OPINION AND ORDER
On August 19, 2009, Plaintiff Bannum, Inc. (“Bannum”) filed a post-award bid protest in this Court. On September 8, 2009, counsel for Bannum filed a motion to supplement the agency’s administrative record. In the bid protest, Bannum contests the award of a contract by the Bureau of Prisons (“BOP”) to Dismas Charities, Inc. (“Dismas”) for the performance of Residential Reentry Center (“RRC”) services in Charleston, West Virginia. An RRC is more commonly known as a “halfway house” for use by prisoners about to be released for return to independent living. Before filing in Court, Bannum had filed two protests of the award to Dismas at the Government Accountability Office (“GAO”).
Bannum seeks to supplement the administrative record with letters and emails relating to cure notices and a show cause notice issued in another Bannum contract for halfway house services in Austin, Texas. The documents Bannum wishes to add to the record comprised Exhibit 2 to Bannum’s November 18, 2008 Comments during the first GAO protest. Further, Bannum included these additional documents as Exhibit 33 in its initial filing before this Court. See Ban-num’s Aug. 19, 2009 Mem. and P. & A. in Supp. of TRO, Prelim, and Permanent Inj. Relief and Declaratory J.
For the reasons stated below, Plaintiffs motion to supplement the administrative record is GRANTED. Plaintiff also sought, in the alternative, to strike Tab 54 of the administrative record. Since the Court grants Plaintiffs motion to supplement the record, the Court does not need to address Plaintiffs proposed alternative request. Accordingly, Tab 54 shall remain in the administrative record.
Background
Bannum seeks the addition of 12 documents to the administrative record in this post-award protest. The documents relate to Bannum’s performance under Contract No. DJB200811, a BOP contract for RRC services in Austin, Texas.
Offerors competing for the Charleston RRC services contract — the subject of Ban-num’s bid protest before the Court — were required to submit their five most relevant contracts as references for BOP’s evaluation. AR 199. Bannum complied with this requirement, but did not include the defaulted Austin contract among the five references in its proposal. Without notice to Bannum, the BOP’s initial Source Selection Authority
On October 6, 2008, Bannum protested the award to Dismas before the GAO. In its initial decision sustaining Bannum’s protest and recommending corrective action, the GAO stated: “[Wjhile we agree with the protestor that the circumstances that led to the termination for default of its Austin contract are not present here, we nonetheless think that it was reasonable for the contracting officer to have considered Bannum’s handling of the situation as showing a lack of management ability....” AR 1966. Pursuant to the GAO’s recommendation, the BOP re-evaluated portions of both Bannum’s and Dismas Charities’ proposals, though the SSA elected not to re-evaluate the past performance factor. AR 2014-15. The BOP again selected Dismas as the awardee and Bannum again protested the award. AR 1723. The GAO issued another decision denying Ban-num’s second protest, but again acknowledged that the SSA’s reliance on the Austin default termination in evaluating Bannum’s past performance was appropriate. AR 2083. In its second decision, the GAO observed that the SSA reasonably concluded from the Austin default termination that Bannum lacked the required managerial ability to perform effectively on the Charleston contract, the subject of the bid protest now before the Court. Id.
Dismas opposes Plaintiffs motion to supplement, arguing that the documents Ban-num offers for inclusion were not considered by the BOP in conducting its evaluation of proposals and they provide no context for this Court in understanding the GAO’s decision to deny Bannum’s protest. See Def.-Intervenor’s Resp. to Pl.’s Mot. to Supplement Admin. R. at 2. The administrative record, however, makes clear that Bannum’s termination for default in Austin is a relevant factor in the BOP’s award analysis. AR 1229-21, 1722-23. Indeed, the documents Bannum seeks to include are referenced in the administrative record in a summary of the Austin termination, and the BOP relied upon this very summary. AR 1768, 2206. The GAO also considered Bannum’s Austin default termination in its own decision assessing the BOP’s award of the Charleston contract to Dismas. Given the GAO’s discussion of the default’s significance to the award decision, it is probable that the GAO considered these documents in reaching its decision. AR 1966.
The Government asserts that Bannum’s requested addition to the record is merely an improper and untimely attempt to challenge the basis of BOP’s termination for default, and that the administrative record is sufficiently complete for this Court to conduct a meaningful review. See Def.’s Opp’n to Ban-num’s Mot. to Supplement Admin. R. at 3, 5. As discussed below, the Court disagrees. In order to review the contract award protested in this case, all information considered relevant by the BOP or the GAO also will be relevant to the Court’s review.
