Poplar Point Rbbr, LLC v. United States ( 2019 )

In the United States Court of Federal Claims
No. 19-1378C
(Filed: November 6, 2019)*
Order Originally Filed Under Seal October 28, 2019
)
POPLAR POINT RBBR, LLC, ) Bid Protest; Motion to Complete the
) Administrative Record; Deliberative
Plaintiff, ) Process Privilege
)
v. )
)
THE UNITED STATES, )
)
Defendant. )
)
Richard J. Conway, Washington, D.C., for plaintiff, Michael J. Slattery, New York, NY,
and Sara M. Gerber, Washington, D.C., of counsel.
Ann C. Motto, Civil Division, United States Department of Justice, Washington, D.C.,
with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr.,
Director, Douglas K. Mickle, Assistant Director, for defendant. Adetokunbo Falade,
General Services Administration, Washington, D.C., of counsel.
ORDER DENYING MOTION TO COMPLETE THE RECORD
FIRESTONE, Senior Judge.
In this bid protest case, Poplar Point RBBR, LLC challenges the General Services
Administration’s (GSA) evaluation and exclusion from award consideration of a proposal
Poplar Point submitted in response to GSA’s request for lease proposals (RLP) for the
Securities and Exchange Commission’s (SEC) new headquarters in Washington, D.C.
Part of the RLP addressed the SEC’s requirements for having certain amenities located
near the offeror’s proposed building. After the proposals were submitted but before final
evaluations,1 the amenities requirement was amended by adding the italicized language:
To meet these requirements, amenities must currently exist or the offeror
must demonstrate to the reasonable satisfaction of the Government (i.e.,
through evidence of signed leases, construction contracts, letters of intent,
etc.) that such amenities will exist by the Government’s required occupancy
date, and are substantially likely to remain active and viable at that
location throughout the term of the Lease.
AR Tab 9 at 271-72 (emphasis added). Poplar Point argues in its bid protest that GSA
applied the amenities amendment to Poplar Point only in a prejudicially disparate
manner.
Pending before the court is Poplar Point’s motion to complete the administrative
record, ECF No. 20, with documents related to the amendment of the amenities
requirement. Poplar Point contends that the administrative record submitted by the
United States contains no explanation for why GSA issued the amenities amendment.
Poplar Point argues that it is entitled to documents before GSA that are relevant to GSA’s
decision to amend the amenities requirement and to apply the amenities amendment only
to Poplar Point.
Pursuant to this court’s September 26, 2019 Order, ECF No. 11, the government
provided for in camera review documents related to the amenities amendment that were
excluded from the administrative record. Pursuant to this court’s October 2, 2019 Order,
ECF No. 18, the government also filed under seal a privilege log for these documents.
The government contends that the documents provided were not included in and are not
1
A final award decision has not been made.
2
part of the administrative record, asserting the attorney client privilege and the
deliberative process privilege.
Briefing on Poplar Point’s motion to complete the record concluded on October
15, 2019, and the court deems oral argument unnecessary. For the reasons discussed
below, Poplar Point’s motion is DENIED.
I. THE SOLICITATION
GSA issued the RLP on July 10, 2018, seeking offers for a lease of space to serve
as the new headquarters of the SEC. The RLP permitted offerors to propose existing
structures that met, or could be modified to meet, the RLP requirements, or undeveloped
sites upon which a new SEC headquarters building could be constructed. Mot. at 2.
Section 1.05(B) of the RLP required each offeror to demonstrate that certain amenities
would be located near the offeror’s proposed building site. Id. at 3. The amenities
requirement provided:
To meet the needs of SEC’s employees, and the significant number of out
of town and local visitors to SEC, amenities are to be located within the
immediate vicinity of each offered building, but not to exceed 2,640 wlf
measured along accessibility compliant, paved pedestrian pathways from
the main entrance of an offered building to the main entrance of the
amenity, in sufficient size and number capable of accommodating the
demand imposed by a facility of 4,500 employees and guests (or in the case
of a multiple building solution, that building’s proportional share of
employees and guests) such as:
• A variety of fast-food, moderately priced dine-in, and table-service
restaurants[], operating during early morning and evening hours as well as
during a normal business day so as to provide a variety of options for
breakfast, lunch, and dinner
• USPS post office or mailing facility (e.g., FedEx, UPS, etc.)
