RULING ON PLAINTIFF’S MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD
Before the court in this post-award bid protest is plaintiffs motion to supplement the administrative record (“motion to supplement”). In this case, plaintiff Joyce Terry, doing business as the Shirt Shack, asserts that the Army and Air Force Exchange Service (“AAFES”) unlawfully awarded a contract for the manufacture of T-shirts as part of a concession operation at Fort Benning in Columbus, Georgia to a vendor that plaintiff alleges did not satisfy certain requirements set forth in the solicitation. Plaintiff also asserts a claim under the Contract Disputes Act (“CDA”), 41 U.S.C. §§ 601-613 (2006), contending that the AAFES violated the law with respect to a contract under which she is currently performing as a kiosk operator at Fort Benning. The government has moved, pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”), to dismiss the complaint and opposes plaintiffs motion to supplement. For the reasons discussed below, plaintiff’s motion to supplement is denied.
I. BACKGROUND
A. The Solicitation
On October 6, 2008, the AAFES issued a solicitation for proposals related to the operation of a T-shirt concession at Fort Benning commencing March 22, 2009, for a period of no greater than five years. Am. Compl. ¶ 5; AR 33-95. Gross monthly sales from the concession operation were estimated at $45,000 per month. AR 37. Offerors were advised to contact the contracting officer, Kay K. Dunbar, with any questions about the solicitation. Id. at 18, 35. The solicitation provided that the contracting officer was the only individual authorized to “waive or change contract terms [and] impose additional contract requirements....” Id. at 40.
Plaintiff began selling T-shirts with her husband in 2000 and worked as an AAFES concessionaire for over fourteen years. Id. at 198. At the time she participated in the instant procurement, plaintiff operated a separate T-shirt kiosk at Fort Benning. The T-shirts were printed off-post by her husband. Id.; Am. Compl. ¶¶ 33-35. To participate in this procurement, plaintiff “purchased a machine known as a Garment Printer which [would] let [her] do all [her] shirts at the point of sale, as well as do a customer[’s] custom design requests on the spot.” AR 198. She therefore believed that she possessed “all the necessary equipment^] such as [a] Garment Printer, heat press, cap press, and mug press,” that were purportedly required in order to participate in the procurement. Id.
B. The Procurement Process
The AAFES received proposals from plaintiff on October 29, 2008, id. at 123; cf. id. at 180, 189-90 (indicating that plaintiff signed her proposal on October 28, 2008), T-Shirt House, the incumbent concessionaire, on November 5, 2008, id. at 156, and a third company, L & W Creations, on November 6, 2008, id. at 123-24; cf. id. at 201, 206-07 (indicating that L & W Creations signed its proposal on November 5, 2008). As part of her proposal, plaintiff listed a fee to the AAFES of thirty percent, which was based upon total adjusted gross sales, for a contract period of five years. Am. Compl. Ex. 1. By comparison, T-Shirt House proposed a thirty-one percent fee and L & W Creations proposed a twenty-four percent fee. AR 124. Thereafter, the AAFES requested final statements and other documentation from L & W Creations, which ultimately never responded to the requests. Id. Consequently, L & W Creations “was found non-responsive.” Id.
On November 20, 2008, Ms. Dunbar requested a “best and final offer” from plaintiff and T-Shirt House, the two remaining offer-ors. Id. at 124, 138. Ms. Dunbar apprised plaintiff of various discrepancies in her proposal, and plaintiff, in response, submitted a modified proposal on November 21, 2008. Id. at 137. In her modified proposal, plaintiff increased her fee to the AAFES from thirty percent to thirty-seven percent. Am. Compl. ¶ 12; Am. Compl. Ex. 2. T-Shirt House modified its proposal on November 22, 2008, increasing its proposed fee to 33.1 percent. AR 124,172.
