Last week, the Federal Court of Claims issued a decision highlighting – and further widening – the gap between the limited agency record generally available to protesters at the Government Accountability Office (“GAO”) and the much more comprehensive record available. at the court. In Trace Systems Inc. v. United Statesthe Court signaled its increasing willingness to examine the adequacy of the record produced, rather than simply accepting the government’s representations as to completeness.
Tracking systems considered a challenge to the cancellation of a tender in favor of a sole-source contract by the Defense Information Systems Agency (“DISA”). After the government filed an administrative filing containing nearly 23,000 pages of documents purporting to detail the annulment decision, the protester objected and requested the production of additional documents, saying only six of the documents originally produced were relevant . The court ordered DISA to complete the file and the Government produced additional documents. DISA explained, however, that it was withholding other documents that were “internal, pre-sentence and deliberative agency documents.” The protester again protested and asked the court to compel the government to file all relevant documents. In response, the government said that beyond the pre-sentence documents it had withheld, the file was now complete.
The Court questioned this representation after reviewing the small number of relevant documents produced. The Court noted various references in DISA’s four-page cancellation memorandum to underlying documents not included in the filing, such as recommendations from other branches of the agency and market research. The Court also noted that the sole source’s justification and authorization (“J&A”) was not signed, which deprived the Court of the ability to determine whether DISA’s cancellation order was properly authorized.
Rejecting the government’s assertion that it was authorized to withhold certain documents because they were “pre-disposition or deliberative documents”, the Court explained that the proper course of action would have been to assert a privilege over these documents and to submit a register of privileges to enable the Court to assess the merits of the claimed privilege. The Court also emphasized that agencies cannot “skew the record” in their favor by excluding relevant documents; rather, the record should include “all documents and evidence considered directly or indirectly by agency decision-makers, including evidence contrary to the agency’s position.” Accordingly, the Court ordered the Government to re-examine all available evidence and confirm whether the file was complete. Without prejudging the issue or definitively deciding that there were missing documents, the Court further noted that the absence of additional documents could call into question the sufficiency of the justification for DISA’s annulment decision.
Combined with the Court’s recent decision in Oak Grove Technologies, Inc. vs. USA, 156 Fed. Cl. 594 (2021), appeal lodged (March 22, 2022), in which the Court sanctioned the government for “its piecemeal and inappropriate treatment of the administrative file”, it is clear that the Court will play an active role if necessary to ensure that the protesters receive a complete administrative file in proceedings to challenge bids.