In the United States Court of Federal Claims

No. 16-44C

(Originally Filed: March 21, 2016)

(Re-filed: April 5, 2015)1

* * * * * * * * * * * * * * * * * * * * * *

STARRY ASSOCIATES, INC.

Plaintiff,

v.

THE UNITED STATES,

Defendant.

* * * * * * * * * * * * * * * * * * * * * *

Bid Protest; Assertions of

Bias; Supplementation of the

Administrative Record.

Lars E. Anderson, Reston, VA, with whom was James Y. Boland,

Tysons Corner, VA, for plaintiff. 

Alexis J. Echols, Trial Attorney, United States Department of Justice,

Civil Division, Commercial Litigation Branch, Washington, DC, Benjamin C.

Mizer, Principal DeputyAssistant AttorneyGeneral, Robert E. Kirschman, Jr.,

Director, Douglas K. Mickle, Assistant Director. Christian Maimone, Office

of General Counsel, U.S. Department of Health and Humans Services, of

counsel. 

OPINION AND ORDER

Pending in this protest of a Department of Health and Human Services’

decision to cancel a solicitation is plaintiff’s motion to supplement the

administrative record with four depositions it seeks leave to take. Defendant

opposes the motion and asks to supplement the record with two documents of

its own. The motion is fully briefed, and oral argument was held

telephonically on March 18, 2016. Because plaintiff makes credible

1 This opinion was originally issued under seal pursuant to the protective order

entered in this case. The parties conferred and proposed appropriate redactions

of protected information. Those redactions are indicated herein with brackets. 
allegations that the decision to cancel the solicitation was tainted by bias, we

grant plaintiff’s motion to take limited discovery to supplement the record. 

BACKGROUND

I. General Background And Procurement History

The Department of Health and Human Services (“HHS”) Program

Support Center (“PSC”) issued Request for Quotations No. 15-233-SOL00023 (“RFQ” or “solicitation”) on November 13, 2014. The procurement

was set aside for small businesses and was to be awarded to the lowest priced,

technically acceptable offeror. Through the solicitation, PSC sought to

procure a range of business operations services which would support PSC’s

implementation of HHS’s Unified Financial Management System (“UFMS”). 

Plaintiff, Starry Associates, Inc. (“Starry”), is the incumbent provider of onsite operational support for UFMS. 

UFMS is built on a backbone of commercial software known as Oracle

Federal Financials, part of the Oracle E-Business Suite. The RFQ thus

required key personnel to have experience with that software as well as with

UFMS. The agency was also looking for expertise regarding several of its

other systems that worked in coordination with UFMS: the Managing

Accounting and Credit Card System (“MACCS”), a system for accounting

purchases made by government credit card holders, and GovNet-NG, a

reporting system used to distribute operational reports. See Administrative

Record (“AR”) 54-55. Both MACCS and GovNet-NG are proprietary systems

developed by Starry and are licensed to HHS. AR 48. 

Three companies timely submitted quotations. The lowest priced

bidder, Intellizant, LLC (“Intellizant”) offered a total price of $15,204,633.60

over five years. As the low-priced bidder, it was evaluated for technical

acceptability along with past performance and Section 508 Compliance.2 The

acquisition plan called for the initial technical evaluation to be performed by

the Technical Evaluation Panel (“TEP”). The TEP was comprised of three

individuals: [ ], [ ], and [ ]. [ 

2

“Section 508” refers to section 508 of the Rehabilitation Act of 1973, which

requires that federal agencies provide software and website accessability to

disabled persons. 

2
] and [ ] are referred to in the AR as “certified by the COR.”3

AR 593. The TEP received the three proposals by email on November 26,

2014. 

The TEP sent its completed evaluation to the Source Selection

Authority (“SSA”) on December 3, 2014. The evaluation was not unanimous. 

[ ] and [ ] found Intellizant to be acceptable–although [. 

] did note information missing from Intellizant’s proposal–for all

three factors, but [ ] rated Intellizant technically unacceptable. AR

559 ([ ]’s evaluation sheet). 

The SSA, Cassandra Ellis, who is also the Contracting Officer (“CO”)

for this procurement and resulting contract, after considering the TEP

assessment, evaluated Intellizant’s proposal herself and determined that

Intellizant was technically acceptable. See AR 594 (Award Decision

Document). She listed some of the concerns from the TEP: “minimal detail

or omission of detail regarding performance metrics, minor computation errors

and [lack of] specific detail regarding the accomplishment of the knowledge

transfer.” Id. She found, however, that those concerns could be “easily []

addressed at the time of award, and do not outweigh the strengths of the

technical aspects of Intellizant’s quote. The computational errors were

corrected in the second revision of Intellizant’s quote.” Id. She also found

that Intellizant had experience with the “existing software” and with “Oracle

R12 which will be implemented in the coming fiscal year.” She thus awarded

the contract to Intellizant on December 18, 2014.

