Gallup, Inc. v. United States
131 Fed. Cl. 544
| Fed. Cl. | 2017Background
- USSOCOM issued an RFI (May 31, 2016) to assess whether small businesses could perform GRAP work while complying with FAR 52.219-14 (Limitations on Subcontracting).
- A Market Analysis in the Administrative Record included an undated Memorandum for Record (indexed as June 24, 2016) and an enclosure chart from June 24, 2016 summarizing RFI responses. The chart showed only three small businesses affirmatively addressing the LOS clause.
- The Memorandum for Record stated that a majority of respondents addressed the LOS clause and concluded the acquisition would be processed as a small business set-aside; the Memorandum was signed by Contracting Officer Julia DeLoach.
- Gallup (not a small business) filed a pre-award bid protest challenging the rationality of the set-aside decision. The Government filed the Administrative Record and later took corrective action to cancel the set-aside procurement.
- After briefing, the Government disclosed the Memorandum for Record had actually been created on December 15, 2016 (after the set-aside decision and after Gallup’s pre-filing notice), i.e., backdated in the record; Ms. DeLoach testified she prepared it then to ‘‘fix’’ an incomplete record.
- The court found the memorandum was misleading, contemplated sanctions under RCFC 11, and the parties agreed USSOCOM would pay Gallup’s fees and implement ethics/record-preparation training; formal sanctions were not imposed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Administrative Record accurately reflected agency decisionmaking for the small-business set-aside | The RFI responses did not show small businesses could satisfy GRAP and FAR 52.219-14 simultaneously; the record was inaccurate and misleading | USSOCOM relied on its evaluation and later corrected the procurement; the record as filed contained a Market Analysis and memorandum | Court found the Memorandum was created after the decision and was misleading; the record was inaccurate and agency conceded misconduct |
| Whether creating/backdating a post-decision memorandum warrants sanctions under RCFC 11 | Sanctions appropriate for deception and costs caused by an inaccurate record | Government agreed sanctions appropriate and negotiated fee payment and remedial steps | Court contemplated sanctions under RCFC 11(b)(3) but accepted the parties’ settlement (fees + corrective measures) and declined to impose formal sanctions |
| Whether the Memorandum was the basis for the set-aside decision | Memorandum claimed it supported set-aside and majority addressed LOS clause | Government later admitted the memorandum post-dated the decision and could not have supported it | Court concluded the memorandum could not have been the basis and was misleading to the court and record |
| Remedies required to address agency misconduct in administrative record creation | Plaintiff sought fees and corrective action; deterrence of future misconduct | Government agreed to pay fees, implement guidance and training on record accuracy | Parties agreed to fee payment and training; court required status report and admonished agency about record integrity |
Key Cases Cited
- Jimenez v. Madison Area Tech. Coll., 321 F.3d 652 (7th Cir. 2003) (upholding sanctions for presenting manufactured documents)
- Gonzales v. Trinity Marine Grp., Inc., 117 F.3d 894 (5th Cir. 1997) (courts may sanction fabrication of evidence under inherent powers)
- Pope v. Fed. Express Corp., 974 F.2d 982 (8th Cir. 1992) (upholding sanctions for producing manufactured documents)
- Coastal Environmental Group, Inc. v. United States, 118 Fed. Cl. 15 (2014) (agency official backdated record; court imposed fees, costs, and fine)