Ms. Dunbar determined that the best and final offers submitted by plaintiff and T-Shirt House contained fees that were “too high compared to the Region and Conus fee averages,” which were 18.14 percent and 20.06 percent, respectively. Id. at 124. Indeed, the record reflects Ms. Dunbar’s assessment that, if either bid was accepted, each offeror would be “operating in the red.” Id. at 156. On December 2, 2008, Ms. Dunbar sent electronic-mail communications to
On December 9,2008, plaintiff, who alleges that furnishing another revised proposal violated the terms of the solicitation, Am. Compl. ¶ 13, submitted an MPOS, which indicated a net profit of $1,536 per month, AR 125, 130. She also reduced her fee to the AAFES from thirty-seven percent to twenty-seven percent. Id. at 125. On December 11, 2008, T-Shirt House submitted its MPOS, which indicated a net profit of $2,587.50 per month, and revised its fee to the AAFES from 33.1 percent to 27.5 percent. Id. at 168-69; cf. id. at 163 (containing a December 15, 2008 electronic-mail communication from T-Shirt House submitting a revised fee to the AAFES of 27.25 percent). Also on December 9, 2008, Ms. Dunbar contacted Victoria A. Roldan, the services business manager at Fort Benning, to confirm the accuracy of the $45,000 monthly gross sales estimate contained in the solicitation. Id. at 149-50. Ms. Dunbar apprised Ms. Roldan that offerors questioned the estimate, and “[i]f the sales were over inflated ..., then it will make it very difficult for the offeror[s] to give a reasonable fee percentage.” Id. at 150. Ms. Roldan confirmed that the sales estimate was not overinflated. Id. at 149.
Thereafter, the AAFES deemed the revised proposals submitted by plaintiff and T-Shirt House to be both fair and reasonable. Id. at 125. T-Shirt House remained the highest fee offeror, and its 27.25 percent fee to the AAFES was 2.25 percentage points higher than its then-current contract with the AAFES and 0.25 percentage points higher than the fee contained in plaintiffs proposal. Id. at 156. On December 18, 2008, the AAFES awarded the contract to T-Shirt House because it provided the AAFES with the “best advantage in accordance with the competitive evaluation criteria set forth in the solicitation.” Id. at 179, 213-14.
C. Plaintiffs Protest
Plaintiff contends that her company was the only offeror that owned an Anajet Garment Printer, a heat transfer press and transfer machine that she asserts was required equipment under the solicitation. Am. Compl. ¶¶ 12, 14-15. According to plaintiff, Ms. Roldan informed her that she was required to own the heat transfer press and transfer machine in order to have her bid considered. Id. ¶ 18. Plaintiff, in reliance upon Ms. Roldan’s oral statements, purchased the equipment, which cost in excess of $10,000. Id. ¶ 19. On December 22, 2008, plaintiff protested the AAFES award of the concessionaire contract to T-Shirt House. Id. ¶ 16; AR 355,359. According to plaintiff,
[t]he contract stated you MUST have the equipment to make a t-shirt on the premises. The T-Shirt House doesn’t have the equipment on the premises and has not for the last five years.... [H]ow did they answer the question about the equipment? I HAVE THE EQUIPMENT. My bid was the highest until you asked me to change my bid. I feel like this was fixed from the beginning for the T-SHIRT HOUSE to be awarded the Contract.
AR 359. Additionally, plaintiff alleged bias in the procurement process:
The statement [related to owning an Anajet Garment Printer] was made by the person who has the sunglass stand at Fort Benning that VICK[Y] [Roldan] would take care of Jill [Pellegrini] at the T-Shirt House[,] and Angela and Jill at the sun-glass stand [socialize with VTCK[Y] after hours. Isn’t this a conflict of interest? You need to cheek into all of this.
Id.
In a written response dated December 30, 2008, Ms. Dunbar denied plaintiffs protest. Id. at 355-56. First, Ms. Dunbar indicated
I did not ask you to change your bid; • I requested a best and final fee offer [from] all of the offerors. In return[,] two offer-ors came back with what appeared to be unreasonably high fees, so I requested that each offeror fill out a[n MPOS] in order to see if the contractor could operate at such a high fee. The offerors came back with a reasonable fee percentage based on the MPOS and the contract was awarded to the highest fee offeror.
Id. Finally, Ms. Dunbar rejected plaintiffs allegations of bias:
While either or both of [your] allegations may or may not be true, neither could or did impact the award decision. Ms. Rol-dan had no influence over or input into the decision to award the contract; all such decisions are made by contracting officers at [¶] AAFES [in Dallas, Texas] based upon the proposals submitted by the offer-ors.
Id.
D. Procedural History
Approximately seven months after Ms. Dunbar denied her protest, plaintiff filed a complaint in the United States Court of Federal Claims (“Court of Federal Claims”). Plaintiff requests, among other things, that the court set aside the contract award to T-Shirt House, require the AAFES to reevaluate her proposal, and direct the AAFES to award her the contract. Am. Compl. Wherefore ¶¶ 1-2. Following briefing, the court heard argument on defendant’s motion to dismiss and plaintiffs motion to supplement. In its November 30, 2010 decision, the court granted in part and denied in part defendant’s motion to dismiss, concluding that it possesses jurisdiction over plaintiffs bid protest. Thus, the court turns to plaintiffs motion to supplement the administrative record.
