CONTRACTING, CONSULTING, ENGINEERING LLC v. USA

Filing 50

PUBLISHED OPINION - Denying plaintiff's 38 Motion to Supplement the Administrative Record; granting plaintiff's 39 Motion to Supplement the Administrative Record with a caveat re TEP evaluators; granting plaintiff's 40 Motion to Supplement the Administrative Record in part. Signed by Judge Christine O.C. Miller. (smg) Copy to parties.

In the United States Court of Federal Claims
No. 12-97C
(Filed March 19, 2012)
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CONTRACTING CONSULTING
ENGINEERING LLC,
Plaintiff,
v.
THE UNITED STATES,
Defendant,
and
DYNCORP INTERNATIONAL LLC,
Defendant-Intervenor.
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Post-award bid protest; motions
to supplement administrative
record.

David S. Black, McLean, VA, for plaintiff. Jacob W. Scott and Oliya S. Zamaray,
Holland & Knight LLP, of counsel.
Devin A. Wolak, Washington, DC, with whom was Assistant Attorney General Tony
West, for defendant. Kathleen D. Martin, U.S. Department of State, of counsel.
Richard J. Vacura, McLean, VA, for defendant-intervenor. K. Alyse Latour and
Susan J. Borschel, Morrison & Foerster LLC, of counsel.
ORDER ON PLAINTIFF’S THREE MOTIONS TO SUPPLEMENT
THE ADMINISTRATIVE RECORD
MILLER, Judge.

On March 9, 2012, plaintiff filed the following three motions: Plaintiff’s Motion for
Leave To Supplement Administrative Record with Army regulations (ECF 38); Plaintiff’s
Motion for Leave To Supplement Administrative Record and the Court Record with an
updated declaration (ECF 39); and Plaintiff’s Motion for Leave To Supplement
Administrative Record with two declarations by military experts (ECF 40). By order entered
on March 12, 2012, the court expedited briefing. Defendant filed a combined response on
March 14, 2012. Plaintiff filed its combined reply on March 16, 2012.
Resolution of plaintiff’s motions turns on whether the court is capable of providing
meaningful judicial review on the administrative record as it was constituted when the
agency rendered its decision. In granting a motion to supplement, a court must be mindful
not to alter the proceeding to one subject to de novo review. Binding precedent provides that
when deciding a motion for judgment on the administrative record, the focal point for
judicial review “should be the administrative record already in existence, not some new
record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973) (per
curiam); see also Advanced Data Concepts v. United States, 216 F.3d 1054, 1057 (Fed. Cir.
2000). However, it must be remembered that the “administrative record is a fiction.” CCL
Serv. Corp. v. United States, 48 Fed. Cl. 113, 118 (2000). The “administrative record is not
a documentary record maintained contemporaneously with the events or actions included in
it. Rather, the administrative record is a convenient vehicle for bringing the decision of an
administrative body before a reviewing agency or a court.” Tech Systems, Inc. v. United
States, 50 Fed. Cl. 216, 222 (2001).
Accordingly, the Court of Federal Claims does not “apply an iron-clad rule
automatically limiting its review to the administrative record.” GraphicData, LLC v. United
States, 37 Fed. Cl. 771, 779 (1997). Because the flexibility of the court’s scope of review
does not give the parties carte blanche to supplement the record, “the judge should determine
whether the agency action before the court is susceptible to a record review. If the answer
is yes, the judge must limit review to the record.” Id. at 780; see also Lion Raisins, 51 Fed.
Cl. at 244. If the answer is no, a party may supplement the administrative record when
necessary to prove that evidence not in the record is evidence without which the court cannot
