Terry v. United States
96 Fed. Cl. 156
Fed. Cl.2010Background
- Plaintiff Joyce Terry, d/b/a Shirt Shack, sues a post-award bid protest against AAFES for allegedly unlawful concession contract award at Fort Benning and seeks CDA relief.
- Plaintiff alleges the award to T-Shirt House did not satisfy solicitation requirements, including equipment ownership claims.
- Plaintiff protested the award and later moved to supplement the administrative record with timing, equipment, and other extra-record evidence.
- AAFES denied the protest and moved to dismiss; the court previously granted jurisdiction to review the protest, and now denies supplementation.
- The court finds the agency record sufficient for meaningful review and denies the motion to supplement.
- The decision is filed under seal with directions for redactions to be proposed and a joint status report due.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is supplementation of the administrative record warranted? | Plaintiff argues extra-record evidence is needed to verify bid dates and equipment. | Defendant argues the record is sufficient and extra-record evidence is unnecessary. | No; supplementation denied. |
| Did the plaintiff show bias or bad faith by the contracting officer to justify supplementation? | Plaintiff asserts potential bias and bad faith requiring discovery. | No pled bad faith by the contracting officer; evidence insufficient. | No; supplementation denied. |
| Would added evidence about T-Shirt House's equipment ownership aid meaningful review? | Evidence would prove eligibility and improper advantage. | Equipment ownership at award time is not required; record controls. | No; supplementation denied. |
| Do bid-date timelines justify supplementation to ensure proper ordering of submissions? | Dates crucial to show improper influence on bidding. | Chronology already discernible from the record. | No; supplementation denied. |
Key Cases Cited
- Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009) (limits on supplementation; focus on meaningful review; post-Axiom context)
- Es ch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) (Es ch exceptions; caution on broad use for supplementation)
- Blue & Gold Fleet, LP v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (necessity for understanding issues; limited supplementation)
- Mike Hooks, Inc. v. United States, 39 Fed.Cl. 147 (Fed. Cl. 1997) (technical issues may justify supplementation when needed for understanding)
- PlanetSpace, Inc. v. United States, 90 F.3d 1 (Fed. Cl. 2009) (context for ongoing questions about Esch-like exceptions post-Axiom)
- C.C.L. Serv. Corp. v. United States, 48 F.1. 113 (Fed. Cl. 2000) (record completeness and lacunae standards in supplementation)
- Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) (APA standard of review guidance; focus on record before court)
- Al Ghanim Combined Group Co. Gen. Trad. & Cont. W.L.L. v. United States, 56 F.3d 502 (Fed. Cir. 2003) (recognition of discretionary supplementation within bounds)
- Murakami v. United States, 46 F. Cl. 731 (Fed. Cir. 2000) (necessity-based exceptions to supplementation)
- Beta Analytics Int’l, Inc. v. United States, 61 F. Supp. 2d 223 (Fed. Cl. 2004) (threshold showing for discovery in bad-faith claims)