All of us are familiar with the requirements to support source selections with contemporaneous records, and many of us are also all too familiar with contested source selections where it turns out that the record is incomplete, or where the record is inconvenient, i.e., wrong. In these cases, whether the selection decision is sustained depends on just how post-protest explanations are received. Will they be received as proper evidence of incomplete agency records or a proper preaward determination, or will these post-protest explanations be rejected as post hoc rationalizations? Here we’ll contrast recent decisions of the United States Court of Federal Claims with recent GAO decisions, and we’ll show just how apparent conflicts in the treatment of such statements may be reconciled.
FAR 4.801(b) requires, inter alia, that procurement file documentation “shall be sufficient to constitute a complete history of the transaction” for supporting actions taken, for providing information for reviews and investigations, and for furnishing essential facts in the event of litigation or congressional inquiries. FAR 15.608(a)(3) requires that technical evaluations be documented with the basis for evaluation, and an analysis of the technically acceptable proposals, including an assessment of each offeror’s ability to accomplish the technical requirements. FAR 15.612(d)(2) requires that formal source selections be supported with documentation that includes “the basis and reasons for the decision,” and, as well, shows “the relative differences among proposals and their strengths, weaknesses, and risks in terms of the evaluation factors.”
So what happens when the required documentation is missing, or when a preaward determination is just plain wrong? In ATA Defense Industries, Inc. v. United States, No. 97-382C, Fed. Cl., June 27, 1997, it was a preaward determination invoking the “one responsible source” exception from full and open competition, 10 U.S.C. § 2304(c)(1), when it turned out that $193,060 of some $228,985 non-FSS “incidentals” could in fact be competitively acquired. ATA Defense Industries, slip op. at 17. In Cubic Applications, Inc. v. United States, 37 Fed. Cl. 345 (1997), it was a missing preaward determination required by 10 U.S.C. § 2304b(e)(3) in order to make a single award under a solicitation proposing a task order contract for the delivery of advisory and assistance services. In Quality Elevator Company, Inc., B-276750, July 23, 1997, slip op. at 2, it was a set of evaluator’s rating sheets, each assigning the maximum point score to two competing proposals with no substantive narrative comments, together with a recommendation, equally bereft of narrative comment, to make award to the offeror with the lowest evaluated price. In Cygnus Corp., B-275181, Jan. 29, 1997, 97-1 CPD ¶ 63, at 7, it was an evaluation record that showed no consideration of technical proposal changes submitted with a best and final offer, changes that should have resulted in a higher technical score.
GAO deals with protested selection decisions that are not supported with a complete record by looking at the record that remains. GAO readily accepts post-protest narratives. In Quality Elevator, GAO accepted post-protest narrative explanations that reconstructed the required technical evaluation documentation supporting the agency’s assessment that the technical proposals were essentially technically equal, with no distinguishing strengths, weaknesses, or risks. Quality Elevator, slip op. at 3.
Contrariwise, GAO will not accept post-protest explanations for a record that does not exist. Thus in Cygnus Corp., where there was no contemporaneous record that could support a conclusion that agency evaluators had in fact considered and scored an offeror’s best and final offer technical proposal changes, GAO rejected a post-protest narrative that asserted the changes had been considered and scored, there because the post-protest narrative had been submitted from only one of three evaluators, and because the post-protest narrative was inconsistent with contemporaneous documents suggesting that the changes were not considered. Cygnus, 97-1 CPD, at 9.
The United States Court of Federal Claims is not quite so willing to accept post-protest narratives. In ATA Defense Industries, the court made careful note of the Administrative Procedure Act standard of review, 5 U.S.C. § 706(2)(A), and the deference granted to reasoned determinations contained in the administrative record. But when it was offered a post-protest narrative that attempted to substitute a new rationale for a legally erroneous pre-protest determination, the court said:
But such deference is not granted where the agency changes its rationale for taking an action after a suit is instituted attacking the original rationale. American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 539 (1981) (“post hoc rationalizations of the agency . . . cannot serve as a sufficient predicate for agency action”); Camp v. Pitts, 411 U.S. 139, 142-43 (1973) (“The validity of the [agency’s] action must . . . stand or fall on the propriety of [the contemporaneous explanation] . . . .”); Parker v. Office of Personnel Management, 974 F.2d 164, 166 (Fed. Cir. 1992). Indeed, if deference were granted in such cases, a significant risk would arise that agency actions would be based on the desire to prevail in litigation rather than to further appropriate agency goals. See Parker, 974 F.2d at 166.
ATA Defense Industries, slip op. at 12-13.
This said, the United States Court of Federal Claims does not always follow its own precepts. Thus in Cubic Applications, the court received a post-protest narrative from a procuring contracting officer attempting the preaward determination required by 10 U.S.C. § 2304b(e)(3). 37 Fed. Cl. at 352. Here the court subjected itself to the problem that GAO creates when it readily accepts post-protest narratives, i.e., the court had to find a reasoned basis for disregarding the post-protest narrative. It did so because it concluded that the absence of a preaward determination did not require nullification of the contract that had been awarded, 37 Fed. Cl. at 356, that the error was essentially harmless, that the error was not readily apparent, and that the protester was equitably estopped from complaining about the error (the protester had not raised this issue until it filed with the United States Court of Federal Claims, after losing before GAO), 37 Fed. Cl. at 357-58.
Why is there a difference? Or better put, why does GAO accept post-protest narratives that the federal courts have decided are inappropriate for Administrative Procedure Act review?
The United States Court of Federal Claims has suggested that GAO may be constrained by 31 U.S.C. § 3553(b)(2), which requires agencies to submit a “complete report” on pending protests, and by GAO’s own implementing regulations, which require, inter alia, that the report include the contracting officer’s statement of relevant facts, 4 C.F.R. § 21.3(d), or which allow the submission of comments or additional statements, including declarations as well as argument, 4 C.F.R. § 21.3(i),(j). Cubic Applications, Inc. v. United States, 37 Fed. Cl. 339, 343-44 (1997).
This writer suggests that there can be no bright line rule. While post-protest narratives can be an aid in explaining agency action for which there is a contemporaneous record, Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989), they must not be considered as replacements for an agency record that does not exist. No deference should ever be afforded to post-protest narratives, and they should be treated only as argument, nothing more.
— Cy Phillips
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