501 (same)).
12
Defendant-intervenors request that this court extend Blue & Gold Fleet’s waiver rule to cover a
circumstance where (1) a solicitation was not defective, (2) an agency made an award, (3) a
bidder filed a post-award protest with GAO on the ground that the agency’s evaluation process
was allegedly flawed, (4) GAO recommended that an agency re-evaluate proposals, but
concurrently dismissed one or more aspects of the bidder’s protest, and (5) the agency
implemented GAO’s recommendations but did not seek new proposals for a contract.
Specifically, defendant-intervenors urge that a protestor in that setting which wished to preserve
the objections GAO did not adopt was obliged either to renew its objections before GAO (on a
pre-corrective-action basis) or file a protest in this court and seek to interrupt the corrective
action before it occurred. Given the posture of this particular protest, defendant-intervenors
argue that, after GAO’s first decision, Vanguard was obliged to object to FEMA’s reevaluation
before FEMA announced the awardees, either by asking for reconsideration by GAO or by filing
a complaint in this court.
Defendant-intervenors cite numerous GAO opinions which supposedly offer support for
their position, but none of the fact patterns addressed in those opinions are similar to Vanguard’s
situation. See Def.-Intervenors’ Mot. at 16-17 (citing Northrop Grumman Info. Tech., Inc., B400134.10, 2009 CPD ¶ 167, 2009 WL 2620070 (Comp. Gen. Aug. 18, 2009); Domain Name
Alliance Registry, B-310803.2, 2008 CPD ¶ 168, 2008 WL 4224768 (Comp. Gen. Aug. 18,
2008); L&N/MKB, Joint Venture, B-403032.3, 2010 CPD ¶ 298, 2010 WL 5142791 (Comp.
Gen. Dec. 16, 2010); Earth Res. Tech., Inc., B-403043.2, 2010 CPD ¶ 248, 2010 WL 4304182
(Comp. Gen. Oct. 18, 2010); Caddell Constr. Co. Inc., B-401281, 2009 CPD ¶ 130, 2009 WL
1771287 (Comp. Gen. June 23, 2009)).
These GAO decisions involve interpretations of 4 C.F.R. § 21.2(a), which governs the
time for filing GAO bid protests. See, e.g., Earth Res. Tech., Inc., B-403043.2, 2010 CPD ¶ 248,
2010 WL 4304182, at *4 (protest held untimely because the protestor “knew or should have
known of the basis of protest as a consequence of . . . receiving the . . . letter [explaining the
agency’s decision, and] . . . should have . . . protested the agency’s decision . . . within [ten] days
of receiving the . . . letter [as required by 4 C.F.R. § 21.2]”).
In Northrup Grumman, an agency specifically informed a bidder that it would not “hold
discussions or permit clarifications” of the bidder’s proposal during a solicitation reevaluation.
B-400134.10, 2009 CPD ¶ 167, 2009 WL 2620070, at *9. After the award was made, when the
bidder challenged the agency’s refusal to hold discussions, GAO found the protest untimely
because it was “unreasonable for [the bidder] to await the agency’s second award decision
without raising any challenge” when the bidder was aware of the alleged defect before the award
was made. Id.; see also Domain Name Alliance Registry, B-310803.2, 2008 CPD ¶ 168, 2008
WL 4224768, at *5-*6 (holding the same).
In L&N/MKB, Joint Venture, following a protest, an agency decided to conduct further
discussions with offerors, obtained and evaluated revised proposals, and made a new selection
decision. B-403032.3, 2010 CPD ¶ 298, 2010 WL 5142791, at *2. A bidder protested after the
contract was re-awarded, arguing that the agency “should have limited its corrective action to
simply reevaluating the firm’s proposals.” Id., at *3. GAO held the protest untimely because the
bidder was aware of the announced ground rules for recompetition before revised proposals had
13
to be submitted, but nevertheless waited until the award had been made to protest the plan for
recompetition. Id.; see also Caddell Constr. Co., B-401281, 2009 CPD ¶ 130, 2009 WL
1771287, at *3 (bidder’s post-award protest of competitor’s eligibility for an award was untimely
where, prior to the award, prequalified firms were publically identified and the bidder was “on
notice . . . of the facts necessary to argue” that its competitor was ineligible for the award).
These decisions by GAO applying its timeliness rule have no persuasive force where the
agency’s steps to take corrective action are ostensibly in accord with GAO’s ruling and
applicable regulations, and the flaw in the procurement process, if any, rests with a contention
that GAO rejected (and which relates to the agency’s initial and subsequent evaluation of offers,
not the solicitation itself). The government points out that in this setting, requiring an
intervening protest such as that urged as necessary by defendant-intervenors would be met with a
persuasive ripeness objection. Hr’g Tr. 79:21 to 80:8. As the government essentially
acknowledges, if a post-award protest were untimely, along the lines of defendant-intervenors’
argument, a pre-award protest would have to be ripe because “refusing to address . . . [the] pre[]award protest . . . would be tantamount to denying judicial review.” Centech, 78 Fed. Cl. at
506; see Hr’g Tr. 79:23 to 80:16. Here, had FEMA at any point in taking corrective action
modified its solicitation and called for new proposals, then the somewhat extended doctrine of
timeliness and waiver represented by the progeny of Blue & Gold Fleet in this court could well
have been triggered. 11 FEMA did not do so, and that doctrine even as extended accordingly does
not apply. The defendant-intervenors thus posit a “heads-I-win, tails-you-lose” overly-extended
version of the Blue & Gold Fleet rule that has no merit.
III. AMENDMENT AND SUPPLEMENTATION OF THE ADMINISTRATIVE
RECORD
When considering a bid protest, the court adheres to “the standards set forth in section
706 of title 5,” the section of the APA that prescribes the scope of judicial review of agency
actions. 28 U.S.C. § 1491(b)(4) (referring to 5 U.S.C. § 706). Under the APA, the court may set
aside an agency decision if the decision was “arbitrary, capricious, an abuse of discretion, or
11
Instructively, in some circumstances where a corrective action involved a change to the
solicitation and new proposals, a challenge to that corrective action would necessarily have to be
brought and a ripeness challenge would fail. In Sheridan Corp. v. United States, 95 Fed. Cl. 141
(2010), Ceres Gulf, Inc. v. United States, 94 Fed. Cl. 303 (2010), and Centech Group, Inc. v.