fully understand the issues. See Lion Raisins, 51 Fed. Cl. at 244. See generally Al Ghanim
Combined Group Co. Gen. Trad. & Cont. W.L.L. v. United States, 56 Fed. Cl. 502, 508
(2003) (footnote omitted).
In ruling on motions to supplement, the United States Court of Appeals for the Federal
Circuit in Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009),
has allowed supplementation of the administrative record “only if the existing record is
insufficient to permit meaningful review consistent with the APA.” Axiom, 564 F.3d [at]
1380. A bid protest brought in the Court of Federal Claims contemplates that the record
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before the court will include post-agency-action evidentiary submissions. A court cannot
give due regard to the interests of national defense and national security without accepting
a declaration or affidavit from a responsible official. 28 U.S.C. § 1491(b)(3). A court cannot
examine agency actions that are assailed as a conflict of interest, bias, or other extra-legal
activity without considering evidence that was not before the agency when the administrative
decision was made. Nor can a court evaluate the parties’ factual showings regarding the
three equitable findings for injunctive relief without accepting post-agency-action evidentiary
submissions. See Acrow Corp. of Am. v. United States, 96 Fed. Cl. 210, 274-81 (2010)
(order granting in part motion to supplement).
Thus, while the court record properly is augmented with evidentiary submissions
regarding matters that pertain to the standards for judicial relief, a protestor also must be
allowed to offer evidence to support its position that the contracting officer did not make a
decision grounded on a rational basis. See Savantage Fin. Servs., Inc. v. United States, 595
F.3d 1281, 1285-86 (Fed. Cir. 2010) (upholding Court of Federal Claims’ decision denying
protest, but permitting protestor to offer evidence to support position that agency’s
requirements, which restricted competition by effectively guaranteeing that they could be
satisfied by only one offeror, lacked rational basis).
Defendant is correct that Army regulations are legal authorities and not a matter for
supplementation. They can be cited as authorities in plaintiff’s brief, and the court will
regard them as authorities in support of plaintiff’s moving brief. The court is grateful
nonetheless that plaintiff provided the court with a copy of the 700 pages of regulations.
With respect to the second motion, defendant is correct that Mr. Harris’s third
declaration, Third Declaration of Stephen [H.] Harris, Mar. 9, 2012, reiterates points made
in his first declaration insofar as it addresses the subjects of irreparable harm and balancing
of hardships, two of the injunctive criteria that are adjudicated only in a court proceeding.
While not objecting to the introduction of additional, if largely duplicative, assertions in Mr.
Harris’s third declaration and agreeing that they properly are part of the court record, see
Def’s. Br. filed Mar. 14, 2012, at 6-7, defendant objects to those portions of Mr. Harris’s
third declaration that purport to substantiate an argument based on unequal or disparate
treatment—a claim absent from plaintiff’s complaint and, indeed, one that plaintiff disavows
making. See Pl.’s Br. filed Mar. 16, 2012, at 3 & n.2. In this regard, defendant misconceives
plaintiff’s argument. Plaintiff is not contending that its proposal should have been treated
differently, but that the Technical Evaluation Panel’s (the “TEP’s”) failure to supply missing
information based on the evaluators’ experience with plaintiff-incumbent’s contract shows
that they acted arbitrarily and capriciously in doing so for defendant-intervenor’s technical
proposal.

