MAIL TRANSPORTATION, INC. et al v. USA

Filing 129

REPORTED ORDER denying 81 Motion to Supplement the Administrative Record; denying 92 Motion to Supplement the Administrative Record; granting in part and denying in part 104 Motion to Supplement the Administrative Record; (Notice of Compliance due by 4/15/2021, Response due by 4/29/2021). Signed by Senior Judge Victor J. Wolski. (vds) Service on parties made. (Main Document 129 replaced on 4/1/2021) (vds).

In the United States Court of Federal Claims
No. 17-934C
(Filed March 31, 2021)

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MAIL TRANSPORTATION, INC., *
et al.,
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Plaintiffs,
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v.
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THE UNITED STATES,
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Defendant,
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and
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AMERICAN POSTAL WORKERS *
UNION, AFL-CIO,
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Defendant-Intervenor. *
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David P. Hendel, Culhane Meadows PLLC, of Washington D.C., for plaintiffs.
Russell J. Upton, Commercial Litigation Branch, Civil Division, Department
of Justice, of Washington, D.C., for defendant. Redding C. Cates, United States
Postal Service, Washington, D.C., of counsel.
George M. Chuzi, Kalijarvi, Chuzi, Newman & Fitch, PC, of Washington,
D.C., for defendant-intervenor. Michael T. Anderson, Murphy Anderson PLLC, of
Washington, D.C., of counsel.
ORDER
WOLSKI, Senior Judge.
This is an atypical bid protest in which plaintiffs, twenty private mail
transportation companies, challenge the United States Postal Service’s (USPS or
Postal Service) decision to insource certain of the transportation services that

plaintiffs provide, or recently provided, to USPS. After the Court held the hearing
on the motions for judgment on the administrative record, plaintiffs filed two
motions to supplement the administrative record --- the second and third to have
been submitted by plaintiffs in this matter. 1 Pls.’ Second Mot. Suppl. Admin. R.
(2nd Mot.), ECF No. 81; Pls.’ Mot Suppl. Admin. R. Concerning PVS Performance
(3rd Mot.), ECF No. 92. The second motion to supplement the record was
accompanied by a supplemental brief supporting the plaintiffs’ motion for judgment.
Oppositions, and responsive supplemental briefing from defendant and defendantintervenor American Postal Workers Union, AFL-CIO (Union), have also been
received, and plaintiffs have filed a reply paper. For the reasons discussed below,
the second and third motions to supplement the administrative record are
DENIED.
The Court also resolves two additional matters in this order. First, after
prompting from the Court, plaintiffs filed a fourth motion to supplement the
administrative record to add declarations executed by officers and owners of the
plaintiff companies and the head of the National Star Route Contractors
Association (Star Route Association). Pls.’ Third Mot. Suppl. Admin. R. (4th Mot.),
ECF No. 104 at 1. 2 The declarations were already part of the court record but not
the administrative record, as they were attached to submissions filed earlier in this
case---such as the motion for a preliminary injunction or plaintiffs’ motion for
judgment on the administrative record. Although many of these declarations were
cited in plaintiffs’ merits arguments, see Pls.’ Mot. for J. on Admin. R., ECF No. 66
at 27–30, plaintiffs did not previously move for their addition to the administrative
record, see Pls.’ Reply to Def.’s Resp. to Suppl. Br., ECF No. 91 at 6 n.2. Second, the
Court addresses defendant’s contention that the expiration of certain of plaintiffs’
contracts moots their claims with respect to the routes that were the subject of
those contracts. See Def.’s Suppl. Br., ECF No. 115, at 3–6. As discussed below,
plaintiffs’ fourth motion to supplement the administrative record is GRANTED-INPART and DENIED-IN-PART, and the Court finds that plaintiffs’ claims are not
moot.
The Second and Third Motions to Supplement the Administrative Record
The Court turns first to the second and third motions to supplement the
administrative record. Under the Federal Circuit’s decision in Axiom Resource
Management, Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009),
The initial motion to supplement the administrative record was granted-in-part
and denied-in-part. See Order (Aug. 11, 2017) at 1–2.

1

The motion was mistakenly labelled as plaintiffs’ third such motion. See 4th Mot.
at 1.

