In the United States Court of Federal Claims
No. 15-1397C
(Filed Under Seal: February 4, 2016)
(Reissued for Publication: February 8, 2016)
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DYNCORP INTERNATIONAL, LLC, *
*
Plaintiff, * Bid Protest; Supplementing the
* Administrative Record; Court’s
v. * Consideration of Expert Witness’s
* Report.
THE UNITED STATES, *
*
Defendant. *
*
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David M. Nadler, with whom were Adam Proujansky, David Y. Yang and Stephanie M.
Zechmann, Dickstein Shapiro LLP, Washington, D.C., for Plaintiff.
Alexander V. Sverdlov, with whom were Benjamin C. Mizer, Acting Assistant Attorney
General, Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, Washington, D.C., Beatrice Foster, Chief,
Commercial Law Division, Air Combat Command, U.S. Air Force, Of Counsel, for
Defendant.
PROCEDURAL ORDER1
WHEELER, Judge.
On November 18, 2015, Plaintiff DynCorp International, LLC (“DynCorp”) filed a
pre-award bid protest challenging the Air Force’s decision to proceed with the War Reserve
Material III (“WRM III”) solicitation after the Air Force disclosed confidential and
competitive information submitted by DynCorp, as the incumbent contractor, during the
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The Court issued this order under seal on February 4, 2016 and invited the parties to submit proposed
redactions of any competitive-sensitive, proprietary, confidential, or other protected information on or
before February 11, 2016. Counsel for both parties have informed the Court that they have no proposed
redactions and thus agree that the order may be released publicly in its entirety.
WRM II solicitation process. After filing the administrative record with the Court on
December 8, 2015, counsel for the Government filed a motion to supplement and correct
the administrative on December 24, 2015. Plaintiff did not oppose this motion and on
January 13, 2016, the Court granted the Government’s motion to supplement the record.
On January 15, 2016, DynCorp filed its own motion to supplement the administrative, or
in the alternative, the Court’s record, in this bid protest.
Standard of Review
Under 28 U.S.C. § 1491(b)(4), the standards set forth in the Administrative
Procedure Act govern this Court’s review of a protest involving an agency’s procurement
action. Pursuant to those standards, this Court may set aside an agency’s decision or action
that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2). In its review of the agency’s action or decision, the Court
examines the administrative record of the procurement process to establish whether that
record supports the action or decision. Holloway & Co., PLLC v. United States, 87 Fed.
Cl. 381, 389 (2009). The Court can guard against converting the arbitrary and capricious
standard to a de novo review by limiting its review to the record as it existed before the
agency.
As the review of an agency’s procurement decision should be limited to “the
administrative record already in existence, not some new record made initially in the
reviewing court,” AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 366, (2009) (quoting
Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (2009)), the parties’ ability
to supplement the administrative record is limited. Murakami v. United States, 46 Fed. Cl.
731, 735 (2000). However, although the Federal Circuit’s holding in Axiom makes clear
that supplementation of the administrative record should occur rarely, it is not prohibited
and may be used when it is necessary for the Court to gain a complete understanding of the
issues before it. Bannum, Inc. v. United States, 89 Fed. Cl. 184, 188 (2002). “In general,
the Court will supplement the administrative record when it is necessary for a full and
complete understanding of the issues.” Am. Ordnance LLC v. United States, 82 Fed. Cl.
199, 200 (2008). Thus, supplementation of the record is appropriate where the “omission
of extra-record evidence precludes effective judicial review.” AshBritt, 87 Fed. Cl. at 366.
Analysis
DynCorp asks the Court to supplement the administrative record with an expert
report by Mr. Jimmy J. Jackson (“the Jackson report”) and with declarations by three
DynCorp officials, Mr. Robert Caldwell, Mr. Joe Fyffe, and Mr. Nick Wasylyshyn. The
Government does not oppose Plaintiff’s request to admit the declarations of Mr. Caldwell
and Mr. Fyffe into the record. The Court finds that these declarations are proper
supplements to the record as both declarations seek to fill the same gap in the record that
the Government itself sought to fill with its own motion to supplement. Accordingly, as to
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Mr. Caldwell’s and Mr. Fyffe’s declarations, Plaintiff’s motion to supplement the record
is GRANTED.
