Procedural Approaches to Filling Gaps
in the Administrative Record in Bid Protests Before the U.S.
Court of Federal Claims
By David S. Black & Gregory R. Hallmark[footnoteRef:1]* [1:
* David S. Black is a partner in the Northern Virginia office of
Holland & Knight LLP who is a member of the firm's Government
Contracts team. He can be reached at 703-720-8680 and
[email protected]. Gregory R. Hallmark an associate in the
Northern Virginia office of Holland & Knight LLP who is a
member of the firm's Government Contracts team. He can be reached
at 703-720-8045 and at [email protected]. The authors
would like to extend their sincere thanks and appreciate to Denisse
Velarde-Cubek, a current law student at the George Washington
University Law School and a summer associate at Holland &
Knight, for her assistance and contributions to this article.]
Table of Contents
I.APA Background13
A.Why the APA Matters in Court of Federal Claims Bid Protest
Cases13
B.The APA: Key Concepts Regarding the Administrative Record in
Cases Reviewing Informal Agency Action19
1.Development of APA Jurisprudence Regarding the Standard of
Review in Cases Reviewing Informal Agency Action21
2.Compiling and Supplementing the Administrative Record in Cases
Reviewing Informal Agency Action Under the APA28
i.Using Written Statements to Supplement the Administrative
Record31
ii.Supplementing the Administrative Record with Information
Developed through Discovery Procedures33
II.Procedures Employed by the CFC to Supplement the
Administrative Record in Post-ADRA Bid Protest Cases under the APA
Standard of Review37
A.Federal Circuit Cases Have Established the Basic Framework for
the Court of Federal Claims' APA Review in Bid Protest Cases38
B.The Court of Federal Claims' Approaches to Dealing with Gaps
in the Contemporaneous Administrative Record42
1.The Presumption of Regularity42
2.Admitting Post-Decisional Written Statements By Agency
Officials Without Confrontation of the Witness through Deposition
or Live Testimony at Hearing47
3.Permitting Depositions of Agency Witnesses65
4.Permitting Live Testimony of Agency Witnesses in Evidentiary
Hearings73
C.Remanding the Matter to the Agency75
III.Relative Merits of the Various Procedures to Supplement the
Administrative Record80
A.Post-Decisional Written Statements81
B.Deposition Testimony99
C.Live In-Court Hearing Testimony105
IV.Recommended Approach: Favor a Procedure that Provides an
Opportunity for Confrontation While Exercising Reasonable
Discretion to Adjust for Case-Specific Circumstances109
V.Conclusion112
i.
In this article, we address supplementation of the
administrative record in bid protests at the United States Court of
Federal Claims (CFC). However, unlike recent judicial decisions and
articles, our focus is not when the administrative record should be
supplemented or with what information. Instead, our purpose is to
explore how the administrative record should be supplemented as a
matter of procedure.
In a bid protest at the CFC, nothing is more amorphous or
critical to the outcome of the case than the contents of the
administrative record.[footnoteRef:2] There is a wide variation in
the quality of documentation of agencies' procurement-related
actions in protest cases.[footnoteRef:3] Several judges have
acknowledged that "in most bid protests, the 'administrative
record' is something of a fiction" because "the agency has to
exercise some judgment in furnishing the court with relevant
documents."[footnoteRef:4] The artificiality of the administrative
record in protest cases may also stem from the discretion agencies
exercise in determining how to explain and document their
evaluations of proposals, contract award decisions, and other
matters of discretion during a procurement.[footnoteRef:5] As the
judicial decisions cited in this article demonstrate,
administrative records in protest cases often vary widely in the
issues addressed and the level of detail of an agency's
explanations.[footnoteRef:6] Agencies may document the basis for
their decisions with minimal sparseness, in great detail, or
somewhere in between.[footnoteRef:7] Sometimes, the quality of
explanation varies from issue-to-issue, and decision-to-decision as
agencies focus more on what they perceived to be important at the
time rather than on the issues that became important in subsequent
litigation.[footnoteRef:8] Comment by RStalnaker: [ADD
CITATION]Comment by RStalnaker: [ADD CITATION]Comment by
RStalnaker: [ADD CITATION]Comment by RStalnaker: [ADD
CITATION]Comment by RStalnaker: [ADD CITATION]Comment by
RStalnaker: [ADD CITATION] [2: [ADD CITATION]] [3: [ADD CITATION]]
[4: Cubic Applications, Inc. v. U.S., 37 Fed. Cl. 345, 350 (1997)
("Cubic II") (Judge Bruggink); see also Contracting Consulting
Engineering LLC v. United States, 104 Fed. Cl. 36, 38 (2012) (Judge
Christine Miller); Joint Venture of Comint Systems Corp. v. United
States, 100 Fed. Cl. 159, 165 (2011) (Judge Sweeney); Tech Systems,
Inc. v. United States, 97 Fed. Cl. 262 265 (2011) (Judge Wolski);
Montana Fish, Wildlife, and Parks Foundation, Inc. v. United
States, 91 Fed. Cl. 434, 440 (2010) (Judge Lettow); PlanetSpace,
Inc. v. United States, 90 Fed. Cl. 1, 4 (2009) (Judge Block);
Bannum, Inc. v. United States, 89 Fed. Cl. 184, 188 (2009) (Judge
Wheeler); Savantage Financial Serv., Inc. v. United States, 81 Fed.
Cl. 3000, 310 (2008) (Judge Futey); R & D Dynamics Corp. v.
United States, 80 Fed. Cl. 715, 723 (2077) (Judge Hewitt); Advanced
Systems Dev., Inc. v. United States, 72 Fed. Cl. 25, 34 (2006)
(Judge Baskir); Comprehensive Health Serv., Inc. v. United States,
70 Fed. Cl. 700, 719 (2006) (Judge Braden); International Resource
Recovery, Inc. v. United States, 59 Fed. Cl. 537, 542 (2004) (Judge
Williams); Mike Hooks, Inc. v. United States, 39 Fed. Cl. 147, 155
n.2 (1997) (Judge Merow).] [5: [ADD CITATION]] [6: [ADD CITATION]]
[7: [ADD CITATION]] [8: [ADD CITATION]]
Nevertheless, the content and thoroughness of the administrative
record is of critical importance and often a determining factor in
a bid protest case.[footnoteRef:9] This is because the CFC's review
of the reasonableness and legality of an agency's procurement
action is limited to the information that has been formally
included within the administrative record.[footnoteRef:10] In bid
protest cases governed by the Administrative Procedure Act's
("APA") standard of review, "'focal point for judicial review
should be the administrative record already in existence, not some
new record made initially in the reviewing court.'"[footnoteRef:11]
"'The 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.'"[footnoteRef:12] Thus, the
"heavy burden" that a protester bears to show that an award
decision had no rational basis must be met entirely with the
information contained in the administrative record.[footnoteRef:13]
Comment by RStalnaker: [ADD CITATION]Comment by Caitlin: “” [9:
[ADD CITATION]] [10: Axiom Resource Management, Inc. v. United
States, 564 F.3d 1374, 1379-80 (Fed. Cir. 2009).] [11: Id. at 1379
(quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 124, 36 L.E.2d
106 (1973)).] [12: Id. at 1379-80 (quoting Fla. Power & Light
Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643
(1985) (emphasis in original) The Court may extend its review to
the record actually before the agency, not just what the agency
chooses to send to the CFC. See Tauri Group, LLC v. United States,
99 Fed. Cl. 475, 480 (2011).] [13: Impresa Construzioni Geom.
Domenico Garufi v. United States, 238 F.3d 1324, 1332-33 (Fed. Cir.
2001) ("[T]he disappointed bidder bears a 'heavy burden' of showing
that the award decision 'had no rational basis.'" (quoting Saratoga
Dev. Corp. v. United States, 21 F.3d 445, 456 (D.C. Cir.
1994)).]
The Federal Circuit has acknowledged that, on occasion, an
administrative record in a bid protest case can be so sparse or
incomplete that it "precludes effective judicial
review."[footnoteRef:14] As one CFC judge has explained: [14: Axiom
Resource Management, Inc., 564 F.3d at 1380.]
“In order to preserve a meaningful judicial review, the parties
must be able to suggest the need for other evidence, and possibly
limited discovery, aimed at determining, for example, whether other
materials were considered, or whether the record provides an
adequate explanation to the protester or the court as to the basis
of the agency action.”[footnoteRef:15] [15: Cubic II, 37 Fed. Cl.
at 350.]
In Axiom Resource Management, Inc., the Federal Circuit
confirmed that the CFC has discretion to supplement the
administrative record "only if the existing record is insufficient
to permit meaningful review consistent with the APA" and when
"supplementation of the record was necessary in order not 'to
frustrate effective judicial review.'"[footnoteRef:16] [16: Axiom
Resource Management, Inc., 564 F.3d at 1381.]
However, the Federal Circuit has not yet address how the
administrative record should be supplemented, as a matter of
procedure, when the CFC determines that this step is necessary. A
range of procedural options are available to add evidence necessary
to review an agency's decision-making process to the administrative
record, including:Comment by RStalnaker: No fn appears necessary
since it would be proving a negative.
1. admitting post-decisional written statements by agency
witnesses (including declarations prepared for the CFC or for the
U.S. Government Accountability Office ("GAO") during the course of
a preceding GAO protest) without any opportunity for live testimony
or confrontation of the witnesses by the protester and
intervenor;
2. admitting post-decisional deposition testimony by a witness
after allowing for confrontation of the witnesses by the protester
and intervenor at the deposition; and
3. admitting post-decisional live testimony at an evidentiary
hearing held by the CFC where the judge can observe the demeanor of
the witnesses and the protester and intervenor have an opportunity
for cross-examination.[footnoteRef:17] [17: The parties and the CFC
may also seek to admit additional pre-decisional documents that
were omitted by the agency from the administrative record. Such
documents might included additional explanations of agency
decisions, earlier drafts of explanations that were included in the
administrative records, or information that was considered by the
agency in making its decision. Adding these pre-decisional
documents is generally considered "completing" the administrative
record, rather than "supplementing" it. "[T]here is a distinction
to be made between materials proffered to 'supplement' or to
'complete' the administrative record. A procuring agency's initial
submission to the court may omit information that is properly part
of the administrative record because it served as a basis for the
agency's award decision. In such instances, subsequent admission of
the omitted information is appropriate not to supplement the
record, but to complete it." Linc Gov't Serv., LLC v. United
States, 95 Fed.Cl. 155, 158 (2010). The admission of materials
generated or considered by the agency itself during the procurement
process is considered "completing" the administrative record and is
not subject to an Axiom-type analysis. See Joint Venture of Comint
Systems Corp. v. United States, 100 Fed. Cl. 159, 167 (2011)
(citing NEQ, LLC v. United States, 86 Fed. Cl. 592, 593 (2009)).
