The contractor argued that all records, including facially privileged ones, were by default considered part of the administrative record in a bid protest. The contractor alleged that in order to exercise privilege, the government would have to follow certain procedural requirements. COFC disagreed and placed the burden on the contractor to show that the government did not include the privileged documents in bad faith.
CAN Softtech, Inc. v. United States, Fed. Cl., No. 24-1009
- Motion to Compel - The contractor argued the government improperly withheld evidence and moved to compel disclosure. The government responded that the contractor merely speculated that the administrative record was incomplete and failed to provide any evidence to suggest anything was missing. Furthermore, the government argued the documents the contractor sought were privileged.
- Privileged Documents - The contractor argued that all records related to the government's contract termination and resolicitation -- even facially privileged ones -- are properly considered part of the administrative record in a bid protest. This meant the government had to invoke certain procedural requirements (such as a privilege log) to assert privilege over documents excluded from the record. The Court acknowledged several judges of its court had previously required the government to produce a privilege log in a bid protest case. However, the court concluded that the contractor would have to make a strong showing that the agency acted in bad faith or with improper behavior before privileged documents must be disclosed to complete the administrative record. Denied.
- Clear Evidence - The contractor moved to include pre-decisional documents and internal agency conversations in the record. It argued there was a lack of explanation for the agency's corrective action and cancelation of the solicitation, and the current record "does not tell the whole story." The court decided that the contractor failed to show that the government improperly withheld the documents or that the documents provided a reasonable factual predicate for improper behavior. The evidence the contractor sought was deliberative and pretextual and therefore outside the administrative record. Denied.
- Redacted Version - The court did, however, grant the contractor's motion concerning a specific memo to which the court previously issued a protective order to safeguard the confidentiality of competition-sensitive information. The protective order required the parties to file a redacted version under seal filings on the public record. Granted.
-- Case summary by Joshua Lim, Assistant Editor