Starry was notified of the award the same day. It had an evaluated price

of [ ] but was not evaluated for other factors because Intellizant

was found to be technically acceptable. Plaintiff filed a protest at the

Government Accountability Office (“GAO”) on December 29, 2014. Starry

alleged that the agency’s evaluation of Intellizant was unreasonable because

of Intellizant’s lack of experience with the contract requirements and lack of

qualified key personnel. 

3

“COR” stands for Contracting Officer’s Representative. The AR is not clear

what the importance is of being certified by the COR other than that the CO

saw fit to mention it in the award decision document.

3
On January 6, 2015, HHS informed GAO and Starry of its intent to take

corrective action. After inquiry from GAO, HHS explained that it did “not

intend to reevaluate the requirement or solicit new proposals.” AR 715. 

Instead, the agency represented that the protest had “revealed certain gaps in

the record” that needed to be filled, and thus it intended to “thoroughly review

the contract file and ensure that the evaluation is complete, accurate, and fully

consistent with the requirements of the RFP.” Id. GAO dismissed the protest

as academic on January 7, 2015. 

In response to what it believed to be an insufficient scope of corrective

action, Starry sent a letter to the Clerk of Court of this court, stating its intent

to file a bid protest. On January 9, 2015, the CO sent a letter to Starry

indicating that the agency now intended to reevaluate proposals and make a

new award decision. AR 718. That representation prompted Starry to

withdraw its notice of intent to protest here. 

Unlike the first evaluation, which took only two or three business days,

the TEP’s second evaluation lasted from January 16, 2015 to April 28, 2015. 

It issued its new report on April 29, 2015. The TEP was once again unable to

reach a consensus because one of its members again rated Intellizant as

unacceptable for the technical factor. There is virtually no contemporary

documentation of that process, and the record does not contain individual

reports of the TEP members concerning the reevaluation. 

The SSA’s report and second award determination stated the minority

and majority evaluators’ views as to the three main facets of the technical

proposals: 1) Functional Knowledge Transfer and Training; 2) Monthly,

Quarterly, and Year-End Processing Support; and 3) Minimum Resource

Requirements. For each area, the CO agreed with the majority’s evaluation

and found Intellizant to be technically acceptable. She thus concluded that

award should be made to Intellizant as the lowest priced, technically

acceptable offeror. Offerors were notified of that result the same date as the

report, April 30, 2015. 

On May 5, 2015, Starry filed another protest at GAO, once again

challenging the award on the basis of Intellizant’s alleged lack of experience

and lack of qualified key personnel. Starry also alleged bias in the PSC’s

director of accounting services, Mr. John Davis, who Starry alleged exerted

influence to guide the award to Intellizant 

4
GAO held a hearing on July 15, 2015, and took testimony from the CO. 

Starry was, however, precluded from examining Ms. Ellis regarding its

allegation of bias. On August 11, 2015, GAO sustained the protest in part and

denied it in part. GAO found that the SSA failed to “evaluate whether the

personnel proposed by Intellizant were capable of performing the PWS

[Performance Work Statement] tasks” and “failed to evaluate whether

Intellizant could provide the personnel necessary to meet the solicitation’s

requirements.” AR 1129 (first GAO decision); Starry Assocs., Inc., B410968.2 , 2015 CPD ¶ 253 (Comp. Gen. Aug. 11, 2015). GAO found the

allegations of bias to be “without merit” based on Mr. Davis’ assertion that he

had recused himself from the procurement process. AR 1130. GAO

concluded by recommending reevaluation of the proposal in accordance with

the RFQ’s stated PWS and key personnel criteria, adequate documentation of

that evaluation, and, if the agency found Intellizant to be lacking, to terminate

the award and evaluate the next-in-line offeror. AR 1130-31.

The record is then largely silent until September 8, 2015, when counsel

for HHS informed GAO and Starry that it intended to cancel the solicitation

rather than reevaluate Intellizant. Counsel emailed the parties and GAO the

following explanation:

Specifically, it has been determined that two of the three systems

proposed to be supported under the instant procurement were

included in the solicitation by error. That is, both MACCS and

GovNet-NG are the subject of separate license agreements with

Starry Associates which allow the agency to make use of those

proprietary systems. Included in those license agreements are

support provisions; and, after review, the agencyhas determined

that it better suits the government’s needs to have the contract

support and license agreements bundled together, rather than

including the support function in a separate multi-faceted

support contract. Indeed, my client informs me that the MACCS

license agreement will be renewed before the end of September

2015, and the GovNet-NG license agreement was renewed n

May 2015. 

