Accelgov, LLC. v. United States

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
NOT FOR PUBLICATION
____________________________________
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ACCELGOV, LLC, )
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Plaintiff, )
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v. ) No. 22-1433
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THE UNITED STATES, ) Filed: December 14, 2022
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Defendant, ) Re-issued: December 20, 2022*
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and )
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TECHNICAL AND MANAGEMENT )
RESOURCES, INC., )
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Defendant-Intervenor. )
____________________________________ )
MEMORANDUM OPINION AND ORDER
In this post-award bid protest, Plaintiff, AccelGov, LLC, challenges the General Services
Administration’s (“GSA”) contract award to Defendant-Intervenor, Technical and Management
Resources, Inc. (“TMR”). Plaintiff, the Government, and TMR have all filed Motions for
Judgment on the Administrative Record. See ECF Nos. 27, 32, 36. On the same day Plaintiff filed
its Motion for Judgment on the Administrative Record, it also filed a Motion to Conduct Discovery
and to Supplement the Administrative Record (“Motion”), which is now before the Court. See
ECF No. 28. For the reasons below, the Court GRANTS Plaintiff’s Motion.
*
The Court issued this opinion under seal on December 14, 2022, and directed the parties
to file any proposed redactions by December 30, 2022. On December 19, 2022, the parties filed a
joint status report advising the Court that they agree the opinion can be released with no redactions.
See ECF No. 42. As the parties do not propose any redactions, the Court reissues the opinion
publicly in full.
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BACKGROUND
GSA issued Request for Quote No. 147QFHA22Q0005 (“RFQ”) to procure information
technology services in support of the Defense Commissary Agency (“DeCA”). Pl.’s Am. Compl.
¶¶ 5–6, ECF No. 26. Advanced Alliant Solutions Team (“AAST”), which is a joint venture
between TMR and 22nd Century Technologies, Inc. (“22nd Century”), is the incumbent contractor
currently providing similar services to DeCA (“Incumbent Contract”). Id. ¶ 24. TMR is the
managing partner of this joint venture. Id. In its RFQ proposal, TMR listed as past experience its
work on the Incumbent Contract, representing that it “works closely with 22nd Century” in
performing the contract and that it “has managed [the] contract, since 2018.” Admin. R. 2049,
ECF No. 25-1 (hereinafter “AR”). To further demonstrate past experience, TMR also listed
another AAST contract through which it provided information technology support for the Naval
Air Warfare Center Aircraft Division (“NAWCAD Contract”). AR 2053. TMR represented that
it was the “Joint Venture (JV) managing partner for this task order (TO) contract as [AAST].” Id.
In describing the scope of its past experience on these contracts, TMR consistently referred to the
work of “the Team,” “AAST/TMR,” and “AAST/TMR’s Team.” AR 2049–58.
Plaintiff argues that TMR’s descriptions of its past experience on the Incumbent Contract
and NAWCAD Contract (collectively “Past Contracts”) amount to material misrepresentations.
ECF No. 26 ¶¶ 103–05; Pl.’s Mot. for J. Admin. R. at 34, ECF No. 27. Plaintiff contends that,
although TMR was the managing partner of the joint venture with 22nd Century that is AAST, it
performed a very small percentage of the work under the Past Contracts. ECF No. 26 ¶¶ 110–12;
ECF No. 27 at 35. Rather, based on the declaration of 22nd Century’s President and the attached
task order lead requests, Plaintiff asserts that 22nd Century served as the “Lead” for AAST on the
contracts and performed the vast majority of the substantive tasks. Id.; see Decl. of Satvinder
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Singh, ECF No. 26-1. Citing to contract-level statistics provided by Mr. Singh, Plaintiff alleges
that “TMR did only 9% . . . [of the work on the Incumbent Contract] and 5% . . . on the NAWCAD
Contract.” ECF No. 27 at 37. Plaintiff argues that TMR should be disqualified from the
procurement on account of its misrepresentations. ECF No. 26 at 35.
Plaintiff now moves for leave to conduct limited discovery and supplement the
Administrative Record with evidence that it argues is essential to establishing TMR’s
misrepresentations. See generally ECF No. 28. Specifically, Plaintiff requests leave to serve four
interrogatories to TMR asking it to describe in detail its work on the Past Contracts and, if it denies
that 22nd Century was the lead on those contracts, to describe the basis for that denial. Ex. 1 to
Pl.’s Mot. to Conduct Disc. & Suppl. Admin. R., ECF No. 28-1. Plaintiff requests that the
Administrative Record be supplemented with TMR’s answers to the interrogatories, as well as Mr.
