Zafer Taahut, Insaat Ve Ticaret A.S. v. United States

In the United States Court of Federal Claims
No. 20-41C
(Filed March 30, 2020)
NOT FOR PUBLICATION
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ZAFER TAAHUT, INSAAT VE *
TICARET A.S., *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant, *
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and *
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WARBUD SKE JOINT VENTURE, *
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Defendant–Intervenor. *
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ORDER
As was explained at the outset of today’s hearing, the Court has
GRANTED defendant’s motion to supplement the administrative record, ECF
No. 45, and has DENIED plaintiff ’s motion to strike the Rohling declaration,
ECF No. 50. Regarding the former, the Federal Circuit has held that
supplementation is appropriate when “necessary in order not ‘to frustrate
effective judicial review.’” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374,
1381 (Fed. Cir. 2009) (quoting Camp v. Pitts, 411 U.S. 138, 142–43 (1973). We
have long recognized the need to supplement an administrative record with
“relevant information that by its very nature would not be found in an agency
record—such as . . . information relied upon but omitted from the paper record, or
the content of conversations.” Orion Int’l Techs. v. United States, 60 Fed. Cl. 338,
343–44 (2004) (footnotes omitted). The contracting officer’s declaration that the
government seeks to add to the administrative record is necessary for meaningful
review of his decision to extend the proposal deadline, as it concerns his
discussion with the contract specialist that was the basis for that decision. See
Decl. of Contracting Officer, ECF No. 45-1, ¶¶ 4–7. Thus, supplementation of the
administrative record with this document is appropriate.
Regarding the other motion, there is no basis for striking the Rohling
declaration, which was submitted to be part of the court’s record, not the
administrative record. Information which bears on the non-merits factors that
are considered for injunctive relief is typically not found in an administrative
record, but in other materials submitted by the parties. See East West, Inc. v.
United States, 100 Fed. Cl. 53, 57–58 (2011). The Rohling declaration was
submitted for that purpose, as was the declaration of plaintiff ’s chief executive
officer. See Yagci Decl., ECF No. 39-23.
For the above reasons, and as further explained on the record during
today’s hearing, the government’s motion to supplement is GRANTED and
plaintiff ’s motion to strike is DENIED.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Senior Judge
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