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 david.black@hklaw.com. 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 gregory.hallmark@hklaw.com. 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