OPINION and ORDER
On December 23, 2008, the National Aeronautics and Space Administration (“NASA”) issued its final award decision in a negotiated procurement for commercial resupply services to the International Space Station (the “ISS-CRS” procurement). NASA awarded contracts to the two intervenors, Space Exploration Technologies Corporation (“Spaee-X”) and Orbital Sciences Corporation (“Orbital”), but not to plaintiff, PlanetS-paee Inc. (“PlanetSpace”). On July 23, 2009, PlanetSpace filed a post-award bid protest in this court, seeking declaratory and injunctive relief. Pending before the court, and the subject of upcoming oral argument, are the parties’ cross-motions for judgment on the administrative record. Also pending, however, are three motions concerning the content
First, defendant has moved to strike three declarations that were attached to, and extensively cited in, plaintiffs motion for judgment on the administrative record. Second, defendant has moved to correct the administrative record, seeking to add two documents relating to NASA’s assessment of the compliance of Orbital’s proposal with the United States Space Transportation Policy (“Space Policy”). Third, plaintiff has moved to supplement the administrative record, seeking to add 151 pages of documents that it received in response to a request for documents, submitted to the Office of Science and Technology Policy (“OSTP”), pursuant to the Freedom of Information Act (“FOIA”).
For the reasons detailed below, (1) defendant’s motion to strike is granted-in-part, and denied-in-part, and (2) defendant’s motion to correct the administrative record is granted. Partly because the court finds the parties’ arguments on admissibility of the FOIA material to be closely intertwined with the merits of plaintiffs protest, the court withholds its decision on plaintiffs motion to supplement the record.
I. The Scope of the Evidentiary Record in a Bid Protest
In a bid protest, the court reviews the challenged agency decision to determine if it was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (cited in 28 U.S.C. § 1491(b)(4)). As a general rule, the “focal point for judicial review [of the challenged agency decision] should be the administrative record already in existence, not some new record made initially with the reviewing court.” Camp v. Pitts,
The conceptual elegance evinced by these fundamental principles of administrative law, as articulated by the Supreme Court in Pitts and Florida Power & Light, masks the practical difficulty of identifying where the “administrative record” ends and where “extra-record” evidence begins. As the court previously observed, the “administrative record” is something of a fiction: an agency’s decision is never based upon a rigid, formal record that is then certified for court review. Cubic Applications, Inc. v. United States,
Accordingly, if the administrative record is equated with “the record the agency presents to the reviewing court,” Florida Power & Light,
The court has often looked to a D.C. Circuit decision, Esch v. Yeutter, identifying specific circumstances, or “exceptions,” under which supplementation of the administrative record is permissible.
Standing apart from evidence supplementing the administrative record, however, are evidentiary submissions that go to the prospective relief sought in this court. The latter relate to an issue wholly within the court’s purview. Ala. Aircraft Indus., Inc. v. United States,
Heeding both the cautionary note of Axiom, as well as the longstanding distinction between evidence respecting relief and evidence offered to supplement the administrative record, the court carefully scrutinizes the materials that defendant has sought to include in, or to strike from, the record in the instant protest.
II. Defendant’s Motion to Strike
To its motion for judgment on the administrative record, plaintiff attached three declarations by (1) Michael Bowker, plaintiffs prospective Chief Operating Officer, Bowker Deck ¶ 4, (2) plaintiffs Chairman and co-founder Chirinjeev Kathuria, Kathuria Deck ¶ 1, and (3) John Michael Lounge, a business development consultant retained by plaintiff to provide expert testimony for this bid protest, Lounge Deck ¶¶ 1, 4. Plaintiff cites to these declarations extensively in its motion for judgment. See Pl.’s Mot. for J. at 2, 6-9, 19, 27-29, 35, 36, 38-40.