Singh’s declaration and accompanying attachments. ECF No. 28 at 3. Plaintiff claims these
documents “further demonstrate how little work TMR performed on the incumbent contract and
the NAWCAD Contract.” Id.
DISCUSSION
I. Standard for Granting Leave to Conduct Discovery in a Bid Protest
It is well settled that in a bid protest case “the focal point for judicial review should be the
administrative record already in existence, not some new record made initially in the reviewing
court.” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379 (Fed. Cir. 2009) (quoting
Camp v. Pitts, 411 U.S. 138, 142 (1973)). Therefore, “the parties’ ability to supplement the
administrative record is limited.” Id. Indeed, according to Federal Circuit precedent, courts should
allow supplementation in record review cases only when “the omission of extra-record evidence
precludes effective judicial review.” Id. at 1380 (quoting Murakami v. United States, 46 Fed. Cl.
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731, 735 (2000), aff’d, 398 F.3d 1342 (Fed. Cir. 2005)). Supplementation or discovery is not
permissible “merely because the proponent of such measures believes that it will ‘improve the
court’s “understanding” of a case.’” Connected Glob. Sols., LLC v. United States, 159 Fed. Cl.
801, 805 (2022) (quoting NEQ, LLC v. United States, 86 Fed. Cl. 592, 593 (2009)).
If it is essential for effective review, “[a] party in a bid protest may seek through discovery
‘relevant information that by its very nature would not be found in an agency record.’” Alaska
Structures, Inc. v. United States, 144 Fed. Cl. 80, 85 (2019) (quoting L-3 Commc’ns Integrated
Sys., L.P. v. United States, 91 Fed. Cl. 347, 354 (2010)). “Evidence of an inaccurate representation
falls within that category,” id., because “no one could reasonably expect [such evidence] to be
contained in the administrative record,” Golden IT, LLC v. United States, 157 Fed. Cl. 680, 688
(2022). The movant, however, must demonstrate “inconsistencies” in a party’s representations
that “make plausible the inaccurate representation claim.” Alaska Structures, 144 Fed. Cl. at 86.
Such inconsistencies must be more than “innuendo or suspicion,” but need not amount to “explicit
contradiction[s].” Id. at 85–86 (quoting Terry v. United States, 96 Fed. Cl. 156, 164 (2010)).
Under this standard, other judges of this Court have granted requests for discovery and/or
supplementation in similar circumstances. See, e.g., id. at 86; Golden IT, 157 Fed. Cl. at 688–89;
Connected Glob. Sols., 159 Fed. Cl. at 806; Orion Int’l Techs. v. United States, 60 Fed. Cl. 338,
347 (2004).
II. Discovery and Supplementation of the Record is Necessary to Meaningfully Review
Plaintiff’s Material Representation Claim.
Plaintiff argues that discovery and supplementation are essential for the Court to effectively
review its allegations that TMR made material misrepresentations because those purported
misrepresentations are made clear only through evidence that exists or can be developed outside
of the record. ECF No. 28 at 3. In response, Defendant and TMR argue that discovery and
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supplementation are unnecessary because even if Plaintiff receives the answers it expects to
receive from TMR, it will be insufficient to support a material misrepresentation claim. TMR’s
Obj. to Pl.’s Mot. to Conduct Disc. at 2, ECF No. 33; Def.’s Opp’n to Pl.’s Mot. to Conduct Disc.
at 2, ECF No. 34. Specifically, they argue that Plaintiff has failed to identify a statement in TMR’s
proposal that was “false” or to show that the RFQ required TMR to provide the type of specific
details Plaintiff seeks to develop through discovery. ECF No. 34 at 2–3; ECF No. 33 at 2. The
Court concludes that, at this stage, Plaintiff has made a “plausible . . . inaccurate representation
claim” that warrants limited discovery and supplementation. Connected Glob. Sols., 159 Fed. Cl.
at 806 (quoting Alaska Structures, 144 Fed. Cl. at 86).
A. Plaintiff Seeks Information Relevant to Its Material Misrepresentation Claim.
A material misrepresentation claim in a bid protest may be premised on explicitly false
statements, or it may be based on inconsistencies or contradictions. Alaska Structures, 144 Fed.
Cl. at 85–86. The court has likewise entertained misrepresentation claims based on omissions.
See LightBox Parent, L.P. v. United States, 162 Fed. Cl. 143, 153–58 (2022). Accordingly,
demonstrating a false statement or explicit contradiction is not necessarily required to justify a
request for limited discovery. Alaska Structures, 144 Fed. Cl. at 86. Evidence that TMR omitted
information from its proposal, or included inaccurate information, provides a basis for a colorable
misrepresentation claim. Connected Glob. Sols., 159 Fed. Cl. at 806.
