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Last week, the Court of Federal Claims issued a decision highlighting – and further widening – the gap between the limited agency record typically available to protesters at the Government Accountability Office (“GAO”) and the much more fulsome record available at the Court.  In Trace Systems Inc. v. U.S., the Court signaled its increasing willingness to scrutinize the adequacy of the record produced, rather than simply accept Government representations of completeness.

Trace Systems considered a challenge to the cancellation of a competitive procurement in favor of a sole-source award by the Defense Information Systems Agency (“DISA”).  After the Government filed an administrative record containing nearly 23,000 pages of documents purportedly detailing the cancellation decision, the protester objected and sought the production of additional documents, claiming only six of the originally produced documents were relevant.  The Court ordered DISA to complete the record, and the Government produced additional documents.  DISA explained, however, that it was withholding other records that were “internal, predecisional, and deliberative agency documents.”  The protester again objected and asked the Court to compel the Government to file all relevant documents.  In response, the Government represented that, beyond the pre-decisional documents it had withheld, the record was now complete.

The Court questioned that representation after reviewing the small number of relevant documents produced. The Court noted various references in DISA’s four-page cancellation memorandum to underlying materials not included in the record, such as recommendations by other agency branches and market research.  The Court also noted that the sole-source Justification and Authorization (“J&A”) was unsigned, depriving the Court of the ability to determine whether DISA’s cancellation decision was properly authorized. 

Rejecting the Government’s assertion that it was permitted to withhold certain documents because they were either “pre-decisional or deliberative documents,” the Court explained that the proper course would have been to assert a privilege over those materials and submit a privilege log to potentially allow the Court to assess the propriety of the asserted privilege.  The Court also emphasized that agencies may not “skew the record” in their favor by excluding relevant documents; rather, the record should include “all documents and materials directly or indirectly considered by agency decision-makers, including evidence contrary to the agency’s position.”  Accordingly, the Court instructed the Government to reexamine any available materials and confirm whether the record was complete.  Without prejudging the issue or deciding definitively that there were missing documents, the Court further noted that a lack of additional documentation might call into question the sufficiency of the justification for DISA’s cancellation decision.

Taken together with the Court’s recent decision in Oak Grove Technologies, Inc. v. U.S., 156 Fed. Cl. 594 (2021), appeal filed (Mar. 22, 2022), in which the Court sanctioned the Government for “its piecemeal and improper handling of the administrative record,” it is clear that the Court will take an active role when necessary to ensure protesters receive a complete administrative record in bid protest proceedings.

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Photo of Anuj Vohra Anuj Vohra

Anuj Vohra litigates high-stakes disputes on behalf of government contractors in federal and state court, and maintains an active bid protest practice before the U.S. Government Accountability Office and the U.S. Court of Federal Claims. He also assists clients with an array of…

Anuj Vohra litigates high-stakes disputes on behalf of government contractors in federal and state court, and maintains an active bid protest practice before the U.S. Government Accountability Office and the U.S. Court of Federal Claims. He also assists clients with an array of issues related to contract formation (including subcontracts and teaming agreements), regulatory compliance, internal and government-facing investigations, suspension and debarment, organizational conflicts of interest (“OCIs”), intellectual property and data rights, and the Freedom of Information Act (“FOIA”).

Prior to entering private practice, Anuj spent six years as a Trial Attorney in the U.S. Department of Justice’s Commercial Litigation Branch. At DOJ, he was a member of the Bid Protest Team—which handles the department’s largest and most complex protests—and served as lead counsel in dozens of matters representing the United States in commercial disputes before the U.S. Court of Appeals for the Federal Circuit, the Court of Federal Claims, and the U.S. Court of International Trade.

Photo of Cherie Owen Cherie Owen

Cherie Owen is a senior counsel in the Government Contracts group. Cherie counsels and represents clients in a wide array of government contracts issues, with a focus on bid protests at the United States Government Accountability Office (GAO) and the United States Court…

Cherie Owen is a senior counsel in the Government Contracts group. Cherie counsels and represents clients in a wide array of government contracts issues, with a focus on bid protests at the United States Government Accountability Office (GAO) and the United States Court of Federal Claims. As a former GAO bid protest hearing officer, she resolved some of the most challenging bid protests on procurements ranging from thousands to billions of dollars involving solicitation challenges, proposal evaluation challenges, organizational conflicts of interest, Procurement Integrity Act violations, affirmative responsibility determinations, the conduct of discussions, and competitive range determinations. In this role, Cherie held numerous bid protest hearings. At GAO she handled more than 600 protests and issued more than 500 decisions.

Photo of Issac Schabes Issac Schabes

Issac D. Schabes is an associate in the firm’s Washington, D.C. office, where he is a member of the Government Contracts Group.

Prior to joining the firm, Issac clerked for the Honorable Matthew H. Solomson on the U.S. Court of Federal Claims and…

Issac D. Schabes is an associate in the firm’s Washington, D.C. office, where he is a member of the Government Contracts Group.

Prior to joining the firm, Issac clerked for the Honorable Matthew H. Solomson on the U.S. Court of Federal Claims and the Honorable Robert N. McDonald on the Maryland Court of Appeals. Issac received his J.D., magna cum laude, from the University of Maryland Carey School of Law, where he graduated Order of the Coif and served as an executive editor for the Maryland Law Review. He received numerous awards, including the Judge Simon E. Sobeloff Prize for Excellence in Constitutional Law. During law school, Issac was a member of a low-income taxpayer clinic team that successfully appealed an IRS assessment resulting in a substantial tax liability reduction, and also interned for the Honorable Beryl A. Howell, Chief Judge, on the U.S. District Court for the District of Columbia and the Honorable Marvin J. Garbis on the U.S. District Court for the District of Maryland.