This article is primarily concerned with procedures employed by the
CFC to admit post-decisional summaries – either in the form of
written statements or testimony – of the explanation of an aspect
of an agency's decision that was not previously documented.]
While the CFC's evidentiary determination regarding the
procedure for admitting new information to the administrative
record is certainly a matter committed to the discretion of the
court,[footnoteRef:18] the CFC should be thoughtful in regard to
how this discretion is exercised. Comment by RStalnaker: No FN
appears necessary. This is a basic theme in the article. [18: Axiom
Resource Management, Inc., 564 F.3d at 1378 ("'Evidentiary
determinations by the Court of Federal Claims, including motions to
supplement the administrative record, are reviewed for abuse of
discretion'.") (quoting Murakami v. United States, 398 F.3d 1342,
1346 (Fed. Cir. 2005)).]
The type of procedure employed to admit such evidence is
important because the procedure can impact the quality of
information obtained for inclusion in the administrative record and
the relative costs and burdens to the parties.[footnoteRef:19] Each
of the procedural options outlined above has relative strengths and
weaknesses as a truth-finding function and benefits and costs as a
matter of judicial and administrative efficiency.[footnoteRef:20]
In addition, whether one procedure is favored over the others can
create incentives and potentially shape the behavior of government
procurement personnel when documenting their decisions in future
procurements.[footnoteRef:21] Comment by RStalnaker: [ADD
CITATION]Comment by RStalnaker: [ADD CITATION]Comment by
RStalnaker: [ADD CITATION] [19: See infra Part I.B.2, II.B.2.] [20:
See infra Part I.B.2, II.B.2.] [21: See infra Part I.B.2,
II.B.2.]
The purpose of this article is to explore these procedural
options, understand how these options have been employed by the CFC
in bid protest cases applying the APA standard of review and to
assess their relative merits in different circumstances. The goal
of this article is to facilitate the insightful exercise of
discretion by the CFC to elect a procedure that will balance the
Court's interest in developing reliable information about the
agency's decision-making process, the public's interest in the
integrity of the federal procurement system, the protester's
interest in fairness and due process, and the agency's interest in
efficiency.
Part I of this article will briefly summarize how the APA
standard of review came to apply to bid protests at the CFC. Part I
will also provide a brief summary of the background and intent of
the APA in general as a checks-and-balances procedure utilizing
review by the Judicial Branch to ensure that Executive Branch
agencies are complying with the legal directives enacted by the
Legislative Branch. Part I will also provide background information
regarding the compilation and supplementation of the administrative
record in non-procurement cases and the procedures employed by
courts when the administrative record lacks information about
whether the agency considered all the relevant factors or does not
fully explain the agency's decision. As will be seen, outside the
procurement context, a preferred procedure is to remand the matter
to the agency for its amplification.[footnoteRef:22] Alternatively,
when circumstances warrant, courts may admit affidavits or
testimony from government officials or permit limited discovery to
obtain the missing information about the basis of its
decision.[footnoteRef:23] Comment by Caitlin Grimmer: This roadmap
is incredibly long. Consider cutting it down. I’ve placed notation
for a fn in areas that seemed more like statements than opinions.
Usually fns don’t go in the roadmap, but considering the length, it
might be better to substantiate some of the more factual claims.
CGComment by RStalnaker: [ADD CITATION]Comment by RStalnaker: [ADD
CITATION] [22: [ADD CITATION]] [23: [ADD CITATION]]
Part II of this article will review CFC decisions since the
passage of the Administrative Dispute Resolution Act of 1996
("ADRA"),[footnoteRef:24] which formally applied the APA standard
of review to bid protest cases in the CFC.[footnoteRef:25] These
cases show the CFC utilizing written statements and deposition
testimony by agency officials to supplement the administrative
record with missing information about the agency's award decision.
Generally, these cases have limited discussion of the relative
merits of one procedure over another. Some CFC judges are skeptical
of the utility of post-decisional written statements, particularly
those submitted to GAO during a prior protest. CFC judges are also
generally unwilling to consider an agency's post hoc analysis,
i.e., consideration of an issue for the first time during the
protest litigation that was not done prior to the award decision
under review. Comment by RStalnaker: [ADD CITATION] [24:
Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320,
§ 12, 110 Stat. 3870, 3874-75 (1996).] [25: [ADD CITATION]]
Part III of this article provides an analysis of the relative
merits of the various methods of supplementing the administrative
record with additional post-decisional information regarding the
agency's explanation of its award decision and whether it
considered the relevant factors. Part IV will weigh the relative
strengths and weaknesses of these methods to generate reliable and
accurate information about the agency's decision and as a matter of
fairness and due process to the protester. It will also consider
the relative benefits and costs of these procedures in regard to
efficiency and promoting the integrity of the procurement system.
There will also be a discussion of how these procedures might
influence future behavior of government procurement personnel
should one of them become a preferred method. This section is
intended to serve as an issue-spotting tool of factors a CFC judge
might consider when determining how to exercise her discretion
regarding which procedure to use under the circumstances of a
particular case.
Part IV of this article will present a recommended preferred
approach to the admission of post-decisional evidence regarding an
agency's award decision. We will recommend a preferred procedure
that affords the protester and the intervenor an opportunity to
confront the government witness who is providing the missing
information about the agency's award decision, either in the format
of a limited-scope deposition or, depending on the issues and the
judge's preference, an evidentiary hearing. We will explain that an
adversarial process involving an opportunity for cross-examination
by all parties is more likely to result in the most reliable
information and to afford the protester and intervenor the kind of
due process "opportunity to be heard" that is justified in matters
reviewing the expenditure of taxpayer dollars and the integrity of
the competitive process. These benefits to the truth-finding
function of the Court, fairness to the parties, and the integrity
of the procurement system outweigh the comparatively modest
expenditure of time and effort to provide such testimony. Written
statements without any opportunity to confront the author suffer
from the same weaknesses as other hearsay statements and provide
agency personnel with at least a temptation to embellish the depth
of their decision-making process.[footnoteRef:26] The uncertainty
of facing cross-examination at a deposition or hearing should have
a chilling effect against the incentive to exaggerate or overstate
the factors considered by the agency and the explanation of the
basis of its decision.[footnoteRef:27]Comment by Caitlin Grimmer:
fnComment by RStalnaker: No FN added, because this is the author’s
main point.Comment by RStalnaker: [ADD CITATION] Use a “see infra”
and cite to future discussion of this point.Comment by RStalnaker:
[ADD CITATION] Same as above, use a see infra for where this point
is discussed later. [26: [ADD CITATION]] [27: [ADD CITATION]]
Ultimately, we respect that, as a matter of law, the decision
about the best procedure to supplement the administrative record
with post-decisional summaries of the agency's decision is a matter
committed to each judge's sound discretion.[footnoteRef:28] While
it may be appropriate to have a preferred approach, this is not an
issue suitable for bright line rules. There may be times when,
because of the nature of the issue, the parties agree that a
written statement is sufficiently credible and complete to supply
missing information, without any opportunity for confrontation.
There may be times when a judge prefers to observe live testimony
at an evidentiary hearing when the parties might be satisfied with
a deposition procedure. While we recognize the practical
requirement for flexibility and case-by-case discretion, we hope
that this article spurs enhanced awareness and thinking about this
important procedural juncture in a CFC bid protest, which can be
critical to ensuring the development of a reliable administrative
record and effective judicial review of procurement decisions
intended by the APA.Comment by RStalnaker: [ADD CITATION] [28:
Fulcra Worldwide LLC v. United States, 97 Fed.Cl. 523, 534
(2011).]
APA Background Why the APA Matters in Court of Federal Claims
Bid Protest Cases
Much of this article will be spent addressing the most
appropriate procedure for supplementing the administrative record
under the APA-style review conducted by the CFC in bid protest
cases. As a preliminary matter, it may be worth summarizing why the
APA matters at all.
The application of the APA standard of review to protests filed
at the Court of Federal Claims is still a relatively new phenomenon
– since 1996.[footnoteRef:29] The history of judicial review of
government contracting procurement decisions has been described as
"long and complicated"[footnoteRef:30] and a "work in progress for
at least the last eighty years."[footnoteRef:31] Although GAO has
heard protest cases since the 1920s, judicial review of
procurements was not possible until 1956 at the CFC under an
"implied contract" theory and until 1970 at federal district courts
under the APA standard of review.[footnoteRef:32] Comment by
Caitlin Grimmer: Reword. Sentence is awkward w/ since 1996 at the
end. CG [29: The history of bid protest jurisdiction at the CFC,
GAO, and federal district courts has been the subject of numerous
articles. See Raymond M. Saunders & Patrick Butler, A Timely
Reform: Impose Timeliness Rules for Filing Bid Protests at the
Court of Federal Claims, 39 Pub. Cont. L. J. 539, 541-48 (2010)
(providing a brief history of bid protest jurisdiction); Robert S.