 

5
Def.’s App. 1.

4 The agency thus concluded that it would “cancel the instant

solicitation, redraft the statement of work to better match its current needs, and

re-solicit in Fiscal Year 2016.” Id.

On September 15, 2015, Starry filed its third protest at GAO,

challenging HHS’s decision to cancel the solicitation as a pretext so that Mr.

Davis could secure future work for Intellizant. Plaintiff argued that Davis

decided to eliminate the requirements of the solicitation as to which Intellizant

was unqualified and later to re-solicit the remaining work in order to avoid

GAO’s earlier recommendation to reevaluate, which Starry believes would

have resulted in it winning the original procurement. GAO denied the protest

by written decision on December 23, 2015, finding that the agency’s proffered

rational for cancellation was reasonable. Thus, even crediting the allegations

of bias, the result was not affected, in GAO’s view, because the “cancellation

was otherwise reasonably justified.” AR 1254. 

II. Evolution Of The Agency’s Need

The underlying procurement documentation is largely silent as to the

evolution of the agency’s view of its needs vis-a-vis the RFQ. The record

now, however, contains two additional declarations submitted to GAO by the

agency after plaintiff’s third protest there. 

The first is from Mr. Davis and is dated October 8, 2015. In it, he avers

that he was asked by the COR for the MACCS and GovNet-NG license

agreements to sign off on their renewals. The GovNet-NG renewal was in

May 2015, and the MACCS contract was up for renewal in September 2015. 

The request regarding the MACCS contract specificallyis what Mr. Davis says

triggered his conclusion that the UFMS procurement should not have included

support for these systems because those services were already covered by

separate contracts. See AR 1243. He also stated that the UFMS system and

the two proprietary Starry systems “do not talk with each other” and thus were

not very integral to supporting UFMS. Id. There was thus no need to pay for

extra support for those systems under the UMFS contract, according to Mr.

Davis. Id. That being the case, he concluded that it was unnecessary to

4 This document was attached to the government’s opposition to plaintiff’s

motion to supplement the administrative record. The government represents

that it should have been included in the record.

6
reevaluate Intellizant and decided a better course was to cancel the solicitation

and re-solicit only those services needed as part of the UFMS effort. AR 1244. 

We note, however, that, as plaintiff points out, the duplication between the

proprietary systems’ license agreements and the UFMS contract should have

been apparent in May 2015, when the GovNet-NG contract was renewed. 

The second declaration is from Mr. Patrick Joy, the interim Head of

Contracting Activity and Competition Advocate at PSC. It is dated October

13, 2015. Mr. Joy declared that removing the two proprietary-related items

from the UFMS contract would promote competition. AR 1245. Although

that logic-leap is unexplained, presumably he concluded that the removal of

an expertise requirement regarding two pieces of proprietary software would,

at least hypothetically, result in a larger pool of qualified offerors. He also

records in his declaration that he was told that the work regarding the two

proprietary systems was only incidental to the overall effort. He does

recognize in his statement that MACCS and GovNet-NG allow the agency to

better use Oracle software, but also notes that neither is directly built into it

and that the agency could use other tools. Id. Further, he stated that PSC is

phasing out the GovNet system to be replaced by a non-proprietary Oracle

program. Id. The Joy declaration also notes in bullet points several additional

relevant facts, including that:

3. Verbal communication consisted of requests for the Program

to determine a course of action in relation to the loss of the

GAO Protest and reminders that that determination was due.

. . .

5. At no time did the Program Office or Contracting Office

discuss or contemplate re-evaluating Intellizant’s proposal either

before or after the GAO decision was issued in August of 2015.

. . .

7. John Davis . . . received a request to renew the contract for

Starry for the MACCS license and support . . . . This triggered

a memory that MACCS support had also been included in the

Statement of Work (SOW) for the UFMS acquisition. He was

asked and was told that GOVNET-NG was also proprietary to

Starry Associates and was covered under a separate license and

7
support contract, but that it has also been included in the UFMS

statement of work. When he asked his staff why they were

included in more than one contract, he was told that is what we

have always done.

8. I saw John Davis at some point (unsure of actual date but

before GAO issued a decision on August 11, 2015) in passing.