United States, 78 Fed. Cl. 496 (2007), awards of contracts were challenged in bid protests filed at
GAO. In response to the GAO protests, the agencies took corrective action and sought new
proposals for the contracts. The original awardees filed pre-award bid protests in the Court of
Federal Claims, challenging the agency’s corrective action. See Sheridan Corp., 95 Fed. Cl. at
150; Ceres Gulf, 94 Fed. Cl. at 316; Centech, 78 Fed. Cl. at 497-98. The government argued that
the protestors’ claims were not ripe for review, but the court disagreed. Sheridan Corp., 95 Fed.
Cl. at 149-50; Ceres Gulf, 94 Fed. Cl. at 316-18; Centech, 78 Fed. Cl. at 505-06. In each case,
the court opined that a post-award challenge would be untimely under Blue & Gold Fleet,
because Blue & Gold Fleet requires bidders to object to the terms of a government solicitation
before the award is made. See Sheridan Corp., 95 Fed. Cl. at 150; Ceres Gulf, 94 Fed. Cl. at
308; Centech, 78 Fed. Cl. at 505.
14
otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). “As a general rule, in
determining whether an agency’s actions are arbitrary or irrational, the ‘focal point for judicial
review . . . should be the administrative record already in existence, not some new record made
initially in the reviewing court.’” Knowledge Connections, Inc. v. United States, 79 Fed. Cl. 750,
759 (2007) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985) (which in
turn quoted Camp v. Pitts, 411 U.S. 138, 142 (1973))). However, the administrative record of a
protested procurement submitted by the agency involved is not always a complete record of
documentary materials generated during the procurement and maintained contemporaneously
with the occurrence of the salient events or actions associated with the procurement. When the
record submitted by the agency is not complete, a motion to correct or supplement the record is
appropriate.
Motions to amend or supplement the administrative record in bid protest actions in this
court are governed by the Federal Circuit’s decision in Axiom Res. Mgmt., Inc. v. United States,
564 F.3d 1374 (Fed. Cir. 2009). Under Axiom, “supplementation of the [administrative] record
should be limited to cases in which ‘the omission of extra-record evidence precludes effective
judicial review.’” Id. (quoting Murakami v. United States, 46 Fed. Cl. 731, 735 (2000), aff’d,
398 F.3d 1342 (Fed. Cir. 2005)). “The 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. (quoting Murakami, 46 Fed. Cl. at
735). However, to perform an effective review pursuant to the APA, the court must have a
record containing the information upon which the agency relied when it made its decision as well
as any documentation revealing the agency’s decision-making process. See Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (“[S]ince the bare record may not disclose
the factors that were considered or the Secretary’s construction of the evidence[,] it may be
necessary for the [d]istrict [c]ourt to require some explanation in order to determine if the
Secretary acted within the scope of his authority and if the Secretary’s action was justifiable
under the applicable standard.”), abrogated in an unrelated respect by Califano v. Sanders, 430
U.S. 99, 105 (1977); see also Montana Fish, Wildlife, & Parks Found., Inc. v. United States, 91
Fed. Cl. 434, 440-41 (2010).
A. Motions for Partial Dismissal of Those Portions of Vanguard’s Complaint
That Relate to Supplementation
Vanguard has challenged the completeness of the administrative record both in its bidprotest complaint and in its motion to supplement the record. In Count One of its complaint,
Vanguard alleges that “FEMA unreasonably failed to consider evidence of unreliable cost
estimating by the incumbents on their PA TAC contracts that fell within the [five]-year
evaluation period [specified in the solicitation].” Compl. ¶ 59. Vanguard contends that “[t]his
information was known [by], [or] possessed [by] and . . . available to Ms. Boardwine, the PA
TAC [Contracting Officer’s Technical Representative], SEB Advisor, a member of the agency
evaluation team and[,] upon information and belief, . . . to the S[ource] S[election] A[uthority].”
15
Id. 12 As Vanguard would have it, “[s]uch negative information on the incumbent contractors
was ‘too close at hand to ignore’ and was required to be considered under federal law.” Id. This
claim also is at the heart of Vanguard’s motion to supplement the record which rests on the
contentions that FEMA officials had contravened FAR provisions requiring that performance
evaluations be prepared for the contractors on the antecedent PA TAC contracts, that the officials
nonetheless had experience and performance information regarding the incumbents, and that the
officials wrongfully did nothing to develop or consider that experience and information in taking
action in the procurement at issue. Pl.’s Mot. to Supplement at 1-4.
The government and defendant-intervenors argue that Count One of Vanguard’s
complaint fails to state a claim upon which relief may be granted because “Vanguard alleges that
the [Source Evaluation Board] erred by not considering documents that, under the solicitation, it
could not have considered.” Def.’s Mot. at 16; see also Def.-Intervenors’ Mot. at 33-34. The
government maintains that FEMA’s failure to consider the reliability of incumbents’ PA TAC
contract cost-estimating cannot give rise to a claim upon which relief can be granted because
FEMA was not permitted to consider incumbents’ “past performance” under subfactor 1(a) of
the solicitation, which asked for documentation of bidders’ cost-estimating “experience.” See
Def.’s Mot at 17; see also Def.-Intervenors’ Mot. at 33-34; AR 105-5216 (GAO’s First Decision)
(“The agency and intervenors, however, argue that Vanguard’s protest, as it relates to subfactor
1A, is misguided because it confuses the concepts of experience and past performance. We
agree.”). The government avers that “for evaluation other than of past performance, where the
[g]overnment is not permitted to look outside the offers, the ‘too close at hand’ rule does not
apply.” Def.’s Mot. at 17 (citing Linc Gov’t Servs., 96 Fed. Cl. 672); Career Training Concepts
v. United States, 83 Fed. Cl. 215, 232 (2008)). It contends that “[t]he FAR distinguishes between
past performance evaluations and experience evaluations in the procurement of architectengineer services.” Def.’s Mot. at 18 (citing FAR § 36.602-1(2), -1(4)). Defendant-intervenors
mirror these arguments by asserting that “[i]t is hornbook law that ‘experience’ and ‘past
performance’ are two separate things” and that subfactor 1(a) only concerned bidders’
experience. Def.-Intervenors’ Mot. at 33 (citing John Cibinic, Jr. & Ralph C. Nash, Jr.,
Formation of Government Contracts 737 (3d. ed. 1998)). GAO concurred with the defendants’
position in its first decision, explaining, that “[g]enerally, an agency’s evaluation under an
experience factor is distinct from its evaluation of an offeror’s past performance. . . .
[Q]ualitative assessments were properly considered under the [Source Selection Notice’s] past
performance factor.” AR 105-5216.
