East West, Inc. v. United States
100 Fed. Cl. 53
Fed. Cl.2011Background
- East West, Inc. challenges NIH's exclusion of its bid from the competitive range for custodial services.
- East West previously pursued related protests before GAO, resulting in corrective actions and later this court review.
- Plaintiff sought to supplement the administrative record with Mr. Steven Duong’s declaration, which discusses agency communications and East West’s staffing responses.
- NIH communications allegedly signaled East West to reduce housekeeping staff; East West claims these communications caused competitive prejudice.
- The court must decide whether to add the declaration to the administrative record and how to address potential prejudice evidence in court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Duong declaration should be added to the administrative record. | Duong clarifies agency communications and prejudice. | Declaration is post hoc and not before the agency; not needed for review. | DENIED |
| Whether the declaration may be used to prove prejudice in the court record. | Declaration shows prejudicial reliance on misleading agency communications. | Prejudice evidence belongs in court record, not AR; burden on plaintiff. | GRANTED |
| Whether references to Duong's declaration in East West's merits brief should be struck. | DENIED |
Key Cases Cited
- Gentex Corp. v. United States, 58 Fed.Cl. 644 (Fed. Cir. 2009) (prejudice evidence and supplementation concepts in bid protests)
- Hunt Bldg. Co. v. United States, 61 Fed.Cl. 268 (2004) (affirming supplementation for prejudice signals in some contexts)
- Axiom Resource Mgmt., Inc. v. United States, 564 F.3d 1374 (Fed.Cir. 2009) (administrative record scope and APA review standard)
- Overton Park, 401 U.S. 402 (1971) (APA review and administrative record basis for judicial review)
- Data General Corp. v. Johnson, 78 F.3d 1556 (Fed.Cir. 1996) (prejudice and record development in bid protests context)
- PlanetSpace, Inc. v. United States, 90 Fed.Cl. 1 (2009) (court record may contain material outside AR for prejudice/relief questions)
- AshBritt, Inc. v. United States, 87 Fed.Cl. 344 (2009) (court record considerations for prejudice and relief in bid protests)
- Mori Assocs., Inc. v. United States, 98 Fed.Cl. 572 (2011) (supplementing procurement records where ignored information is relevant)
- Tauri Group, LLC v. United States, 99 Fed.Cl. 475 (2011) (post-decision record supplementation principles)