Metzger & Daniel A. Lyons, A Critical Reassessment of the GAO
Bid-Protest Mechanism, 6 Wis. L. Rev. 1225 (2007); Peter
Verchinski, Are District Courts Still a Viable Forum for Bid
Protests?, 32 Pub. Cont. L. J. 393, 395-403 (2003) (summarizing the
history of bid protest jurisdiction). See also Impresa Construzioni
Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1331-33
(Fed. Cir. 2001) (summarizing the history of the judicial review of
government contracting procurement decisions). We provide only a
short synopsis of this history for the purpose of highlighting the
changing jurisdiction and standard of review in protest cases
before the CFC. ] [30: Domenico Garufi, 238 F.3d at 1331.] [31:
Verchinski, supra note 28, at 395.] [32: Saunders & Butler,
supra note 28, at 542-45; Verchinski, supra note 28, at
396-98.]
In 1940 (prior to the passage of the APA), the Supreme Court
held that disappointed bidders lacked standing to contest a
procurement-related decision by an executive agency because
Congress had passed procurement laws for the protection of the
government rather than for contractors.[footnoteRef:33] Although
Congress enacted the APA in 1946, this was not recognized as a
mechanism for reviewing agency procurement actions for 24
years.[footnoteRef:34] Comment by RStalnaker: [ADD CITATION] [33:
See Perkins v. Lukens Steel Co., 310 U.S. 113 (1940).] [34: See
Scanwell Lab. Inc. v. Shaffer, 424 F.2d 859, 864 (D.C. Cir.
1970).]
Instead, the first judicial review of contract award decisions
occurred in 1956, when the predecessor to both the CFC and Federal
Circuit, the United States Court of Claims, recognized that
disappointed bidders had a right to sue to recover bid and proposal
costs (but not for injunctive or declaratory relief) when an
executive agency breached the implied promise "to give fair and
impartial consideration to its bid."[footnoteRef:35] The CFC
limited the scope of its review to whether the disappointed bidder
had shown: [35: Heyer Products Co. v. United States, 140 F. Supp.
409, 413 (Ct. Cl. 1956).]
“by clear and convincing proof that there has been a fraudulent
inducement for bids, with the intention, before the bids were
invited or later conceived, to disregard them all except the ones
from bidders to one of whom it was intended to let the contract,
whether he was the lowest bidder or not. In other words, it must be
shown that bids were not invited in good faith, but as a pretense
to conceal the purpose to let the contract to some favored bidder,
or to one of a group of preferred bidders, and with the intent to
willfully, capriciously, and arbitrarily disregard the obligation
to let the contract to him whose bid was most advantageous to the
Government.”[footnoteRef:36] [36: Id. at 414.]
By 1974, the CFC articulated its standard of review in protest
cases seeking bid and proposal costs as follows:
“The ultimate standard is...whether the Government's conduct was
arbitrary and capricious toward the bidder-claimant. We have
likewise marked out four subsidiary, but nevertheless general,
criteria controlling all or some of these claims. One is that
subjective bad faith on the part of the procuring officials,
depriving a bidder of the fair and honest consideration of his
proposal, normally warrants recovery of bid preparation costs. A
second is that proof that there was 'no reasonable basis' for the
administrative decision will also suffice, at least in many
situations. The third is that the degree of proof of error
necessary for recovery is ordinarily related to the amount of
discretion entrusted to the procurement officials by applicable
statutes and regulations. The fourth is that proven violation of
pertinent statutes or regulations can, but need not necessarily, be
a ground for recovery. The application of these four general
principles may well depend on (1) the type of error or dereliction
committed by the Government, and (2) whether the error or
dereliction occurred with respect to the claimant's own bid or that
of a competitor.[footnoteRef:37] [37: Keco Indus. Inc. v. United
States, 492 F.2d 1200, 1203-04 (Ct. Cl. 1974).]
In 1970, in the seminal case of Scanwell Laboratories, Inc. v.
Shaffer, the D.C. Circuit recognized that disappointed bidders have
a right under the APA to challenge procurement-related
decisions.[footnoteRef:38] The D.C. Circuit acknowledged that many
aspects of procurement are committed to agency discretion and
outlined how district courts should apply the APA standard of
review: [38: Scanwell Lab. Inc. v. Shaffer, 424 F.2d 859, 864 (D.C.
Cir. 1970).]
“...[W]hile review is not granted for action 'by law committed
to agency discretion,' as noted in section 701(a)(2), review is
expressly provided for when there is an abuse of that
discretion:
Scope of review...(The reviewing court) shall...(2) hold
unlawful and set aside agency action, findings, and conclusions
found to be (A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; . . . .
As we have noted above, it is inconstestable that many areas of
government contracting are properly left to administrative
discretion; the courts will not invade the domain of this
discretion, but neither can the agency or official be allowed to
exceed the legal perimeters thereof. Contracting officials can
exercise discretion upon a broad range of issues confronting them;
they may not, however, opt to act illegally. When the bounds of
discretion give way to the stricter boundaries of law,
administrative discretion gives way to judicial
review.”[footnoteRef:39] [39: Id. at 374.]
In 1982, Congress revised the Tucker Act to provide the CFC (at
that time called the United States Claims Court) with the power to
grant declaratory and injunctive relief in addition to bid and
proposal costs in protest cases and to modify its jurisdiction so
that it was the exclusive judicial forum for bid protests brought
prior to contract award.[footnoteRef:40] Thus, between 1982 and
1996, disappointed bidders faced a choice of judicial forums
applying different standards of review, which courts and
commentators recognized led to "a general lack of uniformity in bid
protest law."[footnoteRef:41] The CFC's standard of review under
its "implied contract theory of recovery" has been recognized as
different from the APA's standard of review of agency
actions.[footnoteRef:42] [40: See Federal Courts Improvement Act of
1982, Pub. L. No. 97-164 § 133(a), 96 Stat 25, 40 (amending 28
U.S.C. § 1491(a)). ] [41: Impresa Construzioni Geom. Domenico
Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001).]
[42: Id. at 1333 (noting that ADRA requires application of the APA
standard of review, which is different from the standard of review
articulated in Keco Industries, Inc. v. United States, 492 F.2d
1200, 1203-04 (Ct. Cl. 1974)).]
In 1996, Congress enacted the ADRA, which provided for
concurrent jurisdiction over all protests of procurement-related
decisions (pre-award and post-award) in both the CFC and the
federal district courts, with all forums applying the APA standard
of review.[footnoteRef:43] Pursuant to the ADRA's "sunset"
provision, the district courts' jurisdiction over protest cases
terminated on January 1, 2000, leaving the CFC as the exclusive
judicial form for these cases after that date.[footnoteRef:44]
Comment by RStalnaker: [ADD CITATION] [43: Domenico Garufi, 238
F.3d 1324 at 1333] [44: [ADD CITATION]]
The ADRA "explicitly import[ed] the APA standards of review into
the [CFC's] review of agency decisions"[footnoteRef:45] to ensure
that the CFC reviews all protest cases "under the standards applied
in the Scanwell line of cases."[footnoteRef:46] The Federal Circuit
has articulated this standard of review as follows: [45: Ramcor
Servs. Group, Inc. v. United States, 185 F.3d 1286, 1290 (Fed. Cir.
1999).] [46: Domenico Garufi, 238 F.3d at 1332.]
“Under the APA standards that are applied in the Scanwell line
of cases, a bid award may be set aside if either: (1) the
procurement official's decision lacked a rational basis; or (2) the
procurement procedure involved a violation of regulation or
procedure. When a challenge is brought on the first ground, the
courts have recognized that contracting officers are "entitled to
exercise discretion upon a broad range of issues confronting them"
in the procurement process. Accordingly, the test for reviewing
courts is to determine whether "the contracting agency provided a
coherent and reasonable explanation of its exercise of discretion,"
and the "disappointed bidder bears a 'heavy burden' of showing that
the award decision 'had no rational basis.'" When a challenge is
brought on the second ground, the disappointed bidder must show "a
clear and prejudicial violation of applicable statutes or
regulations."[footnoteRef:47] [47: Id. at 1332-33. But cf. PGBA,
LLC v. United States, 389 F.3d 1219, 1225-27 (Fed. Cir. 2004)(The
Federal Circuit has held that, though the ADRA incorporated the APA
standard of judicial review in bid protest cases, it did not
incorporate the APA's requirement that a reviewing court "shall …
set aside" agency action that it finds arbitrary and
capricious. The CFC has discretion whether to grant relief
based on its weighing of the injunction factors).]
Thus, through this contorted, decades-long path of shifts in
constitutional standing jurisprudence, statutes providing for
review of executive agency actions, and yet more statutes tweaking
the jurisdiction of the district courts and the CFC, the CFC has
arrived as the exclusive judicial forum for lawsuits challenging
agency procurement decisions under the APA.[footnoteRef:48]
Therefore, to understand how the CFC should approach the procedure
of supplementing the administrative record in protest cases, an
appropriate place to start is the APA. Comment by RStalnaker: [ADD
CITATION] Look to same cite used in FN 43 above. [48: [ADD
CITATION]]
The APA: Key Concepts Regarding the Administrative Record in
Cases Reviewing Informal Agency Action
The Administrative Procedure Act (APA) creates a framework for
regulating executive agencies.[footnoteRef:49] Enacted in
1946,[footnoteRef:50] as a response to the New Deal's expansion of
agency power, the APA reflects "the nation's decision to permit
extensive government, but to ward against undue authoritarianism
and oppressive central planning."[footnoteRef:51] As a general
matter, the APA sets out how it will achieve this balance in four
ways. First, the APA requires agencies to keep the public informed
of their "organization, procedures and rules."[footnoteRef:52]
Second, the APA provides for public participation in the agency's
rule making practices.[footnoteRef:53] Third, it sets a uniform
standard for an agency's formal rule making
process.[footnoteRef:54] Lastly, it defines the scope of judicial
review.[footnoteRef:55] Comment by RStalnaker: No FN needed since
this is a transitional statement immediately followed by the four
ways with citations for each. [49: According to Congress, the APA
was created to “insure uniformity, impartiality, and fairness in
the procedures employed by federal administrative agencies.” 2 Am.