• Pharmacy
• Dry cleaners
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• Coffee shop(s)
• Bank(s)
Id. at 3 (quoting AR Tab 8 at 114).
To meet these requirements, the RLP provided that “amenities must currently exist
or the offeror must demonstrate to the reasonable satisfaction of the Government (i.e.,
through evidence of signed leases, construction contracts, letters of intent, etc.) that such
amenities will exist by the Government’s required occupancy date.” Id. at 4 (quoting AR
Tab 8 at 114).
On September 4, 2018, Poplar Point and […] other offerors submitted initial
proposals. Id. at 4. Poplar Point proposed to construct a new, single building in the
Anacostia neighborhood of Washington, D.C. Id. […] other offerors submitted
proposals: […] proposed sites within developed areas of downtown D.C. with existing
amenities. Id. Poplar Point’s proposed building site is located in a less developed area
without existing amenities. Id.
GSA conducted discussions with Poplar Point between October 23 and October
25, 2018. Id. at 5. On December 20, 2018, GSA sent each offeror a letter setting forth
the deficiencies in each proposal. Id. The letter to Poplar Point indicated that amenities
were a “major deficiency” of its proposed site because the “offer identifies no existing or
committed future amenities” located nearby, as required by the RLP. Resp. at 3, ECF
No. 21 (quoting AR Tab 25 at 4055).
On December 20, 2018, the same day it issued the deficiency letters, GSA also
issued RLP Amendment No. 0001 (Amendment). As quoted above, the Amendment, as
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relevant here, changed the amenities requirements by adding the following italicized
language:
To meet these requirements, amenities must currently exist or the offeror
must demonstrate to the reasonable satisfaction of the Government (i.e.,
through evidence of signed leases, construction contracts, letters of intent,
etc.) that such amenities will exist by the Government’s required occupancy
date, and are substantially likely to remain active and viable at that
location throughout the term of the Lease.
Mot. at 5-6 (quoting AR Tab 9 at 271-72) (emphasis added).
The […] offerors submitted revised proposals on January 25, 2019. Mot. at 6.
Poplar Point’s revised offer included supplemental information regarding the amenities it
claimed would be constructed and retained on-site to meet the RLP Amendment. Resp.
at 5-6. The GSA had not identified amenities as a deficiency in […] initial proposals and
neither revised their final proposals to address the amenities Amendment. Mot. at 6.
On May 20, 2019, the GSA Lease Contracting Officer issued a letter to Poplar
Point notifying the company that GSA had “determined that your offer fails to meet the
minimum [amenities] requirements,” and “will not be further considered for award under
the RLP.” Id. (quoting AR Tab 37 and 7607). The letter explained that during
negotiations and in the deficiency letter, “the Government was clear that the amenities
submissions in [Poplar Point’s] offer posed a major deficiency and raised significant
questions as to [Poplar Point’s] ability to meet the minimum requirements.” Resp. at 6
(quoting AR Tab 46c at 8062). GSA determined that Poplar Point’s revised offer
“entirely fail[ed] to establish, as is required by the RLP, that these amenities will remain
active and viable throughout the term of the lease.” Id.
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The Contracting Officer’s findings and determinations explained that “[t]he
requirements of the amenities language in the RLP are meant to ensure that Government
employees, contractors, visitors, and guests, have adequate facilities to enjoy meals, run
errands, and accomplish their mission with efficiency, by utilizing amenities that are
proximately located to the building . . . .” Resp. at 4 (quoting AR Tab 46c at 8057). The
Contractor Officer further explained that “[o]f particular concern to the suitability of the
offered amenities for this requirement is the fact that . . . SEC employees are only allotted
30 minutes for lunch. Add to this metric the fact that . . . the SEC attracts on average an
additional 31,114 visitors per year . . ., placing even greater demands on the need for
access to a wide variety of conveniently located amenities . . ., for the effective
functioning of the agency.” Id. at 4-5 (quoting AR Tab 46c at 8057).
II. LITIGATION HISTORY
After receiving the GSA Contracting Officer’s decision rejecting Poplar Point’s
proposal, Poplar Point filed a protest before the Government Accountability Office
(GAO), which was denied on September 3, 2019. Id. at 6. Thereafter, Poplar Point filed
a five-count complaint with this court, challenging, among other things, the application of
the Amendment to only Poplar Point. Id. Count IV of the complaint alleges that GSA
improperly treated Poplar Point in a prejudicially disparate manner from other offerors
when it applied the Amendment’s amenities requirement to Poplar Point. Mot. at 9.