Vanguard contests the conclusion that subfactor 1(a) only concerned “experience” and
not “past performance.” It noted in its complaint that “the [Source Selection Notice] expressly
called for actual reliability and variance data . . . to be a part of th[e] [s]ubfactor [1(a)]
evaluation.” Compl. ¶ 61; see also Pl.’s Reply at 3. Vanguard is correct that subfactor 1(a) of
the solicitation was multi-faceted. It asked bidders to identify projects that demonstrated their
experience in “developing reliable cost estimates” and required a “detailed explanation of the
reasons for any variances on the identified completed projects that exceed plus or minus [ten]
12
Vanguard also points out that Ms. Boardwine was the “Chief of the PA TAC
Management Branch of the PA Division [and] served as the single and central point of contact
for all PA TAC contractor activity nationwide.” Compl. ¶ 20.
16
percent between the estimated costs in the proposed solicitation and the actual costs of the
completed project.” AR 6A-40.2. On this basis, subfactor 1(a) “in part called for actual past
performance information for the prior [five] years.” Pl.’s Reply at 3. In short, subfactor 1(a) did
not ask firms to state merely whether they had cost-estimating experience, but also how reliable
those cost estimates were. Although GAO and defendants might be correct that generally
experience and past performance are addressed in separate factors, in this instance the text of
subfactor 1(a) plainly embraces both an assessment of experience and of cost-estimating
performance.
When ruling on a motion to dismiss under RCFC 12(b)(6), the court must construe the
allegations of the complaint in the light that is most favorable to the plaintiff. See Henke v.
United States, 60 F.3d 795, 797 (Fed. Cir. 1995); see also Hamlet v. United States, 873 F.2d
1414, 1416 (Fed. Cir. 1989). Vanguard’s allegation that certain past performance information
was known and available to the FEMA officials who were involved in its solicitation but was
ignored even though it was “too close at hand,” states a plausible claim, especially in light of
FEMA’s admitted failure to cause performance evaluations to be made regarding incumbent
contractors on the predecessor contracts and its failure to take any measure to fill that gap. See
Linc Gov’t Servs., 96 Fed. Cl. at 695, 698-700 (finding, among other things, that plaintiff had
pled a plausible claim in part because the SSA excluded from consideration allegedly negative
past performance by other offerors). In addition, subfactor 1(a) touched on both the incumbent
contractors’ past experience and performance as to estimating reliability, and the “too close at
hand” rule applies to agency’s evaluation of past performance. Career Training Concepts, 83
Fed. Cl. at 232. Accordingly, defendant’s and defendant-intervenors’ motions to dismiss
Vanguard’s allegations regarding FEMA’s duty to evaluate the incumbent contractors’
experience and performance are unavailing. 13
13
Defendant-intervenors also contest the validity of Count Two of Vanguard’s complaint,
which alleges that FEMA, in its factor 4 evaluations, unreasonably evaluated Vanguard’s past
performance and failed to consider past performance data about incumbent firms which was “too
close at hand to ignore.” Compl. ¶¶ 64, 65. FEMA has maintained that it did not collect past
performance information on the PA TAC II contracts. See Def.’s Resp. to Pl.’s Mot. to
Supplement (“Def.’s Opp’n”) at 10-11 (citing AR 79-4905 (Decl. of Lorine Boardwine (Jan. 22,
2010) (“First Boardwine Decl.”)); AR 99-5152 (Supplemental Decl. of Lorine Boardwine (Feb.
25, 2010) (“Second Boardwine Decl.”)); AR 90-5041 to 5044 (Decls. of the SEB members,
Sherry Savoy (Feb. 4, 2010), Preston Wilson (Feb. 4, 2010), Mary Lowe (Feb. 2, 2010), and
Shabbar Saifee (Feb. 16, 2010)); AR 79-4903 (Decl. of Valerie Rhoads, SEB Chairperson)). As
a result, Vanguard has asked the court to rule that FEMA should have exercised other means of
generating performance evaluations of the PA TAC II incumbent contractors. Defendantintervenors argue the court “has never applied the ‘too close at hand’ doctrine to require
consideration of raw, unedited, and unsynthesized contract administration data” and applying the
doctrine in this case would require the government to “spend months if not years[] collecting and
synthesizing tens of thousands of documents that may or may not actually bear on the
incumbents’ performance.” Def.-Intervenors’ Mot. at 23, 24 (emphasis omitted). Defendantintervenors’ criticism of Vanguard’s further claims about FEMA’s failure to develop
performance information about incumbent contractors is not persuasive insofar as a motion to
17
Also, in Count One of its complaint, Vanguard alleges that “FEMA . . . unreasonably
found Vanguard’s revised Cost Estimating Reliability proposal to be ‘very theoretical.’” Compl.
¶ 60. The government contends that no claim upon which relief can be granted is stated by that
allegation. Def.’s Mot. at 18. Defendant-Intervenors put forward a similar contention. See Def.Intervenors’ Mot. at 32-34. The government elaborates that “Vanguard does not allege that the
[Source Selection Authority] abused her discretion, only that there is another reasonable result of
the evaluation. . . . [T]his [c]ourt may not . . . substitut[e] its own judgment . . . for that of the
[Source Selection Authority].” Id. The government’s description of Vanguard’s allegation is
misleading. Vanguard has not conceded that the Source Selection Authority acted reasonably;
rather, it specifically characterizes FEMA’s evaluation of Vanguard’s proposal as
“unreasonabl[e].” Compl. ¶ 60. Moreover, the legal sufficiency of a complaint does not depend
upon whether or not the plaintiff invoked the right “magic words,” but instead whether the facts
as alleged may plausibly be construed to state a claim that meets the standards of RCFC
12(b)(6). See Ashcroft v. Iqbal, __ U.S. __, __, 129 S. Ct. 1937, 1950 (2009) (clarifying the
dismissal standard under Rule 12(b)(6) and noting that while Rule 8 “does not unlock the doors
of discovery for a plaintiff armed with nothing more than conclusions,” “Rule 8 marks a notable
and generous departure from the hyper-technical, code-pleading region of a prior era”); see also
Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006); Quantum Color Graphics, LLC
v. Fan Assoc. Event Photo GmbH, 185 F. Supp. 2d 897, 904 (N. D. Ill. 2002). Vanguard’s
complaint is readily understood to claim that FEMA abused its discretion in evaluating
Vanguard’s proposal. The government’s and defendant-intervenors’ motions to dismiss
Vanguard’s allegations of a wrongful evaluation are denied.