Jur. 2d Administrative Law § 14 (2007).] [50: Pub. L. No. 404, 60
Stat. 237 (1946) (codified at 5 U.S.C. §§ 551-559, 701-706, 1305,
3105, 3344, 5372, 7521 (1982)). ] [51: George Shepard. Fierce
Compromise: The Administrative Procedure Act Emerges from New Deal
Politics. 90 Nw. U. L. Rev. 1557, 1559 (1996). ] [52: Attorney
General's Manual on the Administrative Procedure Act at 9 (1947).]
[53: Attorney General's Manual on the Administrative Procedure Act
at 9 (1947).] [54: Attorney General's Manual on the Administrative
Procedure Act at 9 (1947).] [55: 5 U.S.C. § 706 (2006). ]
Regarding the judicial review of agency decisions, Section 706
of the APA specifies that a court shall set aside an administrative
action that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.”[footnoteRef:56] A court will
find that an agency acted arbitrarily if: [56: 5 U.S.C. § 706(2)(A)
(2006). ]
“it has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter
to the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product of
agency expertise.[footnoteRef:57]” [57: Motor Vehicle Mfrs. Ass'n
of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983). This
standard was expressly adopted by the Federal Circuit for bid
protests in Ala. Aircraft Indus., Inc.-Birmingham v. United States,
586 F.3d 1372, 1375 (Fed. Cir. 2009).]
Judicial review setting aside an agency action must be based on
"the whole record or those parts of it cited by a
party."[footnoteRef:58] This record is the collection of documents
that establish the rationale behind the agency's
action.[footnoteRef:59] [58: 5 U.S.C. § 706 (2006). ] [59: See U.S.
DOJ Envtl. & Natural Res. Div. Guidance to Federal Agencies on
Compiling the Administrative Record, available at
http://environment.transportation.org/pdf/programs/usdoj_guidance_re_admin_record_prep.pdf
(Jan. 1999).]
When examining the administrative record under the APA standard
of judicial review, a court must determine that the agency
articulated a “rational connection between the facts found and the
choice made”, or otherwise hold that the agency action was
arbitrary.[footnoteRef:60] Ultimately, judicial review under the
APA respects the discretion afforded to executive agencies in many
matters and eschews judicial second-guessing in areas were rational
bases support more than one conclusion. Under the APA standard of
review, a court will “uphold a decision of less than ideal clarity
if the agency's path may reasonably be discerned” from the
record.[footnoteRef:61] [60: Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983). ]
[61: Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 42 (1983).]
Development of APA Jurisprudence Regarding the Standard of
Review in Cases Reviewing Informal Agency Action
What constitutes the administrative record for purposes of APA
review depends upon whether an agency is acting formally or
informally.[footnoteRef:62] Because procurements are a type of
informal agency action,[footnoteRef:63] this article will focus on
the development of legal concepts regarding the administrative
record in APA cases involving informal agency actions. [62: 5
U.S.C. §§ 556, 557, 706 (2006). The difference between formal and
informal actions are subtle, to the point that commentators
differentiate the two actions by the fact that “‘the latter are
decided on the record’ while the former are not.” Gordon G. Young,
Judicial Review of Informal Agency Action on the Fiftieth
Anniversary of the APA: The Alleged Demise and Actual Status of
Overton Park’s Requirement of Judicial Review “on the record”, 10
Admin. L. J. AM. U. 179, 208 (1996).] [63: In formal agency
decisions, the APA requires agency’s to perform formal hearings. 5
U.S.C. §§ 556, 557 (2006). These hearings compose the
administrative record, which allow trial courts to review whether
the facts, evidence and arguments presented to the agency permitted
the agency action. 5 U.S.C. 557(c); Gordon G. Young, Judicial
Review of Informal Agency Action on the Fiftieth Anniversary of the
APA: The Alleged Demise and Actual Status of Overton Park’s
Requirement of Judicial Review “on the record”, 10 Admin. L. J. AM.
U. 179, 195 fn. 60 (1996). Such a review of formal agency actions
is comparable to an appellate court’s review of trial court
decisions. Executive agency procurements do not involve formal
hearings. Id. at 195. The documentation requirements for agency
procurement actions are set forth in applicable procurement
regulations implementing procurement-related statutes. Therefore,
the decisions resulting from this decision-making process without a
hearing are treated as informal agency actions for purposes of APA
review.]
The Supreme Court first tackled the scope of judicial review of
informal agency actions in Citizens to Preserve Overton Park, Inc.
v. Volpe (Overton Park).[footnoteRef:64] In Overton Park, private
citizens and conservation organizations challenged the approval of
a Tennessee highway project by the Secretary of
Transportation.[footnoteRef:65] The Secretary of Transportation, in
preparation for litigation, submitted affidavits to explain the
agency's basis for approving the project.[footnoteRef:66] [64:
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)
abrogated by Califano v. Sanders, 430 U.S. 99, 97 S. Ct. 980, 51 L.
Ed. 2d 192 (1977).] [65: Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402, 406, 409 (1971). ] [66: Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402, 409 (1971). ]
The Supreme Court held that an agency is required to adequately
explain its decisions, even when acting informally, and rejected
the agency's use of the affidavits to explain its
decisions.[footnoteRef:67] These affidavits were not adequate for
review because they amounted to “merely ‘post hoc’
rationalizations.”[footnoteRef:68] Though the Court did not define
what documents qualified as “adequate for review”, it explained
that a review of informal agency decisions must be “based on the
full administrative record that was before the Secretary at the
time he made his decision.”[footnoteRef:69] For purposes of the
APA, Overton Park further explained that courts must engage in a
“thorough, probing, in-depth review” of this contemporaneous
administrative record when examining agency
actions.[footnoteRef:70] While such an examination of the facts
must be “searching and careful”, the Court warned that the scope of
review – limited to the administrative record – is ultimately very
narrow.[footnoteRef:71] This "record rule," the Court explained,
necessarily prevents courts from substituting their own judgment
for that of the agency.[footnoteRef:72] [67: .” Gordon G. Young,
Judicial Review of Informal Agency Action on the Fiftieth
Anniversary of the APA: The Alleged Demise and Actual Status of
Overton Park’s Requirement of Judicial Review “on the record”10
Admin L. J. Am. U. 179, 210. ] [68: Citizens to Preserve Overton
Park v. Volpe 401 U.S. 402, 419 (1971). ] [69: Citizens to Preserve
Overton Park v. Volpe 401 U.S. 402, 419-420 (1971). Commentators
have criticized this vague definition because it makes it difficult
to determine what should compose an agency record. See William F.
Pederson Jr., Formal Records and Informal Rulemaking ,85 YALE L.J.
38, 59 (1975); See also Gordon G. Young, Judicial Review of
Informal Agency Action on the Fiftieth Anniversary of the APA: The
Alleged Demise and Actual Status of Overton Park’s Requirement of
Judicial Review “on the record”, 10 Admin. L. J. AM. U. 179, 195
(1996).] [70: Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 415 (1971). ] [71: Citizens to Preserve Overton Park v. Volpe,
401 U.S. 402, 416. (1971) ] [72: Citizens to Preserve Overton Park
v. Volpe, 401 U.S. 402, 416 (1971). ]
In Overton Park, the administrative record was not before the
court – instead, the Secretary’s post-decision affidavits were the
only documents available that purported to explain the agency's
action.[footnoteRef:73] The Court therefore remanded to the trial
court for it to examine the whole administrative
record.[footnoteRef:74] The Court noted that if the trial court
found on remand that the bare record did not set forth the basis
for the Secretary’s decision, the Secretary must provide an
explanation for the agency action.[footnoteRef:75] The Court
further advised that the lower court could gather such information
by compelling testimony from administrative officials, but to
“avoid an inquiry into the mental processes” of the
decision-makers.[footnoteRef:76] The Court further cautioned that
if the trial court compelled such testimony, the formal findings of
the Secretary “to some extent, [would] be a ‘post hoc
rationalization’ and thus must be viewed
critically.”[footnoteRef:77] [73: Citizens to Preserve Overton Park
v. Volpe, 401 U.S. 402, 420 (1971).] [74: Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402, 420 (1971). ] [75: Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971).] [76:
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420
(1971). ] [77: Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 420 (1971).]
In sum, Overton Park established that when assessing informal
agency decisions, a court must base its review on the
contemporaneous administrative record.[footnoteRef:78] Such a
limited scope of review precludes courts from usurping
administrative authority.[footnoteRef:79] However, Overton Park
also established that when a bare record frustrates effective
judicial review, a trial court may compel the agency to explain its
actions.[footnoteRef:80] This record rule, and its exceptions, is
in harmony with the original purpose of the APA — it provides a
review of agency actions while ensuring the autonomy of the
administrative body.[footnoteRef:81] The Supreme Court has
continuously reaffirmed this record rule, emphasizing the
importance of the administrative record in subsequent cases.
Comment by RStalnaker: [ADD CITATION]Comment by RStalnaker: [ADD
CITATION]Comment by RStalnaker: [ADD CITATION]Comment by
RStalnaker: [ADD CITATION] [78: [ADD CITATION]] [79: [ADD
CITATION]] [80: [ADD CITATION]] [81: [ADD CITATION]]
Two years later, in Camp v. Pitts, the Supreme Court affirmed
Overton Park’s emphasis on the administrative record for reviewing
informal agency decisions.[footnoteRef:82] In Camp v. Pitts,
unsuccessful applicants for a bank charter sought review of the
Comptroller of the Currency’s denial of their
application.[footnoteRef:83] The Comptroller’s denial was set forth
in two letters, only one of which explained to some extent the
basis of its conclusions.[footnoteRef:84] The district court
granted summary judgment in favor of the Comptroller by relying on
the letters, but the appellate court reversed.[footnoteRef:85] The
appellate court reasoned that the two letters did not set forth a
basis for the agency’s decision with sufficient clarity, and
remanded to the district court to conduct a trial de
novo.[footnoteRef:86]Comment by RStalnaker: Ensure pincites are
used and accurate. Also clean up incorrect citation style below.