At the September 26, 2019 initial status conference before this court, Poplar
Point’s counsel indicated that he believed the administrative record was incomplete
because the record did not contain any explanation as to why the GSA decided to amend
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the RLP amenities provision and then apply it only to Poplar Point. See also Mot. at 9.
Based on that representation, the court issued an order on September 26, 2019, ECF No.
11, requiring the government to provide to the court for in camera review any agency
communications related to the Amendment that were not included in the administrative
record. The documents submitted by the government are all email communications sent
between agency counsel at GSA and SEC, agency personnel at GSA and SEC, and three
consultants at Savills Studley, a commercial real estate company commissioned by GSA
to assist with the procurement. See Resp. at 7. Attached to some of these email
communications are earlier drafts of the RLP Amendment and drafts of the deficiency
letters sent to the offerors. See id. On October 2, 2019, ECF No. 18, the court ordered
the government to file under seal the privilege log prepared for these documents. In the
privilege log, the government, as noted, asserts the attorney client privilege and the
deliberative process privilege.
On October 7, 2019, Poplar Point filed the pending motion to complete the
administrative record with the withheld documents. Poplar Point argues that the withheld
documents must be included in the administrative record because they were generated
during the course of the procurement, qualify as “core documents” under Appendix C ¶
22 of the Rules of the United States Court of Federal Claims (RCFC), and are “directly
relevant to whether or not GSA acted irrationally when it required only Poplar to
demonstrate the continuing viability of its proposed amenities,” as required by the
Amendment. Mot. at 11-18. Poplar Point further argues that the deliberative process
privilege should not apply to the withheld documents because the documents are
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necessary to complete the record and because the government has not satisfied the
procedural requirements for invoking that privilege. Id. at 18-19. Poplar Point contends
that the attorney client privilege should not apply because the documents likely contain
business advice as opposed to legal advice, and that the attorney client privilege was
waived for any documents circulated to the Savills Studley consultants. Id. at 19-20.
The government responds that the withheld documents are privileged, Resp. at 13-
19, and irrelevant because the government does not dispute that GSA knowingly applied
the Amendment only to Poplar Point and not to the other offerors, id. at 8-12. The
government argues that the GSA Contracting Officer’s decision rejecting Poplar Point’s
proposal contains the only explanation for the Amendment and that “there are no
additional documents explaining the underlying rationale behind the agency’s decision to
amend the RLP.” Id. at 11, 13. The government further argues that to the extent Poplar
Point is challenging the Amendment, Poplar Point’s challenge is not timely. Id. at 12-13.
In reply, Poplar Point contends that the requested documents are relevant to its protest,
that its protest regarding the Amendment is timely, that the draft documents should have
been included in the administrative record, and that the invoked privileges do not apply.
Reply at 2-20.
III. LEGAL STANDARDS
In a bid protest, “[t]he task of the reviewing court is to apply the appropriate
Administrative Procedure Act (APA) standard of review, 5 U.S.C. § 706, to the agency
decision based on the record the agency presents to the reviewing court.”
AgustaWestland N. Am., Inc. v. United States, 880 F.3d 1326, 1331 (Fed. Cir. 2018)
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(quoting Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379 (Fed. Cir. 2009)).
The “focal point for judicial review should be the administrative record already in
existence” at the time of the agency’s decision. Axiom, 564 F.3d at 1379 (citation and
quotation omitted). This court’s rules include a non-exhaustive list of “core documents”
relevant to a bid protest that qualify for inclusion in the administrative record. RCFC
Appendix C ¶ 22; see Dyncorp Int’l LLC v. United States, 113 Fed. Cl. 298, 303 (2013).
Ordinarily, the government’s designation of an administrative record is entitled to a
presumption of completeness; however, courts have recognized that this can be rebutted
with clear evidence to the contrary. See Bar MK Ranches v. Yuetter, 994 F.2d 735, 740
(10th Cir. 1993).
A protestor may move to “complete” the record or to “supplement” the record.