He informed me generally of the above facts and said that the

[PSC], Financial Management Portfolio wished to re-write the

Statement of Work to remove the duplicative work. I told John

Davis to hold off on any actions since a GAO decision was due

soon. Our course of action would be dependent on the decision

of the GAO. 

AR 1245-46. The bullet points go on further to reflect that, after GAO reached

its August 11 decision, Joy forwarded all of this information to his

“leadership” to “keep them informed and to try to coordinate a decision on

process forward.” AR 1246. Discussions via email and a conference call were

held during the next several days. The Program Office indicated to Mr. Joy

that it wanted to cancel the solicitation and rewrite the Statement of Work.5

Id. 

III. Allegations Of Bias

Plaintiffs allege that this procurement was tainted from its inception by

the undue influence of Mr. John Davis, who serves as Accounting Services

Division Manager at PSC. Mr. Davis was employed by Intellizant

immediately prior to joining PSC, during which time he was involved in

Intellizant’s unsuccessful effort to secure the incumbent contract for UFMS

support. Plaintiff won and has performed that contract. During his

employment at Intellizant, Mr. Davis was also involved in unrelated work for

HHS. Plaintiff alleges that Mr. Davis continues to be personal friends with the

president and CEO of Intellizant. 

Mr. Davis joined HHS PSC in August 2010. Plaintiff alleges that, since

Mr. Davis began at HHS, Intellizant has received 57 contract awards, totaling

5

 We are not clear on whether the reference to “Program Office” refers to

the PSC or a component of it. 

8
over $12.5 million. 43 of these contracts were sole-source awards, which were

worth $5,227,315. Plaintiff further alleges that, prior to Mr. Davis’ inception

at HHS, Intellizant won only $98,233 in contracts from HHS. Given his

history with Intellizant and its past effort to win the predecessor contract, Mr.

Davis purported to recuse himself from the solicitation. AR 940 (“I recused

myself fromthis procurement because I am a former employee of Intellizant.”)

Mr. Davis is the supervisor of [ ], who was the COR for the

incumbent UFMS contract. [ ] prepared the PWS for the current

solicitation. In a signed statement prepared for the GAO, he represented that

Mr. Davis “highly recommended” that he recuse himself from the TEP due to

his involvement with the incumbent UFMS contract. AR 957. After Starry’s

first protest, [ ] offered to once again be part of the TEP, but Mr.

Davis told him that it “would not look good.” Id. Instead, the TEP was,

according to [ ], made up of individuals selected by Mr. Davis. Id.

Plaintiff alleges that Mr. Davis asked him to recuse himself because of [

]’s consistent positive performance feedback during the incumbent

contract performance, of which Mr. Davis was aware. [ ] also

states that Mr. Davis asked him to give Starry negative feedback. AR 958. 

His refusal to complywith that request has caused friction in their relationship,

according to [ ]. Id. Finally, [ ] stated that he was

instructed by Mr. Davis several times to prepare for a change in vendor and

that Mr. Davis represented that Intellizant would be much better “than what we

have today” as far as UFMS support. Id. 

Internal correspondence between [ ] and Mr. Davis reveals

that [ ] inquired of Mr. Davis who and how many persons should

make up the TEP. Mr. Davis recommended a panel of three and recommended

three names, one of whom, [ ], was eventually part of the TEP. AR

1535-36. [ ] responded that there should be at least “one person

with UFMS experience,” and further recommended that Mr. Davis, [ 

], and [ ] comprise the TEP. AR 1534-35. He also offered

his own services if Mr. Davis felt that appropriate. Mr. Davis replied that he

should be replaced by [ ] or Ed Jackson, both of whom he stated

were aware of the contract effort. The record is not clear how the final

composition of [ ], [ ], and [ ] was reached. 

[ ] was the COR for Intellizant’s other unrelated contract with

HHS. On November 21, 2014, she prepared a past performance questionnaire

for Intellizant on that contract and submitted it to Megan Kisamore, the

9
Contract Specialist for the UFMS solicitation. She rated Intellizant as

“exceptional” in every category and stated that she “definitely would” award

another contract to Intellizant. AR 313. In a signed statement submitted as part

of the agency’s report to GAO, she stated that she was unaware of any

involvement by Mr. Davis with the subject procurement and has very little

day-to-day contact with him. AR 965. She did, however, inquire of Mr. Davis

after [ ] questioned her involvement in the TEP because she had

just completed a past performance questionnaire for Intellizant on its other

contract. She reported that Mr. Davis assured her that it was alright for her

participate and thanked her for her willingness to do so. Id. 