Defendant has moved to strike the Bowker and Lounge declarations in their entirety, along with sections III-V of the Kathuria Declaration, arguing that these declarations are “largely dedicated to introducing facts outside the record, and re-arguing the merits of NASA’s contracting decisions.” Def.’s Mot. to Strike at 1. Plaintiff, however, purports to introduce these declarations largely, though not entirely, as evidence relevant to the court’s balancing inquiry requisite to the grant of injunctive relief. See, e.g., Pl.’s Mot. for J. at 38-40; Pl.’s Opp’n to Def.’s Mot. to Strike at 2. Given the length of the declara
A. Lounge Declaration
Plaintiff cites the Lounge declaration once in its motion for judgment on the administrative record, as one of the declarations “addressing the public interest” in granting injunctive relief. Pl.’s Mot. for J. at 39. Plaintiff summarizes the Lounge declaration as demonstrating (1) that “PlanetS-pace’s bid proposal provides NASA with the only launch vehicle ... that has been flight proven ... [and] is the only bid that provided NASA with ‘assured access’ ” to the International Space Station (the “ISS”), and (2) that “awarding a contract to PlanetSpace would ensure that ISS operations could be maintained ... even if Oi’bital or Space-X are unable to meet their mission schedules.” Id. As an initial matter, this very summary belies the Lounge declaration’s relevance to the court’s public interest inquiry. A careful reading of the declaration settles the matter.
The first ten paragraphs of the declaration detail Lounge’s background and experience. Lounge Deck ¶¶ 1-10. Paragraphs 11-12 proffer the basis for Lounge’s opinions, namely, the Space Policy, the ISS-CRS solicitation, and the three proposals submitted by plaintiff and both intervenors. The next eight paragraphs describe background information, either publicly available, or otherwise found in the existing administrative record. Id. ¶¶ 12-20.
The remaining fifteen paragraphs are clearly devoted to attacking the merits of NASA’s award decision. Paragraphs 22-25 appear to be addressed more to NASA’s Source Selection Authority (the “SSA”) than to the court, pointing to the critical nature of the ISS-CRS procurement, id. ¶ 22, reminding the reader of “NASA’s confidence in the reliability” of plaintiffs “proven” launch system, id. ¶ 23, and declaring that, of the three participants in the ISS-CRS procurement, plaintiffs launch vehicle is the only one offering assured access to the ISS, id. ¶ 25. The next five paragraphs, id. ¶¶ 26-30, argue the merits of plaintiffs financing plan, concluding that “PlanetSpace appears to have ample financial resources,” id. ¶ 26. Finally, Lounge defends the strength of plaintiffs subcontracting arrangement, id. ¶¶ 31-34, concluding that “there are no appreciable cost-based performance risks involved in this arrangement,” id. ¶ 34. This last section is clearly offered as counter-argument to the S SA’s determination that plaintiffs contracting arrangement represented a “significant risk” and was a “weakness” in plaintiffs proposal. See AR 5176.
In short, the Lounge declaration is devoted entirely to re-arguing the merits of NASA’s award decision. The declaration is thus prototypical of the kind of extra-record evidence against which the court must guard, lest it “convert the ‘arbitrary and capricious’ standard into effectively de novo review.” Axiom,
B. Bowker Declaration
Plaintiff cites the Bowker declaration extensively in its motion for judgment on the administrative record, including, curiously, sixteen citations in its statement of facts. See Pl.’s Mot. for J. at 6-8. At the conclusion of that motion, plaintiff proffers the entire Bowker declaration as evidence bearing upon the public interest in the grant or denial of injunctive relief. Id. at 40. In its motion to strike, defendant argues that, like the Lounge declaration, the Bowker declaration is “devoted wholly to offering personal opinions and arguments relating to the merits of PlanetSpace’s bid proposal.” Def.’s Mot. to Strike at 6. For the most part, the court agrees with defendant.
