Government “Misconduct” in Preparing the Administrative Record Warrants Sanctions

Recent case law affirms an Agency’s duty to prepare a complete and accurate Administrative Record (“AR”) when responding to a bid protest.  It also reinforces the value and importance of careful and detailed analysis of the AR by the protestor.  Filed after the initial submission of the protest, the AR is required to contain the relevant documentation that purports to substantiate the Agency’s award decision.  From the AR, protestors can bolster their initial protest grounds and/or supplement with new grounds based upon new information made available in the AR.

As a brief primer for those unfamiliar with the bid protest process, in response to a contractor filing a bid protest—either pre-award or post-award—the  Agency must produce an AR that contains the relevant procurement documents, including but not limited to:  the contracting officer’s statement of the relevant facts; all evaluation documents; and any other relevant documents.

Additionally, as is consistent with our practice, the Contractor may request specific documents that it believes are relevant to the procurement decision in connection with the Contractor’s bid protest, and the Agency must either produce these documents or explain why they are being withheld.  In response to the AR, the protestor is required to file Comments addressing the AR and raising any additional protest grounds.  Generally, the decision of whether to sustain or dismiss the protest will be decided on the initial protest, the AR, and the Comments.

Given its role in the protest process, having an accurate and complete AR is essential.  A recent (and strongly worded) decision from the Court of Federal Claims affirms the Agency’s responsibility to satisfy this fundamental requirement.  See Gallup, Inc. v. United States.[1]   Gallup addressed a pre-award protest concerning the decision of the US Special Operations Command (“USSOCOM”) to set aside for small businesses the Agency’s procurement for Military Information Support Operations.

In response to Gallup’s protest, the Agency produced an undated “Market Analysis,” which included a Memorandum for Record, which was the only documentation of the Agency’s decision to set aside the procurement for small businesses.  While undated, the AR Index represented the Memorandum was a contemporaneous record.  After the Protestor filed its Comments, it was revealed that in fact that Memorandum for Record was not contemporaneous but rather was prepared after the Agency received notice of the contractor’s intent to protest.  Immediately before notifying the Court of the misrepresentation in the AR, the Agency took corrective action and requested that the hearing on the merits of the protest be canceled.  While acknowledging the corrective action, the court nonetheless refused to cancel the hearing.  Instead, the Court demanded that “all those individuals who assisted in the production of the administrative record” attend the hearing so that the Court could “uncover the nature of the inaccuracy present in the administrative record and determine whether any action should be taken by this Court.”  Following the hearing, the Court issued an Order to Show Cause as to why sanctions should not be assessed against the Agency for its conduct with respect to the misrepresentations in the AR.

In a successful attempt to avoid sanctions, the Agency immediately agreed to pay Gallup’s attorney fees associated with the protest and to:

issue guidance to its contracting staff emphasizing the importance of completeness, accuracy, and integrity in preparing records and accompanying certifications [and] is in the process of planning a training session . . . that will focus on issues of accuracy and ethics in preparing and certifying administrative records.

In its decision, the Court notes that such action by the Agency is a concession that “the Government does not dispute the appropriateness of sanctions in this case.”  In closing, the Court chastised the Government for its “misconduct” and issued an explicit directive regarding the importance of an accurate and complete AR: <

The integrity of the administrative record, upon which nearly every bid protest is resolved, is foundational to a fair and equitable procurement process. While the Government has accepted responsibility for its misconduct, the importance of preventing a corrupted record cannot be overstated. The Court encourages USSOCOM to take all reasonable steps to ensure that its contracting office appreciates the necessity of conducting a well-documented, well-reasoned procurement and producing a meticulous and accurate record for review. The Court will not tolerate agency deception in the creation of the administrative record.

The Court’s language and strong criticism of the Government in this case reflects that Contractors can count on courts to enforce the Agency’s obligations with respect to preparation of the AR.  Furthermore, it is welcome precedent concerning the applicability of sanctions on Government misconduct in failing to produce a complete and accurate AR.

[1] No. 16-1656C, 2017 WL 1476243