[82: 411 U.S. 138 (1973).] [83: Camp v. Pitts, 411 U.S. 138, 139
(1973). ] [84: Camp v. Pitts, 411 U.S. 138, 139 (1973). ] [85: Camp
v. Pitts, 411 U.S. 138, 139 (1973).] [86: Camp v. Pitts, 411 U.S.
138, 139 (1973).]
The Supreme Court vacated the appellate court’s
holding.[footnoteRef:87] It explained that “the focal point for
judicial review should be the administrative record already in
existence, not some new record made initially in the reviewing
court.”[footnoteRef:88] While "curt," the letters in this case
contained the rationale for the Comptroller’s
decision.[footnoteRef:89] The court’s only role, therefore,
consisted of determining whether the agency’s decision could “stand
or fall on the propriety of that finding.”[footnoteRef:90] However,
if the reviewing court found that the administrative record failed
to specify a basis for the agency action, a court could not hold a
de novo hearing.[footnoteRef:91] Instead, a court would need to
remand the matter to the agency for further
consideration.[footnoteRef:92] [87: Camp v. Pitts, 411 U.S. 138,
142 (1973).] [88: Camp v. Pitts, 411 U.S. 138, 142 (1973).] [89:
Camp v. Pitts, 411 U.S. 138, 142 (1973).] [90: Camp v. Pitts, 411
U.S. 138, 143 (1973).] [91: Camp v. Pitts, 411 U.S. 138, 143
(1973).] [92: Camp v. Pitts, 411 U.S. 138, 143 (1973). ]
The Court continued to develop its jurisprudence regarding the
nature of the administrative record in APA cases involving informal
agency action in Florida Power & Light Co. v. Lorion
(Lorion).[footnoteRef:93] In Lorion, an agency refused to institute
a proceeding regarding the status of a license, and a petitioner
brought suit.[footnoteRef:94] The D.C. Circuit held that it lacked
jurisdiction because the agency never held a
hearing.[footnoteRef:95] The Supreme Court reversed, rejecting the
lower court’s justification that “absent a hearing, the reviewing
court would lack an adequate agency-compiled factual basis to
evaluate the agency action.”[footnoteRef:96] Instead, the Court
reiterated that “the focal point for judicial review should be the
administrative record already in existence,” regardless of whether
the agency held a hearing.[footnoteRef:97] Reaffirming Camp v.
Pitts, the Lorion court specified that if the agency record failed
to provide a basis of sufficient clarity for its actions, a court’s
remedy was to remand the matter to the administrative
body.[footnoteRef:98]Comment by RStalnaker: [ADD CITATION]Comment
by RStalnaker: [ADD CITATION]Comment by RStalnaker: [ADD
CITATION]Comment by RStalnaker: [ADD CITATION]Comment by
RStalnaker: [ADD CITATION] [93: 470 U.S. 729 (1985). ] [94: [ADD
CITATION]] [95: [ADD CITATION]] [96: [ADD CITATION]] [97: [ADD
CITATION]] [98: [ADD CITATION]]
In the aggregate, Overton Park, Camp v. Pitts, and Lorion
establish that in examining informal agency actions, courts must
base their review on the administrative record. This administrative
record is composed of all the information the agency had at the
time the agency made its decision.[footnoteRef:99] If the
administrative record is completely bare, Overton Park permits a
court to compel testimony from decision-makers, but warns courts to
review such ‘post hoc’ rationalizations
critically.[footnoteRef:100] Camp v. Pitts built on this record
rule by explaining that if the administrative record provides an
explanation, however "curt", the agency action must stand or fall
on those findings.[footnoteRef:101]Comment by RStalnaker: No FN
added. This is an intro sentence to the conclusion paragraph for
the section. It restates what has just been discussed.Comment by
RStalnaker: [ADD CITATION] See if citation from FN 88 above will
work. [99: Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 419-20 (1971).] [100: See Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402, 420 (1971). ] [101: [ADD CITATION]]
Finally, Lorion further developed this trend, reaffirming that
if the administrative record fails to provide a sufficient basis
for review, a court should remand the matter to the agency for
further proceedings.[footnoteRef:102] This record rule, as
discussed previously, reflects the purpose of the APA — to
generally permit agency autonomy while providing a check against
arbitrary or illegal agency conduct.[footnoteRef:103] As alluded to
by Overton Park, however, for a court to effectively review such
agency actions the administration must provide a complete
record.[footnoteRef:104] Comment by RStalnaker: [ADD CITATION].
[102: [ADD CITATION]] [103: George Shepard. Fierce Compromise: The
Administrative Procedure Act Emerges from New Deal Politics. 90 Nw.
U. L. Rev. 1557,1559 (1996). ] [104: Citizens to Preserve Overton
Park v. Volpe, 401 U.S. 402, 420 (1971).]
Compiling and Supplementing the Administrative Record in Cases
Reviewing Informal Agency Action Under the APA
Developing a complete administrative record is essential to the
purposes of the APA.[footnoteRef:105] Only by reviewing a complete
administrative record can a court properly determine whether an
agency's action was reasonable and in compliance with applicable
legal requirements; on the opposite side of the coin, limiting
review to the complete record prevents the court from usurping
agency actions that require specialized expertise and
knowledge.[footnoteRef:106] The APA's focus on the administrative
record is important to achieve the balance of governing authority
required for the different branches to operate
effectively.[footnoteRef:107] As stated by the D.C. Circuit:Comment
by RStalnaker: [ADD CITATION] Check to see if the subsequent
citation in FN 105 will work here as well.Comment by RStalnaker:
[ADD CITATION] Check to see if subsequent citation in FN 107 will
work here. [105: [ADD CITATION]] [106: George Shepard. Fierce
Compromise: The Administrative Procedure Act Emerges from New Deal
Politics. 90 Nw. U. L. Rev. 1557, 1680 (1996); see also Amfac
Resorts, L.L.C. v. U.S. Dep't of the Interior, 143 F. Supp. 2d 7,
11 (D.D.C. 2001) (internal citations omitted).] [107: See Amfac
Resorts, L.L.C., 143 F. Supp. 2d at 11 (internal citations
omitted).]
“judicial reliance on an agency's stated rationale and findings
is central to a harmonious relationship between agency and court,
one which recognizes that the agency and not the court is the
principal decision maker. Were courts cavalierly to supplement the
record, they would be tempted to second-guess agency decisions in
the belief that they were better informed than the administrators
empowered by Congress and appointed by the
President.”[footnoteRef:108] [108: Id.]
Requiring judicial access to the complete record is also
important if courts are to accurately determine whether agencies
are acting arbitrarily or illegally.[footnoteRef:109] The Supreme
Court has explained that, when an administrative record provides no
evidence regarding the findings or analysis behind the agency's
action, the APA does not require judicial deference to the agency's
decision.[footnoteRef:110] Otherwise, “the strength of modern
government can become a monster which rules with no practical
limits on its discretion.”[footnoteRef:111] Thus, only access to a
complete administrative record can facilitate effective judicial
review under the APA.Comment by RStalnaker: No FN added since this
is merely a conclusion statement from the previous page of cites.
[109: State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983). ]
[110: State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983).]
[111: State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983).]
A complete administrative record is not “necessarily those
documents that the agency has compiled and submitted as ‘the’
administrative record.”[footnoteRef:112] Rather, the administrative
record “consists of all documents and materials directly or
indirectly considered by agency decision-makers and includes
evidence contrary to the agency's position.”[footnoteRef:113] If a
court reviews less than the complete record, it allows a “party to
withhold evidence unfavorable to its case, and so the APA requires
review of ‘the ‘whole record.’”[footnoteRef:114] A reviewing court
may then require the agency to produce additional evidence to
complete the record.[footnoteRef:115] However, if a court reviews
more information than the agency had at its disposal, it “risks
“requiring the administrators to be prescient or allowing them to
take advantage of post hoc rationalizations.”[footnoteRef:116] Such
a permissive stance would frustrate the warnings in Overton
Park.[footnoteRef:117] In order to apply the record rule fairly,
therefore, a court must have the full record before it – no more,
no less.[footnoteRef:118]Comment by RStalnaker: [ADD CITATION] Look
to previous and/or subsequent sources for support.Comment by
RStalnaker: [ADD CITATION] [112: Thompson v. Dep’t of Labor, 885
F.2d 551, 555 (9th Cir. 1989)(internal citations omitted). ] [113:
Id.] [114: Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788,
792 (D.C. Cir. 1984) (citing to S. Rep. No. 79-752, at 28 (1945)
(“The requirement of review upon ‘the whole record’ means that
courts may not look only to the case presented by one party, since
other evidence may weaken or even indisputably destroy that
case.”)] [115: Nat’l Org. for Women, Wash., D.C. Chapter v. SSA,
736 F.2d 727, 746 (D.C. Cir. 1984).] [116: Walter O. Boswell Mem'l
Hosp., 749 F.2d at 792.] [117: See id. at 793-94 (reiterating that
the Supreme Court limited the administrative record to information
before the Secretary at the time of the decision and thereby
excluded the hospital’s ex post study on that basis).] [118: Id. at
792.]
A critical question, then, is how a court should solicit
additional evidence of the agency's rationale, where the
"administrative record" as presented to the court by the agency
does not adequately explain the basis for the agency action.
Outside the bid protest context, federal courts have identified
procedures for supplementing the administrative record when such
additional information has been found necessary to facilitate
judicial review.[footnoteRef:119] As set forth below, courts tend
to employ three procedures when an administrative record is found
to contain incomplete information regarding the basis of an
agency's decision: (1) submission of written statements summarizing
the agency's decision-making process and basis; (2) development of
evidence through discovery, such as depositions of key government
personnel involved in the decision; or (3) rejection of any
post-decisional information and remand back to the agency for
further proceedings.[footnoteRef:120]Comment by RStalnaker: [ADD
CITATION].Comment by RStalnaker: [ADD CITATION] Look to the
subsequently cited cases for support here. [119: See Nat’l Org. for
Women, Wash., D.C. Chapter, 736 F.2d at 746.] [120: See, e.g.,
Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 793 (D.C.