On November 26, 2014, [ ] questioned [ ]’s

involvement given the revelation that Intellizant was the lowest priced offeror

and that [ ] had just previously submitted a past performance

questionnaire for Intellizant. AR 1449. He did not question her integrity in

fact but only whether she would appear as biased. [ ] responded that

it was “not [her] call” and that she was asked the day before by [ ]

“per the direction of John Davis.” AR 1448. She suggested that she be

replaced by Mr. Jackson and further directed [ ] to inquire of Mr.

Davis. Id. Instead, [ ] relayed those same concerns to Ms.

Kisamore, who in turn relayed them to Ms. Ellis, the CO. Nine minutes later,

Ms. Kisamore replied back to [ ] that the CO had cleared [ 

]’s involvement. AR 1472-73 (“there is no issue”). [ ] then

forwarded the entire chain of emails regarding her involvement to Mr. Davis

with the following encapsulation: “FYI – no more concerns,” which was

followed with a smiley face emoticon. AR 1523. The record contains no

indication of the context for [ ]’s forwarding of that email chain to

Mr. Davis. Plaintiff, naturally, alleges that the two must have colluded during

the procurement process to award to Intellizant, and, at a minimum, that it

reflects that Mr. Davis would be pleased by her continuing involvement. 

The email record then shows that Mr. Davis asked [ ] to call

him in response to her forwarding of the emails. Id. The record does not

record whether that conversation took place, or, if it did, the substance of it. 

 

IV. The Procurement Record 

Substantial portions of the tortured procurement record were produced

in an ongoing series of declarations prepared solely in response to GAO

10
protests. Virtually none of the information contained in those statements

appears in documents contemporaneous with the contracting process itself. 

On June 1, 2015, Mr. Davis’ first signed statement appears in the record

in response to Starry’s allegations in its second protest that he had exerted

undue influence over the procurement. This is followed by an explanation

from the CO dated June 3, 2015, a signed statement from Ms. Kisamore dated

June 1, 2015, and a statement from [ ] dated May 15, 2015,

attached to which were emails between himself and Mr. Davis. [ ],

[ ], and [ ] also submitted statements to GAO dated June

2, 2015, May 29, 2015, and May 22, 2015, respectively. 

The third protest at GAO prompted a new round of signed statements

from agency personnel: the two previously mentioned explanations of the

proposed cancellation by Mssrs. Davis and Joy and a second statement from

[ ], this one dated October 8, 2015, in which he states that he had

no discussions with Starry or Intellizant regarding the procurement. Bradley

Lindgren, the Assistant to the Director of Accounting Services for PSC also

submitted a declaration that he had met with Mr. Joy on behalf of Mr. Davis, 

his supervisor, regarding the UFMS contact and revising the Statement of

Work. That statement is dated October 9, 2015. It is also our understanding

that the agency’s internal communications, such as the above referenced

emails regarding the procurement, were not included in the record until the

second or third protest. 

DISCUSSION

Plaintiff filed suit here on January 11, 2016. The Administrative

Record was filed on February 5, 2016. Plaintiff moved to supplement the AR

on February 25, 2016, asking for leave to depose Ms. Ellis, Mr. Davis, Mr.

Joy, and [ ]. Plaintiff has identified three gaps in the record that it

believes, in light of the history of the procurement and the bias it believes it

has suffered, need to be filled in order for effective judicial review. Plaintiff

also argues that these holes can only effectively be filled by the depositions of

those individuals. 

The first alleged gap is from November 2014 to January 2015, during

which time the agency was organizing the TEP, the TEP performed its first

evaluation and the CO made her award decision. Starry relies in part on the

agency’s own decision to take corrective action after its first GAO protest

11
because of what the agency characterized as gaps in the record, gaps which

Starry argues were never filled, such as why [ ]’s questions

regarding [ ]’s appearance of bias went unheeded and why [ 

 ]’s noted a list of omissions in Intellizant’s proposal but rated them as

technicallyacceptable nonetheless. Plaintiff also seeks an explanation for why

the agency decided to take corrective action after Starry’s first protest was

filed. 