Discussion
“As a general rule, in determining whether an agency’s actions are arbitrary or irrational, the ‘focal point for judicial review [of the agency’s decision] should be the ad
In bid protests, the GAO receives a record of the procurement from the agency. See 4 C.F.R. § 21.3(c), (d) (2009). The Competition in Contracting Act (“CICA”) requires certain agency reports to be included as part of the administrative record before this Court, but CICA does not otherwise limit the content of the administrative record. 31 U.S.C. § 3556 (2006). The GAO, as in this case, may receive additional evidentiary submissions from both the agency and the protestor. See 4 C.F.R. § 21.3(i). Indeed, a protestor may use a GAO protest to submit evidentiary materials that were not presents ed to the agency before it reached a decision on an award. In certain circumstances, documents submitted during the GAO protest, particularly if relevant to the GAO’s findings, might prove useful to the Court in assessing the contract award. See Holloway & Co. v. United States,
The Court recognizes that any supplementation of the administrative record in bid protest actions “ ‘must be extremely limited,’ lest the admission of evidence not considered by the agency below and its consideration by the Court convert the ‘arbitrary and capricious’ standard into effectively de novo review.” Murakami v. United States,
The Court has determined that it is appropriate in this instance to exercise its discretion and add the documents submitted by Bannum to the administrative record. Although the merits of B annum’s protest have yet to be addressed, without an examination of the evidence supporting its position, this Court cannot properly assess “whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion.” Impresa Construzioni Geom. Domenico Garufi v. United States,
In particular, this Court’s rules explicitly provide for the inclusion of the record before the GAO, to the extent it is more extensive, to the administrative record. The Rules of the United States Court of Federal Claims (“RCFC”), Appendix C, ¶ 22, specify that “core documents relevant to a protest case may include, as appropriate,” twenty-one categories of materials, the last of which is the “record of any previous administrative or judicial proceeding relating to the procurement, including the record of any other protest of the procurement.” Id. at ¶ 22(u). Each of the documents proffered by Bannum relates to the protest of the Charleston contract award, which was before the GAO, and therefore, falls into this category. Accordingly, under the Court’s rules, the administrative record should include these documents. Furthermore, the purpose of the rule at RCFC Appendix C, ¶ 22, is to ensure that the Court at least has benefit of the same record that was before the GAO. Materials considered by the GAO should, therefore, also be part of the record reviewed by this Court. See Cubic Applications, Inc. v. the United States,
The documents at issue here, even though they concern a default termination on another contract, are relevant to the current protest because the agency’s SSAs and the GAO relied upon them in assessing Bannum’s past performance and thereby, its ability to perform the Charleston contract. Indeed, the BOP opened the door to the Court’s consideration of the Austin contract. The BOP’s analysis included a summary memorandum that explicitly referenced the documents Bannum asks to include in the administrative record. The “primary focus of the court’s review should be the materials that were before the agency when it made its final decision.” Cubic Applications, Inc. v. United States,
In addition, the Court concludes that, without Bannum’s additional documents, it may not have a complete understanding of the issues before it and would be analyzing Ban-num’s claims in this bid protest in a vacuum. The Court cannot make a reasoned decision without understanding all of the circumstances implicated in the case. The materials proffered by Bannum relate to the BOP’s assessment of Bannum’s past performance, which is relevant to this Court’s analysis of the BOP’s award decision. See Global Computer Enter., Inc. v. United States,
Bannum should be permitted to argue that the circumstances surrounding the terminated Austin contract and the Charleston contract are sufficiently distinct as to render the Austin contract irrelevant as a predictor of future performance. Because the documents Bannum proffers would help the Court in evaluating the reasonableness of the agency’s award, they shall be admitted. In reaching this decision, the Court will not permit Ban-num to use the materials it has proffered to argue the merits of the BOP’s default termination on the Austin contract. Yet, because the BOP has, at a minimum, relied upon a document referencing the materials Bannum now proffers, these materials should be included in any meaningful review by the Court of Bannum’s argument and the BOP’s award decision.
Conclusion
Based upon the forgoing, Plaintiff’s Motion to Supplement the Administrative Record is GRANTED. On or before October 6, 2009, counsel for the parties shall carefully review this opinion for competition-sensitive, proprietary, confidential or other protected information and submit to the Court proposed redactions, if any, before the opinion is released for publication. The Court has prepared the opinion with the intent of disclosing the entire contents to the public. Therefore, any proposed redactions must be well supported with an explanation of the specific reasons and authorities.
IT IS SO ORDERED.
Notes
. Bannum asks for the inclusion of the following documents in the administrative record, all of which relate to its performance on Contract No. DJB200811: (1) Bannum legal counsel’s letter to a BOP contracting officer (November 6, 2006); (2) a Bannum consultant's email to Bannum’s President, John D. Rich, and Bannum's legal counsel, Michael Gordon (November 6, 2006); (3) a Bannum consultant's letter to the City of Austin (September 1, 2006); (4) a project application filed with the City of Austin on behalf of Bannum; (5) a letter from Mr. Rich to BOP contracting officer Annette Jenkins (January 23, 2007); (6) a letter from BOP's Ms. Jenkins to Bannum’s Mr. Rich (January 24, 2007); (7) a letter from Mr. Gordon to Ms. Jenkins, in response to the January 24, 2007 letter (February 2, 2007); (8) an email from Bannum's consultant to Mr. Gordon and Mr. Rich (January 31, 2007); (9) an email from Bannum's consultant to Mr. Gordon and Mr. Rich (February 1, 2007); (10) a letter from Mr. Gordon to BOP's Ms. Jenkins (February 20, 2007); (11) a letter from Mr. Gordon to BOP's Ms. Jenkins (February 23, 2007); and (12) a letter from Mr. Gordon to BOP's Ms. Jenkins (March 2, 2007).