Cir. 1984)(rejecting the hospital’s post-decisional study and
remanding to the District Court); Massoud v. Att’y Gen. of U.S.,
459 F. Supp. 672, 675 (W.D. Mo. 1978)(finding an affidavit
including the factors considered in making the decision
sufficient); Citizens to Pres. Overton Park, Inc. v. Volpe, 335 F.
Supp. 873, 877 (W.D. Tenn. 1972)(declaring that “plaintiffs were at
the very least entitled to discovery to determine whether the
record as filed was complete.”).]
Using Written Statements to Supplement the Administrative
Record
One of the procedures employed by federal courts faced with a
gap in the administrative record regarding the agency's
decision-making process is the use of post-decisional written
statements purporting to summarize the agency's consideration of
the matter. For example, the case of Massoud v. Attorney General
involved an alien who sought advanced parole from the Immigration
and Naturalization Service ("INS").[footnoteRef:121] A Director for
the INS, Ronald Brooks, denied the application in a letter which
did not set forth an explanation for his decision.[footnoteRef:122]
Massoud subsequently brought suit seeking review of the INS's
denial and both parties filed motions for summary
judgment.[footnoteRef:123]Comment by RStalnaker: No FN added
because the sentence is introductory and immediately answered in
the following sentence. [121: Massoud, 459 F. Supp. at 674.
Advanced parole would allow an alien to leave and reenter the
United States with the same alien status he possessed prior to
departure. Id.] [122: Id. at 675.] [123: Federal Rule of Civil
Procedure 56 states that a grant of summary judgment is only
appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is “no genuine dispute as to
any material fact.” Fed. R. Civ. P. 56. In reviewing agency
actions, courts have sometimes argued that Motions for Summary
Judgment are inappropriate under the APA because it forces "the
reviewing court to rely on evidence outside the administrative
record." Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579-80
(10th Cir. 1994). Massoud did not make note of these concerns.
]
When ruling on the motions, the District Court first noted that
nothing in the administrative record provided a rationale for
denying the advanced parole application.[footnoteRef:124] The Court
then accepted an affidavit from Brooks in which he stated that he
denied the application based on his review of Massoud's immigration
records.[footnoteRef:125] The Court stated in conclusory fashion
that the affidavit could supplement the administrative record
because it was explanatory rather than a post-hoc
rationalization.[footnoteRef:126] Noting that Overton Park
contemplated the use of a hearing in similar
circumstances,[footnoteRef:127] the court nonetheless decided that
Brooks' "affidavit may be considered without resorting to the
necessity of oral testimony" because "only one individual was
responsible for the challenged ruling."[footnoteRef:128] Based on
this affidavit and the rest of the court documents, the Court
granted summary judgment in favor of the INS.[footnoteRef:129]
[124: See Massoud, 459 F. Supp. at 675 (noting the absence of
explanation for the decision in the letter to Massoud).] [125: Id.
at 675, 676.] [126: Massoud v. Att’y Gen. of U.S., 459 F. Supp.
672, 675 (W.D. Mo. 1978).] [127: Id.] [128: Id.] [129: Id. at 675,
677.]
The court's finding in Massoud – that an affidavit was not a
post-hoc rationalization but rather an innocuous "explanation," and
thus could be relied upon to supply a rational basis for the
agency's action – has recurred in other cases.[footnoteRef:130] The
Tenth Circuit Court of Appeals in Lewis v. Babbitt, for example,
upheld the district court's use of the affidavits of agency
officials, because the affidavits provided additional
"explanations" of the administrative record instead of acting as
its substitute.[footnoteRef:131] Nowhere in the district court's
opinion, however, did it explain why the use of affidavits was
explanatory rather than a post-hoc
rationalization.[footnoteRef:132] [130: Lewis v. Babbitt, 998 F.2d
880, 882 (10th Cir. 1993)] [131: Id.] [132: See generally Lewis v.
Lujan, 826 F. Supp. 1302, 1305-06 (D. Wyo. 1992) (failing to
explain why the affidavit was explanatory in its discussion of
review under the APA), aff'd sub nom. Lewis v. Babbitt, 998 F.2d
880 (10th Cir. 1993).]
Supplementing the Administrative Record with Information
Developed through Discovery Procedures
Other courts have found it appropriate to use procedures that
allow the other parties to confront the government witness, such as
depositions or hearings.[footnoteRef:133] When the administrative
record is bare, the Supreme Court in Overton Park stated that
testimony from agency officials might be
necessary.[footnoteRef:134] Following remand of the Supreme Court,
the district court in Overton Park (Overton Park II) allowed the
plaintiffs to conduct discovery and then held a plenary
trial.[footnoteRef:135] In preparation for trial, the court not
only allowed the plaintiffs to depose agency officials and the
Secretary, but also permitted the plaintiffs to explore the mental
processes of the officials in case the Secretary filed formal
findings.[footnoteRef:136] Following these pre-trial preparations,
the Overton Park II court held a 27-day trial and admitted 240
exhibits into evidence.[footnoteRef:137]Comment by RStalnaker: [ADD
CITATION] look to subsequent cite to overon Park. [133: See, e.g.,
Citizens to Pres. Overton Park, Inc. v. Volpe, 335 F. Supp. 873,
877 (W.D. Tenn. 1972).] [134: Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402, 420 (1971).] [135: Citizens to Pres. Overton
Park, Inc., 335 F. Supp. at 874, 877.] [136: Id. at 877.] [137: Id.
at 878.]
Prior to trial, the court received an affidavit and a deposition
statement from the Secretary which declared that he considered
route and design alternatives, in accordance with the relevant
statutes, before approving the highway project.[footnoteRef:138]
The court concluded, however, that even after all these
fact-finding procedures, there was “not a document in the
administrative record that indicates that [the] Secretary
considered and ruled out route alternatives.”[footnoteRef:139]
Accordingly, it remanded the matter to the Secretary so he could
make such a determination.[footnoteRef:140] [138: Id.] [139:
Citizens to Pres. Overton Park, Inc. v. Volpe, 335 F. Supp. 873,
878 (W.D. Tenn. 1972). ] [140: Id. at 879. The court also found
that Secretary Volpe had not considered alternatives because Volpe
was under the erroneous impression that since his predecessor had
already approved the project and that since the park had already
been acquired and cleared, that he had no legal power to choose a
different route. Id.]
Overton Park II is not the only instance in which a court held a
trial to remedy a bare administrative record. In Sierra Club v.
PetersonGlickman,[footnoteRef:141] environmental groups filed suit
against the U.S. Forest Service (“Forest Service”) alleging a
failure to monitor and protect resources during certain timber
harvesting activities, in violation of congressional
mandates.[footnoteRef:142] Finding that no administrative record
existed, the district court held a seven-day trial limited to
addressing three issues: (1) whether the Forest Service monitored
key resources; (2) whether it protected key resources; and (3)
whether it provided for diversity of wildlife.[footnoteRef:143] On
appeal, the Fifth Circuit upheld the lower court's decision to hold
a plenary trial, reasoning that “the purpose of the trial was to
determine what the agency had done and why it had done it, both of
which are acceptable under Overton Park.”[footnoteRef:144] [141:
Sierra Club v. Peterson, 185 F.3d 349 (5th Cir. 1999). ] [142: Id.
at 353.] [143: Sierra Club v. Glickman, 974 F. Supp. 905, 912 (E.D.
Tex. 1997). ] [144: Sierra Club, 185 F.3d at 368. ]
As indicated by both Overton Park II and Sierra Club, courts
will allow depositions of agency officials and hold evidentiary
hearings when the administrative record does not provide a basis
for agency action.[footnoteRef:145] Such a procedure facilitates
judicial review when an agency refuses or is unable to create an
adequate administrative record.[footnoteRef:146] Comment by
RStalnaker: [ADD CITATION] [145: Id.] [146: Id. at 371. ]
The Supreme Court subsequently disfavored the routine compulsion
of agency decision-makers’ testimony and directed that remand to
the agency is the preferred course, with testimony to be ordered
only in "rare circumstances."[footnoteRef:147] While such remands
to the agency have been the preferred courses of action by
reviewing courts in non-procurement cases, this procedure has its
critics.[footnoteRef:148] Commentators, for example, have
criticized remanding a case to an agency in the face of an
inadequate administrative record because this allows agencies to
“develop a record that will support its decisions, without the
interference of...hearings and opportunities for
cross-examination.”[footnoteRef:149] As we will see later, this is
not typically the calculation in protest cases, where the Federal
Circuit has made clear that remand "seems out of place in this area
of government procurement" and "cumbersome."[footnoteRef:150]
Comment by kawhitehead: Massoud v. Att’y Gen. of U.S. does not
support this proposition, but the following citation does, so I
changed it. KAW [147: Florida Power & Light v. Lorion, 470 U.S.
729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); see also Yale-New
Haven Hosp. v. Leavitt, 470 F.3d 71, 87 (2d Cir. 2006); Sierra Club
v. Peterson, 185 F.3d 349, 369 (5th Cir. 1999); Massoud v. Att’y
Gen. of U.S., 459 F. Supp. 672, 677 (W.D. Mo. 1978)(while noting
the possibility of obtaining oral testimony, ultimately finding an
affidavit and supporting documentation sufficient to review the
agency’s decision).] [148: See, e.g., Susannah T. French, Judicial
Review of the Administrative Record in NEPA Litigation, 81 Cal. L.
Rev. 929, 943-44 (1993).] [149: Id.] [150: Impresa Construzioni
Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1338-39
(Fed. Cir. 2001).]