The thrust of the Bowker declaration— based variably on fact, opinion, and conjecture — is that, even with a belated contract award, plaintiff could begin performance before either of the two intervenors. Bowker Deck ¶ 12. The remainder of the declaration attempts to support this contention. In doing so, some portions of the declaration provide information and explanation that are relevant to the court’s public interest inquiry. Most of the declaration, however, is either
1.Sections Relevant to the Public Interest Inquiry
Paragraphs 13-14 provide plaintiffs original schedule for resupply missions to the ISS (as submitted in plaintiffs bid proposal), along with a revised schedule that Bowker declares plaintiff could meet in the event of a belated contract-award (should the court grant the injunctive relief sought). Id. ¶¶ 13-14. Paragraphs 20-21 of the declaration identify the “schedule drivers,” i.e., “the steps most relevant to determining when [a] resupply mission to the ISS can take place,” for the first, id. ¶ 20, and all subsequent, id. ¶ 21, missions. The next section of the declaration, under the heading “First Launch Schedule Drivers,” offers Bowker’s explanation for why, given the nature of the various launch and cargo transfer vehicles to be used, plaintiffs first mission could launch according to the revised schedule. Id. ¶¶ 22-27.
Even if the court were to sustain plaintiffs protest, the court may decide that the public interest in timely performance on these critical contracts weighs against the grant of injunctive relief. Indeed, defendant and in-tervenors make precisely this argument in vai’ious briefs in support of them cross-motions for judgment on the administrative record. E.g., Def.’s Reply in Supp. of Def.’s Mot. for J. at 17; Orbital's Reply in Supp. of Orbital’s Mot. for J. 19-20; Space-X’s Mot. for J. at 38. This section of the Bowker declaration is relevant to support plaintiffs response to that argument. Defendant argues that Bowker’s estimates of plaintiffs future performance assume “an extraordinary confluence of events.” Def.’s Mot. to Strike at 7. That, however, goes to the credibility of Bowker’s projections and the court’s assessment of the merits of plaintiffs public-interest argument, not to the relevance of this declaration evidence or its appropriateness to the proffered use. Accordingly, the court finds that paragraphs 13-27 are properly admissible, not as a supplement to the administrative record, but as evidence relevant to the prospective relief being sought in this court.
2. Sections Wholly Irrelevant
As noted above, plaintiff cites the Bowker declaration in toto, in the last paragraph of its motion for judgment, as evidence relevant to the court’s inquiry into the public interest in granting injunctive relief. Pl.’s Mot. for J. at 40. However, when pressed, by defendant’s motion to strike, plaintiff cites only paragraphs 15-27 and 53-79 for this purpose. Pl.’s Opp’n to Def.’s Mot. to Strike at 14. In the court’s view, this abrogates plaintiffs perfunctory citation to the entire declaration in its motion for judgment. In effect, this leaves plaintiffs motions and briefs devoid of any citation to paragraphs 28-52 of the declaration. The only exception is a gratuitous citation, to a single paragraph, offered to support publicly known facts, thus leaving the cited paragraph without any probative value. See Pl.’s Mot. for J. at 8 (citing Bowker Deel. ¶ 30). Because plaintiff does not cite this section of the Bowker declaration as evidence pertaining to the public interest or otherwise rely upon it to support any argument or allegation, the court need not examine its substance: it is irrelevant. Accordingly, paragraphs 28-52 of the Bowker declaration are stricken.
3. Sections Going to the Merits of NASA’s Award Decision
The remainder of the Bowker declaration falls under the heading “Space-X and Orbital Sciences Corporation are Unlikely to Provide Resupply to the ISS Before PlanetS-pace Can Do So.” Bowker Deck ¶¶ 53-79. This heading is so problematic that the court is tempted to declare the inadmissibility of this section to be self-evident. In the paragraphs that follow this heading, Bowker speculates about the likely future delays in performance by Space-X, id. ¶¶ 55-70, and Orbital, id. ¶¶ 71-79. Bowker begins this section with the conclusion that “the current ISS CRS contractors [Orbital and Space-X] are likely to miss them milestones as proposed on the ISS CRS.” Id. ¶ 54.
