Northeast Military Sales, Inc. v. United States
100 Fed. Cl. 96
Fed. Cl.2011Background
- Post-award bid protest by Northeast Military Sales challenging DeCA's award to Nayyar-sons under Solicitation HDEC02-10-R-0005.
- Plaintiff seeks to supplement the Administrative Record with documents DeCA looked at during evaluation and other in-house information.
- DeCA contends supplementation must meet a higher standard than mere relevancy and that many documents are not necessary for meaningful judicial review.
- Court applies the AR supplementation framework from Axiom and related cases to determine if additional materials are required to permit meaningful review.
- Court grants plaintiff’s motion to supplement to include certain in-house information that existed at the time of initial evaluation, including specific items discussed below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AR must include all in-house information regardless of timing | Solicitation requires consideration of all in-house information. | Supplementation should be limited to relevant, existing material; not every in-house item is necessary. | AR must include in-house information that existed at time of evaluation to permit meaningful review. |
| Whether IG Reports should be included in AR | IG Reports contradict DeCA's assertions and are relevant to past performance. | Some IG Reports may not have existed or been considered at the time; not required for AR. | IG Reports existing at time of evaluation must be included if bearing on past performance. |
| Whether Deli-Bakery Report should be included | Deli-Bakery Report demonstrates Nayyar's failures; must be in AR under Acrow/Axiom. | Deli-Bakery Report did not exist during initial evaluation; not prejudicial to NEMS. | Not included because it did not exist at initial evaluation. |
| Whether Core Items Price Surveys should be included | Surveys show Nayyar’s purchase/savings performance and may be in-house information. | CO did not consider them; including them would complicate AR; may include similar information for NEMS. | Core Items Price Surveys may be included as potentially relevant in-house information. |
| Whether DeCA Self-Inspection Checklists should be included | Checklists show repeated food-safety violations and are in-house information for reevaluation. | Some checklists duplicative or not in existence at initial evaluation; may be excluded. | Checklists existing at time of initial evaluation must be included in AR. |
Key Cases Cited
- Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009) (supplementation only to preserve meaningful judicial review)
- Camp v. Pitts, 411 U.S. 138 (1973) (limits judicial review to the administrative record)
- Emerald Coast Finest Produce Co. v. United States, 76 Fed.Cl. 445 (2007) (review focused on AR to avoid de novo proceedings)
- Acrow Corp. of Am. v. United States, 96 Fed.Cl. 270 (2010) (permits supplementation of AR under proper showing)