The second gap is from January 2015 to April 30, 2015. Plaintiff

alleges that the record is silent with respect to the process which lead to the

second award to Intellizant or why it took so long to reevaluate the same

proposals. The record of this reevaluation does not contain individual

evaluation sheets for each TEP member as it did for the first evaluation in

2014. Plaintiff also points out issues raised in the agency’s internal email

communications, which it believes are unresolved during the record for this

period, such as concerns raised by [ ] and [ ] regarding

Intellizant’s proposal, and, at least in [ ]’ case, why those concerns

did not show up in the final consensus TEP report. [ ] also asked

for further clarification regarding the issues that [ ]’s had initially

raised regarding omissions from Intellizant’s proposal. AR 1485-86 ([ 

] emails). Plaintiff finds the response from the CO, AR 1487, to be

insufficient. 

The third alleged gap is from July 2015 to September 2015. 

Specifically, plaintiff alleges that the record does not explain why the agency

only began to consider cancellation of the solicitation after the second GAO

protest was sustained. Plaintiff also points out that there is no explanation for

what took place in meetings during this period that are otherwise referred to

in documents. See AR 1543-45 (agency emails). Plaintiff believes that the

steps taken by agency personnel during this period, especially after the August

11, 2015 GAO decision, are not explained in contemporaneous documents. 

The decision to cancel simply appears ex nihilo. 

Defendant objects to plaintiff’s discovery request. It does, however,

attach two documents to its opposition that it believes should have been

included in the AR. The first is an email from agency counsel to the parties

and GAO on September 8, 2015, which explains the agency’s rationale for

cancelling the solicitation ratherthan reevaluating Intellizant, as recommended

by the GAO. The second document is a declaration of the CO, created March

9, 2016, in which agency counsel attempts to recapitulate the various decisions

12
of the agency throughout the two and a half year history of this procurement. 

Defendant argues that Starry has not made the requisite showing of a

credible allegation of bias. Defendant also argues that, even if there are gaps

in the record, the record is still sufficient for the court to do a review,

particularly in light of the March 2016 declaration of Ms. Ellis that defendant

proposes we add to the record. Alternatively, it suggests that any gaps that

might exist would be better addressed by remand to the agency.

Plaintiff replies that much of the information the agency relies on to

respond to the assertions of a lack of an adequate record consists of after-thefact declarations offered to the GAO or to this court; the information is not

contemporaneous with the real events as issue. Insofar as gaps remain,

plaintiff responds that a remand, in the face of serious documented assertions

of the appearance of bias would be inappropriate because such allegations

uniquely raise concerns that the agency will be less than candid in

documenting what occurred. 

I. Plaintiff Has Presented Credible Allegations of Bias

Bid protests in this court are conducted under the standards set forth in

the Administrative Procedures Act. 28 U.S.C. § 1491(b)(1)(4) (2012). As

such, the parties and the court are normally limited to reviewing the agency’s

record of the procurement, which is meant to be contemporaneous with the

events as they happened and to supply the parties and the court with an

explanation of the agency’s decision making process. See Axiom Res. Mgmt.,

Inc. v. United States, 564 F.3d 1374, 1379 (Fed. Cir. 2009). Supplementation

of the administrative record is warranted only when it is necessary to ensure

effective judicial review. Id. Discovery by deposition, therefore, would be

unusual. 

Nevertheless, we are satisfied that plaintiff has made the appropriate

case for supplementation through discovery. Effective judicial review is not

possible when the administrative record “is missing ‘relevant information that

by its very nature would not be found in an agency record–such as evidence of

bad faith, information relied upon but omitted from the paper record, or the

content of conversations.’” InfoReliance Corp. v. United States, 118 Fed. Cl.

744, 747 (2014) (quoting Orion Int’l Techs. v. United States, 60 Fed. Cl. 338,

343-44 (2004)). As this court has recognized on several occasions, “rare

indeed would be the occasions when evidence of bad faith will be placed in an

13
administrative record.” Beta Analytics Int’l v. United States, 61 Fed. Cl. 223,

226 (2004); see also, e.g., L-3 Commc’ns Intergrated Sys., L.P. v. United

States, 91 Fed. Cl. 347, (2010); Int’l Res. Recovery, Inc. v. United States, 61

Fed Cl. 38, 41-42 (2004). Courts have therefore “traditionally considered

extra-record evidence in assessing alleged bias or bad faith.” Int’l Res.

Recovery, 38 Fed. Cl. at 41-42.

While government officials are presumed to operate in good faith, AmPro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1239 (Fed. Cir.

2002), a protestor is entitled to investigate bias if it can make a threshold

showing of “motivation for the Government employees in question to have

acted in bad faith or conduct that is hard to explain absent bad faith,” and that

“discovery could lead to evidence which would provide the level of proof

required to overcome the presumption of regularity.” Beta Analytics, 61 Fed.

Cl. at 226. 

