COFC Often Allows Protesters to Supplement the Record When the Protest Alleges a Misrepresentation. Why Didn’t COFC Allow Supplementation in this Case?

The protester moved to supplment the record with evidence of the awardee’s alleged misrepresentation. The court denied the motion. The agency had already considered evidence of the misrepresentation. Nothing more was needed to resolve the misrepresentation issue. 

Health Net Federal Services, LLC v. United States, COFC No. 23-1268 

• Motion to Supplement – An unsuccessful offeror filed a COFC bid protest. Among other claims, the protester alleged the awardee made misrepresentations related to its small business utilization. The protester moved to supplement the record. The protester wanted the awardee’s teaming agreements and correspondence with the contracting officer. 
• Standard for Supplementation – Supplementation of the administrative record is only allowed when the omission of extra-record evidence is essential for judicial review. COFC has permitted supplementation when the protest alleges a misrepresentation, and the misrepresentation arises from information that wasn’t before the agency. But the court in this case noted, supplementation is not allowed when evidence of a misrepresentation is before the agency, and the agency considers it. 
• Supplementation Not Warranted – Here, the agency had questioned the awardee about its small business utilization during discussions. The awardee supplied more information about small business utilization, which the agency considered. Because the agency already considered evidence of the misrepresentation there was no need to supplement the record. This did not mean the agency reasonably determined the awardee hadn’t made a misrepresentation. That question went to the merits. The court merely decided it didn’t need more information to resolve it. 

The protester is represented by Amy L. O’Sullivan, Robert J. Senckenberg, Cherie J. Owen, James G. Peyster, William B. O’Reilly, Zachary H Schroeder, Issac D. Schabes, and David H. Favre III of Crowell & Moring LLP. The intervenor is represented by Marcia G. Madsen, Luke Levasseur and Evan C. Williams of Mayer Brown LLP; as well as by Robert S. Ryland, H. Boyd Green, and Ashley Pincock of Kirkland & Ellis LLP, along with Kathleen C. Little, Robert J. Rothwell, Robert D. Vander Lugt, Amanda J. Dietrick, and Jenny J. Yang of Little, Rothwell & Vander Lugt PLLC. The government is represented by William P. Rayel, Douglas K. Mickle, Patricia M. McCarthy, and Brian Boynton of the Department of Justice as well as Michael R. Bibbo and Song U. Kim of the Defense Health Agency. 

–Case summary by Craig LaChance, Senior Editor