By Richard D. Lieberman, Consultant
Most bid protest decisions, whether issued by the Government Accountability Office (“GAO”) or the U.S. Court of Federal Claims (“CFC”) are generally very blandly written, discussing problems and non-problems in a source selection. A recent CFC decision, is decidedly different, and highly critical of an agency (the Army) for its repeated attempts to undermine the Court’s authority in the protest. Oak Grove Tech, LLC v. United States and F3EA, Inc., No. 21-775C (Fed. Claims August 2, 2021), 2021 WL 362711.
Oak Grove challenged the Army’s decision to award a Special Operations Forces contract to F3EA, arguing that the award was arbitrary, capricious and not in accordance with the law and the Federal Acquisition Regulation (“FAR”). The Court granted judgment on the record for several reasons:
- The agency acted arbitrarily in finding that F3EA and Lukos (other offerors) submitted compliant, awardable proposals.
- The agency failed to comply with the solicitation’s requirement to evaluate the financial responsibility of Lukos’ proposal
- The agency should have conducted discussions, but failed to do so
- The Army failed to sufficiently investigate allegations of a Procurement Official’s improper conduct in influencing the procurement in favor of F3EA
But probably more important than sustaining the protest, was the Court’s harsh language regarding the Army’s actions to violate the court rules governing the filing of the Administrative Record—a key part of any bid protest. Here are a few comments from the decision
- The court is required to base its review of agency action on the full administrative record that was before the agency decision maker at the time he made his decision.
- This court’s rules provide detailed guidance on what documents typically should be included in the Administrative Record
- This court’s review function is undermined when an agency assembles a record that consists solely of materials that insulate portions of its decision from scrutiny or that it deems relevant to specific allegations raised by a protester.
- The government omitted several critical documents from its initial and subsequent Administrative Record filings, which documents directly and unequivocally undermine the government’s position (Court then reviews multiple Administrative Record filings and corrections, and additional records)
- The government repeatedly attempted to excuse its failure to include documents utilizing a “not especially relevant” standard—but the agency could cite no authority to support that standard
- Agency counsel’s excuse that omissions were “an oversight” does little to mitigate the harm that the government has caused by excluding specific documents that should have been included as part of the record from the outset.
- “As much as the Court would like to assume good faith, the government admits that it made sentient [aware] choices regarding the contents of the Administrative Record, all of which appear to have favored the Agency. Such apparent gamesmanship wastes judicial resources and undermines trust in both the procurement and disputes process. Accordingly the government is ordered to show cause why Defendant should not be sanctioned for wasting the Court’s (and Plaintiff’s) time and resources on these Administrative Record deficiencies.”
These are very strong words targeted towards an agency that has a very long history of successful defending protests, but made many mistakes in this protest.
Takeaway. Counsel and Contracting Officers for the Government must provide a complete Administrative Record at the CFC (and a complete Agency Report at the GAO, which contains the crucial documents). There should be no selective submission of documents—all documents are relevant, and the notion of a “not especially relevant” standard is inappropriate for the submission of the record.
For other helpful suggestions on government contracting, visit:
Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.