Accountant swamped with financial documents

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.

During the last week, one Judge issued two bid protest decisions involving supplementation, FirstLine Transportation Security v. US and LabCorp v. US, permitting supplementation of the administrative record in both cases. Another CFC Judge decided the Communications Construction Services v. US bid protest, denying supplementation of (among others) an expert declaration from a consultant whose statement was accepted in the FirstLine case. From the opinions, there were clearly distinctions among the declarations that were the bases of the supplementation requests. It isn’t clear whether those distinctions should have made difference the court held they did.

In Communication Construction, the protester moved to supplement the administrative record with two declarations. The first witness statement attempted to provide opinions regarding the protester’s past performance, the content of RFP and of the protester’s proposals, and “the substance of meetings not otherwise described in the record.” The second declarant, who was the same expert involved in the FirstLine case, submitted declarations (i) “addressing the finance-related aspects of . . . reviews” that had been performed by a technical expert working with the CO on source selection, and (ii) attacking the intervenor’s “financial responsibility and [the agency’s] calculation of the technical scores.”

The Communication Construction decision explained the narrow scope of supplementation in CFC bid protest cases—i.e., “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”—and rejected the protester’s proffered supplementation. Among other problems, the court faulted the declaration provided by CCS’ expert as an opinion “predicated on [the declarant’s] subjective evaluation of the record, not on any inscrutable technical matters.” The court explained that “[t]here is a fine line . . . between an expert offering technical analysis—an acceptable addition to the record—and an expert substituting his subjective judgment for that of the Government in areas not dependent upon complex technical matters.” The descriptions of the expert declarations certainly appear to be the type of re-assessment of record materials by an expert that was expressly rejected in Axiom, and the Communication Construction opinion makes clear the expert crossed the line.

The CFC’s FirstLine and LabCorp decisions reached the opposite conclusion on motions to supplement the administrative records in those cases, allowing the additional materials. In FirstLine, the protester provided a declaration (from the expert whose declaration was rejected in Communication Construction) that (i) “includes a quantitative analysis of labor hours, labor rates, and other cost components that are already in the administrative record” and (ii) “describes the prejudice to [the protester] resulting from the alleged errors committed” by the SSA. The protester’s expert declaration in LabCorp was submitted “to show the flaws in the [agency’s] price evaluation, and to explain other approaches to the price evaluation that arguably would have been more rational.”

The authors aren’t representing parties in the FirstLine or LabCorp cases and, thus, haven’t seen the materials under those protective orders. Although we cannot examine the declarations at issue ourselves, the court’s descriptions of the expert submissions make them look substantially like countless declarations we’ve seen in GAO protests—and attempted in CFC cases—in which a consultant explains his disagreement with the agency officials on a series of issues in the protest.

It is possible that an expert’s “declaration provid[ing] a statistical analysis of what the SSA would have found if the SSA had examined carefully” some aspect of the offerors’ respective proposals (as the expert did in FirstLine) would help the “Court . . . better understand the record” (FirstLine and LabCorp). But potential helpfulness in comprehension is not the standard dictated by Axiom; extra-record material is supposed to be admitted only when its omission would preclude effective judicial review.

What is more, the FirstLine and LabCorp decisions both include a finding that appears to undercut the supplementation with expert declarations. The court recognizes that it

perhaps is able to extrapolate relevant information from the record without the [expert’s] declaration, but [his] quantitative analysis allows the Court to understand the administrative record more completely.

As the court believed the experts’ analyses would be helpful, both the FirstLine and LabCorp opinions explained:

[O]mitting the declaration would handicap both Plaintiff and the Court. Surely, such an outcome is not what the Federal Circuit in Axiom intended. Rather, the holding in Axiom is that the Court must “exercise restraint” when supplementing the administrative record to ensure that parties are not supplementing the record “with whatever they want.”

It is difficult to understand how effective judicial review would be precluded by not considering the opinion of an expert who disagrees about how the Government analyzed and evaluated numerous aspects of a proposal. Price realism and cost realism are familiar components of an evaluation; and supplementation with an expert’s own realism analysis, criticism of the Government, and an expert’s opinions regarding why a different outcome should have been reached will rarely be necessary before a court can review a procurement decision. If a protester wants to challenge an agency’s realism analysis, it can almost always do so without an expert declaration in support.

We recognize that the job of the protester (the more frequent proponent of expert testimony) and the court in a bid protest case is often made more difficult when expert declarations are not allowed. Experts can play an important role in GAO and CFC protests—but before the court, their work should largely be limited to understanding technical issues and explaining them to counsel, who must brief and explain them to the court. In accordance with Axiom, only when the technical details of the record are “inscrutable” and cannot be understood without expert assistance—and therefore judicial review would not otherwise be meaningful—should an administrative record be supplemented with an expert declaration. At least, as the Communication Construction opinion reasonably explains, that’s what Axiom appears to say.