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.