II. DISCUSSION
According to plaintiff, supplementation of the administrative record is necessary in order “to adequately confirm the dates of the bids, to confirm or deny equipment, and to establish the detailed, unique features and benefits of the equipment required in the solicitation.” Pl.’s Mot. Supplement Administrative R. (“Pl.’s Mot.”) 2. With respect to the submission dates of the various revised proposals, plaintiff argues that she was asked to rebid and the record does not reflect the correct order in which the proposals were received by the AAFES. According to plaintiff, the “dates of these bids are extremely crucial, as it goes to the underlying heart of wrongfully influencing the bidding process by the contracting officer.” Id. Thus, plaintiff seeks to supplement the record with an affidavit, together with postage receipts, that she believes would establish a proper time line of the offerors’ submission of their various revised fee proposals. Resp. Def.’s Opp’n Supplement Administrative R. (“Pl.’s Reply”) 5. Nevertheless, plaintiff did not append the proposed affidavits or copies of any postal receipts to her motion to supplement.
Plaintiff also argues that the administrative record does not confirm that T-Shirt House owned or had on the premises an Anajet Garment Printer, equipment that plaintiff asserts the awardee was required to own. According to plaintiff, the solicitation required that the awardee own specific garment printing equipment on the premises, and she claims that Ms. Roldan advised her that she must purchase the equipment.
Defendant characterizes plaintiffs motion as seeking the incorporation of materials that “support an unsubstantiated claim of bad faith by the contracting officer,” despite the fact that plaintiff failed to allege bad faith conduct on the part of the contracting officer in her amended complaint.
In addition to emphasizing plaintiffs failure to append any evidence to her motion to supplement, defendant maintains that plaintiff has not demonstrated how supplementation promotes effective judicial review. According to defendant, nothing plaintiff has offered supports the notion that the record is incomplete. Moreover, defendant asserts that whether T-Shirt House possessed certain equipment at the time it submitted its proposals is irrelevant because the solicitation required possession of equipment at the time of performance. Defendant also objects to supplementation with an affidavit from plaintiff related to what equipment T-Shirt House allegedly owned or did not own because such evidence would constitute nothing more than plaintiffs self-serving statements based upon incomplete knowledge. Finally, defendant argues that plaintiffs grievance related to what equipment T-Shirt House owned at the time of bidding falls under issues of contract administration that are not appropriately raised in a bid protest.
A.. Standards for Determining Whether Supplementation Is Appropriate
The Administrative Dispute Resolution Act of 1996 (“ADRA”), Pub.L. No. 104-320, § 12, 110 Stat. 3870, 3874-76, expanded the bid protest jurisdiction of the Court of Federal Claims. Pursuant to the ADRA, the Court of Federal Claims reviews the legality of an agency’s decision in accordance with the standards set forth in the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706 (2006). See Advanced Data Concepts, Inc. v. United States,
The administrative record “is not a documentary record maintained contemporaneously with the events or actions included in it. Rather, it is a convenient vehicle for bringing the decision of an administrative body before a reviewing agency or a court.” Tech Sys., Inc. v. United States,
In Esch, a case frequently discussed and cited by the Court of Federal Claims, the United States Court of Appeals for the District of Columbia Circuit identified eight exceptions that justified supplementation of the administrative record.
The Federal Circuit also emphasized in Axiom Resource Management, Inc. that “the parties’ ability to supplement the administrative record is limited,” id. at 1379, and that the “focus of judicial review of agency action remains the administrative record, which should be supplemented only if the existing record is insufficient to permit meaningful review consistent with the APA,” id. at 1381. Therefore, the Federal Circuit requires that courts determine whether supplementation of the administrative record is “necessary in order not ‘to frustrate effective judicial review.’ ” Id. (quoting Camp v. Pitts,
Ultimately, supplementation is justified when “required for meaningful judicial review,” Impresa Construzioni Geom. Domenico Garufi v. United States,
B. Plaintiff Has Not Demonstrated That Supplementation of the Administrative Record Is Warranted
Although plaintiff contends that supplementation is “within the Court’s lati
1. Plaintiff Has Not Alleged That the Contracting Officer Exhibited Bias or Engaged in Bad Faith During the Procurement
Allegations of bias or bad faith may, under certain circumstances, warrant supplementation of the administrative record because “rare indeed would be the occasions when evidence of bad faith will be placed in the administrative record, and to insist on this — and thus restrict discovery regarding bad faith to eases involving officials who are both sinister and stupid — makes little sense.” Beta Analytics Int’l, Inc. v. United States,
Here, although plaintiff intimates that Ms. Dunbar acted in bad faith and asserts that extra-record evidence is necessary to “air[ ] the cronyism and either blatant outright corruption or flagrant inability to follow [the AAFES’s] own written solicitation,” Pl.’s Reply 4, plaintiffs amended complaint is devoid of any allegation that Ms. Dunbar exhibited bias during the procurement process. Instead, plaintiffs allegations focus upon Ms. Roldan, who allegedly “wrongfully influenced the bidding and contractual process,” Am. Compl. ¶ 21, and engaged in “methods [of] procurement” that were both “arbitrary and capricious,” id. ¶22. Yet, plaintiff does not allege that Ms. Roldan was the contracting officer. See id. ¶ 17 (alleging that Ms. Dunbar served as the contracting officer). Accordingly, any issue related to Ms. Dunbar’s purported acts of bad faith or bias is not before the court. Meaningful judicial review is not advanced by supplementing the record with evidence that may support allegations that have not been pled. Therefore, the court cannot supplement the administrative record with evidence of alleged bias or bad faith exhibited by Ms. Dunbar.