DynCorp seeks to supplement the administrative record, or alternatively, the Court’s
record, with the Jackson report to address the alleged prejudice caused by the Air Force’s
disclosure of DynCorp’s proprietary information to its competitors on the WRM III
solicitation. Pl.’s Mot. at 2. DynCorp argues that supplementing the record with the
Jackson report is necessary for the Court to fully understand how DynCorp was prejudiced
by the Air Force’s actions. Reply at 4. Specifically, DynCorp claims that the report
explains “the nature of the proprietary data improperly released by the agency, how the
disclosure has harmed and prejudiced [DynCorp], and why the USAF’s attempted
mitigation efforts have failed to remedy the irreparable harm already sustained by
[DynCorp].” Pl.’s Mot. at 2. According to DynCorp, including this report is necessary
for meaningful judicial review because it concerns the reasonableness of the agency’s
decision to continue with the WRM III procurement after the disclosure, a central issue in
this bid protest that DynCorp argues is not adequately addressed in the administrative
decision. Id. at 3.
The Air Force asserts that because the Jackson report was not proffered during the
administrative proceedings, and because there is no gap in the record that the report seeks
to fill, it is neither necessary nor appropriate for the Court to consider the report in deciding
this bid protest. Resp. at 4-6. The Court disagrees. The Jackson report does not introduce
extra-record facts, but instead includes calculations and explanations based on data in the
contemporaneous record to aid the Court in better understanding the record. By including
Mr. Jackson’s report, DynCorp aims to clarify the Court’s understanding of an important
issue in the agency’s decision, namely how the release of information will harm DynCorp
in this and future procurements. Pl.’s Mot. at 3-4. Thus, the Court finds that Mr. Jackson’s
report is “necessary for meaningful judicial review” and should be added to the Court’s
record. See FirstLine Transp. Sec., Inc. v. United States, 116 Fed. Cl. 324, 327 (2014)
(finding supplementation appropriate under Axiom where it would “allow the Court to
understand the administrative record more completely”).
Along with the Jackson report, the Air Force also opposes supplementing the
administrative record with the declaration of Mr. Wasylyshyn, DynCorp’s Vice President
for Pricing. Mr. Wasylyshyn’s declaration addresses the steps that DynCorp has taken to
make itself more competitive in the current WRM III solicitation – steps that were taken to
mitigate the harm caused by the release of the information at issue in this bid protest. Pl.’s
Mot. at 6. The Government argues that Mr. Wasylyshyn’s declaration would add
information to the administrative record that could have been provided during the
administrative proceedings. Resp. at 5-6. According to the Government, the Air Force
fully and completely evaluated the harm caused to DynCorp in the WRM III procurement
along with possible remedial actions to mitigate that harm and therefore the declaration is
not necessary for effective review by this Court. Id. at 4-6. DynCorp asserts that the
information in Mr. Wasylyshyn’s declaration addresses the competitive harm to DynCorp
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resulting from the release of information and thus is necessary for a “full and complete
understanding of the issues.” Am. Ordnance, 82 Fed. Cl. at 200. Pl.’s Mot. at 6. The
Court agrees. Mr. Wasylyshyn’s declaration discusses the measures that DynCorp
undertook to minimize the damage it claims was caused by the agency’s actions in the
WRM III solicitation. This information is necessary to aid the Court in understanding
whether the agency’s decision to proceed with the procurement in light of the disclosure
was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2).
Conclusion
For the reasons explained above, DynCorp’s motion to supplement the
administrative record with the Jackson report and the declarations by Mr. Caldwell, Mr.
Fyffe, and Mr. Wasylyshyn is GRANTED.
IT IS SO ORDERED.
s/ Thomas C. Wheeler
THOMAS C. WHEELER
Judge
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