B. FEMA’s Decision to Omit Information Regarding the Incumbent
Contractors’ Estimating Accuracy or Performance Evaluations
FEMA concededly failed to generate past performance evaluations of the PA TAC II
contractors as required by FAR §§ 36.604, 42.1502(f). See Def.’s Opp’n at 16 (“[T]here are no
evaluation worksheets for PA TAC II, which primarily covered the three-year period for
evaluation of past performance under factor 4.”); AR 79-4905 (First Boardwine Decl.) (“[T]he
Quality Assurance Surveillance Plan . . . and applicable FAR clauses were not incorporated into
the [PA TAC II] contract awards; therefore, past performance information was not collected.”);
AR 99-5153 (Second Boardwine Decl.) (“[T]here is no past performance information on PA
TAC II, particularly that which is related to the accuracy of developing thousands of costs
estimates, that I could have made available to the [Source Evaluation Board].”).
In its first decision, GAO recognized that “FEMA [had] failed to incorporate any
mechanism for measuring performance under [the PA TAC II] contracts” and that FEMA’s “lack
of oversight” was “troubling.” AR 105-5218 (GAO’s First Decision). GAO did not act on
FEMA’s failure to collect required performance information or to generate PPQs as a substitute.
GAO did, however, sustain Shaw-Parsons’ protest that FEMA unreasonably “failed to consider
the PPQs it received regarding Shaw-Parsons’ performance [on different contracts], as well as
dismiss is concerned. Vanguard has stated potentially viable claims; the salient question is
whether those claims have validity, first with respect to Vanguard’s motion to supplement the
administrative record and, second, on the merits.
18
those of the other firms.” AR 105-5209 (GAO’s First Decision). Although FEMA had also
failed to complete Past Performance Questionnaires for all of the incumbent PA TAC II
contractors, PPQs existed for some firms regarding work on other contracts. FEMA claimed that
it had not considered available PPQs because “PPQs did not match the factors for evaluation
under the [Source Selection Notice]” and because considering the PPQs “would have been unfair
given that the agency did not receive PPQs for some references for some firms and some of the
PPQ responses addressed firms’ performance under individual task orders, rather than the firms’
overall contract performance.” AR 105-5211. Nonetheless, GAO decided the existing PPQs had
to be considered because omitting them “would be at odds with the very nature of the ‘close at
hand’ principle. . . . [O]nce [FEMA] had the PPQs, it could not simply ignore them.” AR 1055212. FEMA’s past performance evaluation was therefore unreasonable because “the agency
fail[ed] to give meaningful consideration to all the relevant past performance information it
possesse[d].” AR 105-5209 (citing DRS C3 Sys., LLC, B-310825, B-310825.2, 2008 CPD ¶ 103,
at 22 (Comp. Gen. Feb. 26, 2008)).
Throughout the proceedings before GAO and then before the court, FEMA has offered
little explanation as to why it ignored incumbent firms’ past performance and experience under
the PA TAC I and II contracts when making awards under PA TAC III. The closest FEMA
came to such an explanation was a statement in the Second Boardwine Declaration, submitted to
GAO on February 25, 2010, as follows:
In late 2009, the FEMA’s PA Division began collecting
information regarding projects developed using CEF [FEMA’s
Cost Estimating Format]. By analyzing the data, FEMA will have
valuable information [on] the accuracy of the cost estimates being
developed using CEF, and will be able to begin to draw
conclusions on the cause(s) of inaccurate cost estimates. At this
time, the information remains unavailable for dissemination.
AR 99-5152 (Second Boardwine Decl.). Lorine Boardwine had significant responsibilities both
with the PA TAC program and the Source Evaluation Board. She was the PA TAC III’s Source
Evaluation Board Advisor, the Contracting Officer’s Technical Representative for the PA TAC
Program, and the designated point of contact for incumbents’ PA TAC II PPQs. See AR 985121, 5121 n. 7 (Vanguard’s Second Comments to the Agency Report (Feb. 22, 2010)); Def.’s
Opp’n Ex. A (Third Decl. of Lorine Boardwine (Feb. 18, 2011)) ¶ 2.
Ms. Boardwine did not complete any PPQs for the PA TAC II contract. See AR 98-5121.
Former FEMA employee Martin Altman declares that he provided “TAC Evaluation Worksheets
for all of the PA TACs working in the State of Florida” to Ms. Boardwine and that “[t]he
instructions on the TAC Worksheets required the forms to be completed and sent to
Ms. Boardwine . . . on a quarterly basis.” Pl.’s Mot. to Supplement Ex. 1 (Decl. of Martin
Altman (Jan. 3, 2011)) at 1. 14 These Worksheets apparently related to work accomplished under
14
The TAC Worksheet forms did not specify a specific contract or contractor, but covered
the overall past performance of the PA TACs on the particular disasters indicated on the form.
Mr. Altman avers that from 2005 until January 2009, he served as the Infrastructure Branch
19
the PA TAC I contracts, some of which was still underway in 2009. 15 Yet, Ms. Boardwine
focused on the PA TAC II contracts, maintaining that “[t]here is no central repository for past
performance assessments for the . . . PA TAC II awards,” AR 79-4905 (First Boardwine Decl.),
and that it is “inaccurate” to say that there is any “past performance information that could have
been provided to the Source Evaluation Board . . . for the PA TAC III procurement.” AR 995152 (Second Boardwine Decl.).
Ms. Boardwine’s declarations submitted to GAO and this court amount to post-hoc
rationalizations of FEMA’s decision neither to generate nor to consider agency information on
incumbent past performance when awarding the PA TAC III contracts. Among other things, she
objected to drawing any inference that the PA TAC III contract was to be performance-based.
See AR 99-5153 (Second Boardwine Decl.) (“PA TAC III will not be performance-based. This
decision was made in acknowledgment of the difficulty of evaluating the performance of the PA
TACs. . . . [S]atisfactory performance can be established only at the end of a project . . . [but i]n
many instances, the PA TAC awards have expired by the time the projects are complete, thereby
precluding the opportunity for an accurate performance assessment . . . .”). This position was not
uniformly accepted within FEMA. A report by the Department of Homeland Security’s Office
of the Inspector General (“IG”) notes a disagreement on whether or not the PA TAC II contracts
were performance based. “According to the Alternate PA[ ]TAC COTR, there should be
expectations established and monitoring of contractor performance. The Alternate PA[ ]TAC
COTR said that the former PA[ ]TAC COTR believed that these contracts were not performance
based, but the Alternate PA[ ]TAC COTR strongly disagreed with that position. The PA[ ]TAC
contract states that the task orders awarded under the three base contracts will be performance
based.” Pl.’s Mot. to Supplement Ex. 10 (OIG-11-02 Report (Oct. 21, 2010) (“IG’s Report”)) at
Chief for the Florida Long Term Recovery Office, first in Orlando and then in Lake Mary,
Florida. Altman Decl. ¶ 2. He also states that he “was the Task Monitor responsible for
administering and managing the PA TACs as they were providing support for disasters in the
State of Florida,” id., and that during that service he provided Ms. Boardwine with TAC
Evaluation Worksheets for all of the PA TACs working in the State of Florida. Id. ¶ 5.