2

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supplementation of the record is appropriate only when it is necessary for effective
judicial review. That standard is plainly not met by the materials plaintiffs seek to
add to the record in their second motion to supplement. The motion concerns a
series of emails between various Postal Service personnel about the administrative
process for terminating a contract held by one of the plaintiffs, and schedule
information about a certain defunct Highway Contract Route (HCR). 2nd Mot. at 1.
The defunct route, HCR 480M4, was neither one of the original 110 routes
designated for conversion as a result of the arbitration process, see Admin. R. (AR)
5549–52, nor was it on the final list of routes to be converted, see AR 1584–86. In
any event, supplementation of the record to add its schedule information, see Ex. C
to 2nd Mot., cannot remotely be considered necessary, for this information is
already contained in the administrative record, see AR 5468–69.
The emails show a September 2017 discussion between USPS employees
which was precipitated by the erroneous instruction to prepare HCR 480M4 for
termination and conversion to Postal Vehicle Service (PVS). See Ex. A to 2nd Mot.
at 7–9. The employees who were asked to process this instruction determined that
the route was terminated when the contract ended on January 31, 2017, with two of
its trips added to HCR 48067 and the other two added to HCR 480L9. Id. at 4–5.
One of the employees suggested that what was needed was to remove the four
transferred trips and terminate those. Id. at 3. But she was subsequently informed
that HCR 48067, a contract at the time being performed by plaintiff Corbin
Trucking, was to be converted in its entirety, as “the union agreed to changing
48067 to PVS.” Id. at 2. In reaction, another USPS employee complained that the
contractor had done the Postal Service a favor by accepting one of the HCR 480M4
round trips, and that the Union was getting ten of the contractor’s other trips when
only four trips were associated with HCR 480M4. Id.
Plaintiffs argue that these emails should be added to the administrative
record, because they allegedly show the arbitrary process by which HCR 48067 was
substituted for the much smaller HCR 480M4, upon Union request. See 2nd Mot. at
1–4. But a close review of those emails, and of the existing administrative record,
shows that the emails reveal nothing of the actual decision-making process. These
emails at most show the mechanics of implementing the decision being challenged,
which was finalized months earlier---back in June 2017. See AR 1584–86. And
plaintiffs’ argument concerning the lack of comparability of HCR 480M4 and HCR
48067, with the latter having “double the driver hours” of the former, 2nd Mot. at 3,
does not need the emails for demonstration, see AR 5314–15 (HCR 48067 Schedule
Information), 5468–69 (HCR 480M4 Schedule Information).
It is not clear to the Court why plaintiffs stress that HCR 48067 was not
selected as a replacement for one of the original 110 routes on the arbitration list,
2nd Mot. at 1–2, when the arbitrator’s award clearly provided that “[b]y agreement,
the parties may substitute other route(s) to be converted to PVS service pursuant to
-3-