As these cases have clarified, courts will take three different
paths when faced with a bare administrative
record.[footnoteRef:151] A court may decide to accept the
post-decision affidavits simply by categorizing the declarations as
explanatory as opposed to post-hoc
rationalizations.[footnoteRef:152] Alternatively, a court may heed
Overton Park's advice by permitting discovery and examining agency
officials.[footnoteRef:153] Lastly, courts may choose to remand the
matter to the agency either with instructions to create a more
complete administrative record or with directions on how to
correctly apply relevant statutes, although this approach is
disfavored in procurement protest cases.[footnoteRef:154] Comment
by RStalnaker: [ADD CITATION]Comment by RStalnaker: [ADD
CITATION]Comment by RStalnaker: [ADD CITATION]Comment by
RStalnaker: [ADD CITATION] [151: See, e.g., Walter O. Boswell Mem'l
Hosp. v. Heckler, 749 F.2d 788, 793 (D.C. Cir. 1984)(rejecting the
hospital’s post-decisional study and remanding to the District
Court); Massoud v. Att’y Gen. of U.S., 459 F. Supp. 672, 675 (W.D.
Mo. 1978)(finding an affidavit including the factors considered in
making the decision sufficient); Citizens to Pres. Overton Park,
Inc. v. Volpe, 335 F. Supp. 873, 877 (W.D. Tenn. 1972)(declaring
that “plaintiffs were at the very least entitled to discovery to
determine whether the record as filed was complete.”).] [152: See,
e.g., Lewis v. Babbitt, 998 F.2d 880, 882 (10th Cir. 1993).] [153:
See, e.g., Sierra Club v. Peterson, 185 F.3d 349, 368 (5th Cir.
1999).] [154: [ADD CITATION]]
Procedures Employed by the CFC to Supplement the Administrative
Record in Post-ADRA Bid Protest Cases under the APA Standard of
Review
This section discusses the framework of the Court of Federal
Claims' APA review of government procurement decisions and
describes a cross-section of cases applying the various procedures
available to the CFC for supplementing the administrative record
when gaps in the contemporaneous record exist.
Federal Circuit Cases Have Established the Basic Framework for
the Court of Federal Claims' APA Review in Bid Protest Cases
In a few milestone decisions, the Court of Appeals for the
Federal Circuit has provided the Court of Federal Claims with broad
principles to follow in conducting APA review of agency procurement
decisions.[footnoteRef:155] The Federal Circuit has not mandated
any particular procedure the CFC should use to supplementing the
record with information regarding the basis for the agency's
decision when the agency did not articulate its reasoning at the
time of the decision.Comment by RStalnaker: Possibly cite to
Domenico case cited below in FN 156.Comment by RStalnaker: No FN
b/c this would require proving a negative. [155: [ADD
CITATION]]
As noted above, the Administrative Dispute Resolution Act of
1996 amended the Tucker Act to give the CFC a statutory basis for
jurisdiction over bid protest cases and to mandate that the CFC
review bid protest cases under the standard of judicial review set
out in the section 706 of the Administrative Procedure
Act.[footnoteRef:156] Additionally, when reviewing bid protest
decisions, the Tucker Act, the main source of the CFC's
jurisdiction over claims against the United States, requires the
CFC to "give due regard to the interests of national defense and
national security and the need for expeditious resolution of the
action."[footnoteRef:157] As described above, in one of the early
cases after the enactment of the ADRA, Domenico
Garufi,[footnoteRef:158] the Federal Circuit established the basic
standard of review for the Court of Federal Claims in protest
cases.[footnoteRef:159] [156: 28 U.S.C. § 1491(b)(1), (4).] [157:
Id. at 1491(b)(3).] [158: Impresa Construzioni Geom. Domenico
Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001).] [159: Id.
at 1332-33. (adopting Domenico Garufi adopted the case law that had
been developed under the Scanwell line of cases, so that in a bid
protest brought at the CFC, “
a bid award may be set aside if either: (1) the procurement
officials decision lacked a rational basis; or (2) the procurement
procedure involved a violation of regulation or procedure. … [T]he
test for reviewing courts is to determine whether the contracting
agency provided a coherent and reasonable explanation of its
exercise of discretion, and the disappointed bidder bears a heavy
burden of showing that the award decision had no rational
basis”).
]
A few years later, the Federal Circuit clarified the CFC's
standard for fact-finding in bid protest cases. Rule 52.1 of the
Rules of the Court of Federal Claims (RCFC) provides for a
procedure, not found in the Federal Rules of Civil Procedure, for
the Court of Federal Claims to grant "judgment on the
administrative record."[footnoteRef:160] This procedure applies to
the Court's review of matters under the APA standard, which is "to
be based on the full administrative record that was before the
[agency decision-maker] at the time he made his
decision."[footnoteRef:161] Prior to the Federal Circuit's 2006
decision in Bannum, Inc. v. United States,[footnoteRef:162] the
CFC's rule concerning judgment on the administrative record was
numbered Rule 56.1 and incorporated some of the Rule 56 summary
judgment procedures, but it did not adopt the "no genuine issues of
material fact" standard used for summary judgment.[footnoteRef:163]
The Federal Circuit had nevertheless previously stated in dicta
that the CFC's role in deciding motions for judgment on the
administrative record was to "determine whether there are any
genuine issues of material fact as to whether the agency decision
lacked a rational basis or involved a prejudicial violation of
applicable statutes or regulations."[footnoteRef:164] In Bannum,
the Federal Circuit retracted this suggestion, ruling that the CFC
need not abstain from granting judgment on the administrative
record on the grounds that a genuine issue of material fact
exists.[footnoteRef:165] Moreover, the CFC need not draw inferences
in favor of the non-moving party, as a court does when considering
a summary judgment motion.[footnoteRef:166] Rather, the motion for
judgment on the administrative record procedure was "designed to
provide for trial on a paper record, allowing fact-finding by the
trial court."[footnoteRef:167] Thus, in conducting APA-style review
in bid protest cases, the CFC is "required...to make factual
findings from the record evidence as if it were conducting a trial
on the record."[footnoteRef:168] Comment by RStalnaker: No FN b/c
the point is immediately answered in following sentence.Comment by
RStalnaker: [ADD CITATION] [160: [ADD CITATION]] [161: Overton
Park, 401 U.S. at 420.] [162: 404 F.3d 1346 (Fed. Cir. 2006).]
[163: RCFC 56.1 (2002) (repealed 2006). ] [164: Id. at 1354
(quoting Banknote Corp. of Am., Inc. v. United States, 365 F.3d
1345, 1352–53 (Fed.Cir.2004)).] [165: Id. at 1356.] [166: Id. ]
[167: Id. Following Bannum, the CFC's rule governing judgment on
the administrative record was moved from Rule 56.1 to Rule 52.1 to
prevent confusion with the summary judgment rule.] [168: Id. at
1353-54.]
In 2009, the Federal Circuit addressed the general scope of the
evidence that the Court of Federal Claims should consider in
conducting reviews of bid protests.[footnoteRef:169] In Axiom
Resource Management, Inc. v. United States, the Federal Circuit
criticized a CFC judge's decision to permit the parties to add any
materials they wished to the administrative
record.[footnoteRef:170] The Federal Circuit emphasized the Supreme
Court's teaching that "the focal point for judicial review should
be the administrative record already in existence, not some new
record made initially in the reviewing court."[footnoteRef:171] For
this reason, the Federal Circuit held that "supplementation of the
record should be limited to cases in which the omission of
extra-record evidence precludes effective judicial
review."[footnoteRef:172] Stated differently,Comment by RStalnaker:
[ADD CITATION] Look to Axiom case in next sentence.Comment by
RStalnaker: Ensure pincites exist and are accurate. [169: [ADD
CITATION]] [170: 564 F.3d 1374 (Fed. Cir. 2009).] [171: Id. at 1379
(quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)) ] [172: Id. at
1380.]
“The focus of judicial review of agency action remains the
administrative record, which should be supplemented only if the
existing record is insufficient to permit meaningful review
consistent with the APA. Faced with the request to supplement the
administrative record in this case, the Court of Federal Claims
should have determined whether supplementation of the record was
necessary in order not to frustrate effective judicial
review.”[footnoteRef:173] [173: Id. at 1381.]
The Axiom standard is rather vaguely worded.[footnoteRef:174]
Axiom begs the question of what constitutes "meaningful" or
"effective" judicial review.[footnoteRef:175] Moreover, the Federal
Circuit has not addressed the types of materials that should be
considered evidence of the basis for the agency's action. This
creates some uncertainty when the CFC is confronted with a
contemporaneous record that is too sparse or ambiguous to establish
the basis for the agency's action.[footnoteRef:176]Comment by
RStalnaker: [ADD CITATION] Look for support for this assertion. But
it may just be the author’s opinion.Comment by RStalnaker: [ADD
CITATION] Same as aboveComment by RStalnaker: No FN b/c this would
require proving a negative.Comment by RStalnaker: [ADD CITATION]
Look for support for this assertion. [174: [ADD CITATION]] [175:
[ADD CITATION]] [176: [ADD CITATION]]
The Court of Federal Claims' Approaches to Dealing with Gaps in
the Contemporaneous Administrative Record
The Presumption of Regularity
As a threshold matter, even if there are gaps in the
administrative record, the Court of Federal Claims may refuse to
require the agency to justify its action if the plaintiff has not
shown that the agency action is facially unreasonable, and the
agency has no independent legal obligation to document its
reasoning.[footnoteRef:177] In Domenico Garufi, the Federal Circuit
held the APA does not directly require an agency to explain the
basis for its decision, but that the "arbitrary and capricious"
standard for judicial review permits the court to require that an
agency explain its basis in order to conduct meaningful judicial
review.[footnoteRef:178] However, "in determining whether to
require an explanation, the agency decision is entitled to a
presumption of regularity."[footnoteRef:179] Thus, where the agency
is not otherwise legally required to articulate a reason for its
decision, "the agency should not be required to provide an
explanation unless that presumption has been rebutted by record
evidence suggesting that the agency decision is arbitrary and
capricious."[footnoteRef:180] The required showing is sufficient
evidence "to make a prima facie case which raises a substantial
question about the rationality of" the agency
action.[footnoteRef:181] Comment by RStalnaker: [ADD CITATION]
Likely cite to Domenico case in next sentence. [177: [ADD
CITATION]] [178: Id. at 1337-38. Notably, the contracting officer
was not required, under the regulatory requirements for making a
responsibility determination, to explain the basis for that
determination. Id. at 1334.] [179: Id. at 1338. ] [180: Id. at
1338, n.10 (The Federal Circuit left open the question of whether
extra-record evidence could be used to overcome the presumption of
regularity). ] [181: Id. at 1340.]
