Protester’s motion to supplement the administrative record is granted in part. The protester argued the supplementation was necessary to demonstrate possible bias of the contracting officer. The court agreed, finding that the protester had shown potential bias and identified specific agency officials and particular suspect conduct. The court reasoned that without supplementation judicial review would be frustrated.
EFW, Inc. protested the award of a contract to Rockwell Collins, Inc. EFW moved to supplement the administrative record, claiming it had “glaring holes”and was “devoid of any meaningful explanation” regarding possible bias of the contracting officer. Specifically, EFW contended the record lacked an explanation as to why the contracting officer had prepared two past performance questionnaire for one offeror. Additionally, EFW argued the record did not include any documents indicating whether the agency had been aware that the contracting officer was also an evaluator on the Source Selection Evaluation Board.
The government claimed that the documents EFW wanted were either protected by the attorney-client privilege or the deliberative process privilege. The court ordered the government to create a privilege log for any withheld documents. After review the documents in camera, the court ordered the government to produce several allegedly privileged documents.
The court noted that it is appropriate to supplement the administrative record when there is a strong showing of bad faith or improper behavior such that without additional discovery, the administrative record cannot be trusted. What’s more, the court continued, a privilege may be overcome when there is a showing of bad faith or improper behavior.
Here, after the reviewing the documents, the court concluded that 18 of them could lead to evidence that provided the level of proof required to overcome the presumption of agency regularity and good faith. Under the circumstances, where EFW had alleged bias and identified specific employees and conduct, effective judicial review would be frustrated without supplementation.
EFW is represented by Todd J. Canni, Marques O. Peterson, Kevin J. Slattum, and J. Matthew Carter of Pillsbury Winthrop Shaw Pittman LLP. The intervenor, Rockwell Collins, is represented by Daniel R. Forman of Crowell & Moring. The government is represented by Alison S. Vicks, Joseph H. Hunt, Robert E. Kirschman, Jr. and Deborah A. Bynum of the U.S. Department of Justice.