A. Questionable Conduct 

While plaintiff casts its motion as a request to fill gaps in the record, 

and while the record here is remarkably innocent of details supporting the

numerous steps in the procurement process (especially the agency’s change in

needs and decision to cancel the procurement), we treat the real thrust of

plaintiff’s request as one for permission to investigate its assertions that Mr.

Davis was biased and that the bias affected the outcome.

There is credible evidence in the record that Mr. Davis was biased and

that, despite his self-proclaimed recusal, he continued to affect the outcome of

the procurement in a way that benefitted his former employer. The most

obvious example, of course, is his decision to cancel the procurement after

Intellizant’s two failures to obtain the award. Mr. Davis was a relatively

recent former employee ofIntellizant, and he recognized his own apparent bias

and purported to recuse himself from the procurement process. AR 940. 

[ ] states that Mr. Davis expressed both the inevitability and

desirability of award to Intellizant. He also states that Mr. Davis directed [ 

] not to participate in the TEP due to [ ]’s ongoing involvement

with Starry on the UFMS contract but then encouraged the participation of [

] who was similarly situated to [ ] with regard to Intellizant on

a different contract. [ ] also states that he was asked by Mr. Davis

to rate Starry’s performance as “unprofessional” for the current UFMS

14
contract and that, when he declined to do so, his relationship with Mr. Davis

became strained. 

We also have email correspondence between various agency personnel

during the events described above. Those emails reveal that, despite Mr.

Davis’ representation that he had recused himself from the procurement in

toto, he had a hand in selecting the TEP. They reflect that [ ] went to

Mr. Davis when confronted with a challenge to her independence in the matter. 

Even after that question was resolved, she followed up with Mr. Davis by

forwarding himthe CO’s resolution of the issue. He almost immediately asked

her to call him after receiving her message. This suggests something more

than disinterested observation on the part of Mr. Davis.

Finally, despite his protestations that he was generally uninvolved, Mr.

Davis was clearly the decision maker with regard to the cancellation of the

solicitation and failure to follow GAO’s direction to reevaluate the award to

Intellizant. While Mr. Davis as a director of one of the components of the

PCS had a legitimate interest as a “customer” in obtaining only needed

services, there is evidence calling into question whether the decision to cancel

the solicitation was based solely on the absence of need. 

On August 11, 2015, GAO sustained Starry’s second protest, laying out

a variety of deficiencies in the agency’s evaluation of Intellizant, and

recommending that the agency reevaluate the award consistent with its

directions. The recommendation was, on its face, prejudicial to Intellizant and

potentially beneficial to Starry. The agency never followed that

recommendation, however, because, Mr. Davis changed his mind regarding its

needs from the UFMS support contract. Mr. Davis’ second statement for the

record suggests that the idea to revise the agency’s need arose prior to GAO’s

August 11 decision.

Mr. Joy’s statement for the record, although lending some credence to

the notion that Mr. Davis considered factors other than Starry’s success at

GAO, also informs the court that Mr. Joy and others at the agency were

awaiting the outcome at GAO before action on cancellation of the solicitation. 

At oral argument, government counsel suggested that, had the agency

prevailed at GAO, it could have continued with the award to Intellizant and

then modified the contract later to drop the work that the agency discovered

was duplicated by the license agreements. There is no record support for that

explanation, and it would, in any event, be highly anticompetitive for the

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agency to compete a contract on the basis of needed expertise with several

software systems, while knowing before final award that it did not need that

expertise, and yet awarding on that basis anyway. As Mr. Joy stated up front

in his statement for the record, dropping that requirement would presumably

open the competition to more bidders. 

We are thus left with a situation in which a previously-recused agency

official stepped in to cancel a solicitation after the agency was unsuccessful in

multiple efforts to award the contract to his former employer. Plaintiff

proffers evidence that the rationale for waiting for the outcome of the third

protest was pretextual. All of this after the same allegedly self-recused official

was consulted regarding the make up of the TEP, was kept informed of the

process by the TEP panelists that he recommended, advised one potential TEP

member that he had a bias issue while ignoring the same issue presented by his

own recommendee, made known his preference for one offeror, and allegedly

attempted to bias a performance rating for the protestor. 

In sum, plaintiff has presented a credible allegation of “motivation for

the Government employees in question to have acted in bad faith or conduct

that is hard to explain absent bad faith.” Beta Analytics, 61 Fed. Cl. at 226. 

We thus turn to the question of whether the supplementation sought is likely

to lead to evidence sufficient to overcome the presumption of regularity. 