15
Mr. Altman explained that, according to his records, during his service as Task Monitor
from 2005 until January 2009, “the PA TACs were funded under two contract vehicles called PA
TAC I . . . and PA TAC II . . . . The TAC Worksheet forms did not identify a specific contract
vehicle but covered the overall past performance of PA TACs on the disasters indicated on the
form.” Pl.’s Mot. to Supplement Ex. 1 at ¶ 5. Ms. Boardwine claims that “[w]hen funding ran
out for an open PA TAC I task order for which work was incomplete, FEMA cancelled the work
under PA TAC I and issued a new task order under PA TAC II.” Def.’s Opp’n Ex. A at ¶ 9
(Third Boardwine Decl.). Although Mr. Altman states that he provided TAC worksheets to Ms.
Boardwine without knowledge of whether a task order was funded under PA TAC I or PA TAC
II, Pl.’s Mot. to Supplement Ex. 1 at ¶ 5, Ms. Boardwine avers that “[o]nce FEMA transferred
the work from PA TAC I to PA TAC II, performance was no longer measured through an
evaluation tool similar to the PA TAC evaluation worksheet, since the new QASP and evaluation
took had not been incorporated in the PA TAC II contracts.” Def.’s Opp’n Ex. A at ¶ 9 (Third
Boardwine Decl.).
20
12. Saliently, the IG’s Report states that “FEMA officials did not answer our request for an
explanation as to why performance expectations were not established for the task orders or why
contractor performance was not evaluated.” Id.
C. The GAO Reports and the IG’s Report
Vanguard urges the court to add the two GAO reports and the IG’s Report to the
administrative record. Pl.’s Mot. to Supplement at 15-17. The GAO reports were issued in
February 2008 and December 2008, respectively, and address the accuracy and reliability of
cost-estimates provided by or for FEMA. For example, GAO Report 08-301 states, “FEMA
officials told us that at 90 days . . . after the declaration the overall estimate of costs related to
any given noncatastrophic natural disaster is usually reasonable, . . . defined as within [ten]
percent of actual costs. However, our analysis of FEMA’s data for the 83 noncatastrophic
natural disaster declarations from 2000 to 2006 . . . was not consistent with this.” Pl.’s Mot. to
Supplement Ex. 3 (GAO Report 08-301: Disaster Cost Estimates (Feb. 2008) (“First GAO
Report”)) at 3; see also id. at 9, 14-15. Neither report names specific PA TAC contractors,
although the GAO reports indicate that necessarily much of the technical assistance work in
responding to disasters was done by contractors. FEMA’s response to GAO Report 09-129
states that “[t]he [Hurricane Katrina and Rita] disaster was primarily staffed with Technical
Assistance Contractors (TAC) after the disaster struck. . . . [M]ost of the TACs now staffing the
disaster have been [t]here an average of over two years. . . . [D]ay to day PA operations for
Hurricanes Katrina and Rita are still handled primarily by TACs.” Pl.’s Mot. to Supplement Ex.
4 (GAO Report 09-129: Disaster Recovery (Dec. 2008) (“Second GAO Report”)) at 54 (Letter
from Jerald E. Levine, Director, Departmental Audit Liaison Office, Department of Homeland
Security, to Stanley J. Czerwinksi, Director, Strategic Issues, GAO (Dec. 11, 2008)).
Among other things, the IG’s Report discusses “[i]mprovements [n]eeded in FEMA’s
[m]anagement of [PA TAC] contracts.” IG’s Report at 1. It explained, “FEMA was unable to
determine whether the PA[ ]TAC contractors performed their responsibilities or if the federal
government received a fair return for PA[ ]TAC services contracts.” Id. at 10. The IG’s Report
recommended that FEMA “develop performance and evaluation criteria” for the PA TAC II
contracts and noted that “FEMA concur[red] with [its] recommendation.” Id. at 14.
The government objects to the addition of the GAO reports on the ground that they were
not part of the record considered by the agency. See Def.’s Opp’n at 19 (citing AR 63-4739
(Letter from Jean Hardin to Edward Goldstein, Esq., GAO Procurement Law Control Group
(Jan. 6, 2010)) (“The SEB panel chair acknowledged she did not consider the reports.”)). The
government further argues that the information in the GAO reports concerned a time period prior
to the three-year past performance evaluation window in factor 4, and thus could not have been
considered by the agency under the solicitation. See Def.’s Opp’n at 20-21. Finally, the
government asserts that “[t]he [GAO-09-129] report relates only to FEMA’s management, not
the performance of the incumbent contractors,” id. at 19, and that the GAO-08-301 report
“attributed the deficiency [in cost-estimating] to FEMA.” Id. at 21. Vanguard argues that the
GAO reports “prove that incumbent adverse cost estimating and performance information [was]
readily available to the [Source Selection Board] Advisor [and] that [it] was too close at hand
21
and should have been available to and considered by the [Source Selection Board].” Pl.’s Reply
at 12.
The GAO reports were made part of GAO’s record on December 7, 2009, in advance of
GAO’s First Decision. Those reports deal with the accuracy and reliability of cost-estimates
prepared by or for FEMA. The time periods discussed in the GAO reports are also no barrier to
consideration, as subfactor 1(a) considered experience with and past performance of costestimating going back five, rather than three, years. See AR 6A-40.2 (Amended Source
Selection Notice).
The government also objects to the addition of the IG’s Report. See Def.’s Opp’n at 2122 (“[T]he IG’s [R]eport . . . did not exist until two business days prior to the last source
selection authority decision. . . . There is no evidence that the SSA or any of the SSB members
received a copy of the report . . . or considered it as part of the source selection decision.”).
Nonetheless, FEMA itself appears to have attached a portion of the IG’s Report to an agency
report it submitted to GAO. See Pl.’s Mot. to Supplement at 17. Regarding the IG’s Report,
Vanguard contends that “[w]hether the IG[’s R]eport . . . was available to the [Source Selection
Board] is not the issue. While FEMA asserts that there is no formal past performance
information on the PA TAC II contract, the IG[’s] Report shows that substantial data on the
performance on the PA TAC II was sent directly to the COTR, Ms. Boardwine. . . . [T]he IG[’s
R]eport directly addresses the availability of performance information on [the] PA TAC II
program to the SEB Advisor and COTR.” Pl.’s Reply at 13.