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This issue is at the heart of ¶¶ 23-31 of Mr. Harris’s third declaration, as well as
defendant’s objections to the two declarations that are the subject of plaintiff’s third motion
to supplement: Declaration of Barry J. Sottak, Mar. 9, 2012, and Declaration of John N.
Dailey, Mar. 9, 2012. These two declarants—both retired Brigadier Generals in the United
States Army with careers as Army Aviators—supply information that contradicts that of the
TEP evaluators concerning, inter alia, the length of tours of duty in the Army, both overseas
and in the Continental United States. The two declarants also dispute that the TEP had any
reasonable basis for characterizing the résumé experience provided for defendantintervenor’s Program Manager (“PM”) and Deputy Program Manager (“DPM”) as qualifying
experience that satisfied the solicitation’s requirements for the respective positions.
It is with this argument that defendant launches its attack on the proffered information
as not filling gaps in the record but, instead, substituting the judgment of plaintiff’s experts
for that of the TEP. In a general sense, defendant is correct. The court must be chary of
efforts to engage in a de novo review of the TEP’s evaluation or to substitute plaintiff’s
assessment of the technical proposals (as argued to the court) as the reasonable—and
therefore sustainable—result. However, this is not what plaintiff is attempting.
The solicitation contained exacting requirements for offerors’ submissions concerning
the résumé experience of the proposed PM and DPM. See AR 102 (providing that résumés
must “clearly demonstrate” that the experience of both the proposed PM and DPM satisfies
position qualifications stated in solicitation); AR 111 (requiring that technical proposal
“clearly and convincingly demonstrate” how qualifications and requirements will be met);
AR 113 (stating that proposed PM and DPM each must have five years of program
management experience in aviation programs and ten years and eight years, respectively, of
professional aviation management experience).
The solicitation did advise offerors that the technical evaluators would be drawing on
their experience to assess the technical acceptability of the proposals. See AR 109 (providing
that “the offeror shall present information in sufficient detail to enable an evaluator, having
a general professional expertise in the response area of interest, to thoroughly understand the
response,” and thereby indicating that the TEP members would be drawing on their personal
knowledge in evaluating proposals). Contrary to what defendant wants the record to reflect,
however, the evaluators did not accept the statement of aggregate years of service on either
candidate’s résumé; rather, the TEP expressly stated that its members relied on their
experience to assign a duration to each of the positions that defendant-intervenor claimed as
qualifying. AR 1278 (“[B]ased on the knowledge and experience of the retired officers on
the [TEP], such positions entailing command of an airborne unit, company or battalion are
typically for controlled tours of 3 years for a domestic assignment and 1 year for an overseas
assignment.”). To put the matter in stark relief, the TEP rejected the aggregate thirty-three
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years of experience listed for Victor Fontanez, Jr., who was proposed for PM. The TEP
deemed it necessary—in order to discharge fully its mandate under the solicitation—to
associate the duration of a period of service on Mr. Fontanez’s résumé with the level of
responsibility that the résumé listed.
Plaintiff cannot substantiate its protest by offering evidence that individuals with more
knowledge and experience (and higher rank) than the TEP evaluators would have disagreed
sharply with the TEP’s evaluation because neither Mr. Fontanez nor Vidal Garza, defendantintervenor’s candidate for DPM, ever held the appropriate rank associated with the level of
responsibility for the two positions. However undermining the assessment from these two
proffered declarants appears to be, the court cannot allow plaintiff to introduce facts that
effectively substitute plaintiff’s opinion for that of the TEP’s determination of the technical
acceptability of the proposals. See RhinoCorps Ltd. v. United States, 87 Fed. Cl. 261, 27273 n.13 (Fed. Cl. 2009) (citations omitted); see also E.W. Bliss Co. v. United States, 77 F.3d
445, 449 (Fed. Cir. 1996) (“[T]he minutiae of the procurement process in such matters as
technical ratings . . . involve discretionary determinations of procurement officials that a
court will not second guess.”).
The point eluding defendant is that the TEP cannot act irrationally in making predicate
assumptions in order to fulfill its duty to ensure that defendant-intervenor’s proposal met the
black-and-white minimum requirements of the solicitation. The declarations are competent
evidence that the assumption of a “typical tour of duty” was irrational, i.e., had no basis in
fact. In other words, while the TEP members were permitted to draw on their experience,
it may have been irrational to base their subjective evaluations on a facially irrational
assumption. And it is permissible for plaintiff to offer sworn statements that the key
analytical assumption of the evaluators, against which they weighed the résumés’ statements
of duties and experience, lacked any factual support and was irrational. It is precisely
because the evaluators devised their own gauge to determine the duration of service—after
the résumés failed to do so, despite express instructions—that plaintiff must be allowed to
challenge that analytical assumption, provided that the challenge can be mounted with
objective information. In its reply brief, plaintiff clarified that, although the Sottak and
Dailey Declarations included opinion statements, plaintiff does not rely on those statements
and “is not using the . . . Declarations to ‘disagree’ with or ‘substitute [the declarants’]
judgment’ for the TEP’s evaluation.” Pl.’s Br. filed Mar. 16, 2012, at 8 n.5. Rather, plaintiff
seeks admission only of the portions of these declarations that challenge the reasonableness