Bowker bases his conclusion, in part, on delays in performance by the two contractors
There are two problems with this section of the Bowker declaration, and with plaintiffs attempt to proffer it as evidence bearing upon prospective relief. First, it is far too speculative.
Before concluding that this section of the Bowker declaration should be stricken from the record, however, the court needs to address the other purposes for which plaintiff cites several of the paragraphs therein.
First, as noted above, plaintiff cites to the Bowker declaration sixteen times in its statement of facts. See PL’s Mot. for J. at 6-8. Some of these citations duplicate citations to the record. E.g., id. at 7 (citing both AR 29281 and Bowker Deck ¶ 75). In other instances, plaintiff cites to statements in the declaration that, in turn, cite to other authority as the basis for the proffered fact. E.g., id. at 6 (citing Bowker Deck ¶¶ 55, 68, which, in turn, cite to GAO reports and publicly accessible NASA documents). The court need not recount other specific examples: all citations in the statement of facts that are made to this section (¶¶ 53-79) of the Bowker declaration go to facts that are already established by the administrative record, are publicly known, or are otherwise not in contention. The court cannot permit plaintiff to use these gratuitous citations as a pretext to gain the admission of declaration evidence that is otherwise inadmissible, and the sole use of which is impermissibly to re-argue the merits of NASA’s award decision.
Second, plaintiff cites paragraphs 75-76 of the Bowker declaration to support its contentions concerning the foreign composition of the launch vehicle (the Taurus II) proposed to be used by Orbital. Pl.’s Mot. for J. at 27-29. Plaintiff argues that these paragraphs are properly admissible as evidence of a factor improperly ignored by NASA in reaching its award decision. PL’s Opp’n to Def.’s Mot. to Strike at 7. Plaintiff posits this as one of the Esch exceptions, permitting supplementation of the administrative record, that is still viable post-Axiom. Id. (citing Totolo/King v. United States,
Because paragraphs 53-79 of the Bowker declaration have no bearing upon the public interest but go primarily to arguing the merits of NASA’s award decision, and because plaintiffs other proffered uses for these paragraphs cannot support their admissibility, they are stricken. Because they largely summarize or allude to the assertions made in this section of the declaration, paragraphs II-12 are also stricken.
In summary, paragraphs 11-12 and 28-79 of the Bowker declaration are stricken from the record. Admitted into evidence are paragraphs 1-10, which describe Bowker’s background and experience, and paragraphs 13-27, which the court deems sufficiently relevant to its consideration of the public interest in the grant or denial of injunctive relief.
C. Kathuria Declaration
Defendant has moved to strike sections III-V (¶¶ 26-37) of the Kathuria declaration. Def.’s Mot. to Strike at 1. The admission of sections I, II (¶¶ 1-25) is unopposed.