this order based on particular circumstances.” AR 1580. That the substitution
process took many steps hardly seems objectionable, and the presence of the Union’s
agreement was necessary, not nefarious. The administrative record indicates that
as of December 12, 2016, three of the original routes, located in Texas, were dropped
from the conversion list because of long layovers. See AR 5556–57 (HCR 75094,
76067, and 762AA). These three routes had annual hours totaling 14,944. See id.
At the same time, HCR 750U0, also in Texas, was added to the list, with 4,266
annual hours and 4 schedules. AR 5560. On January 25, 2017, it appears that the
Union’s request that HCR 480M4 be converted to PVS was accepted by the Postal
Service. AR 5553. By April 14, 2017, a recounting of the negotiations between
USPS and the Union shows that the latter requested that the Michigan HCR
480M4 replace HCR 750U0. AR 5563. The new replacement consisted of two
schedules (or four trips) and 1,263 annual hours. Id. at 5563, 5570. As of April 21,
2017, HCR 480M4 was still on the conversion list, see AR 5576. But as of May 18,
2017, the Michigan HCR 48067 and its 3,119 annual hours appears on the list,
seemingly in place of HCR 480M4---as it is identified as route 99 on the list.
Compare AR 3346 (showing HCR 48067 as route 99) with AR 5576 (showing HCR
480M4 as route 99). 3
Thus, the administrative record shows that HCR 48067 took the place of
HCR 480M4, which was itself a substitute for replacement route HCR 750U0. The
number of trips and annual hours for each of the three are also in the
administrative record. See AR 5314–15, 5468–69, 5560. The only additional
information contained in the emails is that HCR 480M4 had been terminated on
January 31, 2017. That may explain why HCR 480M4 could not be converted to
PVS, but it is not relevant to the question of the lawfulness or arbitrariness of
converting other routes, which is the issue raised in this bid protest. The emails
post-date the challenged decision, do not reflect the reasoning process of the officials
involved in that decision, and cannot be necessary for effective judicial review. See
Axiom Res. Mgmt., Inc., 564 F.3d at 1380.
In the third motion to supplement the administrative record plaintiffs seek
to add a declaration from the owner of one of the plaintiff firms, Lori Vonwald of
Stingray Distributing, Inc. 3rd Mot. at 1. In that declaration, Ms. Vonwald said
that mail was being processed and delivered more slowly on one of the routes, HCR
92012, after it had been converted to PVS. Third Decl. of Lori Vonwald (3rd
Vonwald Decl.), ECF No. 92-1, ¶ 2. She explained that this is because the
contractor used two trucks per trip, a practice known as “dual head-out,” which is
not a PVS practice. Id. ¶¶ 2, 4–8. Plaintiffs argue that the declaration shows that
Two other swaps were made at this time: HCR 98337 for HCR 983AT, and HCR
197M6 for HCR 19446. Compare AR 5574 (route 8), 5575 (route 49) with AR 3346
(route 49), 3347 (route 8).
3

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USPS did not properly consider whether PVS transportation “best serves the public
interest” as required by 39 U.S.C. § 5005(c), and may be added to the record based
on precedents allowing supplementation when post-decisional information shows
that false predictions or factual inaccuracies underly the decision. 3rd Mot. at 2–4
(citing, inter alia, NCL Logistics Co. v. United States, 109 Fed. Cl. 596, 612 (2103);
Afghan Am. Servs. Corp. v. United States, 106 Fed. Cl. 714, 724–25 (2012); AshBritt,
Inc. v. United States, 87 Fed. Cl. 344, 366 (2009)). The Court is not persuaded that
the requested supplementation is justified by those precedents, which involved such
circumstances as the correction of clerical errors in an administrative record,
AshBritt, 87 Fed. Cl. at 366, or a contracting officer basing responsibility decisions
on a decision by another official that was subsequently revised, NCL Logistics, 109
Fed. Cl. at 611–12, and on a proposed debarment that was ultimately decided in the
contractor’s favor, Afghan Am. Army Servs., 106 Fed. Cl. at 724–25. 4
The third declaration from Ms. Vonwald is not offered to correct a factual
inaccuracy in the administrative record, or to show that the Postal Service relied on
an outdated decision by another government official in reaching its decision.
Plaintiffs contend that this document is necessary for effective judicial review
because it shows the Postal Service failed to consider the impact “on mail processing
and delivery” of converting routes to PVS. 3rd Mot. at 2. But instead of identifying
any specific predictions that the declaration purportedly contradicts, plaintiffs
instead refer, without citation, to “generic post-hoc statements” of USPS. Id. There
is nothing in the Third Vonwald Declaration which casts any doubt on what the
Postal Service claims to have done in the process of selecting HCR routes for
conversion to PVS. It simply states that she was told of “instances” of later delivery
of mail because of transportation delays, and speculates about other potential
delays. 3rd. Vonwald Decl. ¶¶ 5–8. The document has no connection to the USPS
decision being challenged and cannot be added to the administrative record.