 

B. Evidence Likely to be Developed by Depositions 

A protestor must present clear and convincing evidence that an agency

official acted with bias or in bad faith in order to overcome the presumption

of regularity. See generally Galen Med. Assocs., Inc. v. United States, 369

F.3d 1324, 1330 (Fed. Cir. 2004). Supplementation of the record, however,

requires a lesser standard–a showing of likelihood that discovery would lead

to evidence that would meet the clear and convincing standard. L-3

Commc’ns, 91 Fed. Cl. at 355. We find that the standard is met here.

As detailed above, Mr. Davis continued to have a hand in the

procurement, guiding the composition of the TEP, readying other agency

personnel for an eventual switch to a new contractor, and eventuallycancelling

the solicitation after it became apparent that the agency would have difficulty

awarding to Intellizant. Some of his explanation for his involvement is

contradicted, or at least cast in a different light, by other record evidence such

as the statements of Mr. Joy and [ ] and the email correspondence

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revealed at GAO. Further, even assuming it was not improper for Mr. Davis

to have reinserted himselfin the process to cancel the solicitation, his decisionmaking process is not documented in the record in any contemporary fashion. 

Instead it appears only through two self-serving post-hoc explanations

prepared for litigation at GAO. 

In the face of credible allegations of bias and unexplained agency

action, we are left to conclude that the depositions of Mr. Davis, Ms. Ellis, Mr.

Joy, and [ ] are necessary for the court to resolve the issues presented. 

We find that plaintiff meets the burden for showing that its request is likely to

lead to evidence that would overcome the presumption of regularity. The

statements of [ ] already contained in the record directly suggest

bias on the part of Mr. Davis. The statement of Mr. Joy at least partially

contradicts the implication of Mr. Davis’ second statement for the record that

his decision to cancel the solicitation was unrelated to GAO’s decision in favor

of Starry. [ ]’s involvement in the TEP is questionable in light of [

]’s representation that he was asked to abstain for participating in the

TEP because of his involvement with an offeror’s effort on a contract with

HHS but [ ] was not asked to abstain for that same reason. Ms. Ellis, 

the CO and the official ultimately responsible for the procurement, cleared [

]’s involvement. Thus, the taking of depositions of these individuals will

produce testimonythat ismore probative than the largelyself-seeking post-hoc

explanations currently contained in the record. Examination by counsel may

result in fuller explanations of the agency’s actions and decisions, as far as

they exist, for the agency’s actions and decisions. 

II. Depositions Are Warranted

Defendant also argues that, if the court were to find the record lacking

in some respect, that the only warranted remedy is to remand to the agency to

supply yet another round of after-the-fact explanations. We decline that

invitations for two reasons.

First, we gave defendant an opportunity to supplement the record at the

onset of this case in light of the allegations contained in the complaint. See

Order of February 12, 2016. Defendant declined that invitation. See

Defendant’s Status report of February 19, 2016. Defendant elected to proceed

with the explanations that agency officials had already presented to the GAO. 

We do not see a reason to give it another chance to answer that question

differently now.

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Second, in light of the credible allegations of bias and spotty

explanations of agency conduct, the inclusion of new explanations short of

discovery by means of depositions is unlikely to result in information useful

to the court in resolving the merits of this protest. Depositions are warranted. 

 

CONCLUSION

We conclude that plaintiff has met its burden in showing why it is

necessary to supplement the administrative record with the four depositions

detailed above. Although the protest is framed as a challenge only to the

cancellation of the solicitation, given the well-founded allegations of bias, the

long history of this procurement, and Mr. Davis’ involvement at different

points along the way, we will open the record to examination of all of the

agency’s actions from inception to cancellation of the solicitation through the

four depositions requested by plaintiff. Accordingly, the following is ordered:

1. Plaintiff’s motion to supplement the administrative record is granted.

2. Defendant’s request to include in the AR the two documents

attached to its opposition is granted. The email from HHS counsel and

the declaration of Ms. Ellis will be considered part of the

Administrative Record.6

3. Plaintiff is granted leave to take the depositions of Mr. John Davis,

Mr. Patrick Joy, Ms. Cassandra Ellis, and [ ]. 

4. The parties are directed to endeavor to complete those depositions

within the next three weeks.

5. The parties are directed to file a joint status report on or before April

8, 2016. 

s/ Eric G. Bruggink 

ERIC G. BRUGGINK

Judge

6

 We recognize that Ms. Ellis’ declaration is not a contemporaneous record

of agency decision making, but, in light of our grant of plaintiff’s motion to

supplement the record, we will allow it added to the record.

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