1. Section III
Section III of the declaration provides Kathuria’s calculation of the price difference between the contract proposed by plaintiff and that proposed by, and ultimately awarded to, Orbital. Kathuria Deck ¶¶ 26-30. Defendant argues that this section represents no more than Kathuria’s mere “opinion” as to the magnitude of the price differ-enee, Def.’s Mot. to Strike at 9, that plaintiff uses it to argue the merits of its bid protest, id., and that it is otherwise “irrelevant,” Def.’s Reply in Supp. of Def.’s Mot. to Strike at 9. Plaintiff counters that deriving the price difference between plaintiffs and Orbital’s proposals is a “technical matter,” and that this section of the declaration is thus provided as a permissible “aid to the court.” Pl.’s Opp’n to Def.’s Mot. to Strike at 5. Plaintiff supports the admissibility of this section under the “rule” allowing evidence “ ‘useful in explaining the filed administrative record.’ ” Id. at 6 (quoting Career Training Concepts, Inc. v. United States,
The court agrees with plaintiff that there is enough technical detail involved in the calculation of the price difference for this section to be useful (though the court disagrees that any “rule” permits its admissibility). The court also agrees that the price difference is relevant to Count II of plaintiffs complaint, which alleges that NASA’s SSA failed to make the requisite trade-off analysis, between price and mission suitability, in comparing plaintiffs and Orbital’s proposals. Id. at 5; see Compl. ¶¶ 62-70. However, although the exact difference in price is a point of contention, see Orbital’s Reply in Supp. of Orbital’s Mot. for J. at 9, the fact that plaintiffs proposal was less expensive than Orbital’s is not, see Orbital’s Mot. for J. at 17-18. Therefore, Kathuria’s estimate of the price difference seems relevant less to the SSA’s purported failure to conduct a trade-off analysis than to the correctness of that analysis; this latter use would be impermissible. Moreover, plaintiff concedes that the price difference “can be derived from ... portions of the administrative record.” Pl.’s Opp’n to Def.’s Mot. to Strike at 5 (citing AR 6171-78, 6349, 10,966-71). Accordingly, these paragraphs are duplicative of material in the existing record, and their omission would not “frustrate effective judicial review.” See Axiom
2. Section IV
In section IV (¶¶ 31-35) of the declaration, Kathuria provides another calculation, this time estimating the “maximum amount of money that could have been spent by NASA on the two contracts [to Orbital and Space-X] to date.” Kathuria Decl. ¶ 31. In support of its argument that the balance of hardships weighs in favor of granting injunctive relief, plaintiff cites section IV of the Kathuria declaration as evidence that the government has thus far expended limited funds under its contract obligations to Orbital and Space-X. Pl.’s Mot. for J. at 38 (citing Kathuria Decl. ¶ 35); see also, Pl.’s Opp’n to Def.’s Mot. to Strike at 11-12. Defendant’s basis for its motion to strike this section of the Kathuria declaration seems limited to its assertion that Kathuria’s estimate is speculative. Def.’s Mot. to Strike, at 9; Def.’s Reply in Supp. of Def.’s Mot. to Strike at 9. However, Kathuria does not speculate as to the amount that NASA has actually paid, but offers a calculation of the “maximum amount of money” that NASA could have paid, to date. Kathuria Decl. ¶ 35 (emphasis added). The court finds this calculation both useful and relevant to its inquiry as to the balance of hardships among the parties, if the court were to enjoin NASA to re-procure the ISS-CRS contracts, conceivably terminating its contract with Orbital and losing the funds expended to date. Accordingly, paragraphs 31-35 of the Kathuria declaration are properly admissible, not as a supplement to the administrative record, but as evidence relevant to the prospective relief being sought in this court.
3. Section V
In the bid-protest context, a showing of “prejudice” requires proof that there is “a substantial chance [that plaintiff] would have received the contract award but for [the agency’s] errors in the bid process.” Bannum, Inc. v. United States,
Whether mere musing or not, this section of the declaration adds nothing to the record. Paragraph 36 simply states the regulatory requirement for referral to SBA, something for which the court need not look to Kathuria as authority. Paragraph 37 cites background statistics concerning the frequency with which SBA overturns a federal agency’s determination of non-responsibility. Kathuria Decl. ¶ 37. Regardless of the accuracy of the statistics cited, they say little about SBA’s likely responsibility determination in this specific instance. More importantly, defendant all but concedes prejudice as to Count I. Def.’s Mot. for J. at 45. Accordingly, paragraphs 36-37 of the declaration are stricken as irrelevant.
III. Defendant’s Motion to Correct the Administrative Record
The Space Policy requires that “United States government payloads shall be launched on space launch vehicles manufactured in the United States, unless exempted by the Director of the Office of Science and Technology Policy, in consultation with the Assistant to the President for National Security Affairs.”
