Acrow Corp. of America v. United States, 96 Fed. Cl. 270

This post-award bid protest challenges the TACOM LOCB contract award to Mabey Bridge & Shore, Inc. (MBSI) under Solicitation No. W56HZV-09-R-0480, with a five-year base and two one-year options.
Plaintiff contends the contracting officer failed to consider information linking MBSI and its affiliates to M&B J (Mabey & Johnson) corruption, affecting responsibility determinations under FAR 9.104.
GAO and RCFC-based procedures require the administrative record to be supplemented only with materials that illuminate the agency’s decision, and that the court’s review remain tethered to the record before the contracting officer.
Disputes focus on whether various documents, including Danos counterclaim materials and post-decision statements, should supplement the record to permit meaningful review.
The court addresses (a) what documents may supplement the record, (b) whether GAO core documents may be considered, and (c) the propriety of adding post-hoc materials to aid review.
The court ultimately grants in part plaintiff’s supplementation requests and adds several Exhibits and the GAO decision to the record, while excluding some affidavits and non-relevant materials.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Exhibits 8-11 may supplement the record	Exhibits 8-11 reveal impeaching information not in the record.	Exhibits are cumulative and not necessary for meaningful review; not required by Grimberg/Axiom standards.	Exhibits 8-10 granted; Exhibit 11 limited (Statesman article allowed).
Whether the GAO decision is part of the record for review	GAO decision provides relevant rationale and should be included.	GAO materials are post hoc and should not expand the agency record beyond what was before the contracting officer.	GAO decision added to the administrative record; court may take judicial notice.
Whether the Danos counterclaim information may supplement	Counterclaim information reveals gaps in the contracting officer’s consideration.	Counterclaim materials were not readily available to the contracting officer and should not be added.	Exhibits 9 and 11 allowed to supplement; Exhibit 10 (Danos counterclaim) recognized as useful for meaningful review.
Whether the three Killeen and Oakley/Sobecki declarations are necessary	Declarations provide impeaching context for espionage-related allegations.	Declarations were created for GAO protest and not available to the contracting officer; not necessary for review.	Declarations 14, 21, 22 stricken; Second Killeen Declaration and November 29 Killeen Declaration limitedly granted for injunctive-relief context.

Axiom Resource Management, Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009) (focus on record supplementation and review limits)
Grimberg v. United States, 185 F.3d 1297 (Fed. Cir. 1999) (contracting officer’s discretion in information gathering)
Savantage Financial Services, Inc. v. United States, 595 F.3d 1282 (Fed. Cir. 2010) (arbitrary and capricious standard; review of agency decisions)
Bannum, Inc. v. United States, 89 Fed.Cl. 184 (Fed. Cl. 2009) (arbitrary and capricious review in bid protests)
Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (disqualifying a contractor for material misrepresentation)
Florida Power & Light Co. v. Lorion, 470 U.S. 729 (Supreme Court 1985) (scope of court review under arbitrary and capricious standard)
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (Supreme Court 1971) (limits on post hoc rationalizations in agency decisions)
RhinoCorps Ltd. Co. v. United States, 87 Fed.Cl. 261 (Fed. Cl. 2009) (limits on introducing new evidence; core record concept)
CrAssociates, Inc. v. United States, 95 F.3d 357 (Fed. Cir. 2010) (administrative record concepts in bid protests)
Totolo/King v. United States, 87 Fed.Cl. 680 (Fed. Cir. 2009) (restraint in supplementation and meaningful review)