MANAGEMENT & TRAINING CORPORATION v. USA
Filing
54
REISSUED OPINION--Filed this date regarding the 24 motion to supplement the administrative record. Signed by Judge Lawrence J. Block. (smm)
United States Court of Federal Claims
No. 12-683 C
(Filed Under Seal: April 25, 2013)
(Reissued: May 3, 2013) *
UNPUBLISHED
_______________________________________
MANAGEMENT & TRAINING
CORPORATION,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
_______________________________________
OPINION AND ORDER
Block, Judge.
Before the court is plaintiff’s motion to complete and supplement the administrative record
(Pl.’s Mot.). Plaintiff seeks to complete or supplement the administrative record with the
following:
1. Various documents generated in the course of the procurement, including documents
listed in RCFC Appendix C, paragraph 22, see Pl.’s Mot. at 13-15;
2. Documents relating to six procurements covered by the instant Request for Information
(RFI), as well as documents relating to five procurements covered by another RFI issued
the same day as the instant RFI, see id. at 15-17;
3. Documents relating to other procurements for operation of Job Corps Centers issued
since April 1, 2011, see id. at 17-21;
4. Documents relating to a procurement for the Gadsden Job Corps Center, as well as
certain documents relating to litigation surrounding that procurement, see id. at 21-23;
5. Plaintiff’s current contract to operate the Paul Simon Job Corps Center, see id. at 23-24;
*
This opinion originally was issued under seal on April 25, 2013. The court afforded the parties
an opportunity to propose redactions in the opinion prior to its reissue, but no such redactions
were proffered. The opinion is herewith reissued.
6. The Department of Labor’s (DOL’s) Outcome Management System (OMS) Data for Plan
Years 2004-11, as well as DOL’s Performance Management System Overview Guide,
see id. at 24-28;
7. The Rell & Doran Report, see id. at 28-32, and
8. Documents relating to the so-called “predicate determination,” see id. at 32-33.
The court held oral argument on April 18, 2013. For the reasons stated herein, the court will
grant plaintiff’s motion in part and deny it in part.
In a bid protest, this court determines whether a challenged agency action was “arbitrary,
capricious, an abuse of discretion or otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A) (cited in 28 U.S.C. § 1491(b)(4)). Moreover, “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). Accordingly, “[t]he task of the
reviewing court is to apply the appropriate APA standard of review . . . to the agency decision
based on the record the agency presents to the reviewing court.” Florida Power & Light Co. v.
Lorion, 470 U.S. 729, 743-44 (1985) (citing Citizens to Preserve Overton Park v. Volpe, 401
U.S. 402 (1971)); see also Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009).
However, the court may, in some circumstances, order “completion” or
“supplementation” of the administrative record. First, relevant information that served as the
basis for an agency decision or that was generated or considered by the agency during the
procurement process may be required to “complete” the administrative record. See, e.g., Joint
Venture of Comint Sys. Corp. v. United States, 100 Fed. Cl. 159, 167 (2011); Linc Gov’t Servs.,
LLC v. United States, 95 Fed. Cl. 155, 158 (2010). Second, even going beyond such “record
materials,” see Joint Venture of Comint, 100 Fed. Cl. at 167, it is proper to “supplement” the
administrative record with extra-record evidence the omission of which would “frustrate
effective judicial review.” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed.
Cir. 2009) (quoting Pitts, 411 U.S. at 142-43); see also Joint Venture of Comint, 100 Fed. Cl. at
168; PlanetSpace, Inc. v. United States, 90 Fed. Cl. 1, 4 (2009).
Applying these standards, the court considers each set of documents in turn.
First, the court will deny plaintiff’s generalized request for “core documents” and other
procurement documents. After oral argument, the court ordered defendant to review its records
and determine whether any documents listed in RCFC Appendix C and relevant to the set-aside
decision have been omitted from the administrative record. See Management & Training Corp.
v. United States, 12-683C, ECF Dkt. 50 (Fed. Cl. Apr. 18, 2013) (scheduling order). Defendant
then filed a Notice of Compliance, claiming that it reviewed its records and that there are no
additional documents. See Management & Training Corp. v. United States, 12-683C, ECF Dkt.