Here, Plaintiff has alleged that TMR’s descriptions of its prior experience on the Past
Contracts were inaccurate or misleading because they were “written as if TMR materially
participated in performing that work,” ECF No. 28 at 2, when allegedly it was “only minimally
involved (at best),” ECF No. 37 at 4. For example, TMR represented in the proposal that it has
managed the Incumbent Contract and was the managing partner for the NAWCAD Contract, AR
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2049, 2053, when allegedly 22nd Century was the Lead, ECF No. 26-1 ¶¶ 5, 7 (describing 22nd
Century as the “de facto prime contractor”). The level of TMR’s involvement in performing the
Past Contracts is arguably material where the RFQ stated the DOI would evaluate past experience
to determine whether the quoter had “experience with similar scope, size, and duration with
minimal risk addressing [certain] skill/task areas.” AR 532 (emphasis in original). The DOI relied
on TMR’s past experience descriptions to find that, cumulatively, its experience “included similar
scope and magnitude of effort and complexities” of the RFQ’s requirement. AR 2654.
Moreover, Plaintiff has provided more than innuendo or speculation to support its request.
To demonstrate that discovery is warranted, Plaintiff cites to Mr. Singh’s declaration and its
accompanying attachments. See ECF Nos. 26-1– 26-4. Mr. Singh avers that, as the “Lead” on the
Past Contracts,” [i]t performed the bulk of the work, managed the work and served as the
government customer’s primary point of contact.” ECF No. 26-1 ¶ 7. Mr. Singh’s declaration
also attaches copies of the AAST Joint Venture Task Order Lead Requests and contract-level
statistics that purportedly show the relative breakdown of work and revenue between TMR and
22nd Century on the Past Contracts. See ECF Nos. 26-2, 26-4.
Ultimately, Plaintiff bears the burden of proving its misrepresentation claim. Whether such
claim is substantiated and, if so, dispositive of this protest are questions that must be resolved on
the merits. At this stage, however, Plaintiff has made a colorable allegation of material
misrepresentation and provided at least some supporting evidence. Connected Glob. Sols., 159
Fed. Cl. at 806. Because the Court’s resolution will necessarily be contingent on information that
does not (and normally would not) appear in the Administrative Record, Plaintiff’s request for
discovery and supplementation is granted.
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B. Plaintiff’s Proposed Discovery is Narrowly Tailored to the Needs of the Case.
Even where a movant justifies the need for discovery in a bid protest case, “[t]he Court
must carefully tailor [such] discovery . . . to reduce its intrusiveness and to limit it to matters that
may lead to relevant evidence.” Orion Int’l Techs., 60 Fed. Cl. at 345. Here, Plaintiff’s proposed
discovery is limited and tailored to obtaining information relevant to Plaintiff’s material
misrepresentation claim. The discovery consists of only four interrogatories requiring TMR to
explain more fully its involvement in the Past Contracts, including identifying the TMR employees
who worked on the contracts and how much revenue TMR received. See ECF No. 28-1 at 2–3.
The interrogatories also require TMR to explain the basis of any denial that 22nd Century led the
Past Contracts. Id. at 3. Since TMR’s answers could support Plaintiff’s allegation that TMR
omitted material information from its proposal, or included incorrect information, in a way that
made its past experience descriptions inaccurate, they seek relevant information. Furthermore, the
interrogatories are not overly extensive, intrusive, or unduly burdensome.
Accordingly, the Court will direct TMR to respond to Plaintiff’s interrogatories (ECF No.
28-1) in the form of a declaration executed under oath and filed with the Court under seal. Given
the expedited nature of this bid protest and the deadlines in the current scheduling order, TMR will
provide its answers within 14 days, or by no later than December 28, 2022. At this time, the Court
does not see a reason to alter the current briefing schedule pending TMR’s answers and expects
that the parties will make any arguments based on the responses during the motions hearing on
January 6, 2022.
CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff’s Motion for Leave to Conduct
Limited Discovery and to Supplement the Administrative Record (ECF No. 28). The
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Administrative Record is supplemented with all four documents contained within Exhibit 1 to
Plaintiff’s Amended Complaint (ECF Nos. 26-1–26-4), as well as TMR’s forthcoming discovery
responses. TMR shall file with the Court its answers to Plaintiff’s interrogatories (ECF No. 28-1)
by no later than December 28, 2022.
This opinion and order will be unsealed in its entirety after January 3, 2023, unless the
parties submit by no later than December 30, 2022, an objection specifically identifying the
protected information subject to redaction. Any objecting party must submit a proposed redacted
version of the decision and provide the reason(s) supporting the party’s request for redaction.
SO ORDERED.
Dated: December 14, 2022 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge
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