In Domenico Garufi, the Federal Circuit held that the
presumption had been overcome and that the agency was thus required
to explain its reasoning. In that case, the gap in the record
concerned whether the contracting officer had considered certain
relevant information in making a determination that the awardee was
a responsible offeror.[footnoteRef:182] The Federal Circuit held
that the presumption of regularity was rebutted by the fact that
substantial information bearing negatively on the awardee's
responsibility was before the contracting officer, and thus
required the agency to have a rational
explanation.[footnoteRef:183]Comment by RStalnaker: [ADD CITATION]
[182: [ADD CITATION]] [183: Id. at 1338. ]
Conversely, in Alabama Aircraft Indus., Inc.–Birmingham v.
United States, the CFC held that the plaintiff was not entitled to
discovery on the question of the agency's basis for its decision
because it had not overcome the presumption of
regularity.[footnoteRef:184] In that case, the plaintiff challenged
the agency's evaluation of the awardee's past
performance.[footnoteRef:185] The plaintiff sought to supplement
the administrative record with discovery regarding the procedure
the agency used in making its reevaluation after a sustained
protest at GAO, asserting that the administrative record was bare
on this issue.[footnoteRef:186] Judge Lettow rejected the
plaintiff's request for discovery, stating that "the mere presence
of gaps in the administrative record is not sufficient to justify
discovery."[footnoteRef:187] The plaintiff only alleged that the
record was incomplete and discovery was needed to guarantee "an
informed review of whether the evaluation of proposals was
conducted appropriately."[footnoteRef:188] Because the plaintiff
did not show that any "record evidence" suggested that the agency's
decision was arbitrary and capricious, it failed to rebut the
presumption of regularity and was not entitled to
discovery.[footnoteRef:189] Thus, there must be evidence of
something more suspicious than the mere fact that the record is
incomplete.[footnoteRef:190] Comment by RStalnaker: Ensure correct
BB citation and pincites.Comment by RStalnaker: [ADD
CITATION]Comment by RStalnaker: [ADD CITATION] Could also be
author’s inference from case rule. [184: 82 Fed. Cl. 757 (2008).]
[185: [ADD CITATION]] [186: Id. at 773. ] [187: Id. ] [188: Id.]
[189: Id. ] [190: [ADD CITATION]]
In practice, while the CFC frequently invokes the presumption of
regularity to deny unsupported allegations of bias or bad faith on
the part of agency officials,[footnoteRef:191] the presumption
appears to be a relatively low hurdle in other contexts. Indeed,
the Supreme Court in Overton Park explained that the presumption of
regularity "is not to shield [the agency's] action from a thorough,
probing, in-depth review."[footnoteRef:192] Domenico Garufi's
guidance is that if there is evidence merely "suggesting that the
agency's decision is arbitrary and capricious," the agency should
be required to provide an explanation.[footnoteRef:193] For
example, in Linc Government Services, LLC v. United States, the
plaintiff alleged that the agency failed to consider certain
"betterments" it had offered in its proposal.[footnoteRef:194] The
contemporaneous evaluation documents did not show whether the
agency had considered a number of the protester's proposed
betterments.[footnoteRef:195] There is no indication in the court's
decision that the agency attempted to demonstrate that it actually
had considered the betterments through any post-decisional
declarations, depositions, or otherwise.[footnoteRef:196] The Court
rejected the agency's argument, based on Domenico Garufi, that the
agency need not provide a written explanation for its decision
—essentially a claim that the presumption of regularity had not
been overcome.[footnoteRef:197] The Court held simply that "even if
the agency is not obligated to provide reasons, a court may
nonetheless order the agency to provide [an] explanation if such an
explanation is required for meaningful judicial
review."[footnoteRef:198] Faced with a bare record on the issue in
question, Judge Braden did not presume that the agency's evaluation
was "regular," but granted the plaintiff's request for a
preliminary injunction of contract performance and "remanded" the
procurement to the agency "for additional investigation or
explanation."[footnoteRef:199] Comment by RStalnaker: No FN b/c
author is merely transitioning into the answer in the following
sentence.Comment by RStalnaker: Ensure proper BB citation and
pincite.Comment by RStalnaker: [ADD CITATION]Comment by RStalnaker:
[ADD CITATION] [191: See, e.g., DataMill, Inc. v. United States, 91
Fed. Cl. 722, 730-31 (2010). ] [192: 401 U.S. at 415.] [193:
Impresa Construzioni Geom. Domenico Garufi v. United States, 238
F.3d 1324, 1338 (Fed. Cir. 2001) (emphasis added).] [194: 108 Fed.
Cl. 473, 492 (2012).] [195: Id. at 494-99.] [196: [ADD CITATION]]
[197: [ADD CITATION]] [198: Id. at 493 (quoting Domenico Garufi,
238 F.3d at 1338).] [199: Id. at 511.]
If the plaintiff is able to rebut the presumption of regularity,
the burden effectively shifts to the agency to explain its basis
and show that it was rational.[footnoteRef:200] [200: See Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1338-39 (Fed. Cir. 2001). (ordering discovery of the contracting
officer's reasoning for finding that the awardee was a responsible
offeror); see also Caddell Construction Co., Inc. v. United States,
111 Fed. Cl. 49, 91 (2013) (holding that the presumption of
regularity was overcome by evidence of a rapid, unexplained
reversal in agency's decision to disqualify the eventual awardee
and deciding the protest in favor of the protester because agency's
proffered explanation was inadequate to provide a rational
basis).]
Admitting Post-Decisional Written Statements By Agency Officials
Without Confrontation of the Witness through Deposition or Live
Testimony at Hearing
Where gaps in the contemporaneous record exist, agencies often
attempt to fill them with evidence created after the fact to avoid
the risk that the Court will find that the agency's action lacked a
rational basis.[footnoteRef:201] Agencies frequently offer
declarations or other written statements prepared by agency
officials to support the challenged agency action.[footnoteRef:202]
Comment by RStalnaker: [ADD CITATION]Comment by RStalnaker: [ADD
CITATION] [201: [ADD CITATION]] [202: [ADD CITATION]]
Oftentimes, agencies use post-decisional declarations generated
during an earlier protest before GAO, whose procedures require
agencies to prepare and submit a "contracting officer's statement
of facts" and a "memorandum of law."[footnoteRef:203] Although "the
focal point for judicial review should be the administrative record
already in existence, not some new record made initially in the
reviewing court,"[footnoteRef:204] the CFC regularly considers
post-decisional written statements offered by the
agency.[footnoteRef:205] Comment by RStalnaker: [ADD CITATION]
[203: The Competition in Contracting Act requires the agency to
submit a report in the course of a GAO protest "including all
relevant documents." 31 U.S.C. § 3553(b)(2). GAO's regulations
mandate that the agency report also include "the contracting
officer's statement of the relevant facts" and "a memorandum of
law." 4 C.F.R. § 21.3(d).] [204: Axiom, 564 F.3d at 1379-80.] [205:
[ADD CITATION]]
As with any evidence developed after the fact, there is a risk
that a post-decisional statement may set forth a new rationale that
was not actually basis upon which the agency relied at the time of
the decision.[footnoteRef:206] Implicit in Axiom's warning that the
CFC should focus on "the administrative record already in
existence, not some new record made initially in the reviewing
court"[footnoteRef:207] is the notion that it is the agency's
contemporaneous reasoning for its decision that is subject to
review, not a new rationale developed as a litigation
strategy.[footnoteRef:208] Indeed, one CFC judge stated that "an
essential premise of [APA] review presupposes that the agency will
establish its rationale at, or prior to, the time of its decision –
not after."[footnoteRef:209] To guard against such re-writing of
history, the CFC often cautions against reliance on "post hoc
rationalizations."[footnoteRef:210]Comment by RStalnaker: [ADD
CITATION]Comment by RStalnaker: [ADD CITATION]Comment by
RStalnaker: [ADD CITATION] See following discussion of Femme Comp
for possible support. [206: [ADD CITATION]] [207: Id. at 1379. ]
[208: [ADD CITATION]] [209: CRAssociates, Inc. v. United States, 95
Fed. Cl. 357, 377 (2010). ] [210: CRAssociates, 95 Fed. Cl. at 377;
Femme Comp Inc. v. United States, 83 Fed. Cl. 704, 747 (2008).]
For example, in Femme Comp Inc. v. United States, the CFC
granted the protester's motion to strike a declaration – prepared
by the agency as part of its motion for judgment on the
administrative record – reflecting "subsequent research" that it
believed confirmed its challenged decision.[footnoteRef:211]
Because "the contents of the declaration and the exhibits attached
to the declaration, do not, for the most part, reflect information
that was evaluated by the Army during the procurement process,"
Judge Sweeney excluded the declaration and declined to consider the
arguments based upon it.[footnoteRef:212]Comment by RStalnaker:
Ensure BB compliance and accurate pincites [211: Femme Comp, 83
Fed. Cl. at 747.] [212: Id.]
Even where the CFC accepts post-decisional statements into the
administrative record, it often caveats that decision by stating
that it will not rely on assertions therein that represent post-hoc
rationalizations.[footnoteRef:213] For example, in Asia Pac.
Airlines v. United States, 68 Fed. Cl. 8 (2005),[footnoteRef:214]
Judge Lettow issued the following proviso after granting the
agency's motion to supplement the administrative record with
post-decisional evidence:Comment by RStalnaker: [ADD CITATION] See
next sentence for support. [213: [ADD CITATION]] [214: Unnecessary
footnote?]
“The court is well aware of the possibility that the officials'
supplementary declarations, depositions, and testimony at trial may
reflect wisdom gained by hindsight and may not represent the
officials' actual bases for making decisions during the
procurement. Notably, "[i]n examining this expanded record, this
[c]ourt is mindful that it must critically examine any pos