Orion Technology, Inc. v. United States

101 Fed. Cl. 492, 2011 U.S. Claims LEXIS 2269, 2011 WL 5998912
CourtUnited States Court of Federal Claims
DecidedNovember 16, 2011
DocketNo. 11-573C
StatusPublished
Cited by6 cases

This text of 101 Fed. Cl. 492 (Orion Technology, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Orion Technology, Inc. v. United States, 101 Fed. Cl. 492, 2011 U.S. Claims LEXIS 2269, 2011 WL 5998912 (uscfc 2011).

Opinion

RULING ON THE PARTIES’ MOTIONS TO SUPPLEMENT THE ADMINISTRATIVE RECORD

SWEENEY, Judge.

In the above-captioned protest, plaintiff and defendant have filed a number of motions to supplement the administrative record, along with various supporting and opposing memoranda.1 The following decision explains in more detail the oral rulings made by the court on November 3, 2011. In addition, this decision provides the court’s rulings and supporting rationale for the motions to supplement filed subsequent to the oral rulings. With respect to these latter motions, the court is compelled to remark that the recent flurry of filings from both plaintiff and defendant, which arose from counsels’ inability to confer and agree on documents that are clearly part of the administrative record, was wholly unnecessary. Nevertheless, the court reviewed all of the filings and submits the following ruling.

I. PROCEDURAL HISTORY

While the protest was pending before Judge Baskir, plaintiff filed two motions to supplement the administrative record, one on October 21, 2011, and the second on October 26, 2011. In its October 21, 2011 motion, plaintiff sought to supplement the administrative record with two groups of documents: (1) a legible copy of the five spreadsheets appearing at pages 866 through 885 of the administrative record and (2) its amended eosVprice data prepared in response to Amendment 7 of the solicitation. In its October 26, 2011 motion, plaintiff sought to supplement the administrative record with an expert declaration it submitted to the Government Accountability Office (“GAO”) in support of its initial protest before that body. During a November 3, 2011 status conference, the court granted the first part of plaintiffs October 21, 2011 motion, denied the remainder of the motions, and indicated that it would provide a written explanation for its rulings at a later date.

In granting the first part of plaintiffs October 21, 2011 motion, the court directed defendant to file legible copies of the five spreadsheets identified by plaintiff. Defendant filed enlarged versions of the spreadsheets on November 10, 2011, which it creat[494]*494ed from the Microsoft Excel files plaintiff submitted to the United States Army (“Army”) as part of its proposal. Rather than limiting its submission to the spreadsheets identified by plaintiff, however, defendant submitted enlarged copies of every spreadsheet included with plaintiffs proposal, including one that it alleged was inadvertently omitted from the administrative record. Defendant moved to supplement the administrative record with the purportedly omitted spreadsheet.

Upon reviewing the enlarged spreadsheets submitted by defendant, plaintiff determined that the five spreadsheets intended as replacements for those appealing at pages 866 through 885 of the administrative record were not accurate representations of the paper copies of the spreadsheets it submitted to the Army with its proposal. Thus, on November 12, 2011,2 plaintiff moved to supplement the administrative record with copies of the spreadsheets that were in its possession. Subsequently, on November 14, 2011, without awaiting the court’s ruling, plaintiff filed, for the court's review, a copy of the Cost/Price volume of its proposal containing printed copies of the spreadsheets at issue. Later the same day, plaintiff moved to cancel oral argument on the parties’ cross-motions for judgment on the administrative record and schedule a hearing on the supplementation motions.

II. DISCUSSION

Generally, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). An administrative record typically contains the materials developed and considered by an agency in making a decision subject to judicial review. See id, at 142-43, 93 S.Ct. 1241 (remarking that an agency’s finding must be “sustainable on the administrative record made” by the agency at the time of its decision); Cubic Applications, Inc. v. United States, 37 Fed. Cl. 345, 349-50 (1997) (“[T]he primary focus of the court’s review should be the materials that were before the agency when it made its final decision.”). The administrative record “should be supplemented only if the existing record is insufficient to permit meaningful review consistent with the [Administrative Procedure Act].” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed.Cir.2009). With these precepts in mind, the court addresses each document or group of documents offered by the parties to supplement the administrative record.

A. Legible Copies of Spreadsheets Already in the Administrative Record

Plaintiff first sought to supplement the record with legible copies of the five spreadsheets appearing at pages 866 through 885 of the administrative record. The administrative record, as submitted to the court on September 21, 2011, contained printed copies of these spreadsheets, but many of the copies were printed too small to be easily readable. Because these spreadsheets were already contained in the administrative record, and because of the importance of having a legible copy of the administrative record for judicial review, the court granted this request during the November 3,2011 status conference.

Defendant submitted enlarged copies of the five spreadsheets at issue on November 10, 2011, but without any page numbers. It noted that because it generated the enlarged spreadsheets from the Microsoft Excel files submitted by plaintiff with its proposal, the enlarged spreadsheets spanned a greater number of printed pages than the spreadsheets in the original administrative record.3 [495]*495Prom the court’s review and comparison, it appears that with two minor exceptions,4 while some of the rows have shifted from one page to the next, all of the substantive data present in the original administrative record appears in the enlarged spreadsheets.

Plaintiff nevertheless objects to defendant’s submission of the enlarged spreadsheets, alleging that they were altered by the Army through erroneous pagination, removal of footers,5 and alteration of columns and rows. These complaints appear to arise from the fact that the pagination of the enlarged spreadsheets does not match the pagination of the spreadsheets in the original administrative record or the pagination of the printed spreadsheets that plaintiff submitted to the Army as part of its proposal. The differences in pagination, which are caused in part by defendant generating the enlarged spreadsheets from the Microsoft Excel files submitted by plaintiff as part of its proposal rather than from the printed copies of the spreadsheets that plaintiff also submitted as part of its proposal,6 do not represent differences in the substance of the spreadsheets. Indeed, plaintiff has not identified any substantive data included in the spreadsheets it submitted as part of its proposal that is missing from the enlarged spreadsheets.7

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101 Fed. Cl. 492, 2011 U.S. Claims LEXIS 2269, 2011 WL 5998912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orion-technology-inc-v-united-states-uscfc-2011.