Alternatively, even assuming, arguendo, that plaintiff had, in fact, properly pled bias or bad faith by Ms. Dunbar, the court’s determination is unchanged. Plaintiff has not satisfied the two-part standard articulated by the Beta Analytics International, Inc. court. Plaintiff also has not identified specific evidence in the record that raises questions
While either or both of [your] allegations may or may not be true, neither could or did impact the award decision. Ms. Rol-dan had no influence over or input into the decision to award the contract; all such decisions are made by contracting officers at HQ AAFES [in Dallas, Texas] based upon the proposals submitted by the offer-ors.
AR 355. Where such an explanation has been furnished within an administrative record that appears complete, as is the case here, the party proffering extra-record material
must indicate some personal animus or bias on the part of agency officials, reveal a latent inconsistency in the existing record, or otherwise give some indication that the agency’s explanation is pretextual. Absent this threshold showing, a plaintiffs bare allegations of bad faith are insufficient to place the issue or the proffered extra-record evidence before the court.
Madison Servs., Inc. v. United States,
2. Supplementation of the Record Does Not Advance Meaningful Judicial Review
In addition, plaintiff has not demonstrated that supplementation of the administrative record is necessary to advance meaningful judicial review. Although plaintiff believes that the “dates of the[] bids are extremely crucial, as [they] go[ ] to the underlying heart of wrongfully influencing the bidding process by the contract officer,” Pl.’s Mot. 2, plaintiff has not alleged that Ms. Dunbar wrongfully influenced the procurement process. Moreover, the chronology of events is already ascertainable within the agency-assembled record. Specifically, the record indicates that plaintiff submitted her initial proposal to the AAFES on October 29, 2008, AR 123, and T-Shirt House submitted its initial proposal on November 5, 2008, id. at 156. Plaintiff then submitted her “best and final offer” to the AAFES on November 21, 2008, id. at 137, while T-Shirt House submitted its “best and final offer” to the AAFES on November 22, 2008, id. at 172. Finally, plaintiff submitted her MPOS, which included a fee to the AAFES of twenty-seven percent and net profits of $1,536, to the AAFES on December 9, 2008, id. at 125, 129-30; cf. Pl.’s Mot. 2 (asserting that the “actual submission date was December 10, 2008[,] by postal records”), and T-Shirt House submitted its MPOS, which included a fee to the AAFES of 27.25 percent and net profits of $2,587.50, on December 11, 2008, AR 168-69; cf. id. at 163 (containing a December 15, 2008 electronic-mail communication from T-Shirt House indicating its revised fee to the AAFES of 27.25 percent). Because the record already provides sufficient information concerning the dates on which plaintiff and T-Shirt House submitted their various proposals, additional evidence, particularly in the form of plaintiffs own affidavit, is wholly unnecessary and does not aid the court in its review of agency action.
With respect to plaintiffs request to supplement the record with an affidavit “regarding [t]he [T-]Shirt House not having the Ana-jet [Garment] Printer Heat Transfer Press and Transfer machine, with specific size [and] weight manufacturer’s specifications,” Pl.’s Reply 5, such evidence does not advance
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.6
Fed.R.Evid. 701 (footnote added). “[T]he law prefers that a witness testify to facts, based on personal knowledge, rather than opinions inferred from such facts,” 1 McCormick on Evidence § 10 (Kenneth S. Broun et al. eds., 2006), and Rule 701 only “authorizes the receipt of any lay opinion ‘helpful’ to the trier of fact,” id. § 11.
