It is not uncommon for litigants in bid protest cases to seek to supplement the administrative record with materials generated by consultants or otherwise not considered by the agency during source selection. Indeed, litigants’ ability to provide supplementation is one of the principal differences between the bid protest forums. GAO’s process is relatively accepting of supplementation; in contrast, the Court of Federal Claims is bound by the Federal Circuit’s 2009 decision in Axiom Resource Management v. US, which permits supplementation only when “the omission of extra-record evidence precludes effective judicial review.”
During the five years since Axiom was decided, a fair number of CFC cases have been decided and articles/blog posts have been written addressing the proper scope of supplementation in CFC bid protest cases. As shown by three CFC decisions issued during the last week, the court’s application of the supplementation standard still appears to lack consistency.