Joint Venture of Comint Systems Corp. v. United States
100 Fed. Cl. 159
Fed. Cl.2011Background
- Consolidated bid protests allege the WHS NIEITS procurement was flawed and the agency record incomplete.
- Plaintiffs seek to complete the agency-assembled record with materials considered during procurement, not new evidence.
- Amendment 5 altered Task Orders 1 and 2 requirements, and some challenged materials relate to Amendment 5 and timeliness issues.
- Defendant and intervenors oppose inclusion of certain materials, arguing lack of reliance, immateriality, or untimeliness.
- Court concludes the record is incomplete and orders completion of the NIEITS record, with carve-outs for certain internal deliberative materials related to Amendment 5.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the record is incomplete and must be completed | NetServices contends key WHS materials are missing | Record contains final evaluations and decision memos relied on by the WHS | Yes; the record must be completed for meaningful review |
| Whether internal deliberative materials about Amendment 5 may be excluded | Some materials, though internal, relate to decision-making and should be included | Deliberative materials are generally excluded and Amendment 5 issues are untimely | Internal deliberative materials about Amendment 5 may be excluded; others may be included |
| Whether materials related to Amendment 5 are timely protests | Timeliness is separate from record completeness | Amendment 5 protests are untimely and should be dismissed | Untimeliness of Amendment 5 protests does not bar record completion; motions to dismiss on timeliness denied as moot |
| Standard for supplementation vs completion of the record | Effort is to complete agency materials considered during procurement | Limit supplementation to avoid de novo review; focus on agency record | Record should be completed with relevant agency materials; supplementation limited to avoid new evidence |
Key Cases Cited
- Axiom Resource Management, Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009) (limits on supplementation; focus on meaningful review)
- Cubic Applications, Inc. v. United States, 37 F. Cl. 345 (2000s) (flexible review; supplementation must be limited to avoid de novo review)
- PlanetSpace Inc. v. United States, 90 F.3d 1 (Fed. Cl. 2009) (administrative record completeness and supplementation considerations)
- Volpe, 401 U.S. 402 (1971) (administrative record review standard)
- Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) (Esch exceptions to record completeness debated)
- Ad Hoc Metals Coalition v. Whitman, 227 F. Supp. 2d 134 (D.D.C. 2002) (completeness and review of agency action)
- Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) (APA standards and review of agency action)