In this case, plaintiff’s proposed affidavit does not comport with the requirements of Rule 701 because it is not “helpful to ... the determination of a fact in issue_” Fed. R.Evid. 701. During oral argument, plaintiffs counsel acknowledged that ownership of the equipment at issue was not a prerequisite to receiving the contract award, but counsel nevertheless asserted that the solicitation required plaintiff to purchase a specific machine:
THE COURT: Where in the administrative record does it indicate that owning this special ink jet transfer machine was a prerequisite for the award?
COUNSEL: It doesn’t say that per se. It says in the bid solicitation that you have to have the machine, and [plaintiff] had a conversation with Vickie Roldan, who made it clear to her on numerous occasions that if she wanted to be considered that she needed to make sure that she had that equipment.
Hr’g Tr. 20:2-11. Ultimately, the best evidence of what equipment was required under the solicitation is Exhibit G, “Concessionaire Furnished Equipment,” of the solicitation itself. See Fed.R.Evid. 1002 (“To prove the content of a writing ..., the original writing ... is required, except as otherwise provided in these rules or by Act of Congress.”); Bendix Corp. v. United States,
Furthermore, while plaintiff believes that her proposed extra-record evidence “allows a more thorough overview of the issues,” Pl.’s Reply 6, supplementation for this purpose is not appropriate in this case. “In general, the court will supplement the administrative record when it is necessary for a full and complete understanding of the issues.”
The existence and nature of this alleged market would not necessarily be reflected within or encompassed by the agency-produced administrative record. As a result, the court finds itself in a position in which it may not have a complete understanding of the issues before it_The court cannot make a reasoned decision without understanding the totality of the circumstances implicated in this case.
By contrast, the instant bid protest does not present any complex or technical issues that require supplementation in order for the court to fully understand the issues raised by the parties. Although plaintiff emphasizes that she “is an honest, hard working woman” who conducts business in a manner such that “what you say is important and your word is sacred,” Pl.’s Reply 4, plaintiffs work ethic and admirable business practices are not at issue. The administrative record contains sufficient information for the court to understand the requirements of the solicitation and the chronology of proposals submitted by offerors to the AAFES. Therefore, the incorporation into the administrative record of evidence related to (1) plaintiffs interpretation of the solicitation and opinion as to what equipment T-Shirt House owned, (2) submission dates of the offerors’ proposals that are already ascertainable in the record, and (3) potential bias or bad faith on the part of the contracting officer that plaintiff did not plead in her amended complaint does not advance meaningful judicial review, and plaintiff does not cite any case law to the contrary. Because the existing record permits the court to conduct a meaningful review of the AAFES’s actions in a manner that is consistent with the applicable APA standard of review, see Axiom Res. Mgm’t, Inc.,
III. CONCLUSION
For the reasons stated above, plaintiffs motion to supplement is DENIED. The court has filed this decision under seal. The parties shall confer to determine any proposed redactions. Then, the parties shall file under seal a joint status report indicating their agreement with the proposed redac-tions, together with a complete copy of the court’s decision with all redactions clearly indicated, by no later than Friday, December 17, 2010.
IT IS SO ORDERED.
Notes
. The facts are derived from the amended complaint ("Am. Compl.”), exhibits accompanying the amended complaint (“Am. Compl. Ex.”), and the administrative record ("AR”).
. Ms. Dunbar explained that T-Shirt House "was determined eligible; [had] adequate financial resources ...; was able to comply with the required performance; has a record of satisfactory performance ... [and] integrity; has the necessary organization, experience, and technical skills ...; and has the necessary technical equipment and facilities to perform the contract....” AR 356.
. Specifically, plaintiff requests supplementation of the record with her own affidavit "regarding [t]he [T-]Shirt House not having the Anajet [Garment] Printer Treat Transfer Press and Transfer Machine, with specific size, weight[, and] manufacturer’s specifications.” PL's Reply 5.
. Plaintiff did not move, pursuant to RCFC 15(a)(2), for leave to file a second amended complaint to include any new allegations.
. Instead, plaintiff seeks to introduce extra-record evidence consisting of two affidavits, one containing the dates on which she submitted her proposals with postal receipts appended thereto, and a second indicating what equipment plaintiff believes T-Shirt House owned. Pl.’s Reply 5.
. Rule 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. 702.
. After the Blue & Gold Fleet, LP court permitted supplementation of the administrative record, it observed that the extra-record evidence submitted "d[id] not clarify any matter that was or was not considered at the agency level” and did not aid in the court’s review.