      In the United States Court of Federal Claims
                                   No. 15-1256C
                       (Filed under seal November 17, 2015)
                           (Reissued November 25, 2015)
                             NOT FOR PUBLICATION

* * * * * * * * * * * * * * * * * *
                                  *
RES REI DEVELOPMENT, INC., *
                                  *
                 Plaintiff,       *
                                  *
      v.                          *
                                  *
THE UNITED STATES,                *
                                  *
                 Defendant,       *
                                  *
      and                         *
                                  *
ST. MICHAEL’S INC. and            *
FEDERAL ACQUISITION               *
SERVICES TEAM, LLC,               *
                                  *
           Defendant-Intervenors. *
                                  *
* * * * * * * * * * * * * * * * * *


                                     ORDER

      The Court held an oral argument yesterday via telephone on plaintiff’s
motion to supplement the administrative record. Participating in the conference
was counsel for plaintiff and defendant, as well as counsel for each intervenor. As
discussed during the oral argument, plaintiff’s motion is GRANTED-IN-PART and
DENIED-IN-PART.

      Plaintiff alleges that systemic problems involving the operation of
government servers precluded its original proposal from being accepted, requiring
hasty (and erroneous) modifications to its proposal, see Compl. ¶¶ 13–24, 66–80.
The administrative record of another protest concerning the same procurement,
Federal Acquisition Services Team, LLC v. United States (FAST), No. 15-78C,
contains information regarding the problems offerors faced in having their emailed
proposals accepted by the government’s servers, and the agency’s application of the
government control exception, 48 C.F.R. § 52.215-1(c)(3)(ii)(A)(2). This includes
computer print-outs concerning server activity, email exchanges between the
contracting officer and offerors, and statements from agency personnel concerning
the receipt of emails.

       As the Court concluded in FAST, “whether a systemic problem with the
agency’s server precluded properly-sized submissions from being accepted” is a
question “that by its nature will involve evidence beyond what one would ordinarily
find in an administrative record.” FAST, No. 15-78C, 2015 WL 892444, at *2 (Fed.
Cl. Feb. 27, 2015). This type of evidence falls under a recognized, established
category justifying supplementation, see Orion Int’l Techs. v. United States, 60 Fed.
Cl. 338, 343–44 (2004) (noting “relevant information that by its very nature would
not be found in an agency record”), and was included in the administrative record of
another protest involving the same procurement. Under the circumstances, with
plaintiff alleging that problems with the government’s servers required
modifications which impaired its proposal, this is one of the rare cases in which
supplementation is “necessary in order not ‘to frustrate effective judicial review.’”
Axiom Resource Management, Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir.
2009) (quoting Camp v. Pitts, 411 U.S. 138, 142–43 (1973)).

       The administrative record in FAST is in three parts. First, there is the
amended administrative record, which was filed on compact disc on February 18,
2015, and is not available through ECF. Second, there are documents concerning
the Group A and Group B procurements, which are found on pages 32–157 of
FAST’s proposed supplement to the administrative record, filed February 13, 2015
(ECF No. 14 in FAST). Third, there are the contracting officer’s answers to written
deposition questions, filed February 25, 2015 (ECF No. 23 in FAST). The Clerk
shall file under seal in this case the latter two portions of the FAST administrative
record (from FAST, pp. 32–157 of ECF No. 14, and the entirety of ECF No. 23). The
government shall serve and file under seal a copy of the compact disc containing the
amended administrative record from FAST, so that it is received by counsel for the
parties no later than the close of business Wednesday, November 18, 2015.

       The Court has determined that the administrative record in this case should
be supplemented with the following portions of the FAST record concerning the
receipt of emailed proposals and the application of the government control
exception: Tab 12 (AR 488–640); Tab 18 (AR 669–85); Tabs 22–25 (AR 720–35);
Tabs 31–36 (AR 823–90); and the contracting officer’s answers to the written
deposition questions. When citing pages from the compact disc, the parties may
reference them as “FAST AR” using the Bates numbers already employed. If any
party believes it is necessary to supplement the record in this case with other
portions of the FAST record, it may move for additional supplementation.

      Plaintiff has also moved to supplement the record with other offerors’
proposals and their evaluations. Such documents are frequently included in the

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administrative records of bid protests, as inconsistent treatment of similar aspects
of proposals may be evidence of an arbitrary decision. See Tech Systems, Inc. v.
United States, 98 Fed. Cl. 228, 252 (2011) (describing process of “scrutinizing the
evaluations for objective inaccuracies or subjective inconsistencies”). Plaintiff’s
complaint alleges that portions of its proposal were not properly evaluated, see
Compl. ¶¶ 54–65, 81–94, but seeks to justify supplementation on the ground of bias
or bad faith, see Pl.’s Mot. at 9–11. The Court does not find that the agency’s
admission that it applied the government control exception to another offeror’s
submission to be the sort of “hard facts” needed to support discovery based on bias
or bad faith, see InfoReliance Corp. v. United States, 118 Fed. Cl. 744, 748 (2014). It
more likely reflects a difference of opinion concerning the interpretation and
application of the government control exception.

        Concerning the relevance of the proposals and evaluations of the fifteen other
offerors, the government persuasively argues that these are more commonly
included when a protest challenges a decision at the best value tradeoff stage of a
procurement, in which proposals are compared, rather than the competitive range
determination stage, in which the proposal is judged solely against the standards of
the solicitation. In addition, plaintiff has not identified anything in the existing
record, such as in the Initial Source Selection Evaluation Board Evaluation Report,
Tab 36, Admin. R. at 1507–80, which suggests different treatment of similar aspects
of proposals, or differing applications of the solicitation criteria. Moreover, a review
of that report shows that all proposals but one were found at that stage to have
significant problems, making them less likely founts of evidence of arbitrariness.
The Court concludes that effective review of plaintiff's allegations concerning
evaluation errors may be performed if supplementation is limited to the initial
proposal and evaluations of the one proposal deemed meritorious at that stage---
that of the offeror designated as “Offeror M.” This will serve as the necessary
quality control check of the evaluation process concerning the issues raised by
plaintiff. The government shall serve upon the parties and file under seal the
initial proposal and evaluations of Offeror M, on or by the close of business
Thursday, November 19, 2015.

       The request for other proposals and evaluations is denied. So, too, is the
request that other documents from the FAST proceeding be added to the record, as
these cannot be evidence regarding the decisions being challenged in this matter.
And plaintiff has not persuaded the Court that the records from another protest
regarding this procurement have any relevance to the issues presented in this case.

       Finally, the request for attorney’s fees and costs under Rule 37(a)(5) of the
Rules of the United States Court of Federal Claims is denied. The Court does not
find this provision relevant to bid protests, in which discovery and supplementation
are not the norm and the burden of establishing their propriety rests on a protester.



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      In light of the supplementation of the administrative record, the briefing
schedule must be adjusted. The parties may now file their motions for judgment on
the administrative record on or by Tuesday, November 24, 2015.

IT IS SO ORDERED.
                                     s/ Victor J. Wolski
                                     VICTOR J. WOLSKI
                                     Judge




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