Plaintiffs also cite two persuasive precedents from other Circuits, in which the
Environmental Protection Agency was permitted the use of post-decisional facts to
confirm predictions it made regarding the impact of challenged regulations. See 3rd
Mot. at 4 (citing Am. Petroleum Inst. v. EPA, 540 F.2d 1023, 1034 (10th Cir. 1976);
Amoco Oil Co. v. EPA, 501 F.2d 722, 729 n.10 (D.C. Cir. 1974)). But plaintiffs have
not identified any predictions in the administrative record as to the relative speed of
transporting mail along HCR 92012 by PVS as compared to the contractor.
Moreover, the Court is not persuaded that this approach, adopted because of the
“forward-looking” nature of rulemaking, Amoco Oil Co., 501 F.2d at 729 n.10, is
appropriate for most bid protests.
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The Fourth Motion to Supplement the Administrative Record
In their fourth motion to supplement the administrative record, plaintiffs
seek to add to the administrative record thirty declarations from owners and
officers of the plaintiff firms, and a declaration from the head of the Star Route
Association. See 4th Mot. at 1–2 n.1. Most of these were filed in connection with
motions for preliminary injunctive relief that were either denied, see Mail
Transportation, Inc. v. United States, 133 Fed. Cl. 413, 416–17 (2017), or
withdrawn, see Order (Sept. 29, 2017), ECF No. 89. See ECF No. 3 at 43–255; ECF
No. 33-1 through -4; ECF No. 83-1. All thirty-one declarations are already part of
the court record, and as such can be considered for purposes of determining
prospective relief, but not the merits of the challenge to the procurement decision.
See, e.g., CW Gov't Travel, Inc. v. United States, 110 Fed. Cl. 462, 483–84 (2013);
E.W., Inc. v. United States, 100 Fed. Cl. 53, 57–58 (2011); PlanetSpace, Inc. v.
United States, 90 Fed. Cl. 1, 5 (2009). To be considered in the analysis of the
propriety of the Postal Service’s insourcing decision, these declarations, or portions
thereof, must meet the aforementioned Axiom standard for supplementing the
administrative record. See Axiom Res. Mgmt., Inc., 564 F.3d at 1380. 5 Thus,
plaintiffs must show that consideration of the information in these declarations is
“necessary in order not to frustrate effective judicial review.” Id. at 1381 (cleaned
up).
To decide whether effective judicial review requires the information
submitted by the plaintiffs, the Court must consider the atypical circumstance of
this protest. The decision under challenge in this case is the Postal Service’s
determination to insource 110 mail transportation routes, see AR 1584–86, 3344–47,
following an arbitrator’s award requiring conversion of an initial list of such routes,
for a four-year period. AR 1581. The arbitrator allowed that “[b]y agreement, the
parties [i.e., the Postal Service and the Union] may substitute other route(s) to be
converted to PVS service pursuant to this order based on particular circumstances.”
AR 1581. The plaintiffs held contracts to transport mail along thirty-three of these
routes, see 2d. Am. Compl. ¶ 11, thirteen from the group at issue in the arbitration
proceedings, see AR 5549–52, and twenty that were subsequent substitutions, see
AR 1584–86.
In memoranda to file dated the day before the administrative record was
filed, two Postal Service officials described the process they followed to replace some
This is so, although the Supreme Court apparently misread the legislative history
when it limited reviews of informal agency decisions to information in an
administrative record. See E.W., 100 Fed. Cl. at 56 (citing Gulf Group Inc. v. United
States, 61 Fed. Cl. 338, 350 n.25 (2004); Citizens to Preserve Overton Park v. Volpe,
401 U.S. 402, 415, 419–20 (1971)).
5