The first document (Exhibit 1) is “a one-page summary of the foreign content of Orbital’s cargo vehicle,” which had been sent as an attachment to an email already in the record, id. at 2; admission of this document is unopposed, Pl.’s Opp’n to Def.’s Mot. to Correct at 1.
The second document (Exhibit 2) is “an inter-agency memorandum that memorializes the Office of Science and Technology Policy’s determination with respect to the Taurus II vehicle’s eligibility to launch United States payloads without additional exemptions or waivers.” Def.’s Mot. to Correct at 2. Exhibit 2 (the “OSTP memorandum”) was generated in connection with a 2007 Commercial Orbital Transportation Services (“COTS”) procurement. Pl.’s Opp’n to Def.’s Mot. to Correct at 3. Defendant asserts that the OSTP memorandum “directly informed” NASA’s consideration of whether Orbital’s launch vehicle complied with the Space Policy, Def.’s Reply in Supp. of Def.’s Mot. to Correct, at 2, and “contributed to the Source Selection Authority’s procurement decision,” id. at 3, in the ISS-CRS procurement.
In its “conditional opposition,” plaintiff asks the court to deny the admission of the OSTP memorandum, “unless [defendant] is required also to supplement the record with other essential documents relevant to NASA’s consideration of the foreign content of the Taurus II during the COTS competition.” Pl.’s Opp’n to Def.’s Mot. to Correct at 1. Plaintiff argues that the OSTP memorandum, by itself, “‘skew[s] the record in [defendant’s] favor by excluding pertinent ... information.’ ” Id. at 2 (quoting Fund for Animals v. Williams,
Plaintiffs “conditional opposition” is a de facto motion to supplement the record, and an inappropriate response to defendant’s motion. More importantly, plaintiff does not contest any of defendant’s assertions that NASA’s SSA relied upon the OSTP memorandum, along with the conclusions memorialized therein, in reaching its award decision. Indeed, plaintiff explicitly cites this reliance as one of the unlawful agency errors supporting plaintiffs bid protest and claim for relief. Pl.’s Reply in Supp. of Pl.’s Mot. for J. at 17 (citing to the record already before the court, at AR 6316).
Because the OSTP memorandum was directly relied upon by NASA to reach its source selection decision in the ISS-CRS procurement, it is properly among the “core documents” of the administrative record. Rules of the Court of Federal Claims, App. C, ¶ 22(o). Accordingly, defendant’s motion to correct the administrative record is granted; Exhibits 1 and 2 are hereby admitted.
IV. Conclusion
For the foregoing reasons, (1) defendant’s motion to correct the administrative record is granted, and (2) defendant’s motion to strike is granted-in-part, and denied-in-part, whereby (a) the Lounge declaration is stricken in its entirety, (b) paragraphs 11-12, 28-79 of the Bowker declaration are stricken, but paragraphs 1-10, 13-27 are admitted, and (c) paragraphs 26-30, 36-37 of the Kathuria declaration are stricken, but paragraphs 1-25, 31-35 are admitted.
IT IS SO ORDERED.
Notes
. The court notes again defendant's argument that the early part of Bowlcer's declaration, concerning plaintiff’s ability to meet the revised schedule proffered in paragraph 14, is also highly speculative. Def.'s Mot. to Strike at 7 (arguing that "Bowker’s estimates of PlanetSpace’s future performance assume an extraordinary confluence of events,” and "are not realistically moored to PlanetSpace's own bona fides."). The court is sympathetic to defendant's argument. However, because Bowker is plaintiffs prospective Chief Operating Officer, presumably possessing some familiarity with plaintiff's inner workings, his projections concerning PlanetSpace’s future performance are admittedly far less speculative than his projections concerning the performance of competing businesses to which he has no ties.
. See http://www.ostp .gov/galleries/Issues/Space _Transportation_Policy05.pdf, at p. 7.