FEMA did not consider incumbents’ estimating-reliability and past performance
information when awarding the PA TAC III contract and has justified its omission by claiming
there was no past performance information on the PA TAC II contract that it could have
considered. That such information existed in some form is shown by the GAO reports and the
IG’s Report because the information was incorporated in a limited fashion in the GAO reports
and the IG’s Report. Moreover, knowledge of the reports was not restricted narrowly as shown
by the fact that FEMA was involved with, and responded to, the GAO reports and the IG’s
Report, as they were ultimately published. Ms. Boardwine necessarily had to be implicated in
FEMA’s role with GAO’s and the IG’s activity. In addition, the GAO reports played a part in
GAO’s final decision and correlatively in FEMA’s first reevaluation in assessing PPQs that had
been before the SEB but ignored. See supra, at 5-6 (describing GAO’s First Decision and
FEMA’s resulting reevaluation). As a consequence, the GAO reports and the IG’s Report are
properly included in the administrative record of this procurement, and Vanguard’s motion to
supplement the record will be granted in that regard. See Northeast Military Sales, Inc. v. United
States, __ Fed. Cl. __, __, 2011 WL 1740600, at *3-*4 (Apr. 15, 2011).
D. Vanguard’s Discovery Requests
1. PA TAC 1 worksheets and other documentary materials.
Vanguard has asked for an extensive list of documents to be added to the administrative
record, including TAC evaluation worksheets and almost any reports, worksheets, documents,
and communications that bear on the past performance of incumbent PA TAC contractors. See
22
Pl.’s Mot. to Supplement at 22-27. Vanguard urges that these documents be included on the
ground that “[i]nformation available to an agency on an incumbent’s performance of a
predecessor contract when evaluating a [nearly] identical follow-on contract is legally required to
be considered because it would be ‘[] unfair to the agency and to other competitors and thus
inconsistent with the competitive procurement system’ to ignore such highly relevant
information.” Id. at 18 (quoting Continental Marine of San Diego, Inc., B- 249858, B249858.2, B-249858-.3, 93-1 CPD ¶ 230, 1993 WL 86794, at *4 (Comp. Gen. Feb. 11, 1993);
and citing G. Marine Diesel; Phillyship, B-232619, B-232619.2, 89-1 CPD ¶ 90, 1989 WL
240304 (Comp. Gen. Jan. 27, 1989); GTS Duratek, Inc., B-280511.2, B-280511.3, 98-2 CPD
¶ 130, 1998 WL 840923 (Comp. Gen. Oct. 19, 1998)).
Information on PA TAC II incumbents’ past performance is and was obviously available
to FEMA. However, it is available in raw form and has not been organized or presented in a
comprehensive manner. Each individual TAC worksheet appears to be a snapshot of a particular
project at a particular time. When awarding the PA TAC III contract, the SEB manifestly did not
consider this material, and, indeed, if the declarations of Ms. Boardwine and the SEB members
are to be credited, endeavored to avoid considering it. Although FEMA was legally required to
conduct past performance evaluations and to consider those evaluations when awarding the PA
TAC III contracts, “overall” past performance evaluations were never made. AR 79-4905 (First
Boardwine Decl.). 16 The court cannot consider evaluations that FEMA never created and cannot
consider reams of documents which would comprise part, but only a part, of the raw material
needed to prepare evaluations. This is so even though the Technical Advisor to the SEB, who
was also the Chief of the Public Assistance (PA) Technical Assistance Contract (TAC)
Management Branch of the Public Assistance Division, and who received the PA TAC
Worksheets over a period of years, had to have a very good sense of the performance of the
several incumbent contractors working on PA TAC I and II. Why she did not prepare PPQs
based on that detailed experience is not explained.
The documents Vanguard proposes to add to the administrative record neither illuminate
“the factors that were considered” by FEMA when it awarded the PA TAC III contracts nor how
FEMA “construct[ed] . . . the evidence” upon which it did rely. Citizens to Preserve Overton
Park, 401 U.S. at 420. Whether cost-estimating reliability and past performance information
was available speaks to the issue of whether or not FEMA’s evaluations were arbitrary and
capricious, but to substitute voluminous amounts of atomistic raw data for holistic performance
evaluations would run the risk of “convert[ing] the arbitrary and capricious standard into
effectively de novo review.” Axiom Res. Mgmt., 564 F.3d at 1380 (internal quotation marks
omitted). Accordingly, the court denies Vanguard’s request for FEMA to produce worksheets
and related documents concerning the PA TAC I and II contracts.
16
In a declaration made February 25, 2010, the Chairperson of the SEB, Valerie Rhoads,
stated that “[p]ast performance has other components than just cost estimating skills.” AR 995149 (Rhoads Decl.).
23
2. Depositions.
Vanguard requests a deposition of Ms. Boardwine because “her declarations raise more
questions than answers” and because Vanguard aims to establish that Ms. Boardwine had
personal knowledge about the incumbent contractors’ estimating reliability and past
performance. Pl.’s Mot. to Supplement at 27. The government avers that there is nothing for
Vanguard to discover: “Ms. Boardwine stated in her February 25, 2010 supplemental
declaration[, i.e., the Second Boardwine Declaration,] that she did not have any recollections of
any concerns by FEMA task monitors with the accuracy of incumbents’ cost-estimates. . . . Her
recollection is fully supported by the documents in the record and . . . evaluation worksheets.”
Def.’s Opp’n at 33 (citing AR 99-5152).
The government’s objection is unconvincing. As Vanguard notes, the government
continually relies on Ms. Boardwine’s three declarations to support the proposition that FEMA
did not have cost-estimating reliability and past performance information on the PA TAC II
incumbent firms. See Pl.’s Reply at 14. Each of Ms. Boardwine’s declarations are post-hoc
interpretations, recollections, and excuses, as are the declarations by each of the SEB members
that the government has caused to be included in the record of this post-award protest. Vanguard
has responded by putting forward declarations of a number of persons involved or familiar with
FEMA’s PA TAC contractual work, some of which were part of the record of protests before
GAO 17 and others of which have been presented in the protest pending before the court. 18 This
response by Vanguard is perhaps understandable in the circumstances because of the declarations
upon which the government heavily relies, but it primarily serves to emphasize that the court is
being confronted with a bid protest which is being litigated largely on the basis of post hoc
declarations that were not before FEMA at the time it made the initial award of contracts in this
procurement, and, in significant part, were not and could not have been before FEMA when it
made its decisions upon reevaluation based upon GAO’s recommendations. This state of affairs
is not tenable as a legal matter. Statutorily, bid protests in this court are to proceed in accord
with “the standards set forth in section 706 of title 5,” 28 U.S.C. § 1491(b)(4), not on the basis of
a new record addressed by the parties in court.