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routes with others. AR 1652–56. Using HCR Schedule Information documents,
they ”determined that many of the HCRs were not suitable to conversion to PVS
based on certain features of the routes that would make conversion especially
costly,” focusing in particular on: 1) routes with a trip exceeding eight hours;
2) routes with a layover exceeding one hour; 3) routes serving a facility with no
existing PVS operations; and 4) routes with “dead head trips” in which no cargo is
carried. AR 1652–53. The first two of these considerations were identified as
having the “primary features” making PVS more costly than HCR performance. AR
1652. Other than looking for the four listed features, USPS believed “[i]t was not
feasible to determine whether any of the other available 14,000 HCRs was cheaper
to convert, as that analysis would require significant time and resources to
perform.” AR 1653.
After the Postal Service identified HCRs on the initial list containing any of
the four costly features, it apparently tasked management in the vicinity of each
such route “to identify an alternative route that had roughly the same number of
hours as the substituted route but did not have the features that would make the
route unsuitable for conversion to PVS.” Id. The Union agreed to most of the
proposed substitutions, which constituted the majority of the routes on the final list
for conversion. AR 1654, 1656.
After the Court partially granted plaintiffs’ first motion to supplement the
administrative record, Order (Aug. 11, 2017), ECF No. 61 at 1–2, the Postal Service
filed a second amended administrative record, which included three new
declarations explaining the selection process. See AR 5010–19 (Raney Decl.), 5580–
83 (Dean Decl.), 5601–04 (Wagstaff Decl.). Among the new information were
spreadsheets and email exchanges indicating which of the four costly features were
identified for individual routes from the initial list as well as for some proposed
substitutes. AR 5553–79, 5585–86, 5598–600. The Postal Service officials who
located these documents described them as “draft documents leading toward a final
list” which, they opined, were “not a concrete step in the determinative process” and
“were not required to be maintained” by USPS. Raney Decl. ¶ 30, AR 5018; Dean
Decl. ¶ 8, AR 5582. One of the USPS declarants reiterated that in selecting
replacement routes for those containing one of the four costly features, he “did not
expect that any one of the HCRs that did not have any of the above [costly] features
would be cheaper to convert than would be any other lacking those features.”
Raney Decl. ¶ 24, AR 5015; see also AR 1653.
The plaintiffs maintain that the process used by USPS failed to satisfy the
statutory requirement that in choosing between PVS and contract service the Postal
Service “shall use the mode of transportation which best serves the public interest,
due consideration being given to the cost of the transportation service under each
mode.” 39 U.S.C. § 5505(c); see Pls.’ Mot. for J. on Admin. R., ECF No. 66 at 14–30.
To support that argument, they seek to add to the administrative record
-7-

information, contained in declarations from plaintiffs’ owners and officers, falling in
two general categories: information showing the presence of some of the four costly
features identified by USPS in HCRs that were nevertheless converted to PVS, 4th
Mot. at 4; and information concerning other considerations that allegedly bear on
the mode of transporting mail that best serves the public interest, id. at 4–5. 6
Under these circumstances, the first category of information clearly meets
the Axiom standard. The Postal Service apparently did not create or employ any
formal decision documents in the process of selecting the HCRs for conversion, but
instead described the process after-the-fact. See AR 1652–56, 5010–19, 5580–83,
5601–04. It reluctantly produced some documents showing inchoate steps in the
identification of contract routes containing the four features which make conversion
to PVS unsuitable, see Raney Decl. ¶ 30, AR 5017–18; Dean Decl. ¶¶ 8–10, AR
5581–82, but the primary support for these determinations rests in the raw
material---more than 1,500 pages of route schedule information that were
apparently reviewed to identify the presence of these features, see AR 5020–547,
1657–2689. The determination that a route lacked any of the unsuitable features
seems, at best, implicit in the presence of that route on the final conversion list.
But officers and owners of nine of the plaintiff companies have themselves
identified the presence of these unsuitable features in fourteen of the routes
selected for conversion. Concerning three of the four features, the precise trips, as
shown on the schedule information, exhibiting these features are identified. See,
e.g., Supp’l Decl. of Eugene Nishimura, EFC No. 71-7, ¶ 3 (discussing a layover in
excess of one hour during a trip for HCR 967L1); AR 1972 (showing schedule
information for trips 12 and 17). 7 The government and intervenor oppose the
request to supplement the administrative record, arguing that the declarations
contain merely opinions disagreeing with the Postal Service’s analysis. U.S.’ Resp.
in Opp’n to Pls.’ 4th Mot., ECF No. 106 at 3–4; Intervenor Resp. to Pls.’ [4th] Mot.,
ECF No. 105 at 1. But regarding the four features USPS claims to have used to
As the burden to justify supplementation falls upon the party requesting it, the
Court will only consider the information in the specific declarations and paragraphs
discussed in plaintiffs’ motion and must deny their request concerning the
remaining declarations or portions thereof.
6

The one unsuitable feature which is not, presumably, depicted on the face of the
schedule information is the lack of existing PVS operations, which was based on
USPS officials’ knowledge of operations at the various facilities. See Raney Decl.
¶ 20, AR 5013–14. Plaintiffs’ statements concerning this feature may be added to
the record as “tacit knowledge possessed by offeror and agency personnel” or
information “generally known in an industry or discipline.” E.W., 100 Fed. Cl. at
57.
7