See Linc Gov’t Servs., LLC v. United States, 95 Fed. Cl. 155, 158 (2010). A motion to
“supplement” the record seeks to add materials that the agency did not consider but
should be considered to permit a proper evaluation of the agency’s decision. See Joint
Venture of Comint Sys. Corp. v. United States, 100 Fed. Cl. 159, 167 (2011). The Federal
Circuit has held that the parties’ ability to supplement the existing record “should be
limited to cases in which the omission of extra-record evidence precludes effective
judicial review.” Axiom, 564 F.3d at 1379 (quotation omitted).
A motion to “complete” the record seeks to add documents relevant to the
challenged agency decision that were considered by the relevant agency decisionmakers
but were not included in the record. See Linc, 95 Fed. Cl. at 158. “Where a party seeks
to add evidence to the record that consists of materials that were generated or considered
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by the agency during the procurement and decisionmaking process, such a request is
properly viewed as a request to complete -- rather than supplement -- the administrative
record, . . . and the court will ordinarily order the agency to complete the administrative
record by adding pre-award records” that are “relevant to the key issue[s]” in the case.
Arkray USA, Inc. v. United States, No. 14-233C, 2014 WL 2905127, at *4-*5 (Fed. Cl.
Apr. 28, 2014) (citing Comint, 100 Fed. Cl. at 167). However, courts have held that
“deliberative intra-agency memoranda and other such records are ordinarily privileged,
and need not be included in the record.” Amfac Resort, LLC v. United States Dep’t of
Interior, 143 F. Supp. 2d 7, 12 (D.D.C. 2001); Comint, 100 Fed. Cl. at 169.
IV. DISCUSSION
In this case, Poplar Point argues that the record is not complete because the record
does not contain an explanation for why GSA decided to amend the amenities
requirement in the RLP. As noted above, in response to the court’s order, the
government has submitted to the court for in camera review materials related to the
Amendment that were not included in the administrative record on the grounds of
privilege. Having considered both parties’ arguments and having reviewed these
materials in camera, the court denies Poplar Point’s motion.
The internal communications and draft documents that Poplar Point seeks for
inclusion in the administrative record are inter-agency deliberative documents and
include attorney client privileged communications that were properly excluded from the
administrative record. See Amfac, 143 F. Supp. 2d at 12; Comint, 100 Fed. Cl. at 169;
Iron Bow Techs., LLC v. United States, 136 Fed. Cl. 519, 532 (2018) (denying motion to
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supplement administrative record with privileged documents). The court has reviewed
the documents and agrees with the government that all but one of the email
communications is protected by the attorney-client privilege and all fit within the
deliberative process privilege as inter-agency deliberative documents.2
Moreover, the court agrees with the government that the documents do not add
anything, beyond what is already in the administrative record, regarding Poplar Point’s
claim that the Amendment was improperly applied differently to it. See Gulf Grp., Inc. v.
United States, 61 Fed. Cl. 338, 347 (2004) (disallowing discovery of draft documents and
internal communications where the “record already contained the final determinations of
the relevant decisionmakers and the contemporaneous reasons they gave in support of
these decisions,” and where the sought after documents “would likely not have contained
additional facts or information”). Indeed, the government has conceded that Poplar Point
was treated differently from the other […] offerors. Resp. at 8, 10-11. Whether GSA’s
application of the amenities requirement as amended was rational and supported hinges
on the explanation in the record given by the GSA Contracting Officer based on his
reading of the amenities provision and the Amendment.
2
Poplar Point argues that the government has not satisfied the procedural requirements for
invoking the deliberative process privilege, citing this court’s decision in Arkray, 2014 WL
2905127, at *6 n.15. See Mot. at 18-19. In Arkray, the court rejected the government’s assertion
of the deliberative process privilege for post-award documents as a ground for exclusion from
the record because, in part, those documents were “probative” of the key issues in the case and
because the government had not satisfied the procedural requirements for invoking the privilege.
2014 WL 2905127, at *6 & n.15. In this case, the court agrees with the government, based on
the court’s review of the in camera materials, that the withheld documents were properly
excluded from the record as deliberative in the first instance, having concluded that the
documents are not probative of the issues in the case.
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V. CONCLUSION
For the foregoing reasons, Poplar Point’s motion to complete the administrative
record is DENIED. The parties shall submit to the court a revised proposed briefing
schedule for their cross-motions for judgment on the administrative record by October
30, 2019.
IT IS SO ORDERED.
s/Nancy B. Firestone
NANCY B. FIRESTONE
Senior Judge
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