Ms. Boardwine’s declarations are at the core of this unsatisfactory mode of proceeding.
Her declarations are more significant for what they do not state than what they aver directly. For
example, she declared, “While I do communicate with PA TAC Task Monitors on a variety of
PA TAC issues, most issues are in regard to the performance or conduct of individual technical
specialists deployed by the PA TACs, rather than overall PA TAC performance by the Prime
Contractors.” AR 99-5152 (Second Boardwine Decl.). The use of the term “most” invites the
question of what broader PA TAC issues Ms. Boardwine encountered. As Vanguard observes,
Ms. Boardwine did not volunteer information about “her knowledge of unreliab[le] cost
17
See, e.g., AR 98.01-5125 to 5126 (Decl. of Daniel Craig); AR 98.01-5127 to 5128
(Supp. Decl. of Steven Glenn).
18
See, e.g., Pl.’s Mot. to Supplement Ex. 7 (Third Decl. of Steven Glenn (Feb. 9, 2011)),
Ex. 8 (Decl. of Teresa Carter (Feb. 9, 2011)), Ex. 9 (Decl. of Bruce Lockwood (Feb. 9, 2011)).
24
estimating [on the PA TAC I contract]. . . . [or] whether she had direct knowledge of or ready
access to adverse performance [information] in . . . TAC Evaluation Worksheets that were
e-mailed or faxed to her.” Pl.’s Reply at 14-15.
“[A] reviewing court has [the] power to require an explanation” for an agency’s actions.
Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1338 (Fed. Cir.
2001). Although “[an] agency decision is entitled to the presumption of regularity,” “that
presumption [can be] rebutted by record evidence suggesting the agency decision [wa]s arbitrary
and capricious.” Id. The existence of the GAO reports and the mystifying absence of PPQs
related to the PA TAC I and PA TAC II contractors suggest that incumbent estimating-reliability
and past performance information may have been consciously disregarded by FEMA. Evidence
that FEMA disregarded past performance information in its possession would indicate that it had
chosen PA TAC III awardees in an arbitrary and capricious manner. 19 One alternative available
to the court would be to invoke Florida Power & Light, 470 U.S. at 744, and to remand the
procurement action to FEMA with a direction to address specifically the causes for the absence
of incumbent contractor information, including the failure to provide PPQs if no formal
evaluations were available, and, potentially, to require that, at a minimum, PPQs be prepared, a
fresh analysis be performed, and a new decision made using the resulting materials. The court
must, however, take into account that this procurement has already been suspended for a
considerable time as a result of the prior proceedings before GAO. Another alternative available
to the court is to obtain directly the testimony of the pertinent FEMA officials, as was approved
in Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1338. That mode of proceeding
has the advantage that it would give effect to “the need for expeditious resolution of the action,”
28 U.S.C. § 1491(b)(3), which the governing statute requires this court to take into account. See
Bannum, 404 F.3d at 1356. As a consequence, to move this litigation forward, the court will
allow Vanguard to conduct a four-hour deposition of Ms. Boardwine. See Impresa Construzioni
Geom. Domenico Garufi, 238 F.3d at 1338-39; Citizens to Preserve Overton Park, 401 U.S. at
420.
19
There are at least three types of instances in which the agency record of a procurement
action may well be incomplete or absent and require further development. Those situations can
arise (1) with allegations of bias, see Pitney Bowes Gov’t Solutions, Inc. v. United States, 93 Fed.
Cl. 327, 332-34 (2010) (concluding that an allegation of bias on the part of a panel member who
may have influenced a consensus determination was supported by destruction of the individual
members’ evaluation sheets); L-3 Commc’ns Integrated Sys., L.P. v. United States, 91 Fed. Cl.
347, 351-52, 357-58 (2010) (finding that allegations of bias based upon proven exercise of undue
influence by Principle Deputy Assistant Secretary of the Air Force for Acquisition was sufficient
to require supplementation of the record), amended on reconsideration in part by, __ Fed. Cl. __,
__ 2011 WL 311035 (Feb. 2, 2011) (finding that four out of thirty supplementary documents
were not required for judicial review), (2) with organizational conflicts of interest, see Systems
Plus, Inc. v. United States, 69 Fed. Cl. 757, 770-73 (2006), and (3) with potential application of
the “too close at hand to ignore” doctrine, where a court may well have to look outside the
agency record to determine tentatively what, if anything, the agency had in hand but did not
consider, as this case illustrates.
25
Vanguard also seeks to depose Elizabeth Zimmerman to discover her “historical
knowledge of the PA program.” Pl.’s Mot. at 28. Ms. Zimmerman was the PA TAC III Source
Selection Authority and the Deputy Associate Administrator of the Office of Response and
Recovery. See AR 135-5678; AR 136-5694. The government objects to Ms. Zimmerman being
deposed, claiming “[t]here is nothing to discover.” Def.’s Resp. at 34. Deposition testimony
ought to be ordered only in “rare circumstances.” Florida Power & Light, 470 U.S. at 744.
Ms. Zimmerman has not provided declarations nor has she allegedly been responsible for any
action or omission by FEMA which requires an explanation. She shall not be deposed.
3. Declarations.
Vanguard finally seeks the admission of declarations by Steven Glenn, Martin Altman,
Daniel Craig, Teresa Carter, and Bruce Lockwood, describing their personal experiences with
the PA program. These declarations contain statements concerning the performance of PA TAC
I and II contractors and relate to whether FEMA had past performance information on the PA
TAC contractors. See, e.g., Pl.’s Mot. to Supplement Ex. 9 ¶ 3 (Decl. of Bruce Lockwood (Feb.
9, 2011)) (describing Mr. Lockwood’s experience producing cost-estimates for [***]), Ex. 8
¶¶ 2, 8, 12-13 (Decl. of Teresa Carter (Feb. 9, 2011)) (describing Ms. Carter’s experience
producing cost-estimates for [***] and characterizing PA TAC cost-estimates as “unreliable”),
Ex. 6 ¶ 3 (Decl. of Daniel Craig (Feb. 9, 2011) (averring that Ms. Boardwine, in her role as
Contracting Officer’s Technical Representative, would have been aware of incumbents’ past
performance), Ex. 5 ¶¶ 6-9 (Decl. of Steven Glenn) (explaining Mr. Glenn’s belief that
Ms. Boardwine was aware of PA TAC contractor performance); Pl.’s Mot. Ex. 1 ¶¶ 2, 3, 5 (Decl.
of Martin Altman (Jan. 3, 2011)) (stating that Mr. Altman provided Ms. Boardwine with TAC
Evaluation Worksheets for all of the PA TACs working in Florida for the period between 2005
and 2009).