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determine the routes to convert, the declarations are identifying and explaining
facts in the administrative record, not offering opinions. The plaintiffs maintain
that the Postal Service did not consistently identify the presence of the unsuitable
features, and this concerns an objective element of the Postal Service’s analysis and
conclusions, which can the basis for finding a procurement decision to be arbitrary.
See USfalcon, Inc. v. United States, 92 Fed. Cl. 436, 462 (2010) (explaining bid
protest review “involves verifying that objective elements contained in the agency’s
analysis . . . correspond to the evidence in the record”) (citations omitted).
Given the lack of any formal decision documents for the selection process,
effective review of this protest ground would be frustrated if the Court were forced
to conduct a green-eyeshade review of every trip entry in the 1,561 pages of
schedule information, hunting for eight-hour-plus trips, one-hour-plus layovers, and
dead head trips. Nor, given the number of HCRs at issue and the need to translate
the information contained in the schedules to show the presence of the unsuitable
features, can this be a task for plaintiffs’ counsel to perform in the first instance. 8
Because this information is nearly inscrutable without the assistance of plaintiffs’
owners and officers, who are in the position to understand not just their mail
transportation operations but also the meaning of the trip schedule data, the
portions of the declarations identifying the unsuitable features qualify for inclusion
in the administrative record as “tacit knowledge possessed by offeror and agency
personnel of a highly technical and complex nature, requiring explication via
affidavits or expert testimony.” E.W.¸100 Fed. Cl. at 57 (citations omitted); see also
Global Computer Enters., Inc. v. United States, 88 Fed. Cl. 52, 63 (2009) (finding
“the enormous amount of information presented ” made supplementation “necessary
for a full and complete understanding of the issues”) (internal citations and
quotations omitted); Palantir USG, Inc. v. United States, 129 Fed. Cl. 218, 242
(2016) (finding supplementation necessary due to the “highly technical nature” of
some protest issues). Absent this information, effective judicial review is frustrated.
See Axiom, 564 F.3d at 1380. Accordingly, the identified portions of the following
declarations shall be added to the administrative record:
•

Decl. of Lori Vonwald, EFC No. 71-2, ¶ 18 (discussing dead head trips on
HCR 926L1).

The only document in the record which gives examples showing how schedule
information can be used to identify the three trip-related features is the Wagstaff
declaration. See Wagstaff Decl. ¶¶ 5–7, AR 5602. As this responded to the first
motion to supplement the administrative record, it addressed the one example
provided by plaintiffs at that time. See id. ¶¶ 8–12, AR 5602–04; Pls.’ Reply in
Supp. of Mot. to Suppl. AR, ECF No. 58 at 3 n.1.
8

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•

•
•
•

•

•
•
•

Supp’l Decl. of Alan Gotta, EFC No. 71-3, ¶ 3 (noting a layover in excess of
one hour in HCR 92350), ¶ 4 (discussing a dead head trip that occurs during
the month of December for HCR 92350). 9
Supp’l Decl. of George A. Taylor, EFC No. 71-4, ¶ 5 (discussing dead head
trips under HCR 48018).
Supp’l Decl. of Eugene Nishimura, EFC No. 71-7, ¶ 3 (discussing a layover in
excess of one hour during a trip for HCR 967L1).
Supp’l Decl. of Frederick S. Riceputo, EFC No. 71-8, ¶ 3 (discussing a trip in
excess of 8 hours for HCR 331N3), ¶ 4 (noting a layover in excess of 1 hour for
HCR 33042), 10 ¶¶ 5–6 (discussing lack of existing PVS operations for HCR
33430, 33443).
Supp’l Decl. of Nola Holton, EFC No. 71-12, ¶ 6 (noting that there is a layover
of more than 1 hour on a trip for HCR 890L0), ¶8 (describing a layover of
more than an hour on certain limited trips for HCR 89042).
Supp’l Decl. of Yung Lee, ECF No. 71-13, ¶ 3 (discussing a layover in excess
of one hour on a trip for HCR 92352).
Supp’l Decl. of Walter B. Adams, 71-14, ¶ 3 (observing that trips in HCR
194L4 have deadhead trips).
Supp’l Decl. of Greg Causley, ECF No. 3 at 221, ¶ 26(b) (discussing lack of
existing PVS operations for HCR 48162).

