The COFC’s rules of procedure for bid protests state that the administrative record should include the record of any previous protest, like, a GAO protest. But what constitutes the “record” in a GAO protest? Here, the protester wanted to supplement the administrative record with the protest complaint it filed in a previous GAO protest. The government, however, argued that the record in a GAO protest consists only of the agency report the agency created for the protest; it does not include the protest complaint. The court rejected the government’s argument, finding that nothing in the rules or regulations defined what’s included in a GAO protest record. The court allowed the protest complaint into the administrative record but cautioned that it would reject any argument that cited the protest in an attempt to convert the arbitrary and capricious standard of review into de novo review.
Dolphin Park TT, LLC v. United States, COFC No. 21-1693
Background
The General Services Administration issued a request for lease proposals seeking office space. The RFP provided that a lease would not be awarded for any property within a 100-year floodplain.
Dolphin Park TT submitted a proposal. Dolphin’s proposal showed that the company’s offered property was within a 100-year floodplain. Dolphin revised its proposal several times, but its final proposal still showed a property in a 100-year floodplain. GSA found Dolphin’s proposal unacceptable.
Dolphin filed a protest with GAO. The protest included information showing that Dolphin’s property was not in a floodplain GSA took corrective action, so GAO dismissed the protest. Thereafter, however, Dolphin filed another protest with the Court of Federal Claims. GSA notified the court that it would take corrective action to reevaluate proposals.
After reevaluating, GSA once again determined that Dolphin had submitted an unacceptable proposal because its property was within a 100-year floodplain.
Dolphin then filed a motion with the court to supplement the administrative record with (1) the full GAO protest record, (2) a letter from the Dolphin’s brokers showing that the property was not in a floodplain, (3) screenshots from the FEMA website showing the property was not in a floodplain, and (4) declarations from the contracting officer and Dolphin’s brokers.
Legal Analysis
GAO Protest
Dolphin wanted to supplement the administrative record with the full record of its GAO protest. Dolphin contended that exhibits to its protest showed that its property was in a floodplain. The government opposed the motion, reasoning that the “record” in a GAO protest doesn’t necessarily include the initial protest complaint and its exhibits. Rather, the GAO protest record refers to the agency report created for the protest. Because the government took corrective action before an agency report was ever created in the GAO protest, the government contended that a record of the GAO protest did not exist.
The court did not find the government’s position convincing. The court’s rules of procedure for protests provide that the record of any other protest presumptively qualifies for inclusion in the administrative record. Additionally, the regulations governing the record of administrative proceedings did not state what it is or is not appropriate GAO protest material. The court concluded the original protest complaint should be included in the administrative record. Nevertheless, the court opined that review of the protest material would be limited to the documents GSA actually considered in evaluating proposals. The court would not consider exhibits to the GAO protest de novo—i.e., as actually demonstrating that the property was not in a floodplain. Instead, the government would simply consider whether the exhibits had been submitted to the agency as part of the evaluation.
Letter from Dolphin’s Brokers
Dolphin wanted to supplement the administrative record with a letter from its brokers that showed its property was not in a floodplain. The court noted that the administrative record should consist of the documents the agency considered when it made its decision. Here, Dolphin submitted the letter to GSA while the agency was undertaking corrective action during the COFC protest. The letter was thus never considered by the agency as part of the evaluation. Even if the letter demonstrated the property was not in a floodplain, it was improper to include it in the administrative record.
FEMA Screenshots
Dolphin wanted the record to include screenshots from the FEMA website that demonstrated its property was not in a floodplain. The court reasoned that these screenshots had been part of Dolphin’s proposal and thus had not been considered by the agency in evaluating proposals. Accordingly, the court declined to include them in the administrative record.
Declarations
Dolphin contended that administrative record should include declarations from its brokers and the contracting officer. Dolphin argued that these decorations were first hand accounts of discussions between the parties. The court reasoned that the record actually contained little evidence about the contents of the parties’ discussions. Consequently, the court allowed the declarations to be added to the administrative record, finding that they would aid the court in judicial review.
Dolphin is represented by Richard J. Conway, Samrath Barot, Brian S. Gocial, and Michael J. Slatter of Blank Rome LLP. The intervenor, Imperium Equity Partners, is represented by Diana Parks and Hadeel N. Masseoud of Curran Legal Services. The government is represented by Vijaya S. Surampudi, Patricia M. McCarthy, and Eric P. Bruskin of the Department of Justice as well as by Liana D. Henry and Tammy Snyder-Queen of GSA.