51 (Fed. Cl. Apr. 22, 2013) (notice of compliance). Given the presumption that government
officials conduct their duties in good faith, see Savantage Financial Servs., Inc. v. United States,
595 F.3d 1282, 1288 (Fed. Cir. 2010), the court accepts that representation. As for other
documents plaintiff requests, plaintiff has either failed to demonstrate that such documents exist,
-2-
or failed adequately to explain their relevance to plaintiff’s challenge of the set-aside decision, or
both. 1
Second, plaintiff’s request for completion or supplementation of the administrative record
with documents relating to other procurements covered by the instant RFI and its companion
RFI, Pl.’s Mot. at 15-17, sweeps too broadly. Plaintiff argues that these documents are needed to
enable judicial review of plaintiff’s claim that the contracting officer’s Rule of Two
determination was arbitrary and capricious 2 for failing to consider the ability of small businesses
to operate the Paul Simon Job Corps Center while operating multiple Job Corps Centers
concurrently. Id. But if the three small businesses deemed “responsible” here were not awarded
any of these other contracts, then these procurements are irrelevant to the possibility of having to
operate the Paul Simon Job Corps Center concurrently with other Job Corps Centers. Of course,
the reverse is also true: if the small businesses were awarded other contracts, that would be
relevant to the possibility of their having to operate multiple Job Corps Centers concurrently.
Thus, administrative record should include any award notices reflecting that the three small
businesses deemed “responsible” here had, on the date of the Paul Simon Job Corps Center setaside decision, been awarded contracts in these other procurements.
Third, the same principle applies with respect to documents relating to other
procurements conducted since April 1, 2011. These procurements are only important to this case
if they show that a small business awardee of the Paul Simon Job Corps Center procurement
would have to operate multiple Job Corps Centers. Two of the proffered documents—award
notices for the New Orleans and Phoenix Job Corps Centers—show that two of the three small
businesses deemed responsible here had been awarded other contracts before the date of the Paul
Simon set-aside decision. For the reasons just given, these documents should be included in the
administrative record.
Fourth, the Gadsden Job Corps Center documents are irrelevant to this procurement.
Contrary to plaintiff’s argument, id. at 22, they are not “core documents” necessary to complete
the administrative record under RCFC Appendix C, paragraph 22(u), which covers “the record of
any previous administrative or judicial proceedings relating to the procurement.” Paragraph
22(u), covers the records of previous administrative or judicial proceedings concerning the
procurement being challenged here. It plainly does not cover the records of proceedings
concerning entirely different procurements merely because those procurements involved similar
issues. Moreover, although plaintiff argues that these documents show that defendant changed
the “capability” criteria by which it measured small business responsibility in response to the
1
For instance, plaintiff points to an email in the administrative record that quotes a Vernetta
Veney, and plaintiff complains that the administrative record does not adequately explain who
Ms. Veney is or what her role is in the procurement. Pl.’s Reply in Support of Motion to
Complete/Supplement at 8. Plaintiff seems to think that the administrative record must contain
biographical information or a job description of any person mentioned in any email in the
administrative record. No authority supports that view.
2
The Rule of Two requires that before setting aside a procurement for small business
competition, a contracting officer must first have a “reasonable expectation” that at least two
“responsible” small businesses will bid. FAR 19.502-2(b).
-3-
Gadsden litigation, Pl.’s Mot. at 23, this is irrelevant to whether the capability criteria in this case
were valid and reasonably applied. Because this court does not complete or supplement the
administrative record with materials that are not germane to any issue properly before it, see,
e.g., Science Applications Intern. Corp. v. United States, 102 Fed. Cl. 644, 649 (2011), there is
no basis for ordering completion or supplement of the administrative record with these materials.