The second category of information which plaintiffs want added to the
administrative record is more problematic. Plaintiffs maintain that this
information concerns “specific issues that should have been considered in
determining which mode of transportation best serves the public interest, due
consideration being given to cost.” 4th Mot. at 4. On the one hand, an important
aspect of a matter that an agency entirely failed to consider, see Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), may invariably
involve “relevant information that by its very nature would not be found in an
agency record.” Orion Intl. Techs. v. United States, 60 Fed. Cl. 338, 343 (2004); see,
e.g., MORI Assocs., Inc. v. United States, 98 Fed. Cl. 572, 575 (2011); Diversified
Maint. Sys., Inc. v. United States, 93 Fed. Cl. 794, 801 (2010) (collecting cases);
Allied Tech. Grp., Inc. v. United States, 92 Fed. Cl. 226, 232 (2010) (supplementing
record with documents which “probably should have been reviewed by agency in
making its award decision”). On the other hand, a bid protest is not an occasion to
The Court notes that the copy of this declaration that accompanied plaintiffs’
motion for judgment was unsigned and expects that plaintiffs will expeditiously file
the signed version.

9

This declaration contains two paragraphs assigned the number four. The
material to be added is in the second of these.
10

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second-guess the judgment of agencies, and thus such “important aspect[s] of the
problem” presented to agencies are usually identified by the agency itself, in setting
the requirements of a procurement, see Ala. Aircraft Indus., Inc.-Birmingham v.
United States, 586 F.3d 1372, 1375–76 (Fed. Cir. 2009), or statutorily by Congress,
see State of N.C. Bus. Enters. Program v. United States, 110 Fed. Cl. 363–64 (2013);
CBY Design Builders v. United States, 105 Fed. Cl. 303, 344–45 (2012).
Of course, in an atypical protest such as this one, where there is no
solicitation or formal decision document in the administrative record,
supplementation is more likely to be necessary to allow for effective judicial review.
See Global Computer Enters., 88 Fed. Cl. at 62–63 & n.14. And the “important
aspect” that was entirely ignored may frequently be self-evident from the
circumstances of the procurement decision at issue. See, e.g., ARxIUM, Inc. v.
United States, 136 Fed. Cl. 188, 200–04 (2018) (finding important aspects ignored
when corrective action altered the meaning of requirements); Supreme Foodservice
GmbH v. United States, 109 Fed. Cl. 369, 385– 86 (2013) (recognizing factors that
should be considered in automatic stay override cases); MORI Assocs., Inc. v. United
States, 102 Fed. Cl. 503, 544 (2011) (explaining that an important consideration for
a procurement decision “may be apparent from the circumstances of the
procurement”). Here, plaintiffs maintain that the statutory requirement that due
consideration be given to cost in making mail transportation decisions, see 39 U.S.C.
§ 5505(c), means that various aspects of their operations that may translate into
cost savings when routes are performed by contractors---including such practices as
not paying for breaks, not charging for loading and unloading, efficiently combining
shifts and routes, and using specialized equipment, 4th Mot. at 4–5---had to have
been considered for USPS to rationally decide which routes to convert to PVS.
Under the circumstances of this case, where an arbitrator ordered the Postal
Service to covert 110 HCRs to the generally more costly PVS operations, see AR
1581, and the Postal Service allegedly relied on its experience to identify features
that make routes especially costly when performed by PVS, see Raney Decl. ¶¶ 13–
22, AR 5011–14, the Court is not persuaded that effective judicial review requires
consideration of the vast majority of the information submitted by plaintiffs
regarding other cost factors. If, as a matter of law, the specific costs and
performance of each individual contractor had to be considered for conversion to be
proper, then the absence of such consideration is sufficient for plaintiffs’ merits
case. If not, there is no reason why the Postal Service’s solution to the problem of
assembling 110 routes in bulk to convert to PVS required intimate knowledge of the
specific manner of performance for each of the roughly 14,000 postal transportation
routes, see Raney Decl. ¶ 6, AR 5010.
The only information in the second category which the Court finds necessary
for effective judicial review concerns matters within the specific knowledge and
control of the Postal Service, namely the ordering of extra trips and of holds
resulting in late slips. See 4th Mot. at 4; Pls.’ Mot. for J. on Admin. R. at 28. While
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the schedule information does not reflect this additional work and time, similar to
the absence of PVS operations at a facility, it is information relating to management
decisions of USPS itself, and is in a sense “tacit knowledge” of a “technical nature”
possessed by Postal Service and contractor employees. See E.W., 100 Fed. Cl. at 57.
Simply put, the Court cannot determine whether these cost factors, known and
under the control of the Postal Service, should have been considered in the decision
under review, without this information being added to the administrative record.
Accordingly, the identified portions of the following declarations shall be added to
the administrative record:
•
•
•
•