of the TEP’s assumption. See id. at 8 & n.5; cf. Orion Tech., Inc. v. United States, 101 Fed.
Cl. 492, 496-97 (2011) (denying motion to supplement administrative record with expert’s
opinion that apparently contested agency’s rejection of plaintiff’s proposal based on review
of several key documents in administrative record because admission effectively would
substitute expert’s opinion for that of agency).
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If this type of information were not allowed, a protester would be foreclosed from
disputing, as a matter of fact, that the evaluation panel irrationally employed an analytical
tool that bore no relationship to the experience on which the evaluators purported to rely.
Another way of describing the situation is to assume that a solicitation called for the
respective rank, as well as statement of responsibilities, for positions qualifying the candidate
for program manager. The evaluation panel drew on the experience of its members that only
high-ranking officers perform qualifying functions. After the hypothetical evaluation panel
stated expressly that the particular subject was evaluated on the basis of that standard because
the offeror had not set forth the candidate’s various ranks as required by the solicitation, a
protester was able to show that the candidate did not hold the ranks that the evaluators
assumed he held in order to discharge the putatively qualifying functions. If irrationality
could not be shown by declarations that negate the underpinning for the assumption, no
protester could show irrationality by impugning a factual predicate or assumption made by
evaluators (and not set forth in the solicitation).
Take, for example, the situation presented when a contract awardee proposes certain
key personnel that it never intends to provide. In Planning Research Corp. v. United States,
971 F.2d 736 (Fed. Cir. 1992), the contract awardee effected a post-award substitution of the
proposed individuals, id. at 740-41. The General Services Board of Contract Appeals (the
“GSBCA”) sustained the protest brought by an unsuccessful bidder, concluding that the
awardee never intended that the proposed personnel would perform the contract. Id. at 739.
In reaching its conclusion, the GSBCA relied on evidence of the awardee’s post-award
activity, as well as extra-record evidence revealing that the awardee had not confirmed the
availability of the proposed individuals. Id. at 741-42. The Federal Circuit affirmed,
disagreeing with the awardee that its post-award substitution was a matter of contract
administration and finding no error in the GSBCA’s reliance on evidence that consisted of
materials and information not within the record before the agency. Id. at 740-41.
In Planning Research Corp., it was an objective fact whether the proposed individuals
actually were retained to perform the contract. Thus, extra-record evidence disproving the
awardee’s retention of the individuals was permitted to challenge the alleged retention.
Likewise, in the matter sub judice, the amount of time that defendant-intervenor’s proposed
PM and DPM served in each position listed on their résumés are objective facts. The TEP
employed a gauge to determine those facts, i.e., the precise lengths of service in each
position. The gauge purports to be based on a typicality regarding overseas and domestic
tours of duty. The existence or nonexistence of such a typicality can be verified objectively,
and plaintiff is permitted to do so with the proffered Sottak and Dailey declarations.
Defendant also is mistaken that plaintiff, through Mr. Harris’s third declaration, seeks
to show disparate treatment. Plaintiff is attempting to show that at least two TEP members
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did not draw on their personal experience with plaintiff-incumbent to substantiate that
plaintiff met two technical criteria. The court agrees that the evaluators were not required
to fill gaps in plaintiff’s proposal. However, the TEP’s strict adherence to the solicitation
regarding the stated requirements that the offeror has established an account with the U.S.
Army’s Logistics Support Activity and that the offeror has put forth a plan for implementing
Analysis, Design, Development, and Implementation Employee training into its training
programs could tend to render arbitrary and capricious the evaluators’ supplying erroneous
information based on their personal experience to find defendant-intervenor’s two résumés
acceptable. Was the duration of each qualifying assignment a measuring tool, or did it fill
a gap in defendant-intervenor’s proposal? The court will leave resolution of that issue for
its decision on the cross-motions for judgment on the administrative record.
Nor is defendant correct that plaintiff is quibbling with just one of multiple factors.
That argument remains for defendant’s opposition to plaintiff’s motion for judgment on the
administrative record. Suffice it to say at this point that the solicitation itself emphasized that
the résumés were required to state the type of service and the duration thereof that qualified
the candidates proposed for PM and DPM. Accordingly,
IT IS ORDERED, as follows:
1. Plaintiff’s Motion for Leave To Supplement Administrative Record is denied, and
the regulations will be deemed authorities cited in support of plaintiff’s motion for judgment
on the administrative record.
2. Plaintiff’s Motion for Leave To Supplement Administrative Record and the Court
Record is granted, with the caveat that the TEP evaluators’ disinclination to draw on their
personal experience with plaintiff as incumbent to qualify plaintiff’s proposal would be
relevant only to a claim for disparate treatment, which has not been pleaded.
3. Plaintiff’s Motion for Leave To Supplement Administrative Record is granted only
insofar as the Sottak and Dailey declarations address the issue of whether the Army
recognizes a typical duration for overseas and domestic assignments. This includes ¶¶ 1-3
and 9-10 of the Sottak Declaration and ¶¶ 1-3 and 6 of the Dailey Declaration. Plaintiff’s
motion otherwise is denied.

/s/ Christine O.C. Miller
________________________________
Christine Odell Cook Miller
Judge

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