Fifth, plaintiff’s current contract to operate the Paul Simon Job Corps Center has no
apparent relevance to this litigation. Although plaintiff argues that this contract is needed to
show irreparable injury and to enable the court to understand various aspects of contracts for
operation of Job Corps Centers, Pl.’s Mot. at 23-24, plaintiff does not explain how its current
contract shows irreparable injury or what relevance the terms of plaintiff’s current contract has
on the ability of small businesses to perform the contract for which they are competing.
Accordingly, the court will not order completion or supplementation of the administrative record
with this contract.
Sixth, even assuming the OMS data and DOL manual show that one or more of the three
small business concerns deemed “responsible” performed worse than other contractors in given
instances, they are not necessary for completing or supplementing the administrative record. The
agency did not consider the data in making its set-aside decision. See Science Applications
Intern. Corp., 102 Fed. Cl. at 649 (“A complete [administrative record] must comprise the
material considered by the [a]gency . . . not material not considered.”). Moreover, because the
responsibility determination is a “business judgment” that need not be made according to any
particular method, MCS Mgmt., Inc. v. United States, 48 Fed. Cl. 506, 511 (2001); Matter of:
Delex Sys., Inc., B-400403, 2008 C.P.D. ¶ 181, 2008 WL 4570635, at *8 (Comp. Gen. Oct. 8,
2008), the contracting officer was under no legal requirement to assess the responsibility of these
small business concerns in light of how their past performance measures up relative to other
concerns. The proffered data is therefore irrelevant, even assuming it shows what plaintiff
claims.
Seventh, the Rell & Doran is irrelevant to any issue before the court. Co-authored by the
former president of a large business Job Corps Center operator and the former head of the Job
Corps Center program, the report purports to show that small businesses are generally worse at
operating Job Corps Centers than large businesses. Although Judge Williams ordered the
government to supplement the administrative record with this report (as well as the OMS data) in
related case, see Adams & Associates, Inc. v. United States, No. 12-409C, ECF Dkt. 56, at *1
(Fed. Cl. Sept. 11, 2012) (order), the court does not believe the same course of action is
warranted here. Not only was the report produced outside the agency and not considered in this
procurement, but is irrelevant to this bid protest given that the issue before the court is not
whether small businesses in general are better or worse than large businesses in general at
operating Job Corps Centers, but whether the contracting officer acted arbitrarily and
capriciously in finding the three small businesses at issue “responsible.”
Eighth, and finally, defendant should complete the administrative record with whatever
documents it has relating to the “fair proportion” or “predicate” determination. The parties
disagree as to whether the contracting officer was, in fact, required to make such a “predicate
determination.” The court is not yet prepared to determine the merits of that particular dispute,
as the court has not yet held oral argument on the merits of the parties’ cross-motions for
judgment on the administrative record. Accordingly, like Judge Bruggink, see Adams &
-4-
Associates, Inc. v. United States, 12-731C, ECF Dkt. 42, at *38-39 (Fed. Cl. Dec. 11, 2012)
(transcript of hearing held Dec. 3, 2012); Dynamic Educ. Sys., Inc. v. United States, No. 12730C, ECF Dkt. 62, at *6 (Fed. Cl. Dec. 18, 2012) (transcript of hearing held Dec. 14, 2012), the
court will order defendant to complete the administrative record with whatever documents it has
relating to the “fair proportion” determination. That way, whatever the court ultimately decides
about the merits, all documents necessary for the court’s review will be in the administrative
record.
In summary, it is ORDERED that defendant shall complete or supplement the
administrative record with (1) any award notices from procurements covered by the instant RFI
and its companion RFI that show that any of the three small businesses deemed “responsible”
here were also awarded other procurements, (2) the award notices for procurements conducted
since April 1, 2011 for the New Orleans and Phoenix Job Corps Centers, which notices are
attached to plaintiff’s motion, and (3) whatever documents defendant may have which relate to
the “fair proportion” determination. The court will not order completion or supplementation of
the administrative record with any other documents. Accordingly, plaintiff’s MOTION is
GRANTED IN PART and DENIED IN PART.
IT IS SO ORDERED.
/Lawrence J. Block
s
Lawrence J. Block
Judge
-5-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?