Decl. of Lori Vonwald, EFC No. 71-2, ¶¶ 19–20 (concerning HCR 926L1 and
92012).
Supp’l Decl. of David Bachman, ECF No. 71-6, ¶¶ 3–14 (concerning HCR
331AJ, 66393, 76090, and 760M2).
Supp’l Decl. of Frederick S. Riceputo, ECF No. 71-8, ¶¶ 4–6 (concerning HCR
331N3, 33430, and 33443). 11
Supp’l Decl. of Nola Holton, ECF No. 71-12, ¶¶ 9–14 (concerning HCR 890L0,
89042, 89044, and 89036).

As explained above, plaintiffs’ fourth motion to supplement the
administrative record is GRANTED-IN-PART as to the specific portions of the
declarations identified in the two lists, and DENIED-IN-PART regarding all of the
remaining requests.
The Suggestion of Mootness
The final matter before the court at this time is the suggestion of the
government that the claims of any plaintiff whose contract has expired during the
pendency of this protest should be dismissed as moot. Def.’s Supp’l Br., ECF No.
115 at 3–6. But as the Court held when resolving defendant’s motion to dismiss
this case, plaintiffs have stated a claim within our bid protest jurisdiction by
challenging the Postal Service’s insourcing decision. Mail Transportation, Inc. v.
United States, 133 Fed. Cl. 413, 415 (2017) (citing Dellew Corp. v. United States, 108
Fed. Cl. 357, 370 (2012); Elmendorf Support Servs. Joint Venture v. United States,
105 Fed. Cl. 203, 208 (2012); Santa Barbara Applied Research, Inc. v. United States,
98 Fed. Cl. 536, 542–43 (2011)). The expiration of any of plaintiffs’ contracts does
not affect their standing to challenge an insourcing decision as a violation of 39
U.S.C. § 5005(c), since an unlawful insourcing would have deprived them of the
opportunity to compete for a new contract. See Loomacres, Inc. v. United States,
134 Fed. Cl. 779, 782–83 (2017). Nor would the expiration of any contract eliminate
The Court is referring to the first paragraph of this declaration given the number
four.
11

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the possibility of an effective remedy were plaintiffs to prevail in their protest, such
as an order requiring the Postal Service to reconsider the conversion of their routes
to PVS using a process which complies with 39 U.S.C. § 5005(c). This case is not
brought to enforce the rights plaintiffs have under their contracts, but rather to
protest a Postal Service decision which allegedly violated a statute which applies
whenever USPS is “determining whether to obtain transportation of mail by
contract . . . or by Government motor vehicle.” 39 U.S.C. § 5005(c). The matter is
not moot.
Supplemental Briefs to Address the Additional Materials
Because of the supplementation of the administrative record, adding
materials which plaintiffs had previously discussed in their merits briefing, see, e.g.,
Pls.’ Mot. for J. on Admin. R. at 27–29, the Court will require additional briefing to
address the significance, if any, of the added materials. The government and
intervenor shall each file a supplemental brief on or by Thursday, April 15, 2021,
addressing this supplemental information. Plaintiffs shall file a supplemental brief
in response on or by Thursday, April 29, 2021. The Court will then consider the
matter submitted for decision.
For the foregoing reasons, plaintiffs’ second and third motions to supplement
the administrative record, ECF Nos. 81 and 92, are DENIED, and plaintiffs’ fourth
motion to supplement the administrative record, ECF No. 104, is GRANTED-INPART and DENIED-IN-PART.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Senior Judge

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