The government argues that each of the declarants “are biased by a personal financial
interest in seeing Vanguard awarded a part of this $2 billion procurement.” Def.’s Opp’n at 27.
It also claims that Mr. Altman’s declaration should be stricken on an unrelated ground. See
Def.’s Resp. at 27-28.
The declarations by Daniel Craig, Teresa Carter, and Bruce Lockwood made in February
2011 were never before FEMA or GAO. Vanguard urges the court to admit the Craig, Carter,
and Lockwood declarations for their “evidentiary value.” Pl.’s Mot. to Supplement at 28-29.
This new evidence is not necessary for the court to determine whether FEMA’s award decision
was arbitrary and capricious; to consider these declarations would border on de novo review of
FEMA’s actions. While the Craig, Carter, and Lockwood declarations discuss what information
might have been available to Ms. Boardwine, the more appropriate path to determining what
information Ms. Boardwine had is through her deposition. 20
20
Specifically also, for the reason explained supra, at 25 n.19, the various and numerous
post hoc declarations bearing on information available to FEMA’s SEB regarding the
incumbents’ cost-estimating reliability and past performance should, in all events, be added to
the record of this case, albeit not to the agency record, because they address the need vel non for
supplementation of that record.
26
The declaration of Mr. Altman and the first declaration by Mr. Glenn were put before
GAO but were not included in the administrative record. See Pl.’s Mot. at 15, 17. RCFC
Appendix C, ¶ 22(u) specifies that “[t]he core documents relevant to a protest case may include,
as appropriate . . . the record of any previous administrative or judicial proceedings relating to
the procurement, including the record of any other protest of the procurement.” As this court
recognized in Holloway & Co. v. United States, 87 Fed. Cl. 381, 392 (2009), “the provisions of
RCFC Appendix C, ¶ 22(u) might be viewed as being inconsistent with the record-review task
with which this court is charged by the Tucker Act as amended by the ADRA [Administrative
Dispute Resolution Act of 1996, Pub. L. No. 104-320 §§ 12(a), 12(b), 110 Stat. 3870, 3874-75
(Oct. 19, 1996) (codified at 28 U.S.C. § 1491(b))].” This tension arises because “[p]ost-award
protests before GAO that occur prior to protest proceedings in this court necessarily will involve
materials that were not before the agency at the time of award,” a circumstance attributable to
GAO’s “recei[pt of] extra-record argumentative and evidentiary submissions.” Id. In this
instance, both the government in its agency report and briefs and the several protestors in their
submissions put before GAO materials that were not part of the original procurement record.
GAO acted on the basis of the whole record before it, including the “new” materials, to
recommend that FEMA undertake two separate corrective actions, which the agency
accomplished. The revised procurement decision pending for review at this juncture is the result
of those proceedings.
RCFC Appendix C, ¶ 22(u) “ensur[es] that the full record of all proceedings related to the
procurement is before the court for review.” Holloway, 87 Fed. Cl. at 392. In addition, by law,
the court is required to include in the record the agency reports provided by GAO as well as the
decisions made by GAO:
In any such action based on a procurement or proposed
procurement with respect to which a protest has been filed
under this subchapter, the reports required by sections
3553(b)(2) and 3554(e)(1) of this title with respect to such
procurement or proposed procurement and any decision or
recommendation of the Comptroller General under this
subchapter with respect to such procurement or proposed
procurement shall be considered to be part of the agency
record subject to review.
31 U.S.C. § 3556. Accordingly, whatever materials were before GAO shall also be incorporated
into the administrative record before the court. That is not to say, however, that all such GAOrelated materials will be given credence. Post hoc declarations and arguments will be discounted
or disregarded. 21 The first two Boardwine declarations and the declarations by FEMA’s SEB
21
In Holloway, the court took materials that had been presented in GAO proceedings into
the administrative record, relying on RCFC Appendix C, ¶ 22(u). 87 Fed. Cl. at 391-92. The
court, however, carefully noted that post hoc explanations or “clarifications” in that material
would be discounted. Id. at 392. Other judges of this court have indicated that the administrative record should not include “materials created or obtained subsequent to the agency’s
27
members were attached to agency reports provided by FEMA to GAO. See AR 79-4898 to
4905; AR 90-5032 to 5049; AR 99-5145 to 5153. Consequently, those declarations are part of
the record. The post hoc rationalizations and statements in the declarations will be treated as the
law requires. See PGBA, LLC v. United States, 60 Fed. Cl. 196, 204 (2004) (“In examining this
expanded record, the [c]ourt is mindful that it must critically examine any post hoc
rationalization.” (emphasis modified) (citing Citizens to Preserve Overton Park, 401 U.S. at 420;
Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519 (1978);
Co-Steel Raritan, Inc. v. International Trade Comm’n, 357 F.3d 1294, 1316 (Fed. Cir. 2004))),
aff’d, 389 F.3d 1219 (Fed. Cir. 2004).
IV. MOTION TO REMAND
Vanguard makes an alternative request to remand this matter to FEMA. The Supreme
Court has explained, “If . . . the agency has not considered all relevant factors, or if the reviewing
court simply cannot evaluate the challenged agency action on the basis of the record before it,
the proper course, except in rare circumstances, is to remand to the agency for additional
investigation or explanation.” Florida Power & Light, 470 U.S. at 744. Vanguard has raised
serious questions about whether FEMA considered all relevant incumbent cost-estimating and
past performance information when it awarded the PA TAC III contracts. However, these
questions have not yet been fully answered. The court therefore reserves decision on remand of
this matter to FEMA, should that remedy be justified by facts, or the absence of facts, of record.
CONCLUSION
For the reasons stated, the government’s and the defendant-intervenors’ motions to
dismiss are DENIED. The plaintiff’s motion to supplement the administrative record is
GRANTED IN PART and DENIED IN PART. GAO Report 08-301, GAO Report 09-129, the
IG’s Report, and the materials encompassed within the record before GAO in the three protests
of the procurement before that entity are made part of the administrative record. The plaintiff is
permitted to conduct a four-hour deposition of Ms. Lorine Boardwine.
The parties shall file a joint status report on or before June 1, 2011, proposing a schedule
for briefing dispositive motions.
decision.” Allied Tech. Grp., Inc. v. United States, 92 Fed. Cl. 226, 229-230 (2010). This
difference in approach may have no practical effect because the same result would likely occur
with either mode of proceeding.
Notably, however, an exception to both approaches may arise in a case such as this
where the outcome of the procurement changed as a consequence of the agency’s action on
recommendations made by GAO in the prior proceedings.
28
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Judge
29
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